Archive for the 'DUI Law' Category

Guilty vs. No Contest Plea in California DUI Cases

Friday, September 25th, 2015

Most California DUI cases end in a plea deal. This means that the defendant is willing to accept the prosecution’s offered sentence in exchange for a guilty or no contest plea. Few people, however, actually know the difference between pleading guilty or no contest.

Pleading guilty to a California DUI means that you are admitting that you drove while intoxicated, drove with a 0.08 percent blood alcohol content or more, or that you did both. A guilty plea can be used against that person in a separate and subsequent civil case arising from the drunk driving.

For example, if a drunk driver crashes a vehicle into a house, the homeowner may file a lawsuit the drunk driver to recover losses associated with the crash. Since a guilty plea means that the drunk driver admitted to driving drunk, the homeowner can use the guilty plea against the drunk driver to win the civil lawsuit.

A plea of no contest, or nolo contendere, on the other hand, means that the defendant is not admitting guilt, but rather merely accepting any punishment the judge may give them as though they had pled guilty. Because the defendant is not admitting guilt, the no contest plea cannot be used against them in a subsequent civil case.

In our drunk driver hypothetical, if the homeowner were to sue the drunk driver for damages associated with an accident, the homeowner would not be able to use the drunk driver’s no contest plea to help win the civil lawsuit because the drunk driver never admitted guilt.

Whether a defendant is allowed to enter a no contest plea is dependent upon the plea negotiations. If there are no aggravating factors associated with the DUI, i.e. high BAC, prior DUI convictions, etc., the defendant may be allowed to enter a no contest plea. It is however, by no means, automatic.

As a practical matter, there is almost no difference between the two pleas as it pertains to the DUI case. The judge treats each equally. However, when possible, many DUI defendants and DUI attorneys seek a no contest plea over a guilty plea. Even if it is unlikely that a subsequent civil case will arise from the drunk driving incident, a no contest plea just looks better.


Proposed “Gun Violence Restraining Order” Could Affect DUI Offenders

Monday, June 2nd, 2014

In the wake of the tragic shootings last weekend at UC Santa Barbara, two Democrats in California’s State Assembly have announced their plans to introduce a new gun control measure which could prohibit those who have been convicted of a DUI from owning and carrying a gun.

The “gun violence restraining order,” proposed by Nancy Skinner (D-Berkeley) and Das Williams (D-Santa Barbara), would create a system where a legal gun owner can have their guns confiscated if a family member believes they have a mental health problem that the state is not aware of. The “restraining order” could be issued upon gun owners who have passed NICS background checks, registered their firearms with the state, and have not broken any laws.

The idea for the “gun violence restraining order” is part of a recommendation from the Consortium for Risk-Based Firearm Policy which also suggests firearm prohibitions for other “risk factors” including “drug or alcohol use (linked to DUI convictions or misdemeanors involving a controlled substance).”

I won’t comment on the “restraining order” as it applies to those who have been identified by family members as having mental health problems, although I do have my opinions.

However, when it comes to prohibiting those who have suffered from a DUI conviction from owning a gun, I have an issue that I will express.

This isn’t the first time that legislators have attempted to place gun ownership restrictions on DUI offenders.

Last year, Democratic Sen. Lois Wolk of Davis introduced SB 755, a bill which would have prevented some DUI offenders from having guns for a period of 10 years. Fortunately, California Governor Jerry Brown vetoed the bill saying, “I am not persuaded that it is necessary to prohibit gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

Also last year, Connecticut Governor Dannel P. Malloy proposed a law that would ban DUI offenders from owning a firearm. Supported by Connecticut democratic senator Martin Looney, the proposed law was intended to prohibit possession of firearms by people who have demonstrated “irresponsible behavior” and a “willingness to break the law.”

I’ve never been the biggest advocate for gun rights, but the suggestion that a DUI offense is a “risk factor” which should prevent someone from owning a gun is absurd.

The Consortium’s recommendation for a prohibition on gun ownership targets groups at heightened risk of violence. According to the Consortium, that includes individuals convicted of two or more DUIs in a five-year period. What is it about a DUI that’s violent? Taking into account DUIs which involve injuries or death, the “violence” involved unintended violence which has nothing to do with the propensity to misuse a gun.

Currently, certain convictions can prevent individuals from possessing a firearm. However, those convictions at least have a causal link to potential future gun violence. Driving under the influence, however, does not.


California DWI – Driving While Addicted

Monday, May 19th, 2014

Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.

Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

You may be asking yourself the same thing I did when I first read it. Huh?

The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?

In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?

Unfortunately, the California Supreme Court has yet to answer that question.

Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.

Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.


How Do I Choose the Right DUI Attorney?

Monday, May 5th, 2014

“What’s the difference between lawyers and vultures?”

Let’s face it, we attorneys do not have a good rap. But obviously not all attorneys are bad. And when people have been arrested for DUI and are at their most vulnerable, they must rely on attorneys to navigate their case through the maze that is the law. So how do you choose the right DUI attorney — and what will a DUI lawyer cost?

First off, you’re going to have to do some research. With so much on the line, why would you not? Ask people you know for referrals. Check the ratings of attorneys on websites like and Check to see if the attorney you’re considering has had any disciplinary action against them from the California Bar Association. You can check this at

When attorneys become licensed to practice law, they can practice any area of law. Does that necessarily mean that they are qualified to practice every area of law? No. There are many attorneys that are “general practitioners.” This means that they take cases ranging from probate law to real estate law to DUI defense. Personally, if I have a probate case, I’m going to go to a probate lawyer. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If you get arrested for a DUI, wouldn’t you want an attorney who only practices DUI defense or even criminal law?

Be wary of the attorney who calls your case a “slam dunk.” No case is a “slam dunk” and very few things in law are that black and white. The By law, attorneys cannot guarantee an outcome. In fact, most of the time, DUI attorneys don’t know the facts of the case until the first court date, which is when they obtain a copy of police report. Sure, you can tell the attorney your version of the story during the consultation, but that, very often, varies wildly from what the police say.

Expensive doesn’t necessarily mean good. Having said that, you also shouldn’t shop for the cheapest quote on the market. Find out what attorneys are charging for the services you’re looking for. Again, you’re going to have to do some research. I can tell you right now, most DUI attorneys charge a flat fee for DUI defense rather than an hourly fee. And that flat fee can range from below $1,000 all the way up to $10,000. Make sure that you’re comfortable with the price, the payment arrangements, and the services that you’re receiving for them.

Attorneys are not cheap. Don’t drop your hard earned dollars unless you are absolutely completely comfortable with the attorney and the relationship. After all, you are entrusting this person with representing you in a court of law.

The punchline to the joke is “wings.” Don’t get stuck with a vulture.


Sheriff: “We Have Complete Power Over You”

Monday, April 28th, 2014

I've commented repeatedly in the past about the growing power of law enforcement in this country — the ability and willingness of police to abuse their authority, ignore contutitional protections and use excessive force.  This, of course, has not been limited to the DUI field, but has been a widespread phenomenon.  The rate of shooting deaths by police has skyrocketed, for example, and the spread of SWAT teams and the adoption of military and paramilitary equipment and tactics has spread across the country.  Due to the prevalence of cell phone cameras, more and more of these senseless killings by police have been clearly documented.

Is this due to an increasingly lawless citizenry — or to an increasingly authoritarian mentality among police agencies?

The following is a highlighted quote from a full-page Jacksonville, North Carolina, newspaper ad from a sheriff seeking re-election for a fourth term:

Those in the law enforcement profession have complete power and authority over you, your life, you family, your loved ones, your rights, your freedom, your future, and everything precious to life.

The following is a letter to the editor in reply:

I read Sheriff Ed Brown's full-page ad in the paper Feb. 2 edition of The Daily News. All freedom-loving Americans should be scared of what it says.

In the ad, Brown states, “Those in the law enforcement profession have complete power and authority over you, your life, your family, your loved ones, your rights, your freedom, your future and everything precious to life.”

Ed Brown must want us to live in a total-domination police state.

It is our Constitution and Bill of Rights that guarantee our freedoms. Any politician who believes in Ed Brown’s statement is not worthy of any public office.

I totally reject Ed Brown’s claim that law enforcement has complete power and authority over me. As an American, I trust in the guarantees of our Constitution and believe in our democratic way of life; and I will fight against those who would want to impose their tyranny over us

Well said.  But let's hope the writer of this letter is never stopped by a local deputy sheriff…