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Table of Contents
Chapter 1: Drunk Driving Offenses
Chapter 2: Additional Charges
Chapter 3: Arraignment and Pretrial Matters
Chapter 4: Prior Convictions of Separate
Offenses
Chapter 5: Discovery
Chapter 6: Other Pretrial Motions
Chapter 7: Search and Seizure
Chapter 8: [Reserved]
Chapter 9: Trial Defense of DUI in
Chapter 10: Punishment
Chapter 11: DMV Proceedings
Chapter 12: Criminal Appeals and Civil Writs
Chapter 13: Interstate Implications of Drunk Driving
Convictions
Chapter 14: Restitution
Chapter 1: Drunk
Driving Offenses §1:10 BASIC DRUNK DRIVING OFFENSES §1:11 CVC §§23152(a) and (b): DUI Alcohol; 0.08% Per Se §1:11.1 A Comparison of Subdivisions (a) and (b) §1:11.2 Direct Breath 0.08% Per Se Offense §1:11.3 Double Jeopardy Attack on 0.08% Per Se Statute §1:11.4 Vagueness Attack on 0.08% Per Se Statute §1:11.5 Direct Breath Per Se Offense Based Upon Drinking AFTER Driving §1:11.6 “Drive” §1:11.7 “Highway” Driving Not Required §1:11.8 “Vehicle” §1:11.9 Impairment by Alcohol—Sufficiency of Evidence §1:11.10 Test Results Near the Limit—Sufficiency of Evidence §1:11.11 Proof of Impairment Based Upon Bad Judgment §1:11.12 Multiple Charges From Same Act or Course of Conduct §1:11.13 Allegations of DUI Drugs Without Evidence in Support §1:12 CVC §23152(a) Based Upon DUI Drugs §1:12.1 Impairment to an Appreciable Degree §1:12.2 Proof of Impairment Based Upon Bad Judgment §1:12.3 Forensic Science Mostly Favors the Defendant §1:12.4 Common Prescription Medications §1:12.5 Illicit Drugs §1:12.6 Expert Testimony and Drug Recognition Experts (DRE) §1:12.7 NHTSA Training Materials on DRE §1:12.8 Evidence Issues §1:12.9 Zero Tolerance Trend Toward Drug-Related Driving Offenses §1:12.10 Allegations of DUI Drugs Without Evidence in Support §1:12.11 No Need to Name Every Drug §1:13 CVC §23152(c): Driving by Addicted Person §1:14 CVC §23152(d): Commercial 0.04% Per Se §1:15 CVC §§23550 and 23550.5: Felony Drunk Driving Due to Prior Convictions §1:15.1 CVC §23550: Three Priors §1:15.2 CVC §23550.5: Felony-Punished Drunk Driving Prior Within 10 Years §1:16 Under 21; Juveniles §1:16.1 CVC §23136: 0.01% Admin Per Se Under 21 §1:16.2 CVC §23140: 0.05% Per Se Under 21 §1:16.3 CVC §§23152 and 23153 §1:16.4 Juvenile Drunk Driving Prosecution Procedure §1:17 CVC §23577: Chemical Test Refusal Sentence Enhancement §1:18 CVC §23572: Child Endangerment Sentence Enhancement §1:19 CVC §23582: Reckless Speed Enhancement
§1:20 Felony
Drunk Driving §1:21 CVC §23153 (a) and (b) §1:21.1 Forbidden Act or Neglected Duty; Supporting Offense §1:21.2 Proof of Forbidden Act and Neglected Duty §1:21.3 Pleading of Forbidden Act and Neglected Duty §1:21.4 Double Jeopardy Attack on Supporting Offense §1:21.5 Cause: But for, Proximate, Concurrent, Superseding and Intervening §1:21.6 Bodily Injury to Another §1:21.6.1 Great Bodily Injury §1:21.7 Charging More Than One Person Injured or Killed §1:22 CVC §23153(d): Commercial 0.04% Per Se With Injury §1:23 DMV Action for Fatal and Serious Injury Accidents §1:24 Felony Drunk Driving Due to Prior Convictions §1:25 Drunk Driving Murder §1:25.1 Causation §1:25.2 Punishment §1:26 Reduction to Misdemeanor
§1:30
VEHICULAR MANSLAUGHTER §1:31 Pen. C. §191.5(a): Vehicular Manslaughter While Intoxicated With Gross Negligence §1:31.1 Elements of the Offense §1:31.2 Punishment §1:32 Pen. C. §191.5: Gross Vehicular Manslaughter While Intoxicated §1:32.1 Elements of the Offense §1:32.2 Punishment P.C. §191.5(c)(2) §1:32.3 Use of CVC §23140 as the Drunk Driving Offense §1:32.4 Punishment §1:33 Death of a Human Being §1:33.1 Death Requires Injury §1:33.2 Death of a Fetus §1:33.3 Charging More Than One Person Killed §1:34 Lesser Related vs. Lesser Included Offense of Murder §1:35 Jury Instructions §1:35.1 Unlawful Act §1:35.2 Lawful Act in an Unlawful Manner §1:35.3 Proximate Cause §1:36 Retrial After Mistrial §1:37 Punishment and DMV Action §1:38 Felony Drunk Driving Due to Prior Convictions §1:40 COMMERCIAL VEHICLES AND COMMON CARRIERS §1:41 49 U.S.C. §§2701 et seq.: Commercial Motor Vehicle Safety Act §1:41.1 Arrest and Detention for Commercial Offenses §1:41.2 CVC §23152(d): Commercial Driving 0.04% Per Se §1:41.3 CVC §34501.15: Commercial Driving Over 0.01% BAC §1:41.4 Transportation Employee Drug and Alcohol Testing §1:42 Common Carrier Operation Under Influence
§1:42.1
Pub. Util. C. §§7818, 7679 and 21407.5; Harb. & Nav. C. §655: §1:42.2 18 U.S.C. §§341 et seq.: Federal Common Carrier Offense §1:50 OTHER DRINKING/DRIVING OFFENSES §1:51 Pen. C. §664: Attempted Drunk Driving §1:51.1 Arrest §1:51.2 The Offense §1:51.3 Plea Bargaining Significance (No DMV Consequence for Attempted DUI) §1:51.4 Right to Jury Instruction on Attempt in Drunk Driving Case §1:52 CVC §21200.5: Drunk Bicycling §1:53 Pen. C. §193.8: Lending Vehicle to Intoxicated Juvenile §1:54 Drunk Boating §1:54.1 Common Carrier Ships and Vessels
§1:54.2
§1:54.3 Drunk Boating Diversion §1:54.4 46 U.S.C. §2101: Federal Drunk Boating §1:55 CVC §21221.5: “Motorized Scooter” Drunk Driving §1:60 DUI on Federal Property §1:60.1 Land Administered by the National Park Service
§1:60.2
Other §1:61 Right to Jury Trial §1:62 Penalties and Sentencing §1:63 Procedure in Federal Court §1:63.1 Personal Appearance of Defendant Required; Exception §1:64 Rules of Evidence in Federal Court §1:65 Appeals in Federal Court §1:66 Expungements in Federal Court §1:67 Use of Federal Conviction as Prior Offense §1:70 FEDERAL PROGRAMS §1:70.1 Commercial Motor Vehicle Safety Act §1:70.2 National Driver Register
Chapter 2:
Additional Charges §2:10 INFRACTION TRAFFIC OFFENSES §2:11 General Information §2:11.1 Read Fight Your Ticket §2:11.2 Is a “Full Custodial Arrest” Legal? §2:11.3 Pen. C. §654 and Multiple Prosecutions §2:11.4 CVC §§21001 and 24001: “Operation” of “Vehicles” Upon the “Highways” §2:11.5 Distinctive Uniform and Vehicle §2:11.6 Practice Tips for Fighting Traffic Infractions §2:11.7 Traffic Violator School and Diversion
§2:11.8
§2:11.9 Notice to Appear, Arrest, Custody and Bail Schedules §2:11.10 Local Ordinances §2:11.11 Traffic Signs and Other Traffic Control Devices §2:11.12 Federal Enclave Prosecution of Traffic Offenses §2:11.13 Prosecution on Citation Serving as the Complaint §2:11.14 BAJI Instructions on Infraction Offenses §2:11.15 Rules of Court and Standards of Judicial Administration §2:11.16 DMV Negligent Operator Actions §2:11.17 Fines for Traffic Infractions §2:11.18 Police Officers as Prosecutors and Ex Parte Discussions §2:11.19 Elevating an Infraction to a Misdemeanor §2:12 Speeding §2:12.1 Complaint Must Allege Speed of Vehicle §2:12.2 Basic Speed Law §2:12.3 Prima Facie Speed Limits §2:12.4 Maximum Speed Limits §2:12.5 Radar Speed Law Enforcement §2:12.6 Validity of Speed Limit Usually an Element of the Offense §2:12.7 CVC §23109: Speed Contest §2:12.8 Driving Privilege Suspension for Speed Over 100 mph §2:13 Speed Traps Generally; Remedies for Use §2:13.1 Speed Trap Remedies for Charges Involving the Speed of a Vehicle §2:13.2 Speed Trap Remedies Apply to Pretrial Hearings Too §2:13.3 Speed Trap Limitations §2:14 Measured-Section-of-Highway Speed Traps §2:15 Radar and Lidar Speed Traps §2:15.1 Photo Radar vs. Photo Red Light Enforcement §2:15.2 Radar and Lidar Speed Trap With Survey Five Years Old or Less §2:15.3 Radar and Lidar Speed Traps Using Surveys Five to Ten Years Old (January 1, 1999, Amendments to CVC §40802) §2:15.4 CVC §40802 Applies to Unjustified Prima Facie Speed Limits §2:15.5 CVC §40802 Applies to Laser Speed Detection and Other Electronics §2:15.6 Prosecution Has Burden of Producing Survey §2:15.7 Survey Must Meet Evidentiary Objections §2:15.8 Requirements for a Proper Survey §2:15.9 What if Survey Shows Defendant’s Speed Unsafe? §2:15.10 What if Defendant Exceeded the Maximum Speed Limit in a Prima Facie Speed Zone? §2:15.11 No Visual Estimates of Speed §2:16 Lack of Insurance: Criminal Prosecution §2:16.1 At Time of Vehicle Registration §2:16.2 Criminal Offense for No Evidence of Insurance at Time of Accident or Notice to Appear §2:16.3 Exchange of Information Regarding Accident §2:16.4 Driving Privilege Suspension Following Accident §2:17 Motorcycle Violations §2:17.1 O.K. to Use Car Pool Lanes §2:17.2 Helmets §2:18 Illegal U-Turn §2:19 Stop Signs (What Does “At the Limit Line” Mean?) §2:20 License Plate Offenses §2:20.1 Rear License Plate Light §2:20.2 Missing Front License Plate §2:20.3 Stealth License Plates §2:21 Seatbelt and Child Restraint Offenses §2:22 Traffic Signals—Red Lights §2:22.1 The Statutes §2:22.2 Automated Enforcement Systems—Red Lights and Rail Crossings §2:23 Rail Crossings §2:24 Stop and Yield Signs, Signaling and Left Turns §2:25 Construction and Maintenance Areas §2:25.1 Offense Enhancement §2:25.2 Construction Equipment in Construction Area Exempt From Rules of the Road §2:26 Tinted Windows §2:27 Double Fine Zone Pilot Project §2:28 Off-Highway Vehicles §2:30 SUSPENDED, REVOKED, or restricted LICENSE—CRIMINAL PROSECUTION §2:31 Elements of the Suspension/Revocation Offenses §2:31.1 Reason for Suspension/Revocation §2:31.2 CVC §14601: Bad Driver Offense §2:31.3 CVC §14601.1: Catch-All Offense §2:31.4 CVC §14601.2: Drunk Driving Conviction Offense §2:31.5 CVC §14601.2: Using Unconstitutional Drunk Driving Conviction §2:31.6 CVC §14601.3: Habitual Offender Offense §2:31.7 CVC §14601.4: Drunk Driving/Manslaughter Conviction Offense With Injury §2:31.8 CVC §14601.5: Stop ‘n Snatch Suspension, Revocation and Restriction §2:31.9 CVC §14603: Non-Drunk Driving Conviction Restrictions §2:31.10 CVC §14604: Loaning a Vehicle to a Suspended, Revoked or Unlicensed Driver §2:31.11 Highway vs. Non-Highway and Private Property §2:31.12 Extension of Suspension Start Date for Mailed Order §2:31.13 What Offense After Suspension/Revocation Time Expires? §2:31.14 Suspension/Revocation Reportable on Driver’s License Record §2:31.15 The Knowledge Element §2:32 The Knowledge Element §2:32.1 Offenses Prior to January 1, 1995 §2:32.2 Offenses On or After January 1, 1995 §2:33 Defenses §2:33.1 Voluntary Intoxication §2:33.2 Necessity, Medical Emergency §2:34 Restrictions and Exceptions Allow Some Driving §2:34.1 Highway vs. Non-Highway §2:34.2 Employer’s Vehicle on Employer’s Property §2:34.3 Lack of Insurance—Mental Exception and Work Restriction §2:34.4 DMV’s Broad Authority to Issue Restricted Driver’s License §2:34.5 Motorized Electric Bicycle §2:35 Punishment §2:35.1 Punishment Chart for Driving Under Suspension or Revocation §2:35.2 It’s a Misdemeanor §2:35.3 Mostly Two-Point Offenses §2:35.4 Restitution Not Proper §2:35.5 CVC §23592: Vehicle Impoundment in Criminal Proceeding §2:35.6 Home Detention Pilot Project §2:36 Petition for Reinstatement of Revoked License §2:37 Driving Beyond Scope of Restricted License §2:40 SUSPENDED OR REVOKED LICENSE—CIVIL IMPOUNDMENT/FORFEITURE §2:41 Before January 1, 1995 §2:42 30-Day Impound Beginning January 1, 1995 §2:42.1 CVC §14602.6: Statutory Provisions §2:42.2 Release of Vehicle Without Current Registration §2:42.3 Innocent Owners, Legal Owners and Rental Agencies §2:42.4 Due Process Rights §2:42.5 Knowledge of the Suspension §2:42.6 Exemption for Child Support Suspension §2:42.7 Efficacy of Vehicle Impoundment Program as Deterrent §2:43 Forfeiture Beginning January 1, 1995 §2:43.1 CVC §14607.6: Statutory Provisions §2:43.2 Release of Vehicle Without Current Registration §2:43.3 Innocent Owner Defense §2:43.4 Hearing Time Limits §2:43.5 Due Process Rights §2:43.6 Knowledge of the Suspension §2:43.7 No Exemption for Child Support Suspension §2:44 Post-Storage Hearing Due Process Rights
§2:44.1
Notice and §2:44.2 Right to a Meaningful Post-Storage Hearing §2:44.3 Remedies for Denial of Due Process §2:44.4 Judicial Review Following Post-Storage Hearing §2:45 CHP Vehicle Procedures Manual §2:46 Innocent Owner Defense §2:47 Release of Vehicle Without Current Registration §2:48 Halper Double Punishment Issues §2:49 Reimbursement of Expenses for DMV Error §2:50 RECKLESS DRIVING §2:51 Reckless Driving Without Injury: CVC §23103 §2:51.1 Jury Instruction on Elements—Regressive Evolution §2:51.2 “Willful or Wanton Disregard” §2:51.3 “Highway” and “Vehicle” §2:52 Reckless Driving With Injury: CVC §23104 §2:53 Punishment §2:53.1 Criminal Case §2:53.2 DMV Action §2:53.3 Vehicle Impound in Separate Proceedings §2:54 In Drunk Driving Case §2:54.1 Plea Bargain Reduction to Reckless Driving §2:54.2 Reckless Driving Conviction Not Useable as a Drunk Driving Sentence Enhancement §2:54.3 Reckless Driving/Speeding Enhancement §2:54.4 Vehicle Impound in Separate Proceedings §2:60 DRIVER’S LICENSE OFFENSES §2:61 Driving Without Being Licensed §2:61.1 Civil Impoundment and Forfeiture §2:61.2 Detention for Unlicensed Driving §2:61.3 Aliens and Immigrants §2:61.4 Foreign Commercial Driver’s License §2:61.5 International Driver’s License and Permits §2:61.6 Burden of Proof §2:61.7 Non-Resident: Jury Instruction §2:62 Failure to Possess and Failure to Display §2:63 Loaning a Vehicle to Suspended, Revoked or Unlicensed Driver §2:64 Fraudulent Driver’s License §2:70 HIT & RUN: CVC §§16025, 20001 & 20002 §2:71 Duty to Stop and Provide Information §2:71.1 CVC §16025: Following Any Accident §2:71.2 CVC §20002: Following Accident Without Injury §2:71.3 CVC §20001: Following Accident With Injury §2:71.4 Unconscious Driver §2:71.5 Driver Not Readily Apparent as Having Been Involved §2:71.6 Multiple Victims §2:71.7 Un-Mirandized Admissions Useable by Prosecution §2:72 “Accident” Equals “Willful” §2:73 Punishment §2:73.1 Jail and Fine §2:73.2 Enhancement for Injury §2:73.3 No Injury Enhancement Without Proximate Cause §2:73.4 DMV Action §2:73.5 Manslaughter Enhancement §2:73.6 Restitution §2:73.7 State Bar Discipline §2:73.8 Suspension/Revocation for Commercial Drivers §2:74 Civil Compromise §2:80 Other Charges §2:81 Open Container Violations §2:81.1 Elements of Various Offenses §2:81.2 Local Government May Not Regulate Possession or Transportation of Alcoholic Beverages §2:82 Under 21 and Juvenile Alcohol Offense Suspensions §2:82.1 0.01% Infraction and APS Suspension §2:82.2 CVC §13202.5: One-Year Suspension for Alcohol Offenses §2:82.2.1 Validity and Construction §2:82.2.2 Triggering Alcohol and Drug Offenses §2:82.2.3 Procedure §2:82.2.4 Ignition Interlock Device §2:82.3 30-Day Restriction for Juvenile With Two Points in a Year §2:82.4 6-Month Suspension and DMV Probation for Juvenile With Three Points in a Year, Plus SR-22 Requirement §2:83 Child Endangerment §2:84 Evading a Pursuing Cop §2:84.1 The Offense §2:84.2 Punishment §2:84.3 Vehicle Impound in Separate Proceedings §2:85 Drug Possession §2:85.1 Penal Code §1000 Drug Diversion §2:85.2 Penal Code §1210 (Prop. 36)
Chapter 3:
Arraignment and Pretrial Matters §3:10 SPEEDY TRIAL RIGHTS and CONTINUANCEs §3:11 Statutory Speedy Trial Rights §3:11.1 Trial Within 30 or 45 Days §3:11.2 30- or 45-Day Period; Effect of Waiver and Subsequent Withdrawal of Waiver §3:11.3 Full Advice Required Without Counsel §3:11.4 10 Days More After 30 or 45; Effect of Waiving §3:11.4.1 Showing of Good Cause for Continuance Still Required During 10-Day Grace Period §3:11.5 Continuance for “Good Cause” §3:11.5.1 Congested Court Calendar Not “Good Cause” Absent Exceptional Circumstances §3:11.6 Continuance for Calendar Conflict §3:11.7 Right to Continuous Trial §3:11.8 Failure to Appear §3:11.9 Review of Denial of Right §3:12 Constitutional Speedy Trial Rights §3:13 Speedy Sentencing Rights §3:20 ARRAIGNMENT §3:21 Change of Venue §3:22 Failure to Appear, Bail, O.R. and Conditions §3:22.1 Failure to Appear and the Right to Appear Through Counsel §3:22.2 Bail and O.R. Release, Conditions §3:23 Police Report at Arraignment
§3:24
Proceedings After Mistrial and §3:25 Judge May Order Booking §3:26 Court May Not Require DA at Arraignment §3:27 Commissioner May Conduct Arraignment §3:28 Arrest Deemed Detention Only if Case Not Filed §3:30 DEMURRER AND NOT GUILTY PLEA §3:31 Procedure for Demurrer §3:32 Prosecution on Notice to Appear §3:33 Complaint Within 25 Days of Citation §3:34 Amended Complaint §3:34.1 To Add a Subdivision (b) Charge §3:34.2 To Add a Prior Conviction Enhancement Allegation §3:35 Civil Injunctive Relief §3:36 Double Jeopardy Attack §3:36.1 On CVC §23152(b) Charge §3:36.2 Supporting Offense in Injury Case §3:37 Mandatory Presumptions Attack on CVC §23152(b) §3:37.1 Presumptions in Criminal Cases Generally
§3:37.2
Presumptions Only Permissive in §3:38 CVC §23577: Chemical Test Refusal Enhancement Allegation Demurrer §3:39 Enhancement Allegation for Prior Conviction of a Separate Offense
§3:40
Juvenile Drunk Driving §3:41 Allegation of “Forbidden Act and Neglected Duty” §3:42 Allegation That Current Charge is a Serious Felony §3:43 Two-Dismissal Rule for Felonies §3:44 Lack of Territorial Jurisdiction Causing Immunity from Prosecution §3:44.1 Federal Military Bases
§3:44.2
Federal Prosecution Not Permitted for Some
§3:44.3 Prior Federal or Other State Prosecution §3:44.4 Crimes in “Indian Country”
§3:44.5
§3:44.6 Conflict With Federal Law §3:44.7 Jurisdiction for Arrest §3:45 Other Immunity from Prosecution
§3:45.1
§3:45.2 Diplomatic Immunity §3:46 Statute of Limitations
§3:50
PRETRIAL CONFERENCE, PLEA BARGAINING §3:51 Evaluating the Client’s Case §3:52 Some Court Acquittals Bar APS Suspension §3:53 Defendant’s Plea Bargain Statements §3:54 Prosecution Withdrawal of Plea Bargain Offer §3:55 Diversion or Suspension of Proceedings Prohibited §3:56 Other Prohibited Procedures §3:56.1 Defendant’s Personal Presence; Plea in Absentia §3:56.2 Judge Can’t Read Police or Probation Report Without Permission §3:56.3 No Inquiry About Uncharged Convictions and Pending Charges §3:56.4 Threat of Extra Punishment for Not Pleading Guilty §3:56.5 Prosecutorial Vindictiveness: Adding Charges After Refusal to Plead Guilty §3:56.6 No Jurisdiction Over Probation in Another Court §3:57 Prohibited and Disfavored Probation Terms §3:58 Plea Bargaining With Judge Alone §3:58.1 Judge Can Reject a Plea §3:59 Charges Reduced/Changed; Priors Dropped §3:59.1 CVC §23103: “Wet” & “Dry” Reckless §3:59.2 Striking Prior Conviction Sentence Enhancement Allegations §3:59.3 Attempted Drunk Driving §3:59.4 Further Reductions and Dismissals
§3:60
Handling Multiple Pending Cases §3:61 CVC §23550: Fourth Offense §3:62 Immigrants, Aliens and Non-Citizens §3:63 Enforcing Plea Bargain Agreement §3:64 Three-Strikes Plea Bargaining §3:65 Substance Abuse Testing §3:66 Plea Bargaining When Plea Bargaining Is Prohibited
§3:70 LAW AND
MOTION §3:71 Local Rules §3:71.1 Validity of Local Rules §3:71.2 Notice of Motion in Criminal Case §3:72 Sanctions §3:73 Broad Inherent Power to Reconsider Rulings
§3:80 guilty
or nolo contendere plea §3:81 General Requirements for Entry of Guilty or Nolo Contendere Plea §3:82 Withdrawal of Plea
§3:90 right
to counsel and counsel of choice
Chapter 4: Prior
Convictions of Separate Offenses
§4:10 MOTION
TO DECLARE PRIOR CONVICTION UNCONSTITUTIONAL §4:11 Prosecutors Had Mistakenly Claimed Motion Not Allowed §4:12 General Information §4:12.1 Legal Framework §4:12.2 Michael Ogul on Prior Convictions §4:12.3 CVC §23624: General Rule—One Challenge Per Conviction §4:12.4 CVC §41403: Procedure for Motion to Strike Unconstitutional Conviction §4:12.5 Burden of Proof on Defendant §4:12.6 Some Courts Are Known for Strikeable Convictions §4:12.7 Consider Pros and Cons §4:12.8 Not a Trial Motion §4:12.9 Uncharged Convictions §4:12.10 Three-Strikes Prior Convictions §4:12.11 Constitutionality of Out-of-State Convictions §4:13 The Record
§4:13.1
Getting the Record From the §4:13.2 Checking the Record §4:14 Allegation in Support §4:14.1 Serve Five Days Before Hearing §4:14.2 No Advice, Knowledge or Waiver §4:14.3 Silent Record Can Show Lack of Actual Waiver §4:14.4 Prejudice §4:14.5 Client’s Recollection and Testimony §4:14.6 Defendant’s Declaration Not Required §4:14.7 Form for Allegation in Support §4:14.8 Form for Alternative Allegation in Support §4:15 Notice; General Points and Authorities §4:15.1 No Advice, Knowledge or Waiver of Constitutional Rights §4:15.2 No Verbatim Record §4:15.3 No Inquiry and Finding That Rights Waiver Was Knowing, Voluntary and Intelligent §4:15.4 Constitutional Invalidity Order §4:16 Other Possible Grounds for Motion §4:16.1 Judge’s Conflict of Interest §4:16.2 Failure to Advise of Consequences: Future Use, Punishment and Suspension/Revocation §4:16.3 Right to Testify and Present Evidence §4:16.4 Plea and Sentence Involving Commissioner or Pro-Tem Judge §4:16.5 Involuntary Plea Induced by Illegal Threats §4:16.6 Unlicensed Counsel §4:16.7 Denial of Interpreter §4:16.8 Advice to Aliens §4:16.9 Double Jeopardy Violations §4:16.10 Advice of Dangers and Disadvantages of Self-Representation §4:16.11 Miscellaneous Issues §4:17 Challenge to Grant or Denial of Motion §4:17.1 By Defendant §4:17.2 By Prosecution §4:20 PRIOR CONVICTION SENTENCE ENHANCEMENT LAW IN GENERAL §4:21 Right to Jury or Court Trial §4:21.1 Challenging Out-of-State Priors at Trial §4:22 Erroneous DMV Record of Prior Conviction §4:23 Ten Years or Less Between Offense Dates §4:23.1 Measured From Offense Date to Offense Date §4:23.2 Prior Convictions and Separate Offenses §4:23.3 What’s a “Year?” §4:24 What Can Be Alleged as a Prior Conviction Sentence Enhancement? §4:24.1 Offense Within Ten Years of Current Offense §4:24.2 Juvenile “Conviction” (Adjudication) §4:24.3 Federal Conviction §4:24.4 Reckless Driving Conviction §4:24.5 Uncounseled Conviction Alleged to Make Current Offense a Felony §4:24.6 Drunk Boating Conviction §4:24.7 Uncharged Convictions and Pending Charges §4:24.8 Expungement Under P.C. §§1203.4 and 1203.4a §4:24.9 Constitutionality Previously Determined §4:24.10 Truth Previously Determined §4:24.11 Conviction for Offense That Occurred After Current Offense §4:24.12 Out-of-State Conviction §4:25 Future Use of Conviction for Enhancement §4:25.1 Need Not Advise at Time of Guilty Plea §4:25.2 Increase in Enhancement Severity §4:30 MOTION TO VACATE JUDGMENT; WRIT OF ERROR CORAM NOBIS
Chapter 5:
Discovery §5:10 PROPOSITION 115 §5:11 Constitutionality and Applicability §5:12 Other Statutory Discovery Schemes Remain §5:20 DIRECT DISCOVERY FROM LAW ENFORCEMENT §5:21 CHP Publications §5:22 Getting the Police Report §5:22.1 Prior to Client Retaining You §5:22.2 After Being Retained §5:22.3 Obtaining Traffic Collision Reports in DUI Accident Cases §5:23 Criminal History Record Information (Rap Sheets) §5:23.1 State Criminal History Records to Defense Attorneys §5:23.2 Local Criminal History Records to Defense Attorneys §5:23.3 CHP Criminal History Records to Defense Attorneys §5:23.4 State and Local Criminal History Records to Individuals
§5: §5:23.6 FBI Criminal History Records to Individuals §5:23.7 Expungement of Criminal History Record Information §5:23.8 Rap Sheets on Cops §5:24 Form 5-2: Jury Instruction—Biased Cop Refused to Discuss Case With Defense Attorney §5:30 GENERAL DISCOVERY PROVISIONS §5:31 Informal Request Starts 15-Day Deadline Running §5:32 Separate 30-Day Deadline Prior to Trial §5:33 Identification Required When Interviewing Witnesses §5:40 DISCOVERY FROM THE DEFENSE §5:41 Applicability; Constitutionality §5:42 An Unsettled Area of Law §5:43 Don’t Be Overly Cooperative §5:44 What Need Not Be Provided to Prosecution §5:44.1 Defense Files §5:44.2 Almost No Statements of the Defendant §5:44.3 No Discovery of Prosecution Witnesses’ Statements §5:44.4 Nothing Additional From Attorney §5:44.5 No Core Work Product §5:44.6 Information Not in Defendant’s Possession §5:45 What Must Be Provided §5:45.1 Duty to Obtain Discoverable Information §5:45.2 What Pen. C. §1054.3 Requires §5:45.3 “Intends to Call as Witnesses at Trial” §5:45.4 Written and Oral Statements Must Be Disclosed; Manner of Disclosure §5:45.5 Discovery from Defense Experts §5:45.6 Nontestimonial Evidence §5:46 In-Camera Hearing §5:50 DISCOVERY FROM THE PROSECUTION §5:51 Be Highly Skeptical §5:52 What Need Not Be Provided §5:52.1 Witnesses that Won’t Be Called §5:52.2 Evidence Not in Prosecutor’s Possession §5:52.3 Good Cause to Deny Victim and Witness Information §5:52.4 Restrictions on Defense Disclosure of Victim and Witness Information §5:52.5 Privileges and Exemptions; In-Camera Hearing §5:52.6 No Due Process Right to Inculpatory Evidence §5:53 What Must Be Provided §5:53.1 Duty to Obtain Discoverable Information §5:53.2 What Pen. C. §1054.1 Requires §5:53.3 Peace Officer’s Legal Sourcebook Corrected §5:53.4 “Favorable” Material §5:53.5 Discovery From Prosecution Experts §5:53.6 Rebuttal Witnesses §5:54 Discovery Denial Remedies and Review §5:54.1 Civil Rights Action §5:54.2 Appellate Review §5:55 Conditional Witness Examination §5:60 INFORMAL DISCOVERY REQUEST; MOTION FOR COMPLIANCE; SANCTIONS §5:61 Form 5-3: Informal Request for Discovery From Prosecution §5:62 Form 5-4: Motion for Discovery Compliance §5:63 Sanctions for Non-Compliance §5:63.1 Statutory Provisions §5:63.2 DA Office Recusal §5:63.3 Pretrial Motion Not Needed for Exclusion at Trial §5:63.4 Exclusion of Witnesses and Evidence §5:63.5 Continuance §5:63.6 Jury Instruction §5:70 CHEMICAL TEST DISCOVERY §5:71 Reports of Laboratory Deficiencies
§5:71.1
§5:71.2
§5:71.3 Blood Drawn by Non-Qualified Personnel §5:71.4 State Auditor Report on Deficiencies in 19 Local Labs §5:71.5 Unlicensed Lab Work Yields 4,700 DMV Suspensions Set Aside §5:71.6 State DOJ Crime Labs Spill Their Guts for Increased Funding §5:71.7 Valley Toxicology Loses License
§5:71.8
Mystery Layoffs in City of
§5:71.9
§5:71.10 §5:72 Discovery of Copyrighted Documents §5:73 Blood and Urine Records §5:73.1 Blood Collection Kit and Skin Cleanser §5:73.2 Identity and Qualifications of Person Who Drew Blood §5:73.3 Chain of Custody From Blood Draw to Lab §5:73.4 Methods of Lab Analysis, Policies and Procedures §5:74.5 Diluter and Internal Standard Records §5:73.6 Documentations of Sampling, Invalid Analyses §5:73.7 Gas Chromatography (GC) Maintenance and Calibration §5:73.8 Standards—Preparation/Purchase, Validation, Analysis §5:73.9 Chromatograms and Run Summary §5:73.10 Quality Control and Standard Logs §5:73.11 Analyst Qualifications §5:73.12 Internal Laboratory Studies §5:73.13 Proficiency Tests §5:73.14 Audit Findings and Quality Assurance Investigations §5:73.15 Form 5-5: Documents Request §5:73.16 Form 5-6: Blood/Urine Retest Sample Request Letter §5:74 Breath Test Records §5:74.1 Test Result Printout §5:74.2 Database Results §5:74.3 Maintenance Records §5:74.4 Calibration Records §5:74.5 Operator Training Records §5:74.6 Lab Methods, Manuals, Policies and Procedures §5:74.7 Conforming Products List §5:74.8 Manufacturer’s Litigation Opens Doors
§5:74.9
§5:74.10 Breath Test Instrument Source Code Discovery §5:74.11 Form 5-7: Documents Request §5:74.12 Breath Retest Request §5:75 Discovery on the Prosecution Expert §5:75.1 Curriculum Vitae §5:75.2 Training Records §5:75.3 Classes and Studies—Internal and External §5:75.4 Publications and Presentations §5:75.5 Licensing and Proficiency Testing §5:75.6 Audits and Quality Assurance Actions §5:75.7 A Further Discovery Tactic—Internet Research §5:75.8 Transcripts of Prior Testimony §5:76 Form 5-8: Letter for Chemical Test Documents §5:77 Form 5-9: Itemized Request for Discovery Items §5:80 DISCOVERY BY SUBPOENA DUCES TECUM §5:81 Challenges to Use for Discovery §5:81.1 Exempt From Proposition 115 §5:81.2 Not Just a Trial Right §5:82 When to Use a Subpoena Duces Tecum §5:83 Procedure for Subpoena Duces Tecum §5:84 Practice Tips for Using a Subpoena Duces Tecum §5:85 A Word of Caution §5:86 Form 5-10: Declaration for Subpoena Duces Tecum §5:87 Liability for Unauthorized Viewing of Privileged Information §5:90 RECORDS
§5:91
§5:91.1 Separate From Other Provisions §5:91.1.1 No Criminal Discovery Privilege Under C.P.R.A. §5:91.1.2 Proposition 115 Does Not Prohibit §5:91.1.3 Disclosure of Police Personnel Records §5:91.2 Request for Documents §5:91.2.1 Computer Files §5:91.2.2 Charges for Copies §5:91.2.3 Form 5-11: Public Records Request—Chemical Test Documents §5:91.3 Remedies for Non-Disclosure §5:92 DMV Records §5:92.1.1 Driver’s License Records §5:92.1.2 Residence Address Information §5:92.2 Records Stored Electronically §5:92.3 Criminal Convictions Record Act (C.C.R.A.) §5:92.4 Court Records §5:92.5 Aerial Photographs §5:100 DISCOVERY OF COP’S PERSONNEL FILE AND CITIZEN COMPLAINTS (PITCHESS) §5:100.1 Pitchess Forms §5:110 PRESERVATION OF EVIDENCE §5:111 Due Process Right §5:111.1 The U.S. Supreme Court’s Four-Part Rule
§5:111.2 §5:111.3 Lower Federal Court Opinions §5:112 Suppression: Preservation of Evidence §5:112.1 CVC §23614: Denial of Retest Breath §5:112.2 Failure to Preserve Other Breath Test Related Evidence §5:112.3 Intoxilyzer 5000 Destroys Evidence §5:112.4 DOJ Labs May Destroy Preservative Evidence §5:112.4.1 Crime Labs’ Spoliation of Blood Evidence §5:112.4.2 Form 5-16: Motion to Dismiss—Destruction of Evidence §5:112.4.3 Testimony That Crime Lab Released Sample to Defense for Retesting §5:112.5 Radio Dispatch Tapes §5:112.6 Officer’s Raw Notes §5:112.7 Remedy for Denial of Hitch Motions §5:113 Denial of Own Chemical Test
Chapter 6: Other
Pretrial Motions §6:00 TIME TO FILE PRETRIAL MOTIONS §6:10 CHALLENGE TO JUDGE §6:11 Bibliography on Political Forces Affecting Judges’ Decision-Making §6:12 Peremptory Challenge §6:12.1 Time to Make §6:12.2 Based on Race §6:12.3 Not Available to Witnesses §6:12.4 Not Applicable to Appellate Justices and Judges §6:12.5 Denied Challenge Doesn’t Count §6:12.6 Against Judge Who Presided as Magistrate at Preliminary Examination §6:12.7 After Refiled Charges §6:12.8 After Appeal §6:12.9 Time to Rule on Peremptory Challenge §6:13 Challenge for Cause §6:13.1 Pleadings §6:13.2 Grounds §6:13.3 Procedure §6:13.4 No Stipulation to Challenge §6:13.5 Application to Appellate Justices §6:13.6 Review of Denial §6:14 Commissioners, Referees, Temporary Judges—Authority to Hear Cases §6:15 Other Ideas for Dealing With Judges §6:15.1 Perversion or Obstruction of Justice by Judge §6:15.2 Injunctive Civil Rights Action Against Judges §6:16 Judicial Misconduct §6:16.1 Reporting Judicial Misconduct §6:16.2 Discipline for Legal Error Alone §6:20 STATEMENTS OF DEFENDANT §6:21 Bibliography §6:22 Miranda Rights §6:22.1 When Is Advice Needed? Custody Is Determinative §6:22.2 No Facts or Information Without Miranda; Thick and Slurred Speech §6:22.3 Exception for Routine Booking Questions §6:22.4 Field Sobriety Tests §6:22.5 Civil Remedies for Violation of Miranda Rights
§6:22.6
Probation Terms and Miranda §6:23 Admission of Driving and Hit-and-Run Laws §6:24 DMV Hearing Testimony §6:25 Corpus Delicti Rule §6:26 Discovery by the Prosecution §6:27 No Suppression for Drunkenness §6:28 Statements Made at Alcoholics Anonymous (AA) Meetings
§6:30
NONSTATUTORY MOTION TO DISMISS §6:30.1 Dismissal Based on Prosecutorial Vindictiveness
§6: §6:40.1 Bibliography
§6:40.2
§6:40.3 Making the Indigency Determination
§6:40.4
Pen. C. §1329: Authorizes §6:40.5 Motion for Court Appointed Expert Witness
§6:50 NO §6:60 Substitution of Privately Retained Counsel
Chapter 7: Search
and Seizure
§7:10
DETENTION AND ARREST §7:11 Seizure of a Person §7:11.1 Arrest vs. Detention, and Constitutional Requirements §7:11.2 Detention vs. Consensual Contact §7:11.3 Prolonged Detention While Checking for Warrants §7:11.4 Prolonged Detention Waiting for DUI Expert Cop §7:11.5 Entry of Dwelling Without a Warrant §7:11.5.1 Consent §7:11.5.2 Hot Pursuit §7:11.5.3 Exigent Circumstances §7:11.5.3(a) Loss or Corruption of Alcohol Evidence §7:11.5.3(b) Medical Necessity §7:11.6 Informing Arrestee of Reason for Arrest §7:11.7 Cite and Release Without Booking §7:11.8 An Arrest for an Infraction Is Lawful—A Patdown Search Is Not §7:11.9 Request to Search
§7:20
MISCELLANEOUS DETENTION ISSUES §7:20.1 Tipsters and the Public Safety Exception §7:20.1.1 Stale Information? §7:20.2 Bar and Restaurant Patrons §7:20.3 Agricultural Inspection Station §7:20.4 International Border §7:20.5 Roadside Pollution Inspection §7:20.6 Erroneous Warrant §7:20.7 Erroneous Belief About Out-of-State Registration §7:20.8 Illegal Parking
§7:20.8.1
Can’t Enforce Vehicle Code in Private Parking
§7:20.9
§7:20.10 Slow Driving §7:20.11 Weaving §7:20.12 Racial Profiling §7:20.13 Cracked Windshield §7:20.14 Tinted Windows §7:20.15 Object Hanging From Rearview Mirror §7:20.16 Defective or Inadequate Taillamps §7:20.17 Failure to Use Turn Signal §7:20.18 Failure to Yield for Pedestrian §7:20.19 Missing or Illegible License Plate §7:20.20 Temporary Registration Stickers §7.20.21 Improper Motorcycle Helmet §7.20.22 Not Wearing Seatbelt §7.20.23 Illegal U-Turn §7:20.24 Stop Signs (Meaning of “At the Limit Line”) §7:20.25 Exhibition of Speed §7:20.26 Veh. C. Violation, But Reliance on Wrong Statute §7:20.27 Speed Traps §7:20.28 Unmarked Cop Car §7:20.29 Probation Search §7:20.30 DUI Checkpoints and Other Roadblock Detention §7:20.30.1 Non-Statutory Authorization §7:20.30.2 Compliance With “Certain Limitations” §7:20.30.3 Detention for Avoiding the Roadblock §7:20.29.3(a) Cones and Flare Patterns §7:20.30.4 Non-Cooperation at Roadblock Stop §7:20.30.5 Alcohol Detection Devices (P.B.T. & P.A.S.) §7:20.30.6 DMV Hearing Issues §7:20.30.7 Contrast With Administrative Search Roadblock §7:20.30.8 Roadblock to Search for Witnesses of a Crime §7:20.31 No P.C. Needed to Stop Commercial Vehicle §7:20.32 Suspicion of Zero-Tolerance Violation §7:20.33 Pretextual Stops Permissible §7:20.34 Community Caretaking Exception §7:20.35 Past Criminal Offense §7:20.36 Violation of Local Ordinance §7:30 PROBABLE CAUSE §7:31 Manner of Driving §7:32 Behavior and Symptoms §7:33 At Night and/or High Crime Area §7:34 On a Motorcycle §7:35 Arrest Without Field Sobriety Tests
§7:36
Rigid and Nervous §7:37 Fatigue §7:38 Probable Cause to Believe 0.08% or Higher §7:40 ARRESTER’S PRESENCE REQUIREMENT, EXCEPTIONS, AND EFFECT §7:41 “Driving” in Arrester’s Presence §7:41.1 Pen. C. §836 §7:41.2 Circumstantial Evidence of Driving—Arrest Illegal, Conviction O.K. §7:42 Combined Presence of Several Arresters §7:42.1 Cops and Cops §7:42.2 Cops and Private Citizens §7:43 Arrest by Private Citizen §7:44 CVC §40300.5: Presence Exception §7:44.1 “Traffic Accident” Exception §7:44.2 “Obstructing a Roadway” Exception §7:44.3 Additional Exceptions Added in 1996 §7:44.3.1 Will Not Be Apprehended Unless Immediately Arrested §7:44.3.2 May Cause Injury to Himself or Property §7:44.3.3 May Destroy or Conceal Evidence §7:44.4 CVC §40300.6: Liberal Construction Should Be Limited §7:45 Admission of Driving Doesn’t Create Presence §7:46 Detention/Arrest for Attempted Drunk Driving, Public Intoxication or Unknown Crimes §7:47 Juvenile Exception §7:48 Arrest for Offense Made a Felony by Prior Conviction(s) §7:49 Suppression of Evidence for Non-Presence Arrest? §7:50 AUTHORITY AND JURISDICTION TO ARREST §7:51 Must Have State-Issued P.O.S.T. Certificate
§7:52
§7:53
§7:54
Out-of-State Cop in
§7:55
Federal Cops in §7:56 State Cop in “Indian Country” §7:57 Campus Cop Off Campus §7:58 Park Ranger Outside Open Space District’s Boundaries §7:60 TRAFFIC OFFENSES §7:60.1 A Mini Traffic Trial §7:60.2 Highway, Non-Highway and Private Property Issues §7:60.3 No Detention/Arrest for Unlicensed Status §7:60.4 No Detention for Civil Wrongs §7:60.5 Seat Belt and Child Restraint Offenses §7:60.6 Infraction Arrest for Not Carrying Identification §7:70 ILLEGAL SEARCH ISSUES §7:71 Auto Search §7:72 Hospital Emergency Room Contact §7:73 Blood Sample Without Warrant §7:73.1 Forced Blood Following Legal Arrest §7:73.2 Forced Blood Without Arrest §7:73.3 Analysis Without Warrant §7:74 Failure to Follow Chemical Test (Including PAS) Statutes §7:74.1 Consent Implied by Driving Motor Vehicle on Highway With Lawful Arrest and Choice of Tests §7:74.1.1 Implied Consent in Drunk Boating Cases §7:74.2 Denial of Choice of Tests §7:74.3 Denial of Available, Independent Test §7:74.4 Blood Drawn by Unqualified Personnel §7:74.5 P.A.S. Test Without Admonition Regarding Right to Refuse It §7:74.6 Blood or Breath Test After a P.A.S. Test §7:75 DMV Records Search §7:80 PEN. C. §1538.5: MOTION TO SUPPRESS §7:81 Timely Motion Required for Pretrial Appeal §7:82 Federal Constitution Controls §7:83 Good Faith §7:84 Procedure, Pleading and Proof §7:84.1 Standing §7:84.2 Pleading Facts, Legal Theories, Evidence and Grounds §7:84.3 Making the Motion at a Preliminary Examination §7:85 Form 7-1: Motion to Suppress: Search and Seizure—Pen. C. §1538.5 §7:86 Evidence Issues at Hearing §7:86.1 Speed Trap Exclusionary Rule §7:86.2 Unmarked/Specially Marked Vehicles Exclusionary Rule §7:86.3 Corpus Delicti Rule and Statements of Defendant; Privileged Matter; Hearsay §7:86.4 Affidavits Are Inadmissible Over Objection §7:86.5 Judicial Interjection—Judge as a Witness! §7:87 Finality and Collateral Effect of Order §7:87.1 Reopening of Hearing §7:87.2 Collateral Estoppel With DMV §7:88 Appeal of Denial §7:88.1 Pretrial Appeal Right §7:88.1.1 30-Day Deadline to Try Defendant After Remittitur Issues §7:88.2 Stay Pending Appeal §7:88.3 Post Trial Appeal O.K. Even After Pretrial Appeal §7:88.4 Limited Habeas Corpus Right §7:90 CIVIL REMEDIES §7:91 Bibliography §7:92 Retaliatory Lawsuits by Cops Against Persons Who Complain §7:93 42 U.S.C. §1983: Federal Civil Rights Actions §7:93.1 Standing to Sue §7:93.2 Statute of Limitations §7:93.3 In Federal and State Court
§7:93.4
Respondeat §7:93.5 Forced Blood and Urine Samples §7:93.6 No Presence of Arresting Officer §7:93.7 Violation of Clearly Defined State Statutory Right §7:93.8 Arrest Without Probable Cause §7:93.9 Blood Drawn by Unqualified Personnel
Chapter 8:
[Reserved]
Chapter 9: Trial
Defense of DUI in §9:00 Jury Selection and opening statement §9:01 Vicanage (The Jury Pool) §9:02 The Voir Dire Process §9:03 Suggested Voir Dire Topic Areas §9:04 Exercising Challenges Against Jurors §9:04.1 Challenges for Cause §9:04.2 Peremptory Challenges §9:05 Batson/Wheeler Challenges: Unlawful Discrimination in Jury Selection §9:06 Jury Selection May Not Be Reopened After Jury Impaneled §9:07 Opening Statement §9:10 CONSTITUTIONAL TRIAL RIGHTS §9:11 Due Process Right §9:12 Presumption of Innocence; Reasonable Doubt §9:13 Right to Jury Trial §9:13.1 Right to Exercise the Trial Right §9:14 Right to Present Evidence §9:14.1 Admissibility of Video Demonstration §9:14.2 Character Evidence to Show Third-Party Culpability §9:15 Privilege Against Self-Incrimination §9:16 Confrontation and Cross Examination Right §9:17 Right to a Verbatim Record of Proceedings §9:20 GENERAL TRIAL PROCEDURE, EVIDENCE AND OBJECTIONS §9:21 Judicial Council Standards for Conduct of Trial §9:21.1 Code of Judicial Ethics §9:22 Elements of Drunk Driving Offenses §9:23 Speedy Trial Rights and Continuances §9:24 Proof of Locus Delicti (Geographic Jurisdiction) §9:25 In Limine Motions §9:25.1 Renew Pretrial Suppression Motions §9:26 Hearsay Exceptions and Confrontation Clause §9:26.1 Chemical Test Results as Admissible Public Employee Business Record §9:26.2 Bibliography §9:26.3 Blood Sample Collection Method §9:26.4 Out-of-State Crawford Cases Excluding Evidence §9:26.5 Out-of-State Cases Admitting Evidence as Non-Testimonial §9:27 Corpus Delicti Rule §9:27.1 Defendant’s Statements Now Admissible Prior to Corpus §9:27.2 Independent Proof of Corpus Still Needed for Conviction §9:27.3 Corpus Needed for Holding Order at Preliminary Examination §9:27.4 Corpus Not Needed at Probation Revocation Hearing §9:28 Witnesses §9:28.1 Expert Witnesses §9:28.2 Witnesses Referring to Documents §9:28.3 Subpoenas §9:28.4 Biased Cop §9:28.5 Witness Must Be Live! §9:28.6 Defendant Testifying—Danger Ahead! §9:29 Discovery Sanctions §9:30 MISCONDUCT §9:31 Prosecutorial Misconduct §9:31.1 Bibliography §9:31.2 Commenting on Defendant’s Failure to Testify §9:31.3 Commenting on Defendant’s Silence §9:31.4 Failure to Control Witnesses §9:31.5 Stating What a Witness Would Have Testified To §9:31.6 Disparaging the Rules of Evidence §9:31.7 Asking the Defendant to Call the Cop a Liar §9:31.8 Personal Opinion About Defendant’s Guilt §9:31.9 “Vouching” for the Credibility of a Witness §9:31.10 Derogatory Remarks Directed at Defendant or Counsel §9:31.11 Appeals to Passion and Prejudice §9:31.12 Misstating the Law §9:31.13 Suggesting Defendant Has an Obligation to Produce Evidence §9:31.14 Presenting False Evidence and Deliberately Deceiving Jury §9:31.15 Threatening Defense Witnesses §9:31.16 Cumulative Misconduct §9:31.17 Remedies §9:32 Judicial Misconduct §9:33 Juror Misconduct §9:34 Improper Pressure to Reach a Verdict §9:34.1 Discharging a Juror Who Allegedly Refuses to Deliberate §9:35 Intimidation of Witness by Spectator §9:36 Spectator Badges, Shirts, or Signs in Support of Victim §9:37 False Evidence Given by a Witness §9:38 Permissible Impeachment of Witnesses §9:39 The Defense Attorney’s Role §9:40 SCIENTIFIC EVIDENCE §9:41 Scientific Literature §9:41.1 Using Scientific Articles as Evidence §9:41.2 Bibliography §9:41.3 Ethical Guidelines to Publication §9:41.4 Copyrighted Documents §9:42 Admissibility of Chemical Test Result §9:42.1 Legal Arrest Required for Admission of Implied Consent Test §9:42.2 Lack of Scientific Foundation §9:42.3 Chain of Custody; Authentication §9:42.4 Blood Drawn by Unqualified Personnel §9:42.5 Lost Blood or Urine Sample §9:42.6 Jury Instructions §9:42.7 Hearsay Objections §9:42.8 Labs Get Funded From Conviction Fines §9:42.9 Media Reports of Laboratory Deficiencies §9:43 Kelly/Frye—General Acceptance of Scientific Evidence §9:43.1 The Rule §9:43.2 “Generally Accepted” §9:43.3 Effect of Rulings in Other Cases §9:43.4 New Evidence Showing Bad Science §9:43.5 Kelly/Frye Rule Not Affected by Proposition 8 §9:43.6 Daubert’s Gatekeeping Function—ALL Expert Testimony Is Inadmissible Unless Found Scientifically Valid §9:44 Blood: Sample and Analysis §9:44.1 Bibliography §9:44.2 Blood Drawn by Unqualified Personnel §9:44.3 Controlled by CVC §23158 and Title 17, §1219.1 §9:44.4 Denial of Own Chemical Test §9:44.5 Scientific Foundation, Kelly/Frye, Validity and Admissibility §9:45 Hospital/Medical Blood Alcohol Test Results §9:45.1 Bibliography §9:45.2 Authentication and Scientific Foundation Attack §9:45.3 Chart Illustrates Medical Blood Test Problems §9:45.4 Lack of Consent §9:45.5 No Physician-Patient Privilege §9:45.6 Hospital Emergency Room Privacy Rights §9:45.7 Civil C. §56.10 Requires Court Process for Disclosure of “Medical Information” §9:45.8 Federal Substance Abuse Program Privilege §9:45.9 Letter to Hospital Regarding Patient Confidentiality §9:46 Blood Alcohol Changes With Time §9:46.1 Bibliography §9:46.2 Three-Hour Constant BAC Presumption §9:46.3 BAC Calculations From Drinking History §9:46.4 BAC Calculations From Delayed Test—Retrograde Extrapolation or Relation Back §9:47 Breath Alcohol Testing §9:47.1 Bibliography of General Information §9:47.2 Manufacturer’s Litigation Opens Doors §9:47.3 Scientific Foundation, Kelly/Frye, Validity and Admissibility §9:47.4 2100:1 Blood/Breath Partition Ratio Assumption §9:47.5 Practical Tips for Dealing With Bransford and Partition Ratio Assumption §9:47.6 Conforming Products List §9:47.7 Third Digit of Breath Result Admissible §9:47.8 Beware the Toluene Excuse §9:47.9 15-Minute Observation; Cop Not Trained in Theory of Operation §9:47.10 Radio Frequency Interference (RFI), aka Electro Magnetic Interference (EMI) §9:47.11 Tyndall Effect on Infrared Devices From Airbag Deployment §9:47.12 Intoxilyzer 5000, 5000en, and 8000 §9:47.13 Alcotest 7110 and 7410 Plus §9:47.14 Cops Deny Knowledge of Theory of Operation of Breath Machines §9:47.15 Gastroesophageal Reflux Disease (GERD) §9:47.16 Failure to Advise of Breath Sample Destruction and Right to Independent Test §9:48 Preliminary Alcohol Screening (P.A.S.) Devices §9:48.1 Bibliography §9:48.2 CVC §23612: Authorizes P.A.S. Test §9:48.3 Scientific Foundation for Admissibility §9:48.4 Lack of Scientific Foundation Means Most States Don’t Admit P.A.S. Test Results at Trial §9:48.5 Not Shown to Be Generally Accepted Under Kelly/Frye §9:48.6 Failure to Advise of Right to Refuse P.A.S. Test §9:48.7 Conforming Products List of Alcohol Screening Devices §9:48.8 Altitude Sensitivity §9:48.9 Admissibility for Defendant §9:49 Urine Alcohol as Evidence of Blood Alcohol §9:49.1 Bibliography §9:49.2 Sample Choice: CVC §23612 Makes Urine Option Limited §9:49.3 Sample Collection and Retention §9:49.4 Privacy Requirement for Sample Collection §9:49.5 Jury Instruction §9:49.6 Scientific Foundation, Kelly/Frye, Validity and Admissibility §9:49.7 Urine Alcohol as Evidence of Blood Alcohol Should Not Pass Kelly/Frye Test §9:49.8 Bransford Does Not Apply to Urine Tests
§9:50
PARTICULAR TYPES OF NON-SCIENTIFIC EVIDENCE §9:50.1 Scientific Evidence: Chemical Test Results, F.S.T.’s, R.F.I., Experts, Accident Reconstruction, Handwriting and Hypnosis §9:50.2 Previous Accidents at Same Location §9:50.3 Drug Possession §9:50.4 Injuries §9:50.5 Photographs; Booking Photos §9:50.6 Demonstrative Evidence §9:50.7 Weather §9:50.8 Audio and Video Tape Recordings §9:50.9 Language Evidence §9:50.10 DMV Records, Reports and Testimony §9:50.11 Digital Signatures §9:50.12 Driving Behaviors Police Observe as Proof of DUI §9:50.13 Jury Gets To Be Its Own Handwriting Expert
§9:60 Field
Sobriety Tests §9:60.1 Bibliography
§9:60.2
Non-NHTSA Standardized F.S.T.’s Thrown Out in §9:60.3 Lack of Scientific Foundation; Courts’ “Gatekeeper” Function §9:60.4 Not a Reliable Indicator of Driving Impairment §9:60.5 Horizontal Gaze Nystagmus (H.G.N.) §9:60.6 Digest of NHTSA Standardized Field Sobriety Test (SFST) Student Manual §9:60.7 Attention Deficit Disorder (A.D.D.)
§9:70 OPINION
TESTIMONY §9:71 Expert Witnesses §9:71.1 Bibliography §9:71.2 Court Appointed Expert §9:71.3 Discovery From Expert §9:71.4 Opinion Based Upon Hearsay §9:71.5 Cross-Exam on Scientific Literature §9:71.6 Opinion on Mental Impairment §9:72 Lay Opinion §9:72.1 Blood Alcohol Concentration (BAC) §9:72.2 State of Sobriety §9:72.3 Cause of Accident §9:73 Accident Reconstruction §9:74 Handwriting §9:75 Hypnosis to Enhance Recall §9:76 Sodium Amytal
§9:80
AFFIRMATIVE DEFENSES §9:81 Alcoholism §9:82 Driving Disability §9:83 Mistake §9:83.1 Mistake of Fact §9:83.2 Mistake of Law §9:84 Duress and Necessity §9:85 Accident and Misfortune §9:86 Mental Defenses §9:86.1 Voluntary Intoxication §9:86.2 Involuntary Intoxication §9:86.3 Unconsciousness §9:86.4 Idiocy §9:87 Prescription Drugs §9:88 Cop Orders Driving; Entrapment and Equitable Estoppel §9:89 Jury Must Unanimously Reject Affirmative Defense in Order to Convict §9:90 TRIALS ON PRIOR CONVICTION (SEPARATE OFFENSE) ENHANCEMENT ALLEGATIONS §9:91 Bibliography §9:92 Pretrial Issues §9:92.1 Don’t Confuse Trial With Unconstitutionality Motion §9:92.2 What Convictions Are Chargeable? §9:93 Jury Trial §9:93.1 Constitutional Right to Jury Trial §9:93.2 Statutory Right to Jury Trial §9:93.3 Probably No Right to Jury Trial on Identity §9:93.4 No Right to Jury Trial on Some Other Issues §9:93.5 Right to Separate (Bifurcated) Jury Trial §9:93.6 Prevents Premature Disclosure to Jury §9:93.7 Denial of Jury Trial—Automatic Reversal or Harmless Error? §9:94 Prosecution Must Prove §9:94.1 All Elements Beyond a Reasonable Doubt §9:94.2 That There Was a Conviction §9:94.3 The Conviction That Was Charged §9:94.4 Ten Years or Less Between Offenses §9:94.5 Identity of Defendant §9:94.6 Reckless Driving Prior §9:94.7 Stipulation to Judge Pro Tem §9:94.8 Out-of-State Convictions §9:95 Trial Rights, Evidence and Objections §9:95.1 Bibliography §9:95.2 Rights Applicable to Trial §9:95.3 Proof by all Relevant and Admissible Evidence §9:95.4 Evidence Law Related to Prior Conviction Records §9:95.5 Court Dockets and Other Records §9:95.6 DMV Records §9:95.7 Rap Sheets; Prison and Jail Records §9:95.8 Conviction Records §9:95.9 Computerized Conviction Record Documents: The Criminal Convictions Record Act (C.C.R.A.) §9:95.10 No Testimony by Previous Attorney §9:95.11 Corpus Delicti Rule §9:95.12 Prosecutorial Mention of Blood Split Sent to Defense Lab/Expert §9:96 Post-Trial Considerations §9:96.1 Prosecution Forgot to Prove the Prior Conviction §9:96.2 Prosecution Attempted and Failed to Prove the Prior Conviction §9:96.3 Retrial After Previous Trial §9:96.4 Retrial After Hung Jury or Reversal on Appeal
§9:100 JURY INSTRUCTIONS §9:101 Non-CALJIC and Non-CALCRIM Instructions Deserve Equal Consideration §9:102 Pinpoint Instructions §9:103 Driving Under the Influence of Alcohol and/or Drugs §9:103.1 Misdemeanor Non-Injury: CVC §23152(a) §9:103.2 Felony Injury: CVC §23153(a) §9:103.3 Proof of Impairment: “Under the Influence” Defined CALJIC 16.831 and CALCRIM 2110 §9:103.4 “Under the Influence” Presumptions §9:103.5 Under the Influence Relates to Condition of Driver: CALJIC 16.832 and CALCRIM 2110 §9:104 Driving With BAC of 0.08% or More §9:104.1 Misdemeanor Non-Injury: CVC §23152(b) §9:104.2 Felony Injury: CVC §23153(b) §9:104.3 Presumption of BAC of 0.08% for Three Hours §9:104.4 Special Jury Instructions (Suggested) §9:104.4.1 Blood Draw Evidence §9:104.4.2 Consultation of Witness With Attorneys During Cross Examination §9:104.4.3 Police Officers Are Biased Witness §9:104.4.4 Agreement to Take Roadside Balance and Coordination Exercises—Consciousness of Innocence §9:104.4.5 Agreement to Take Preliminary Alcohol Screening (P.A.S.) Test—Consciousness of Innocence §9:104.4.6 Agreement to Take Implied Consent Blood Test—Consciousness of Innocence §9:104.5 Voluntary Cessation of Driving Defense §9:105 The Supporting Offense in an Injury or Death Case §9:106 Chemical Test Result Admissibility/Validity
§9:106.1
Violations of Title 17; §9:106.2 Jury May Reject Evidence of Chemical Test Result §9:106.3 Jury Instruction—Calculating Blood Alcohol From Urine Alcohol §9:107 Refusal of Chemical Test—Consciousness of Guilt §9:107.1 Attacking the Instruction §9:107.2 Necessity of Advice About Refusal §9:107.3 Consciousness of Innocence §9:108 Credibility of Injured Witness §9:109 Biased Cop §9:110 Jury Instruction—Mistake of Fact Defense §9:111 Hitch, Destroyed Evidence, CVC §23614 §9:112 Election of Acts Where More Than One Offense Proved §9:113 Lesser Included or Lesser Related Offense §9:114 Character Inconsistent With Crime §9:115 “Wet Reckless” Sentence Enhancement Allegation
§9:120 CLOSING ARGUMENT §9:121 Jury Nullification §9:122 Proof Is by Circumstantial Evidence Only
§9:123 §9:124 Impairment to an Appreciable Degree §9:125 Reasonable Doubt
§9:130 MISTRIAL AND
RETRIAL §9:131 Retrial After Partial Acquittal §9:132 On Lesser Offense After Acquittal on Greater Offense §9:133 On Prior Conviction §9:134 Court’s Discretion to Dismiss Charges, Reduce or Modify Verdict §9:135 Prosecutorial Vindictiveness Presumed if Charges Added After Mistrial
Chapter 9 Forms
§9:200 Forms §9:200.1 Form 9-1: Motion to Dismiss Because of Denial of Right to Due Process (Speedy Trial Denial) §9:200.2 Form 9-2: Letter to Hospital Demanding Patient Confidentiality §9:200.3 Forms 9-3: Motions to Exclude P.A.S. Results and P.A.S. Refusal §9:200.3.1 Form 9-3.1: No Foundation §9:200.3.2 Form 9-3.2: Limited Consent §9:200.3.3 Form 9-3.3: Denial of Due Process §9:200.3.4 Form 9-3.4: Secondary Evidence and Hearsay §9:200.3.5 Form 9-3.5: P.A.S. Refusal §9:200.4 Forms 9-4: Motions to Exclude Chemical Test and Refusal §9:200.4.1 Form 9-4.1 Chemical Test Refusal §9:200.4.2 Form 9-4.2 Denial of Choice of Tests §9:200.5 Form 9-5: Points and Authorities in Support of “No Inferences” in Jury Instructions §9:200.6 Form 9-6: Motion in Limine to Exclude Evidence of “Tolerance” §9:200.7 Form 9-7: Jury Instruction—“Driving” Defined §9:200.8 Form 9-8: Jury Instruction—Violation of Title 17 §9:200.9 Form 9-9: Jury Instruction—Chemical Test Validity §9:200.10 Form 9-10: Jury Instruction—Calculating Blood Alcohol from Urine Alcohol §9:200.11 Form 9-11: Memo of Law in Support of Evid. C. §403 §9:200.12 Form 9-12: Credibility of Injured Witness §9:200.13 Form 9-13: Jury Instruction—Mistake of Fact Defense §9:200.14 Form 9-14: Jury Instruction—Failure to Follow CVC §23614 (Previously §23157.5) §9:200.15 Form 9-15: Jury Instruction—Acts Constituting Alleged Offense §9:200.16 Form 9-16: Jury Instruction—“Wet” Reckless Sentence Enhancement §9:210 OTHER SELECTED MOTIONS §9:210.1 Form 9-17: Motion to Exclude Various Evidence §9:210.2 Form 9-18: Motion to Eliminate Prosecutorial Misconduct §9:210.3 Form 9-19: Motion to Preclude Prosecutor From Diminishing Burden of Proof in Argument §9:210.4 Form 9-20: Motion to Exclude Evidence of Field Sobriety Exercise §9:210.5 Form 9-21: Motion to Exclude Trombetta Advisement and Defendant’s Response §9:210.6 Form 9-22: Motion to Admit Partition Ratio Evidence §9:210.7 Form 9-23: Motion to Exclude Evidence of Retrograde Extrapolation §9:210.8 Form 9-24: Motion for Voir Dire §9:220 OTHER Selected Jury Instructions §9:220.1 Form 9-25: People Must Prove the Preliminary Facts of Foundation or Jury Must Disregard the Breath Test Results §9:220.1.1 Form 9-26: Four Elements of Willful Refusal §9:220.1.2 Form 9-27: The Court Cannot Give CALJIC 16.835 (Refusal is “Consciousness of Guilt”) Because the State Cannot “Punish” a Person That Did Not Consent to a Police Requested Search of His Person for the Amount of Alcohol in His Blood §9:220.1.3 Form 9-28: Memo of Law in Support of Jury Instruction #1 (Evid. C. §403) §9:220.2 Form 9-29: Blood Sample Can Be Taken by Police Without Defendant’s Consent
§9:220.2.1
Form 9-30: State of §9:220.2.2 Form 9-31: “Under the Influence” Is Defined as Driving Ability Impaired to an Appreciable Degree §9:220.3 Form 9-32: Viewing Less Satisfactory Evidence With Distrust §9:220.4 Form 9-33: Police Must Advise Refusal Used in Court §9:220.4.1 Form 9-34: Title 17: Continuous Observation Period §9:220.5 Form 9-35: Regulations of Title 17 for Breath Testing, Including Training §9:220.5.1 Form 9-36: CVC §§13384 and 23612 Allows for Urine Test §9:220.6 Form 9-37: Training of Operator §9:220.6.1 Form 9-38: Willingness to Take Urine Is No Refusal §9:220.7 Form 9-39: Standards Re Breath Testing per Title 17 §9:220.8 Form 9-40: Periodic Accuracy Standards and Required Training of an Operator §9:220.9 Form 9-41: Labs Must Keep Training Records §9:220.10 Form 9-42: Choice of Tests §9:220.11 Form 9-43: Character Evidence §9:220.12 Form 9-44: Sworn Report to DMV §9:220.12.1 Form 9-45: Factors Re Credibility of Police Officers §9:220.13 Form 9-46: Mistake of Fact §9:220.14 Form 9-47: Failure to Give Trombetta Affects Credibility §9:220.15 Form 9-48: Consciousness of Innocence §9:220.16 Form 9-49: P&A’s in Support of Defendant’sRequest for Special Jury Instructions §9:220.17 Form 9-50: “Permissive Inference” May Not Be Given Under New Jury Instructions
Chapter 10:
Punishment §10:10 EFFECTIVENESS OF PUNISHMENT §10:11 Bibliography §10:12 Explaining Drunk Driving Punishment to Your Client §10:20 PUNISHMENT AT TIME OF SENTENCING §10:21 CVC §23140: BAC = 0.05% §10:22 Pen. C. §§192(c)(3) and 191.5: Veh. Manslaughter Intoxicated: Punishment and DMV Action §10:22.1 Jail or Prison Time §10:22.2 Driving Privilege §10:22.3 Auto Forfeiture §10:22.4 Other Consequences of Conviction §10:23 Drunk Driving Punishment Charts §10:23.1 Figure 10-1.1: Drunk Driving Punishment Chart for Offenses Between July 1, 1999, and September 19, 2005 §10:23.2 Figure 10-1.2: Drunk Driving Punishment Chart for Offenses After September 19, 2005 §10:24 License Suspensions and Revocations Triggered By CVC §23152 Conviction; Restriction Eligibility and Exclusion §10:24(a) First Offense CVC §23152 Convictions §10:24(b) Second Offense CVC §23152 Convictions §10:24(c) Third Offense CVC §23152 Convictions §10:24(d) Fourth (or more) Offense CVC §23152 Convictions §10:24.1 Zero-Tolerance Law for Probationers (Effective January 1, 2009) §10:24.2 Court’s Separate Authority to Restrict, Suspend, or Revoke Driving Privilege §10:24.3 Correcting Errors and Getting Credits §10:25 Probation Length and Standard Terms §10:26 Additional Punishment and Probation Terms §10:26.1 Enhancement Allegations Are Assumed to Be Strikeable §10:26.2 First Offender and Multiple Offender DUI Programs §10:26.3 Multiple Offender Work/DUI Program Restricted Driver’s License §10:26.4 48 Hours Behind Bars for Multiple Offenders, or Community Service §10:26.5 Blood Alcohol Concentration = 0.20% or Higher §10:26.6 Chemical Test Refusal §10:26.7 Reckless Driving and Speeding §10:26.8 Highway Construction or Maintenance Zone §10:26.9 Alcohol Education Penalty Assessment §10:26.10 Alcohol and Drug Problem Assessment Program and Penalty Assessment §10:26.11 Blood Alcohol Testing Penalty Assessment §10:26.12 Community Service §10:26.13 Alternatives to Fine—Community Service, Jail §10:26.14 Restitution §10:26.15 Court Ordered Substance Abuse Testing §10:26.16 Probation Cost Reimbursement §10:26.17 Vehicle Impoundment §10:26.18 Ignition Interlock Device §10:26.19 Time Added for Perjury at Trial §10:26.20 Child Endangerment §10:26.21 Booking Fees §10:26.22 Youthful Drunk Driver Visitation Program §10:26.23 “Three Strikes” Enhancements §10:26.24 CVC §13202: Discretionary and Mandatory Suspensions for Drug Offenses §10:26.25 CVC §23550.5 Enhancement for Felony Prior Conviction Within 10 Years §10:26.26 Mandatory Watson Admonition §10:26.27 Twenty Dollar ($20) Court Security Fee §10:26.28 Failure to Timely Pay Fines (Additional Fee) §10:27 Prohibited and Disfavored Probation Terms §10:27.1 Time to Object Is Sentencing Hearing §10:27.2 Emergency Response Costs §10:27.3 AA Attendance §10:27.4 T-Shirt Advertising Defendant’s Crime and Other Humiliation §10:27.5 Waiver of Fourth Amendment Rights §10:27.6 Waiver of Custody Time Credit? §10:28 [Reserved] §10:29 Ignition Interlock Device (IID) §10:29.1 Bibliography §10:29.2 Court Has Option to Order Ignition Interlock Device §10:29.3 Optional Device: Driver Under 21 Years Old §10:29.4 IID Restricted Licenses Now Available for all Multiple Offenders After Just 12 Months (NEW) §10:29.5 Mandatory IID for CVC §14601.2 Conviction or Plea-Bargain Reduction Without Probation §10:29.6 Crimes Related to Ignition Interlock Device
§10: §10:29.8 DMV Certifies Which Brands and Models Are Used §10:29.9 Defendant’s Ability to Pay §10:29.10 Operation of Employer’s Vehicle Without IID §10:29.11 Out-of-State Residents §10:30 Probation Report and Sentencing Hearing §10:30.1 Felony Sentencing, Three Strikes, Great Bodily Injury, Proposition 36 §10:30.2 Hearing Procedure §10:30.3 Duties of Counsel at Sentencing §10:30.4 Presenting Defense View §10:30.5 Court’s Power to Grant, Deny or Modify Probation §10:30.6 Plea and Sentence in Different Jurisdiction §10:30.7 DA’s Statement in Aggravation §10:30.8 Challenge to Prior Conviction Enhancement §10:31 Felony Sentencing §10:31.1 Felony Sentencing Hearing §10:31.2 CVC §§23550 and 23550.5: Prior Convictions Make Current Offense a Felony §10:31.3 Determining Length of Prison Term §10:31.4 No Upper Term or Sentence Enhancement Absent Jury Finding; But Consecutive Sentencing Permissible §10:31.5 Three Strikes Sentencing §10:31.6 CVC §23558 Multiple Victims Enhancement §10:31.7 Great Bodily Injury (GBI) Enhancements §10:31.8 CRC for Felony Drunk Driving §10:31.9 Proposition 36 Treatment Program §10:32 Work Furlough §10:33 [Reserved] §10:34 Multiple Punishment §10:34.1 Conviction of Both Subdivisions (a) and (b) §10:34.2 CVC §23558: Multiple Victims §10:34.3 DUI Drugs and Alcohol §10:34.4 Consecutive Sentences §10:35 Time Credits §10:35.1 Community Service; CVC §23580 §10:35.2 Custody Time Credit §10:35.3 Good/Work-Time Credit; Weekend Sentence §10:35.4 Correct Errors Anytime by Motion in Trial Court §10:35.5 Mandatory Jail Isn’t Mandatory §10:35.6 Electronic Home Detention §10:35.7 Experiments and Pilot Projects With Time Credits §10:35.8 Diagnostic Facility §10:35.9 Labor on Public Works: Pickin’ Up Trash §10:35.10 Residential Alcohol Treatment §10:35.11 Early Release From Overcrowded Jail §10:35.12 Serving the Jail Sentence in Another County §10:36 Constitutional Validity of Drunk Driving Sentencing Law §10:37 Prosecution Challenge to Misdemeanor Sentence §10:40 RESIDENTIAL ALCOHOL TREATMENT §10:41 Two Different Treatment Models §10:41.1 Medical Model §10:41.2 Non-Medical Model
§10:41.3
Pen. C. §8001 Two-Year Program ( §10:41.4 Non-Medical Self-Run Recovery House §10:42 Custody Time Credit for Residential Alcohol Treatment Program §10:43 Good/Work-Time Credit for Residential Alcohol Treatment Program §10:44 Accommodation for Alcoholic Employees §10:44.1 Labor Code Requirement §10:44.2 Americans With Disabilities Act (A.D.A.) §10:45 No Vehicle Allowed Without Driver’s License §10:46 Covered by Health Insurance for “Basic Health Care Services” §10:50 DMV SANCTIONS FOR CONVICTION §10:51 Relation to DMV Action Under Stop ‘n Snatch (Admin Per Se) Statutes §10:52 Driving Privilege Suspension and Revocation for Drunk Driving §10:52.1 CVC §13352: Mandatory Suspensions and Revocations for Drunk Driving Convictions §10:52.2 DMV Action for Fatal and Serious Injury Accidents §10:53 No Full Driving Privilege Until DUI Program Completed §10:53.1 No Relief for Failure of Court to Order or Report to DMV §10:53.2 Must Be a Licensed “DUI Program” §10:53.3 Exceptions for Out-of-State Resident §10:53.4 CVC §23103/23103.5 “Wet” Reckless Convictions §10:53.5 Proof of Start and Completion Subsequent to Most Recent Underlying Conviction §10:53.6 Third or Greater Offenses on or After January 1, 1986 §10:53.7 First and Second Offenses July 1, 1990, Through October 13, 1991 §10:53.8 First and Second Offenses October 14, 1991, Through December 31, 1993 §10:53.9 First Offenses January 1, 1994, Through January 1, 1995; Second Offenses On and After January 1, 1994 §10:53.10 First Offense With Probation January 1, 1995, Through June 30, 1999 §10:53.11 First Offenses on and After July 1, 1999 §10:53.12 Credit for Past Attendance in Drinking Driver Program §10:54 Court Action Related to DMV Sanctions §10:54.1 Court Sends Abstracts to DMV §10:54.2 Court May Notify DMV of Driving Disability Defense §10:54.3 Vacate Judgment for Failure to Advise of Mandatory Suspension §10:54.4 Court May Not Order DMV to Suspend Longer §10:54.5 Ignition Interlock Allows Return of Driving Privileges §10:54.6 Start Time: First Offender 90-Day Restriction for Pre-9/20/05 Offenses: Consecutive to Stop ‘n Snatch Suspension §10:54.7 Second Offender Restricted License for Pre-9/20/05 Offense Not Consecutive to Stop ‘n Snatch Suspension §10:54.8 Start Time: Multiple Offender Suspension or Revocation §10:54.9 Obtaining a Work/Program Restricted Driving Privilege With Late Enrollment in DUI Program §10:54.10 Conviction Timing Selects Sanction §10:54.11 No Suspension Until One-Year Imprisonment Completed §10:54.12 Federal Prosecutions §10:54.13 DUI Program Referral §10:55 DMV Actions on Prior Convictions Are Based Upon Their Records, Not on What Was Plead or Proved in Court §10:56 Increased or Decreased Punishment After Date of Offense §10:56.1 In re Estrada—Decreased Criminal or Civil Penalty §10:56.2 Statutes Presumed Prospective Unless Stated Otherwise §10:56.3 Ex Post Facto Laws Prohibit After-the-Fact Increase in Criminal Penalty, Removal of a Defense or Reduction in Evidence §10:56.4 Application to License Penalty Reductions §10:57 Proof of Insurance: How to Provide §10:57.1 CVC §16431: Proof of Insurance for Drunk Driving and Other Convictions; Admin Per Se; Unsatisfied Judgments
§10:57.2
DMV Form SR-22 for §10:57.3 CVC §16431: Acceptable Substitute for Out-of-State Residents With Drunk Driving Arrest or Conviction §10:57.4 CVC §16056: Proof of Insurance for Suspension “Based Upon an Action,” i.e., an Accident §10:58 Exceptions and Exemptions §10:58.1 Employee Driving on Private Property §10:58.2 Motorized Bicycles §10:59 Commercial Class, Endorsement and Certificate Offenses and Licenses §10:59.1 Additional Penalties for Commercial, Endorsement and Certificate Drivers and Offenses §10:59.2 Limited Waivers Allowed §10:59.3 Employer/Employee Duties §10:59.4 Additional Penalties for Commercial License Holders (or Applicants) Who Suffer §§23152 or 23153 Conviction Regardless of Whether Commercial Vehicle Involved; Exception for Pre-9/20/05 Violations §10:59.5 Life-Time Revocation on Commercial Privilege for Use of Any Vehicle Used in Commission of a Felony Involving Controlled Substance; Exception §10:59.6 Additional Penalties for an Endorsement and Certificate LICENSEE for ALL Two-Point Offenses §10:60 violation of court order §10:60.1 Failure to Pay Fine §10:60.2 Failure to Obey any Court Order §10:70 INTERSTATE IMPLICATIONS OF DRUNK DRIVING CONVICTIONS §10:80 DRIVING-UNDER-THE-INFLUENCE PROGRAM—(DUI PROGRAM) §10:81 General Information §10:81.1 Statutes and Regulations §10:81.2 Figure 10-3 Chart: 18 and 30 Month DUI Program Requirements §10:81.3 Directory of Providers §10:81.4 Completion Required for Full Return of Driving Privileges §10:81.5 False Proof of Completion Is a Crime §10:81.6 CVC §23140: DUI Program Requirement §10:82 First Offender Program (F.O.P.) §10:82.1 Completion Required for Full Return of Driving Privileges §10:82.2 Three Months Duration, but Longer if Chemical Test Refusal or BAC = 0.20% §10:82.3 Early Enrollment Without Court Referral §10:82.4 Mandatory Probation Revocation for Failure to Complete DUI Program §10:83 Multiple Offender DUI Program §10:83.1 Completion Required for Return of Full Driving Privileges §10:83.2 Start Date Must Be Subsequent to Most Recent Offense Date §10:83.3 Reattendance for Offenses After July 1, 1999: No Limits on Benefits §10:83.4 Late Enrollment in a DUI Program §10:83.5 Reinstatement and Re-Referral After Being Kicked Out §10:83.6 30-Month DUI Program §10:90 PROBATION VIOLATION: DRUNK DRIVING ISSUES §10:91 Notice to Other Courts §10:92 Not Based on Unconstitutional Prior §10:93 Mandatory Revocation §10:93.1 Court’s Revocation Discretion §10:93.2 Mandatory Penalties §10:94 Petition to Revoke Probation §10:94.1 Defending Against Petition to Revoke Probation §10:100 JUVENILES AND PERSONS UNDER 21 §10:101 Juveniles §10:101.1 Cannot Blanket Deny Informal Probation; Cannot Suspend License for Juvenile on Informal Probation §10:101.2 “Conviction” Useable by DMV But Not as a Prior Offense by the Court §10:101.3 Driving Privilege Suspension §10:102 Persons Under 21 Years of Age §10:102.1 CVC §23136: 0.01% or Higher Zero Tolerance §10:102.2 CVC §23140: BAC $0.05% §10:102.3 CVC §13202.5: One-Year Suspension for Alcohol-Related Offenses §10:102.4 CVC §§23509 et seq.: The Youthful Drunk Driver Visitation Program Act §10:110 PROFESSIONAL LICENSES AND OTHER CONSEQUENCES OF CONVICTION §10:111 Moral Turpitude §10:112 Attorneys §10:113 Judges §10:114 Immigrants, Aliens and Non-Citizens §10:114.1 Immigrant Visa §10:114.2 No Citizenship Eligibililty While on Probation §10:114.3 Deportation for Crime of Moral Turpitude, Controlled Substances Offense, Aggravated Felony “Crime of Violence” §10:114.4 Felony DUI Is Not “Violent Felony” Under Federal Armed Career Criminal Act §10:114.5 Foreign Travel Restrictions §10:115 Commercial Driver’s License Holders §10:116 Pilots §10:116.1 Bibliography §10:116.2 Attorneys With Practical Experience §10:116.3 Federal Aviation Regulations §10:116.4 Reporting §10:116.5 Medical Certificate §10:117 Government Employees §10:117.1 Self-Reporting Requirements for Armed Services Officers and Senior Enlisted Members
§10:118 Medical
Doctors and Others Licensed by Division of Medical Quality of the
Medical Board of §10:118.1 Nurses §10:118.2 Insurance Brokers §10:118.3 Vehicle Salespersons and Dealers §10:118.4 General Rule of Criminal Conviction Consequences for Licensees and License Applicants, Including Real Estate Brokers §10:118.5 Public School Teachers §10:118.6 DUI Convictions Should Always Be Disclosed on License Applications or License Renewal Forms §10:119 Mandatory Reporting of Criminal Convictions by Prosecutors, Court Clerks or Licensees §10:120 Attorney’s Fees in Civil Action After Felony Conviction §10:121 Emergency Response Costs §10:122 Social Security Benefits §10:123 Conviction Goes on Driver’s License Records
§10:123.1 §10:123.2 National Driver Register §10:124 Conviction Prevents Civil Damage Award
Chapter 11: DMV
Proceedings §11:10 The Administrative Per Se (APS) Suspension Action §11:11 Grounds for Issuance of an APS Order §11:12 APS Suspension Periods §11:13 Concurrent vs. Consecutive Suspension Orders §11:14 With Certain Exceptions, No Restricted License Eligibility on APS Suspension §11:14.1 Exceptions §11:14.1.1 First-Time Offender Over 21 With Excessive BAC §11:14.1.1(a) Grounds for Denial or Termination of Restricted License §11:14.1.2 First-Time Offender Over 21 Holding Commercial License and Driving a Commercial Vehicle With Excessive BAC §11:14.1.3 Critical Need to Drive for Persons Under 21
§11:15
Record Must Be Updated in §11:20 Procedure Prior to Administrative Hearing §11:21 Service of APS Order §11:21.1 Prominent Notice of Right to Hearing §11:21.2 Foreign Language Notice
§11:22
Seizure (“Snatching”) of §11:23 Manner of Service §11:24 Service of the Wrong Order §11:25 Sworn Statement and Supporting Information Forwarded to DMV by Officer §11:26 Blood and Urine Samples Sent to Forensic Lab; Lab Sends Results to DMV §11:27 Automatic Internal Review by DMV and Factual Determination by DMV §11:30 Requesting the Hearing §11:31 How to Request a Hearing §11:32 Contents of the Hearing Request §11:33 The 10-Day Deadline (the Law and Reality) §11:33.1 Exceptions to the DMV’s 10-Day Deadline §11:34 Telephone vs. In-Person Hearing Request §11:35 Hearing Location §11:36 Motion for Change of Venue §11:37 Notice of Hearing §11:40 The Renewed Right to a Hearing (or Second Hearing) §11:41 New Hearing as of Right §11:41.1 Obtaining the Renewed Hearing §11:42 New Hearing by Discretion §11:50 Preparing for the Hearing §11:51 Discovery §11:52 Request for Discovery §11:53 Non-Compliance With Discovery Demand §11:54 Subpoenaing Witnesses §11:54.1 Manner of Service §11:54.2 Fees for Government Employees §11:54.3 Enforcing a Subpoena §11:55 Testimony by Affidavit or Declaration §11:60 The Hearing Procedure §11:61 Continuances and “Reconvenes” §11:61.1 Denial of Continuances §11:62 Reopening Hearing and Receipt of Evidence After Hearing §11:63 Dual Role: Prosecutor and Decision-Maker §11:64 Grounds for Disqualification of Hearing Officer §11:64.1 Voluntary Disqualification §11:64.2 Challenge for Cause §11:64.3 No Peremptory Challenge §11:65 Hearing Officer Need Not Be an Attorney §11:66 Right to a Prompt Hearing and Decision; Stay Order §11:66.1 Rejecting the Stay Order §11:67 Limited Power of DMV Hearing Officer §11:70 Rules of Evidence §11:71 The Applicable Rules of Evidence §11:72 The Hearsay Rule §11:73 Exception Might Permit Sole Use of Driver’s Hearsay Evidence §11:74 Hearsay-in-Hearsay §11:75 Hearsay Police Reports §11:75.1 Hearsay Statement of Officer in Another Officer’s Report §11:75.2 Hearsay Statement of Public Employee in Officer’s Report §11:75.3 Hearsay Statement of a Private Citizen in Officer’s Hearsay Report §11:76 [Reserved] §11:77 [Reserved] §11:78 Right to Continuance to Question Hearsay Declarant §11:79 The Public Employee Records Exception §11:79.1 The Statute—Evid. Code §1280 §11:79.2 Within the Scope of Duty of Public Employee §11:79.3 Contemporaneous Recording Requirement §11:79.4 Trustworthiness Requirement Is Presumptively Satisfied §11:80 Official Notice §11:81 Official Duty Presumption §11:82 DMV’s Official Records §11:83 Unsworn Statements §11:84 Admissibility of Chemical Test Report §11:84.1 Unsworn Chemical Test Report §11:84.2 Non-Certified Chemical Test Report Received Electronically or By Computer From Computerized Database §11:85 Hearing Officer’s Experience, Technical Competence and Specialized Knowledge §11:86 Evidentiary Privileges §11:87 Preservation of Evidence §11:88 Authentication of Documents §11:89 Corpus Delecti Rule §11:90 Testimony by Affidavit or Declaration §11:91 Electronic Reports and Signatures §11:92 Crime Lab Reports §11:92.1 Crime Labs Don’t Need Licenses From DHS §11:92.2 Crime Labs No Longer Subject to Inspections and Proficiency Testing Minimized §11:92.3 DHS No Longer Will Keep Lists of Persons Approved to Conduct Forensic Alcohol Testing §11:100 The Exclusionary Rule §11:101 Exclusionary Rule Inapplicable Absent Egregious Conduct By Police §11:102 Unlawful Speed Trap Rule §11:110 Affirmative Defenses §11:120 EXCESSIVE BAC HEARING (.08% or Higher) §11:121 Summary of the Issues §11:122 Analysis of the Issues §11:122.1 ISSUE 1: Reasonable Cause to Believe Person in Violation of CVC §23152 or §23153 §11:122.2 ISSUE 2: The Person Was Arrested §11:122.2.1 “Lawful” Arrest Required §11:122.2.1(a) Officer Must Observe Licensee Commit a Traffic Violation §11:122.2.2 What Constitutes an Arrest? §11:122.2.3 Arrest That Becomes Detention Only §11:122.2.4 DUI Checkpoints and Other Roadblock Detentions §11:122.2.5 Speed Trap Arrest Is Not Legal §11:122.2.6 Non-Presence Misdemeanor Arrest and the §40300.5 Exception §11:122.2.7 Officer Must Have State-Issued P.O.S.T. Certificate §11:122.2.8 Military and Federal Police
§11:122.2.9
§11:122.2.10 May an Arrest Be Found Lawful Where the Initial Detention Is Not? §11:122.3 ISSUE 3: Person Was Driving With a 0.08% or Higher BAC §11:122.3.1 Driving §11:122.3.2 “Vehicle” §11:122.3.3 Must Be Direct Evidence of BAC §11:122.3.4 Scientific Foundation; Official Duty Presumption; Shifting Burden of Proof §11:122.4 ISSUE 4: Prior Convictions and APS Findings §11:122.4.1 DMV Code Numbers for Priors §11:122.4.2 Manner of Establishing Priors §11:122.4.3 Out-of-State Prior Convictions and Administrative Actions §11:130 EXCESSIVE BAC HEARING (.01% OR HIGHER) §11:131 Summary of Issues §11:132 Analysis of Issues §11:133 Manner of Testing One Suspected of Zero-Tolerance Violation §11:134 P.A.S. Test Result Admissibility §11:140 CHEMICAL TEST REFUSAL HEARING §11:141 Summary of Issues §11:142 Analysis of Issues §11:142.1 Proof of Actual Driving Not Required §11:142.2 Reasonable Cause and Lawful Arrest/Detention §11:142.3 Advised of Obligation and Consequences of Refusal §11:142.3.1 Erroneous Advice Concerning Length of Suspension §11:142.3.2 Erroneous Conduct Concerning Submission to P.A.S. Test §11:142.3.3 Failure to Admonish That Refusal May Be Used in Court §11:142.3.4 Drug Test Advice §11:142.4 Refusal §11:142.4.1 Must Clearly and Unambiguously Manifest Consent §11:142.4.1(a) ‑“Do Whatever You Have to Do!” vs. “I’m Not Even Going to Give You an Answer!” §11:142.4.1(b) Refusal to Answer But No Physical Resistance
§11:142.4.1(c)
Refusal to §11:142.4.2 One Offer and One Rejection Is Usually a Refusal §11:142.4.2(a) ‑Initial Refusal When Testing Not Yet Available, Followed by Consent §11:142.4.3 Interuptive and Other Disruptive Conduct §11:142.4.4 Denial of Choice §11:142.4.5 Constitutional Rights Not Implicated; Exception §11:142.4.6 Right to See Blood Tech’s Credentials §11:142.4.7 Head Injury and Other Mental Defenses §11:142.4.8 Hemophilia or Heart Condition §11:142.4.9 Must Complete Chemical Test §11:142.4.9(a) Submission to P.A.S. Testing Only §11:142.4.10 Forced Extraction Does Not Vitiate Refusal §11:145 REFUSAL HEARING FOR PERSONS UNDER 21 AND DUI PROBATIONERS §11:150 Hearing Officer’s Decision; Findings and Conclusions §11:151 Decision Announced at Conclusion of Hearing §11:152 Decision Sent by Mail §11:153 Findings and Conclusions §11:160 Relation to Criminal Case §11:161 “Acquittal” on Excessive BAC Allegation Rescinds Administrative Suspension Order Based on Same Issues §11:161.1 Meaning of “Acquittal” §11:161.2 “Dismissal” Will Generally Not Rescind Suspension Order §11:161.3 Charges Not Filed §11:162 Collateral Estoppel §11:163 Plea Bargain Solution (The Helmandollar Plea) §11:164 Sequence of Events Immaterial §11:165 Alternatives Where No Criminal Charges Filed or Charges Dismissed §11:166 Suspension and Revocation Orders Run Concurrently, Except Where Court Specifically Orders Otherwise in a Refusal Case §11:167 Conflict Between Restriction Order From Court and APS Suspension §11:167.1 First Offender Cases §11:167.2 Second Offender Cases §11:168 Use of Court Conviction by DMV in an APS Hearing
§11:169 §11:170 Best Not to Tinker With the Court’s Scope of Restriction §11:171 DMV and Court Actions Are Not Precluded by Double Jeopardy Prohibition §11:180 Use by DMV of Out-of-State Prior Conviction in APS Action §11:181 How DMV Learns About Out-of-State Conviction §11:182 Means of Proving Out-of-State Conviction §11:183 Limitation on Use of Out-of-State Conviction §11:184 Means of Establishing Prior Conviction as a Qualifying Offense §11:190 A Practical Approach to APS Hearings and Appeals §11:191 Winning in the Non-Traditional Sense §11:192 Driver Facing Multiple APS Actions at the Same Time §11:193 Does Seeking Departmental Review Make Sense? §11:194 Does Filing a Petition for Writ of Mandamus Make Sense? §11:200 Suspensions and Revocations Based on Other Grounds §11:201 Title 13, Cal. C. of Regs, §110.04—Driver’s License Action Disciplinary Guidelines §11:202 Physical and Mental Conditions §11:202.1 Authority to Withhold or Revoke Driving Privilege §11:202.2 Written Report Triggers Action §11:202.3 Action Taken by DMV Upon Receipt of Report §11:202.4 Request for Hearing §11:202.5 Hearing and Evidence §11:202.6 Determination §11:203 Negligent Operator §11:203.1 Authority to Suspend, Revoke, or Withhold Privilege §11:203.2 Presumption of Negligent Operation §11:203.3 Notice of Action and Right to Hearing §11:203.4 Request for Hearing §11:203.5 Hearing and Evidence §11:203.6 Determination §11:204 Fatal or Serious Injury Accident §11:205 Other Grounds §11:206 Reinstatement of Driving Privilege §11:210 Forms §11:211 Form 11-1: ‑Supplemental Points and Authorities in Support of Set Aside Order §11:212 Form 11-2: Petition for Writ of Mandate and Points and Authorities on the Failure to State in a Prominent Manner the Driver’s Right to a Hearing Within 10 Days §11:213 Form 11-3: DMV Hearing Request—Admin Per Se—In Pro Per §11:214 Form 11-4: Request for Hearing, Discovery and Subpoenas §11:214.1 Form 11-4.1: Request for Late Hearing—DMV Employee Misconduct §11:215 Form 11-5: Motion for Set Aside on the Grounds That a Continuance Was Granted Without Good Cause §11:216 Form 11-6: Motion for Set Aside for Delayed Hearing and Decision §11:217 Form 11-7: Declaration for Challenge for Cause Against DMV Hearing Officer §11:218 Form 11-8: Downer Motion §11:219 Form 11-9: Motion for Acquittal on 2315(b)—Helmandollar §11:220 Form 11-10: Order of Acquittal of CVC §23152(b) Charge
Chapter 12:
Criminal Appeals and Civil Writs §12:10 CRIMINAL APPEALS FROM MISDEMEANOR CONVICTIONS §12:11 Jurisdiction of Superior Court Appellate Department §12:11.1 Trial Judge Disqualified From Sitting on Appellate Panel §12:11.2 Judge Who Heard Any Contested Pretrial Proceeding Is Also Disqualified From Sitting on Appellate Panel §12:12 Rules of Court §12:13 Duties of Trial Counsel for Indigent Defendants §12:14 Notice of Appeal §12:14.1 Form 12-1: Notice of Appeal §12:14.2 Certificate of Probable Cause After Guilty Plea §12:15 Notice of Record Preparation Election §12:16 Settling and Certifying the Record §12:16.1 Forms to Settle and Certify Record §12:16.1.1 Form 12-2: Proposed Statement on Appeal §12:17 Stay of Trial Pending Pretrial Appeal §12:18 Briefs and Decision on Appeal §12:18.1 Form 12-3: Opening Brief Title Page §12:19 Proceedings Following Decision §12:19.1 Finality of Judgment §12:19.2 Petition for Rehearing §12:19.3 Transfer of Case to Court of Appeal §12:19.4 Petition to Court of Appeal for Transfer §12:19.5 Publication and Depublication §12:19.6 Peremptory Challenge After Reversal §12:19.7 Speedy Trial Right After Remittitur Issued §12:20 Only One Appellate Judge for Traffic Infraction Appeal §12:21 Writs in Criminal Cases §12:30 WRITS IN DMV ADMINISTRATIVE CASES §12:31 Writ of Mandamus Procedure §12:32 May First (or Simultaneously) Request Departmental Review §12:32.1 Form 12-4: Sample Departmental Review Request §12:33 Time Limit for Filing Petition in Superior Court §12:33.1 Form 12-5: Sample Transcript Request §12:34 DMV’s Duty to Deliver Complete Record to Petitioner §12:35 Remedy for Lost Record Is Set Aside of Suspension §12:36 DMV Must Pay Expenses for Repeat Hearing Due to Lost Record §12:37 Record on Review Limited to Record of Hearing §12:37.1 Form 12-6: Points and Authorities Regarding Making Your Record for Appeal §12:37.2 Form 12-7: Points and Authorities Regarding Evidence Code §604 for Writ §12:38 Petitioner’s Duty to Present Adequate Record §12:39 Venue §12:40 Superior Court Standard of Review Is “Independent Judgment” §12:40.1 Form 12-8: Sample Points and Authorities Regarding Independent Judgment §12:41 Attorney’s Fees and Costs §12:41.1 Form 12-9: Sample Request for Attorney’s Fees §12:42 Alternative Writ vs. Petition and Motion §12:43 Filing and Service §12:44 Costs for Filing Petition §12:44.1 Form 12-10: Sample Petition for Writ of Review §12:45 Stay of Suspension/Revocation Pending Review §12:46 Costs for Filing Ex Parte §12:46.1 Form 12-11: Sample Declaration of Notice of Ex Parte §12:46.2 Form 12-12: Sample Points and Authorities for an Ex Parte Application for Stay §12:46.3 Forms 12-13: Sample Orders §12:47 Legal Arguments and Grounds Not Included in Petition Form §12:47.1 Denial of Due Process §12:47.2 Denial of Equal Protection §12:47.3 Writ Review on Matters Prior to Final Decision §12:48 Form 12-14: Judgment Granting Writ of Mandate/Review §12:49 Checkpoints for Filing Writ §12:49.1 Pre-Printed Judicial Council DMV Writ Forms §12:50 Appeal of Superior Court Decision to Court of Appeal §12:50.1 Standard of Review §12:50.2 “Stay” Pending Decision from Court of Appeal §12:50.3 Order Remanding Matter Back to DMV for Further Hearing Not Appealable §12:50.4 Form 12-15: Sample Supersedeas §12:60 Rule 8.268. Rehearing §12:70 Rule 8.500. Petition for review §12:80 Rule 8.1120. Requesting publication of unpublished opinions §12:90 Rule 8.1125. Requesting depublication of published opinions
Chapter 13:
Interstate Implications of Drunk Driving Convictions §13:10 Interstate Consequences Of Drunk Driving Convictions §13:11 The Problem—Nowhere to Run/Nowhere to Hide §13:12 Interstate Agreements §13:13 CVC §§15000, et seq.—The Interstate Driver’s License Compact §13:13.1 CVC §15020(a)—Findings and Policy Statement §13:13.2 CVC §15021—Compact Definitions §13:13.3 CVC §15022—Reports of Convictions §13:13.4 CVC §15023—Effect of Conviction in a Party’s State
§13:13.5
How Out-of-State Convictions Appear on a
§13:14
To Be Useable by
§13:14.1
Chargeable as a Prior Conviction in
§13:14.2
Useable by §13:14.3 Equivalency of Out-of-State Prior Convictions §13:15 Full Faith and Credit
§13:16
Representing a
§13:17
Representing an Out-of-State Resident Facing Suspension in
§13:17.1
CVC §15023: §13:17.2 Proof of Insurance
§13:18
Representing an Out-of-State Resident Suspended in
§13:18.1
Person Not a §13:18.2 Non-California Resident on DATE OF REINSTATEMENT Is Eligible for Reinstatement Without Doing a DUI Program §13:18.3 Form 13-1: DMV Form DL 4006 (Formerly DL 589) §13:18.4 Form 13-2: Complete Text of DMV Form DL 4007 §13:18.5 Other Solutions for Unreasonable Court
§13:19
Representing a Person Moving to §13:20 Lawyers With Practical Experience §13:21 Checklist for Interstate Driver License Issues §13:22 Overview and Flow Charts of Licensing Consequences §13:23 State-by-State Listing of DMV Contacts
Chapter 14:
Restitution §14:10 THE REMEDY OF RESTITUTION DEFINED §14:11 Definition of Restitution §14:12 Restitution in Criminal Law and Civil Law (Torts) §14:20 THE VICTIM’S RIGHT TO RESTITUTION
§14:21 A §14:22 The Statutory Right to Restitution and Legislative Intent §14:30 THE DEFENDANT’S RIGHT TO CONTEST THE AMOUNT OF RESTITUTION AND RIGHT TO AN EVIDENTIARY HEARING §14:31 The Right to an Evidentiary Hearing
§14:32
Requirement That Restitution Amount Be Determined at a Later Date by §14:33 Restitution Must Be for Injuries Caused by the Defendant’s Criminal Conduct or Must Serve a Rehabilitative Purpose §14:40 RESTITUTION AS A CONDITION OF PROBATION §14:41 Scope of Restitution Order: Economic vs. Non-Economic Losses §14:42 Responsibilities and Duties of Probation Department Re: Restitution §14:43 Negotiating the Amount of Restitution and Probation Conditions as Part of a Plea Agreement §14:44 Impact of Insurance Payments and/or Civil Court Settlements on Criminal Court Determinations of Restitution Amount Owed to the Victim §14:44.1 Costs and Attorney Fees Incurred by Victim §14:45 Establishment of Bank Account by Probation Department for Deposits of Payments Towards Restitution Amount §14:46 State Restitution Agencies Available to Assist Victims §14:47 Appellate Decisions and Other Authorities §14:48 Relevant Restitution Statutes §14:48.1 Penal Code §1202.4—Restitution Fines, Hearings, Losses, Expenses, Interest Rate §14:48.2 Penal Code §1202.41—Hearing re Restitution Order Where Victim Has Received Assistance From Restitution Fund; Modifications or Amendments; Defendant’s Physical Presence §14:48.3 Penal Code §1202.42—Entry of Restitution Order, Wage Garnishment Provisions, Orders for Income Deduction §14:48.4 Penal Code §1202.43—Payment of Restitution Fine
§14:50 BANKRUPTCY
DISCHARGES FINE, BUT NOT RESTITUTION §14:60 ATTORNEY’S FEES IN CIVIL ACTION AFTER FELONY CONVICTION §14:70 EMERGENCY RESPONSE COSTS
Appendix A: Telephone Directory
Appendix B: DMV Forms and Codes
Appendix C: Title 17 Update
Appendix D: State and Federal Statutes,
Regulations, and Codes
Appendix E:
Table of Cases
Table of Statutes
Index C9 |
Updated 07/15/10