Frequently Asked Questions
Q: What will happen on my first court date and do I have to be there if I have a Lawyer or Criminal Defense Attorney?
A: The first Criminal Court date is called an arraignment. On this day a plea will be entered to the charges (guilty, not guilty or no contest). Usually, the police reports and a list of charges (Complaint) are obtained. The defendant in misdemeanor cases will usually not have to be present if represented by an attorney. On Felony cases, Bail can be reduced or the attorney can argue for an O.R. or release on one's own recognizance, thus eliminating the need to post bail if the client is in custody. There are significant dangers in showing up to an arraignment without a lawyer, particularly if you are currently on probation for another case or if you were released on O.R. or low bail, the Judge could raise your bail and remand you into custody.
Q. I was arrested for Spousal Abuse and battery but my wife was upset and says she made a mistake when she called the police. Can she have the domestic violence charges against me dropped?
A. No, only the District Attorney can drop the charges against you and this is unlikely to occur. A victim of domestic violence or what is commonly called spousal or co-habitant battery often attempts to recant the statement they made to police in order to have the charges dropped against an abusive spouse. In the past this has led to a cycle of continuous abuse. The District Attorney Office prefers to file charges and let the courts decide issues of domestic violence. However, A Lawyer can intervene and may be able to convince the D.A. evidence is lacking and get the charge dropped
Q. The police did not read me my rights, will my case be dismissed?
A. Law enforcement personnel are required to read you your "Miranda rights" only if two criteria are met. You must be in custody (usually "arrested"), and you must be interrogated (questioned about the details of the crime). A Miranda warning violation does not automatically result in the dismissal of a case. The statements that you made after the violation would be suppressed and not admissible as evidence if a lawyer is not provided.
Q. I only took a small item from the store. Why have I been charged with burglary and not shoplifting?
A. The key distinction between being charged with burglary (entering a structure with the intent to steal) and shoplifting (petty theft) is when was the intent to steal formed in their mind. Essentially, if a person enters the store with the prior intent to steal something then they are committing burglary. If they enter for other reasons and decide in the store to simply take an item of small value then it is petty theft. Intent is the key element that must be established for a burglary charge. Intent is often established by being in possession of false receipts and already having empty bags to place stolen items, etc.
Q. The police said I blew a.07%. Why was I still arrested and charged with a DUI?
A. An arrest for DUI can be made at any blood alcohol level. Some counties routinely prosecute people with blood alcohol levels below a .08% Blood Alcohol Concentration (BAC). Often the decision to arrest is dependent upon the performance on the field sobriety tests (balance & coordination) and the driving pattern (weaving, speeding or an accident, etc.). An officer can arrest for simply being under the influence of alcohol or drugs with no reference to your blood alcohol level at all! The District Attorney would then file a 23152(a) CVC charge, which is simply driving under the influence of alcohol. Again, this would likely be based on the police observations of your driving pattern and performance on the field sobriety tests.
Q: If I have a good case, should I wait to contact the DMV about a hearing?
A: No, the criminal case and DMV suspension of your license in DUI cases are completely separate actions. You must request a hearing within ten days of arrest to avoid the automatic suspension of your driver's license by the DMV. Our Lawyer can handle this for you.
Q. What is a DMV administrative hearing?
A. In most circumstances where DMV orders a discretionary action against a person's driving privilege, that person has the right to a hearing before the department to contest the action and review the evidence supporting it. You must request a hearing within a set period of time of receiving notice of the action against the driving privilege. The hearing is tape recorded and may be conducted by telephone or in person. The hearing is held before a Driver Safety Hearing Officer of the department. At the hearing, the driver is informed of the legal grounds for the action, and has the opportunity to review and challenge the evidence of the department, and to present evidence, witnesses and testimony to persuade the department to modify or rescind the action. The rules that control these hearings are found in the Vehicle Code, the Government Code (Administrative Procedures Act) and in various Appellate and Supreme Court rulings. Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action. A Lawyer is essential.
Q. What are my legal rights at a DMV administrative hearing?
A. You have the right to be represented by an attorney or other representative. We have helped our clients keep their driver license. You have the right to review the evidence and to cross examine the testimony of any witnesses for the department, and to present evidence and witnesses on your own behalf, as well as the right to testify on your own behalf. Following the hearing, you have the right to be provided a decision in writing. Should the decision resulting from the hearing be against you, you have the right to request the department to conduct an administrative review of the decision, as well as the right to appeal the decision to superior court. Requests for the administrative review or to appeal the decision in court must be made within a certain time period depending on the type of hearing and as described in the Vehicle Code. These time periods and other specific information concerning your rights will be stated on the notice containing the hearing decision.
Q: Why am I being charged with DUI if I did not drink, I only smoked a little marijuana?
A: In California DUI includes drugs as well as alcohol. Suspicion of driving while under the influence of drugs, including marijuana, may be proper grounds for a charge of DUI.
Q: How can they charge me with DUI if they pulled me over for speeding?
A: The speeding offense provided the probable cause (valid reason) for the stop. If the law enforcement officer suspects you of driving under the influence after you are stopped (based on admissions, smell of alcohol or drugs etc.) you can be arrested for DUI. There is no requirement that police suspect you of driving under the influence prior to the stop in order to arrest you for DUI.
Q: Why is there no speeding charge on my ticket, only DUI?
A: The lesser speeding charge (infraction) is usually not charged because of the more serious DUI charge (misdemeanor). The speeding will be reflected in the police report, not on the ticket.
Q: The police spelled my name wrong on the citation, will my charges be dismissed?
A: No, a harmless error of this type on a traffic citation will not result in a dismissal of the charges.
Q: I did not give police permission to search my vehicle. Is this a violation of my rights and an illegal search?
A: In most cases no. Police need probable cause to suspect that the vehicle contains contraband or instrumentalities of a crime. There is a lesser expectation of privacy in vehicles and searches incident to an arrest are also allowed. Officers can search the entire passenger cabin, and in some cases may even open any containers and packages if there is probable cause that it may contain contraband. Proper probable cause is always a key issue for an attorney to explore.
Q: If the officer does not show up at my initial court date will my DUI be dismissed?
A: No, a DUI is a misdemeanor not a traffic infraction. The initial court date is an arraignment and the police officer will not be present. In fact the police officer may never be present during the court proceedings until the date of trial if any.
Q: Is it true that you should refuse the chemical test?
A: No, absolutely not. You should never refuse to take a chemical test in California. A refusal to take a blood or breath test will result in the automatic 1-year suspension of your driver's license even if the DUI charge is dismissed. And if convicted a refusal can result in increased penalties including jail time. Also, the refusal can be introduced into evidence as "consciousness of guilt" of having too much alcohol in your system. This can be refuted by your defense attorney.
Q: Will the court count prior DUI convictions in other states against me?
A: Generally, yes. If the law in the other state is substantially similar to the law in California then a prior DUI or DWI can be used against you in California thereby increasing the penalties (jail time, greater fines and longer alcohol programs, etc.).
Q: What is a wet reckless?
A: A wet reckless is essentially driving with some alcohol in your system that does not rise to the level of a DUI. This is a common reduction for first time DUI offenders. The fines, penalties and probation are often less than that of a DUI, but a wet reckless will be considered as a "priorable" offense for a ten year period. Thus, if you get another DUI within ten years of a wet reckless the DUI will count as a second offense.
Q: Shouldn't I just plead guilty if my test results were over .08% BAC?
A: There could have been an error during the testing process that can only be uncovered during the discovery process. If you simply plead guilty based on the original test results you may be giving up your opportunity for a dismissal or reduction of the charges against you. Alcohol testing is not always accurate. Procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. Your attorney should explore all of your options and opportunities.
Q: How can I win a DMV hearing if my test results were over .08%BAC?
A: The DMV hearing is very concerned about whether all procedures by law enforcement were properly performed before suspending a person's driver's license. Testing is not always accurate, procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. All of these could result in a set aside of your suspension. The DMV hearing is crucial in DUI cases. We are very successful in having our client's driver's license suspension set-aside and licenses returned to our clients.