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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
California
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:
California
Common Carrier Offense
§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
California
Drunk Boating
§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 Federal Land and the Assimilative Crimes Act
(ACA)
§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
County
Amnesty Programs
§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 Opportunity
for Post-Storage Hearing
§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 Split Verdict
§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 California DUI Offenses
§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
California
Offenses
§3:44.3
Prior Federal or Other State Prosecution
§3:44.4
Crimes in “Indian Country”
§3:44.5
California
Prosecution for Crime on Federal Property
§3:44.6
Conflict With Federal Law
§3:44.7
Jurisdiction for Arrest
§3:45
Other Immunity from Prosecution
§3:45.1
California
Emergency Services Act
§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 Rendering Court
§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
§5:23.5
Local Court Records Online
§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
Ventura
County Crime Lab Conceals
Loss of Title 17 License
§5:71.2
Ventura
County Crime Lab Concealed
Conflicting Breath Test Printouts
§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 Alameda
§5:71.9
Ventura
County Crime Lab Fails to
Train 35 Cops on Intoxilyzer 5000 EN
§5:71.10
Arizona
Intoxilyzer 5000 Discovery Scandal
§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
Arizona
Intoxilyzer 5000 Discovery Scandal
§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
California
Public Records Act (C.P.R.A.)
§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
California
Cases
§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
§6:40 MOTION FOR COURT
APPOINTED EXPERT
§6:40.1
Bibliography
§6:40.2
U.S. Supreme Court Authority
§6:40.3
Making the Indigency Determination
§6:40.4
Pen. C. §1329: Authorizes County
Payment
to Expert Witnesses
§6:40.5
Motion for Court Appointed Expert Witness
§6:50 NO
DISMISSAL
FOR
STATE
PRISON INMATES
§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
Lot Unless Posted
§7:20.9
Mobile
Data Terminal (MDT) DMV Record Search
§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
California
Cop in California
Outside Employing Jurisdiction
§7:53
California
Cop on Federal Property
§7:54
Out-of-State Cop in California
§7:55
Federal Cops in California Out of Federal Jurisdiction
§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 Superior
§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 California
§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
Ohio
§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;
Adams Foundation
§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
Split
Verdict
§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
Mind
Other Than Consciousness of Guilt
§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
§10:29.7
DMV Court
Informational Memo Explains Many Mysteries
§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 (Delancy
Street)
§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
California
Residents
§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 California Doctors
§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 California Record
§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
Sacramento
DMV for Reinstatement
§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
California
License and Issuance of Temporary License
§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
California Police Officer
Outside His Employing Jurisdiction
§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 Sign Hospital
Blood Consent Form
§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 First Offender
School Counts for Both
Court and APS Restriction Eligibility
§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
California
Driving Record
§13:14
To Be Useable by
California
the Out-of-State Conviction Must Pass an Equivalency Test
§13:14.1
Chargeable as a Prior Conviction in
California
Courts if Equivalent
§13:14.2
Useable by California DMV if
Equivalent
§13:14.3
Equivalency of Out-of-State Prior Convictions
§13:15
Full Faith and Credit
§13:16
Representing a California Resident With
an Out-of-State Conviction
§13:17
Representing an Out-of-State Resident Facing Suspension in
Home
State Because of a California Drunk Driving Conviction
§13:17.1
CVC §15023: Home
State
Must Suspend if Its Laws Require Suspension for an Equivalent Offense
§13:17.2
Proof of Insurance
§13:18
Representing an Out-of-State Resident Suspended in
California
for Failure to Enroll in or Complete a
California
Licensed DUI Program
§13:18.1
Person Not a California Resident on
DATE OF CONVICTION Should NOT Be Suspended or Revoked for Not Doing a
DUI Program
§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
California
With an Out-of-State Drunk Driving Conviction on Home State Record
§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
California
Constitutional Right to Restitution
§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
Sentencing Court
§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: California Drunk Driving Law’s Unpublished
Case Digest
Table of Cases
Table of Statutes
Index
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