The Right to Bail in California and The Exceptions

February 19, 2012

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.

10 Year Revocation of Drivers License Now Possible for 3rd Drunk Driving

February 19, 2012

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.