Phil's Blog

DON’T GET RIPPED OFF BY AN ATTORNEY ON DRIVING UNDER THE INFLUENCE

(DUI) CASE IN VENTURA COUNTY

All kinds of lawyers like to market themselves as Driving Under the Influence (DUI) specialists. The reason they say they are DUI specialists is not because they have special knowledge or skill in defending these cases, but rather it is because DUI is the most common arrest for people who otherwise would have no contact with the criminal justice system. In other words, it’s about the money.

Driving under the influence is a misdemeanor typically charged under Vehicle Code Sections 23152(a) and (b). Under Vehicle Code 23152(a) a “person is under the influence if… he or she is no longer able to drive with the caution of a sober person, using ordinary care, under similar circumstances.” Vehicle Code Section 23152(b) uses a different standard, “the defendant’s blood alcohol level was .08 percent or more by weight.” Blood alcohol levels are determined by use of on scene breath testing equipment or upon request of the person arrested to be transported to a local hospital for a blood draw. Thereafter, a blood alcohol level is determined by a test done at the local crime laboratory.

The penalty for a violation of Vehicle Code Section 23152(a) or (b) is the same. In other words, the defendant can be convicted of either the (a) section, (b) section, or both, and the penalty is the same.

Over the last twenty years the accuracy of blood alcohol testing, like all things involving technology, has improved substantially. Therefore, attorneys who advertise knowledge of “blood alcohol testing errors” are misleading the public about the potential inaccuracy of the testing equipment. The truth is the vast majority of Driving Under the Influence cases are not defensible because the recorded test result is above .08. Most experts will tell you that the actual margin of error on testing equipment is no more than .02 percent. Therefore, any reading of .10 percent, or greater is almost impossible to defend on the merits.

What is most despicable are attorneys who sell a client on the possibility that “your case might be dismissed” because of a “testing error” or some other technical problem. Rather, these issues go to the “strength of the evidence” and are not a violation of a Constitutional right that might require dismissal.

Lastly, Ventura County is perhaps the only jurisdiction in the state where the District Attorney’s Office does not offer a “Wet Reckless,” a violation of Vehicle Code 23103.5 in low blood alcohol cases. Lawyers who do not regularly practice in Ventura County often are unaware of this reality, and thus are surprised by their inability to “plea bargain” for a “Wet Reckless.”

The harshness of Driving Under the Influence (DUI) practice in Ventura County carries over into the sentencing stage. The District Attorney almost always asks for an additional jail sentence upon conviction. This is where your attorney can be most effective, that is by negotiating the sentence directly with the judge and not the Deputy District Attorney in the courtroom. Particularly in cases with a “high blood alcohol allegation,” that is .15 or greater, pursuant to Vehicle Code 23578, or cases involving an accident, the District Attorney will seek an additional jail sentence. However, jail time can be avoided through various alternatives such as electronic monitoring or “work release.” The skill and reputation of your lawyer can be critically important in negotiating for an alternative to jail.

In the final analysis, there is a virtual inverse correlation between the competency of the lawyer and the amount of money they charge, and the big promises they make. In other words, honest, capable and competent lawyers who obtain the best results, usually don’t charge the most. If you want an honest, capable and competent lawyer to represent you in your Driving Under the Influence (DUI) case, who cares about your well being, and not how much money he can make off your case, call Phil Dunn at 805-494-1131, or email him at philipremingtondunnesq@gmail.com. Phil has two offices in Ventura County, located at 141 Duesenberg Drive, Suite 10, Westlake Village, CA 91362, and 674 County Square Drive, Suite 102, Ventura, CA 93003.

PETITION FOR DISMISSAL OF CRIMINAL CONVICTION UNDER

PENAL CODE SECTION 1203.4 (EXPUNGEMENT)

A Petition for Dismissal pursuant to Penal Code Section 1203.4 may be filed in any misdemeanor or felony case in which there is a conviction and the probationary time period has run out. If probation was not granted, a Petition for Dismissal can be filed one year after the date of conviction pursuant to Penal Code 1203.4a. If probation is granted, and the term has expired successfully, that is without a Notice of Violation of Probation, the case may be dismissed pursuant to Penal code 1203.4 as the probationer has “fulfilled all the conditions of probation for the entire period thereof.” A Petition for Dismissal may also be granted in a case where the probationer “has been discharged from probation prior to the termination of the period thereof.” This is commonly known as “early termination.” Most judges in Ventura County will terminate probation early if all of the terms of probation have been fulfilled. This would include the fulfillment of any custody time, work release, community service, restitution and the payment of all fines and fees. In certain cases such as violations of Vehicle Code 23152 (a) or (b), commonly known as Driving Under the Influence and Penal Code sections 243(e), 273.5 and 273.6, commonly called domestic violence, there are court ordered classes that must be completed before a motion for early termination of probation will be considered by a judge.

Most felony convictions where probation is granted are also eligible for expungement. Penal Code Section 1203.4 provides for the dismissal of the conviction when the sentence was made pursuant to Penal Code 1170(h)(5) and more than one year has elapsed since the completion of the jail sentence and probation has been completed successfully. Felony dismissals also require a finding by the judge that “it is in the interests of justice” to dismiss the case. Many factors can go into an “interests of justice” analysis; including proof of rehabilitation, steady employment, sobriety and character references.

Certain felony convictions are known as “wobblers.” This means they can be charged as either a felony or a misdemeanor. If the offense was charged as a felony, the judge, pursuant to Penal Code Section 17(b) can still reduce it to a misdemeanor at the time of sentencing or “on application of the defendant… thereafter.” So, the interest of justice analysis may be avoided if the conviction is first reduced to a misdemeanor because it is then eligible for dismissal pursuant to Penal Code 1203.4.

A felony or a misdemeanor may still be dismissed, even if there has been a violation of probation, including a new conviction, if probation is completed and the defendant can show that relief “should be granted in the interests of justice.” Under these circumstances a Declaration is required, filed under penalty of perjury providing facts sufficient to make an interest of justice finding. Once again, an interest of justice finding can be made based upon proof of rehabilitation.

In Ventura County misdemeanor convictions for Driving Under the Influence under Vehicle Code Sections 23152(a)(b)(d)(e) and (g), and Domestic Violence under Penal Codes 243(e), 273.5 and 273.6 also require a Declaration under penalty of perjury that provides justification for granting the Petition for Dismissal.

If you or a loved one have a criminal conviction that you would like dismissed, please don’t hesitate to call me, Phil Dunn at 805-494-1131, or email me at philipremingtondunnesq@gmail.com. My website can be found at Criminal Defense Attorney Philip Remington Dunn. My office address are 141 Duesenberg Drive, Suite 10, Westlake Village, CA 91362, and 674 County Square Drive, Suite 102, Ventura, CA 93003.

Defending Domestic Violence Charges in Ventura County

Typically domestic violence prosecutions in Ventura County are for arrests pursuant to Penal Code Section 273.5; Corporal Injury on a cohabitant or Penal Code 243(e)(1) commonly known as domestic battery. Penal Code 273.5 is a “wobbler” which means it can be prosecuted as either a felony or a misdemeanor. Penal Code 273.5 requires that the alleged violence caused a “traumatic condition” which is a “wound or an injury, whether minor or serious caused by the direct application of physical force.” Penal Code 243(e)(1) incorporates the legal definition of battery which is merely “touching in a harmful or offensive manner.” Unlike Penal Code 273.5, Penal Code 243(e)(1) can only be filed as a misdemeanor.

Since the distinction between these two charges are often difficult to discern, the arresting agency almost always chooses to make the arrest for the more serious charge, Penal Code 273.5, because that arrest can count as a felony arrest. Furthermore, it carries with it a schedule of $20,000.00 in bail. However, often times when the case is reviewed by the District Attorney’s Office prior to filing actual charges, the charges are reduced to a misdemeanor. Often times the filing by the District Attorney is for the lesser included offense of Penal Code 243(e)(1). The time period between the arrest date and when the charges are filed is often the most critical time in which an experienced and capable criminal defense attorney in Ventura County likely will have the greatest influence on what will be the outcome of the case. In virtually all of these cases an arrest is made, and therefore the time period between arrest and arraignment is about two weeks. It is during this period that defense counsel can investigate the case and when appropriate provide additional evidence to the filing deputy district attorney that might influence the filing decision. In appropriate cases, the district attorney may even decide to “reject” the case for filing. Thus, no criminal charges are filed and the defendant is “discharged” from the Court’s jurisdiction.

Once the District Attorney has made a filing decision they are much less likely to “dismiss” a case because a decision to prosecute has been made and the filing becomes a statistic regarding the District Attorney’s conviction rate. This why it is so important to provide exculpatory evidence to the District Attorney prior to arraignment. It is much easier for them to reject a weak case prior to filing, than dismiss a weak case once it has been filed. Often times the exculpatory evidence comes in the form of some type of recantation by the alleged victim regarding what actually occurred. Emotions run high in these cases, often fueled by alcohol and anger, then the reality of seeing a loved one arrested has an immediate sobering effect on the alleged victim. When law enforcement is called out on these cases, they almost always make an arrest in order to avoid the possibility of more serious violence after they leave when no arrest is made. When an arrest is made on cases involving more trivial allegations, it is not uncommon for the alleged victim to plead with law enforcement to not arrest their loved one, to no avail. It should also be remembered that the alleged victim has certain statutory rights regarding their view on prosecution and sentencing. These rights are commonly known as Marcy’s Law.

In cases where a prosecution has been initiated, even for misdemeanor violations of Penal Code 273.5 and 243(e)(1) the sentencing consequences are significantly harsher compared to other misdemeanors. For instance, there is no chance of diversion out of the criminal justice system for first time offenders, they require the defendant be placed on formal probation, and attendance at 52 weeks of domestic violence classes is mandatory. The related fines and fees can be in the thousands of dollars, and there is a 10 year prohibition against owning any firearms. Additionally, the District Attorney almost always seeks an additional jail sentence in these cases. What is perhaps the worst consequence is the long term impact of having a domestic violence conviction on your record. Expungment of Penal Code 273.5 and 243(e)(1) misdemeanor convictions are always an option upon successful completion of probation, but that probationary time period is typically three years. Therefore, the best way to defend a domestic violence charge is to get on it quickly, and perhaps avoid all of severe consequences of a conviction should the facts of your case make justify that result.

If you or a loved one have had the misfortune of being arrested on any type of domestic violence charge please don’t hesistate to call me, Phil Dunn at (805) 494-1131 or email me at philipremingtondunnesq@gmail.com. My website can be found at Criminal Defense Attorney Philip Remington Dunn. My office addresses are 141 Duesenberg Dr. Suite 10,Westlake Village CA 91362, and 674 County Square Drive, Suite 102, Ventura, CA 93003.