Juvenile Petitions for Underage DUI

August 27, 2011

It is the kern county district attorney who files the petition to declare a child a ward of the court under Welfare & Institutions Code 602 after receiving an affidavit from the probation officer who recommends that criminal proceedings for a DUI should be started. The probation officer will have received an affidavit or report from the person who alleges that the child has committed the DUI or criminal offense. In certain situations, such as the mandatory referral to the district attorney for one of the serious or violent offenses listed in Welf & I C §707(b), the affidavit must be given to the prosecutor within 48 hours from the time it was received. Once a juvenile criminal petition has been filed, the prosecutor may file an affidavit requesting an arrest warrant for the child. The statute of  limitations for the offense alleged is suspended on the filing of the petition for as long as the case is before the juvenile court. Prosecutorial discretion to file charges directly against a minor or juvenile in criminal court under Welf & I C §707(d) as authorized by Proposition 21 is well within the prosecutor’s charging authority.  On receipt of the petition, the clerk of the Kern County Court must set the hearing on the detention calendar.  These proceedings are seperate from any actions initiated by the DMV following a juvenile DUI arrest.

The Use of Documentary Evidence in Traffic Court

August 21, 2011

A traffic court may establish special rules under the Vehicle Code for the trial of Vehicle Code infractions such as speeding and lane violations.  These rules may provide for testimony and other relevant evidence to be introduced in the form of a notice to appear and a business record or receipt (notwithstanding the hearsay rules set forth in Evid C §§1200–1380).  The Judge hearing the particular matter must inform the defendant of the summary nature of a proceeding under the court’s rules and of his or her right to confront and cross examine witnesses such as the police officer or CHP officer, to subpoena witnesses, and to be represented by a Kern County attorney. The court must ascertain that the defendant knowingly  and voluntarily waives these rights before proceeding. In a jurisdiction having a non-English-speaking population exceeding 5 percent of the total population in any one language, such as Kern County for example,  a written explanation of the court’s summary procedures must be made available in that language.

Pleading Not Guilty in Traffic Case

August 20, 2011

In Kern County, a person who pleads not guilty to an infraction has the right to a trial before a commissioner or traffic referee.  There is no right to a jury trial or to a court-appointed attorney. This authority is set forth in Penal Code §19.6;   Most speeding ticket defendants do not hire attorneys unless there is risk of substantial consequences, say the loss of a license or employment. Although a person charged with an infraction has the right to be  represented by private counsel (see People v Kriss (1979) 96 CA3d 913, 917). Indeed, it is well established that without a showing of special circumstances, it is not necessary for the kern county judge to advise an unrepresented defendant charged with a traffic infraction of his or her right to be represented by privately retained counsel. It is also unnecessary for the judge to obtain a waiver of the right to an attorney before accepting a defendant’s plea of guilty or no contest to the infraction or before trying the defendant without a lawyer if the defendant pleads not guilty.  However there may exist “Special circumstances” that might warrant an advisement and waiver include the possible imposition of multiple maximum penalties or proof of gross physical, linguistic, or mental inability of the defendant to represent himself or herself or to understand the right to employ counsel and the means of employing counsel.  A lawyer can certainly assist those whose license is on the line in a non-DUI infraction matter.

Requesting Your Case Be Heard at the “County Seat”

August 20, 2011

In traffic cases, an accused may seek to have a change of venue  to a different court within the county.  This request is known as a request to have the case heard in the county seat.  The notice to appear will require the traffic offender to appear in the court that is nearest or most accessible to the place where the arrest was made. See Vehicle  Code §40502(a). The traffic offender may request a change of venue to the court at the county seat of the county in which the offense was committed if the defendant’s residence or principal place of employment is located closer to the county seat than to the court that is nearest or most accessible to the place where the arrest was made. See Vehicle  Code §40502(b).  In Kern County, any branch court qualifies as a “county seat” court. The request must be made at the arraignment. See Pen C §1462.2.  Most courts only allow the request to be made for infractions, however, some attorneys have had success for DUI offenses as well.

The Right to Retain a Blood or Urine Sample in a DUI Case

August 15, 2011

In Kern County, a person who selects a breath test must be informed, before or after the test, that the equipment used does not retain a sample, and that no breath sample will be available for analysis after the test. Veh C§23614(a); In fact the California Supreme Court has held that fundamental fairness does not require advisement before, rather than after, person submits to breath test. The accused DUI driver must then be advised that he or she may provide a blood or urine sample to be retained, at no cost, for subsequent testing. Veh C §23614(b). The person must also be informed that the blood or urine sample may be tested by either party in a criminal prosecution, and that the failure to perform a test places no duty on the opposing party to perform it and does not affect the admissibility of other evidence regarding the arrested person’s blood-alcohol content. Veh C §23614(c). The failure to give any of these advisements does not affect the admissibility of evidence of the arrested person’s blood-alcohol content.  The primary rationale behind this requirement is the idea that a breath test does not retain a sample that can be later tested by a defendant in a criminal case.

Plea Bargaining DUI Cases in Kern County

August 14, 2011

In Kern County, as in the entire state of CA, A person who is charged with misdemeanor DUI under Vehicle Code 23152 may enter into a plea bargain with the prosecution to instead plead guilty or no contest to a charge under Veh C §23103 of reckless driving without causing bodily injury. Veh C §23103.5(a). The prosecution must state for the record a factual basis for the satisfaction or substitution, including facts showing whether the defendant had consumed any alcoholic beverage or ingested or administered any drug, or both, in connection with the case. Veh C §23103.5(a). If the statement indicates that the defendant did so consume, ingest, or administer, the guilty or nocontest plea will be treated as a prior offense in future DUI prosecutions of the defendant, and the court must advise the defendant of that fact before accepting the defendant’s plea. Veh C §23103.5(b), (c). If the District Attorney in Kern County does not make such a statement at the time of the defendant’s plea and the defendant does not object to the omission and is expressly advised that the guilty plea may be used as a prior offense in a subsequent prosecution to enhance the sentence, the wet reckless driving conviction can be asserted as a prior.

Kern County Spared From The IID Pilot Program

August 14, 2011

Recently, the state of California implemented a pilot program to have all DUI offenders install an ignition interlock in all cars they own upon conviction for any drunk driving offense, VC23152 and VC 23153.  Many counties were included but Kern opted out and remains one of the few that does not mandate the installation of such machines for DWI violators.  The counties of Alameda, Los Angeles, Sacramento, and Tulare are participants in a pilot program in which the DMV requires a defendant convicted of Veh C §23152 or §23153 to install and maintain an ignition interlock device (IID) on any vehicle owned or operated by the defendant for a specified term as a condition of being issued a restricted driver’s license, being issued a driver’s license, or having the privilege to operate a vehicle reinstated. The applicable law is found in VC 23700.  In the coming years the program will audit the efficacy of the devices for first offenders in CA.  The consensus among legal practitioners however is that the devices are unnecessary and serve no legitimate purpose to deter first offender drunk drivers from committing a subsequent driving under the influence violation.  It seems the only real winners, according to the experts, are the companies that stand to profit handsomely from the new law.  Some Judges and probation officers are just now starting to realize the idiocy of requiring a person with no previous criminal record to have the device in their automobiles.  Most first time DUI offenders will tell you that they learned their lesson from the arrest, fines, fees, schools, and other onerous conditions imposed and will not re-offend, particularly during the first five months after the conviction which is when the IID will remain in the vehicle.  Your intelligent comments are welcomed.