Sacramento Criminal Defense Lawyer Blog

A bill that would have substantially increased penalties for DUI convictions was watered down before being passed out of the Assembly Appropriations Committee.

The proposed law, authored by Jerry Hill (D-San Mateo), would have given judges the authority to impose a lifetime ban on driving after three DUI convictions. Instead, the bill gives judges the ability to revoke a license for 10 years. Current state law suspends driving privileges for three years after a third DUI conviction. Also removed by the committee was language that allowed consideration of a driver's lifetime record for DUI conviction. Current law limits consideration to the previous 10 years.

Hill claimed that budget limitations were the primary reason the bill was amended. It was estimated that the bill would have cost $10 million a year to house the additional people who would have been sent to prison due to conviction for felony DUI, which comes after a fourth DUI conviction. Felony DUI convictions would have increased if the bill's provision to allow consideration of a driver's lifetime record had been retained.

The California DUI Lawyers Association argues that a better solution is installation of Ignition Interlock Devices, which require drivers to blow into an alcohol detection device before starting their cars. If any alcohol is present, the ignition will not operate.

San Mateo County Times, May 28, 2010

Last year the California legislature and the governor enacted a new law that establishes test programs in Sacramento, Tulare, Alameda, and Los Angeles counties requiring the installation of Ignition Interlock Devices on vehicles used by people convicted of DUI. (Click here for a summary of the bill's provisions.) That bill (AB 91) has been codified as Vehicle Code section 23700 and has been funded through a grant from the Office of Traffic Safety.

As of this date, the new law will apply only to DUI violations that occur on or after July 1, 2010. What that means is that citations for DUI that occur on or before June 30 will not be subject to the new law even if the conviction occurs after the law takes effect. It also means that people who receive DUI citations in the next month should not feel compelled to resolve their cases before the new law takes effect to avoid the IID requirement.

Assault and battery are so often used in the same sentence - as in, "He was charged with assault and battery" - that it's easy to think that the terms describe the same crime. However, though they are related, assault and battery are distinct crimes under California law.

Assault

California Penal Code 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury to the person of another." Thus there are three aspects to an assault:

• the attempt to injure another person;
• the violent nature of the attempted injury;
• the ability to actually cause the injury.

What this means is that merely thinking about injuring someone does not constitute assault. It also means the person charged with assault must have the means to cause bodily injury.

In reality, few people are actually charged with a violation of PC 240. Instead, they face the more serious charges that come from use of a weapon or great force. Penal code 245 (a) (1) pertains to assault with a deadly weapon other than a firearm, or with force sufficient to cause great bodily injury. Penal Code 245 (a) (2) pertains to assault with a firearm.

Battery

In contrast to assault, battery is defined by California Penal Code 242 as a "willful and unlawful use of force or violence upon the person of another." Battery therefore has two key qualities:

• the purposeful use of force;
• the actual infliction of injury.

Assault v. Battery

The differences between assault and battery can be summarized this way. Battery focuses on real injuries resulting from an attack by another person. The focus of assault, in contrast, is on the attempt to cause an injury. If you are charged with assault, the DA believes that you attempted to commit a battery. If you are charged with battery, the DA believes that you were successful in your assault.

Both assault and battery are "wobblers," meaning they can be charged as either misdemeanors or felonies depending on the circumstances of the crime. For a more detailed description of assault and battery penalties, click here.

Robbery and theft are distinct crimes under California law. Each crime is defined under a particular section of the penal code, with separate charging guidelines and penalties.

Under Penal Code 211, a robbery takes place when one person takes property from another person through the use of force or fear. A robbery is classified as first degree or second degree depending on where the incident takes place. If it occurs in structures considered inhabited (i.e., homes, apartments, vessels, trailers); against passengers or drivers of a public mode of transportation, like a taxi or train; or against people using an ATM machine, first degree robbery is charged. All other instances are considered second degree.

All robberies are felonies, and are strikes under California's Three Strikes Law. Conviction of robbery can result in a state prison sentence of two to nine years, depending on the circumstances of the incident.

A theft, in contrast to a robbery, is a taking of property that does not involve interaction between people. California Penal Code 484 defines theft merely as a taking of property. Thefts are classified as either petty or grand. Grand theft involves property that is valued at more that $400, and can be charged as either a misdemeanor or felony. Petty theft involves property valued at less than or equal to $400, and can be charged as either an infraction or a misdemeanor, depending on the circumstances.

Penalties for a theft conviction depend on the severity of the crime. An infraction carries no jail time and a maximum fine of $250. A misdemeanor conviction can come with time in county jail, probation, work project, restitution, fines, and counseling. A felony conviction can come with all of the penalties for a misdemeanor, as well the possibility of time in state prison.

Click here for a detailed description of theft and robbery.

Domestic violence - or spousal abuse - falls under California Penal Code 273.5, which makes it a crime when bodily injury results from a physical confrontation involving spouses, former spouses, cohabiting couples, or former cohabiting couples. For charges to be brought under PC 273.5, the injury must be traumatic - an external or internal wound caused by physical force - and willfully, or intentionally, inflicted.

Domestic violence cases are often complicated by the dynamics of the spouses' or partners' relationship. Each person usually has a very different view of what happened, and emotions tend to run high. Moreover, many people are effected by the incident, including children, relatives, friends, and neighbors.

Since PC 273.5 is a "wobbler," it can be charged as either a misdemeanor or a felony, depending on the criminal record of the accused and the circumstances of the incident.

Possible penalties for a misdemeanor conviction include:

• at least three years informal probation
• up to one year in county jail
• up to $6,000 in fines, with the potential for additional fines depending on prior offenses
• payment of up to $5,000 to a battered women's shelter
• reimbursement of the victim's medical expenses
• a restrainer order preventing contact with the victim for up to 10 years
• counseling
• community service

Possible penalties for a felony conviction include:

• the restraining order, community service, and counseling options listed above
• up to five years in state prison, with the possibility of additional time if the victim suffered great bodily injury
• formal probation
• a possible strike under California's Three Strikes Law

Bear in mind that the district attorney's office decides whether to file criminal charges. Sometimes in domestic violence cases, the alleged victim files a complaint and then later tells the DA that he/she wants to "withdraw the charges." Once prosecutors have become involved, however, the discretion to file charges rests with them.

It's especially important in domestic violence cases to have a defense lawyer who will ask the right questions and gather all the relevant evidence to be able to put together a clear picture of what happened. Only then will a credible, effective defense be possible. Call the Law Office of Nancy King if you have questions about domestic violence, or any other topic covered in our blog.

The police departments of Davis, Woodland, and West Sacramento - in cooperation with CHP - will have increased DUI patrols on May 5th. Advertisement of these patrols is meant to discourage people from driving after drinking at Cinco de Mayo celebrations, as well as provide the resources to identify and arrest those people who do drink and drive.

No specific checkpoint locations have been identified. Rather, officers will be in patrol cars roving throughout their communities.

As always, we provide this information as a reminder of the dangers of DUI and an encouragement to plan ahead to keep yourself and others safe. If you're going to take part in Cinco de Mayo celebrations, we encourage you to identify your designated driver in advance and have the phone numbers of cab companies programmed into your mobile device. Also, be sure to look after your friends and family and ensure that they don't get behind the wheel after drinking.