December 3, 2011

CALIFORNIA DUI DEFENSE: SECOND AND THIRD TIME DUI OFFENDERS IN CALIFORNIA CAN GET RESTRICTED LICENSES

Individuals convicted of a second or third time DUI in California may obtain a restricted license from the DMV. Vehicle Code (VC) §§ 13352(a)(3) and 13352(a)(5) allows a second or third DUI offender to install an Ignition Interlock Device (IID) and receive an IID restricted license after a mandatory suspension/revocation period, if the most recent violation of VC §23152 occurred on or after July 1, 2010, and did not involve the use of drugs.

Eligible DUI defendants and drivers must provide the following:

Verification of Installation Ignition Interlock (DL920 Form Required).

$45 administrative service fee to the DMV

All other CA DMV established reinstatement requirements and fees.

Second drunk driving Offenders whose violation involved alcohol only may reinstate after a 90-day suspension with proof of enrollment in a DUI program. Third DUI Offenders whose violation involved alcohol only may reinstate after a 6-month revocation with proof of enrollment in an 18 or 30-month DUI program.

Conviction Involving the Use of Drugs—Second or third DUI offenders whose most recent DUI conviction included the use of drugs do not qualify for early reinstatement with the installation of an IID until 12 months of a suspension/revocation has been completed. A DUI Attorney can offer guidance for those in this category.

Term of IID Restriction—The term of IID restrictions remain in effect for the remainder of the original suspension/revocation term. Drivers that fail to comply with the IID requirement will be suspended/revoked for the remainder of the original suspension/revocation term. A DUI Lawyer can help to ensure that all criteria are met in order to qualify for the restriction.

Continue reading "CALIFORNIA DUI DEFENSE: SECOND AND THIRD TIME DUI OFFENDERS IN CALIFORNIA CAN GET RESTRICTED LICENSES" »

August 10, 2011

CALIFORNIA CRIMINAL LAWYER: THIRD CATEGORY OF VOLUNTARY MANSLAUGHTER-UNINTENTIONAL KILLING DURING A FELONY

The victim and the defendant were fighting. The defendant grabbed a knife. The victim lunged at the defendant, at the same time that the defendant thrust the knife forward. The defendant stabbed the victim, killing him. The California Court of Appeal concludes that the evidence demonstrated that the defendant committed an assault with a deadly weapon on the victim, an inherently dangerous felony, causing the victim's death. The California Court of Appeal also says that it was reversible error to fail to give the jury a voluntary manslaughter instruction, in addition to heat of passion and unreasonable self defense. The California Court of Appeal says that there is a third category of voluntary manslaughter. That category, applicable here, is "an
unintentional killing without malice committed during the course of an
inherently dangerous assaultive felony."

People v. Bryant; 2011 DJ DAR 12011; DJ, 8/10/11; C/A 4th, Div. 1

November 11, 2009

CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA

You have just had a really long year and you are dying to go to Whistler (in Canada) for a long-deserved ski vacation. Think again if you have a DUI conviction, a domestic violence conviction, or any type of conviction (misdemeanor or felony) that is indictable under Canadian law.

You WILL be stopped at the border, and you WILL be humiliated.

Read along to figure out what can be done in your case......

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CANADA

Clients seeking to travel to Canada with criminal convictions from the U.S. (or any other country, for that matter) require unique advice. Living in a state next to Canada means that we must be aware that many of our clients are likely to seek entry into Canada, and be extremely disappointed if they are turned back at the border. Because so many of our clients take entry into Canada for granted, it is important to consider several issues relating to entry to Canada. These include who can enter Canada, who can be excluded from Canada, how to overcome exclusion from Canada, and whether a client who is ineligible for rehabilitation can nonetheless seek entry.

A. Who Can Enter Canada.
Most people assume, without question, that just about anyone can enter Canada. This is not true. The Canadian Customs and Immigration Officers have ultimate authority to permit and deny anyone entry to Canada. No one has an automatic right to enter Canada. However, most people if they have no criminal record are allowed entry. What if you have a criminal conviction?

B. Who Can’t Enter Canada.
To begin, in Canada a DUI is a felony and therefore an excludable offense under the Immigration Act. A DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term. Anyone with a conviction in the U.S. that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada.

Almost all convictions (including DUI, DWI, reckless driving, negligent driving, misdemeanor drug possession, all felonies, domestic violence (assault IV), shoplifting, theft, etc) can make a person inadmissible to Canada, regardless of when they occurred. For this reason, it is not recommended that persons with past convictions attempt to enter Canada without first obtaining necessary documents. It is always the final decision of officers at ports of entry to decide whether a person should be allowed into Canada.

The reason for this exclusion is contained in Canadian law. The Canadian Immigration Act, in § 19; states:

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;
(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

Later, in § 3 of the Immigration Act, there is a provision that permits discretionary entry:

A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission.

Again, the Canadian Consulate emphasizes that this entry is discretionary, and in the post 9/11 aftermath, officers are more typically exercising their discretion to deny entry than to grant entry. Even if a Canadian Minister (I'm not sure which minister) has approved a client's entry, the border person can still reject the person.

Finally, there is a permit process that requires prior application and may permit an otherwise excludable person to enter Canada. Information on the permit is on the consulate general’s web-site, permits a visit of up to 30 days, and as I understand it, once it is approved, may be re-approved when application is made within a 3 year period. Permit information is at: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397. This process is discussed in the next section.

C. Overcoming Exclusion from Canada.

There are several ways individuals can overcome criminal inadmissibility, but the short answer you must give your client is that there is no short and easy way to do it. These include:

1 Deemed rehabilitation at a Canadian port of entry;
2 Streamlined rehabilitation at a Canadian port of entry;
3 Approval of rehabilitation through a Canadian Consulate in the United States; and
4 A Temporary Resident Permit through a Canadian Consulate in the United States

1. Deemed Rehabilitation.

Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:
1 There was only one conviction in total;
2 At least ten years have elapsed since all of the sentences for the conviction were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The conviction would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

2. Streamlined Rehabilitation.

Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:
1 There were two or less convictions in total;
2 At least five years have elapsed since all of the sentences for the conviction(s) were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The convictions would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.

3. Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are processed at Canadian ports of entry. Submitting an application for rehabilitation does not guarantee that the request will be approved. Should your client wish to apply for either, the client must bring the following documents to a port of entry during regular business hours (Monday - Friday between 8am and 5pm):
1 A United States passport or birth certificate (with photo identification);
2 A copy of court documents for each conviction, and proof that all sentences were completed;
3 A recent FBI identification record;
4 Recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six (6) months or longer in the last 10 years; and
5 A fee is involved for the streamlined rehabilitation process, equivalent to $200 Canadian. There is no fee for deemed rehabilitation.

4. Approval of Rehabilitation.

If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but a person is not eligible for rehabilitation at a port of entry (because of the nature or number of convictions), a person may apply for approval of rehabilitation through a Canadian Consulate in the United States. The same documents required for port of entry rehabilitation identified above are also required for rehabilitation through a Canadian Consulate, plus a completed Application for Criminal Rehabilitation (Citizenship & Immigration Canada Form IMM 1444. Five Canadian Consulates in the U.S. process criminal applications - Buffalo, NW, New York, NY, Detroit, MI, Los Angeles, CA, and Seattle, WA. Again, the decision to approve rehabilitation is discretionary, so there is no certainty in obtaining admission to Canada. In the situation where a person is ineligible for rehabilitation because of the nature or number of convictions, employment of competent Canadian immigration counsel may facilitate approval of the application.

5. Temporary Resident Permit.

If a person is not eligible for deemed, streamlined, or approved rehabilitation, the only option remaining (short of a pardon or executive action) is to apply for a temporary resident permit. This is a process where a person requests special permission to enter or remain in Canada.

A person seeking a temporary resident permit submits the documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except that the applicant does not check the box in § A(1) indicating Application for Approval of Rehabilitation, but instead checks the box in § A (2) indicating For Information Only.

As poignantly noted on the Citizenship & Immigration Canada website, the Customs and Immigration officer will review the Application form, look at the nature of the offenses, the number of offenses, when the offences happened, and the applicants current situation, and then the officer will:

At Canadian visa offices outside of Canada:
• advise that they do not recommend that you travel to Canada; or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.
At Ports of Entry (airport, marine or land)
(Contact your nearest Canadian visa office before traveling into Canada.)
• advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
• take enforcement action (arrest, detention and/or removal); or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
• ask that you leave Canada voluntarily;
• take enforcement action (arrest, detention, and/or removal from Canada); or
• advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
The safest course of conduct is to make application for, and obtain approval of, a Temporary Resident Permit at a Canadian consulate in the U.S. prior to attempting entry to Canada. The website indicates that Approval of Rehabilitation and Temporary Resident Permits take a minimum of six (6) months to process in the Seattle office; information indicated the time in Seattle is much closer to one year. Clients seeking quicker decisions should direct their applications to the Canadian Consulates in Detroit and Buffalo.

Failure to timely seek a Temporary Resident Permit can result in disastrous consequences. A client who failed to seek a Temporary Resident Permit was stopped at Customs and Immigrations in Toronto, detained, and returned to Denver the next morning on the next flight home. He was also unable to close a multi-million dollar sale, and lost his job as a vice-president in the cellular phone industry. Another client who failed to seek a Temporary Resident Permit was stopped, questioned, and permitted to enter Canada for business, but was counseled she would not always be so lucky.

Once a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year. It is not permanent. There are significant non-refundable processing fees associated with Temporary Resident Permits, and not surprisingly, higher fees correspond to cases involving more serious criminality.

6. Processing Problems.
The most frequent problem is inadequate or incomplete documentation. Although court documents may be difficult to obtain, Canada typically requires them for review. Proof of sentences being completed is critical, which could be anything from a letter received stating that a person’s civil rights have been restored or a letter from a probation officer stating that all sentences were completed successfully, to proof of the final payment of a fine showing a zero balance. If court documents and/or proof of completed sentences have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available. Canada also needs to see original FBI certificates and state police certificates issued within the year, and requests all required materials be submitted in one package. While the minimum processing time for these applications is six (6) months, many cases take longer to process.

D. Resources.

The web link http://www.cic.gc.ca/english/applications/rehabil.html has information about the rehabilitation process.

Temporary residence permit information is contained in the consulate general’s web-site: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397.

The consolidated statutes and regulations page for Canada is: http://laws.justice.gc.ca/.

A more specific link to the immigration statutes is at: http://laws.justice.gc.ca/en/I-2/index.html.

The specific portion of the Immigration Act that bars entry is at: http://laws.justice.gc.ca/en/I-2/60195.html.

The web link http://www.canadianembassy.org/immigration/inadmissible-en.asp explains generally inadmissibility.

The web address for Nexus, which facilitates and speeds multiple border crossings, is: http://www.cbsa-asfc.gc.ca/travel/nexus/menu-e.html.

E. Deported from Canada?A visitor to Canada faces possible deportation upon conviction for impaired driving (DUI), violating Canada’s .08 per se limit, or refusing a breath sample. A person in Canada as a visitor who is convicted of a drinking and driving offence may not be able to renew his or her visitor status, and upon conviction, such a person becomes inadmissible to Canada and can be deported. To overcome this inadmissibility, a pardon is required.

F. General Summary and Practice Tip.
Basically, if convictions are over 10 years old, entry is permitted after a criminal background check. If convictions are between 5 and 10 years old, entry is permitted on payment of a $200 fine/fee and a criminal background check. If conviction is less than 5 years old, you are going to have to jump through a bunch of hoops, and even then, probably won’t get in unless there are exceptional cricumstances.

If there is any possibility a client will one day have to enter Canada, the client would be prudent to secure certified true copies of all court records relating to the conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.

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July 30, 2009

San Dieego Dui Defense: San Diego County is Not one of the Counties that will Initiate a First Offender Ingition Interlock Device

The California Senate Public Safety Committee has cleared a bill which would require four counties to require first time DUI offenders to install Ignotion Interlock devices after conviction. The counties are Sacramento, Los Angeles, Alameda and Tulare.

Note: There is a clear equal protection issue here. Additionally, the bill requires outside funding to take effect. We suspect a big attack on this by defense counsel.

http://http://www.prlog.org/10276694-california-ignition-interlock-bill-ab-91-clears-senate-public-safety-committee.html

December 3, 2007

MAXIMUM SENTENCE AFFIRMED IN CALIFORNIA DUI HOMICIDE OVER CUNNINGHAM OBJECTION

Note: This is another Unpublished opinion showing the insurmountable obstacles DUI defendants must rise above to gain some justice.

Defendant John Randolph Shanks entered a negotiated plea of no contest to evading a pursuing peace officer, a felony (California Vehcile Code §2800.2), and driving under the influence of alcohol and/or drugs, a misdemeanor (VC §23152(a)).

In exchange for the pleas and a Harvey waiver (People v. Harvey (1979) 25 C3d 754), another count and a prior prison term allegation were dismissed.

The trial court sentenced defendant to the upper term of three years in state prison for evading a pursuing peace office and a concurrent term of six months in jail for driving under
the influence of alcohol and/or drugs.

On appeal, defendant contends that the upper term sentence contravenes the holding of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham). Defendant acknowledges that we are bound by the California Supreme Court’s holding in People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) but raises the issue to preserve it for federal court review.

We shall affirm the judgment.
…………………………………..
Here, in imposing the upper term, the trial court found in aggravation that (1) defendant’s prior convictions were numerous, (2) he had served prior prison terms, (3) he was on parole at the
time of the offense, and (4) his prior performance on probation or parole was unsatisfactory. In mitigation, the court found that “defendant acknowledged guilt early on and that the defendant
suffered from mental illness and drug and alcohol addiction in the past.”

Continue reading "MAXIMUM SENTENCE AFFIRMED IN CALIFORNIA DUI HOMICIDE OVER CUNNINGHAM OBJECTION" »

November 30, 2007

DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME

TEWKSBURY, Mass. -- A judge finds an Andover attorney Ki Yong O not guilty of motor vehicle homicide in an accident that happened last year in Tewksbury.

The 36-year-old struck and killed Anthony Raucci while on the prescription sleep medication Ambien.

The judge in the case said that since O did not know the side effects of the drug, he could not be found guilty.

The accident happened while Raucci was changing a tire in the breakdown lane on I-93.

Raucci's wife and 7-year-old son were in the car at the time and watched the whole scene unfold.

O was also found not guilty on charges of leaving the scene of an accident with property damage.


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November 9, 2007

CALIFORNIA DUI MURDER CASE AFFIRMED

Filed 11/9/07 P. v. Banegas CA2/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS MANUEL BANEGAS,

Defendant and Appellant.
B193283
(Los Angeles County
Super. Ct. No. VA084675)

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Carlos Manuel Banegas1 appeals from the judgment entered upon his convictions by jury of second-degree murder (Pen. Code, § 187, subd. (a), count 1), felony hit-and-run (Veh. Code, § 20001, subd. (a) count 2),2 driving under the influence causing injury (§ 23153, subd. (a), count 3), driving under the influence of more than 0.08 percent alcohol (§ 23153, subd. (b), count 4), and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 5). In connection with counts 3 through 5, appellant admitted suffering two prior drunk driving convictions within the meaning of section 23566, subdivisions (b) and (c) and Penal Code section 191.5, subdivision (d). The trial court sentenced him to the upper term of four years on his conviction in count 2 plus a consecutive term of 15 years to life on his conviction in count 1. Imposition of sentence on counts 3 through 5 was stayed pursuant to section 654. Appellant contends that (1) there is insufficient evidence to support his convictions of second degree murder, hit-and-run and gross vehicular manslaughter, (2) the trial court gave erroneous causation instructions to the jury, thereby depriving him of due process and a fair trial, and (3) the upper term sentence on his felony hit-and-run conviction violates the Sixth and Fourteenth Amendments to the United States Constitution as set forth in Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), compelling reduction of the sentence to the midterm.

The judgment is affirmed.

FACTUAL BACKGROUND

We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) On July 12, 2004, at approximately 11:00 p.m., Sean Tackett was driving south in the number one (fast) lane of the 710 freeway, near Firestone Boulevard, at 70 to 75 miles per hour. He saw a white Chevy Camaro in the number four (slow) lane pass him, with its lights on, traveling 90 to 95 miles per hour. A Honda Civic traveling 70 miles per hour, four car lengths ahead of the Camaro, placed its turn signal on and merged in front of the Camaro. The Camaro did not slow down. When it was a foot or two behind the Civic, it swerved to the left to avoid hitting it, nearly hit two other cars and crashed into the center divider. It came to rest 80 percent in the fast lane and 20 percent on the shoulder. Tackett pulled over and stopped. The Camaro’s headlights were then off and its hazard lights did not come on.

Twenty to 30 seconds later, Tackett saw a motorcycle in the fast lane strike the driver’s side, rear panel of the Camaro and the rider, wearing a helmet, “fly[] through the air and hit the pavement.” Five to 10 minutes later, Tackett saw appellant exit the Camaro and walk past the motorcyclist toward the freeway exit. Tackett detected a strong smell of alcohol as appellant walked by him.

Appellant walked south on the freeway toward Gregory Boagni, an off-duty Los Angeles County sheriff’s deputy, who saw appellant hit the center divider, stopped his car and called 911. Boagni testified that he saw appellant walk south, past the downed motorcyclist, without stopping. Appellant approached Boagni a minute or so after the Camaro had hit the divider. Boagni smelled alcohol on his breadth. Appellant walked past him and, when asked, said he did not need medical attention and was going home. Boagni showed appellant his badge and told him to stay. Appellant complied and was handcuffed. He did not offer his license number, registration or assistance. Boagni turned him over to California Highway Patrol (CHP) officers when they arrived.

CHP Officer Horacio McComb responded to the scene. He observed the Camaro with its front end “smashed,” in the number one lane, parallel to the center median, facing north. A motorcycle was in the number two lane. The motorcyclist, Jack Bush, was being attended to by others, so Officer McComb attended to appellant, who identified himself as Carlos Banegas. While it was apparent that English was not appellant’s native language, Officer McComb spoke to him in English, and appellant appeared to understand. Appellant was unsteady on his feet, his breadth smelled of alcohol, his eyes were red and watery, and his speech was slow and slurred. He told Officer McComb that he had consumed six Bud Lights, between 5:00 p.m. and 10:00 p.m., and showed him a photocopy of his driver’s license.

Officer McComb administered several field sobriety tests to appellant, who failed two of them and could not perform two others, claiming he had been shot in the ankle years earlier. Officer McComb also administered two preliminary alcohol screening tests (PAS) which revealed that appellant had a blood alcohol level of .106 and .105 percent. Approximately an hour and 20 minutes after the initial radio call, appellant underwent a blood alcohol test which reflected a blood alcohol level of 0.08 percent. The officer concluded appellant was driving under the influence and arrested him. Unaware that the motorcycle had hit the Camaro, the officer cited appellant for driving under the influence and driving with a blood-alcohol level above 0.08 percent, but not for driving under the influence causing injury. His report stated that the cause of the accident was “other than driver.”

Officer McComb spoke with Bush the night of the accident. Bush was coherent, and the officer did not expect him to die. But the parties stipulated that “four days after the accident on July 16 . . . [he] died as a result of death from severe head injuries.” This was the only evidence of Bush’s physical condition.

Officer Levi Miller investigated the case. He found the Camaro’s shifter in the reverse position and, while the hazard lights on the Camaro were operative, the emergency activation button was in the off position. He concluded that the front tire of the motorcycle struck the driver’s side of the Camaro. There was no evidence the Camaro was hit by any other vehicle. Officer Miller did not try to start the Camaro, although he knew appellant claimed he tried to move it but could not. He found that Bush’s helmet was cracked down the middle. Officer Miller testified that speeding, failing to turn on one’s hazard lights after an accident, tailgating and making an unsafe lane change are Vehicle Code violations.

A criminalist from the Sheriff’s Department testified that a person of appellant’s size with a blood alcohol level of 0.08 percent is impaired to safely operate a car.

On August 17, 2004, appellant was arrested for another incident of driving under the influence. On that occasion, he identified himself as Oscar Espinosa. After this arrest, Officer Miller, who had been unable to locate appellant, did so and conducted an audio-recorded interview with him, where appellant again identified himself as Oscar Espinosa. Appellant said that he never had a driver’s license. He acknowledged having a drinking problem and knowing that drunk driving is dangerous and kills people. He could not recall how many prior drunk driving arrests he had had.

Appellant described the collision, stating that he had consumed a 12-pack of beer between 7:00 p.m. and 11:00 p.m. He was driving in the number three lane when a trailer cut him off, and he lost control of his vehicle. As other cars were hitting each other, he turned left and hit the wall. He tried to move the car to the side, but it would not start. He did not turn on the emergency lights because a motorcycle crashed into the side of his car, and he was scared for the person lying there. Appellant said that he believed the accident would not have occurred if he had not been drinking. He said he tried to get help for the motorcyclist, but an African-American police officer on the scene told him that the motorcyclist was fine, did not want to help, and arrested him.

Appellant also said that his real name was Lorenzo or Loreto Lopez or Lorenzo German, but that he used Carlos Banegas and Banegas’s driver’s license in the accident “to avoid problems.” He used the name Oscar Espinosa when arrested on August 17 because the name Carlos Banegas was “burned by the accident.” Appellant was recently arrested in Ventura for failing to attend court-ordered alcohol abuse classes. He claimed he did not have enough money for the classes, but that he had completed such a class in 1996. He was also ordered to, but apparently did not, attend alcohol abuse classes after arrests in 2000, 2002, and 2004.

CLICK TO CONTINUE TO DISCUSSION

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October 15, 2007

CALIFORNIA DUI ATTORNEYS: WATCH OUT FOR NEW 2009 PENALTIES

Give Your Clients Good Advice Now on Their New (or Old) DUI Conviction(s) w/ Probation
by Joshua M. Dale, Esq. - http://www.joshdale.com - San Francisco Bay DUI Defense - 10/16/2007. For additional up-to-the-minute DUI information, check out http://california.dui-help.com/

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Beginning in 2009, New Years Day to be exact, drivers on probation for any DUI conviction face zero tolerance if they drive on California highways with a blood or breath alcohol concentration of .01% or higher. On October 14, 2007, the Governor of California signed a number of bills and there is one main one to learn now and advice your clients of appropriately.

New Vehicle Code §§23154 and 13389, and the amended 13353.1, have come to life per AB 1165 introduced by Assembly Member Maze (Coauthors: Assembly Members Sharon Runner and Spitzer) February 23, 2007.

These sections take effect on January 1, 2009 according to the Legislature's enrolled document.

Click to continue....

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June 13, 2007

CAN EVIDENCE OF VOLUNTARY INTOXICATION BE USED TO FIND "IMPLIED MALICE?"

BARRING EVIDENCE OF VOLUNTARY INTOXICATION ON IMPLIED MALICE

In 1996 the United States Supreme Court Montana v. Egelhoff (518 U.S. 37). The
crucial 5th vote, Ginsburg, said that Montana redefined murder to make it a crime for a person to do the act with awareness, where that awareness would exist but for the intoxication, and that was OK.

The California First District Court of Appeal here claims that California has done the same by enacting California penal Code sec. 22, barring evidence of voluntary intoxication to negate the capacity to commit a crime. Penal Code sec. 22 also says voluntary intoxication is admissible on the issue of whether a defendant actually formed the intent required for the
crime.

This Court of Appeal says that voluntary intoxication is irrelevant to refute implied malice. This is just conceptually wrong. The mental state of conscious disregard for human life, which implied malice requires, is refuted by voluntary intoxication resulting in the failure
to have such conscious disregard.

People v. Timms; 2007 DJ DAR 8597; DJ, 6/13/07; C/A 1st

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