California Drunk Driving Law
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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 01/09/12
