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What Are The Proposed Changes To "Three Strikes" By Assembly Bill 327?

Brian Andritch — Sat, 11 Feb 2012 06:17:00 GMT

California's "Three Strike" law is again current news because there is a movement in the California State Assembly to change California's "Three Strike" law. The current effort to change "Three Strikes" is Assembly Bill 327.

This is not the first time there has been an effort to change "Three Strikes". Some of the complaints about "Three Strikes" are:

- Some Juvenile Crimes count as "Strikes".

- Defendant's can receive more than one "Strike" from a single case.

- The third "Strike" does not have to be a "Strike".

Some Juvenile Crimes Count As "Strikes"

Juveniles, those under 18 years of age are not entitled to a jury trial. Juvenile trials are court trials, meaning a judge decides whether or not a juvenile is guilty of a crime. In fact, the term "guilty" is not even used in Juvenile Court. Juvenile matters are either found true or not true.

Why does this matter? An adult has a right to a jury trial, meaning the government, through the District Attorney's Office, must convince 12 jurors beyond a reasonable doubt that the adult is guilty. A juvenile does not have this right; a judge decides whether or not the allegation is true. Simply stated, it is much easier to convince one person, the judge, than it is to convince 12 jurors.

Even though a juvenile does not have a right to a jury trial, a true finding by a judge can saddle a juvenile with a "Strike" for the rest of his life assuming the alleged crime is one listed in Welfare and Institution Code Section 707(b) and the juvenile was at least 16 years old when the crime was committed. Many believe that if a juvenile crime is going to count as an adult strike that the juvenile should have a right to a jruy trial.

Defendants Can Receive More Than One "Strike" From A Single Case

The easiest way I can think of to discuss this issue is to briefly discuss one of my recent cases. I am by no means condoning my client's actions; however, I do not believe he should have received two "Strikes" for one act.

My client was involved in a police chase. During the chase he crashed his car into the police officer's vehicle. He was charged and convicted of two crimes for this single act, assault on an officer, Penal Code Section 245(c), and assault with a deadly weapon, Penal Code Section 245(a). For this single act my client received two "Strikes". Other state's laws do not work this way. In most other states my client would have received one "Strike" for his one criminal act.

The Third "Strike" Does Not Have To Be A "Strike"

"Three Strikes" should really be called Two Strikes and any Felony and You're Out. The "Three Strikes" law is codified in California Penal Code Section 667(b)-(i). It doubles the penalty of individuals convicted of a felony who have a prior "Strike" and for those who have two prior "Strikes" who are convicted of a third felony the sentence is 25 years to life. That's right, the "Third Strike" does not have to be a "Strike". All that is required is a third felony conviction. This means someone who has two prior "Strikes" and years later is convicted of any felony could be sentenced to 25 years to life. The third "Strike" could be something as minor as a petty theft with a prior, Penal Code Section 666. Some of the more famous examples are a getting sentenced to 25 years to life for stealing a piece of pizza or golf clubs.

Proposition 66

Assembly Bill 327 is not the first effort to change what many believe are problems with the "Three Strikes" law. The most recent effort was Proposition 66 in 2004. Some of the changes proposed by Proposition 66 were:

- Amend "Three Strikes" law to require increased sentences only when current conviction is for specified violent and/or serious felony.

- Redefine violent and serious felonies. Only prior convictions for specified violent and/or serious felonies, brought and tried separately, would qualify for second and third "strike" sentence increases.

- Allows conditional re-sentencing of persons with sentences increased under "Three Strikes" law if previous sentencing offenses, resulting in the currently charged felony/felonies, would no longer qualify as violent and/or serious felonies.

- Increases punishment for specified sex crimes against children.

Proposition 66 did not pass.

Assembly Bill 327

This bill would provide that a defendant who has 2 or more prior violent or serious felony convictions shall receive the enhanced indeterminate life sentence only if the defendant's current conviction is for a serious or violent felony, as defined.

Some question what the true motivation of Assembly Bill 327 is. Is it really to fix perceived injustices or is the goal to save the state money by reducing the number of career criminals that get sent to prison.

According to an Assembly analysis, the bill would mean savings "likely in the tens of millions of dollars". By reducing the lifer population, the analysis says, the savings could reach $50 million in twenty years.

Whether or not you agree with the current law or not I do believe it should be renamed; it is misleading. It is not "Three Strikes." All that is required for a potential life sentence is two "Strikes" and any subsequent felony for a potential life sentence to be imposed. Twenty-six states currently have some form of a "Three Strike" law. However, none are as harsh as California.

Three Strikes

Brian Andritch — Thu, 02 Feb 2012 07:12:00 GMT

California's "Three Strike" law is again current news because there is a movement in the California State Assembly to change California's "Three Strike" law. Before I discuss what the proposed changes are I will summarize what the current state of the law is and how it came into being.

In 1992 Joe Davis and Douglas Walker murdered Kimber Reynolds as she left a Fresno restaurant. Davis and Walker drove up on a motorcycle as Kimber stood on the sidewalk in front of the restaurant and tried to take her purse. Kimber briefly struggled and Davis shot and killed her.

Davis was eventually located at an apartment complex. The police surrounded the apartment complex and when he exited the apartment he opened fire; Davis was shot and killed by the police. Walker, the motorcycle driver was later arrested and pled guilty in court to accessory to murder. Walker was sentenced to 9 years prison, the maximum sentence at the time. Davis and Walker both had prior felony convictions.

Mike Reynolds, Kimber's father, began a petition drive to toughen California Law. His idea was "Three Strikes and You're Out". The proposed law was essentially that individuals convicted of a second felony who had a prior "strike" conviction, a serious or violent felony, would have their sentence doubled. Individuals with two prior "strikes" who are subsequently convicted of a third felony would be sentence to 25 years to life under the proposed law.

In 1994 the California Legislature passed Assembly Bill 971 and later that year California voters passed Proposition 184 making "Three Strikes" the law.

The "Three Strikes" law is codified in California Penal Code Section 667(b)-(i). It doubles the penalty of individuals convicted of a felony who have a prior "strike" and for those who have two prior "strikes" who are convicted of a third felony the sentence is 25 years to life.

Penal Code Section 1192.7(c) (1) defines a serious felony, they are:

(1) Murder or voluntary manslaughter

(2) mayhem

(3) rape

(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person

(5) oral copulation by force, violence, duress,

menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person

(6) lewd or lascivious act on a child under 14 years of age

(7) any felony punishable by death or imprisonment in the state prison for life

(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm

(9) attempted murder

(10) assault with intent to commit rape or robbery

(11) assault with a deadly weapon or instrument on a peace officer

(12) assault by a life prisoner on a noninmate

(13) assault with a deadly weapon by an inmate

(14) arson

(15) exploding a destructive device or any explosive with intent to injure

(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem

(17) exploding a destructive device or any explosive with intent to murder

(18) any burglary of the first degree

(19) robbery or bank robbery

(20) kidnapping

(21) holding of a hostage by a person confined in a state prison

(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life

(23) any felony in which the defendant personally used a dangerous or deadly weapon

(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code

(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person

(26) grand theft involving a firearm

(27) carjacking

(28) any felony offense, which would also constitute a felony violation of Section 186.22

(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220

(30) throwing acid or flammable substances, in violation of Section 244

(31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245

(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5

(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246

(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1

(35) continuous sexual abuse of a child, in violation of Section 288.5

(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100

(37) intimidation of victims or witnesses, in violation of Section 136.1

(38) criminal threats, in violation of Section 422

(39) any attempt to commit a crime listed in this subdivision other than an assault

(40) any violation of Section 12022.53

(41) a violation of subdivision (b) or (c) of Section 11418

(42) any conspiracy to commit an offense described in this subdivision.

Penal Code Section 667.5 defines a violent felony, they are:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 18745, 18750, or 18755.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418.

If someone is convicted of any crime listed above it constitutes a "strike". If they are later convicted of a new felony their sentence is doubled. If someone is convicted of two of the crimes listed above and they are later convicted of a felony their sentence is 25 years to life.

"Three Strikes" is not without its critics and State Assemblyman Mike Davis, a Democrat from Los Angles, recently introduce Assembly Bill 327 to address some of these criticisms. On January 30, 2012, the State Assembly voted down AB 327; however, yesterday, January 31, 2012, Assemblyman Davis sought a re-vote and it was approved. AB 327 now goes to the State Senate.

In my next post I will analyze the changes to the "Three Strikes" law proposed by Assembly Bill 327.

No More State Prison For "Low-Level" Criminal Offenders In California

Brian Andritch — Wed, 28 Sep 2011 13:57:00 GMT

Beginning Saturday, October 1, 2011, a massive overhaul of California's prison system will take effect. Not since California switched from an indeterminate sentencing structure to a determinate sentencing one in 1977 has California seen such sweeping changes. Essentially, "low level" criminal offenders will no longer be California's responsibility; counties will be responsible for "low level" criminal offenders.

Currently someone released from state prison is placed on parole. If they violate the terms of parole they are sent back to state prison. Under the new system, "low level" offenders who violate parole will no longer be sent back to state prison, but to county jails.

Also, newly convicted "low-level" offenders will no longer be sentenced to state prison, but to county jails.

A "low-level" offender is for crimes that are considered non-serious, non-violent, and non-sex-related or a "triple-non". A drug dealer no longer gets prison, they go to county jail.

Nobody really knows what affect this will have on already overburdened county jail facilities, but most believe it will mean early releases due to overcrowding.

The reason for this new plan or realignment has to do with a Federal Order to reduce California's prison population by 33,000. Simply put, California does not have the room for these offenders. The counties do not have room for them either and when the counties run out of room inmates and pre-trial detainees will get released early due to overcrowding.

Miranda Warning. Don't talk to the police!!!

Brian Andritch — Sun, 29 May 2011 22:41:00 GMT

"You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?" These are your Miranda Rights.

Miranda v. Arizona 384 U.S. 436 (1966), was a landmark 5-4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them.

If you are ever advised of your Miranda Rights it means you are under arrest. The police believe you have committed crime and they want to talk to you about it, you are under investigation. You have a big decision to make. Should you talk? It almost never helps your cause to talk to the police in this situation. You are already under arrest because the police believe they have enough evidence already to constitute probable cause. You are not going to talk yourself out of it at this point. Ask for an attorney. The only thing you are going to accomplish by speaking to the police at this point is lock yourself into a story and give the police even more evidence. They really mean it when they tell you that anything you say will be used against you. It is time to shut up!

I am always amazed how egger most people are to talk with the police. Even "hard core criminals" who have repeatedly been through the criminal justice system talk with the police. Why? The Miranda Warning could not be clearer. They are going to use what you say against you!

I understand that no one wants to go to jail, but that has already going to jail and you are not going to change the police's mind regardless what they tell you. In fact, the police are allowed to lie to you during interrogations. "If you are straight with me now I will put a good word in with the District Attorney for you, B.S.! I was a Deputy District Attorney for seven years and the police never put in a good word for someone because they cooperated. The only thing talking did was make my job easier.

The best odds you have of getting out of this pickle is by keeping your mouth shut. The only way many cases are successfully prosecuted is because the defendant talked to the police. This is absolutely the most important advice any criminal defense attorney will give. If the police want to talk to you, don't and ask for an attorney.

I was only arrested, never convicted, but a criminal offense is still on my record. What should I do?

Brian Andritch — Tue, 08 Mar 2011 23:13:00 GMT

Even if your case has been dismissed or no charges were ever filed against you, your arrest record, the minutes from your court hearings and your case disposition still exist as a public record until you take control and move to have those records sealed.

The benefit of sealing your arrest record is extensive since anyone with the ability to run a background check on you that included a rap sheet would be able to discover all of your prior criminal arrests. Moreover, prospective employers or educational institutions can search for your name at the courthouse or on certain government Web sites to try to find information regarding your criminal history.
An arrest record can be sealed if you were arrested and:

* No complaint was filed.
* The complaint filed was later dismissed.
* You were acquitted following a trial.
* You were found to be factually innocent.

To begin the process of sealing your arrest record you need to file of a request with the original arresting agency. If the arresting agency denies the petition a motion will have to be filed with the court in the county where the arrest occurred and your case will then be set for a hearing. At the hearing you have the burden of demonstrating your factual innocence. Once the motion is granted, the court will send the court order to seal your arrest record to the Department of Justice. After the Department of Justice has sealed and destroyed your records, it is as if the arrest never happened.

Suspected of Driving Under the Influence? You do not have to submit to a chemical test unless you are arrested.

Brian Andritch — Fri, 04 Mar 2011 17:54:00 GMT

Once you are arrested for DUI you are legally required to submit to a chemical test. There are additional consequences to refusing a chemical test. The DMV will likely suspend your license for one year and if you are ultimately convicted in court the judge can consider refusing as an aggravating factor and increase punishment.

Whether or not refusing ultimately will help really depends on the specific facts of each case. The government may already have enough evidence to convict before the decision to submit or refuse a chemical test was even made. Officers are trained to look for objective signs of intoxication and their police reports almost always say that the suspect displayed them. Objective signs of intoxication include an odor of an alcoholic beverage on the breath, red/watery eyes, an unsteady gait, and level of cooperation. The officer's report will almost unsoundly state that the Field Sobriety Tests were not completed properly as well.

As stated earlier, once arrested for DUI the law requires the person to submit to a chemical test. However, prior to arrest there is no legal requirement to submit to any test. You cannot be forced to incriminate yourself. You do not have to tell the officer how much you have had to drink and you do not have to perform any Field Sobriety Tests. You are only required to submit to a chemical test if arrested and by submitting to these test prior to arrest all you are doing is incriminating yourself. My advice to people who are pulled over by law enforcement and they suspect you of DUI is to be courteous, but don't answer any questions beyond providing your basic identification information. Certainly don't tell the officer how much you have had to drink, and do not take the Field Sobriety Tests.

How much does a First Offense DUI cost?

Brian Andritch — Sat, 26 Feb 2011 06:50:00 GMT

There is no way around it, getting arrested for a DUI is expensive and getting charged in court with a DUI is even more expensive, but how expensive is a DUI conviction?

Most jurisdictions will tow and impound your vehicle if you are arrested for DUI. Impound and tow fees cost hundreds of dollars.

If you are taken to jail, you may have to bail out. Bail in Fresno County for a DUI is $5,000; however, both Vehicle Code Sections 23152(a) and 23152(b) are almost always charged so bail will be $10,000. A bail company will charge 10% of the total bail which means you will have to spend $1,000 to get out of jail.

Now you need to hire an attorney. The consequences of getting convicted of a DUI are severe (possible 6 months jail, criminal fines, license suspension, DUI class, increased insurance costs) so you better hire an experienced DUI attorney. An experienced attorney will likely charge you between $3,000 and $5,000 and this does not include the attorney's trial fee which will probably be an additional $3,000 - $5,000.

If you are convicted the court will order you to pay fines. Once penalty assessments and fees are added to the criminal fine, the court will want almost $2,000. The required Alcohol Education Class (CA avg.) costs $500. Your automobile insurance will also dramatically increase for several years and the DMV license re-issue fee is $125.

What is your time worth? You will likely miss several days of work to attend court hearings, meet with your attorney, and to attend the Alcohol Education Class. You will also be sentenced to jail time or community service. Are you required to drive for your job? Your license will be suspended. Will you lose your job?

As you can see, a DUI is very expensive, $12,000 - $15,000 is not unrealistic.

First Offense DUI and license issues. DMV suspension comparred to court suspension.

Brian Andritch — Sat, 19 Feb 2011 05:56:00 GMT

If you are arrested for a DUI, not only do you have to deal with the court system, but you also have to deal with the Department of Motor Vehicles. The courts and the DMV are both able to suspend your license. Typically DMV issues must be addressed first.

A police officer physically takes your license when they arrest you for DUI. The officer will give you a pink piece of paper which is a temporary 30-day license. At the end of the 30-day period your license will be suspended unless you request a hearing with the DMV. You only have 10 days from the date of arrest to contact the DMV and request a hearing. The DMV Hearing is called an Administrative Per Se Hearing.

To request a hearing with the DMV you need to call the local Driver Safety Office with the DMV. They will walk you through the process. Tell them you were recently arresed for a DUI and would like to request a hearing. Also request a stay and request discovery. A stay means that you will be able to continue to drive at least until the DMV hearing. If the DMV upholds the suspension after the hearing you will receive a letter in the mail stating that the stay on your suspension has been lifted and it will state the date the suspension begins.

At the APS Hearing the DMV must prove by a preponderance of the evidence that you were lawfully arrested, the officer had a reasonable suspicion to believe you were driving under the influence, and that your blood alcohol was 0.08% or more. The rules of evidence are considerably relaxed compared to court.

If you lose the DMV APS Hearing your license will be suspended. For a first offense the length of suspension is 4 months; however, after a month you have the option of obtaining a restricted license allowing you to drive to and from work, to and from a required DUI class, and during the course of employment. If you choose to get a restricted license it will be restricted for 5 months after the one month period of no driving. To get a restricted license you must enroll in a DUI class for first offenders, obtain an SR22 (proof of high risk insurance), and pay a $125 reissue fee.

The court will also suspend your license if you are convicted. If you are convicted in court the DMV will be notified of your conviction and your license will be suspended for 6 months. You are not supposed to be punished twice and are supposed to get credit for any license suspension you have already served; however, I have seen DMV do some weird things with this, especially when the person obtained a restricted license.

Beyond the license issues, the court punishment for a first offense DUI is 3-5 years of informal court probation, an approximately $1,800 fine, and the possibility of up to 6 months in jail. Many jurisdictions do not order actual jail time and allow people to serve their time on some sort of work program.

What to do if you have been stopped by law enforcement and they suspect you are DUI

Brian Andritch — Sun, 13 Feb 2011 05:41:00 GMT

Do not give a police officer a reason to arrest you. You are under no legal obligation to answer any questions beyond providing basic identification. You do not have to submit to Field Sobriety Tests and only are required to take a chemical test if arrested for DUI.

The Red Lights Are Flashing

As soon as you realize a police officer is attempting to stop your vehicle pull over to the right safely and quickly. Slow down and don't forget to signal. Pull over as far to the right as possible well out of the way of traffic. The officer will appreciate you keeping his safety in mind.

What Now?

Make a good first impression. Roll down your window, turn the vehicle off, and place your hands on the steering wheel. If it is dark it is a good idea to turn on your interior light so the officer can easily see into the vehicle. You don't want to make the officer nervous and this certainly isn't a good time to be rummaging through your vehicle looking for your registration and license. The officer doesn't know what you are doing and he may become nervous.

Be Polite Do Not Volunteer Information

Hopefully your earlier actions have put the officer at ease. In fact, in some situations they may have already decided they are just going to issue you a warning. However, if it is 2 AM on a Friday night they likely pulled you over because they suspect you are DUI. Don't talk firs, wait for the officer to ask questions. You are under no legal obligation to answer the officer's questions beyond providing your basic identification information. If the officer asks for your license and registration provide it. If you license is under your seat or you registration is in the glove box tell the officer where it is before making any quick movements, no reason to make them nervous. Do not provide any additional information, you are under no legal obligation to do so. Officer's ask additional questions because they are attempting to gather evidence to arrest you. Where are you going, have you been drinking, . . . Respectfully decline to answer and ask if you are free to leave.

Do Not Submit To Field Sobriety TestsYou are under no legal obligation to submit to Field Sobriety Tests (walking a line, ABC, Nystagmus, One Leg Stand). The purpose of these tests is for the officer to gather information to arrest you. Do not give the officer evidence. You are under no obligation to submit to these tests. Again, respectfully decline and ask if you are free to leave.

Do Not Take A Chemical Test Unless Arrested

Officers will often tell individuals they believe their on the borderline of being DUI and offer a breath test. They will tell you if you blow below a .08 you will be free to leave. You are under no legal obligation to take this test and if you have had anything to drink at all do not take it. Again politely decline and ask if you are free to leave. At this point the officer will have very little to base his decision to arrest you on and hopefully will let you go. If you are arrested for DUI you are now legally required to take a chemical test and refusing to do so will result is a license suspension. Even if you are arrested your case will be much easier to defend if you followed all the outlined steps. There will be very little evidence for the prosecution to rely on.

Breath Tests and Mouth Alcohol

Brian Andritch — Mon, 07 Feb 2011 04:12:00 GMT

"Mouth alcohol" refers to the presence alcohol in the mouth when a breath test is being administered. Mouth alcohol can cause an abnormally high breathalyzer test result, but actually quantifying it is difficult. A breath test result will show higher than normal results if the suspect has mouth alcohol.

There are many factors that can cause mouth alcohol, a few are:

Breath fresheners do have trace amounts of alcohol. Products such as Listerine and Binaca contain small levels of alcohol and can certainly affect breath test results. Cough medicines such as NyQuil also contain alcohol and can affect test results the same way.
Bodily functions such as hiccups, burps, or even vomit can also affect the test results. Actions such as these bring the vapors of alcohol from the stomach back up to the mouth.
A hiatal hernia can also cause elevated test results.
Dental caps and bridges can capture alcohol in a crevice and be blown out by a breath.
If the suspect has a chronic reflux condition, alcohol can travel up from gastric distress.

This is why Title 17 of the California Code of Regulations requires that a law enforcement officer observes someone for 15 minutes prior to administering a breathalyzer. If a person vomits or burps during the 15 minute period the officer is supposed to begin observing for another 15 minutes. If law enforcement officers do not comply with Title 17 requirements the accuracy of the test can often be successfully challenged.

I will need to do a thorough review of the timing of the drinking and the timing of the breathalyzer test to evaluate how accurate the breathalyzer test result in a given case is. I also typically subpoena records of the specific breathalyzer device to ensure it was properly calibrated and review the maintenance records.

I am often asked about expungements (PC1203.4)

Brian Andritch — Fri, 04 Feb 2011 20:46:00 GMT

To be eligible for relief pursuant to Penal Code 1203.4 (expungement) you must successfully complete probation. Assuming you have done so and paid all fines then you are eligible.

There are two ways to seek an expungement. You can do it yourself by filling out a judicial counsel form, submitting it to the Probation Department, and paying a fee (I believe $125). The Probation Department will review your criminal record and assuming you have no additional criminal charges pending and successfully completed probation a judge should grant the motion. The second option is to hire an attorney to prepare a formal Expungement Motion. The fee will substantially more than $125 however.

After you successfully expunged your criminal conviction, if a private employer asks if you have ever been convicted of a crime, you can respond with "No." Most federal and California government applications however, ask you, under penalty of perjury, if you have ever had a case expunged or cleared from your record, and you have a duty to answer this truthfully. Also, if you are applying for public office or a state license (i.e. real estate, doctor, lawyer, stockbroker, etc.) you must disclose the conviction. Even so, the fact that a court found good cause to expunge your conviction weighs in your favor.

Also, as far as the DMV is concerned the conviction will remain and if you are convicted of a DUI within 10 years of the arrest for your wet reckless case the new DUI will be considered a second offense.

Do Juvenile Offenses Count as Strikes?

Brian Andritch — Sun, 30 Jan 2011 00:06:00 GMT

Juvenile offenses may be counted as a strike provided the juvenile was at least 16 when the crime was committed and the crime was one of the crimes listed below.

- Murder.
- Arson of an inhabited building.
- Robbery while armed with a dangerous or deadly weapon.
- Rape with force or violence or threat of great bodily harm.
- Sodomy by force, violence or threat of great bodily harm.
- Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code.
- Oral copulation by force, violence, duress, menace, or threat of great bodily harm.
- Any offense specified in Section 289 of the Penal Code.
- Kidnapping for ransom.
- Kidnapping for purpose of robbery.
- Kidnapping with bodily harm.
- Assault with intent to murder or attempted murder.
- Assault with a firearm or destructive device.
- Assault by means of force likely to produce great bodily injury.
- Discharge of a firearm into an inhabited or occupied building.
- Any offense described in Section 1203.9 of the Penal Code.
- Any offense described in Section 12022.5 of the Penal Code.
- Any felony offense in which the minor personally used a weapon listed in subdivision (a) of Section 12020 of the Penal Code.
- Any felony offense described in Section 136.1 or 137 of the Penal Code.
- Manufacturing, compounding, or selling one-half ounce or more of any salt or solution of a controlled substance specified in subdivision (e) of Section 11055 of the Health and Safety Code.
- Any violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code, which would also constitute a felony violation of subdivision(b) of Section 186.22 of the Penal Code.
- Escape, by the use of force or violence, from any county juvenile hall, home, ranch, camp, or forestry camp in violation of subdivision (b) of Section 871 where great bodily injury is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape.
- Torture as described in Sections 206 and 206.1 of the Penal Code.
- Aggravated mayhem as described in Section 205 of the Penal Code.
- Carjacking, as described in Section 215 of the Penal Code, while armed with a dangerous or deadly weapon.

A common misconcepiton of the Three Strikes Law is that to be sentenced to life in prison you must be convicted of three strike offenses. This is not the law. If a person has two prior strike convicitons and is subsequently convicted of any felony, the potential sentence is 25 years to life. Two prior strike convictions plus any felony conviction subjects a person to a potential life sentence.

Ignition Interlock Required For First Time DUI Offenders

Brian Andritch — Thu, 27 Jan 2011 05:58:00 GMT

More and more states are beginning to require that first time DUI offenders install ignition interlock devices in their vehicle. An ignition interlock device requires drivers to breathe into a tube prior to starting their vehicles. If the device detects alcohol, the vehicle will not start. The device also randomly requires drivers to breathe into the tube to test for alcohol; if alcohol is detected, the vehicle will be disabled. So far, about fourteen states have passed laws requiring first time DUI offenders to install such devices.

Last July, California started a pilot program requiring that first time DUI offenders install ignition interlock devices. So far, these devices are only required in four counties, but one of those counties is in the Central Valley. If you are convicted of a first offense DUI in Tulare County, you will be required to install an ignition interlock device. Installation costs approximately $100 and monthly fees are approximately $75.

Welcome to Our Fresno Criminal Defense Blog

Brian C Andritch — Fri, 14 Jan 2011 18:08:00 GMT

Our Attorneys are please to announce the launch of our criminal defense blog.