Sacramento Criminal Defense Lawyer Blog

California's 'hit and run' laws are very specific in their requirement that a person whose vehicle is involved in any sort of accident or collision must stop and identify himself and, if necessary, give aid to injured people. Failure to do so can result in serious criminal charges. It makes no difference if you are not at fault; you must stop.

Today's post focuses on Vehicle Code 20002, which pertains to damage of property, and Vehicle Codes 20001, 20003, and 20004, which pertain to incidents that result in death or injury.

If your vehicle causes damage to any property - including but not limited to other vehicles, road signs, dwellings, fences, and gas pumps - Vehicle Code 20002 requires you to stop and identify yourself to the property owners and law enforcement personnel. Even if you were obeying all traffic laws and were not at fault, you must stop. Specifically, VC 20002 requires you to:

• Identify yourself to the owner of the damaged property and provide your driver's license and vehicle registration information;
• Leave a note with your contact information if the owner of the property can't be located;
• Report the incident to the police or other local law enforcement agency.

In addition to charges that might be filed because of the incident - such as DUI or reckless driving - failure to comply with the requirements of VC 20002 can be charged as a misdemeanor and comes with the possibility of up to six months in county jail and $1000 in fines.

If your vehicle is involved in an incident that results in injury or death to another person, Vehicle Codes 20001, 20003, and 20004 require you to stop, identify yourself, and provide assistance to any injured parties. A violation of these codes can be charged as either a misdemeanor or a felony. A misdemeanor conviction can be punished by up to a year in county jail, while a felony conviction can be punished by a sentence to state prison. Potential fines range from $1,000 to $10,000.

If you have questions about hit and run laws in California, contact the Law Office of Nancy King at (916) 442-1200.

The arrest in May of Sacramento Kings star Tyreke Evans for driving 130 miles an hour on Interstate 80 threw a spotlight on speeding and reckless driving on Sacramento's freeways - and the penalties that come with a conviction. The Sacramento Bee's Tony Bizjak published an article on Monday detailing the surprising number of people cited for excessive speed (Vehicle Code 22348) and reckless driving (Vehicle Code 23103). It turns out that over 80 people were issued citations by CHP for driving in excess of 100 MPH in May and June on freeways in Sacramento and Stockton.

Speeding and reckless driving convictions come with costly penalties. VC 22348 says that a first conviction for excessive speed (over 100 miles per hour) results in a $500 fine and loss of driving privileges for 30 days, with the amount fines and length of license suspension increasing with each conviction. A reckless driving conviction under VC 23103 can be punished by up to 90 days in county jail and/or fines up to $1000.

If you've been cited for excessive speed or reckless driving, contact the Law Office of Nancy King at (916) 442-1200 for a free consultation.

Triple Digit Speeders Surprising in Number, CHP Figures Show, Sacramento Bee, August 9, 2010

The Department of Motor Vehicles has issued a memo that states that all people convicted of DUI in Sacramento County - regardless of their county of residence - will be required to install Ignition Interlock Devices on their vehicles as part of a test program created under Vehicle Code 23700. Sacramento County is one of four counties in California - including Los Angeles, Alameda, and Tulare - that were required by the passage last year of AB 91 to establish these DUI test programs for evaluation through 2016.

The memo (Occupational Licensing Industry News - OLIN 2010-08) specifically declares:

Individuals convicted of driving under the influence (DUI) under Vehicle Code (VC) §§23152, 23153, or Penal Code (PC) §191.5(b) in one of the four pilot counties must install a certified IID on any vehicle that he/she owns or operates, before a driver license can be issued, reissued, or the driving privilege reinstated. The IID requirement is determined if the conviction occurs in one of the four pilot counties; not the driver's county of residence.

If you have questions about this new law, or other California DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Occupational Licensing Industry News - OLIN 2010-08

Effective July 1, 2010, Vehicle Code Section 13352 was amended to incorporate the provisions of SB 598 and SB 895, laws enacted by the legislature and governor providing for shorter license suspension periods for 2nd and 3rd DUIs in exchange for installation of Ignition Interlock Devices. It is important to remember that this is a statewide law and is distinct from the Ignition Interlock Device test program that is being run in Sacramento, Los Angeles, Tulare, and Alameda counties. Click here for details on that program, detailed in VC 23700.

VC 13352(a)(3) states that drivers convicted of a second DUI within a ten year period may get a restricted license after 90 days if they install Ignition Interlock Devices (IID) on their vehicles. (A restricted license allows driving to and from work and in the course of employment, and to and from DUI related education classes.) If IIDs are not installed, the term of license suspension is two years.

VC 13352(a)(5) states that drivers convicted of a third DUI within a ten year period may get a restricted license after six months if they install IIDs on their vehicles. If IIDs are not installed, the term of suspension is three years.

Driving under the influence offenses that involve reckless driving, drugs, injuries, or factors can result in enhanced penalties.

The following requirements must be met to qualify for a restricted license under VC 13352:

• Proof of enrollment in, and continuing satisfactory participation in, an 18 month or 30 month DUI education program;
• Proof of installation of an Ignition Interlock Device;
• Proof of insurance;
• Payment of all related fees and of all administrative costs associated with the new law's provisions.

As mentioned in previous blog posts, we are still waiting for a statement from DMV about to whom precisely the law will apply. We will post that information as soon as it becomes available.

If you have questions about this new Ignition Interlock Device law, contact the Law Office of Nancy King at (916) 442-1200.

Proposition 36, passed by California voters in 2000, provides some people accused of non-violent possession or use of illegal drugs the opportunity to undergo drug treatment rather than be sentenced to jail or prison. Codified in Penal Code 1210.1, Proposition 36 is similar to Deferred Entry of Judgment - described in the July 9 post - though it differs in several ways. Like Deferred Entry of Judgment, PC 1210.1 is intended only for people accused of drug use or possession. It is not an option for those accused of drug manufacture, sale, or trafficking.

The program works like this. The defendant agrees to plead guilty to the drug possession or use charge, and a conviction is placed on his/her criminal record. Instead of being sentenced to jail or prison, however, the defendant is placed on probation with the stipulation that he/she completes a drug treatment program. Additional requirements - such as counseling or community service - may also be imposed.

If all of the terms of probation are fulfilled, the judge orders the conviction replaced with a dismissal. Significantly, PC 1210.1(e)(1) holds that "both the arrest and the conviction shall be deemed never to have occurred." This means that the defendant does not have to disclose the incident to questions that might arise in the course of an application for employment. (An exception to this is when applying for a position as a peace officer.)

Because the guidelines for PC 1210.1 are complicated, it's important to speak with an experienced defense attorney to see if you qualify. For example, those who do not qualify include people who used a deadly weapon while under the influence of drugs, refused to undergo drug treatment as a requirement of probation, or have undergone treatment twice before under PC 1210.1. Moreover, the program is not an option for many people convicted of serious felonies, though it might be available for them if during the previous five years they have not been imprisoned and have not been convicted of a felony other than a non-violent drug possession.

If you have questions about drug treatment under PC 1210.1 - Proposition 36 - contact the Law Office of Nancy King at (916) 442-1200.

Deferred Entry of Judgment under PC 1000 - commonly referred to as Diversion - gives people accused of drug possession or use the opportunity to undergo drug treatment rather than be sentenced to jail or prison, as well as the possibility of keeping a conviction off of their records. The program is designed as an option for those arrested for drug use or possession; it is not available for people accused of selling, manufacturing, or trafficking drugs.

To qualify for Deferred Entry of Judgment (DEJ) / Diversion, the defendant must meet several requirements, including:

• No prior convictions for drug possession;
• No element of violence in the current offense;
• No outstanding probation or parole violations;
• No participation in a diversion or deferred entry of judgment program in the previous five years;
• No prior felony convictions in the previous five years.

Under DEJ, the defendant agrees to plead guilty to the drug possession or use charges in exchange for the deferred entry of judgment from the court. What this means is that the judge agrees to wait 18 months to 3 years before entering the final judgment for the case. During that time, the defendant completes a drug treatment program and maintains a clean criminal record. If these conditions are met, the judge "sets aside" the original guilty plea. This means that no conviction is recorded on the defendant's record.

Successfully meeting the terms of the program even means that the arrest for drug possession or use is considered to have never happened. This can obviously be beneficial in instances when a person is questioned about his/her criminal history, such as when applying for employment. (An exception to this is when a person applies for a position as a peace officer.)

Deferred Entry of Judgment / Diversion is a good option for many people arrested for drug use or possession. If you have questions about Deferred Entry of Judgment programs, contact the Law Office of Nancy King at (916) 442-1200.

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 more information on these new rules regarding DUI.

Click here for the text of SB 895.

Contact the Law Office of Nancy King if you have questions about this topic or others covered in our blog.

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.

If you have questions about laws related to marijuana, call the Law Office of Nancy King at (916) 442-1200.

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.]

If you have questions about this topic, or others covered in our blog, contact the Law Office of Nancy King at (916) 442-1200.

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.

If you have questions about DUI laws in California, call the Law Office of Nancy King at (916) 442-1200 for a free and confidential consultation.

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.

If you have any questions about the new law or other DUI codes, call the Law Office of Nancy King at (916) 442-1200.

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.

Contact the Law Office of Nancy King if you have questions about assault, battery, or other topics discussed in our blog.

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. Contact the Law Office of Nancy King if you have questions about theft and robbery, or any other topics covered in our blog.

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.