Kern County DUI Attorney

It is perhaps one of the most commonly asked questions among those arrested for DUI, “the officer did not read me my Miranda rights”  Can the case be dismissed?  The answer depends on the details of the arrest, that’s because of a U.S. Supreme Court case Called Berkemer vs. McCarty.  In that case, the defendant was stopped for drunk driving. When he got out of his car, he staggered and almost fell down. At this point, the state trooper who stopped him decided that he was going to jail. But he did not tell McCarty this until he’d failed the field sobriety tests and answered questions about his sobriety. The Supreme Court ruled: McCarty was not in custody until he was formally arrested for DUI and placed in the patrol car. As a general rule, traffic stops and roadside detentions do not trigger the need for Miranda warnings. That is because they are “presumptively temporary and brief. The vast majority last only a few minutes.” Moreover, since most occur outside and in public — not in the police dominated atmosphere of the station house — “the motorist’s fear that if he does not cooperate, he will be subjected to abuse” is substantially diminished.

It should be noted: The court recognized that if a detention becomes unduly prolonged and/or the DUI suspect is “subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply” of Miranda protections. Comment: Often forgotten is the fact that McCarty actually won this case. The court suppressed the statements which he made after he was arrested and affirmed the lower court’s reversal of his conviction. However, along the way, Justice Marshall also made it clear that “A policeman’s unarticulated plan [to arrest a suspect] has no bearing on the question whether a suspect was `in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspects’ position would have understood his situation.”]  So where does this leave the average Joe arrested and charged with DUI in Bakersfield or anywhere else in Kern County?  Well, a Lawyer should investigate the circumstances surrounding the arrest, in some unique cases the officer may have gone too far.  Hire an attorney and challenge the case, it is the only way to be sure that your rights were not violated.

A DUI arrest comes without warning or notice, the decisions made during and after the arrest often determines the outcome of a particular case.  Anyone arrested in Kern County should be aware of the potential long-term consequences and immediate penalties that may result from a plea of guilty or a court conviction.  Although there is no way to fully prepare for an encounter with law enforcement after a night of drinking, the public should be informed of basic “do’s and don’ts” pertaining to a drunk driving investigation.  The following is a list of the biggest blunders a person makes in this type of situation:

Never tell the police officer the number of drinks you had, this information is requested for one reason only and that is so that you can be locked into a specific drinking pattern that may deny you of important defenses in Court.

Never agree to take any hand-held Preliminary Alcohol Screening Device (PAS) Breath Test, unless you are under age 21 the law does not require it. These breath machines are not accurate and lead to injustice.

Never agree to submit to any FST’s. First of all, they are not “tests” you do not get a score and they are completely subjective. Do not take them.

Never t make admissions about your level of intoxication or sobriety. Remember, you have the right under the Constitution to remain silent-exercise that right!

Never tell the officer where and when you were drinking. When in doubt, invoke your Constitutional right to remain silent, this info. is used to preclude rising blood alcohol defenses by your attorney.

Always ask to speak to a Lawyer before answering any questions about drinking or your level on intoxication following a DUI traffic stop. You have the right to do this (the exception is choosing which test you will submit to, speaking to a lawyer before choosing the breath or blood test is not permitted).

Always take the breath test (not the PAS, see above), when given a choice between breath or blood, upon being lawfully arrested. The breath test is easier to challenge than the blood test.

Always speak to an attorney as soon as possible after you are let out of jail. You must get the important information about preserving evidence, securing essential witnesses and obtaining necessary Court dates and a temporary license from the DMV.

Never go to Court and try to represent yourself. Would you operate on yourself if you needed surgery, would you?

Never delay in requesting a DMV hearing ASAP in order to save your driver’s license after a DUI arrest. The law only gives you 10 days to avoid certain license suspension.

In summary, there are ways to minimize the impact of the DUI, an attorney can help guide you.

Many times a truck driver will be issued a ticket for speeding or other commercial violation and the officer finds that a log book violation exists.  He writes a ticket then commences to take the log book pages away from the driver and keeps them.  Is this legal? The authority given the CHP and other law enforcement personnel to seize evidence comes from California case-law. These cases grant law enforcement personnel the authority to seize and secure evidence necessary for future prosecution of the charges alleged. Pages from a driver log book containing information necessary to prove the elements of a criminal offense would be included as items which may be seized. In the case where the driver has already forwarded the original log book page(s) to his or her employer and only has one copy remaining, the driver will be allowed to duplicate the activity on a fresh log page(s) prior to the seizure of such copy. In Kern County, most officers, are advised that when available, copy machines should be utilized to provide replacement for seized documents.

In Kern County and throughout the state of California, a criminal defendant who is charged with a noncapital offense may be admitted to bail before conviction as a matter of state law. However, our California Constitution restricts this right under the following circumstances:

• If an accused is charged with a violent felony or a felony sexual assault offense when the facts are evident or the presumption great and the court finds, based on clear and convincing evidence, that there is a substantial likelihood the person’s release would result in great bodily harm to others, or

• If the defendant is charged with any felony when the facts are evident or the presumption great and a Judge finds, based on clear and convincing evidence, that the person has threatened another with great bodily injury and that there is a substantial likelihood that the defendant will carry out the threat if released.

The language “when the facts are evident or the presumption great” has been defined by the Courts as follows: “It is not necessary that the evidence should be so convincing as to justify a verdict against the accused, but it is sufficient if it points to him and induces the belief that he may have committed the offense In determining whether there is a “substantial  likelihood” that the defendant will cause great bodily injury to another if released, the magistrate or judge must review the specific circumstances on a case-by-case basis.  Most prosecutors, particularly those in conservative counties such as Kern,  will apply the exceptions liberally and ask for no bail in serious cases.  It is important to seek the counsel of an experienced criminal defense lawyer to argue that bail should be allowed.  A hearing can be held to permit the Court to hear evidence militating towards a release on bail.

California passed a new law this year that allows the California DMV to take drivers license for 10 years upon a 3rd drunk driving conviction.  Vehicle Code section 23597(a) lets a Judge issue the revocation in cases the Court feels it is necessary, but the revocation will not be automatic.  If the Court does not make the order, the DMV will not take action.  According to Bruce Blythe, a seasoned DUI Attorney in Kern County, this law leaves a broad degree of discretion in the hands of the judicial system and may be a negotiating tactic for many District Attorneys seeking a guilty plea.  It is envisioned that many prosecutors and judges will threaten the longer revocation if the defendant “rolls the dice” and takes the case to trial and loses. The ordinary consequence is a 3 year loss of license, which will be the default period unless the Court makes any additional orders.  If the revocation is imposed , after 5 years the licensee can apply for an early restriction with IID and proof of completion of an alcohol education school.  California is not the first state to impose such a harsh penalty.  Those facing a third driving under the influence criminal case should consult a lawyer to familiarize themselves with other penalties and Kern County DUI laws in general.

In many of the outlying areas of the state, particularly in areas near major freeways there has been an increase in arrests for DUI of those merely parked on the roadside.  The CHP is the biggest contributor of these cases with nearly a third of all DUI arrests in some areas attributed to drivers parked on the road in an impaired condition.  So what does the law say about these cases?

According to Matthew Ruff a well-known California DUI Attorney in Torrance, Courts treat these cases no different from any other drunk driving case.  CA law provides that a person must be proven to have driven in an impaired condition or drove while his or her BAC was at or above .08 percent.  Prosecutors can do this by way of direct or circumstantial evidence.  A good example of a circumstantial DUI driving case is when a motorist is found parked on the road drunk.  The DA will attempt to show that the accused was driving within three hours of the breath test by using the defendant’s own admissions, evidence that the officer drove past that location shortly before the arrest and the car wasn’t there or other factors such as proof drinking occurred close in time at a distant location.  However the D.A. chooses to prepare his case, it must be remembered that if the evidence points to two reasonable interpretations and one points to innocence, that interpretation that points to innocence must be adopted by the jury.  Therefore if a theory exist to show drinking after the car stopped,  or that another driver exists the outcome can be favorable to the defendant.

Should you or someone else be facing a drunk driving case involving a parked car consult a Kern County DUI Attorney for advice and specific guidance.

Kern County is an attraction for many.  For some it is due to business, whether it be oil, agriculture, wind farms, the military, or any other number of industries that thrive in the region.  Every year the area sees hundreds of good decent visitors stopped and arrested for DWI, thrown in a local jail and then booted out with a citation to appear in a local Court that the individual knows nothing about, or even where to find it.  When that trip turns into a nightmare due to a DUI arrest, who you gonna call?  One resource is Bruce Blythe, a local Kern County DUI Attorney who has lived in the area all his life and has been practicing drunk driving defense for well over 15 years.  His law firm focuses on these types of charges and, for many, he has been a lifesaver.  The law allows a lawyer to appear for the client on a driving under the influence cases so the individual will not have to travel back to the state if they live elsewhere.  Another advantage to hiring a local law firm is that they know the D.A that will be trying the case as well as the DMV hearing officers who will be presiding over any license suspension matters pertaining to the arrest.  DUI in Kern County carries with it rather stiff consequences so a person facing a court date is well advised to retain a professional that can advocate for the accused and eliminate the serious ramifications that can, and often do, flow from a criminal charge.

No. A police officer’s report or an accident report may not be used as evidence in any trial of the DUI arrest or accident, whether criminal or civil. In one recent appellate case the court upheld the decision where the judge properly refused to admit into evidence either entire accident report or diagram of accident contained in report. The reason for this prohibition is that if the accident report were introduced into evidence, there is a danger that the jury would consider it to be “official,” and give it more weight than that to which it fairly is entitled. The officer who made the report may use it to refresh his or her recollection. The defendant’s attorney may cross-examine the officer concerning the report and, if the officer’s statements in court are in conflict with the statements in the report, the defendant may impeach the officer. The defendant or his attorney may ask the officer whether a fact stated in the report is true, and may inquire whether the officer asked a witness certain questions. See Evidence Code §771(b) If, after reading the report, the officer has no full and accurate memory of the incident, the officer is required to read into evidence the statements, otherwise admissible, directly from the report.

A Kern County Judge may also permit the officer to read into evidence as a past recollection recorded the statement of a witness contained in the report that was inconsistent with the witness’s testimony at trial.  If a defendant pleads guilty to a DUI or other Vehicle Code violation, the Court, in a DUI trial,  may not receive or consider any written or verbal report of any police or traffic officer, or of any witness of the offense, at any time before pronouncing sentence without fully informing the defendant of all statements in the report and giving the defendant an opportunity to answer the report or produce rebuttal witnesses.

Kern County judges and commissioners handle the traffic court calendar call in various ways. Some have prepared a videotape which is played in the courtroom at the beginning of the calendar before the judge or commissioner takes the bench. The purpose of the videotape is to give the defendants facing a speeding ticket an overview of their procedural rights, their options regarding pleas, the range of sentences, the consequences of a particular plea, the traffic violation points that may be assessed, the effect that a particular plea may have on their insurance rates, the option of attending traffic violator school, and how to arrange for payment of any fine that may be imposed. Other Judges prefer to cover these matters in person immediately after taking the bench. Some judicial officers give the defendants a printed advisement in place of or in addition to an oral advisement. An advisement form that might be used as either a spoken or written form.

Some Judges have found that an efficient way to manage the arraignment calendar is to advise the defendants that their names will be called in alphabetical order and that they should have their documents, such as proof of registration, insurance, or correction, in hand to show to the court. When they hear their name called, they should come forward to the podium, state their plea, and present any documents to the clerk. Many judicial officers call several defendants forward at a time (e.g., all defendants whose last names begin with the letters A through D, etc.). They ask the first defendant to take his or her place at the podium, and ask the others to line up in the aisle outside the rail. Calling several defendants forward and asking them to be ready to proceed speeds up the disposition of cases, saving time for both the court and the defendants.

In California, the Court may revoke probation any time there exists evidence to establish a violation of the terms of that grant of probation. If the kern county court does not wish to terminate probation on a finding of a probation violation, it may set aside an order revoking probation and reinstate the probation on the same or modified terms. (authority to reinstate probation applicable whether imposition of sentence was suspended or execution of sentence was suspended). A revocation order, for a DUI or any other case,  may be set aside for good cause on motion made before the pronouncement of judgment. According to Bruce Blythe, a Kern County DUI Attorney, If probation was revoked after judgment was pronounced, the judgment and order may be set aside for good cause within 30 days after the court has notice that the execution of sentence has commenced.

Because a revocation of probation tolls the running of the probation period, a reinstatement of probation on the same terms and conditions effectively extends the original term of probation by the period of revocation. If the court intends to cancel the tolling effect of the revocation, it must state so expressly on the record When probation is reinstated before the original probation period has expired, the court may extend the probation period up to the statutorily prescribed maximum limits. In misdemeanor cases, probation may not exceed three years, unless the maximum sentence provided by law exceeds three years, in which case probation may be enforced for a period not to exceed the maximum county jail sentence that could be imposed.  In felony cases, probation may not exceed five years, unless the maximum sentence provided by law is more than five years, in which case probation may be enforced for a period not to exceed the maximum state prison sentence that could be imposed.

If an order setting aside the revocation of probation or judgment is made after expiration of the original probation period, the court may reinstate probation for the same period and with the same terms and conditions that could have been imposed immediately following conviction. The court may set the probation period without reference to the original probation term or time served under it.