Drunk Driver May Finally Lose License After 28th DUI Arrest

Friday, October 6th, 2017

Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.

This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.

Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.

“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.

According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.

Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.

As of last week, a revocation of Bettcher’s license was pending.

Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.

So what would it have taken for Bettcher to have his license permanently revoked had he been in California?

The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.

If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.

A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.

Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.

I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.

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Bill to Help Veterans Avoid a California DUI

Thursday, July 6th, 2017

A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.

Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction

To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.

The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”

Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.

“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”

However, not all are fans including district attorneys and other prosecuting agencies.

“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.

Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.

“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.

The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.

If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.

The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.

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Man Found Asleep in Car in OC High School Arrested DUI

Thursday, April 27th, 2017

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

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Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

 

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Can I Expunge a California DUI Conviction?

Wednesday, March 8th, 2017

A very common question people have when they are arrested on suspicion of a California DUI is, “Will this be on my criminal record and, if so, for how long?”

Unfortunately, if the person is convicted, the answer is “yes and forever.” But that doesn’t mean that all hope is lost.

I should clarify before I move on that the arrest will also be on the record, but an arrest, unlike a conviction, cannot be used against you if you were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest nor can they use an arrest as a reason not to hire you.

Having said that, a conviction is different because a conviction means that a person was found guilty of a crime such as a DUI. Convictions can be and are often used by employers as a reason not to hire someone.

When people hear the word “expungement” they think of a clearing of the record, and erasing if you will. However, the term “expungement” is somewhat of a misnomer in California because a DUI conviction, or any criminal conviction for that matter, will not be erased from your record.

California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

In short, this means that, following the completion of probation, a person can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.

Although the conviction is not erased from the record, it will now show up as having been dismissed by the court. Cases that are dismissed don’t result in convictions. So, if a person successfully petitions the court for an expungement of a California DUI, they no longer need to disclose the conviction on most employment applications because the conviction was dismissed.

I said that a person need not disclose expunged convictions for most employers because there are some exceptions to the disclosure rule. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

People make mistakes and sometimes that mistake is the decision to drive while under the influence. Mistakes shouldn’t haunt people for the rest of their lives. If you’ve been convicted of a California DUI and you have completed probation, contact a California DUI attorney about expunging the DUI conviction.

 

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What are the Penalties for a California DUI?

Monday, October 17th, 2016

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.

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