The Fallacy of Field Sobriety Tests

September 18, 2011

In every DUI arrest in Kern County the police officer or CHP officer will give a series of field sobriety tests under the guise of determining their level of impairment.  The fallacy in this argument however is the fact that most FST’s do little to establish any level of sobriety.  The so-called tests require the suspect to perform abnormal tasks that are skewed in favor of the prosecution because the officer does not give the suspect the opportunity to practice or do dry run.  Indeed, even olympic athletes are permitted to train for physical tasks that are not within the realm of everyday human activity.   One local Kern County DUI Attorney has gone so far as to proclaim that the filed sobriety tests are not fair inasmuch as the officer does not give a score or grade the performance of the suspect on any objective level.  Many in the legal and scientific community have alleged that the officer does not give the DUI suspect a fair chance given the problems and inadequacies of the testing method.

Bakersfield DUI Attorney Talks About Drug Diversion

September 11, 2011

Drug diversion is available to those that qualify and can mean the case is dismissed without any scar on your record.  There are things that will make a person ineligible however.  Number One, there is no evidence of a violation relating to narcotics or other restricted dangerous drugs other than a violation or attempted violation of an offense listed in PC 1000(a). Indeed, the Courts have held that a criminal defendant charged with being under the influence of a controlled substance under Health & S C §11550 and driving under the combined influence of alcohol and a controlled substance under Vehicle Code  §23152(a) which is DUI, after blood test showed presence of cocaine, was not legally eligible for diversion under former Pen C §1000(a)(3)). The type of evidence required under Pen C §1000(a)(3) is information showing that the defendant has “probably committed” a disqualifying illegal drug offense, not simply a suspicion or rumor to that effect, says the high court. According to one Bakersfield DUI Attorney, there is no requirement that the defendant actually be charged with the disqualifying offense.  The Courts have been clear on this issue, saying, evidence of prior narcotics charge dismissed due to reasons relevant to the current charge and the diversion proceeding properly considered by the prosecutor.  Furthermore, that evidence of charge of transportation of methamphetamine dismissed as part of plea bargain properly considered.

The Right to Bail in Probation Revocation Proceedings

September 5, 2011

When a person is convicted of a DUI there is usually a period of probation that typically associated with the case.  Should the defendant ever violate probation the question becomes whether bail can be posted to avoid a remand to jail. Although there are no state appellate cases that have addressed the probationer’s right to release from custody pending a revocation hearing, the United States Court of Appeals has held that the Eighth Amendment does not guarantee a right to bail pending revocation of probation. Indeed, case law in California has established that parolees have no constitutional right to bail pending parole revocation hearing. However, judges routinely release probationers on their own recognizance or bail. A Kern County DUI Attorney should be consulted whenever a person is facing a violation of probation.

In determining whether to grant or deny a probationer’s request for release on bail pending the revocation hearing, the court must consider the protection of the public, the safety of the victim and the victim’s family, the seriousness of the charges constituting the basis for revocation, efforts by the probationer toward rehabilitation, the probationer’s previous criminal record, and the probability that the probationer will appear at the revocation hearing.

The Right to Appeal in a DUI Case

September 3, 2011

Among the most important rights to a criminal defendant in a DUI case  is that of the right to appeal.  After imposing sentence or making an order deemed to be a final judgment on conviction after trial, including an order granting probation, the court must orally or in writing advise a defendant not represented by counsel of the right to appeal to the appellate division of the kern county superior court, the time for filing a notice of appeal, and the right to appointed counsel on appeal.  Interestingly, this notice is not required following a guilty plea for a kern county DUI case. The defendant must file a written notice of appeal with the court clerk within 30 days after rendition of judgment or the making of the order. According to one Kern County DUI Attorney, the superior court must appoint counsel for a defendant on request if the defendant is subject to incarceration or a fine of more than $500, or is likely to suffer significant adverse collateral consequences as a result of the conviction, and the defendant was represented by appointed counsel in the trial court or, as in the courts of appeal, establishes his or her indigency. The appointment of an attorney is discretionary for any other indigent defendants in criminal and DUI cases.

Work Furlough in Kern County

September 3, 2011

Various programs exist in California and Kern County to avoid actual jail time. For example, work furlough may be available to defendants who are sentenced to county jail for a DUI, imprisoned in jail for nonpayment of a fine, or ordered to serve time in jail as a condition of probation.  With this program arrangement, the defendant is allowed to continue his or her regular employment or participate in job training or educational programs. When the defendant is not working or participating in the training or educational programs, he or she is confined in a facility designated for work furlough confinement.  Participation in a work furlough program is subject to the approval of the work furlough administrator.  A defendant seeking this alternative should ask his or her attorney to request the program prior to sentencing.  Pursuant to relevent case law in California, the kern county judge alone does not have jurisdiction to place defendant directly in work furlough. The court may preclude a defendant’s participation by ordering, at the time of sentencing, that the defendant not be granted work furlough. Under Penal Code section 1209, the court may allow the defendant to serve his or her jail time on weekends. If jail weekends are given, the court usually specifies the day and hour that the defendant is to report to jail and the day and hour of release.