California Criminal Defense Blog - Page 3 of 6

Avoiding Isla Vista Police

A great strategy for avoiding legal trouble in college is to avoid police encounters. The key to avoiding Isla Vista police encounters is knowing about the police: who they are, where they are, when they patrol, and what they are looking for.

Who they are

The Isla Vista Foot Patrol patrols Isla Vista. The Isla Vista Foot Patrol is made up of the UCSB Police Department and the Santa Barbara County Sheriff. The Santa Barbara County Sheriff also independently patrols Isla Vista because it is in the County of Santa Barbara.

Where they are

According to the UCSB Police Department Daily Crime Log, a large number of police encounters occur between the 6500 and 6700 blocks of Del Playa Drive. A large number of encounters also occur around the same blocks on Trigo Road and Sabado Tarde Road. The odds of avoiding Isla Vista police increases greatly if you avoid these specific areas.

When they patrol

The Santa Barbara Sheriff patrols Isla Vista at all times of the day and night. However, the majority of police encounters listed on the Daily Crime Log occur between 10pm and 1am.

Isla Vista law enforcement has an especially strong presence at certain times of the year. One example of this is the weeks before and after Halloween.

What are they looking for

Many students will inevitably end up around the 6500 to 6700 blocks of Del Playa Drive, Trigo Road, or Sabado Tarde Road between 10pm and 1am. It is not a crime to be in these areas and this is usually where students gather to party and socialize in Isla Vista. Halloween, Deltopia, and other celebrations draw large crowds of students to these areas.

The main things law enforcement looks for are possession of drugs or alcohol, alcohol intoxication, and violent or aggressive conduct. They also look for theft, noise violations, and driving under the influence. Although law enforcement focuses on these behaviors, they will act to arrest any person if they have probable cause to believe that person committed a crime. Other common Isla Vista offenses include furnishing alcohol to minors, drug possession and sale, rape and sexual assault, and burglary.

For students who decide to attend gatherings at the above places and times, avoiding certain behaviors is crucial to avoiding Isla Vista police:

1. Do not openly carry alcohol in public.

Even if you are over 21, you are inviting a police encounter by openly carrying alcohol in public. This is true even if the container you are carrying is not an alcohol container. Holding red cup or water bottle is probably still suspicious enough to warrant a police encounter. If you do carry alcohol containers like alcohol or beer bottles it is best to keep them concealed inside a bag, purse, backpack, or other container.

2. Do not consent to a search of your private items.

If police stop you and ask you to look inside your bag, purse, backpack, etc., politely tell them that you do no consent to a search of your personal private property. If they demand to search your property, you should not resist. Instead, continue to state that you do not consent.

3. Do not be alone and intoxicated.

If you are under the influence of alcohol or drugs, do not wander alone. This gives police reason to believe you will be unable to care for yourself, which is grounds for arrest. Make sure you are with a group of friends that you trust, and who will not leave you behind.

4. Do not antagonize or offend the police.

Police expect to be treated with respect. Think of your first grade teacher. If you were to show them open hostility or disrespect, you would be headed straight to the principal’s office. If you are hostile or disrespectful to the police, you are likely to be headed straight to jail.

5. Do not go into houses if you are not invited.

There are many open parties in Isla Vista. However, it is always a good idea to stick to attending parties where you at least know a friend of a friend. This will reduce the likelihood of a fight or accusations of theft. It is also less likely that the police will show up to a party that is closed to friends, as opposed to open to anyone.

6. Avoid sex while intoxicated.

It is great to meet people at parties and social gatherings. However, having sex with someone who is intoxicated can result serious charges, including rape and sexual assault. The best practice is to use a party or gathering to meet people, and then consider having sex once you have gotten to know each other better.

Want to learn more about avoiding Isla Vista police? Contact RBX Law. We provide free consultations and lectures on police encounters.

SCHEDULE A FREE CONSULTATION

How to Choose a Criminal Defense Attorney

You have the constitutional right to choose an attorney to defend against criminal charges. However, in California this right does not extend to infractions or civil matters (even if they are based on criminal charges).

There are 3 Options

request the public defender
hire a private attorney
represent yourself

Self-representation (“In pro per”)

You have a constitutional right to represent yourself. However, even if you chose self-representation, the court can appoint an attorney to assist you with your defense. The court can also refuse to let you represent yourself if you are not mentally competent to stand trial. Self-representation can be a bad idea because you probably do not have the skills, expertise, or connections needed to defend against criminal charges.

Private attorney

You have the right to an attorney and can choose any licensed attorney to represent you. A “private attorney” is one that you chose and (usually) pay for their services.

Public defender

Each county in California has a public defender’s office that can represent you at little to no cost, provided you qualify financially. You do not have the right to chose which attorney from the public defender’s office will represent you. You can request a new public defender if you have a conflict with your appointed public defender.

Public defenders are typically experienced and skilled at all phases of criminal litigation, including negotiation, law and motion, and trial.

Public defenders usually carry a large case-load and therefore have limited time they can devote to each case.

How to Choose a Private Attorney

start looking early
ask for recommendations from friends and family
internet search

Hiring a Private Attorney

Here are a few things to think about when you choose a private attorney:

trust and respect
easy to work with
good communication
connections with local prosecutors and judges
skilled & experienced

Your attorney should have the skills and expertise for:

The type of case (Examples of case types: DUI, murder, fraud)
The defense strategies relevant to your case

Last thoughts on how to choose a private attorney

In summary, the more your attorney likes interacting with you, the more they will want to respond to you and work harder on your case.

RBX Law is a licensed California criminal defense lawyer.

Get Out of Jail

This post discusses how to get out of jail.

What is jail?

It is a temporary holding facility. In California, the county sheriff runs that jail and sheriff deputies work as jailers. However, some city police departments also have facilities to temporarily hold defendants.

Why am I in custody?

Inmates are in the custody of the county jail because:

they have a pending criminal case; and/or
they had an outstanding warrant; and/or
the judge sentenced them to county jail.

An inmate can be in custody for all three reasons.

Figuring out how to get out of jail depends on why the inmate is there.

Pending case

How long will I be in jail?

You could be there for months or even years while your case is pending. However, most people get out within a few days of their arrest. In fact, law enforcement is required to bring the inmate to court within 48 hours (not counting Sundays and holidays). (see Penal Code § 825.)

How do I get out of jail?

Bail

The jail sets the bail amount based on their bail schedule. The judge can modify the defendant’s bail amount. For some offenses, there is no bail. When the defendant has multiple charges, the amount of bail is equal to:

the highest bail for any of the charges; or
the total of all bail amounts added together.

Each county sets the bail amounts for various charges. You can find most “bail schedules” online. For an example, see the Santa Barbara County’s Bail Schedule.

OR release

OR stands for Own Recognizance. Most jails have a process for screening inmates for OR release. The defendant can also request OR release from the judge at their first court appearance.

Supervised release

The county probation department or the judge can place the defendant on supervised release. Supervised release means the inmate is out of custody, but still subject to specific restrictions on their behavior. While on supervised release, the inmate is also required to check in with the probation department. If the defendant violates the conditions of their supervised release, they can be remanded (sent back to jail).

Dismissal

If the judge dismisses all of the charges against the defendant, the jail will release the defendant from custody. If the jail does not release the defendant, the defendant can request release by filing a habeas corpus petition.

What is the fastest way to get out?

Bail, OR release, and supervised release are the fastest ways out of jail. Bail is usually the fastest. However, the bail process is complicated and can take longer than OR or supervised release.

Serving a sentence

How long will I be in jail?

You will be in jail for the amount of time on your sentence, or less. There a number of ways for an inmate to get out earlier.

Good time

Penal Code § 4019 reduces the inmate’s sentence by two days for every four days of custody if:

The inmate performed labor;
The inmate complied with the rules and regulations.

Program completion

Completing a program while in custody can reduce the overall sentence. Examples of programs include drug treatment and education.

Early release

Many jails are overcrowded and are under court order to reduce their inmate population. This means they often release inmates before they complete their sentence.

In jail on a warrant

How long will I be in jail?

Law enforcement must bring the inmate to court within 48 hours (not counting Sundays and holidays). If the warrant came from a different county than where defendant’s arrest occurred, law enforcement must immediately notify the county of the warrant of defendant’s arrest. The warranting county has 5 days to pick up the defendant.

I am not serving a sentence and do not have a pending case or a warrant. How do I get out?

Habeas corpus is a method of requesting release from custody. It commands an agency to bring the defendant to court to determine the lawfulness of their imprisonment, conditions of confinement, or other restraints on personal liberty.

Bench Warrant for Failing to Appear in Court

What is a bench warrant?

A bench warrant is a warrant to arrest a defendant for failing to appear in court when ordered. It instructs law enforcement to apprehend the defendant and bring them before the court.

Issuing the warrant

A judge or magistrate issues the warrant at the court hearing. The judge can issue a bench warrant for multiple reasons:

The judge previously ordered the defendant to appear in court at a specific time and place;
The defendant bailed out of jail and was ordered to appear in court at a specific time and place;
The defendant received OR release and promised to appear in court at a specific time and place;
The defendant received a citation and signed a promise to appear in court at a specific time and place;
The judge ordered the defendant to appear in court even though the defendant has a lawyer;
An information or indictment was filed in the superior court and the court fixed the date and place for the defendant to appear.

First court date

Most bench warrants result from the defendant’s failure to appear at their first court date. The first court date is also called the “arraignment.”

The defendant must appear in person at their first court date if:

One or more of the charges is a felony;
One or more of the charges involves domestic violence;
One or more of the charges involves driving under the influence AND the judge orders the defendant to appear.

In all other cases, an attorney can appear on behalf of the defendant if the court allows. (see Penal Code § 977.)

Some courts allow a defendant to appear remotely at their court appearance. To find out if you can appear remotely, contact the criminal clerk at the court.

What are the consequences of a bench warrant?

A bench warrant directs law enforcement to bring the defendant to court. Law enforcement can serve the warrant in any county in California. The bench warrant operates identical to an arrest warrant.

Do I have a bench warrant?

You can contact the criminal clerk at the court to find out. The clerk can look up your case using your name and date of birth.

How do I get rid of a bench warrant?

Either the defendant or their attorney must appear in court. At that time, the judge will recall the warrant.

Arraignment in a Criminal Case

What is arraignment?

An arraignment is a court hearing at which the court informs an individual accused of a public offense of the charges. The court also provides the individual with a copy of the accusatory pleading (an information or complaint).

When is arraignment?

Arraignment is the first court date in a criminal case. However, with felony charges, the defendant is also arraigned after a preliminary hearing (if defendant is “held to answer”).

An arraignment must take place no more than 2 calendar days after arrest if the defendant is in custody (Penal Code § 825). Sundays and holidays are not counted. If the defendant is out of custody, the prosecutor has 25 days to file a complaint. There is no deadline for arraignment when the defendant is out of custody (other than the statute of limitations).

Failure to comply with arraignment deadlines

If the prosecutor fails to comply with the deadlines, it does not necessarily mean the case will be dismissed. If, on the other hand, the delay prejudices the defendant, the judge could dismiss the case.

The judge can also dismiss a criminal case if the prosecutor fails to prosecute the case in a timely manner. Further, the prosecutor must comply with the statute of limitations – the deadline for bringing criminal charges (see Penal Code §§ 799-805). Failure to comply with the statute of limitations is grounds for dismissal of a criminal case.

How do I find my arraignment date?

The arraignment date will be on the citation from law enforcement. If law enforcement did not issue a citation, the date can be found on the bail or OR release paperwork.

What else happens?

Many other important events occur at the arraignment, including:

Appearance by defendant

The defendant is required to be present at the arraignment if charged with a felony or domestic violence charges.

Failure to appear at arraignment

If the defendant fails to appear, the judge can issue a bench warrant for the defendant’s arrest.

Advisement of Rights

If the defendant does not have an attorney, the court will advise the defendant of their constitutional rights. These include the right to an attorney, the right to a speedy jury trial, the right to present witnesses and evidence, the right to cross-examine witnesses, and the privilege against self-incrimination.

Plea

At arraignment, the defendant enters a plea. There are 6 types of pleas in California (see Penal Code § 1016). They are:

Guilty
No contest
Not Guilty

Previous conviction or acquittal of charges
Insanity
Double jeopardy

Demurrer

Demurrers are used to challenge defects that appear on the face of the accusatory pleading. The defendant may demur to a pleading instead of entering a plea if one of the grounds under Penal Code § 1004 exist.

Grand jury lacked legal authority;
Court lacks jurisdiction;
Pleading does not conform to Penal Code §§ 950 and 952;
Multiple offenses are charged and they do not meet the requirements of Penal Code § 954;
The facts in the pleading do not constitute a public offense;
That the facts in the pleading make a legal justification or excuse, or otherwise bars prosecution.

True Name

The defendant has the opportunity to provide their true name at arraignment. However, the defendant is not required to provide their true name (Penal Code § 989).

Protective order

The court can issue an order to protect the victim or witnesses. This happens in most domestic violence cases. The protective order can prohibit all contact between the defendant and the victim. Or, it can allow for peaceful contact. The court can also issue an order to prevent the police reports from being disclosed to anyone.

Bail

The court must set bail at the defendant’s first court appearance (if the offense is bailable).

Conditions of release

The court can set conditions of release for both in-custody and out-of-custody defendants. The conditions must necessary to ensure the safety of the public or to guarantee that the defendant appears in court.

Diversion

The defendant or their attorney can request diversion, if any diversion programs are available.

Hit and Run Restitution

Restitution is payment for damages caused when a defendant commits a criminal offense. For a hit and run, the criminal act is “running” without stopping, providing identification, or helping injured persons. Can any restitution be ordered for damages from a hit and run conviction?

The California Supreme Court has analyzed this issue. They have concluded that the court cannot order restitution for injuries or damages in a hit and run case unless:

The defendant caused the accident by committing a criminal act.
The defendant’s “running” from the scene caused or exacerbated the injuries or damages.
Restitution is a term of the defendant’s probation.

Hit and Run Restitution as Probation Term

[I]n granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety. (Penal Code section 1203.1) This includes the power to “regulate conduct not itself criminal'” but “reasonably related to the crime of which the defendant was convicted or to future criminality.'” This discretion, has long been held to include the power to order restitution “even when the loss was not necessarily caused by the criminal conduct underlying the conviction.” This power extends to cases in which:

The loss was caused by related conduct not resulting in a conviction;
By conduct underlying dismissed and uncharged counts; and
By conduct resulting in an acquittal.

In People v. Carbajal (1995) 10 Cal.4th 1114, the Supreme Court ruled that a trial court does not abuse its discretion in a hit-and-run case by ordering the defendant to pay restitution as a condition of probation. Such a condition can be reasonably related to the offense underlying the conviction and can serve the purposes of rehabilitating the offender and deterring future criminality.

Restitution without Probation

Restitution for losses incurred “as a result of the commission of a crime” (§ 1202.4, subd. (a)) includes losses incurred as a result of the defendant’s unlawful flight from the scene of the accident. However, it does not include losses incurred solely as a result the accident itself.

In People v. Martinez (2017) 2 Cal. 5th 1093, the court ordered $425,654.63 in restitution. Defendant appealed the restitution order, and the Court of Appeal agreed. The Supreme Court held that section 1202.4 authorizes courts in Vehicle Code section 20001 cases to award direct victim restitution for losses resulting from the defendant’s crime.

On a hit and run case, this includes flight from the scene of the accident without identifying himself or herself, rendering aid, or otherwise fulfilling the statutory requirements. (Veh. Code, § 20001(a).) For example,

If the flight leads to a delay in the victim’s access to medical care, and the victim’s injuries are exacerbated as a result; or
The cost of tracking down a defendant who has fled the scene of the accident.

On the other hand, section 1202.4 does not permit courts to order direct victim restitution for losses that occur as a result of an underlying accident that involves no criminal wrongdoing.

Field Sobriety Tests

What are Field Sobriety Tests?

Field sobriety tests are often divided attention tests (think rub your stomach while patting your head). Although they are not scientific tests, law enforcement uses them to obtain evidence of driving under the influence. The results of the tests are used by prosecutors to convict drunk drivers and to justify DUI arrests.

Refusing Field Sobriety Tests

You may refuse to do any field sobriety tests. One exception to this is that you must provide a blood, breath, or urine sample. However, you are only required to provide a sample if law enforcement arrests you for driving under the influence. Failure to provide a sample can result in further consequences.

“Standardized” Field Sobriety Tests

The following three tests are approved for law enforcement use by the National Highway Traffic Safety Administration.

Horizontal Gaze Nystagmus

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that happens when the eyes move to the side from center point. Prior to the administration of this test, an officer must check a subject’s eyes for equal pupil size, resting Nystagmus and equal tracking. The officer administers the test by slowly moving his finger in front of the suspect’s eyes.

An officer administering this test will check for three clues in each eye while checking for HGN:

Lack of Smooth Pursuit. When the eyes jerk or bounce as they follow a smoothly moving stimulus.
Distinct and Sustained Nystagmus at Maximum Deviation. When the eye jerks when it remains to the side for a minimum of four seconds.
Onset of Nystagmus Prior to 45 Degrees. When the eye begins to jerk when it moves 45 degrees from the center.

Four or more cues indicates that the suspect probably has a blood alcohol level over .08%.

Walk and Turn (aka “Walking the Line”)

The walk and turn test is a divided attention test. It divides the suspect’s attention between physical and mental tasks. The physical task is balancing and walking on a line. The mental task is completing the test exactly as instructed. The test begins with the instruction phase, followed by the walking stage.

The instruction phase begins with the suspect standing with their feet heel to toe (right foot behind) and arms at their sides. The suspect remains in this position while the officer explains the test. Next, the officer demonstrates three heel-to-toe steps, a turn, and three heel-to-toe return steps.

For the performance part of the test, the suspect must keep their arms at their sides and take nine heel-to-toe steps, followed by a turn and nine heel-to-toe return steps. The suspect must walk a straight line and cannot pause once they start walking. While walking, the must keep their arms at their side, look down at their feet and count each step.

During the test the officer will look for a number of cues for this test, including:

Loses balance during instructions;
Starts walking too soon;
Stops while walking;
Fails to touch heel-to-toe;

Steps off the line;
Uses arms for balance;
Makes an improper turn;
Takes the wrong amount of steps.

If the officer observes two or more of these cues, it indicates the suspect probably has a BAC over .08%.

One Leg Stand

There are two stages to the one-leg stand test. First the officer instructs the suspect in how to perform the test. Second, the suspect performs the test. During the instruction phase, the officer will provide oral instructions on performing the test. The officer will also demonstrate part of the test. Once this is complete, the officer asks the suspect if they understand the instructions.

During the performance stage, the suspect raises one leg with their foot parallel and approximately six inches off of the ground. With their hands to the side, they count in thousands (one-one thousand, two-one thousand, etc.) while looking at their foot until instructed to stop.

During the test, the officer will look for six possible clues: swaying, using arms for balance, hopping or putting your foot down. If the officer observes two or more clues, it indicates that the suspect probably has a BAC over .08%.

Other Field Sobriety Tests

Law enforcement commonly uses other field sobriety tests including:

Modified Romberg

Moritz Heinrich Romberg, a German neurologist, created the Romberg test to evaluate neurological function. Although it is not approved by the NHTSA, law enforcement uses it to determine intoxication. Like many field sobriety tests, it divides the suspect’s focus between a physical and a mental task.

The basis of the test is that two of the following three functions are needed to maintain balance: vision, inner ear and spacial orientation. If an individual is unable to properly balance using two of these functions, it may be an indication of a neurological problem. When administered as a field sobriety test it is evidence of intoxication.

To administer this test, the officer asks the suspect to stand with their feet together, head tilted slightly back and eyes closed. The officer asks the suspect to estimate when 30 seconds has passed, and say “stop.”

While you are balancing, the officer will look for six clues: amount and direction of swaying, eyelid/body tremors, estimate of when 30 seconds has passed, muscle tone, sounds or statements made during the test, and ability to follow directions.

Finger to Nose

The finger-to-nose test requires the suspect to close their eyes, tilt their head back slightly and touch their nose with their index finger. The suspect repeats this action three times on each hand, for a total of six attempts. The officer will instruct and demonstrate the test first. Then the suspect will perform the test as demonstrated.

While performing this test, the officer will look for a number of clues that indicate intoxication. These include: inability to follow instructions, swaying, eyelid/body tremors, speaking or making sounds during the test and failing to touch your finger to your nose. If you exhibit several of these clues, law enforcement could arrest you for driving under the influence.

DACA and DUI

DACA and DUI Overview

DACA and DUI do not mix. If you are convicted of a DUI with DACA, USCIS will not renew your DACA. A misdemeanor DUI conviction under Vehicle Code § 23152 or §23153 is a “significant misdemeanor” and a bar to eligibility for DACA. Without DACA protection, USCIC could deport you. One DUI is not ordinarily grounds for deportation. However, USCIS can deport a person with multiple DUI convictions.

Fighting the case

Given the stakes (loss of DACA protection) fighting the case may be your best option. You can fight the case by attacking errors made by the police. You can also fight the case by having a trial to determine whether you are guilty. The burden is on the prosecutor to prove that you were driving a vehicle and: 1) had .08% or greater Blood Alcohol Content (BAC); OR 2) were impaired by alcohol such that it affected your driving. The prosecutor must prove the DUI “beyond a reasonable doubt.”

In order to fight a DUI, you should have an attorney. You can hire an attorney, or if you cannot afford one, request the public defender to represent you.

Alternatives

Diversion with DACA and DUI

Diversion results in dismissal of criminal charges and is therefore the ideal outcome for people with DACA. However, in most counties it is rare for a judge to grant diversion on a DUI case. In the future, the legislature might change the diversion law to ensure that diversion is allowed for DUIs.

Non-DUI Charge

Another option is to resolve the case for a different charge, such as wet and reckless. The prosecutor must agree to change the charge. Usually the prosecutor will not reduce the charge unless the BAC is low (less than .10%). However, sometimes the prosecutor will agree to a wet and reckless conviction with a higher BAC. This happens when there are weaknesses in the prosecutors case or other factors that warrant a lesser charge.

Timing DACA and DUI Conviction

The best time to be convicted of a DUI is immediately after your DACA renewal. This allows the maximum time for rehabilitation and record-clean up. Ideally, by the time your next DACA renewal comes up you will have several years of clean record and rehabilitation.

Expungement and Rehabilitation

A DUI conviction that has been expunged or vacated is not a per se bar to DACA. However, USCIS may still consider an arrest for a DUI offense as a negative discretionary factor in evaluating whether to grant or deny DACA. This makes rehabilitation for a DUI extremely important. Rehabilitation includes attending AA meetings, completing DUI class, paying restitution and remaining crime-free.

Marijuana DUI

What is a marijuana DUI?

A “marijuana DUI” is driving under the influence of marijuana. It is illegal under Vehicle Code § 23152(f).

A person is “under the influence” of marijuana if they are unable to drive with the caution of a sober person.

Recreational Marijuana

Recreational marijuana is legal in California for people over the age of 21. However, it is illegal to drive under the influence of marijuana. Drivers who fail sobriety tests and are in possession of marijuana are often arrested for DUI.

Marijuana DUI Investigation

The reason for a DUI stop is usually poor driving, or a crashed or stopped vehicle. Officers start by making contact with the driver of the vehicle and asking them to roll down their windows. Once the windows are down, officers look for signs of marijuana use.

The smell of fresh (unburned) marijuana by itself is not reason for investigation. However, law enforcement can investigate if they observe:

Indications of marijuana use;
An open marijuana container;
Evidence of other illegal activity.

Typically officers will note the smell of marijuana smoke and red eyes. If officers observe these indicators, they will initiate a DUI investigation by asking you to step out of your vehicle. Officers usually ask DUI suspects to perform field sobriety tests during the DUI investigation.

TIP: You may refuse any law enforcement request…refusing an order can result in further consequences.

Marijuana DUI Arrest

If law enforcement has “probable cause” to believe a driver is under the influence of marijuana, they can arrest the driver. Common facts and circumstances used by law enforcement to support probable cause include:

Smoke or paraphernalia in car.
Smell marijuana smoke on hands or breath.
Strong smell of marijuana in vehicle.
Appearance and actions of driver.
Failed field sobriety test(s) (ok to refuse).
Suspect confesses to illegal conduct.
Pay/owe sheets, scales, large quantities of money.
Driver is sole occupant and/or car full of luggage.

Once the officer arrests a suspect, they will ask that person to submit to a blood test. Refusing to provide a blood sample can result in a suspended driver’s license.

Criminal Charges

The arresting officer will send a copy of their report to the local prosecutor. The prosecutor decides whether to file the charge or charges recommended by law enforcement. Law enforcement also provides the driver with a notice to appear in court.

Fighting the Charge

At the date listed on the notice to appear, the court proceedings begin. The defendant or their attorney needs to appear in court on that date. Failure to appear can result in a bench warrant. A bench warrant is an order for law enforcement to arrest the defendant.

The following are four ways to fight a marijuana DUI:

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search.
For misdemeanor DUI charges, you may ask the court to divert your case by filing a motion.
The prosecutor may be willing to resolve your case for a wet and reckless.
You may go to trial and have a judge or jury determine your guilt.

Punishments for Marijuana DUI

The sentence for marijuana DUI conviction is a suspended driver’s license, fines, 3-5 years of probation, a conviction on your criminal record, and at least 3 months of DUI classes.

DUI Court Hearings

What are DUI court hearings?

DUI court hearings begin with an arraignment. The next steps are pre-trial conferences, and motions (if necessary). Most DUI cases are resolved during the pre-trial stage by plea agreement with the prosecutor. However, the defendant has the right to go to trial and have a judge or jury determine their guilt.

Arraignment

At arraignment, the court will advise the defendant of their constitutional rights and the charges against them. The defendant will have the opportunity to plead guilty or not guilty, and to admit or deny any other allegations.

At arraignment for a DUI, the court will also determine whether to put any pre-trial conditions on defendant. Common pre-trial conditions include:

Supervised release;
Attendance at AA meetings;
Wearing a SCRAM alcohol-monitoring bracelet;
Installing an ignition interlock device;
Enrolling in a treatment program.

It is more likely that the court will impose these conditions if the defendant had a blood alcohol content over .15%. Conditions are also likely if the DUI resulted in an accident or injury, or the defendant already has one or more DUI convictions.

You may be able to avoid some conditions if you take steps toward rehabilitation before your first court date. Attending AA meetings and enrolling in the appropriate DUI class are good ways to show you are not a risk to commit another DUI while your case is pending.

Also at the arraignment, the prosecutor will provide the defendant or their attorney with police reports and other items of “discovery.” In addition, the prosecutor typically provides an offer to resolve the case.

Pre-trial Conferences

During pre-trial conferences, the judge, prosecutor and defendant (or their attorney) discuss the status of the case. Topics include the status of discovery, anticipated motions, and trial readiness. In between pre-trial conferences, the prosecutor and defense counsel discuss settlement of the case. Typically that settlement includes a plea to a DUI charge, 3-5 years of probation, and a fine. If your blood alcohol content was at or near .08%, the prosecutor may be willing to resolve your case for a wet and reckless, or dry and reckless charge.

DUI Court Motions

Motions can be an effective tool to fight a DUI case. Motions are used to exclude evidence from the case or to request a dismissal or diversion.

Motion to Suppress

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search. This is commonly referred to as a motion to suppress under Penal Code section 1538.5. If the motion is granted, the judge can suppress evidence. This means that the the prosecution cannot use that evidence in the case against you.

Motion for Diversion

Diversion is not permitted for DUI’s, with the exception of military diversion under Penal Code section 1001.80(l).

Trial

At trial, the key issues will be 1) whether the defendant was the driver of the vehicle, 2) whether the defendant was under the influence when they were driving and 3) whether their blood alcohol was over .08% (or .01% if under 21) at the time they were driving. You have the right to a jury trial, where a jury of your peers determines if you are guilty. You may also have a court trial, where a judge makes that determination. At trial, the defendant bears the burden of proving that they have a valid defense to DUI charges.