DUI Basics

With the holiday season upon us, increased vigilance by the police looking fro drunk drivers comes to the forefront. Drivers that are intoxicated at the holidays pose increasing numbers risk to all motorists. California Vehicle code Section 23152(a)(b) is the basis for prosecution of  drunk drivers. These two sub sections deal with operating a vehicle under the influence of drugs and/or alcohol and for operating a vehicle with a blood alcohol reading of .08 or higher. Driving Under the Influence (DUI) is a “wobbler” in the State of California. What this means is that depending on the circumstances of the offense DUI can be charged as a felony or a misdemeanor. The differences are primarily dealing with injury to others and/or property damage. A first time DUI conviction results in a $395 fine which is multiplied by 4-5 times for various fees that are tacked onto the fine itself. The fees include victim restitution funds, education funds, etc.

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Therefore,  the penalties of a first time DUI conviction can be quite severe and are not to be scoffed at.  The jail time for the first time DUI defendant is 48 hours. You will get “credit” for the time you were jailed following your arrest toward this time period.  Besides the fine, you will be placed on 3 years of summary probation. This means that you will not be supervised probation. However, if you get arrested within three years from the date of your conviction, aside from the new criminal charge, you could be facing a probation violation which could result in increased fines, jail time, etc. The first time DUI offender will have their California Drivers License suspended for a period of 90 days. After 30 days, you may get your license back from the DMV (once again for a fee) and will have the license issued to you on a restricted basis. What the restriction of your license will allow you to do is to drive to and from your work, and to and from the alcohol school. Once again, fees for the alcohol school are substantial and must be paid by you. The purpose of the school is to get you to change your behavior and not drink and drive. The school may last up to 6 months. The courts are not very tolerant of defendants who do not comply with the terms of their sentence. I have had judges tell defendants in open court, that since they did the crime, it is not the intention of the court to make things easy for them. Therefore, compliance is required. 

The court could issue an order to have you visit to MADD (Mothers Against Drunk Drivers) for their education and could order you to a visit to the Los Angeles County Morgue to observe autopsies of persons killed by drunk drivers. All in all, not a wonderful scenario  The court could also order the insertion of an ignition interlock device in your car. This device will not allow you to drive if you are found to be under the influence. You must blow into a machine which will measure your blood alcohol level. If you are under the influence, the car will not start. Once again, you will get “opportunity” to pay for this. 

If this is not your first rodeo in the DUI arena, jail time increases, time of license suspension increases as do the fines. DUI convictions can involve “moral turpitude” issues regarding professional licenses. I know of cases where attorneys have been disbarred for repeated DUI convictions. Therefore, it is imperative that you do not become ensnared in this web of fines, fees, and related problems. If you do party use the designated driver, call a cab, stay at a hotel, friends house, etc. A cab fare is a lot less expensive that a DUI !!! 

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Hearsay & Its Exceptions

We have all seen lawyer shows on television when one of the actors leaps up and says “objection” when a piece of evidence is about to be offered or a statement from someone is about to be made or a document used. The lawyer/actor may cite a ground for the objection as “hearsay” or some other reason for the court to rule on. Have you ever wondered what the actors are really saying? This article will touch upon the highlights of evidence that may come up civil litigation.

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Hearsay is the out of court statement that has been submitted for the truth of the matter asserted. The law does not favor evidence coming in from persons who are not present before it in some manner. If the witness testifying to the court of the light in an auto accident case never saw the light, his/her testimony is worthless. If the witness says, I heard person  X say the light was red, it should not come into evidence. The court wants to have the persons who saw the light come testify. The credibility and the perception of that witness will be judged by the trier of fact (judge and/or jury) and the party against whom the testimony is offered will have the chance to cross-examine the witness. This being said, the law has created various exceptions to the hearsay rule that may allow some evidence to come before the court. 

An admission by a party is strong evidence that would come into evidence. The law favors admissions because it puts issues to rest. The party may try to explain the circumstances of their admission. However, unless compelling circumstances exist, it may be difficult to undo the admission . If the party in our auto accident case yelled out at the scene “I should have seen the red light”, it may be very difficult for this to be undone at the time of trial. The concept  of declarations against interest tie in with admissions. The declaration has to be the party’s against penal, pecuniary or propriety interest. In the accident case, the statement could come into evidence as satisfying all three exceptions noted above. 

Dying declarations also come into evidence as an exception to the hearsay rule because the law has stated that no one wants to die with a lie on their lips. The law has included various limits on this. The declaration has to be done in imminent fear of death, the declaration as to be tied in with the cause of death and must be reasonable. Another exception is the business records exception. This allows records to be considered by the court provided that the records were prepared at or near the time of the event, the records were prepared in the normal course of business operations and their is a custodian of records to satisfy the evidence foundation to allow them to be admitted into evidence. 

Excited utterances are admitted into evidence because the law feels that a spontaneous expression at or near the time of the event is a better barometer than a later thought statement. Past recollection recorded allows prior statement to be admitted into evidence when a person does not recall what they said. If the recording was done at or near the time of the event. The flip side of this is prior recollection refreshed. This allows a witness to “refresh” their memory by looking at prior recordings done by them and they can then testify as though they have present recollection. 

There are various other exceptions that still exist. If a person asks, “why do you think he did this?”. This is pure speculation. You cannot testify to what someone else thought unless they said or did something which would allow this to come into evidence.  The laws favors certainty, not guessing at a persons perception, motive, etc. The law also only wants relevant evidence. Relevance is defined as giving evidence more probative than prejudicial. Motions are filed with the court to exclude evidence that is more prejudicial than probative. For example, if a person was convicted of a felony 35 years ago, introduction of this evidence would be for the sole purpose of prejudicing a trier of fact of the felony conviction of many years ago. Therefore, states and the federal government have time limits for which felony convictions can be introduced due to remoteness in time and prejudice. 

Hopefully, this quick overview of evidence (it is a one year course in law school) will get you to think about evidence both on television and in the courtroom.