California Traffic Ticket Appeals

May 15th, 2013 Posted in Criminal Defense, Traffic
May, 15 2013
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California Traffic Ticket Appeals

California Traffic ticket appeals: Traffic tickets are subject to the same rules and procedures as most misdemeanor charges. This includes the right to an appeal if there was a legal issue in the case. However, it is important to note that you can appeal only if there was a legal error. It is a misconception that a defendant should appeal a case simply because they did not like the result at trial. There are other defendants who ask for an appeal simply because they thought that the Commissioner took the cops word over theirs. Both of these reasons for asking for an appeal are incorrect. These are not reasons to file an appeal of your traffic citation. While this right (to appeal) is given to every single person in traffic court, your case will not be overturned unless you can show a legal error.

Filing a traffic ticket appeal is an uphill battle and you must first analyze the law and the probability for success. If you do not analyze the law first, you could be throwing money, time, and energy away. Further, a traffic ticket attorney is expensive for appeals. You should question whether or not you want to hire an attorney and if the time and energy is even worth it for you personally.

The main reason why someone would appeal a traffic case is because there was an legal error made by the Court in deciding the case. Another reason is that the Court may have abused it’s discretion. An example of a legal error may be, to admit into evidence a traffic engineering survey which does not meet the elements of the hearsay exception. An example of an abuse of discretion of the Court, is to allow the Officer to re-open the case after you have made your closing argument/ after the people rested their case.

California Traffic Ticket Appeals

California Traffic Ticket Appeals

Filing a Traffic Ticket Appeal is a long process… Here are the steps of a Traffic Case Appeal:

1. File your Notice of Appeal (NOA) within 30 days of the finding of guilt. This is important that you file within 30 days- you cannot default on this, it is jurisdictional and there are very few reasons that the Court will allow relief if you miss this critical date.

2. You must file the Statement on Appeal within 20 days of filing the NOA. You must serve a copy on the District Attorney, depending on your jurisdiction. Here you must also designate your record.

3. You will be given a court date to appear in order to settle the record. This means you will meet with the Commissioner who heard the case in order to discuss and agree to what the testimony was presented at trial and just as important what objections were made at trial.

4. Once all of the above has been completed, the case will be certified to the Appellate Division of the Superior Court.

5. Next, the Appellate Division clerk will notify you that they have received the record on appeal and that your Appellant’s Opening Brief will be due in 20 days. If you cannot meet this deadline, you may request and extension of time.

6. Once all briefs have been filed, the Court will issue a court date to appear and make an oral argument.

7. Lastly, once argument is completed the Court will notify you of their decision. If you are not satisfied with the decision, you can request a transfer to the Court of Appeals. If you are denied the transfer by both the Court of Appeals and the Appellate Division, you can then file a writ against that decision.

Depending on the local rules and the exact case you are fighting, these steps may change. It is best to speak with an attorney before taking on an appeal.

If you are ready for compassionate legal representation for defending your traffic ticket, contact the folks at Beahm Law to schedule a consultation. Check out Beahmlaw.com for more info.

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Anatomy of a California DUI Arrest

February 5th, 2013 Posted in Criminal Defense, DUI, Real Life, Tactics
Feb, 05 2013
1 Comment »

 

DUI attorney

You have probably had too much to drink if the steering wheel is on the wrong side of the car

“He was unsteady on his feet, his speech was slurred, and his eyes were glassy and blood shot…he admitted to consuming alcohol prior to driving.”

Nearly every California police arrest report I read involving a drunk driving (DUI) arrest contains the above in the narrative. I have fantastic clients, but it would certainly make the suppression hearing a bit easier if my clients stopped telling officers, “Yes, but I only had two drinks!” That’s sure to lead to a DUI arrest in California just about every time.

But the suppression hearing…well, the suppression hearing is a rant for another day. I did have a point I was getting to here: we’re all doing our best out there, but it pays to be informed. Knowledge is power; cliche but true.

Check out the infographic below (compiled by Macgregor & Collins, LLP) for all detailed information on the statistics behind California drunk driving (DUI) arrests. (Click to resize).

DUI arrest lawyer

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Beahm Law — One Thousand Views Later

February 1st, 2013 Posted in Criminal Defense
Feb, 01 2013
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One year and one thousand views later, Beahm Law takes a look back at the video that took the firm to the next level.

Conceptualized by Chris Borhani and Jason Beahm, the video offers a look into the man behind California’s Top DUI and criminal defense firm. Filmed in San Francisco, Beahm explains what sets the firm apart from other California lawyers practicing traffic, drunk driving and criminal defense law.

The video was produced by Chris Borhani of Beahm Law and Positive Features.

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What if Police Visit My Home With An Arrest or Search Warrant?

August 8th, 2012 Posted in Criminal Defense, Real Life, Tactics
Aug, 08 2012
1 Comment »

Your home, whether that means apartment, house or other dwelling, is allowed some special protections under the law. If the police come to your home, you usually do not have to let them in unless they have an arrest or search warrant. If they claim to have an arrest or search warrant, it is perfectly reasonable to ask them to slip it under the door or hold it up to a window. Don’t be alarmed if the police don’t appreciate your request. It’s a perfectly reasonable request, and rest assured, if the police had actual evidence that the situation was truly urgent, they would have already kicked the door down.

Even with a arrest or search warrant, police officers may only search for the suspected evidence in the suspected locations notated on the warrant. In addition, the police also have the option of obtaining an arrest warrant, wich allows them to enter the home of the person listed on the warrant if they have a reasonable belief the person listed on the warrant is inside.

So what to do?

First off, regardless of the situation, you always maintain your basic constitutional rights. Absent an arrest or search warrant, you can politely and calmly tell the officers through the door or window that they do not have your permission to enter or search. If you decide to speak to the officers outside, pull the door closed behind you. Tell the officers that you would like to know if you are free to leave, if they say yes, direct any further questions to your attorney and inform the police that you will be remaining silent going forward.

If the police do decide to search your house or arrest you, don’t interfere. Remain silent and call your attorney at the first opportunity.

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I Was Arrested for Driving on a Suspended or Revoked License! What Now?

May 16th, 2012 Posted in Criminal Defense, Real Life, Traffic
May, 16 2012
1 Comment »

The consequences are serious for being found guilty of driving on a suspended or revoked driver’s license in California. You could be arrested and detained, your can be immediately impounded and you face fines over $1000 and potential future incarceration.

However, the reasons you were driving on an alleged suspended or revoked license will be taken into consideration by the court. If your driver’s license was suspended due to failure to show up for a court date, or because you didn’t pay a court fine, it is not deemed as serious as if you were driving on a revoked license due to a prior DUI offense, negligent driving or were found in contempt of the law.

Driving on a suspended or revoked license is a serious situation and legal representation is a necessity. Fortunately, there are a few allowable exceptions in California that constitute a defense to driving on a revoked or suspended license.

One is lack of awareness. If you can prove that you did not know that your license was suspended then you have a legitimate reason. Perhaps the notice was sent to an old address, or the state can’t prove they sent it at all. Lack of notice is often a very useful defense in license suspension cases.

Another defense is that you were not driving. Just to be sitting in the driver’s seat of a car that is not moving, is not proof. Also, the license suspension must be active. Even though it is the motorist’s responsibility to go to the Department of Motor Vehicles, with proof of insurance, to restore driving privileges once a license suspension is over, a fine is paid, or the court order is satisfied, it still may be a legal defense.

It is up to the state of California to prove three things before they can convict you of driving on a suspended or revoked license:

1. That you indeed were driving, and

2. That it was a legitimate suspension or revocation, and

3. That you KNEW about the suspension or revocation.

If the prosecution cannot prove one of the above, the case is won by the defense. In addition, we often make use of  additional creative strategies. In the end, most cases are resolved through negotiation with the prosecution for a deal that avoids jail time and minimizes penalties.

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What are the Ecstasy/MDMA Laws in California?

May 11th, 2012 Posted in Criminal Defense, Real Life, Tactics
May, 11 2012
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There is a big difference in California between the punishment for selling MDMA vs. possessing or using it. Suppose you’re caught with a little Molly on your way to the club. You’re likely to be charged only for personal use, which means you’re facing a maximum of 1 year in the county jail, though you are likely going to get drug diversion.

However, punishment for possession of MDMA with intent to sell has a punishment that includes a state prison term of 16 months, or two years, or three years. For intent to sell, drug diversion is not an option.

But there is good news: MDMA cases are actually rather complicated for the prosecution to prove. That is because Ecstasy is not explicitly an illegal “scheduled substance” in California. Prosecutors charge MDMA cases as a  ”controlled substance analog.” If the prosecutor can establish the ”controlled substance analog,” then they can proceed as if the MDMA is a Schedule I controlled substance under California law. But if they can’t, they don’t have a case against you.

If you are arrested for possessing Ecstasy, the situation is far from hopeless. Besides the typical legal protections, some creative defense strategies are available. For example, in the case of People v. Richie Quang Le an appellate attorney successfully argued that there was no evidence that Ecstasy, or MDMA, is a controlled substance, a controlled substance analog, or that it contained amphetamine or methamphetamine. Due to the lack of evidence that MDMA is a controlled substance, the appellate court ordered that the original conviction be reversed.

If that doesn’t work, there’s always the old standby “those drugs aren’t mine!“

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California DUIs by the Numbers

May 9th, 2012 Posted in Criminal Defense, DUI, Real Life
May, 09 2012
1 Comment »

All 50 US States have laws setting the blood alcohol level for a DUI at 0.08% BAC.

There are actually three different legal limits for blood alcohol level:

  • 0.08% (Driver over 21 without prior DUI arrest)
  • 0.04% (Commercial Driver)
  • 0.01% (Drivers under 21 years of age and drivers on probation for DUI)

There are over 200,000 DUI arrests in California annually.

97% of DUIs in California are charged as misdemeanors, while 3% of DUIs in California are charged as felonies.

Males comprise approximately 80% of all California DUI arrests. However, the proportion of females convicted of DUI in California has risen consistently every year since 1989.

The average age of a California DUI offender is 30 years old.

The highest percentage of drivers that test positive for blood alcohol levels of .08 or higher is drivers aged 21 to 24 (35%).

The average BAC level of a convicted California DUI offender is approximately 0.16%.

The fine alone for a first time California DUI conviction is $1,500 to $2,000. The fines for a second California DUI conviction can cost as much as $2,800.

Source: California Department of Alcohol and Drug Programs

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How Do I Get a Non-Point Violation After a Ticket?

May 3rd, 2012 Posted in Criminal Defense, DUI, Real Life, Traffic
May, 03 2012
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traffic ticket attorney

"Any chance you can let me off with a warning?"

If you get pulled over by a police officer and he writes you a ticket under the California Vehicle Code for a moving violation, you are at risk of having  one or more points on your driving record. If your get four points in one year, six points in two years, or 8 points in three years, you will likely have your license suspended for being a negligent operator.

Even worse, insurance companies just love it when you get tickets. It’s a great reason to increase your premiums. And the riskier you become to them as a driver, the higher your insurance rates will go.

Here are a few examples of tickets that a California driver might receive, and how many points they would face:

VC 22349, 22349.5

Speeding

One point

VC 21367, 21367a, 21367b, 21367c

Disobedience to traffic signs

One point

VC 21950, 21950a, 21951, 21952

Yielding right-of-way to pedestrian

One point

VC 14601,14601a,14601 b, 14601.1- 14601.4

Driving while suspended/revoked

 Two points

VC 22348b

Speed over 100 MPH

 Two points

VC 23103, 23103a,23103 b

Reckless driving

 Two points

VC 23152, 23152a-d

DUI/alcoholic beverage or drugs

 Two points

By contrast, a non-point violation doesn’t result in a point on your driving record. (Duh.) A skilled California traffic attorney can often work with the prosecutor and/or police officer to get the ticket amended to a non-moving, non-point infraction. This is an excellent outcome, because pleading to a non-point violation will help keep your insurance rates low, and keep you on the road. Reducing point violation tickets to non-point violations can also save you time and money as it means that you can skip traffic school and move forward with your life.

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Why Should I Remain Silent and Refuse to Talk to the Police?

May 2nd, 2012 Posted in Criminal Defense, Real Life, Tactics
May, 02 2012
1 Comment »
right to counsel

This is no time for blabbing

If the police want to question you, they are not your friends. There are certainly times when the presence of police can be invaluable, such as when someone tries to harm you or a loved one. However, when the police want to ask you questions, they are adversaries.

Instinctively, many people try to please authority figures when under stress. They believe that if they seem cooperative, the police may “take it easy on them,” or “cut them a break.” This is extremely unlikely. Instead, they are likely to later use your words to bury you. They want to talk to you because they are looking to gain the information necessary to arrest you.

The police and investigators are very good at getting suspects to make damaging statements, or even confess. Evidence is great, but nothing beats a confession. If police smell weakness, they may come across as more friendly–or alternatively, they may turn up the heat and become more aggressive. These guys are professionals, and given enough time, they will get you to say something that you will regret–something that will make your future lawyer smack her forehead.

Of course it’s easy now to say that you will remain silent. Doing it in the real world is quite a bit more difficult. You may be facing an angry, aggressive, threatening officer–armed with a gun. It is important to be prepared for this reality ahead of time, and to make sure that you don’t give in under the pressure. Remember: you wish to remain silent, and you want an attorney. Say that and say no more.

Clients sometimes ask me it will make them look guilty if they refuse to answer questions, or assert their right to an attorney. The answer is no. While it is a crime to lie to the police, you have a right under the US Constitution to remain silent. You can’t even be criticized for making the decision not to talk. In fact, if the case goes to trial, the jury won’t even hear about your choice to remain silent. Police cannot testify you that you refused sobriety tests, refused to answer their questions, or asserted your right to counsel.

You’ve been given these rights for your own protection. These rights belong to you. Protect yourself, stay strong and don’t give them away.

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The Police Want to Question Me–What Should I Say?

May 1st, 2012 Posted in Criminal Defense, Real Life, Tactics
May, 01 2012
2 Comments »

"We just want to ask you a few questions..."

Let’s be clear about something. When a police officer, detective or other investigator wants to ask you questions, they are not your friend. They are not there to merely gather the facts. You are a suspect. The point of the police interview is to acquire evidence against you, which may be used in your eventual prosecution.

You don’t have to participate in a police interview. And certainly not alone. In almost all situations, you should not speak with the police. You are under no obligation to speak with them.

Never consent to a police interview or other investigation without first consulting with an attorney. In a police interview, there is no requirement that they tell the truth, and the even the innocent can be led into misstatements through aggressive interrogation tactics. Investigators are trained to break you down and get you to say something you will regret.

The founders of our country knew that speaking to the police without an attorney was such a risk, they specifically included the right to remain silent and the right to counsel in the Fifth and Sixth Amendments to the US Constitution.

Why do you suppose the founders of the country found it necessary to include these specific protections? Because they knew that it simply is not a fair fight for a suspect to answer questions without someone well versed in the law at their side. Once you’ve hired an attorney, he will likely tell investigators that you are more than happy to cooperate with their investigation, but that your cooperation will not include submitting to their questioning.

 

 

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