CRIMINAL DEFENSE AND DUI

Monty S. Gill has been a lawyer for more than 24 years. He has handled hundreds of criminal offenses including, but not limited to, assault, battery, DUI, Hit and Run, Driving with a Suspended License, Drug Charges, Insurance Fraud, Embezzlement, Forgery, Identity Theft, Arson, Burglary, Embezzlement, Larceny, Shoplifting, Theft, Trespass, Vandalism, Warrants, Abduction, Domestic Violence, Elder Abuse, Child Abuse, Solicitation, Sexual Crimes, Domestic Violence, False Imprisonment, Kidnapping and Robbery. We also represent clients with Violation of Probation charges, and Expungements.

Mr. Gill fights hard to obtain the best possible outcome in each case. Call 805-644-1071 for a free confidential consultation about your criminal matter.

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FREQUENTLY ASKED QUESTIONS ABOUT DUI CHARGES

What is DUI?
DUI is shorthand for Driving Under the Influence. In California, a person is guilty of DUI if he or she drives or is in actual physical control of a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that his or her mental faculties are impaired or when his or her blood alcohol level (BAC) is .08 or above.

Can I still be in trouble for driving, even if my BAC is below the legal limit?
Yes. It is also unlawful to drive with our normal faculties impaired. Normal faculties are those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, etc.

Does the car have to be moving for me to be guilty of DUI?
No. You can be arrested for DUI by driving while over the legal BAC or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for DUI by being in actual physical control of the car.

Do I have to submit to a breath, blood, or urine test?
The answer to this question is Yes and No. After being stopped, a police officer will request you submit to a PAS Test. The PAS Test is done at the scene of your stop by you blowing into a handheld devise the police officer carries in the patrol car. You do not and should not submit to this test. However, you are required to submit to a breath or blood test back at the station after you are arrested. Refusing a breath or blood test is generally not a good idea as the motor vehicle department will automatically suspend your privilege to drive. In addition, your refusal to submit to a test upon the request of a law enforcement officer may be admissible in any criminal proceeding against you as evidence of you consciousness of guilt. By accepting the privilege extended by the State of California to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI, you will accept to take the test.

If I am arrested for a DUI, will I lose my license?
The law enforcement officer will seize your license if you are arrested for DUI with an unlawful BAC or after you refused to submit to a chemical or physical test. Your license will be seized and the officer will issue you a temporary driver's license and as your notice of suspension. However, you may request a review of the driver's license suspension by the department of motor vehicles within 10 days following your arrest. It is very important that a review is requested because many times we are able to save your license for you.

How long will I lose my license?
In California, if you have refused to submit to a chemical test, your license will likely be suspended for a period of one year for a first refusal, or for eighteen months if you have previously refused to submit to such a test. If you have an unlawful BAC, your driving privilege will likely be suspended for four months for a first offense, and one year for a second offense. It is possible to obtain a restricted license allowing you to drive to and from work after an initial 30 day suspension.

What else will happen to me?
Once again, this varies from county to county in California. But more than likely, you will be given a jail term. Most counties, including Ventura County, mandatory 48 hour jail time on the first offense. In addition, most second offenses, results in a mandatory 30 day jail term and a third offense can result in a sentence in State Prison. Furthermore, your insurance company may discontinue its coverage or at the very least, assign you to a high-risk category, resulting in a substantial increase in your premiums.

FREQUENTLY ASKED QUESTIONS ABOUT TERMS AND CONCEPTS IN CRIMINAL LAW

Charges
A crime may be either a felony or a misdemeanor. Generally, a felony is a crime for which the punishment may include prison. A misdemeanor is a crime which does not result in a prison sentence. All crimes which have an unspecified sentence are misdemeanors. Penal Code Sections 177 and 650.5.

While most crimes provide either an express declaration of classification, or impose sentences which make the crime conclusively either a felony or misdemeanor, other crimes may be either one of a felony or misdemeanor. The latter are called "wobblers" in the criminal courts. Wobblers have statutory penalties which give the alternative option of either prison or jail/fine. An example is a so called "felony drunk driving," VC 23153, which can actually be either a felony or a misdemeanor. Determining whether a wobbler is a felony or misdemeanor for use in civil proceedings requires a review of the charges and criminal proceedings.

First, and most simple, a wobbler charged as a misdemeanor in the complaint by the DA is a misdemeanor. Penal Code Section 17(b)(4). Additionally, a wobbler charged as a felony, but which results in a sentence not including prison, is a misdemeanor. Penal Code Section 17(b)(1). This is not to be confused with a suspended sentence. Failure to impose any sentence whatsoever on a wobbler results in a felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended sentence even with imposition of jail time, also results in a felony. Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks (1959) 53 C2d 370, 1 CR 669.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the original sentencing, in certain cases. Penal Code Section 17(b)(2), (3) and (5). See, for example, People v. Soto (1985) 166 CA3d 770, 212 CR 969.

Pleas
There are six (6) pleas available to a criminal defendant in California. Penal Code Section 1016. The pleas of "not guilty," "guilty," and "nolo contendere" are the three (3) commonly encountered. The usual practice is for the defendant to plead "not guilty" and then either negotiate terms of a different plea, or proceed to judgment.

There are six kinds of pleas to an indictment or an information, or to a complaint charging an offense triable in any inferior court:

Guilty.
Not guilty.
Nolo contendere, subject to the approval of the court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and actual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. A former judgment of conviction or acquittal of the offense charged.
Once in jeopardy.
Not guilty by reason of insanity . . . Penal Code Section 1016. The change of a plea requires leave of Court. People v. Lewis (1883) 64 C 401, 1 P 490. A plea of nolo contendere may be made only with Court approval. Penal Code Section 1016, Caminetti v. Imperial Life
(1943) 59 CA2d 476, 139 P2d 681.

The language of the section pertaining to nolo contendere pleas indicates a prohibition of its application to all crimes "punishable as felonies." This language is broader than the Penal Code Section 17 definition of felonies, since under Section 17 the ultimate sentence or other factors determine whether the conviction is a felony or misdemeanor. The language of the section indicates that a nolo contendere plea has the same as a guilty plea effect in cases of "wobblers," even those which result in misdemeanor convictions, since they are punishable as felonies. See Comment to Evidence Code Section 1300.

The change in language barring application of nolo contendere pleas to crimes punishable as felonies was made in 1982 under the mandate of the Victims Bill of Rights.

Proceedings
Both felonies and misdemeanors start with a procedure called an arraignment. Penal Code Section 976. After that, they have little in common.

The arraignment ostensibly is to advise the defendant of the charges against him and to give him an opportunity to plead. A defendant pleading "not guilty" will be given certain options at arraignment, including whether to assert his speedy trial right. A case wherein the defendant is not asserting his speedy trial right, will be referred to in the system as a "time waived" case.

In felony cases, the defendant must personally appear at all hearings unless the court waives the requirement. Defendants charged with a misdemeanor, represented by counsel, are not required to personally appear. Penal Code Section 977.

After arraignment, the case will usually be set for a hearing called a "pretrial" or equivalent. This proceeding is similar to a civil settlement conference. A misdemeanor will usually proceed from pretrial directly to trial.

A felony usually requires a "preliminary hearing" at some point following the arraignment unless waived by the defendant. Penal Code Section 859b. The preliminary hearing is an evidentiary hearing to determine if the evidence is sufficient to support further felony prosecution on the felony charges. A victim will often testify at the preliminary hearing. On sufficient proof, the defendant is then "held over". Penal Code Section 872. After being held over, the defendant is arraigned again and set for trial.

As with civil proceedings, during the course of the proceedings, various motions and other procedures can intervene.

Criminal cases tend to be more oriented toward oral pleadings than civil cases. This has caused the language of lawyers and judges within the criminal system to evolve into abbreviated terms, giving criminal proceedings a language of their own.

The following is a nonexclusive list of the more common references:

"Arbuckle Waiver" - Where the defendant waives his right to be sentenced before the same judge who accepted his plea.
"Bottom" - Opposite of "Top." The defendant will not be sentenced to less than a specified amount of time in exchange for a plea.
"Bullet" - One year in jail.
"Concurrent Punishment" - The defendant receives punishment of more than one form, or on more than one case, at the same time.
"Consecutive Punishment" - The defendant receives various punishments added onto each other.
"Deuce" - A DUI.
"Harvey Waiver" - Permits Court to consider dismissed counts in sentencing.
"Hitch" or "Trombetta" or "Youngblood Motion" - These three all refer to a motion claiming the prosecution failed to preserve scientific evidence.
"Johnson Waiver" - The defendant waives the maximum jail sentence, permitting a jail sentence in lieu of prison.
"Marsden Motion" - A motion made by the defendant claiming he is not being represented adequately.
"Major Mover" - Indicates a driving related misdemeanor.
"Mover" - Indicates a driving related infraction.
"Pitchess Motion" - A motion by the defense to review the personnel/complaint records of the arresting officer.
"Time Waived" - The defendant has given up some right for something to happen in a specified period.
"Top" - An offer by the court to not sentence the defendant in excess of a specified length of time in exchange for a plea.
"Wobbler" - A crime which may be either a felony or a misdemeanor.
"977" - The court has waived the requirement the defendant be present in felony cases.
"995" - A motion to dismiss.
"1538.5" - A motion to suppress evidence illegally gained.

Sentencing
Upon conviction, judgment is imposed and the defendant is sentenced. For misdemeanors, sentence is to be imposed in "not less than six hours, nor more than five days" after conviction. Penal Code Section 1449. For felonies, sentence is to be imposed within 28 days of conviction. Penal Code Section 1191.

These time constraints with respect to imposing sentence are routinely waived by the defendant.

For felonies, the court usually orders a probation report prior to sentence under Penal Code Section 1203.10. Probation reports are rarely ordered in misdemeanor cases.

Probation and Parole
Probation is "the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community . . ." Penal Code Section 1203(a).

Every misdemeanant, and most felons are eligible for probation. Certain felons are excluded for public policy reasons, subject to a showing of "unusual" facts. Penal Code Sections 462, 462.5, 1203(e), 1203.645.

In granting probation, "the paramount concerns in sentencing must be the protection of society. The interests of the defendant are of legitimate but secondary concern." People v. Warner (1978) 20 C3d 678, 143 CR 885.

Probation and parole are sometimes confused. Parole refers to the conditional release of a prisoner before the date set for his release from incarceration.