What is a Public Defender? Here is what you need to know.

Later, the Supreme Court further explained that this right also required the government to provide a Defense Attorney, at the public’s expense, for defendants who could not afford an Attorney.  Eventually - and this is an interesting reflection on American Society - the court ruled that the Attorney had to be “competent” and stay awake during a trial.

The theory behind this right is that an everyday person accused of a crime has no chance against a skilled and highly trained prosecutor without a defense Attorney to ensure the process is fair, and the evidence reliable.

Yes, somewhere in history, our ancestors learned that prosecutors are not always right, honest and fair. The right to an Attorney at public expense for the poor is a uniquely American counter balance to that problem.

Now, the right to an Attorney for the poor has detailed rules.  Today in California, a Defendant has a right to a court appointed defense Attorney if:

1) charged with a misdemeanor or felony (includes DUI charges, but not traffic infractions); and

2) qualify as “indigent” under the current guidelines set by the county or local where the case is being heard.

When a Defendant meets these qualifications, the court must appoint a Defense Attorney at little or no cost to help the Defendant.

Are Public Defenders Real Defense Attorneys?

You bet. In most counties, there is a separate county division called the Office of the Public Defender, which is the collection of Attorneys hired by the county to act as the court appointed defense counsel for the poor or “indigent”. These attorneys are known as “Public Defenders”.

All Public Defenders are licensed by the State Bar of California to practice criminal defense law.  In fact, often, they are the best criminal defense trial attorneys around. This is due to the fact that they work every courtroom every day, they how their judges are likely to rule, and they know what to expect from the local juries. It is true that many young lawyers start their trial careers with a Public Defenders Office, but the reason for this is more often due to the excellent training available to new Public Defenders, than to the new commers’ inability to get a higher paying job.

Are Public Defenders Available To Everyone Who Asks for One?

No. You must first apply for a Public Defender in court and then qualify as “indigent” under the county’s rules. Generally, if an accused, or the family of the accused, can come up with the money for a private attorney, the accused will not qualify for a public defender. An unwillingness to borrow money for an Attorney, or to sell an asset such as a car does not make one “indigent”.  Generally the courts require that a defendant must have no access to resources for a private Attorney before the qualify for a Public Defender.

Are Public Defenders Free?

No. Almost all California Counties now charge a minimum fee for use of a Public Defender. And many counties now will charge the accused for the services of the public defender on a sliding scale based upon a person’s income, and the court will enforce payment of the bill.

Serious penalties apply to those who try to mislead the court about their ability to pay for a public defender.

How Do You Apply For a Public Defender?

You must appear in court on your assigned court day, and inform the judge that you want to request the help of a public defender. This problem is one giant disadvantage for people accused of Driving under the influence (Vehicle Code section 23152) because it means they do not get help prior to their court date.  And in DUI cases, there is a lot to do prior to a court date.  For example, a person arrested for a DUI offense in CA only has 10 days to schedule a DUI hearing to protect their drivers license, and a Public Defender’s help comes too late for that deadline.  And worse yet for the DUI defendant, the Public Defender will not help with DMV hearings at all.

Practice Tips:

In most traffic citation cases, a Public Defender is not available, because the Defendant is not charged with a misdemeanor or more serious crime.

Public Defenders have limitations.

Public Defenders are generally a great value for those who qualify.  However, they do have limitations that private Attorneys do not have.

One of the downsides of requesting a Public Defender is that you have to go to court to request one, and you may not get one you like.  In most misdemeanor cases, a private defense attorney can go to court for you, and you can always hire the one that works best with you.

Public Defenders are also generally assigned to deal with one case for a Defendant.  If the Defendant has several cases in different courts, a different Attorney may be appointed on each, making coordinating the defenses difficult.

Public Defenders will not assist with issues outside of the courtroom, such as DMV hearings (important in DUI cases), and generally will not talk to defendants or provide consultations prior to being appointed in court.  For defendants with outstanding warrants, this means it is unlikely that a Public Defender can help before getting arrested on the warrant.

A person who wishes to discuss a case with a Public Defender prior to appearing in court should call the Public Defenders Office in their county to see if a pre court consultations is possible.

My advice is you are not sure if you qualify for a public defender?  Shop around for a private attorney first, and find out how they can help more, and faster than a public defender.

-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.

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

Questions? Leave a Comment. We try to answer them all.

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

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Why Does Linday Lohan Have a New Lawyer? Because He Will Take the Money.

Opinion.  Yes, this is straight up opinion.  Unfounded, unsubstantiated, but dying to be said by Attorneys all over LA afraid to say it.

Lindsay Lohan has hired a new Attorney from Chicago to try to help her stay out of jail after being sentenced to 90 days consecutive on 3 probation violation cases.  Reports today suggested, sadly, that Lindsay had to call the attorney herself.

What happened to the California Attorney?  Isnt the case over?  Why a Chicago Lawyer?  Why not get him first off, before you got sentenced?

I am really only writing this article, because I have been there in Beverly Hills Courthouse, and seen this problem a hundred times.  I have been to the Beverly Hills Courthouse, been hired by idiot camera men who crashed their sports car on Hwy 1 just court side of malibu beach while DUI. (Hey shit head - you still over me $2K).

Anyway, I started my career as a public defender legal clerk in Santa Cruz County. While there, I saw everything.  Murder, the Lompico Cook Out (yea, look that shit up if you have the guts), and then there was my first case  - the turkey fucker.  Yes, there is a police report out there in the world of a poor sac who got caught phucking a Turkey in a bank parking lot late at night in Santa Cruz County.  A Bank Parking Lot Late at Night?  Yes, it’s real.

It was not my first case, really, but I read the police report as I waited in the Law Library for my first case. Shocking, really.

Anyway, 2 years later, I was assigned to courtroom #1 in Santa Cruz County.  Every morning, 8:15 a.m. No Chit, courtroom #1. It was misdemeanor arraignments.

One day, after I worked there for several months, Commissioner Charlet Cloud had to swear me in as a legit member of the California State Bar Association before court started.  I still have the transcript.

Since that day, I have handled hundreds of cases just like Lohan’s case. And I can tell you this, she got the standard sentence.  There is nothing she can do about it, and if she has seen those photos of her fingernails, she should just chut the phuck up and do the time.

But she did hire a new lawyer from Chicago to help her do something.  What can he do?  Short answer - nothing.  He can take her money, but that is about it.

Why a Chicago Laywer?  Answer = Because every California Lawyer would say, “You’re screwed, there is nothing that can be done.”

If you really knew how the court system works as an attorney, you cannot give this woman false hope.  There is no remedy for the sentence.

This may be too much, but I say that there is no hope for the following reasons:

1) SHE VIOLATED HER PROBATION!!!!!

2) the sentence was withing the legal range, and there is no review available.

3) It can get worse if the prosecution wants to appeal the ankle bracelet problem; and

4) It’s not the judge’s fault your freedom is going away, it is your own fault.

I have seen many, many client who do not understand when they have screwed up.  It’s the ones who recognize the problem and deal with it that get good results.

In my opinion, the reasons Lindsay Lohan hired a Chicago Attorney was because he was the only one who would take the money.

What can the new attorney do?  Well, actually there are some actions that are possible.

Lindsay can file a write for habeous corpus in the Federal Court of Appeal, alleging that the sentence was “Unconstitutionally Cruel and Unusual”, and she can argue  . . . . .. . . . . .. .

Ogh.  Geez. . . . I have to puke.  Just take the money from that fool and run, Dude. Get the money up front if you are going to do it, because there is nothing to do.

By the way, the last time I tried to appeal a probation violation with a Writ to the Federal Court, I got a post card back saying that my Writ petition had been denied -

THE SAME DAY I SENT IT!!!!!!!!!!!!!!

Yea, go figure that one out.

Small Town, or no resources for appeal on misdemeanors?

Good luck Lindsay, please pay in cash.

Lindsay Lohan Gets Hammered on DUI Probation Violations

Trial of the Century, so far.  The Accused: a child movie star, on probation for 3 criminal cases, 2 of them DUIs within a month of each other, both involving cocaine.

The Defense: “I was thinking that it was OK that I missed those classes. . . “

All of the main players were women.  The judge was a woman, the prosecutor was a woman, so was the bailiff, so was the defense attorney, so was the  . . . . wait, were there any men there at all?

Lohan herself drew pictures on a note pad while documents were presented. She didn’t even notice when the judge gave her a giant break by dismissing the allegations that she tampered with her alcohol detecting ankle bracelet.The prosecutor claimed she had proof Lohan violated probation by drinking alcohol, and by tampering with the bracelet.  The judge called it a “bail violation” and ignored it.

Lohan wore pink and blue fingernail polish.  One of her finger nails had writing: “fuck u”. No wait - UPDATE - she had it on both hands.

Yes, the judge gave her a huge break to start the game.  I guess she didn’t notice the nail polish.  Remaining Charges = failure to complete substance abuse classes as ordered by the court after her first, second and third arrest (Vehicle Code section 23152, Health and Safety Code sec 11550, etc.).  Generalized probation violations (plural).

The judge previously ordered Lohan to attend one session of treatment a week, no excuses. And she missed a few.  Then she missed a court date.  Then she was late for another court date. Then . . .

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First line of Defense:

Defense Attorney: “You cannot have the treatment records because they are protected by the Doctor/Patient Privilege.”

Judge: “What? these people are not doctors!”, said the judge. You have to tell the court what happened or she goes to jail now.

Second line of Defense:

DUI / DRUG Program personnel cannot testify because they do not want to incriminate themselves.  They are evoking their 5th Amendment Rights to not testify against themselves.

“WHAT?” asked the judge.  That does not make any sense at all - “unless you lied” on the documents.

Suddenly, the witnesses are gone, nowhere to be found.  Will anyone testify against Lindsay????? She did have a “Letter of Compliance” from the center.  It was a family owned treatment center.  Was that enough? Why are we here?

Well, this ain’t the Jimmy Hoffa trial. This ain’t the Ray Lewis trial. This aint the OJ Trial. That’s not Johnny Cochran   (quoth the audience). But it is the trial of the century.  Does she get it, or what?

Does who get it? Does the judge get it? Does Lindsay Get It? Does the judge get it and give it to Lindsay even though Lindsay doesn’t get it, in a kinda ‘Gotta get it, put it in you’ sort of way?

Everyone watching the live TV Feed from the courtroom could tell this judge is pissed off and knows that she is on live TV.

So, no, the “letter” is not going to work. This is not Judge Ito. And the witnesses are not really dead.

Judge has a solution =

Maybe there is no evidence of compliance at all?  What about that idea? Lohan was ordered to complete one class a week.  Did she do it or not?  Do you have the proof or not?  This letter looks like unreliable hearsay.  Do you have a witness right now or not, Ms. Lohan?????

Oh wait - Surprise! Here they are judge.  There are witnesses to prove she did the classes.  Yeap.  Here they are.  Well, there is one.  And we need time to copy hundreds of pages of crap to prove that there is nothing to prove.  We are in substantial compliance with the court’s order. We just need to make copies.  There is nothing bad to hide.  Did the judge read the letter?  Come on! She did most of the classes.  She did one yesterday. . . Why are we here?

In a real probation violation case in Los Angeles County, the burden of proof is much lower than at the beginning of a criminal case.  It is easy to get convicted of a probation violation, especially if there are attendance records.

The reason is that once you have been convicted, you have lost most of your rights, including the right to freedom. If the court gives you the gift of probation, and it does not work out, the court does not really need to convict you again.  The case is already over, you just need to complete a sentence.  A judge can just re-sentence a person who blows probation starting from scratch.

Probation is a privilege that prevents jail time.  But probation is not a right.  Probation comes and goes with the order of the sentencing judge.

1:30 pm, lunch is over at the Beverly Hills Courthouse.  The judge has had a whole hour to think about what to do.  Maybe she mulled over the options over her Trader Joe’s Greek Salad.  She can see the Beverly Towers from her office, and wonders if she can see Lohan’s apartment.

(I made that up). Bring on the witnesses.

Witness #1 in summary:

Yes, Judge ordered once a week treatment.  No excuses. Judge called treatment center Manager via telephone in person to give order.  Manager:  “I did receive the order on the telephone . . . but not on paper. . . I thought I would get a paper order”.

How many court ordered classes did Lohan miss? Answer: “9″. Did the treatment center notify the court? “No.”

OMG.  WTF. FUBAR. FRED. Can we get some popcorn here? Whacha gotta say bout dat?

9 is an unlucky number. Note to self:  “Sometimes it is better to just admit a probation violation.” Thought to self:  Lohan could have gotten 30 days by admitting violations early.  Could have gotten zero days if she realized probation should have been the #1 priority in her life.  OUCH.

Prosecutor adds:   How many missed court dates? Answer = 2. OUCH.

Finally, at about 3 pm, the judge found that there was sufficient evidence that Lohan missed at least one required class. That is all it took, one missed class.  Violation.com.   It did not matter how many she missed.  She blew the gift of probation into the wind like Colombian fairy dust.  Lohan missed 9 court ordered DUI classes - now the government is going to get that time back with interest.

In the end, it was a classic Los Angeles DUI probation violation case.  Lohan got what any defendant in the same situation would get. But most defendants do not fight a probation violation through a hearing like this, because it is a waste of time and money.

Who has the money to pay a lawyer to sit there and try to deal with a treatment center’s attendance records and the judge’s anger?  Answer: Celebrity in complete denial.

Lohan was on probation for 3 cases.  Reckless Driving, 2007 DUI, then 59 days later, another DUI.  Oh yea.  There was cocaine, and some chasing of people, and car crashes. General coke induced craziness on the streets of LA.

The judge took the facts of all three pending cases under consideration to determine sentencing. The Judge noted:  “These facts are very very, .. very aggravating”.

What did Lohan really say to the judge when she had a chance?

“I was thinking that it was OK. . . . ”

It is a good thing she had a defense attorney, and did not talk until the end. She claimed the program allowed her to miss classes - and she thought that was OK.  She has to work. Work is important.

When Lohan did get a chance to speak to the judge, it was a moving performance.  There were tears, dripping eye make up, straggled hair. “I was just trying to balance court and work”. “I have to provide for myself.” She didn’t seem to realize that just about everyone on probation has to work and provide for themselves.  The judge had heard that one before, usually from people with far less resources.

Ultimately, the Judge gave Lohan a probation violation sentence for each of the three cases - 30 days county jail for each case consecutive, 90 days total. And after she is released, she must enroll in and attend 90 days inhouse drug treatment immediately jail. 9 is an unlucky number.

The county jail in Beverly Hills is in the Los Angeles County Jail. OUCH.

Moral of the story:

Lohan did not take probation seriously and got hammered.  She thought her work was more important than following the court’s orders regarding her DUI classes.  And she made the common mistake of believing that she did nothing wrong after she had in fact violated probation.  Then she fought it though a hearing without admitting guilt, and gave the judge a chance on live TV to make an example of her.

For most people, it never goes this far, because if it goes bad, this is what happens.  Take DUI probation seriously.  If you miss classes, fail to pay a fine, or miss your jail surrender date, get on the problem immediately. Hire an attorney to help clear warrants, and get probation back on track.  Every day matters. Getting on top of DUI warrant and probation violations before the court drags you in can greatly increase the likelihood of a good result.

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Miss 9 class and get 90 days in LA County Jail? It happens even if you have money. . .

Some attorney estimates say that she will actually serve 30% of the actual sentence, but that is a long time in the LA County Jail - at least for a movie star.

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For More Info on Dealing with DUI Warrants and Probation Violations, see www.trafficcourtblog.com

LAPD Announces DUI Checkpoints For July 4th Weekend on Blog

The Los Angeles PD has announced DUI Checkpoints at the following locations and times.  There may be others announced, so check the LAPD’s Blog Site for more details.

Friday July 2: Cahuenga Boulevard & Broadlawn Dr, North Hollywood, 6:00p.m. - 1:00a.m. (DUI Checkpoint)

Saturday July 3: Florence Ave between Broadway & Main St, Los Angeles, 6:00p.m. - 1:00a.m. (Sobriety and Drivers License Checkpoint).

Or better yet - DONT DRINK AND DRIVE AT ALL!

Well, aside from that, there are completely legitimate reasons for avoiding a DUI checkpoint.  For example, you may not want the delay, flashing lights in your face, instant accusation and people with loaded guns staring at you.

Brought to you by:

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What is the Sentence for a First Offense DUI in California?

Most persons convicted of a first offense driving under the influence misdemeanor (DUI) in California court get the same or similar sentences.  I have handled literally hundreds of DUI cases in dozens of California criminal justice courthouses, and this is my detailed update on real first offense DUI sentences as of July 2010.

But if the defendant is willing to plead guilty to one of the Vehicle 23152 charges (known as the “a” or the “b” counts), the prosecutor will generally dismiss one, and the defendant gets sentenced for a single misdemeanor count (rather than 2). It’s a common plea agreement at the first court date - dismiss one charge, Defendant pleads guilty to the other.

In some courts, the defendant without an attorney who pleads guilty will get screwed and convicted of both misdemeanors, but it rarely makes any difference in the sentence.

Technically, the law states that a violation of either VC 23152(a) or VC23152(b) can result in a maximum jail sentence of 1 year in the county jail and a fine of $1500++++.  But that is rare.

The most common sentence is as follows (yes, I have it memorized):

30 day jail sentence that is suspended and not carried out so long as the defendant completes 3 years of Summary Probation with the following terms and conditions:

1) Serve 4-10 days jail time with a recommendation from the judge that this time be converted to a Sheriff’s Community Work Program service if the defendant qualifies (no violent history, etc); every court has a different name for this aspect of probation.

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2) enroll in and complete a First Offender DUI substance abuse counseling program as authorized by the state legislature (known an AB548 program - usually 12 weeks);

3) pay a fine usually totaling $2400 once court costs and assessments are added;

4) obey all laws and do not drive without valid license and insurance.

If any of the probation terms are violated, the suspended sentence is imposed, and there may be separate penalties for the probation violation itself.

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OTHER FACTORS THAT MAY AFFECT DUI SENTENCING:

Keep in mind the above description is a general listing of what most first offenders get.  But there are many factors that can increase the sentence, such as:

1) a high blood alcohol content; 2) prior convictions; 3) having minors in the car; and 4) a collision (regardless of whether or not a person was hurt).  There are other aggravating factors not listed here.

IGNITION INTERLOCK DEVICE REQUIRED IN SACRAMENTO, LOS ANGELES, and ALAMEDA COUNTIES

Beginning July 1, 2010, a new takes affect that requires a first time DUI defendant to install an alcohol detecting interlock device on any car they own or have access to .  This program is brand new, and is being tested in 4 counties - Sacramento, Tulare, LA and Alameda.

DRIVERS LICENSE SUSPENSION HANDLED BY DMV INDEPENDENTLY

Recently the law has changed in regards to what happens to a Drivers License after a DUI arrest. Presently, at teh time of the arrest, the arresting officer takes possession of the drivers license and issues a DMV notice of suspension in 10 days.  The driver then has 10 days to request a hearing to challenge the suspension with DMV administrative officers.  The court does not take action against the drivers license.  It all happens with DMV.

GET AN INDICATED SENTENCE IF YOU ARE NOT SURE

If you want the judge to tell you what your sentence will be before you decide whether to plead guilty or not guilty, ask for an “indicated sentence” before entering a plea.

If you are not sure if you are technically guilty and may have a defense, get an attorney to help.  There are lots of defenses to DUI charges, and there are inherent error rates in testing machines that may affect the reliability of a test result.

An attorney can give you detailed advice about your case and the evidence, and in DUI cases can go to court for you while you go about your life.

** this is only a guide for general information, and not meant to be a prediction on your case.

Questions? send me an email at dort@dortlaw.com

If you were arrested and want a free case review to find out what your options are, request one at www.trafficcourtpros.com/casereview.

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DUI Penalties Get Harsher in CA Starting July 1, 2010 (Veh Code 23152)

California’s DUI laws are getting tougher, and driving under the influence convictions are getting more painful.

These devices are intended to stop DUI offenders from driving again with any alcohol in their blood (or on their breath).  But if they work, why isn’t the law applicable to all California Counties?  Because there will be problems.  Here are the details form my point of view.

On July 1, 2010, a new vehicle code section will become effective in Sacramento, Los Angeles, Turlare and . . . . what was that other county?  Oh yah, Alameda County.  Tulare?  Where the hell is that??

Anyway, the new law is called Vehicle Code 23700 - and it states that all persons convicted of a DUI offense must install an ignition interlock device on any car they own, drive or have access to before they can get a restricted drivers license or have a drivers license reinstated.  The duration for which the driver must have the device varies depending on whether it is a first offense or multiple offense.  First time offenders must install the device for at least 4 months.

The new law states that if there is any kind of violation of the requirement - such as an attempt to remove the device, or failure to show up for required maintenance checks (and result checking), the term of the ignition interlock device can be restarted from day 1.

Technically, the Department of Motor Vehicles is in charge of the Interlock program’s requirements and verification.  But it is very likely that the courts will also make the installation of the device a required term of probation. If the device is ordered as part of probation, and there is a problem such as tampering or failure to install the device on time, the court can revoke probation and re sentence the defendant to jail instead of probation.  Probation is a privilege, and not a right, and a failure to comply with the court’s probation orders can result in jail time.

Defendants who are offered probation with restrictive terms do have the right to decline probation and elect jail time instead.  It’s rare, but possible.  A denial of probation will not affect the Ignition Interlock requirements, because Vehicle Code section 23700 states that DMV must require the device (in the 4 pilot counties) before a drivers license can be reinstated.

There is a way to be exempted from the ignition interlock device requirement, but it basically amounts to not driving or owning a car at all.  If you do not own, drive or have access to a vehicle, you can apply with DMV for the exemption.  But the law seems to contradict itself somewhat because a DUI convict cannot get a drivers license at all without installing the device.  So what if you want a drivers license for all those idiots at clubs and grocery stores who think that a drivers license is a proper form of identification? (I once had a grocery clerk refuse to accept a passport as identification for beer because she said I needed a drivers license to buy beer. Craziness!).  Good luck with that one.

If you are interested in an exemption or reduced fee due to poverty, please read the law to see what documentation must be presented.

Who pays for the device and installation?  Ha ha.  The Defendant of course.  The cost of the alcohol detection device is estimated at $800-$2000.

When this new cost is added to the existing costs of a DUI conviction (not including legal fees), I estimate that a DUI conviction will cost the defendant more than $12,000 over the long term. But there are provisions in the law that makes the interlock device somewhat cheaper for people who can prove they fall below the Federal Poverty Line. (See Veh. Code 23700(b).)

However, from my point of view - the provision for a reduced fee for people who can prove they are in poverty is a major defect in the law that will  eventually change.  I say this because the law actually requires the manufacturer of the device to “absorb” the loss associated with reducing the price for those below the poverty line, and it also restricts the amount of money the manufacturer can charge.

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And that fact presents a very strong DIS-incentive for the private business people who make the devices to do business in California at all. The end result in my expectation will be that DUI defendants will have great difficulty finding a interlock device manufacturer / installer willing to do business in CA - because the vast majority of DUI defendants are broke and/or will lose their employment after a DUI arrest.  Where is the manufacturer going to find DUI defendants that will pay enough to give them a positive return on their investment? If you want a business to provide a service in your state, you can’t restrict the prices they charge and expect it to work out fine.

- C. Dort

http://www.dortlaw.com

Questions?  Post a comment - we try to answer them all.

DUI Problem?  Attorney Christopher Dort offers free DUI expungement services for DUI clients that hire him and complete probation without violations. For details and a free attorney case review for a DUI case in any of these pilot program, contact cdort@dortlaw.com.

Ordered to Install an Ignition Interlock Device? Here is How They Work

Handling a driving under the influence case is a very scary and stressful process. Court dates, fear or jail, and then confusing probation terms can wear anyone out.

This is especially true when the judge orders you to get an alcohol decting ignition interlock device. How do you get one? How does this thing even work? Here is some help.

In many states, people convicted of a DUI / DWI will be required to install an alcohol detection “interlock device” on any car they own or operate as a term of probation.  The device is designed to prevent use of the vehicle if the driver has alcohol in his/her blood.

Many auto shops carry court approved interlocks and install them for you. And the court will make a suggestion on where you should go to get it installed.  In most places that sell and install interlock devices, you can just hand the technician your paperwork and they set up the device for you.

Once installed, an ignition interlock uses fuel-cell sensor technology to measure the alcohol in your system and uses specialized computer software to record the measurements.

Most alcohol detection interlocks are no bigger than a cellphone. The interlock is installed into the steering column of your car and it looks like any other device you would plug in your car (iPod, cellphone, etc.)

In order to start your car, you must blow into the device.  If the device measures alcohol in your breath, the car will not start. Most people who are just starting out with an interlock device have trouble blowing correctly into it. The device requires a particular breath pattern. The auto technician should instruct you on how to do it. But once you use it a couple of times, it is not difficult.

Ignition interlocks also require you to take rolling retests. This means that while you are driving, you need to blow again during random intervals.

Here are some tips on staying out of common trouble when the court orders an interlock ignition device as part of probation:

1) Don’t drive at all without a valid drivers license;

2) Once you get an interlock device installed, get proof that it is installed to the court ASAP, and keep copies of everything;

3) Do not try to circumvent the device by having another person blow into it for you.

For more information about interlocks, I suggest going to the Smart Start of California website. (http://www.smartstartofcalifornia.com) Smart Start is a brand of ignition interlocks that take care of the installation process for you and has a hotline and informative website to assist its customers.

Becky Kate

Legal Brand Marketing

becky@legalbrandmarketing.com

818-884-8075

smartstartofcalifornia.com

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