You probably know that if you are over the age of 21, it is illegal to drive with a blood alcohol level over .08%. You may even be aware of your right to refuse to take the road side breathalyzer test (referred to as a preliminary alcohol screening, or PAS test) if you have not been placed under arrest. (Remember, if you are placed under arrest, you MUST submit to a chemical test, either of your blood or breath.)
But it’s a whole different ball game if you are under 21.
For starters, those who may not legally drink in California also do not have the right to refuse the PAS test. The Vehicle Code specifically provides that any person under the age of 21 who has been legally stopped has given consent to any chemical or screening test to determine BAC. If a person refuses to take the test, his or her license will automatically be suspended for a minimum of year – even if the person is stone cold sober. If the driver does not yet have a license, then it will result in a one year delay in receiving driving privileges.
California exercises a zero tolerance law for underage drivers behind the wheel. Registering a .01% BAC will result in a violation of V.C. 23136. Upon a finding an underage driver has violated the zero tolerance standard, by way of a DMV hearing or a conviction in court, the DMV will automatically impose a one year license suspension.
In addition to the zero tolerance law, an underage driver with a BAC higher than .05% may also be charged with a criminal offense under V.C. 23140. This charge is only used with an underage driver with a BAC between .05% and .07%, because if the driver has a BAC of .08% or higher, he or she would generally be charged with a regular DUI, just like an adult. This is a criminal charge, but it is only an infraction. This means you cannot receive any jail sentence. Any conviction for VC 23140 will result in a one year license suspension, various fines, and will require you to attend a three month alcohol program before your license can be reinstated.
Finally, any person under the age of 21 can still be charged with a DUI under V.C. 23152 just like an adult. Further, the zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time, mandatory alcohol education program) in addition to the one year license suspension.
Bottom line, it is extremely risky to drink and drive period, and penalties are much steeper for those under 21. If you have been arrested for underage and have been arrested for DUI, you should contact an attorney immediately. You have exactly ten days from your arrest to contact the DMV to challenge your license suspension. Contact criminal defense attorney Scott R. Ball today for a free and confidential evaluation of your case.
3/9/11
Common Traffic Tickets in CA Explained: Impeding Traffic
Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)
If you’ve been cited for one of the many violations dealing with impeding traffic, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common impeding traffic violations:
• VC 21654 – Driving too slowly in the left lane. This section of the Vehicle Code makes it illegal to drive in any lane except for the far right lane if you are traveling at “less than the normal speed of traffic.” If you are driving in the left lane you must drive with the speed of traffic – sometimes even if the speed of traffic is above the posted limit. However, there are several defenses to violations of this infraction which are particularly effective, such as showing that you were about to make a left turn or you were in the process of passing another vehicle. With a skilled attorney on your side, tickets for this sort of infraction can often be dismissed.
• VC 22400(a) – Impeding traffic. You must drive at a reasonable speed so as not to block the normal flow of traffic, regardless of which lane you are in. This is a subjective call by the officer giving you the ticket. It is possible to argue, however, that your speed was reasonable given the road conditions or the safe operation of your particular vehicle. There are many conditions, such as visibility and weather, which an experienced attorney can use to argue that you were in fact driving at a speed necessary for the safe operation of your vehicle.
• VC 21656 – Failure to use turnouts. This section requires that you were driving at a slower rate than the normal flow of traffic on a two lane highway (one in each direction), there were at least five vehicles behind you, and you failed to pull over in a marked turnout area. Unlike the previous section, it is no defense to this violation that you were traveling at speed necessary for the safe operation of your vehicle; if you failed to pull over at a turnout when you could have, you are guilty. However, it is possible to fight and win against this sort of violation with an experienced attorney at your side.
• VC 21703 – Tailgating. You may not follow too closely to another vehicle given your speed, the flow of traffic, and road conditions. This is a subjective call by the citing officer. A general rule of thumb is one car length (about 15 feet) for every 10 mph of speed. However, the determination will be what is “reasonable and prudent” – which may depend on the mood of the officer. This subjective interpretation by the officer can be often successfully be challenged in court.
If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
If you’ve been cited for one of the many violations dealing with impeding traffic, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common impeding traffic violations:
• VC 21654 – Driving too slowly in the left lane. This section of the Vehicle Code makes it illegal to drive in any lane except for the far right lane if you are traveling at “less than the normal speed of traffic.” If you are driving in the left lane you must drive with the speed of traffic – sometimes even if the speed of traffic is above the posted limit. However, there are several defenses to violations of this infraction which are particularly effective, such as showing that you were about to make a left turn or you were in the process of passing another vehicle. With a skilled attorney on your side, tickets for this sort of infraction can often be dismissed.
• VC 22400(a) – Impeding traffic. You must drive at a reasonable speed so as not to block the normal flow of traffic, regardless of which lane you are in. This is a subjective call by the officer giving you the ticket. It is possible to argue, however, that your speed was reasonable given the road conditions or the safe operation of your particular vehicle. There are many conditions, such as visibility and weather, which an experienced attorney can use to argue that you were in fact driving at a speed necessary for the safe operation of your vehicle.
• VC 21656 – Failure to use turnouts. This section requires that you were driving at a slower rate than the normal flow of traffic on a two lane highway (one in each direction), there were at least five vehicles behind you, and you failed to pull over in a marked turnout area. Unlike the previous section, it is no defense to this violation that you were traveling at speed necessary for the safe operation of your vehicle; if you failed to pull over at a turnout when you could have, you are guilty. However, it is possible to fight and win against this sort of violation with an experienced attorney at your side.
• VC 21703 – Tailgating. You may not follow too closely to another vehicle given your speed, the flow of traffic, and road conditions. This is a subjective call by the citing officer. A general rule of thumb is one car length (about 15 feet) for every 10 mph of speed. However, the determination will be what is “reasonable and prudent” – which may depend on the mood of the officer. This subjective interpretation by the officer can be often successfully be challenged in court.
If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
3/7/11
Common Traffic Tickets in CA Explained: Non-DUI Drinking Offenses
Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)
If you’ve been cited for one of the many violations dealing with non-DUI alcohol-related offenses, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common alcohol-related traffic violations:
• VC 23222(a) – Open container on person of driver. This is the most common of the “minor” alcohol offenses. A violation of this section requires that the driver of a vehicle hold an open container with contains any amount of alcohol. While the law states that the driver must have alcohol on “his or her person” this section is often cited if an officer wishes to ticket a driver when a passenger possesses an alcoholic beverage. If this is the case, you have a very winnable case. If the officer wished to cite someone for having an open alcoholic container, he should have cited the passenger under VC 23226, as discussed below.
• VC 23225(a) – Open container kept in vehicle by driver or owner. This section varies from the violation immediately above because it does not require an open container be on the “person” of the driver. You may be cited for this offense if there is an open alcohol container located almost anywhere in your vehicle besides the trunk. However, it is not necessary to even be driving – you may be cited for this offense if you are the owner of the vehicle and someone else is driving, or if you are parked on the side of the road.
• VC 23220 – Driver drinking in vehicle. The elements to violate this section require that a person driving a vehicle drink an alcoholic beverage. However, to be found guilty on this defense, an officer must actually see you drinking from a can or bottle; an officer merely observing a driver with an alcoholic beverage and smelling alcohol on the driver’s breath is not sufficient to prove a violation of this section. It is common for a citing officer to make this improper conclusion.
• VC 23221(b), 23223(b), & 23226(b). Alcohol violations involving a passenger. Unlike the violations discussed above, these vehicle code infractions involve passengers. For these sorts of violations, it is not necessary to be the driver or owner of the vehicle, and in fact it is often not even necessary to be in a moving vehicle; a person can be cited while a vehicle is parked on a public street. However, these violations are open to the same sort of challenges as discussed above.
If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
If you’ve been cited for one of the many violations dealing with non-DUI alcohol-related offenses, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common alcohol-related traffic violations:
• VC 23222(a) – Open container on person of driver. This is the most common of the “minor” alcohol offenses. A violation of this section requires that the driver of a vehicle hold an open container with contains any amount of alcohol. While the law states that the driver must have alcohol on “his or her person” this section is often cited if an officer wishes to ticket a driver when a passenger possesses an alcoholic beverage. If this is the case, you have a very winnable case. If the officer wished to cite someone for having an open alcoholic container, he should have cited the passenger under VC 23226, as discussed below.
• VC 23225(a) – Open container kept in vehicle by driver or owner. This section varies from the violation immediately above because it does not require an open container be on the “person” of the driver. You may be cited for this offense if there is an open alcohol container located almost anywhere in your vehicle besides the trunk. However, it is not necessary to even be driving – you may be cited for this offense if you are the owner of the vehicle and someone else is driving, or if you are parked on the side of the road.
• VC 23220 – Driver drinking in vehicle. The elements to violate this section require that a person driving a vehicle drink an alcoholic beverage. However, to be found guilty on this defense, an officer must actually see you drinking from a can or bottle; an officer merely observing a driver with an alcoholic beverage and smelling alcohol on the driver’s breath is not sufficient to prove a violation of this section. It is common for a citing officer to make this improper conclusion.
• VC 23221(b), 23223(b), & 23226(b). Alcohol violations involving a passenger. Unlike the violations discussed above, these vehicle code infractions involve passengers. For these sorts of violations, it is not necessary to be the driver or owner of the vehicle, and in fact it is often not even necessary to be in a moving vehicle; a person can be cited while a vehicle is parked on a public street. However, these violations are open to the same sort of challenges as discussed above.
If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
3/2/11
Stages of a Felony Case in CA Prior to Trial
If you are arrested for a felony in California and are taken into custody, you have a right to be brought before a judge within 48 hours, excluding weekends and holidays. This initial appearance is the arraignment. If you make bail or otherwise are not in custody, your arraignment will generally be set within a reasonable time, usually within a few weeks.
At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.
Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.
The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.
Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.
If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.
Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.
If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.
At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.
Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.
The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.
Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.
If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.
Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.
If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.
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