The San Francisco DUI Pretrial Conference

 

After a not guilty plea is entered to the DUI charges at arraignment, the court will schedule your case for a Pretrial Conference. The first Pretrial Conference usually occurs anywhere from four to eight weeks after the arraignment. San Francisco Bay Area counties may use different terms for what they call this hearing, but the form and substance is basically the same.

The DUI Pretrial Conference is a court hearing that usually attended by the client. The purpose of the Pretrial Conference is to discuss the DUI case with the local prosecutor if an effort to reach a settlement or plea bargain. Ultimately, the district attorney will make a settlement offer and the DUI client will need to decide whether or not to accept or to assert their right to a jury trial. Since these settlement negotiations are often fluid, Pretrial Conferences are regularly continued to continued so that the prosecutor and DUI client can spend more time to consider settlement.

It's crucial for the DUI attorney to properly prepare for the Pretrial Conference. Possible DUI defenses must be fully investigated and special consideration needs to be made for the DUI client's immigration status or how possible settlement may affect employment or licensing issues for the client. That said, a good DUI attorney will always begin their investigation of the client's DUI case immediately and pursue all relevant discovery after the arraignment is completed.

In the perfect world, a DUI client will be given the best possible settlement offer at their first Pretrial Conference and their attorney will have completed investigation into the facts of the case such that an informed decision regarding the plea bargain can be made. The reality is, however, that the district attorney's settlement offer is subject to change over time. Most often, the prosecutors first settlement offer is rather harsh and it makes sense for the DUI lawyer to continue the Pretrial Conference. Unfortunately, not all DUI lawyers care about the final result of their clients cases. Since most DUI lawyers are hired on a flat fee basis, it's not in their financial interest to continue their clients cases, even if it means a better result. Too often DUI clients are compelled by their attorneys to take the deal even though by not taking it, they could get a better result. This is why it's so critical that you do your research before hiring a DUI attorney and make sure you decide upon a lawyer you can trust.

For more information, contact San Francisco Bay Area DUI defense attorney Nors Davidson (415) 601-4140 or visit

www.sanfranciscoduicrimedefense.com

San Francisco DUI Arraignment

 

Your First DUI Court Appearance

Individuals arrested for a first offense misdemeanor DUI are almost always released from custody after they’ve sobered up, usually the following morning.  If the DUI arrest is for a multiple DUI or a felony, a bail bond may be required to secure release from jail.  Otherwise, the DUI offender is released on their Promise to Appear in court.  The written Promise to Appear can take many forms but it typically is a citation that directs the individual to appear at a specific court location on a given time and date.  This first court appearance is called an Arraignment.

The purpose of the arraignment is to advise the defendant in a criminal case of the charges that have been filed against them and for the judge then take the defendant’s plea.  In almost all DUI cases, that plea should be Not Guilty.  After entry of plea, the judge will then schedule a secondary court hearing usually called a Pretrial Conference.  Also addressed at the arraignment will be any pretrial release orders or conditions.  Pretrial release conditions include orders to abstain from alcohol use, an order to attend Alcoholics Anonymous or AA meetings, pretrial ankle monitors like SCRAM, etc.  The judge can also order the defendant remanded into jail custody, but this is reserved for the most serious DUI offenses, like felonies or multiple DUI’s.  Otherwise the DUI arraignment is a rather non eventful court hearing.

San Francisco Bay Area DUI defendants who are represented by privately retained counsel are not required to personally appear for their arraignment and can authorize their lawyer to appear on their behalf pursuant to California Penal Code Section 977.  Since the facts of the defendants DUI case are usually unknown at the time of arraignment, it’s not advisable for a DUI defendant to appear for this hearing.  If a DUI defendant does not have a lawyer, they must personally appear for this hearing or a warrant will be issued for their arrest.  

The typical DUI arraignment is scheduled anywhere from four to eight weeks after the date of the DUI arrest.  The local district attorneys office is supposed to review the arrest report, chemical test results and any other supplemental evidence and file a formal Complaint outlining the charges against the defendant before the arraignment hearing.  This does not always happen and the district attorney has up to one year from the date of the DUI arrest to file charges before the statute of limitations will run in a misdemeanor DUI.  That said, it’s possible that a DUI defendant’s arraignment hearing will be continued without notice to some future date within this window.  This is particularly true in Contra Costa County where it is standard to hold the DUI arraignment around ten months after the date of arrest.  Either way, if the DUI defendant or attorney fails to appear for the arraignment, the judge will issue a bench warrant for the defendants arrest.  

If the DUI arrest was for a felony DUI, the defendant will be required to appear for the arraignment.  While it's important to have a DUI lawyer retained before any arraignment, it's particularly true for a felony DUI.  Even a first offense DUI  that's been charged as a felony can result in the defendant being sent to jail so having an experienced DUI attorney on your side can make the difference between a non jail and a custodial DUI sentence. 

If you or someone you know has been charged with a California DUI, then call San Francisco DUI attorney Nors Davidson today for a free consultation (415) 601-4140 or visit

www.sanfranciscoduicrimedefense.com

San Francisco DUI Excessive Speed Enhancement

The most punitive San Francisco DUI sentencing enhancement is for driving under the influence cases where the individual is alleged to have driven a vehicle above the the posted speed limit by more than 20 MPH on a road or 30 MPH on a freeway. The DUI speed enhancement mandates an actual county jail sentence of sixty (60) days in the County Jail. California Vehicle Code Section 23582 reads:

(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.

(b) If the court grants probation or suspends the execution of sentence, it shall require as a condition of probation or suspension that the defendant serve 60 days in the county jail, in addition and consecutive to any other sentence prescribed by this chapter.

(c) On a first conviction under this section, the court shall order the driver to participate in, and successfully complete, an alcohol or drug education and counseling program, or both an alcohol and a drug education and counseling program. Except in unusual cases where the interests of justice would be served, a finding making this section applicable to a defendant shall not be stricken pursuant to Section 1385 of the Penal Code or any other provision of law. If the court decides not to impose the additional and consecutive term, it shall specify on the court record the reasons for that order.

(d) The additional term provided in this section shall not be imposed unless the facts of driving in a manner prohibited by Section 23103 and driving the vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, are charged in the accusatory pleading and admitted or found to be true by the trier of fact. A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood.

Clearly, the California State Legislature wasn't messing around when they enacted the DUI speed enhancement with it's sixty (60) day mandatory sentence, however the DUI speed enhancement is as airtight as it seems. In addition to being convicted of a DUI and speed in excess the posted limit by 20 or 30 MPH, the driving must be "and in a manner prohibited by Section 23103." California Vehicle Code Section 23103 is "Reckless Driving." This means that the excessive speed DUI must also involve driving deemed reckless or a wanton and willful disregard for the safety of self or others. California case law requires a showing of recklessness beyond just the speeding and DUI, so other factors like number of vehicles on the road, type of road, weather conditions, lighting, etc. are just as important as the speed itself.

Regrettably, most San Francisco Bay Area district attorneys regularly charge the DUI speed enhancement for all DUI cases involving high speeds without considering the additional burden of proving that the driving pattern was also "reckless." Nevertheless, in my twenty years of San Francisco DUI defense, I can say that while I've encountered the high BAC DUI enhancement many times, but have never had a DUI client who has been convicted of it by plea or trial. The Excessive Speed DUI enhancement is on the books though and it needs to be defeated for the successful resolution of any San Francisco Bay Area DUI case.

For more information, please visit

www.sanfranciscoduicrimedefense.com

The Dreaded San Francisco Bay Area Third Offense DUI

Other than the most serious felony DUI cases, San Francisco Bay Area third offense DUI cases are the most challenging for both the DUI lawyer and the client. A third offense DUI in California is defined as two DUI offenses which both occurred within ten (10) years of an original DUI pursuant to California Vehicle Code Section 23152(a) or (b), OR a conviction pursuant to Vehicle Code Section 23103 sentenced under Vehicle Code Section 23103.5, commonly known as a "wet reckless." Third offense DUI's require incredible persistence for a DUI lawyer to keep his or her client out of a long jail sentence and for this reason many DUI law firm mill type office won't even accept them. I am not one of those DUI lawyers so I'm grateful that these cases truly have been rare in my twenty years of practice.

DUI third offenders and usually not released from jail like DUI first offender or even second offenders in that a bail bond is almost always required for the DUI arrestee to be released from custody prior to his or her arraignment or first court appearance. The Arraignment typically is heard before a judge or magistrate within 48 hours of arrest, weekends and holidays excluded. Depending on the jurisdiction, the DUI offender will either be released own recognizance, OR, or bail will be set and must be posed prior to release. It's very common though for the DUI arresting officer is not aware of all of the arrestee's prior DUI convictions, so they might be released from the jail with a citation or notice to appear for arraignment only to find that the District Attorney did find all of the DUI convictions so now they're possible being remanded into custody at their arraignment and bail is set. Either way, the arraignment is a crucial hearing in a third offense DUI because the general strategy for success in avoiding jail time is a long one and the judge's pretrial release orders likely be in effect for the life of the DUI case. Typical pretrial release orders for San Francisco Bay Area DUI cases include: an ankle worn alcohol monitor or SCRAM, attendance in AA meetings and/or treatment, no driving orders, etc.

There are defenses to third offense DUI's in the Bay Area. Indeed, all of the same defenses available to a first offense DUI exist in third offense DUI cases. If the DUI arrestee wasn't actually observed driving the motor vehicle or if admissibility questions about the blood evidence or accuracy of the breath test evidence, must be explored. However, in my experience handling San Francisco Bay Area third offense DUI cases, I can say that the DUI client's number one goal is avoiding extended jail time that often causes them to lose their employment. Third offense DUI convictions in California have a MINIMUM jail sentence of 120 days. Bay Area district attorney's though regularly want more than the minimum, more like 180 days. Since the typical jail sentence for Bay Area second offense DUI's is something like 10 to 60 days picking up garbage with the Sheriff's Work Alternative Program or SWAP, going to jail for even 10 days would be a huge escalation in punishment and 180 days is crushing. This is why Bay Area third offense DUI's rarely go to a trial which could expose them to a potentially harsher sentence from the judge.

No, third offense DUI's are most often successfully resolved by the DUI arrestee accepting responsibility and getting help with their alcohol, drug or emotional life issues that led to their DUI arrest. For this reason, third offense DUI offenders should enroll in a residential or least outpatient treatment program as soon as possible after their DUI arrest. This is often good for the DUI client and more importantly the DUI attorney can then appear for the arraignment armed with documentation for the judge and prosecutor that might help avoid a jail remand or harsh pretrial sentencing orders. If the client is looking at sure jail time for the DUI arrest, it would be wise for that person to enter a residential treatment program. I've had multiple third offense DUI arraignments were the prosecutor asked to have my client remanded to jail and I've countered to the judge that he or she was in a residential treatment program and instead of remanding, couldn't the court just order that the client stay in the program instead? If the judge agrees, now the third offense DUI client can stay in a program that will accrue day for day credit against any future sentence which could be a year or more away.

Another and arguably easier way to settle San Francisco Bay Area third offense DUI cases is to simply work out an agreement with the district attorney for an electronic monitoring or house arrest sentence. Electronic monitoring requires the DUI probationer to remain in their home with the exception of going to work and other exceptions like attending treatment, doctor's appointments, etc., depending on the judge's discretion. Many district attorneys and judges, however, look askance at such serious DUI cases with no jail sentence. Nevertheless, since every Bay Area county has some form of electronic monitoring, that means that it is POSSIBLE that third offense DUI offenders can be sentenced to it. That said, it's again crucial that the third offense DUI client participates in treatment. A judge that wouldn't unusually let a third DUI offender have a house arrest sentence, might be more open to it if he or she felt that it might do more harm than good. Either way, the name of the game in San Francisco Bay Area third offense DUI cases is to avoid an actual jail sentence or at least minimize it. To achieve this goal, time is what's required and this is why DUI lawyers who refuse to handle them are suspicious to me.

Of course there's other elements to a third offense DUI punishment like formal or informal probation, fines and fees, an 18 month DUI school and the California Driver's License is revoked and the arrestee is deemed a "Habitual Traffic Offender" by the Department of Motor Vehicles or DMV. An experienced San Francisco DUI lawyer will know to negotiate these for the DUI client but the brutal reality is that these are all secondary considerations compared to a four to six month jail sentence. If fact, any of these penalties can be negotiated with even harsher result so long as the overall agreement means no or limited actual jail.

Probably more than anything, a San Francisco Bay Area third offense DUI is an opportunity to make a difference is someone's life. Watching my client's transformation from the day of their arrest to their case conclusion is the most rewarding part of my work as a DUI lawyer. At the time of this writing, I've NEVER had a Bay Area third offense DUI client as a repeat client. The fourth DUI is a felony and I can count those clients on one hand. Perhaps if they were my clients for their third offense DUI, the fourth DUI felony would never have happened.

If you've been arrested for a third offense DUI in the San Francisco Bay Area, then you need a San Francisco DUI lawyer that understands that a long jail sentence cannot be accepted. Bay Area third offense DUI's require patience, persistence and putting the DUI client's interests ahead of your own as the DUI defense lawyer. I know this and I care about making a difference in peoples lives and this why I do accept Bay Area third offense DUI cases and put this same care and concern for all of DUI cases.

Call San Francisco DUI attorney Nors Davidson today for a free consultation about your DUI, third offense or otherwise. (415) 601-4140

www.sanfranciscoduicrimedefense.com

San Francisco Bay Area Second Offense DUI's

Second Offense DUI cases in the San Francisco Bay Area are handled very differently depending on the county of arrest, facts of the case and the views of the District Attorney. Many factors affect DUI sentencing on second offenses and therefore punishments can vary widely making it crucial that you're represented by an experienced San Francisco Bay Area DUI lawyer who knows what to ask for during settlement negotiations and is ready to fight if settlement fails.

A second offense DUI is a DUI arrest that occurred with ten (10) years of any prior DUI or wet reckless offense. The date is triggered by the prior DUI arrest, not the date of DUI conviction. Stale priors are DUI offenses that are outside the ten year window and technically cannot be used to elevate a second DUI offense, however, they can still be considered by the district attorney or judge when determining punishment on the new DUI offense. Moreover, the length of time between the first and second DUI arrests is often critical. DUI priors over seven years old are not as bad as three years old. Indeed, the DUI second offender may still be on probation for the first DUI or even worse driving on a suspended license pursuant to California Vehicle Code Section 14601.2. Second offense DUI's are misdemeanor offenses unless the new arrest involved a collision with injuries, child endangerment or the prior DUI arrest was a felony DUI. Otherwise, second offense DUI's are generally handled the same as first offense DUI's in the court with some differences.

The first difference between a first and second offense DUI arrest will be noticed at the time of release. Almost all DUI first offenders are taken to jail after arrest and ultimately released with a citation and promise to appear for a given court date, or arraignment. This is mostly true of second offense DUI's as well, but not always. You should know that if you've been arrested for a second offense DUI in the Bay Area, there's a chance that you will not be released unless you post a bail bond. Bail bonds for second offense misdemeanor DUI's are rarely in excess of $10,000, an amount which is typically paid by a bail bondsman for a non refundable ten percent premium or $1,000.

If the DUI arrestee cannot afford the bail bond, they will remain in custody until their first court appearance or arraignment. The arraignment hearing will be held before a judge within a few court days and the judge will then either release the defendant without bail or allow release with conditions. Typical pretrial release conditions for second offense DUI's can include an order to attend AA meetings and seek treatment, an order to not drive, or a SCRAM order, which is a costly electronic device that the defendant must wear that will notify the court if he or she has consumed any alcohol. Judges can get creative with pretrial release orders, so it's critical for a skilled DUI defense attorney to negotiate the most favorable conditions, i.e. AA meetings over SCRAM, because these conditions will remain in effect until the case is concluded.

Second offense DUI's are subject to all of the same potential DUI enhancements as a first offense DUI which include collisions, high blood alcohol, refusals, child endangerment, speed enhancements, etc. Of these, a refusal on a second offense is the strictest punishment since the DMV will suspend a second DUI offender's license for a minimum two years with no restricted license if he or she is found to have knowingly refused a chemical test.

For more information, please visit www.sanfranciscoduicrimedefense.com

What is a "Refusal" in California DUI Law?

Everyone who’s been arrested for DUI in California knows that the police want you to do a chemical test. Often times the officer will allow the arrestee to chose whether or not they will submit to a breath or a blood test. So what if I refuse to do either?

Refusing to submit to a chemical test after a DUI arrest is a really bad idea. In prior times, refusing to test could help you escape conviction in the DUI criminal case, however, things have changed. It is now lawful for the arresting officer to obtain a warrant to take your blood. We call this a “forced blood draw.” The blood is still analyzed and your BAC is reported.

However, now the arrestee has some serious problems. The “refusal” is a DUI enhancement that can be used in the court to justify extra punishment like jail time, longer DUI school or more restrictive probation terms. If that weren’t enough, “refusal” cases are the most difficult DMV APS hearing to succeed in avoiding a license suspension. While a standard first offense DUI will often include a license suspension, most people can still apply for a “restricted license” which will at least allow them to drive for work. If the DMV hearing concludes that you did “refuse“ a chemical test, then you’re looking at a minimum one year license suspension with NO RESTRICTED LICENSE.

Moreover, if this is a second DUI arrest and there’s a refusal allegation, the licensee will lose their license for two full years with no restriction.

The bottom line is that you’ve got to do a chemical test. My advise is to pick one, breath or blood, and stick with it. Don’t do both tests as that will severely limit your best DUI defenses. If you did refuse or the officer’s saying that you refused, you really need a good San Francisco DUI Defense lawyer.

Visit www.sanfranciscoduicrimedefense.com for more information

The Temporary License: The Pink Paper You Get After a San Francisco DUI Arrest

If you've been arrested for a DUI in California, one of the first things you'll notice is that the officers have taken your driver's license and you now have a carbon copy "pink" paper. The "pink" paper is actually a number of things. First of all, this is now your "Temporary" Driver's License and is supposed to be valid for thirty (30) days. This does not grant you driving privileges if you did not have a license at the time of your DUI arrest. Basically, whatever you had before the arrest will remain in effect for thirty days. The pink paper is also a very important notice which advises that you have ten (10) days from the date of service of the Temporary License to contact the DMV and request a hearing to fight the DMV license suspension. If you (or your lawyer) fail to request a hearing, your license will automatically suspend once your Temporary License expires (30 days).

It is crucial that you or your DUI lawyer contact the DMV to secure both a hearing and a stay of the license suspension. The DMV generally will stay the license suspension until the conclusion of your DMV or APS hearing case and you will receive a new paper Temporary License in the mail from the DMV to replace the expiring "pink" paper license. While it's important to present the best defense possible to the DMV hearing case, the strategy by which this is done is equally important and a strong consideration to the licensee/client's profession and need to drive is of first importance.

So, the bottom line is: if currently have or know someone who has a "pink" Temporary License, they should consult with a qualified DUI attorney and request a hearing. I believe it's best to hire a DUI lawyer within ten days and have them do it. If I couldn't find or afford a DUI lawyer, you should contact your local DMV Driver's Safety Office by telephone, fax and U.S. Mail.

For more information, visit

www.sanfranciscoduicrimedefense.com