The purpose of this is to give you some examples of how to get your DUI charges dismissed. For a full and comprehensive understanding of DUIs in California, including DMV hearings, and what to expect in criminal court, please watch our DUI playlists listed below. This is a down and dirty list of the most common defenses to DUIs in California.
The Rising Offense: This means your alcohol level was rising at the time of your arrest. For example, when you were pulled over, you actually were under the legal limit, but by the time you got to the jail or the hospital, when you blew into a breath machine or when your blood was drawn, your alcohol level rose to a higher level. You could have drunk right before driving and it wasn’t until you were at the jail or the hospital that you were actually intoxicated above the legal limit.
This means you weren’t driving over the legal limit. This is called the rising defense and often it can be proven when the results from the small breath tests you took on the side of the road are a lower number than the second test that you took out of jail or a hospital. For example, your breath test at the scene was a 0.07 and your blood results later were a 0.09. The numbers are rising from a 0.07 to a 0.09 and it can be deduced that at the time of your driving, you actually were less than a 0.07.
Your blood or your breath results were unreliable, and this can be proven in a couple of different ways. If you took a blood test, you could have your blood retested at a different lab. If your results were in the gray area, between a 0.08 and a 0.09 we’ve had cases in the past where we retest the blood, and it came back less than the legal limit.
If you took a breath test, there’s a rule that the breath machine must be calibrated for accuracy within every 10 days or within 150 uses. If you are arrested on a holiday, you may want to get those calibration logs to show your breath test results were potentially unreliable because the machine was faulty or used over 150 times.
You were illegally stopped: Some people call this a PC 1538 Motion: Motion to Suppress Evidence. If your attorney can prove that there was no reason to stop you in the first place, that you were racially profiled or the reason for your traffic stop wasn’t a violation of the law at all then the argument is that all the evidence should be thrown out because the stop was illegal.
The No Driving Defense: This might apply to you if you actually weren’t in the driver’s seat, or if there’s no proof that you were driving. Sometimes people are arrested while they’re sleeping in the backseat of their car or in the passenger seat of their vehicle. The police might touch the hood of the car to see if it was warm if there was recent driving, you could be outside of your car waiting for help from a tow company or a friend, or there might’ve been other people waiting outside of the car with you and there is no evidence to show that you were actually the driver. This defense is hard to prove if you were found alone in the driver’s seat with the keys in the ignition, even if you were parked.
The Three-Hour Rule: Your blood must be drawn, or your breath test must be taken within three hours of driving. This defense can apply to you if there was some type of delay in taking you to the hospital and getting your blood drawn or a delay in having you take a breath chemical test. If it was over three hours from the time that you were pulled over, you may have a three-hour driving defense.
There are many other defenses to DUIs, and if you’re curious to see if your case has a defense, please contact an experienced DUI lawyer to get an evaluation of your case. At Lamano Law our goal is to keep you informed and to help. Thanks for listening.
Being arrested for domestic abuse can be an emotional and terrifying experience. If you are arrested for assault there are several things that you have to deal with immediately. The first is posting bail so you can be released. Sometimes a temporary restraining order or emergency protective order has been issued. These orders prohibit you from contact with your accuser. This means, if you live together you can’t go home. Now you’re in a situation where you’ve been arrested, gone to jail, and can’t go home. If you have been arrested for domestic assault or battery, the best thing you can do for yourself is to hire an experienced criminal defense attorney to help you fight the charges.
Domestic Abuse Charges
Penal Code Section 243(e)(1)states that you could be convicted of misdemeanor domestic battery if the district attorney proves:
You committed battery on your accuser AND;
At the time of the battery, the accuser was your:
Spouse or former Spouse
Mother or Father of your child
Your fiancé or fiancée or someone you currently have or previously had a dating or engagement relationship with.
Battery means that you used force or violence against your accuser. They do not have to be injured. Even the slightest touch can be enough to commit a battery if you do it in a rude or angry way. The touching can be done indirectly by causing an object, or even someone else, to touch the other person. The touching does not have to cause pain or injury of any kind.
Jack and Jill are dating. They go up the hill at sunset for a romantic picnic. Jack steps on the picnic basket while trying to take a selfie. Jill gets mad at Jack and pushes him down the hill. Jack is not injured but Jill is arrested and charged with domestic battery.
Alex and Aaron are domestic partners. One night they argue over texts that Aaron receives from an ex-boyfriend. Alex yanks the phone out of Aaron’s hand and leaves the house with it. Alex is arrested and charged with domestic abuse.
Jane and John are dating. John stays the night and brings Jane breakfast in bed. They start arguing and John throws a cup of orange juice at Jane hitting her in the shoulder. John is arrested and charged with domestic battery
To be convicted of assault under Penal Code Section 273.5 the district attorney must prove:
That you willfully and unlawfully inflicted a physical injury on your:
Spouse or former spouse
Cohabitant or former Cohabitant
Mother or Father of your child
Someone with whom you currently have, or previously had, an engagement or dating relationship with AND;
The injury inflicted by the defendant resulted in a traumatic condition.
In order for the assault to be willful, it means you inflicted harm on the accuser willingly or on purpose. A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. Physical force is the use of power, violence, or pressure directed against a person involving a physical act.
Jack and Jill are in a dating relationship. They go up the hill at sunset for a romantic picnic. Jack steps on the picnic basket while trying to take a selfie. Jill gets mad at Jack and intentionally pushes him down the hill. Jack breaks his arm in the fall. Jill is arrested and charged with felony domestic abuse.
Alex and Aaron are domestic partners. One night they argue over texts that Aaron receives from an ex-boyfriend. Alex yanks the phone out of Aaron’s hand and hits him on the arm with it, bruising him. Alexander is arrested and charged with misdemeanor domestic abuse.
Jack and Diane are engaged to be married and are making wedding plans. Jack doesn’t like Diane’s cousin and doesn’t want him attending the wedding. They start fighting and Jack starts choking Diane.
Penal Code 273.5 is commonly referred to as a “wobbler.” A wobbler is a crime that can be a felony or a misdemeanor. It is very common to be arrested by the police for felony domestic abuse but charged by the district attorney for misdemeanor domestic abuse. What you are charged with depends on the severity of the injury and the specific facts of the case.
The Consequences of Domestic Abuse Charges
You will have a criminal record. If you are convicted of misdemeanor domestic abuse under Penal Code Sections243(e)(1) or 273.5 you could face up to one year in jail in addition to informal or formal probation. If you are convicted of felony domestic abuse under Penal Code Section 273.5 you could face up to one year in jail and up to four years in prison and formal probation.
You will also be required to take domestic abuse classes, pay fines and fees, and pay “restitution” to your accuser. Restitution means that if your accuser had to pay for things that were related to the assault, you must cover those costs.
When Jack fell down the hill and broke his arm, he had a lot of medical bills. Jill had to pay for the medical bills because the bills were a result of her assault on Jack.
Additionally, under recently passed California law, you could lose the right to possess a gun for ten years if you are convicted of Penal Code Section 243(e)(1). If you are convicted of Penal Code Section 273.5 under California law, you are banned from owning a gun for life. Under federal law if you are convicted of any domestic abuse, misdemeanor or felony, you cannot own a firearm. If you are not a citizen of the United States a conviction for a violation of domestic abuse could result in severe immigration consequences such as deportation. You could also lose custody of your children if you are convicted of domestic abuse.
Defenses to Domestic Abuse Charges
If you have been charged with domestic abuse you may have a defense. Some examples are below.
Sometimes the accuser is the abuser:
Jack and Jill live together, Jack is emotionally, verbally, and physically abusive to Jill. One day Jack pushes Jill down the hill. She breaks her collarbone and loses consciousness. When the police arrive, Jack tells them that she committed assault and he pushed her away during the assault. Because she is unconscious Jill can’t tell her side of the story. She wakes up in the hospital under arrest. Jill’s defense attorney proves that she is actually the victim and the charges are dismissed.
You did not intend to hurt your accuser:
Aaron and Alex are arguing. Alex decides to leave the house to cool down. He walks past Aaron but trips on the carpet and starts to fall. While Alex is falling, he starts flailing his arms to try to catch his balance and accidentally hits Aaron in the face giving him a black eye. Aaron calls the police and Alex is arrested for assault. His defense attorney gets the charges dismissed because he did not intend to hit Aaron.
You were defending yourself or others:
Jack and Diane are engaged to be married and are making wedding plans. Jack doesn’t like Diane’s cousin and doesn’t want him attending the wedding. They start fighting and Jack starts choking Diane. Fearing for her life, Diane punches Jack to escape. Jack has a bloody nose and calls the police. Diane is arrested but her defense attorney gets the charges dismissed because they prove Diane was acting in self-defense.
The assault or battery never happened:
Lewis and Alice are going through a nasty divorce. Alice decides she wants full custody of the children to punish Lewis. She calls the police and falsely accuses Lewis of hitting her so that she can get full custody of their children. The police arrest Lewis but his defense attorney proves that Alice made the story up.
Common Domestic Abuse Restraining Orders
Arrests for domestic abuse are often accompanied by a restraining order requiring the accused to have no contact with their accuser. There are two types of restraining orders that a judge can issue, a Temporary Restraining Order and an Emergency Protective Order.
A Temporary Restraining Order (TRO) is a civil court order that has a short time limit. The Temporary Restraining Order tells you what you can and cannot do until the court can schedule a longer hearing. At the longer hearing, the judge will hear evidence and decide whether to issue a more permanent restraining order.
An Emergency Protective Order (EPO) is requested by law enforcement. An Emergency Protective Order is often requested by the arresting officer when they think there is a danger of domestic violence, child abuse, abduction, or elder abuse. The Emergency Protective Order provides protection to the accuser while they are filing for a Domestic Violence Restraining Order (DVRO) in court. Domestic Violence Restraining Orders usually last for three years.
If a Temporary Restraining Order or an Emergency Protective Order has been issued against you, there are certain things you will no longer be able to do:
You will not be able to go to certain places or things.
You might have to move out of your home.
It may affect your ability to see your children.
You will generally not be able to own a gun.
You will have to turn in, sell or store any guns you have now, and you will not be able to buy a gun while the restraining order is in effect.
It may affect your immigration status if you are trying to get a green card or a visa.
If you violate the restraining order you could be charged with a misdemeanor and you may go to jail, pay a fine, or both.
Any assault or battery charge that ends up being a domestic violence charge can have severe and lasting effects on your life and livelihood. You will have a criminal record that includes violence. Employers generally don’t like that. Your children could be taken away from you, you could lose your job, you could even be deported. If you are accused of domestic abuse the best thing to do is hire an experienced criminal defense attorney to give you your best chance at fighting the charges.