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March 2014 Archives

Do "Miranda Rights" always have to be given?

"Miranda rights" do not always have to be given to an individual.  These rights generally include the right to remain silent, not incriminate yourself, right to an attorney and anything you say may be used against you.  They must be given only if you are in custody and being questioned.  NO questions, then no miranda. Police Officers simply investigating a crime do not have to give "miranda rights" to everyone they talk to.   Once you are under arrest, then the rights must be given before any questions are asked.  However, if you are just talking and making statements, even after being arrested, those statements can be used against you.   If you voluntarily go to the police department, not under arrest and are free to leave, rights do not have to be given to you.  Many times officers will give them anyway in an abundance of caution in many circumstances.

What happens with a petty theft cite at Carlsbad Walmart?

If you are stopped for petty theft by store security at the Carlsbad Walmart, loss prevention or store security will escort you to the office.  They will seize the property they believe is stolen and try to get you to admit or explain what you have done.  They will then write a report, call Carlsbad Police and have you cited or arrested depending on the circumstances.  If you have no record and the theft  or shoplifting is clerly $950 or less, and there is no evidence you decided to do this before entering the store (burglary) you will be cited for a misdemeanor petty theft and given a Court date about 30 days later.  If there is eveidence of a burglary, you will be arrested and taken to jail, bail set and Court within 3 Court days.  A misdemeanor does carry the potential for custody and can really negatively affect your future.

Is a DUI with an accident a felony?

A DUI with an accident is a felony only if another person is injured.  A property damage only accident with a DUI is a misdemeanor in Oceanside, Carlsbad, Escondido, Vista and everywhere in California.  However, an accident is an aggravating factor even on a misdemeanor, regardless if it is a single car accident with no other proerty damage.  Courts consider driving under the influence of alcohol or a drug to be more serious where there is an accident of any kind and sentences are generally greater.  Clearly the more damage or more dangerous the driving makes the case more serious and will generally result in greater sentences.

Is an Out of State DUI Program Allowed for my California DUI?

You can attend a DMV program out of state for a California criminal DUI conviction, however, it will not fulfill the California DMV program requirement for keeping your California driver's license and it will not make your out of state license valid in California.  Your out of state license may be valid in 49 other states but not in California until you fulfill the California DMV requirements which include the appropriate California DUI program, SR-22 proof of insurance for 3 years and payment of a reissue feee to DMV.

Does a DUI Arrest require me to stay in California for Court?

A misdemeanor DUI does NOT require you remain in California for Court.  California Law allows an attorney to make your appearances in Court on your behalf for misdemeanors without you.  The retained attorney can also set up and handle any DMV Hearing.  If you do not have an attorney, then you must physically appear, no one else can appear for you and your failure to appear will result in a forfeiture of bail or bond, a warrant for your arrest, suspension of your license, and possibly an additional charge for failure to appear.

Can a Burglary be Charged with a Shoplifting?

A burglary can be charged with a shoplifting even if the value of the theft is $950 or less and is only a petty theft.  Burglary refers to the "mental intent" when you entered the store, not the value of the property taken.  Burglary requires "entering" the store with the intent to steal, not deciding to steal after you are already in the store.  It is a felony punishable by up to a 3 years prison.  That charge is a "wobbler" and could also be charged as a misdemeanor depending on a number of factors.  The police officer does not have that discretion, only the District Attorney when they review the case and your background for filing.

Driving on a Suspended License for DUI is Serious in Vista Court

Driving on a suspensed license for DUI can have serious consequences in Vista Courts.  There are several reasons a divers's license can be suspended in California and each has slightly different consequences with the most serious resulting from driving because of an alcohol suspension for DUI.  All suspended license charges are misdemeanors and carry large fines and potential custody or alternative to custody, additional suspensions and 2 points on your driving record.

Is it a Probation Violation to File Proof of MADD Class Late?

It is a probation violation to file proof of MADD class with the Court late results in a warrant for your arrest and a violation of probation.  Whether it is MADD class, Anger Managment, volunteer work, restitution or anything the Court gave you a deadline to complete AND file, it triggers a warrant for your arrest and a probation violation.  This can result in a resentencing with additional penalties which could include extending probation, additonal fines, programs, jail or public work.

Drug DUI Offenses are not eligible for Diversion in North County

Drug DUI offenses are not eligible for Diversion also known as PC 1000.  The law excludes these offenses for treatment in lieu of prosecution in North County and all of California.  Drug DUIs are treated similarly to alcohol DUIs with probation, fines, programs and possibly custody or an alternative to custody like public work or community service.  Every jurisdiction may treat these offenses slightly differently so it is important to hire an attorney who practices regularly in the Court where your case is being heard.

Is Treatment in Drug Cases in Vista Courts Available?

Treatment in Drug cases in Vista Courts may be available as an alternative to prosecution under certain circumstances, or included in the sentencing for drug charges.  There are several ways to handle a drug case which depend on a number of factors like the charges, the facts of the case, prior record, individual, medical condition and other factors specific to a certain case.  Treatment can be available and ordered as part of a sentence or as an alternative to a sentence.  Whether or not treatment will be successful depends on the individual.

DUI Blood Reanalysis Requires a "Blood Split"

A DUI blood test usually take at least 3 weeks to be completed from the time of the offense by the San Diego Crime Lab.  The testing only uses a portion of the blood that was drawn, there remains plenty of blood for retesting if desired by a defense attorney on behalf of their client.  The sample does have preservative in it so it doesn't degrade.  

DUI First Offense Restricted License is Available in Vista Cases

A first offense DUI restricted license is available in Vista cases and throughout California.  Los Angeles County requires an IID (Ignition Interlock Device) depending on the resolution.  If you have a 1st offense DMV administrative per se suspension for 4 months for being over a .08 and a conviction, you need to wait for 30 days after the per se suspension starts before going to the DMV and converting the 4 month suspension to a 1 month suspension and 5 month restriction. There are different requirements if you were under 21 at the time of the offense.

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