California Penal Code Section 311 prohibits possession and distribution of child pornography and also sexual exploitation of children. Convictions for these offenses can “wobble” down to misdemeanors or result in up to six years in state prison even for first time offenders. Even misdemeanor convictions can result in mandatory sex offender registration.

Federal prosecutions for child pornography tend to bring even harsher sentences. Simple possession can result in up to ten years in federal prison for a first offense or up to twenty years with a prior conviction for a wide range of crimes. That’s just for possessing an image of a person under age 18 found to be pornographic, a simple photograph for example.

Most cases involve computers, and most images were downloaded from the Internet. In federal court, downloading an image is called “receipt” and is punished just like “distribution” under 18 U.S.C. § 2252A(a)(2) or 18 U.S.C. § 2252(a)(2). Even first time federal offenders are subject to a five-year mandatory minimum sentences in federal prison for just downloading or distributing child pornography. With a prior, downloading “receipt” or distribution of child pornography carries a fifteen year mandatory minimum federal prison sentence up to forty years. Simple “sexting” can result in convictions for these offenses.

Once charged in federal court, detention is presumed, and if you are released pretrial, you must submit to electronic monitoring. 18 U.S.C. § 3142(c)(1)(B).

In either state or federal court your attorney should get disclosure of results and reports of computer forensic testing including reports of software program used by law enforcement. Your attorney should also learn about any surveillance of your computer over the internet. Every image has a hash mark, and law enforcement uses programs that grab known images out of cyberspace and trace them back to sending and receiving computers. After that, law enforcement is watching what you are watching in real time, sometimes.

Even sentencing law software developers, like this blog’s author, hire computer experts to forensically examine hard drives looking for defenses regarding:

Adult pornography

File sharing

Viruses, trojans and malware

Downloader identity

File storage location: accessible or unallocated

Timing of access, transmittal and import

Storage

A little mischief can result in a lot of trouble when it comes to pornography. Make sure you get an attorney who zealously defends you and your liberty.

Title 18 U.S.C. § 1030 and § 1029 also prohibit illegal capture, trafficking and possession of computer access devices and passwords. These laws cover credit card and cell phone fraud including “skimming” where criminals insert a device into a credit/debit card reader (what you stick your card into when using it) to “capture” account access for future fraudulent purchases. Although credit card fraud victims are covered from loss, debit card users have less protection after getting ripped off by a skimmer.

Title 18 U.S.C. § 1028 outlaws identity theft where the defendant knew the means of identification he unlawfully transferred, possessed or used in fact belonged to another person. United States v. Flores-Figeroa, 129 U.S. 1886 (2009). Although violations of Section 1029 frequently involve computers, just using another person’s drivers license or social security card can result in federal prosecution.

Cyberstalking is a federal crime under 18 U.S.C. § 2261A. Whoever uses “any interactive computer service … to engage in a course of conduct that causes substantial emotional distress” shall be punished for not more than five yeas in federal prison under 18 U.S.C. § 2261(b)(5). Also, whoever commits the crime of stalking in violation of a temporary or permanent civil or criminal injunction, restraining order, no-contact order, or other such order shall be punished by imprisonment for not less than one year under 18 U.S.C. § 2261(b)(6). Children are protected from on-line stalking under 18 U.S.C. § 2424. This law broadly prohibits any transfer of information about a minor under age 16 with the intent to commit a sexual offense.

Numerous federal statutes cover Internet Fraud, On-line Drug Sales. Health Care and Health Product Fraud, Internet Auction Fraud, Internet Gambling (perhaps only on sports), Internet Investment Scams, and Unsolicited Commercial E-Mails and Spam.

These crimes are examples of why you need an experienced criminal defense attorney who practices in both state and federal court. With occasional exceptions, people are in less trouble in state court than federal court for the same illegal conduct.

Federal Marijuana law trumps California medical marijuana laws. According to the United States Supreme Court, in Gonzales v. Raich (2005), the federal government can continue arresting and prosecuting patients who are using marijuana legally under California law. However Gonzales v. Raich did not overturn state medical marijuana laws, including California’s Compassionate Use Act of 1996.

Under Federal Law, Title 21 United States Code Section 844, simple possession of marijuana is illegal, with a maximum possible penalty of up to one year in federal prison, and a mandatory $1,000 fine. With a prior, there is 15 day mandatory minimum sentence and $2,500 mandatory fine for simple possession! However simple possession of marijuana misdemeanor federal prosecutions are usually limited to arrests on federal land such as national parks and military bases, at least in California. The bottom line is that state law cannot stop a federal marijuana prosecution even for a misdemeanor.

Also under federal law, 1,000 or more marijuana plants (or 1,000 or more kilos of a detectable amount) brings a ten year mandatory minimum sentence (20 years with one prior and life with two priors); 100 or more marijuana plants (or 100 kilograms or more of a detectable amount) results in a five year mandatory minimum sentence (ten years with one prior). In the case of less than 50 kilograms of marijuana, except in the case of 50 or more marijuana plants, regardless of weight, the maximum sentence is five years in federal prison under 21 U.S.C. § 841. Again, state law provides no defense to federal marijuana charges.

However California marijuana laws such as the Compassionate Use Act can still support a defense to California state marijuana charges depending upon the facts and circumstances of the case. The bottom line with California marijuana law is that you are not allowed to profit financially from your compassionate care, although there might be a little wiggle room regarding “profit.” So even though the feds could prosecute you, California Compassionate Use Act of 1996, Proposition 215, Health and Safety Code Section 11362.5 still allow the use and legal access to marijuana when recommended by a physician. A patient, or a patient’s primary care giver, can possess, transport and grow marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

Specifically, a qualified patient or caregiver may possess no more than eight ounces of dried marijuana, or six mature plants or twelve immature plants per qualified patient. See California Senate Bill 420 (Medical Marijuana Implementation) codified Health and Safety Code Sections 11362.7.

Knowingly possessing marijuana without legal authorization for medical purposes is illegal under California Health and Safety Code Section 11357.

Possession of concentrated cannabis is illegal under California Health and Safety Code Section 11357(a). This is a “wobbler” punishable as either a felony or a misdemeanor. The maximum penalty is up to three years in prison and a fine of up to $500. Do not be so sure that the Compassionate Use Act covers concentrates like hashish and tinctures.

Possession of under an ounce of marijuana under Section 11357(b) usually results in a citation with no jail or probation required. The fine is up to $100.

Possession of over an ounce of marijuana under Section 11357(c) has a maximum possible penalty of up to 6 months County Jail and/or a fine of up to $500.

Cultivation of marijuana can get you up to three years in California State Prison. Under Section 11358, anyone who plants, cultivates, harvests, dries or processes marijuana, unless legally authorized for medicinal purposes, IS GUILTY OF A FELONY, REGARDLESS OF THE AMOUNT.

Possession with intent to sell under Section 11359 also carries a maximum sentence of up to three years in California State Prison. This even includes giving away or attempting to give away any marijuana unless legally authorized for medicinal purposes. Actual “sale” is the exchange of marijuana for cash, services, favors or other benefits. Possession with the intent to sell is a non reducible felony.

Transportation of Marijuana can bring even bigger penalties: over one ounce up to four years in state prison under Section 11360(a).

Transporting under an ounce is a misdemeanor with a fine of up to $100.00

Federal prosecution of marijuana cases and marijuana dispensaries is changing everyday and varies from federal district to federal district within the state of California. County ordinances are also changing in response to the feds’ position. California marijuana law is not necessarily what most people think. So now more than ever you need an attorney who is on top of local, county, state and federal marijuana criminal defense. A qualified attorney can make the difference between federal prosecution, a “wobbler” in state court, or walking out the door to live free and grow again.

So now more than ever you need a lawyer who understands the intricacies of California sentencing law. Your lawyer’s knowledge can be the difference between state time, county time and no time. A lawyer who understands the
revised definition of felony that includes crimes that would have been punishable in state prison but now can be taken care of locally. A lawyer that knows how to avoid state parole and get local community supervision instead, and then get rid of that after six months. And nobody knows California sentencing laws better than Dan Koukol.

There are lots of ways people can lose their right to possess a weapon. Most frequently, felony convictions result in firearm prohibition. Under federal law, a person previously convicted in any court of a crime PUNISHABLE by imprisonment for a term exceeding one year, cannot posses a gun or ammunition. 18 U.S.C. § 922(g)(1). Whether a crime is PUNISHABLE is determined by the statutory maximum punishment, not the actual sentence term imposed or served. The federal law’s phrase “crime punishable by imprisonment for a term exceeding one year” excludes any state offenses classified by the laws of the state as a misdemeanor and punishable by imprisonment of two years or less. 18 U.S.C. § 921(a)(20)(B). Whether a crime qualifies to take away the federal right to have a gun depends on the law of the state imposing the prior sentence. 18 U.S.C. § 921(a)(20). When it comes to California sentencing, you need an experienced lawyer to help you avoid any loss of the right to have a gun, or even have your right restored.

Wobblers are especially important when it comes to keeping your right to have a gun. Under California law, a wobbler is a misdemeanor for all purposes when the judgment results in a punishment other than imprisonment in the state prison or when, after a grant of probation without imposition of sentence, the California court declares the offense to be a misdemeanor. Cal. Penal Code § 17(b) and (3).

When a wobbler does not meet the requirements of Cal. Penal Code § 17(b), then that prior conviction is a felony resulting in the loss of gun rights. Make sure to use a lawyer with many years of experience in California courts converting felonies into misdemeanors for all purposes under Cal. Penal Code § 17(b).

Even though a misdemeanor wobbler sentence should save the right to have a gun, if you are just facing a formal charge for a felony, or any other crime, for which the judge could imprison you for more than one year, then you cannot legally possess a gun or ammunition under federal law. So if you have new felony charges, and want to get back your right to have a gun as soon as possible, then you better get a lawyer who knows what he is doing as soon as possible.

Besides felony convictions and charges, there are state court misdemeanors that can take away your right to have a gun. Under federal law, misdemeanor convictions for crimes of domestic violence take away your right to possess guns and ammunition. However there are exceptions to convictions taking away your right to have a gun. If the conviction has been expunged or set aside, or the person convicted has had their civil rights restored and is not prohibited by state law from possessing firearms, then they can possess again under California and federal law.
Here again, you need a lawyer with years of experience in getting convictions expunged and set aside and restoring civil rights like the right to have a gun.

There are many other ways that people lose their right to possess arms, and each case has its own circumstances. A term of probation can prohibit firearm possession. Dozens of California misdemeanor convictions, temporary restraining orders in family court, mental problems, chronic alcoholism, telling your therapist you want to hurt somebody, and drug addiction can all result in the loss of firearm rights in California. Under federal law, drug addiction, dishonorable discharge from the military, being an illegal alien, renouncing citizenship, and fugitive status can all result in a felony conviction for being a prohibited person in possession of a firearm or ammunition.

Call for a free consultation regarding your right to have a gun and avoid losing that right along with other precious liberties.

State and federal law make it unlawful for certain persons to own and/or possess firearms, including:

• Any person who is convicted of a felony, or any offense enumerated in Section 12021.1 of the Penal Code
• Any person who is ordered to not possess firearms as a condition of probation or other court order
• Any person who is convicted of a misdemeanor listed in Section 12021(c)(1) of the Penal Code (refer to List of Prohibiting Misdemeanors)
• Any person who is adjudged a ward of the juvenile court because he or she committed an offense listed in 707(b) of the Welfare and Institutions Code (WIC), an offense described in Section 1203.073(b), or any offense enumerated in Section 12021(c)(1)
• Any person who is subject to a temporary restraining order or an injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of the Penal Code, or a protective order issued pursuant to WIC Section 15657.03
• Any person who is found by a court to be a danger to himself, herself, or others because of a mental illness
• Any person who is found by a court to be mentally incompetent to stand trial
• Any person who is found by a court to be not guilty by reason of insanity
• Any person who is adjudicated to be a mentally disordered sex offender
• Any person who is placed on a conservatorship because he or she is gravely disabled as a result of a mental disorder, or an impairment by chronic alcoholism
• Any person who communicates a threat to a licensed psychotherapist against a reasonably identifiable victim, that has been reported by the psychotherapist to law enforcement
• Any person who is taken into custody as a danger to self or others under WIC Section 5150, assessed under WIC Section 5151, and admitted to a mental health facility under WIC Sections 5151, 5152, or certified under WIC Sections 5250, 5260, and 5270.15
• Any person who is addicted to the use of narcotics (state and federal)
• Any person who is under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year (federal)
• Any person who has been discharged from the military under dishonorable conditions (federal)
• Any person who is an illegal alien (federal)
• Any person who has renounced his or her US Citizenship (federal)
• Any person who is a fugitive from justice (federal)

Firearm prohibitions for misdemeanor violations of the offenses listed below are generally for ten years from the date of conviction, but the duration of each prohibition may vary. All statutory references are to the California Penal code, unless otherwise indicated.

• Threatening public officers, employees, and school officials (§ 71.)
• Threatening certain public officers, appointees, judges, staff or their families with the intent and apparent ability to carry out the threat (§ 76.)
• Intimidating witnesses or victims (§ 136.1.)
• Possessing a deadly weapon with the intent to intimidate a witness (§ 136.5.)
• Threatening witnesses, victims, or informants (§ 140.)
• Attempting to remove or take a firearm from the person or immediate presence of a public or peace officer (§ 148(d).)
• Unauthorized possession of a weapon in a courtroom. Courthouse, or court building, or at a public meeting (§ 171(b).)
• Bringing into or possessing a loaded firearm within the state capitol, legislative offices, etc. (§ 171(c).)
• Taking into or possessing loaded firearms within the Governor’s Mansion or residence of other constitutional officers (§ 171(d).)
• Supplying, selling or giving possession of a firearm to a person for participation in criminal street gangs (§ 186.28.)
• Assault (§§ 240, 241.)
• Battery (§§ 242, 243.)
• Assault with a stun gun or taser weapon (§ 244.5.)
• Assault with a deadly weapon other than a firearm, or with force likely to produce great bodily injury (§ 245.)
• Assault with a deadly weapon or instrument; by any means likely to produce great bodily injury or with a stun gun or taser on a school employee engaged in performance of duties (§ 245.5 .)
• Discharging a firearm in a grossly negligent manner (§ 246.3.)
• Shooting at an unoccupied aircraft, motor vehicle, or uninhabited building or dwelling house (§ 247.)
• Inflicting corporal injury on a spouse or significant other (§ 273.5.)*
• Wilfully violating a domestic protective order (§ 273.6.)
• Drawing, exhibiting, or using deadly weapon other than a firearm (§ 417(a)(1) and (a)(2).)
• Inflicting serious bodily injury as a result of brandishing (§ 417.6.)
• Making threats to commit a crime which will result in death or great bodily injury to another person (§ 422.)
• Bringing into or possessing firearms upon or within public schools and grounds (§ 626.9.)
• Stalking (§ 646.9.)
• Armed criminal action (§ 12023.)
• Possessing a deadly weapon with intent to commit an assault (§ 12024.)
• Driver of any vehicle who knowingly permits another person to discharge a firearm from the vehicle or any person who willfully and maliciously discharges a firearm from a motor vehicle (§ 12034(b) or (d).)
• Criminal possession of a firearm (§ 12040.)
• Firearms dealer who sells, transfers or gives possession of any firearm to a minor or a handgun to a person under 21 (§ 12072(b).)
• Various violations involving sales and transfers of firearms (§ 12072(g)(3).)
• Person or corporation who sells any concealable firearm to any minor (former § 12100(a).)
• Unauthorized possession/transportation of a machine gun (§ 12220.)
• Possession of ammunition designed to penetrate metal or armor (§ 12320.)
• Carrying a concealed or loaded firearm or other deadly weapon or wearing a peace officer uniform while picketing (§ 12590.)
• Bringing firearm related contraband into juvenile hall (§ 871.5 WIC.)
• Bringing firearm related contraband into a youth authority institution (§ 1001.5 WIC.)
• Purchase, possession, or receipt of a firearm or deadly weapon by a person receiving in-patient treatment for a mental disorder, or by a person who has communicated to a licensed psychotherapist a serious threat of physical violence against an identifiable victim (§ 8100 WIC.)
• Providing a firearm or deadly weapon to a person described in WIC 8100 or 8103 (§ 8101 WIC.)
• Purchase, possession, or receipt of a firearm or deadly weapon by a person who has been adjudicated to be a mentally disordered sex offender or found to be mentally incompetent to stand trial, or not guilty by reason of insanity, and individuals placed under conservatorship (§ 8103 WIC.)

The following misdemeanor convictions result in a lifetime prohibition:

• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)

* A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)
Note: The Department of Justice provides this document for informational purposes only. This list may not be inclusive of all firearms prohibitions. For specific legal advice, please consult with an attorney licensed to practice law in California.

PERSONAL FIREARMS ELIGIBILITY CHECK APPLICATION

First Offense

If you are convicted of your first DUI offense, you can be sentenced to as little as 48 hours or as much as 6 months in jail.  You can also be fined between $390 and $1,000 and order to pay penalties and assessments on top of that.  The DMV will also suspend your driver’s license for 6 months.  Finally, depending on whether your blood alcohol level was above or below .20, you will be required to attend either a 6 or 9 month driving under the influence treatment program.

Standard First Offense Plea Offer in Placer County

First-time DUI offenders can generally expect the following plea offer from the Placer District Attorney’s Office:  3 years information probation, 3 days in jail, 3 month first offender DUI program, alcohol testing, and payment of $450 and fees and penalties.

Second Offense within 10 Years

Upon your second DUI offense within 10 years, the judge will sentence you to between 10 days to 1 year in jail.  Alternatively, the judge has the discretion to sentence you to between 48 hours to 1 year in jail AND order you to attend an 18-month alcohol treatment program. In addition, you will be required to pay between $390 and $1,000 in files, plus penalties and assessments.  The DMV will also suspend your driver’s license for 2 years, although you can apply for a restricted license after one year.

Third Offense Within 10 years

Upon being convicted of a third DUI within 10 years, you face between 120 days to 1 year in jail.  The fines are the same as they were for the second offense: between $390 and $1,000, plus penalties and assessments.  The DMV will suspend your license for 3 years upon this conviction, although you can apply for a restricted license after one year.  You will also be required to complete an 18-month treatment program if not already completed.  And finally, you will be designated as a Habitual Traffic Offender for 3 years.

Note that although you face jail time in all three instances, often the judge will grant probation and allow you to complete your sentence by performing a Sherriff’s work project or by serving time outside of jail in say a halfway house.

Habitual Traffic Offender Designation

If you are designated a habitual traffic offender and you are convicted of driving on a license that is suspended due to your DUI, the judge must order you to serve 30 days in jail and pay $1,000.  If within seven years you sustain another offense for driving on a license suspended or revoked due to a DUI, the judge will order you to serve 180 days in jail and you will be fined $2,000.

DUI Insurance Consequences

It should be no surprise that your auto insurance premium will increase as a result of a DUI conviction.  Although the amounts vary depending on many factors, you can expect your car insurance to increase by about $115 per month after the first DUI offense.  Expect an additional increase of an approximately $50 per month if you sustain a second DUI within a 10 year period.

Restoration of Driving Privileges – Restricted License

If the court orders a driver to undergo a DUI program, a driver is not entitled to have their driving privileges restored until he or she provide the DMV with proof of successful completion of that program.  You must also complete a SR-22 form showing proof that you have valid automobile insurance.  And of course, you must pay the $125.00 licensing fee.  Only then will the DMV provide you with a restricted driver’s license.

Let me put my 23 years worth of experience and skills to work for me.  Call me for a free attorney-client confidential conversation about your particular DUI case and I will give you an honest assessment of your case.

~Dan Koukol, Placer County Criminal Defense Attorney

Initial Stop

When you are pulled over and approached by a Placer DUI investigating officer, roll your window down slightly and turn your car off.  When asked, provide you license, registration and proof of insurance through the slightly lowered window.  Keep your registration and proof of insurance clipped together and easily accessible so you don’t have to fumble around to find them.  When the officer starts asking questions – like “have you been drinking” – simply look forward and don’t answer.  If he asks you to step out of the vehicle, tell him you refuse to perform any tests.

On the Scene Testing

If he asks you to perform field sobriety test politely say “I refuse.”  If he asks you to take a preliminary breath test politely tell him again, “I refuse.”  You are not required to perform these tests and you will not be penalized later for refusing.  If anything, you will just anger the Placer DUI investigating officer but he is not on your side anyway regardless of what he says.

Testing after Arrest

The officer will then have to determine whether he has enough probable cause to arrest you.  Regardless of whether he does or not, you will likely be arrested.  Although you may think you can talk your way out of an arrest, most often you are wrong.  You already made one mistake by driving drunk, don’t make things worse for yourself by thinking you can talk your way out of an arrest.  After the arrest you will be asked to provide a blood or breath sample to test for the presence of alcohol or drugs.  Do not refuse this test unless you are willing to have your license suspended for one year. Note that a Placer DUI investigating officer can compel a forced blood draw upon you although this is normally saved for cases involving an accident.

Should I Give Blood or Blow Into the Machine?

Blood Test

Deciding which test to take depends first upon when you had your last drink.  A blood draw is generally the most accurate.  However, it usually takes longer to perform a blood draw because the Placer DUI investigating officers must drive you to the nearest hospital and locate an authorized nurse to draw your blood which can take time.  Thus, if it has been several hours since you last drink and you think buying more time will help you even more, you may want to consider taking a blood test.

Breath Test

Breath alcohol concentrations are generally lower than blood alcohol concentrations.  However, if you are still absorbing alcohol, a breathalyzer machine may read your blood alcohol level high because the distribution of alcohol throughout the body is not uniform until complete absorption occurs.  Thus, I suggest not choosing a breath test if you had a drink within an hour of the test.

If you chose a breath test, there are still ways to challenge the results that may help your case.

A breathalyzer analyzes the amount of alcohol found in the air blown into the machine and converts the air into a blood alcohol level by applying a mathematical ratio.  In 1989, the California legislature settled on a standard “partition ratio” of 210 liters of breath to 100 milliliters of blood.  (See Vehicle Code section 23610.)  However, some people have slightly higher or lower partition ratios which may cause the breath test results to be skewed.  The California Supreme Court recently recognized this fact and held that people challenging a DUI based upon breath test results can offer evidence showing that the standard partition ratio may have yielded inaccurate results in their case.  (See People v. McNeal (2009) 46 Cal. 4th 1183.)

If you find yourself in the unfortunate position of being stopped for DUI, follow the above steps to limit the evidence obtained against you.  If you do this, an experienced attorney will have a much better case of obtaining a favorable disposition in your case.

~Dan Koukol, Placer County Criminal Defense Attorney

Initial Stop

Placer DUI investigating officers initially identify drunk drivers by looking for recognizable patterns of impairment.  For instance, they look for drivers who weave in and out of lanes, fail to obey traffic laws, speed or drive excessively slow.  To combat these purported justifications for the stop, the defense attorney must thoroughly cross-examination the Placer DUI investigating officer at the hearing or trial to challenge his claims and uncover any inconsistencies in his report.

Alcohol Impairment

When gathering evidence of alcohol impairment to support an arrest, Placer DUI investigating officers rely on three main items of evidence:  personal observations, field sobriety test results and preliminary alcohol screening test results.  All three are discussed below in detail.

Personal Observations

After you are stopped, the first thing the Placer DUI investigating officer will do is ask you questions.  They typically ask for your driver’s license, registration and proof of insurance.  The Placer DUI investigating officer will then begin asking questions about where you are coming from, where you are going, etc.  The entire time, the officer is looking for four things, red watery eyes, slurred speech, the smell of alcohol on your breath, and confusion or trouble answering basic question.

Field Sobriety Tests

Next, the Placer DUI investigating officer will usually run you through a set of field sobriety tests.  The most common tests are the walk-and-turn, one-leg stand and the horizontal gaze nystagmus (HGN) test.  The walk and turn test requires the driver to walk heel to toe down a straight line; usually the median line.  In the one-leg-stand test, the driver must stand on one leg with the other leg in front of them elevated 6 inches above the ground and then count out loud to 30.  Finally in the HGN test, the driver is told to keep their head faced forward while following an object with their eyes (usually a pen or finger) moved from side to side by the Placer DUI investigating officer.  The officer is looking for the eye to jump or tug at angle shallower than 40 degrees from center.

Preliminary Alcohol Screening Device

A Preliminary Alcohol Screening (PAS) devise is a small hand-held device used at the scene of the DUI stop to test the level of alcohol in the drivers system.  A Placer DUI investigating officer is required to supervise the driver for 15 minutes prior to administering the test.  Additionally, the Placer DUI investigating officer is required to perform two tests within 2 minutes of each other to obtain accurate results.  Vomiting, smoking, drinking or excessively belching prior to performing a PAS test can dramatically distort the breath test reading.  PAS tests are taken prior to a DUI arrest and are optional unless you are under 21 years of age.  In fact, a Placer DUI investigating officers is required to advise you that you have a right to refuse to take the PAS test.  (See Vehicle Code section 23612(i).)

It is imperative that you choose an experienced attorney to handle your DUI case because defending a DUI is tricky.  You need an attorney who has advanced knowledge about how alcohol impacts the body, the type of machines used by law enforcement to test you, how field sobriety tests are properly administered and whether adequate grounds existed for the stop in the first place.

~Dan Koukol, Placer County Criminal Defense Attorney

Obtaining Evidence

Defending a DUI case starts with reviewing and obtaining the evidence or “discovery” that the prosecutor may present against you at trial. Discovery evidence is all potentially harmful or, on the flip side, beneficial evidence that the Placer County District Attorney’s office has in its possession regarding your case. In a DUI case, this generally amounts to the police reports, witness statements, chemical analysis results, photographs and any evidence seized from your vehicle. Some uncommon items of evidence include videotapes from the camera mounted in the dashboard of the California Highway Patrol vehicle or Placer DUI investigation officer’s car, videotape of you taken at the police station, and your recorded statements.

After obtaining this evidence, you or your attorney must determine whether that evidence was lawfully obtained and whether any of it can be kicked out or suppressed.

Unlawful Traffic Stop

The first main DUI defense focuses on challenging the initial stop. The United States Constitution requires a Placer DUI investigation officer to have “reasonable suspicion” that you are violating a traffic offense before he can stop your vehicle. This means that before making a DUI stop the officer must be able to point to specific facts and objectively reasonable inferences leading him to believe that you were breaking the law. (People v. Aldridge (1984) 35 Cal. 3d 473, 478.) This is usually tested by reviewing the Placer DUI investigation officer’s justification for the stop in the police report. If the reasons for the stop are not objectively reasonable and are not grounded in facts, the DUI stop can be challenged.

Note that the Placer DUI investigating officer need not stop you for erratic driving or some other DUI related suspicion. Rather, he can stop you initially for some innocuous vehicle code violation such as an out tail light, a cracked windshield or expired registration. Then, upon learning of your intoxication after the stop, he can arrest you for DUI.

Unlawful Arrest

Next, it must be determined if the DUI arrest was justified and supported by “probable cause.” This is a higher standard than reasonable suspicion that requires the Placer DUI investigating officer to have an objectively strong suspicion based upon facts known to him prior to the arrest that the suspect is guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410.) Often times it’s the evidence the Placer DUI investigating officer obtains after the stop that leads to probable cause for the arrest. (Look for a future post about the ways you can minimize the amount of evidence the Placer DUI investigating officer obtains after performing a DUI stop.)

Motion to Suppress Evidence

Once the discovery has been reviewed and you or your attorney have identified unlawful stop and arrest issues, the next step is getting evidence “suppressed” or kicked out.  This is done by filing a motion to suppress evidence under Penal Code section 1538.5.  A good motion to suppress that will be taken seriously by a judge requires a written document complete with case analysis, arguments and sworn witness declarations.

I have written and argued thousands of motions to suppress in my 23 years as a Placer County DUI defense attorney.  When successful in these motions, I caused key evidence in the case to be thrown out by the judge.  This always lead to either a stronger defense or the outright dismissal of the case.

~Dan Koukol, Placer County Criminal Defense Attorney

The Offense

Vehicle Code section 23152(d) is the commercial DUI offense. This section states: “It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.” A commercial motor vehicle is a vehicle requiring a class A or B license, or a class C license with an endorsement in order to be lawfully driven.

Rebuttable Presumption

The commercial DUI statute includes a rebuttable presumption that “the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.” This means that if you blow at or over 0.04 % within 3 hours of a commercial DUI arrest, the law presumes you were at or over 0.04 % when you were arrested. The commercial driver would have to overcome this presumption by providing evidence that their blood alcohol level was on the rise when they were arrested and thus below 0.04 % at arrest. The presumption makes this argument a difficult obstacle to overcome, but it can be done.

First Offense – One-Year Ban

If a commercial driver violates any DUI offense (Vehicle Code sections 23152(a), (b), (c) or (d) or 23153(a), (b) or (d)) while driving any vehicle, the DMV will disqualify that driver from driving a commercial vehicle for one year. Thus, even if the commercial driver suffers a DUI while driving his non-commercial vehicle off duty, he will still be subject to the one year disqualification.

Second Offense – Lifetime Ban

Worse yet, commercial drivers convicted of a second DUI offense while driving any vehicle will have their privilege to drive a commercial vehicle revoked for life.

Perhaps the consequences of a commercial DUI are enormously more severe because accidents involving commercial vehicles often involve multiple people. Take for instance the 2008 bus crash in Williams, California, killing 8 people, where the drive was suspected of a commercial DUI. See article here: Commercial DUI Case Link.

The stakes are high if you are a commercial driver arrested on suspicion of DUI and you should hire an experience attorney to defend you. I have helped many commercial driver clients avoid being banned by the DMV and I welcome the opportunity to represent you in your case.

~Dan Koukol, Placer County Criminal Defense Attorney