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Which is Worse? Driving on a Suspended License vs. Driving W/O a Valid license

How to Get a Public Defender Appointed on a Criminal Case.

Broke and in big trouble? You may be entitled to have the Judge appoint a Public Defender to help you if you are charged with a misdemeanor or felony.

What Is a Public Defender?

In a land far far away, a long, long time ago, a great Supreme Court ruled that all criminal defendants have a right to a “competent defense” which means attorneys help.  Now, anyone charged with a misdemeanor or felony crime has the right to an attorney and if the person cannot afford to hire a private Attorney, the law requires that the court appoint one to help the defendant at the public’s expense. When the Court appoints an attorney to help a broke defendant, they are called “Public Defenders”.

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Public Defenders are real Attorneys, and are generally very good at what they do.  I spent three years with the Santa Cruz County Public Defenders office my self, and can say they do consistently provide great legal work and fight to protect rights.  Those defense daemons are in court everyday helping defendants in trouble, getting evidence suppressed, and they usually know the ins and outs of each courtroom, each judge, and every prosecutor.

Every county has its own Public Defers Office, or a contract with a private law firm to do the assigned work. Sometimes it is a division of the county, as in Santa Clara County. In other counties, such as Santa Cruz, the county has a contract with a law firm to provide Public Defender Services. In Riverside, the court just appoints private attorneys from an approved panel. Most of the time, the offices of the Public Defender are at or near the courthouse.

California Government Code Sections 27700-27709 require a county’s public defender to provide legal representation for indigent persons in certain circumstances.  These California statutes are really just a restatement of the requirements the US Supreme Court set for 5th Amendment Rights in the famous 1963 case of Giddeon vs. Wainright.  And in most counties, the public defender heads the county law office which fulfills this obligation in the most cost effective manner.

Every county handles these qualifications differently, and there is no single rule on how much you can earn or have before you do not qualify for the Public Defender. In some counties, if you are unemployed, you qualify. In others, the requirements are stricter, and you must have no property to sell.
In some counties, such as Santa Cruz, the qualification procedure is relatively simple. The defendant, once in court, makes a request, and the judge will ask several questions with the defendant under an oath to tell the truth.

The questions will include whether or not the defendant is employed, owns their own house and car, etc. Thereafter, the judge just makes a decision whether or not the defendant can come up with the money for a private Attorney.

In most counties, employment is enough to disqualify a defendant.  The court expects the cost of an attorney hurt.

If the judge decides to appoint the Public Defender, he or she just tells the public defender in the courtroom to take the case and talk to the new client.

In other courts, such as Riverside, or on felony cases, the process is more complicated. In some courts, the defendant must fill out an application form and prove what their income is, and a decision to appoint a Public Defender is made at another time. Then a meeting between new client and court appointed attorney is done at a later date.

But no matter what court a defendant is in, the process is basically this: the defendant must go to court, make a request for a Public Defender, and then provide evidence that they qualify for a Public Defender because they cannot afford to hire a private Attorney.

Some Public Defenders Offices will answer simple questions from a potential client in advance of a court date, but generally they do not give detailed advice before being appointed.

Most county Public Defenders do have web sites with good information, with one of the best being the Los Angeles County Public Defenders Office.

While Public Defenders are a great value and help to an indigent defendant, they do have limitations.

Some courts will charge a defendant for the Public Defenders worth according to what they can afford (as determined by the court). In some cases, this charge can range from $100, to $10,000.

Public Defenders are also restricted to helping only on the case the court appoints them for, so if a defendant have multiple cases in different courts, several Public Defenders may be needed, instead of one private attorney. And generally, Public Defenders will not help with DMV problems or hearings.

For Defendants without outstanding warrants, Public Defenders present a problem because they cannot be appointed until the defendant appears in court. This means the defendant must first be arrested, or get their own court date before getting help.

Usually, if a court denies the appointment of a Public Defender because the judge rules the defendant can afford to hire an Attorney, the court will give the defendant time to shop for a private Attorney.

If you need to ask for a Public Defender, I recommend explaining to the court why it is impossible for you to hire a private attorney.

Public defenders are not available on infraction only cases, such as speeding tickets.  Most of the time, they are not available for appeals.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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WTF? Minor Gets Car Towed for DUI Infraction at 0.022% - What Can Be Done?

Here is a legal hypothetical question from a Traffic Court Pros.com User that comes up often. It’s almost like a law school final exam - a WTF fact pattern involving a Minor Arrested for DUI with legal analysis required.

Dear TrafficCourtPros.com:

Because he is only 20 years of age and blew 0.022, the CHP cited him for drinking and driving under the age of 21 (as a infraction) and towed his car. My brother was not booked in jail. The CHP told him to have someone come and pick him up.

As a Criminal Justice student, I am familiar with breathalyzer test. I know that there are things that can make a “breathalyzer” exam looked as if a preson [sic] was drinking alcohol without drinking actual alcohol such as nyquil, low carb diet, breath spray and fastening.

What would you recommend for us to do in his case? Since the only court he has to appear in is DMV, would a public defender be appointed to him? How would we go as far as proving to the DMV court that it was not an alcohol breveage [sic] that caused him to blow 0.022?

He has been on a diet and frequently go to gym. I believe 0.022 was a result to his diet change. What can be done?

LEGAL ANALYSIS

WTF?  DUI Infraction and Car Impounded for Minor Who Just Changed His Diet?  No Way?  That’s wrong. Just plain wrong. Let’s see if there is a way out of this one.

We do not know what state this is in, but we can discuss issues common to all states.

Issue #1: Was The Minor Legally Stopped for Speeding?

If the officer did not have a reasonable suspicion that a violation occurred when the stop was made, the Defendant can challenge the case on the ground that there was an illegal detention. (Violation of US Constitution, 4th Amendment.)  In California, that would be done via a Penal Code section 1538.5 motion to suppress illegally obtained evidence.

However, the fact pattern admits that the minor was “speeding to make a lane change”. Speeding is illegal.

Hello people! Speeding is illegal. You are not legally speeding just because you are changing lanes.

He’s guilty of violating the vehicle code unsafe speed law (For example Veh. Code 22350), and that is a legit reason for a police officer to pull a vehicle over (detain) because the officer witnessed a violation of law and had a legal duty to issue a citation (written promise to appear).

Issue 2: Can A Breathalyzer Show a False Reading After a Diet Change or Working Out?

Defendant here claims that he did not consume alcohol and that the 0.022% BAC reading must have been false. We have to assume that it was a portable breathalyzer test, because there is no facts that state he was taken to the hospital for a full blown BAC test.

Most Defense oriented forensic toxicologists (expert witnesses) will testify in court (if you pay them) that a portable breathalyzer machine will have an inherent error rate of 0.03% or more.  Theoretically, his BAC could have been zero.

But as far as I know, false readings are not really produced by a change in diet unless that change involves alcohol. The best way to defend against this low BAC reading is by challenging the inherent error rate, and trying to establish that the true reading was zero - Not that the reading was correct but the cause was a change in diet.  It’s a different perspective only an experienced DUI trial attorney would see.

Issue 3:  Can a Minor Charged with a DUI Offense Challenge the DMV Drivers License Suspension?

Challenging a DMV suspension is pretty much impossible unless you have an experienced attorney. In California, only about 15-17% of the cases that challenge the suspensions win, and almost all of those require hiring a forensic toxicologist to offer expert testimony on the machine, and alcohol absorption rates.

You cannot just schedule a hearing, show up without any defense witnesses, and expect to win.

Issue #4: Can A Driver Get a Public Defender to Help Challenge a DMV DUI Suspension?

No.  This is one of the parts of a quality DUI Defense that a Private Criminal Defense Attorney can provide, but that a Pubic Defender cannot provide.

DMV is not a court. They are a bunch of state employees with zero legal training that will give him a hearing to challenge the administrative per se suspension if he requests it within 10 days of arrest (In CA). Call the DMV driver safety office.

According to law decided under the 5th Amendment to the US Constitution, indigent (poor) defendants charged with a misdemeanor have the right to a defense attorneys help at the public’s expense. (See Gideon v. Wainwright, 372 U.S. 335 (1963).) This type of Defense Attorney is known as a “Public Defender” in most jurisdictions.

However, the right to Public Defender is limited to misdemeanor and felony cases in criminal courts. It does not apply at all to Administrative actions in the Department of Motor Vehicles. The main reasoning for this lack of a right to counsel in DMV hearings is that driving is a privilege, not a right, a person’s freedom is not in jeopardy.

Issue #5: If A Minor Received a Citation for an Infraction, Does He have to Appear in Court?

Yes, unless he pays the fine in advance of the deadline.

If there was a citation issued, there should be a court date at the bottom by his signature. He may be able to pay a fine and plead guilty by mail, and pay the fine by mail, but there is a court date until that is done.

Issue #6: Should He Fight the Infraction Charge In Court?

Typically, a minor who is cited for driving after drinking is cited for a misdemeanor (See California Vehicle Code section 23140.) In most states, the legal limit for a minor with alcohol in his / her blood is 0.05%, less than the adult limit.

But if for some reason it really is an infraction only in your jurisdiction. There probably is not point in fighting an infraction in court, because regardless of his Blood Alcohol Content, they can charge him with the misdemeanor of driving under the influence if there is evidence of bad driving (as there is here).

But there may be defenses here. If they only test was a field portable breathalyzer test, those machines are not perfectly accurate. Many expert witnesses will testify at trial (if you pay them) that a field breathalyzer machine can have an inherent error rate of 0.03% or more. This means your brother’s BAC could have actually been zero.

His BAC seems too low to get a real conviction here. Something about this part of it - the DUI from 0.022% BAC does not make much sense. If this were a real case review, I would want to see the citation to verify the exact statute the defendant is charged with. [I bet it is a misdemeanor].

But the officer is certainly going to say “I smelled the scent of an alcoholic beverage such as beer” if your brother has a trial. So I do not know how you would deal with that testimony.

Issue #7:  He Passed All of the Field Sobriety Tests (FSTs), Should They Have Let Him Go?

Almost Everyone who undergoes Field Sobriety Tests thinks that they passed the tests.  But I have to chuckle every time I hear someone say “I passed them all”.

The truth is, there is no way to pass field sobriety tests. The officers who conduct DUI investigations are simply trying to collect ADDITIONAL evidence to use against you.  Chances are that they have already made the decision to arrest you for DUI if you are walking the line, or doing what many experts call an imaginary test, the “Nystagmous” test. Officers are really just watching for any little mistake to add to their report to further justify the tow truck they already called, and the arrest they already planned out.

I can almost guarantee the police officer would not show up in court and testify that the defendant passes the FSTs, and you as his brother, would not be allowed to testify about whether or not he passed, because you have not been trained at the CHP Academy to score the FSTs. Your non trained opinion on what is a pass or a fail is not admissible.

SUMMARY

If the citation is only for an infraction, I would say pay the fine by mail and be done with it. I say this, because there is really no way to fight a low BAC case without hiring an expert witness.  And for an infraction problem, it is probably not worth the effort.

But if it is for a misdemeanor, then it IS worth the effort.  A misdemeanor is a real crime that can result in jail time, and even deportation for non citizens.  For misdemeanor DUI charges (even for a minor), you need a quality DUI defense attorney to truly analyze the issues.  This is especially true with low BAC cases.

Look carefully at the citation to determine if a court appearance is required. Check the statute of the violation.  Double check it says infraction only.

Call DMV today to determine if the drivers license was automatically suspended. Find out: When is the deadline to request a License Suspension Hearing?

Request a free attorney case review. It cannot hurt! (Well, no pain, no gain…)

Questions? Email cdort@dortlaw.com or leave a comment. We try to answer most.

Help! Im Trying to Pay a Traffic Ticket Fine Online at the Last Minute!

This question just rolled through and it is a common one that we are going to answer every one all at once:

What Do I Do If My Traffic Ticket Fine is Due Today and I Cant Pay On Line or Over the Phone?

Here is the actual text of the question from [Bob]:

My issue is that I am trying to pay for my traffic violation over the internet and phone, but neither will allow me to do so.  The automated phone messages are not allowing me to pay my fine.  The internet has technical difficulties.  Today is my response due date.  I am worried that I will have to fill out a PC 1214.1 civil assessment and petition and order form.  What should I do??

Here is my best free self help advice:1. Avoid the problem if possible. Jump into a time machine and jump back 5 days. Send the payment in early (ideally as a money order or cashier’s check) from the US Postal Office sent with Delivery Confirmation Requested.

2. If your time machine is one of those imported ones and it takes to long to warm up:

A. Go to the court clerks office in person and pay in person and get a receipt; or if that is not possible:

B. Send it out overnight mail, and call the next day to confirm they received it and check to see if they gave you a break and accepted it.

If you follow option B, and they tell you that it was late, immediately go in to the court clerks office in person and ask for a walk in court appearance. Once in court, ask the judge to accept your payment because you made a good faith effort to comply.

These are really the only realistic answers to the problem. You have to get your payment there on time, even if you cannot pay on line. “You web site did not work!!!” is not a defense to anything.

Do not delay.  If you cannot get your payment there on the date it is due, go to court. That is the best option.

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Changes in New York’s DWI Law Make It the Toughest in the US

The very sad case surrounding the death of Jack Shea, the patriarch of a 3x generation Olympic family who won gold medals in speed skating in the 1932 Olympic Games, is one of the more well-known examples of how a drunk driver escaped justice through a loophole in New York State’s DWI laws (Vehicle and Traffic Code sections 1194, 1195). But as of July 12, 2010, that loophole is gone, and New York’s driving under the influence laws are now considered the harshest in the US.

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The severity of Mr. Shea’s injury kept the physician’s assistant and registered nurse from withdrawing the drunk driver’s blood, and there was no licensed physician to do the work. The EMT was in fact qualified and trained to draw blood for a number of reasons, and did the work. But New York’s DWI law at the time prohibited an EMT, even if trained and experienced in the procedure from that work.

During the drunk driver’s criminal prosecution on Felony Homicide charges, the blood alcohol content evidence was excluded from the case and the prosecutor had to dismiss the charges for a lack of evidence.

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The government appealed the trial court’s exclusion of the evidence, ruling but the Appellate Court upheld the suppression of evidence because the decision of the trial court complied with the existing law. But in a written opinion n the case, the Appellate Judge, called on the NY Legislature to amend the statute and cure the loophole.

In response, both houses of the NY State congress passes the “Shea Act”, which now allows EMTs and other non-doctor health care workers to draw blood from accused DWI drivers. Governor Patterson (who does not drive at all) signed the Act into law. Shea’s son called the day “Glorious”.

The Shea Act adds toughness and a new limit to the already decimated defenses available for persons accused of DWI in New York. It falls on top of The Child Passenger Protection Act, also called Leandra’s Law, was enacted in 2009 and makes it a felony for individuals under the influence of drugs or alcohol to drive with children in the car.

Under Leandra’s Law, a drunk driver with a child under 16 years old in the car could face up to four years in prison. If the child is killed while the driver is intoxicated, it will become a B felony and carry a 7- to 25-year prison sentence.

The law is named after Leandra Rosado, an 11-year-old girl who was killed when the car she was in crashed on the side of the West Side Highway. The driver, Carmen Huertas was intoxicated at the time and was charged with manslaughter and drunk driving.

Leandra’s Law also requires mandatory ignition interlocks for first-time DWI offenders convicted of a misdemeanor or felony DWI. The interlock devices make a car unusable unless the driver passes a breathalyzer test.

Put together, the New York Driving Under the influence law is the toughest in the nation, with only Arizona creating a similar felony and a only 12 other states using mandatory interlock devices. Many states are now following New York’s lead. For example California is testing a mandatory ignition interlock requirement for first time offenders in 4 counties as of July 2010.

“Too often drivers under the influence of alcohol or drugs chose to compromise not only their own lives, but also the lives of our children. Today we say enough.” said Governor Paterson in a press release after signing Leandra’s Law.

The New York State Senate passed Lenadra’s Law on a 58-0 vote, and it was easily passed in the state Assembly, thus showing a growing trend among Politicians to crack down on DWI offenders.

Sources:
http://www.nysenate.gov/press-release/governor-signs-fuschillo-bill-closing-loophole-state-s-dwi-laws

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How to Deal with Proof of Insurance Violations (Vehicle Code 16028)

One of the most common and most expensive traffic tickets a driver can get is a failure to have proof of insurance while when asked by a police officer. In California, the violation is technically known as a Vehicle Code section 16028 infraction, and nearly all states have a very similar law. The typical fine for a Veh Code 16028 violation is about $1200 once court costs and “penalty assessments” are added. But there is a way to save big $$.

If you received one of these citations, you are probably very interested in reducing or getting out of the fine. After 12 years of handling these violations for clients, I have some good tips for saving money, and here is what you need to know.

I. The Violation is for Not Having Proof of Insurance With You While Driving, Not for a Lack of an Insurance Policy.

Nearly every day I get emails from drivers stating something to the effect of:

“I have a VC16028 violation, but I had insurance at the time.!”

Well, the bad news is that having insurance is not a complete defense to the charge. If you did not show proof to the officer when he / she asked for it, you are guilty. So a trial is rarely a good idea. The better option is to talk the judge into dismissing or reducing the fine without a trial.

II. If You Had Valid Insurance at the Time of the Citation, Show Proof in Court.

The ideal way to get an insurance ticket dismissed is to appear in court with your proof of insurance (covering the date of the violation), show it to the judge, and ask for a dismissal. If you want to sound really smart, ask for the dismissal in the interests of justice under authority of Penal Code section 1385. Technically, the court does not have to accept proof of insurance in court, but almost all judges will. The best way to ask for a dismissal is to say “I just could not find the paper before the officer wrote the citation.”

To get the insurance violation dismissed correctly, you need to appear in court prior to the date listed on the bottom of the citation next to your signature. Do not wait for the court to send you anything!! They are not required to send you a courtesy notice. Go to court and ask for an “Arraignment” prior to the date on the ticket. You may have to go in at 8 am and ask for a walk in court appearance.

In most courts you cannot get an insurance violation dismissed by mail without unreasonable difficulty. The best way to do it without frustration and wasted time is to appear in court in person. At some courts, it can be done at the court clerks window, but either way, you have to go in person to get it done right.

There may be a “dismissal fee” that you have to pay in person. See California Vehicle Code section 16029(e), and VC40611 for more details on the dismissal of insurance violations.

III. If You Did Not Have Insurance at the Time of the Ticket, Get It ASAP!

If you did not have insurance at the time of the citation, but got it before the date on your citation, you are eligible for the minimum fine. [See California Vehicle Code section 16029(e)(1)]

But to get that minimum fine, you must appear in court and ask for it.  You cannot do it by mail.  The correct what to get the minimum fine on an insurance violation is to appear at the courthouse prior to the date on the traffic ticket (by your signature) and ask for an Arraignment.  Once in the courtroom, and your case is called, tell the judge “I have proof of valid insurance that I got after the citation and I would like to ask the court to accept it and give me the minimum fine in accordance with CA Vehicle Code section 16029(e)(1).

By following this procedure this procedure, even if you are fully guilty, you will save yourself about $900 - which is far more than the cost of insurance.  So get insurance!  I recommend using the insurance link above to get a quality set of quotes for auto insurance within 2 minutes.

And aside form saving money on the fine, auto liability insurance is always worth the money (See my article on What Happens If You Get Into An Accident Without Auto Insurance.

(See also: http://www2.courtinfo.ca.gov/cjer/courses/traffic/stats/vc_2.htm#16028 )

And it never hurts to ask for a dismissal under penal code section 1385 even if you got an auto liability policy late - all they judge can say is no.

IV.  If The Court Gives You a Hard Time, There May Be a Good Issue for a Trial.

In my 12 years as a defense Attorney, I have noticed that over and over again, police officers give out traffic tickets with only one violation listed - the insurance violation.  But the law actually states that it is illegal for an officer to stop someone solely for the purpose of checking your insurance.

If the only violation on the traffic ticket is listed as a VC 16028, and you want a trial, your best defense if that the officer pulled you over illegally just to check your insurance.  Once in court, the officer is bound to make up a reason for the stop, such as “I saw her speeding”.  But you can effectively counter this statement by simply asking the officer:  “You did not note a [speeding] violation on the ticket, did you?  Then in your final argument, tell the judge there is no reliable evidence the stop was legal - the only reliable evidence is the ticket, which mentions only a VC16028 violation.

One final recommendation - GO TO YOUR COURT DATE EVEN IF YOU DON’T HAVE INSURANCE!

If there is no way you can get insurance before the date on your citation, go to court anyway and ask for more time.

The court will almost always give you more time to fix an insurance issue. The trick to staying out of trouble is to show up on time to ask for more time.

The worst thing you can do is to blow off your court date - that will only increase the severity of the problem.

C. Dort, Esq.

Questions?  Leave a Comment, we try to answer them all.

Who is GC Services and AllianceOne? They Are Not Court Employees.

If you are one of the thousands of people with outstanding traffic citations in California who has tried to take take of it only to run into a nightmarish mess of useless automated customer “service”, long lines, inaccurate information, and unfriendly court collection employees, chances are you have had the great pleasure of meeting either the GC Services or the AllianceOne Collection Agency.

After years of dealing with them at www.TrafficCourtPros.com, we’ve done our best to figure out who they are, how best to deal with them, and most importantly, how to avoid them. Here’s what we’ve learned:

Instant Complete Warrant Search

When you miss a court date or fail to pay a fine on time, the court can do a number of things, including adding a new misdemeanor charge of failure to appear, issue an arrest warrant and suspend your drivers license under authority of California Vehicle Code section 40509.5.

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But increasingly, courts are doing all of that and more. They are also sending the bill for the full bail on a citation to a collection agency. The two most common collection agencies we run into most frequently are GC Services and AllianceOne. In practice, it is very difficult to distinguish between the two, but we do know that GC Services presently has the contract for LA County Superior Court, and AllianceOne is the agency for San Diego County Superior Court.

The task of these collection agencies is to collect the overdue fines on the citations, in exchange for taking a percentage as a collection fee. Because of this arrangement, they are very resistant to cooperating with the court staff to help you deal with the problems of a drivers license suspension, or warrant. If you solve your problem with the court, they don’t get paid.

At the courthouse, these collection agencies present an image of being court employees, and as the only option for dealing with a citation once the deadline has passed. They have their own window in many clerks officers, and their own employee cubicles. Frequently, the easiest way to find the collection window is to look for the longest line at the court clerks office.

But in reality, employees of GC Services and AllianceOne are not court employees. Everyday thousands of people wait in court clerk lines at courthouses only to get to the court clerk telling them that they need to stand in the (longer) collection agency line.

If you’ve searched for their web site in an effort to get help, or tried to call their TOLL FREE customer “service”, you’ve already discovered that they are not interested in providing on line access to your account, on line help, or real live trained personnel to answer your questions. As far as we can tell, it is their goal to limit your options and to frustrate you to the point where just paying in full - preferably after waiting in line for a long time - is your only option.

IS THERE ANYTHING YOU CAN DO IF YOUR CASES ARE IN “COLLECTIONS”?

Yes!

Just because your case was sent to a collection agency does not mean it is over. The court does not lose control over your case when it is sent to collections (if the collections agency tells you cannot go to court, they are not telling you the truth).

You can still demand a court date, and appear in court to defend the case(s), or ask the court for an extension based upon a special circumstance. As long as you have not plead guilty, you can even have a trial if you want one. You are still entitled to have a court appearance and to request that your fines be reduced or spread out over time. If you qualify for traffic school, you can still request a referral to protect your driving record.


WHAT HAPPENS IF YOU JUST PAY THE COLLECTION AGENCY?

In most failure to appear cases a court appearance is required. But in some cases a collection agency such as GC Services or AllianceOne will claim you have to pay them the “full bail” on the case to end it.

If you just pay the collection agency the full amount they claim you owe, you will end your case. But:

• You are admitting guilt and will be convicted of everything in the file (including the failure to appear charge);
• You will lose any chance you had to get the case dismissed completely;
• You must pay all of the full bail amount at once, before the license hold is cleared;
• Your drivers license will not clear until the agency gets around to processing the case and notifying DMV;
• You will lose the opportunity to attend traffic school and protect your driving record from “negligent driver points”

Because of this, my opinion is that paying the collection agency is the slowest and most expensive way to get convicted of everything.

If you do speak with a GC Services or Alliance One representative - here are some key questions to ask:

1) do I still have the right to a court date;
2) do you set court dates over the phone (they do);
3) what is the citation number that you claim I owe for; and
4) are you sitting in a US or foreign cubicle?

But don’t accept what they tell you as true. The best way to deal with a collections case is to go to the court clerks office in person and ask for a court appearance. Get there early - 8 am is the best at most courts. Calling the court clerk and asking if you can have a court date is also a good way to double check the info the collection agency gives you.

It is important to note that some courts will transfer a citation to the Franchise Tax Board for collection. That is a different path altogether, and the above does not apply to the Franchise Tax Board cases. We’ll have more on that in a later posting.

For more information on how using professional help rather than paying the collection agency makes sense, Get a Free Case Review from Traffic Court Pros.com.

Related Articles:  Kangaroo Court? No Consistency in How Traffic Courts Deal with Old Tickets |  How to Fight a Civil Asessment

What Happens If You Get Into An Accident Without Insurance in California?

Auto Insurance? We don’t need no stinking auto insurance! Right? Wrong.

Aside from the danger of getting a very expense ticket (about $1200), there are other real dangers for driving without insurance - including the fact that your life can be ruined in an instant if you are unlucky enough to get into an accident without insurance, even if its not your fault.

Danger #1: Big Fine

Every person with a California Drivers License is required to have auto liability insurance to comply with the Auto Financial Responsibility Law officially known as Vehicle Code section 16028.

Section 16028 also requires drivers to carry proof of liability insurance with them at all times while driving. A driver who has insurance, but fails to carry proof with them is actually in violation of the law and faces a fine of about $1200. Although many judges will give people a break if they show up in court with proof of insurance that covers the date of the incident, the judge is not required to do so. Some Judges are hard asses, and will give no one a break.

Danger #2: Drivers License Suspended Automatically for 6 Months

When a person gets into an auto accident with damages more than $500 (just about every accident), they are required by law to notify the Department of Motor Vehicles of the accident within 10 days, regardless of whose fault it was. DMV has a standard form for these notices, and it requires the driver to tell DMV their insurance policy number. DMV then uses the form to contact the insurance company and verify that there was a valid policy.

If the DMV cannot verify the insurance, (or if there is no report), there is an automatic Drivers License Suspension for 6 months that cannot be challenged. The suspension applies regardless of who was at fault for the collision.

Many people get caught up in this 6 month suspension because although they think that they have proof of insurance, when the DMV goes to the insurance company to verify it, they discover the policy was canceled for a failure to pay. Just having the paper is not good enough. The policy must be valid or the drivers license is suspended.

People caught driving on a suspended license face criminal charges (Vehicle Code section 14601.1), 2 points on their driving record (same as a DUI), arrest, and impoundment of the car for 30 days.

Danger #3: No One Will Help You If You Injure Someone and Get Sued:

Auto Accidents that result in injuries often produce lawsuits. Whoever is injured will normally sue the other driver (and any other owners of the car) for damages in court, including:

1) medical bills, 2) pain and suffering, 3) lost wages; 4) loss of enjoyment of life; 5) property damages, etc.

Even in a small accident, these “Damages” can be thousands or tens of thousands of dollars. If you lose one of these lawsuits, the court will issue a judgment that may be executed against your bank accounts, your wages (current and future), your house, and even your personal property way in the future.

When you buy an auto insurance policy, you get 2 very valuable protections against this problem that most people do not understand. They are called:

1) Defense and 2) Indemnification.

These protections become very important if you are unlucky enough to be at fault in an accident.

“What? What does that mean? I thought that insurance means they pay for my damage?”

A. Indemnification.

“Indemnification” means that the insurance company is required to pay for any damages you are responsible for up to the policy limits if the court says you must pay. That is what “Indemnification” means. The insurance company must pay for the damages the law says you are responsible for.

But if the damages exceed the policy limits, then you have to pay out of your own pocket. This is why policy limits are important.

If you do not have this indemnification protection from auto insurance, and the court says you must pay, you will have to pay out of your own pocket, even if it takes 20 years. And worse yet, if an injured person gets a judgment against you for an auto accident, the Dept. of Motor Vehicles will suspend your drivers license until the entire bill is completely paid off, even if it takes 20 years.

B. Defense Protection (Insurance Defense Attorneys).

If you get sued because of an auto accident for personal injuries, you will need help. There will be lawyers working very hard to make sure their damages are as high as possible, and to make sure they find all of your assets and money to collect. A person not trained as a trial attorney trying to deal with this alone has no chance of stopping the train. It will run you over.

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And if you have to hire a defense attorney to protect you from an auto accident lawsuit, they are going to charge you by the hour. A normal hourly rate for a defense attorney would be $150-200 per hour. And if the case drags on for 3 years (like one I have now) it would be a necessary expense that would completely bankrupt most people.

But if you have auto liability insurance, the worries are over from the start. The law requires the insurance company to hire defense attorneys for you, and pay for them.

That’s right - the insurance company would have to hire attorneys to defend you, even if the accident was your fault. Even better, the insurance company must pay for them until the end of the case, even if it takes 3 years. And these defense costs are not deducted from the policy limits. There is essentially no limit on how much the insurance company must pay to defend you in a law suit.

Bottom line here is that Auto Insurance is prepaid legal fees for personal injury lawsuits against you. And when you understand that, you understand that the cost of auto insurance is always, always worth the money.

Danger #4: You Cannot Get Paid If Someone Injures YOU, Unless You Have Insurance.

Even if some rear ends you at 90 mph and paralyzes you, you cannot get paid for your pain and suffering, nor lost wages if you did not have valid insurance at the time of the accident.

This is because Prop 213, also known as California Civil Code Section 3333.4 restricts drivers injured in a motor vehicle accident from recovering non-economic losses for compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages if the injured person was not insured at the time of the accident.

It’s really a cruel law in my opinion, but if you are injured without insurance, you are on your own.

So even if the accident was not your fault, but in an instant you are severely injured, a failure to simply buy auto insurance as the law requires can ruin your life and bankrupt you and your family.

I hate to be so blunt about it, but in the opinion of this trial attorney, Auto Insurance is always, always, worth the money. When you buy auto insurance you are not only complying with the law, but you are paying someone else to take a risk that you cannot afford.

If you have those moments (like we all do nowadays) where you say to yourself “I cannot afford auto insurance” - take a deep breath and think for a second. In reality, you cannot afford to not have it. A lack of auto insurance can ruin your life in seconds.

Questions? Leave a comment, we try to answer them all.

Injured in an auto accident? Give me a call or email (800) 256-5983 or cdort@dortlaw.com. I accept personal injury cases with no fees unless you get paid.

-Attorney Christopher Dort

Don’t Be A Lohan! Avoid the 4 Mistakes That Sent Lindsay to Jail.

This morning a zombie looking Lindsay Lohan showed up late at the Beverly Hills Courthouse to surrender for a 90 day jail sentence after a classic DUI probation violation hearing went bad.  The problem?

She missed, and made up 7 substance abuse classes that were ordered as part of her probation.  Lohan thought it was OK because she made up the classes, and thought she had a good excuse for missing a court date - a stolen passport.  But she was wrong.

Instant Complete Warrant Search

As an experienced trial attorney studying the case, I was not surprised. Lohan’s sentence was easily expected if you understand the mistakes she made.  Here is a description of Lohan’s mistakes, and how to avoid them if you are facing a DUI probation violation.

First, it is important to understand how probation works.  Probation is a privilege that is given to most first time misdemeanor defendants.  It is a substitute for jail time.  And at its heart, probation is a list of court orders, that must be followed to avoid jail time.  This list of court orders that come with probation are called Terms of Probation.  In California, common terms of DUI probation include:  1) pay a fine; 2) complete substance abuse classes; 3) do time with the Sheriff’s work program; and most importantly 4) Obey all laws.

Violating any of these terms can have the following results; 1) Probation gets revoked (taken away); 2) court issues an arrest warrant; 3) Defendant gets re-sentenced on the original charge to jail time;  4) Defendant gets charged with one or more probation violations, which have independent consequences; and 5) Defendant gets disqualified from the possibility of an expungement in the future.

Usually in probation violation cases, such as a failure to a complete the classes, the goals for a Defense Attorney try to solve the problem are as follows:  1) get the warrant recalled; 2) get probation reinstated on the original terms; and 3) avoid admitting a probation violation if possible.

When I handle these DUI probation violation cases, I usually just try to talk the judge into reinstating probation.  If you can talk the judge into it, it all works out fine.  But mistakes, or signs that the Defendant does not respect the power of the court can interfere with the chances of a good outcome.

Here are the mistakes Lindsay Lohan made that resulted in jail time, and the mistakes you should avoid.

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Mistake #1. Do Not Under Estimate the Severity of the Problem.

Denial is a common trait of people with DUI probation problems. “I’ll deal with it later”, or “I don’t have the money now” and “I can’t do the work program because I have to work” are common excuses I hear every day when I check comments on this blog. But they are useless excuses.

All of these excuses have one common trait - a failure to understand that a judge can re-sentence a DUI convict from scratch one probation is violated.  Probation is a privilege - a gift from the court, not a right.  Once this gift has been blown, whether by failing to pay a fine or by failing to complete classes, probation gets revoked completely, and the judge can impose a new sentence.

When a judge deals with a probation violation problem, they usually view it as a refusal to obey their direct orders. And when a judge feels that a defendant is not willing to obey court orders, bad things happen.

Mistake #2: Do Not Miss a Court Date or Show Up Late

All DUI probation violations require a court appearance to solve, because once probation is violated, it gets automatically revoked. If you miss your classes, or fail to show on time for the Sheriff’s work program, you cannot just reschedule.  Those are terms of probation, and if probation is revoked, those terms are no longer relevant.  The first step is getting the warrant recalled and probation reinstated. Then classes can be rescheduled, or new deadlines set.

Usually more than one court appearance is required. And if you get there the day after the violation problem, there is a great chance you can get probation reset easily. But if you wait a year, or if the court tells you to come back and report and you don’t show up - bad things happen.  Remember, the judge is going to view a probation violation as a disobeying of a court order. Dont make it worse by not showing up.

Lindsay Lohan made this big mistake by missing a review date on the violation.  She claimed that she was in France, and some one stole her passport.  There was much debate in the press as to whether or not the story was true.  But the truth is it did not matter if the story was true or not.  Even if the passport was stolen, that is not a valid excuse for missing court.  As one judge once told me: “The only excuse I will except for a missed court date is your death.”

And she was also late for 2 court appearances, including her jail surrender date.  Dumb, Dumb, Dumb.

Instant Complete Warrant Search

Mistake #3:  Don’t Think That a Slight Variation of the Court’s Orders Will Be OK.

If the court orders you to do one class a week, that is what must be done.  You cannot expect to miss a class, then make it up, and expect the court to approve.

If the court orders you to pay $100 a month, and you pay $99 one month because you had to pay rent first, it is not going to be OK.  Poverty is not a defense to a probation violation.  And as Lindsay’s case proved “Substantial Compliance” is not acceptable. Complete compliance is required. She missed 7 classes and made them up later, but that trick did not work.

Mistake #4:  If You Are Guilty of the Violation, Don’t Waste the Court’s Time and Resources by Fighting It.

Defendants who are charged with a probation violation have the right to a hearing to determine if it is true or not.  But the burden of proof to establish a probation violation is very low.  It is much lower than the standard of “Beyond Reasonable Doubt” that applies for the start of a criminal case.  This lower standard of proof means that a Defendant trying to fight a probation violation is facing an uphill battle - especially if there is documentation of the violation.

In Lohan’s case, she fought the probation violation through a hearing despite the fact that there was irrefutable documentation that she missed the classes and did not comply with the court’s order to attend one class a week.  She was screwed from the beginning, and the judge knew.  Worse yet, she wasted the court’s time and money at a time when they are laying off court staff and cutting back services due to lack of money.  In my opinion, this fact was a contributing factor to the severity of her sentence.

Generally, if there is a clear violation as there was in Lindsay’s case, the best option is to communicate to the judge that you realize it is a problem, and that you want to correct. Demonstrate a good faith effort to comply, and ask the judge for a second chance.  Most people do get a second chance.  Denying a clear violation is just plain dumb.

Bottom Line:

The bottom line is that if you are granted probation, you should view it as a gift from the court. Make sure you are clear about what has to be done, and make compliance your #1 priority in life - above paying rent, above paying the cable bill, and yes, above showing up at work.

Yes, complying with probation is more important than your job, because without probation, there is no job.

Defendants who do not follow this bottom line rule will have an expereince similar to Lindsay’s.

-Attorney Christopher Dort

Warrant or Probation Violation on a DUI Case?  email me or get a Free Attorney Case Review at:  www.trafficcourtpros.com

Questions?  Leave a Comment and we will try to respond.

Can’t Pay Your Fine? Try a Penal Code 1385 Motion to Dismiss.

If you are going to court without any defense, and you need an argument to get your misdemeanor or traffic court case dismissed, use California Penal Code section 1385. No mater what the facts are, a defendant can ask a judge to dismiss a case or suspend a fine in the “Interests of Justice” using PC 1385.

Penal Code section 1385 is the law that allows a judge to use discretionary power to make a fair ruling.  It is a way to ask the judge for what is technically called “Equitable Relief”.  Lawyers use a PC 1385 request or “Motion”, to get rid of traffic citations, misdemeanor cases, and even felony strike charges.  It is a common motion - or request to the judge.

And get this:  We made an EZ Form for the Motion! Here is how it works:

California Penal Code section 1385 states:

(a) The judge or magistrate may, either of his or her own
motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.  The reasons
for the dismissal must be set forth in an order entered upon the
minutes. 

This statute allows a Judge to dismiss a case “in the interests of justice”, but the statute does not describe what factors qualify as “the interests of justice”.  It’s a very subjective standard, and this means if you can talk the judge into a PC 1385 dismissal, it will work.

Just talk the judge into it.  That’s all you have to do.

A Penal Code section 1385 dismissal is most often used to get rid of overlapping charges, charges that just don’t make sense, or as in one example we recently observed - when a defendant is on active military duty and shipping to a combat zone.

A defendant can make a section 1385 request for a dismissal, or even to delete or suspend a fine, verbally or in writing.

Technically, the statute does not allow a Defendant to make the motion.  It states the judge or the prosecuting attorney can make the motion.  But nearly all judges in real courtrooms will listen to a request.

[Practice Tip: If you run into a judge that gives you a hard time, you can make a motion for the judge to make a PC1385 Motion.]

You can make a 1385 motion orally at a court date by telling the judge:

Your honor, I’d like to ask for a Motion for dismissal in the interests of justice under Penal Code 1385 for the following reasons: [insert reasons].

But you should do it in writing and verbally.  I strongly recommend that you use the Penal Code section 1385 Motion form I created for Self Help Use. But you can write your own motion if you wish.

You can download the fillable “.pdf” Motion Form with Instructions now for $19.99 at my www.DortLaw.com Legal Forms Store:

http://store.payloadz.com/go?id=826938

A Penal Code section 1385 motion will not always work, but it will give you an argument when there is nothing else to hang your coat on.  It works great when there is a special circumstance or unique hardship you can point out. Death, loss of job, successful drug recovery, etc.

It can be done - should be done - in just about every traffic or criminal case and on top of what ever other arguments you have.

-Christopher Dort, Esq.

Questions? Email info@dortlaw.com

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