Sacramento Criminal Defense Lawyer Blog

The Department of Motor Vehicles has posted on its website a memo that outlines how it will handle the Ignition Interlock Device test programs that will take effect on July 1 in Sacramento, Tulare, Alameda, and Los Angeles counties. [Click here to read a summary of the new law's provisions.]

The memo states that "The new law - passed by the Legislature and signed by Governor Schwarzenegger in 2009 -- prohibits an offender from being issued or reissued a driver license by DMV following a suspension or revocation for any DUI violation in a pilot county that occurs on or after July 1, 2010, until an offender provides proof of IID installation and pays a $45 administrative service fee, in addition to meeting all other reinstatement requirements."

Note that DMV is taking the position that the test program applies only to violations that take place on or after the law takes effect on July 1.

We will monitor this issue and let you know if this changes. Also, we will watch for DMV's policy regarding the other ignition interlock device (IID) law that takes effect throughout the state on July 1 as well. That new law provides repeat DMV offenders the option to get a restricted license sooner than has been allowed under existing law if IIDs are installed on all vehicles driven by the convicted person.

"Ignition Interlock Law Takes Effect July 1 - Five-year pilot would study effectiveness in selected counties," Department of Motor Vehicles

SB 895 - legislation intended to clarify the law pertaining to obtaining a restricted license after conviction of a DUI - was signed by Governor Schwarzenegger on Tuesday. As of July 1, people convicted of a 2nd DUI within a 10 year period will be eligible for a restricted license after 90 days, and people convicted of a 3rd DUI within a 10 year period will be eligible after 6 months. These requirements must be met:

• Proof of enrollment in a driving-under-the-influence education program;
• Installation of ignition interlock devices on vehicles used by the convicted person, who is responsible for all installation costs;
• Proof of insurance;
• Payment of all pertinent fines and fees;
• Payment of administrative costs to the DMV for oversight of the installation.

Click here for the text of SB 895.

The California Health & Safety Code lays out the penalties for use, possession, and sale of marijuana. Depending on the nature of the violation, charges can be filed as either misdemeanor or felony, and penalties can include fines and time in county jail or state prison.

Having a qualified criminal defense lawyer is crucial when facing drug charges. Simple possession charges can often be increased to possession for sale, and the presence of drug paraphernalia can result in additional charges. On the other hand, people facing simple possession charges for marijuana may have the option of having their cases go through drug court, which can result in a dismissal of charges. (See the explanation below for more details.) Contact an experienced defense lawyer for review of the details of your case.

These Health & Safety Code sections pertain to marijuana.

H&S 11357

Simple possession of marijuana is considered a misdemeanor. Possession of an ounce (28.5 grams) or less comes with a maximum fine of $100 and no jail time. Possession of more than an ounce has a maximum fine of $500 and up to six months in county jail, though a jail sentence is rarely given out.

As mentioned above, people facing charges under H&S 11357 may have the option of drug court, which allows entry of a plea of guilty in exchange for a "deferred entry of judgment" from the court. Once proof is provided of completion of a drug treatment program, the charges are dismissed by the court. To qualify for drug court, defendants must have a clean criminal record for the preceding five years, and the current charges must not involve any sort of violence.

H&S 11358

Cultivating and processing marijuana is considered a felony punishable by time in state prison.

H&S 11359

Possession of marijuana with the intent to sell is a felony punishable by time in state prison.

H&S 11360

Transportation and importation of marijuana is a felony punishable by state prison terms of two, three, or four years.

H&S 11364

Possession of drug related paraphernalia - such as bongs and roach clips for pot - is illegal.

Last year the California legislature and Governor Schwarzenegger passed a law (SB 598) that would give people convicted of 2nd and 3rd DUIs the option to obtain a restricted driving license sooner than under existing law if they agreed to install ignition interlock devices (IIDs) on their vehicles. (Ignition interlock devices require the driver to blow into a device that tests for alcohol on the breath. If any alcohol is present, the vehicle will not start.) Because of ambiguity in the law's text, however, "clean up" legislation has been introduced to clarify the law's intent.

The confusion stems from the fact that in California people convicted of DUI face two separate processes that can result in suspension of driving privileges. The first takes place in the courts, which upon conviction of Vehicle Code 23152 (a) or (b) can suspend a driver's license. The second takes place through the Department of Motor Vehicles, which through an Administrative Per Se hearing can also suspend a driver's license for driving with a blood alcohol content of 0.08% or higher.

The language of SB 598 focuses on court proceedings and omits mention of the DMV process. SB 895 has therefore been introduced to fix this oversight. Passage of the legislation appears imminent.

What this means is that people convicted of a second DUI within a 10 year period will have the option of getting a restricted license 90 days into their license suspension period if they agree to install ignition interlock devices on their vehicles. People convicted of a third DUI with a 10 year period will have the option of getting a restricted license 6 months into their license suspension period if they install IIDs. A restricted license allows driving related to employment and to and from alcohol education classes.

Our understanding at this time is that the new law will apply only to arrests made on or after July 1, 2010. [Note: This issue remains unsettled as of 6/15/10. We will update the blog as information becomes available.]

The United States Supreme court last week issued a ruling that requires suspects to clearly state that they are invoking their right to remain silent during interrogation by police. If a suspect does not articulate his/her desire to invoke the Fifth Amendment right to remain silent, police may continue with the interrogation.

The Court's decision in Berghuis v. Thompkins concerns Van Chester Thompkins, who was arrested for suspicion of committing a murder and then brought to the local police station. After being read his Miranda rights, he was asked to sign a statement that indicated his understanding of those rights. He refused to sign the form.

Over the next three hours he was questioned by police. He remained mostly silent, except for a few comments not related to questions about the crime. According to the police, he finally said "Yes" in response to two questions asking if he believed in God and if he had asked God for forgiveness for committing the crime. These responses were used in the subsequent trial, which resulted in conviction for murder.

The Court's decision, authored by Justice Anthony Kennedy, means that police do not have to interpret the silence of a suspect as invocation of the right to remain silent. The Court was far from unanimous in its ruling, however. The minority opinion, authored by Justice Sonia Sotomayor, viewed the majority's ruling as a substantial shift away from the protections against self-incrimination that Miranda had preserved for over 40 years.