A criminal conviction can have the result of suspension, revocation, or denial of a real estate license in California. However, not all convictions will result in such disciplinary actions. A number of factors will be used by the California Real Estate Commissioner to determine if a suspension, revocation or denial is appropriate.
First, it must be determined if the circumstances of the crime are substantially related to the functions, qualifications, or duties of a real estate broker or salesperson. For example, a licensee convicted of vandalism for vandalizing a home he or she is attempting to sell is more likely to be disciplined than that same licensee breaking a window during a bar fight. The Commissioner will also consider the seriousness of the offense. Generally, convictions for the following crimes are considered substantially related and can result in discipline:
· any felony;
· theft, embezzlement, or fraud;
· intent or threat to commit significant harm to the person or property of another;
· any sex crime requiring registration pursuant to Penal Code Section 290;
· repeated conduct which shows a willful disregard for the law;
· contempt of court or willful disregard for a court order; and
· two or more convictions involving alcohol or drugs where at least one conviction involves driving and the consumption of alcohol or drugs.
The Commissioner will also consider the past criminal history of a licensee to determine if discipline is necessary. In addition, those holding a real estate broker license will be held to a higher standard than those holding a real estate salesperson license due to the higher level of self-regulation.
Usually the determination of whether discipline is necessary is made by an administrative hearing on a case by case basis, after the conclusion of the criminal case. At the hearing, a licensee may appear with an attorney and present evidence that the conduct was not substantially related to the licensee’s professional duties or mitigating the seriousness of the offense. However, if the licensee was convicted in the criminal court, they may not present evidence to attempt to prove he or she was not guilty.
The administrative hearing may also include an inquiry into the facts of a conviction beyond simply the plea or verdict. For example, a defendant may plead guilty to a lesser included offense that is not substantially related to his or her profession. However, if the circumstances surrounding the original charge are substantially related to his or her profession, the board may inquire regarding those facts in making a determination on whether to deny, revoke, or suspend a license.
It is also important to understand that an acquittal or dismissal of the criminal case will not bar subsequent administrative proceedings to suspend, revoke or deny a license. Even if you are found “not guilty” your license can still be taken away! This is because the “beyond a reasonable doubt” standard in criminal cases is higher than the “clear and convincing proof to a reasonable certainty” standard applicable to the administrative hearing. In the event of an acquittal or dismissal in criminal court, it is often wise for a licensee to petition the court for a finding of factual innocence under Penal Code 851.8 to prevent action against his or her professional license. In addition, a past conviction that has been expunged from a potential licensee’s criminal record can be used as a basis for denying an application for a license.
Because of the many ways in which a professional license can be suspended, revoked, or denied, any time a licensee is facing a potential criminal conviction it is wise to have the assistance of an attorney. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
1/19/10
Effects of Traffic School in California
If you are convicted of a traffic offense, usually you are given the opportunity to attend traffic school. If you cannot fight the ticket and get it dismissed entirely, it is often a good idea to choose the traffic school option, although it will add about $100-$150 more to the total cost you will pay, in the form of court fees and the actual cost of the school. Successfully completing the eight hour traffic school will completely mask the ticket from your record. This means you do not receive a “point” from the DMV and your insurance company will never know you received a moving violation, meaning there will be no effect on your insurance.
Points are added to your record by the DMV to determine negligent drivers. One point is generally accumulated for most moving violations, such as speeding or running a stop light, or for at-fault accidents. Two points are assigned for more serious violations, such as DUI or hit and run. A driver may have his or her license suspended if they receive four points in one year, six points in two years, or eight points in three years.
You may only attend the eight hour traffic school once every 18 months. If you receive a second traffic ticket in that 18 month period, some courts may allow you to take the second offender traffic school, commonly referred to as the 12 hour class. The effects of taking this class are different from the initial traffic school class. Instead of completely masking your public record, the 12 hour class merely changes your record to reflect that the ticket was dismissed via traffic school. This will keep the point off your record for DMV purposes, but will still be visible to your insurance company. Legally, your current insurance company may not raise your rates because of that ticket. However, in actual practice, it is not difficult for a company to do just that by justifying a raise in any number of other ways. Further, any future policy you purchase with that same company or any other insurance company may justifiably have a higher premium due to the conviction.
While it is not uncommon for judges to offer the 12 hour class, it is completely within their discretion. Some judges regularly offer the option while others do not. Some will offer the option only if you do not request a trial. Traffic court is very informal and varies a great deal from one court to the next. Whether to request traffic school, or even whether to plead guilty, will vary greatly depending on each individual’s situation, including his or her previous record, the nature of the offense, and the tendencies of the presiding judge.
If you have been cited for a traffic ticket, it is often a good idea to contact an attorney to discuss your options. Contact the Law Offices of Scott R. Ball for a free and confidential evaluation of your case.
Points are added to your record by the DMV to determine negligent drivers. One point is generally accumulated for most moving violations, such as speeding or running a stop light, or for at-fault accidents. Two points are assigned for more serious violations, such as DUI or hit and run. A driver may have his or her license suspended if they receive four points in one year, six points in two years, or eight points in three years.
You may only attend the eight hour traffic school once every 18 months. If you receive a second traffic ticket in that 18 month period, some courts may allow you to take the second offender traffic school, commonly referred to as the 12 hour class. The effects of taking this class are different from the initial traffic school class. Instead of completely masking your public record, the 12 hour class merely changes your record to reflect that the ticket was dismissed via traffic school. This will keep the point off your record for DMV purposes, but will still be visible to your insurance company. Legally, your current insurance company may not raise your rates because of that ticket. However, in actual practice, it is not difficult for a company to do just that by justifying a raise in any number of other ways. Further, any future policy you purchase with that same company or any other insurance company may justifiably have a higher premium due to the conviction.
While it is not uncommon for judges to offer the 12 hour class, it is completely within their discretion. Some judges regularly offer the option while others do not. Some will offer the option only if you do not request a trial. Traffic court is very informal and varies a great deal from one court to the next. Whether to request traffic school, or even whether to plead guilty, will vary greatly depending on each individual’s situation, including his or her previous record, the nature of the offense, and the tendencies of the presiding judge.
If you have been cited for a traffic ticket, it is often a good idea to contact an attorney to discuss your options. Contact the Law Offices of Scott R. Ball for a free and confidential evaluation of your case.
1/15/10
The Difference Between Criminal and Civil Trials
When a person commits an act that is both illegal and causes financial harm to another, that person potentially exposes his or herself to both criminal and civil liability. This can result in two separate and distinct trials, which can have surprisingly different results.
The most famous case of dual criminal and civil trials happened in the mid ‘90s when O.J. Simpson was accused of murder. After O.J. was found not guilty at his criminal trial, the families of the victims brought suit in civil court alleging O.J. was liable for the wrongful death of Nicole Simpson and Ron Goldman. Despite the fact the jury in the criminal case returned a not guilty verdict, the jury in the civil case found O.J. liable for the deaths of the victims and ordered a payment of millions of dollars to the families.
Why the different result? Well, although both cases dealt with the same issue (did O.J. kill Simpson and Goldman?) there is a different standard of proof in criminal and civil trials. To be guilty of a criminal charge, the prosecution must show “beyond a reasonable doubt” that the defendant committed the act. This is the highest standard of proof in our legal system. However to be found liable in a civil suit, the plaintiff need only show a “preponderance of the evidence.” This means it is more likely than not that the defendant committed the alleged act. This is a much lower standard of proof. Therefore, although O.J.’s legal team was able to create a reasonable doubt in the minds of the criminal jury over whether he committed the murder, they were unable to convince the civil jury that it was more likely than not that he was not involved in the victim’s deaths.
As a result of the civil trial, O.J. was found liable financially for the deaths of Simpson and Goldman. Although he did not lose his freedom, he was ordered to make the families whole for the loss in the form of a payment, determined by the jury, of $33.5 million.
For almost any crime that involves a victim, there exists the possibility of an additional civil suit being brought as well. However, the vast majority of the time no civil suit is ever filed. There are several reasons for this. For one, punishment for many crimes include automatic restitution where a defendant found guilty must pay the victim for his or her loss. The main reason civil suits are uncommon, however, is the fact that most defendants simply don’t have the enough wealth to make a costly civil suit worthwhile.
If you have been charged with a crime, it is important to realize the possibility of a civil suit being brought against you, even if the criminal charges are dismissed or you are found not guilty at trial. Contact the Law Offices of Scott R. Ball for a confidential and free evaluation of your case.
The most famous case of dual criminal and civil trials happened in the mid ‘90s when O.J. Simpson was accused of murder. After O.J. was found not guilty at his criminal trial, the families of the victims brought suit in civil court alleging O.J. was liable for the wrongful death of Nicole Simpson and Ron Goldman. Despite the fact the jury in the criminal case returned a not guilty verdict, the jury in the civil case found O.J. liable for the deaths of the victims and ordered a payment of millions of dollars to the families.
Why the different result? Well, although both cases dealt with the same issue (did O.J. kill Simpson and Goldman?) there is a different standard of proof in criminal and civil trials. To be guilty of a criminal charge, the prosecution must show “beyond a reasonable doubt” that the defendant committed the act. This is the highest standard of proof in our legal system. However to be found liable in a civil suit, the plaintiff need only show a “preponderance of the evidence.” This means it is more likely than not that the defendant committed the alleged act. This is a much lower standard of proof. Therefore, although O.J.’s legal team was able to create a reasonable doubt in the minds of the criminal jury over whether he committed the murder, they were unable to convince the civil jury that it was more likely than not that he was not involved in the victim’s deaths.
As a result of the civil trial, O.J. was found liable financially for the deaths of Simpson and Goldman. Although he did not lose his freedom, he was ordered to make the families whole for the loss in the form of a payment, determined by the jury, of $33.5 million.
For almost any crime that involves a victim, there exists the possibility of an additional civil suit being brought as well. However, the vast majority of the time no civil suit is ever filed. There are several reasons for this. For one, punishment for many crimes include automatic restitution where a defendant found guilty must pay the victim for his or her loss. The main reason civil suits are uncommon, however, is the fact that most defendants simply don’t have the enough wealth to make a costly civil suit worthwhile.
If you have been charged with a crime, it is important to realize the possibility of a civil suit being brought against you, even if the criminal charges are dismissed or you are found not guilty at trial. Contact the Law Offices of Scott R. Ball for a confidential and free evaluation of your case.
9/4/09
Landmark Case For Stoners
A fairly recent California Appellate Court decision should be hailed as a landmark case for pot smokers. In People v. Hua, (158 Cal. App. 4th 1027) a court ruled that law enforcement must have a warrant to enter a private residence when the only evidence of a crime being committed is for simple possession of marijuana.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
"Bail" Explained
After a person is arrested and taken into custody, at the first appearance before a judge they have a right to a “bail hearing” where the amount of bail is set. When a defendant makes “bail” this means they are giving a specified amount of money to the court in exchange for being let out of jail with a promise that they will return to court at their next scheduled appearance. If the defendant returns to court as scheduled, the bail is exonerated and the full amount of money is returned. However, if the defendant does not return as promise, the bail is forfeited and the money is kept by the court.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
9/1/09
Sentencing Alternatives to Jail Time
If you are facing the possibility of jail time, there are actually many sentencing alternatives that may be available to avoid any actual time behind bars. While the availability of such programs vary greatly from county to county, the following options are often possible:
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
8/26/09
Defending a Charge of Driving Under the Influence: Challenging a Breath Test
If you have been arrested for driving under the influence and a breath test was used to determine your blood alcohol content (BAC), it is important to be aware of possible defenses to the use of such a test to prove you guilty of a DUI. Possible defenses include, but are not limited to, the following:
1) Inadequate or broken observation period. In order to properly read your BAC by a breath test, the testing officer must observe you continuously for at least 15 minutes before taking a sample. If you belch, vomit, or regurgitate gas in your mouth before the test, your BAC may read inaccurately high. If the officer has not observed you continuously for 15 minutes prior to measuring your BAC, it will be impossible for him to say that you did contaminate your own breath test.
2) Something in your mouth causes an inaccurate reading. Common items such as cough drops, breath mints, or chewing tobacco may remain in your mouth when a breath test is administered and can contaminate the results.
3) Your own personal medical history. If diagnosed prior to your arrest for DUI, many conditions, such as gastric reflux disease, intestinal problems, diabetes, and respiratory problems, can be used to show the likelihood of an inaccurate BAC reading from a breath test.
4) Your own personal dental history. Gum disease, gingivitis, and pockets around the roots of your teeth, as well as dentures or bridgework may trap alcohol in your mouth and contaminate a breath sample.
5) Your behavior or actions do not match test results. If there are witnesses, video tape, or observations by officers that suggests you were not intoxicated, it may be possible to challenge the readings from a breath test.
6) Rising blood alcohol level. If your first breath sample registers slightly over the legal limit, and a second sample taken later is higher, it is clear your BAC is rising. If this is the case it may be possible to argue that, at the time you were driving, your BAC was not over the legal limit.
7) Inexperience or incompetence of the arresting or testing officer. If the officer who arrested you or took your breath sample is not trained in the proper procedure or fails to follow protocol it may be possible to have the results of the improperly administered breath test thrown out.
8) Accuracy of the breath test machine. An artificially high reading can result from interference with the circuitry of a machine due to radio interference, shared power sources, or smoking in or near the machine.
9) Irregular samples. Consecutive BAC readings that vary a great deal can be used to challenge the accuracy of breath samples.
10) Statutory time limit. The prosecution must prove that the breath sample was obtained within three hours of the time you were driving in order to invoke the presumption that you were intoxicated at the time you were driving.
These are just a few of the many defenses that may be available to you if you have been charged with a DUI on the basis of a breath test. Of course, countless more defenses are available depending on the circumstances of your case. Contact the Law Offices of Scott R. Ball today to discuss your case and determine what defenses may be available for you. As always, a consultation regarding your case is completely free and totally confidential.
1) Inadequate or broken observation period. In order to properly read your BAC by a breath test, the testing officer must observe you continuously for at least 15 minutes before taking a sample. If you belch, vomit, or regurgitate gas in your mouth before the test, your BAC may read inaccurately high. If the officer has not observed you continuously for 15 minutes prior to measuring your BAC, it will be impossible for him to say that you did contaminate your own breath test.
2) Something in your mouth causes an inaccurate reading. Common items such as cough drops, breath mints, or chewing tobacco may remain in your mouth when a breath test is administered and can contaminate the results.
3) Your own personal medical history. If diagnosed prior to your arrest for DUI, many conditions, such as gastric reflux disease, intestinal problems, diabetes, and respiratory problems, can be used to show the likelihood of an inaccurate BAC reading from a breath test.
4) Your own personal dental history. Gum disease, gingivitis, and pockets around the roots of your teeth, as well as dentures or bridgework may trap alcohol in your mouth and contaminate a breath sample.
5) Your behavior or actions do not match test results. If there are witnesses, video tape, or observations by officers that suggests you were not intoxicated, it may be possible to challenge the readings from a breath test.
6) Rising blood alcohol level. If your first breath sample registers slightly over the legal limit, and a second sample taken later is higher, it is clear your BAC is rising. If this is the case it may be possible to argue that, at the time you were driving, your BAC was not over the legal limit.
7) Inexperience or incompetence of the arresting or testing officer. If the officer who arrested you or took your breath sample is not trained in the proper procedure or fails to follow protocol it may be possible to have the results of the improperly administered breath test thrown out.
8) Accuracy of the breath test machine. An artificially high reading can result from interference with the circuitry of a machine due to radio interference, shared power sources, or smoking in or near the machine.
9) Irregular samples. Consecutive BAC readings that vary a great deal can be used to challenge the accuracy of breath samples.
10) Statutory time limit. The prosecution must prove that the breath sample was obtained within three hours of the time you were driving in order to invoke the presumption that you were intoxicated at the time you were driving.
These are just a few of the many defenses that may be available to you if you have been charged with a DUI on the basis of a breath test. Of course, countless more defenses are available depending on the circumstances of your case. Contact the Law Offices of Scott R. Ball today to discuss your case and determine what defenses may be available for you. As always, a consultation regarding your case is completely free and totally confidential.
8/24/09
VC 23103 Reckless Driving: The What, How, and Why
Reckless driving, defined at Section 23103, is one of the most vaguely worded statutes in the California Vehicle Code. It states that “[a]ny person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” A person found guilty for a first offense of reckless driving can face fines of several thousand dollars, a jail sentence of up to 90 days, their car impounded for up to 30 days, and have their license suspended for a month. A second or third violation of reckless driving, or if someone was injured as a result of a person’s reckless driving, can result in a mandatory license suspension for a year and up to 6 months in jail. A reckless driving is also considered a “discretionary arrest” misdemeanor, meaning the citing officer can merely give you a ticket or arrest you and take you to jail.
A charge of reckless driving is a misdemeanor offense, which, if convicted, will result in a criminal record and two points on your driving record. Generally, two points in any eighteen month period will result in a rise in your car insurance rates. If you have previous points on your record, it could also result in an even longer suspension of your license.
However, if you have been charged with reckless driving, with a skilled attorney, it is very possible to fight and win your case. The vague nature of the phrase “willful and wanton disregard for safety” leaves a great deal of room for a skilled attorney to argue your case either does not merit a misdemeanor charge or should be dismissed entirely. California courts have held that negligence, and even gross negligence, is not enough alone to establish reckless driving. This means that the prosecution must prove beyond a reasonable doubt that the driver intentionally did something he knew, or should have known, could result in killing or injuring someone.
Generally, a rule of thumb by police officers is that three moving violations, committed in rapid succession by a driver, constitute reckless driving. However, the courts have not adopted this rule, and follow the statutory definition of “willful and wanton disregard for safety.” This means that it is possible to be cited for reckless driving for committing a single “unsafe” maneuver, as defined by the officer, such as cutting sharply across traffic to make an abrupt turn.
If you have been charged with reckless driving, you should contact a criminal defense attorney today. A skilled attorney may be able to have unfair reckless driving charges completely dismissed, keeping you out of jail and saving your license. Further, it is often possible to have the misdemeanor charge reduced to a mere traffic infraction, which will result in greatly reduced fines and, when combined with traffic school, no points on your record. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
A charge of reckless driving is a misdemeanor offense, which, if convicted, will result in a criminal record and two points on your driving record. Generally, two points in any eighteen month period will result in a rise in your car insurance rates. If you have previous points on your record, it could also result in an even longer suspension of your license.
However, if you have been charged with reckless driving, with a skilled attorney, it is very possible to fight and win your case. The vague nature of the phrase “willful and wanton disregard for safety” leaves a great deal of room for a skilled attorney to argue your case either does not merit a misdemeanor charge or should be dismissed entirely. California courts have held that negligence, and even gross negligence, is not enough alone to establish reckless driving. This means that the prosecution must prove beyond a reasonable doubt that the driver intentionally did something he knew, or should have known, could result in killing or injuring someone.
Generally, a rule of thumb by police officers is that three moving violations, committed in rapid succession by a driver, constitute reckless driving. However, the courts have not adopted this rule, and follow the statutory definition of “willful and wanton disregard for safety.” This means that it is possible to be cited for reckless driving for committing a single “unsafe” maneuver, as defined by the officer, such as cutting sharply across traffic to make an abrupt turn.
If you have been charged with reckless driving, you should contact a criminal defense attorney today. A skilled attorney may be able to have unfair reckless driving charges completely dismissed, keeping you out of jail and saving your license. Further, it is often possible to have the misdemeanor charge reduced to a mere traffic infraction, which will result in greatly reduced fines and, when combined with traffic school, no points on your record. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
8/14/09
The Many Ways the DMV Can Suspend Your License
Everyone knows that being arrested for driving under the influence of alcohol can result in the loss of your license, but did you know that there are literally dozens of other ways your license can be suspended? Be aware, here are some ways you can have your license taken away that you may not have realized:
Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.
Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.
Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.
Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.
Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.
Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.
Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.
Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.
Other ways your license may be suspended include:
It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.
Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.
Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.
Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.
Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.
Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.
Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.
Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.
Other ways your license may be suspended include:
- Engaging in prostitution in a vehicle within 1000 feet of a residence.
- Engaging in a “speed contest” i.e. drag racing against another person or a clock.
- Assaulting a driver, passenger, bicyclist, or pedestrian on a highway. (“Road Rage”)
- Failure to stop at a railway grade crossing.
- Recklessly fleeing a law enforcement officer.
- Leaving the scene of an accident or injury without filing a report.
It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
8/11/09
HELP! I Was Arrested for a DUI! What Do I Do Now?
If you have recently been arrested and charged with driving under the influence in California, it is important to realize that time is of the essence. Your first action should probably be to contact a good criminal defense attorney. However, regardless of if and when you decide to contact an attorney, there are several important things of which you should be aware.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
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