1 THE KAVINOKY California s Most Comprehensive Criminal Defense Resource DUI EDITION Report WHAT S INSIDE? 04 What to do Immediately After Your Arrest 05 You Have the Right to Remain Silent 08 Meet Darren Kavinoky, Nationally Renowned Criminal Defense Attorney This is a legal advertisement
2 Darren Kavinoky is not like any other criminal defense attorney. Darren and the attorneys of The Kavinoky Law Firm apply extraordinary personal devotion and professional skill to every client they represent. We ve successfully defended countless cases, Darren says, but the case we re working on at any given moment is the one that matters most. Darren Kavinoky has provided legal commentary for many national television programs. California Practice, Nationwide Recognition Darren s reputation and expertise are renowned throughout California and the nation. He was recently named a Super Lawyer by Los Angeles Magazine and one of the Top 100 California Trial Lawyers by the American Trial Lawyers Association. He is the legal analyst for the syndicated TV show The Insider, and is a sought-after guest on many shows, including Entertainment Tonight, Dr. Phil, numerous programs on CNN s Headline News Channel, and many others. It s very gratifying to be able to share my experiences with others, he says. Dedication It s not just the work they do for their clients, it s how they do it. Our clients can reach us 24 hours a day, seven days a week. I don t want people sitting around worrying when they could get answers right away. This is yet another example of The Kavinoky Law Firm s exceptional service. Humanity Darren has an extensive track record of helping those in need of creative alternative sentences. Many criminal cases stem from underlying issues, such as alcohol or drug problems, that can be addressed with treatment. The attorneys of The Kavinoky Law Firm empower these clients to seek treatment, and they do their best to ensure that this is recognized by the courts in lieu of custody. Memberships and associations Darren Kavinoky is an active member of many professional associations dedicated to criminal defense, including a life membership in the National Association of Criminal Defense Lawyers. The Kavinoky Law Firm works hard to keep the scales of justice balanced... in your favor. Offices throughout California NO.CUFFS [ ]
3 Dear Readers, DUI EDITION Unfortunately, a DUI arrest can happen to anyone who has a drink or two and then gets behind the wheel. Individuals from every walk of life find themselves facing DUI charges every day, and the only way to avoid a conviction is to stand up and fight for your rights. This issue of The Kavinoky Report is designed to give you the ammunition you need to fight your drunk driving charge. If you re like many people arrested on suspicion of DUI, you may have no idea how to navigate your court case, particularly if this is your first encounter with the criminal justice system. This issue of The Kavinoky Report will give you a much greater understanding of what to expect as your case progresses. Your California DUI arrest triggers two separate cases - one in criminal court, and the other at the Department of Motor Vehicles. Both cases require your immediate attention. What To Do First will spell out the actions you need to take to protect yourself both in criminal court and at the DMV. CONTENTS First Aid: What To Do Immediately You Have the Right to Remain Silent Why Fight My Case? Many drivers arrested for DUI are unaware that they face a separate administrative case at the DMV that threatens their driver s licenses. Of course, in California, keeping your driver s license is critically important. Because of this, the article Winning Your DMV Hearing is a must-read as you prepare to fight for your driver s license. This month s issue of The Kavinoky Report also features an interview with one of California s most experienced and successful DUI lawyers, Darren Kavinoky. Darren has dedicated his career to fighting for the rights of accused DUI drivers, and along the way has earned the respect and admiration of clients, attorneys, judges, and police. In the interview, Darren shares his unique outlook on DUI defense. It s a great read that you won t want to miss. DUI enforcement is driven by a tremendous amount of political and economic pressure, but that doesn t mean you can t successfully fight your drunk driving charge. Many drivers plead guilty to DUI charges so that the embarrassing episode will simply go away, but the truth is that a drunk driving conviction will cost you many thousands of dollars and leave you with a criminal record. Your only chance of avoiding the severe penalties of a California DUI charge is to stand up and fight. All of us are considered innocent unless proven guilty, but few individuals exercise that right. Not everyone has the courage to fight a DUI charge, but those who do are truly the champions of justice. Good luck in your fight. The KAVINOKY Report Winning Your DMV Hearing DMV Hearing Consequences Blood and Breath Tests Meet Attorney Darren Kavinoky California Criminal Court Process California Plea Bargains: How to Avoid Trial. 11 California Sentencing Alternatives How a Substance Abuse Expert Can Help. 12 Driving Under the Influence of Drugs Ben F. Espanto Editor-in-Chief
4 First Aid: What To Do Immediately After Your DUI Arrest If you re like most drivers arrested on suspicion of DUI, you may not know where to turn after your drunk driving arrest. Many individuals arrested for DUI have never been in trouble with the law before, so navigating our complex criminal justice system may seem daunting. There are two things you should do immediately after your drunk driving arrest - request a DMV hearing, and hire a qualified California DUI lawyer. Requesting a DMV hearing within the 10day deadline will ensure that you have a chance to defend your driver s license. Hiring the right DUI defense lawyer will give you your best opportunity to launch an aggressive fight to your drunk driving charge. Memberships in professional organizations: Active membership in professional organizations dedicated to DUI defense is an excellent indication that your prospective attorney has the knowledge needed to aggressively fight your drunk driving case. Specialized training: Ask your prospective DUI lawyer if he or she has received advanced training in blood and breath testing protocols and field sobriety testing. Your potential DUI attorney may even own the type of breath testing machine used in your jurisdiction. Track record of success: Your prospective DUI attorney should be able to tell you about cases that were resolved successfully for clients. Keep in mind that a favorable resolution means different things to different clients. Teaching seminars to other attorneys: Ask your prospective DUI lawyer if he or she has been invited to teach his or her skills to peers at seminars and workshops. This is an excellent indication that the DUI attorney you re considering is respected by his or her peers. Communication and response time: You ll realize how important this is the first time you have a pressing question about your case. How long will it take your prospective DUI attorney to return your phone call or answer your ? How often will your defense lawyer update you about the status of your case? Is your new attorney willing to give you his or her cell phone number, or will you be limited to calling during office hours? These are critical issues that you should ask your prospective attorney about before signing a retainer agreement. Hiring a DUI Defense Lawyer Selecting the lawyer who will fight your DUI charge is one of the most important decisions you ll ever make. The old saying that you get what you pay for is never truer than when it comes to DUI defense. Any general-practice lawyer can underbid the competition and help you plead guilty. However, attorneys who focus on DUI defense spend years gaining the legal and scientific knowledge needed to effectively handle a drunk driving case. Think of your DUI case as you might consider a medical problem - if you had a problem with your kidneys, you wouldn t visit an eye doctor or an orthopedic surgeon. Similarly, DUI defense is extremely complex and technical, so you don t want to entrust your case to a general practitioner or an attorney whose focus is in an entirely different area of law. However, if you don t have any experience with the criminal justice system, how will you know if your attorney is the right one for you? While there are never any guarantees in life, these are some indications that a DUI lawyer is qualified to handle your case: Years of experience: Obviously, you don t want to entrust your DUI case to an amateur. The more experience your prospective DUI lawyer has, the more he or she will be prepared to handle your case.
5 If you ve ever watched a TV crime drama, you re probably familiar with the Miranda warning, which begins with the phrase You have the right to remain silent. Anything you say can and will be used against you. Some accused drunk drivers complain that they were never given a Miranda warning when they were arrested for DUI. Unfortunately, failure to administer a Miranda warning won t invalidate your drunk driving case. However, it can result in the exclusion of certain evidence. You Have the Right to Remain Silent: How Miranda Warnings Apply in DUI Cases The Miranda warning is intended to protect your rights when you re being questioned by police, particularly when you re in custody. A custodial interrogation occurs when you re not free to leave or otherwise terminate the encounter. Interrogation is the act of questioning you directly in an effort to gain information that can be used as evidence against you. The big question in Miranda issues is whether you were in custody when the questions were asked. The courts have ruled repeatedly that most questions asked by police during DUI investigations are put forth before the driver is in custody for Miranda purposes, so there is no legal requirement to advise you of your rights at that time. If it is determined that a Miranda violation occurred, it may result in the suppression of statements that you made, but isn t likely to result in your case being dismissed. It s important to recognize that Miranda violations do occur in California DUI cases, and therefore you may have a valid legal challenge if you believe your rights have been violated. Your California DUI attorney will thoroughly analyze your case to determine whether your Miranda rights were violated. Many drivers arrested on suspicion of DUI worry that a conviction is automatic, and that there is no point in fighting their cases. Nothing could be further from the truth. However, unless you stand up and fight your DUI charge, there is a 100 percent chance that you re going to receive the substantial punishment of a drunk driving conviction. Why Fight My Case? If you decide to challenge your DUI charge, you have a fighting chance at avoiding some or all of those consequences. A DUI charge doesn t equal an automatic conviction. People make mistakes, and that holds true for police officers, prosecutors, lab technicians, etc. Remember, in order to convict you, the prosecutor must prove your guilt beyond a reasonable doubt. The burden of proof is on the government to prove your guilt, not on you to prove your innocence. There are many variables in a California DUI case that may be open to challenge. Did the police have probable cause to pull you over? Was the breath testing machine used to determine your blood alcohol content properly calibrated? Even in those cases where a chemical test performed at the police station was.08 percent or greater, that doesn t mean that you were legally under the influence while you were driving. It is not against the law to have a blood alcohol content of.08 percent or greater a few hours after driving - only when behind the wheel. Most drivers are unaware that their BAC can continue to rise after they stop drinking. Most jurors aren t aware of this fact either, and they will never know about it unless you make the decision to fight your DUI charge. There are other reasons to fight your DUI charge. Many drivers who plead guilty to DUI charges without putting up a fight later regret not exploring their defense options. Making the decision to fight your DUI charge, no matter what the outcome, will give you the satisfaction of knowing that you did everything possible to stand up for your rights. The peace of mind you ll achieve is priceless. The Kavinoky Report 5
6 If you re arrested for DUI in California, you must request a DMV hearing within 10 calendar days of your arrest, even if your driver s license was issued in another state. If you don t request a DMV hearing after your drunk driving arrest, your California driving privileges will be suspended on the 31st day after your DUI occurred. The issues at stake at your DMV hearing will depend on whether you took a breath or blood test following your arrest, or refused the test. If you took a chemical test, your DMV hearing will revolve around three issues. The first issue is whether the police had reasonable cause to believe that you were driving under the influence. The second issue is whether you were lawfully arrested. The final issue is whether your blood or breath test was administered correctly, is admissible, and showed a blood alcohol content of.08 percent or greater. Winning Your DMV Hearing The DMV Hearing Process California DMV hearings are unlike court trials in several ways. One of the most unusual aspects of California DMV hearings is that the hearing officer acts as both judge and prosecutor. That s right - the person who is arguing that your driver s license should be suspended is the same person who will decide whether to do so. This system has been challenged for years without results. Stranger still is that the DMV hearing officer isn t a judge or an attorney - it s a DMV employee without any kind of advanced education in the law. Another unusual feature of California DMV hearings is that they typically don t feature live testimony. Unlike criminal court proceedings, where both sides usually present live witnesses, DMV hearings are usually centered on various documents such as your arrest report, and the result of your chemical test if you took one. Your DUI lawyer s role at the DMV hearing will be to challenge the admissibility of all of the evidence against you. The DMV s evidence is hearsay. Hearsay is generally inadmissible, but there is an exception to the hearsay rule that applies in these hearings. However, if your attorney can successfully challenge the evidence, it can t be admitted, and the DMV must set aside its action, which means your license won t be suspended. Fortunately, it s possible to fight against the DMV administrative action and win. Your attorney may be able to successfully challenge the admissibility of the evidence against you, or establish that you did not have a BAC of.08 percent or greater while driving - the only time period that s relevant. Your DUI attorney can also use your DMV hearing as a valuable opportunity to gather information for your criminal court case. Your attorney won t be able to conduct depositions in your criminal case as he or she would in a civil case. Therefore, there is no way for your attorney to compel the arresting officer to answer questions under oath. However, an experienced DUI lawyer can subpoena police officers to your DMV hearing, where they will testify under oath. Any favorable testimony revealed there can be used in your criminal court defense.
7 DMV Hearing Consequences The consequences of losing your DMV hearing are severe. If this is your first DUI arrest within the past 10 years and you lose your hearing, your driver s license will be suspended for four months. However, you can obtain restricted license that allows you to drive to work and alcohol education classes if you meet certain criteria. If you refused to take a chemical test, your driver s license will be suspended for a full year, with no opportunity for a restricted license. If you re arrested for a second DUI offense and lose your DMV hearing, your driver s license will be suspended for one year if you took a blood or breath test, or two years if you refused the test. A third offense will result in a three-year driver s license suspension. Blood and Breath Tests Under California s implied consent law, you re required to submit to a blood or breath test if lawfully arrested for DUI. If you refuse to consent to a chemical test, you face additional punishment at the DMV. If your breath or blood test shows that your BAC was.08 percent or greater, you can be charged with DUI in criminal court and face an administrative action at the DMV that can result in the suspension of your driver s license. Many drivers worry that a chemical test that shows that they were over the limit will result in an automatic conviction, but fortunately, it s possible to successfully challenge a blood or breath test both in court and at the DMV. Think about it - the accuracy of these tests relies on people and machines, and neither one is infallible. Your DUI attorney should thoroughly examine the procedures and results of your chemical test to determine the most promising challenge. Police must follow strict protocol when maintaining equipment and performing breath tests in California DUI investigations. Your DUI attorney should request the calibration and maintenance records for the machine used in your breath test. Your attorney should also carefully analyze the police report and chemical test result to determine whether the officer followed the proper procedures. For example, police are supposed to continuously observe the driver for 15 minutes before beginning a breath test to ensure that the individual didn t burp or do anything else that would affect the integrity of the test. However, not all officers observe this protocol. Believe it or not, these small details may mean the difference between having the evidence admitted or excluded, which may have an enormous impact on the outcome of your DUI case. Blood tests also should follow strict protocol, or the results may be inadmissible. The blood should be drawn into a glass tube containing white powder that is a mixture of anticoagulant and preservative. If the level of anticoagulant is incorrect, your blood sample can clot and produce a falsely elevated reading. Similarly, if the amount of preservative is wrong, your blood sample can ferment, which also can create an elevated reading. It s also possible for the lab to misplace or mislabel your blood sample. Fortunately, an experienced DUI attorney is equipped with the advanced scientific and legal knowledge needed to aggressively challenge the results of any chemical test. A skilled attorney should fight to exclude this evidence, which can result in an acquittal, a reduction in charges, or even the dismissal of your DUI case. The Kavinoky Report 7
8 COVER STORY What got you into DUI defense? At one time, I had a more general criminal defense practice, and while handling DUIs, I was struck by how different drunk driving cases were from any other kind of criminal case. The criminal justice system is more unfair to those accused of DUI than any other kind of case. How so? Most criminal prosecutions are based simply on whether the facts are true or not. In a drug case, either the defendant possessed the drugs or didn t. In a murder case, the defendant either pulled the trigger or didn t. In a theft case, the individual either took the items or didn t. DUI cases are completely different. They are based entirely on a single police officer s opinion. And their opinions are based on totally subjective input, such as field sobriety tests, which shouldn t even be called tests. Under an effective cross-examination, I find that the officer s opinion sometimes isn t even well-founded. Accused drunk drivers are often railroaded, and I got into DUI defense to stop that from happening. Meet Attorney Darren Kavinoky Why are field sobriety tests not really tests? Field sobriety tests are nothing like the tests we took in school, because they re designed to be failed. A true test should take place under standard conditions, with adequate lighting, and most importantly, with objective criteria about who passes and who fails. None of those factors are present when an accused drunk driver takes a field sobriety test. When police give a field sobriety test, sometimes the driver is able to take the test on a flat surface with decent lighting, but more often than not the conditions are terrible a slanted roadway, poor lighting, and with cars whizzing by. Everyone gets nervous under those conditions. Sometimes the driver has been drinking but isn t legally drunk, but the test is so nervewracking that the driver fails. The anxiety level of someone being subjected to a roadside DUI investigation is just off the charts.
9 But what about chemical tests? A blood or breath test that shows that the driver was above the legal limit isn t just an opinion, is it? That s what police and prosecutors want us to believe, but a chemical test that shows the driver had a blood alcohol content of.08 percent or more doesn t mean that he or she is guilty of DUI. The key issue in a driving under the influence prosecution is whether the individual exceeded the legal limit at the time of driving, not a couple of hours later at the police station. The offense is drunk driving. Because the body continues to absorb alcohol long after someone takes that last drink, it s entirely possible that the driver was below the legal limit behind the wheel, but that their alcohol level rose to a higher level before they were tested. There s also the issue of whether the chemical test was accurate in the first place. Blood, breath, and urine tests aren t infallible, and neither are the people who collect and analyze the samples. Mistakes are far more common than most people realize. Really? What kinds of errors occur with chemical testing? Where do I start? Breath test results can be riddled with contamination and error. The roadside screening tests are by far the most unreliable, but the breath-testing machines used at police stations aren t much better. The roadside machines don t have mouth-alcohol detectors, and mouth alcohol is one of the biggest sources of error in breath testing, especially if the driver has recently had a drink. Another big problem with blood tests involves the labs that process them. Although we may think that police forensic labs operate the way the ones on TV do, that s simply not the case. Sometimes there are delays of days or even weeks before a sample gets tested, and a lot of mix-ups can happen during that time. Test tubes can get switched or mislabeled. There have even been documented cases where the sample has a different blood type than the accused driver! That s why experienced defense lawyers should always move to have the blood sample independently analyzed. What should people look for in choosing a good DUI lawyer? The most important thing is to choose an attorney that you feel comfortable with, and trust. Remember, your first impression of that lawyer is also going to be the jury s first impression. If you don t feel a connection with the attorney during your initial consultation, there s a chance that jurors won t make a connection either, and that s an essential element of winning a DUI case. You also want to hire an attorney with experience fighting DUI cases. I can t stress that enough. Drunk driving law is extremely complex, and defending these cases isn t for amateurs. Your DUI attorney should have a demonstrated track record in effectively fighting for the rights of accused drunk drivers, and winning cases. Not every DUI charge can be won, but many of them can, and a successful attorney should have a proven history of doing just that. Stationhouse breath-testing machines have their own problems. They don t usually measure the temperature of the driver s breath, even though elevated temperature can cause a higher reading. But the worst part is that all of these machines are calibrated to test an average person. We all know that there s no such thing! People come in all different sizes, and there are countless other differences that mean we all have a unique way of metabolizing alcohol. What about the blood test? Is that accurate? Well, that depends. Sometimes there are big problems with the blood sample itself. The technician is supposed to draw the blood into a tube with a mixture of powdered preservative and anti-coagulant in the bottom. Sometimes the powder isn t there in the proper amounts. Sometimes it doesn t get mixed properly. If the blood sample clots or ferments, the alcohol reading is often artificially high. If you have questions about a DUI charge, or to obtain a free consultation, contact [Darren Kavinoky toll-free at 800-NO-CUFFS.] The Kavinoky Report 9
10 The California Criminal Court Process The criminal court process in a California DUI case depends on whether the offense is charged as a felony or a misdemeanor. DUI offenses are typically charged as felonies if you re involved in an accident that results in injury or death, or if you re arrested for your fourth drunk driving offense in 10 years. The 10-year period is calculated from arrest date to arrest date. Misdemeanors and felonies are distinguished by the potential punishment. Misdemeanors carry up to a year in county jail. Felonies are punishable by a year or more in state prison, and can even result in life in prison. The court procedures for each type of offense are outlined below. Misdemeanor DUI Cases In California, your attorney can appear in court on your behalf in a misdemeanor DUI case while you go to work or otherwise go about your business. This luxury is not available in a felony case. The first court appearance is called the arraignment. This is when you (or your attorney) will be formally advised of the charges against you, and given police reports that justify the charges. While it s possible to plead guilty at your arraignment and settle your case, it s generally not a good idea to do so. If you plead guilty at your arraignment, you ll be accepting responsibility for the DUI offense as charged. As your attorney investigates your case and makes motions on your behalf, it can improve your prospects at trial or result in a favorable plea bargain down the line. After your arraignment, there are typically a series of pretrial conferences and hearings. These hearings present an opportunity to conduct additional investigation by way of informal discovery requests or formal discovery motions. Motions are simply requests to the court to order certain actions. In these requests and motions, your defense lawyer should ask the prosecutor to turn over additional items of evidence that are not in the initial arrest reports. Other motions that can be heard at this point include motions to suppress evidence (alleging, for example, that your traffic stop was illegal, and therefore the evidence collected must be suppressed as the fruit of a poisonous tree ), or a Pitchess motion, which is a request to the court to order the release of information from the arresting officer s personnel file. After the various pretrial motions are submitted and weighed by the judge, there will be one of three outcomes: the charges against you will be dismissed; your case will be settled; or it will be set for trial. A trial in a DUI case is just like any other criminal case. It includes jury selection, opening statements, examination and cross-examination of all witnesses, closing arguments, and jury deliberations. In order for you to be convicted, the prosecutor must convince all 12 jurors - or the judge, in a court trial - that you are guilty beyond a reasonable doubt, to the exclusion of every reasonable doubt. If not, you ll either be acquitted or a mistrial will be declared. Felony DUI Cases Felony DUI cases are, by definition, more serious, because they are punishable by a prison term that can range from one year to life behind bars. Because of the severity of the potential punishment, the court procedures for felony cases are different than for misdemeanors. Unlike misdemeanor cases, where your lawyer can appear on your behalf, if you re charged with felony DUI, you must be personally present at each and every court appearance. A felony case starts off with an arraignment, just like a misdemeanor DUI. However, you re then entitled to a preliminary hearing, also sometimes called a preliminary examination. This is a significant procedural difference from misdemeanor cases, and presents certain opportunities for you and your defense lawyer. Preliminary hearings are designed to prevent criminal defendants from languishing in jail after being arrested on false charges. They re intended to determine whether there is sufficient evidence to take the case to trial or dismiss the charges. The standard for a judge to allow a case to go forward is considerably lower than proof beyond a reasonable doubt, but it is designed to protect those who stand accused. Since the defense cannot take depositions in criminal cases, the preliminary hearing may be the only opportunity to cross-examine witnesses, and pin down their testimony, before the case goes to a jury trial. Because of this, the preliminary hearing, which is available only in a felony case, provides an excellent opportunity to develop helpful information. If you are held to answer for trial following the preliminary hearing, your defense lawyer can challenge that order prior to trial with a Penal Code 995 motion. If the judge orders that you be held to answer to your felony charge, your case will proceed to trial once any pretrial motions are heard. Just as in a misdemeanor case, you must be proven guilty beyond a reasonable doubt in order to be convicted. If your felony DUI charge is based on prior DUI convictions, those convictions are generally not introduced in the current trial. Those priors will be bifurcated, or separated from the current proceeding, since that information would be prejudicial against you and wouldn t help to determine your guilt in the current case. They would only serve to inflame the passions of the jurors. Fortunately, our criminal justice system has built-in safeguards designed to protect the rights of the accused, but you need an experienced attorney fighting for your rights. Regardless of whether you re accused of misdemeanor or felony drunk driving, a skilled DUI lawyer will guide you through every step of the process.
11 California Plea-Bargains How to Avoid Trial Sometimes it s better to take a California DUI case to trial, and sometimes it s in your best interests to accept a skillfully negotiated plea bargain. There are several ways to resolve a DUI case without going to trial. It s important to note that the following information is generally true for California DUI cases, but some counties or courthouses have local customs that may be different. It is vital that you consult with a qualified DUI defense attorney to discuss the practices and procedures in your area. DUI with Negotiated Consequences The first possible outcome in a DUI case is to plead guilty or no contest to the charge, and to negotiate your sentence. It is always wise to consult with a lawyer before entering this type of plea. Every case is different, and there are some circumstances where admission of guilt to the DUI charge is in your best interest. Wet-Reckless It may be possible to plead guilty to alcohol-related reckless driving, also called a wet-reckless. The wet-reckless is, in some ways, no different from a DUI charge. It is priorable, meaning that if you are arrested for DUI again within 10 years, the wet-reckless conviction will be counted just like a prior drunk driving conviction, and can be used to enhance your punishment in the later case. Additionally, most insurance companies will treat a wet-reckless conviction just like a DUI conviction. The benefits are that there are no mandatory alcohol education classes with a wet-reckless conviction, and no mandatory driver s license suspensions or restrictions if you win your DMV hearing. This type of plea can give you an excellent outcome in a second- or third-offense DUI case. Also, for people with professional licensing issues (such as doctors, real estate agents, psychologists, etc.) there are significant benefits to the wet-reckless. Also, you won t be required to file an SR-22 form, or formal certificate of insurance, unless you lose your DMV hearing. Dry-Reckless Dry-reckless is another name for the charge of reckless driving not involving alcohol. It is significantly better than a DUI conviction in every respect. A plea to dry-reckless generally involves probation and a fine, although alcohol education programs may also be ordered depending upon the circumstances in the case. You won t be required to file an SR-22 form unless you lost your DMV hearing or didn t request one. A plea bargain that allows you to plead guilty to dry-reckless instead of DUI is almost always an excellent outcome. Unlike the wet-reckless, a dry-reckless is not priorable, and can t be used to increase your punishment in a future DUI arrest. Exhibition of Speed An offer to plead guilty to exhibition of speed, which refers to things like chirping your tires when leaving a parking lot, is even better than a dry-reckless plea bargain. This type of plea bargain usually offered when the DUI charge is especially weak and the prosecutor is worried about prevailing in court. It will usually result in a fine only, although other educational courses may be part of the negotiation too. You won t have to file an SR-22 form unless you lost your DMV hearing or didn t request one. Just like the dryreckless, there is generally little debate about taking this deal when it is offered. It, too, is not priorable, meaning that it can t be used to turn a future DUI arrest into a second offense. Traffic Infractions In some cases, it is possible to have a DUI charge reduced to a simple traffic infraction such as speeding or making an unsafe lane change. Obviously, this is an extremely favorable outcome, and you may even be able to go to traffic school and avoid having any kind of mark on your driving record. Traffic infractions are not priorable, don t require an SR-22 filing, and carry no alcoholeducation program requirements. You will have to pay fine, possibly attend traffic school, and give a big thank you to the lawyer who negotiated this plea bargain. Whether any of these negotiated settlements is possible in your case depends on many factors, including evidence of driving patterns, field sobriety test performance, chemical test results, and much more. A skilled DUI attorney can analyze your case and thoroughly explain your options. If you ve been arrested for a DUI in the San Francisco Bay Area, you can trust the Kavinoky Law Firm to provide legal advice needed to solve your problem with the court and DMV. Please visit our website at Or call us immediately at
12 California Sentencing Alternatives Jail means jail, right? Not necessarily. There are alternatives to having to go to county jail. The possibilities vary from county to county, and even courthouse to courthouse. An experienced DUI attorney will be familiar with all of the options in your jurisdiction, and will do everything possible to help you avoid jail in your drunk driving case. Here are some of the sentencing alternatives that may be available in your area: Electronic Monitoring Work Furlough Some DUI defendants are permitted to serve their sentence on house arrest while wearing an ankle bracelet that may or may not be equipped with a sensor that detects alcohol consumption. Electronic monitoring programs offer flexibility by allowing you to leave your home to go to work, attend alcohol education programs, grocery shopping, religious services, etc. Community Service Performing community service for an approved non-profit or governmental organization can be credited toward both a jail sentence and fines. Community service is generally not hard physical labor, and is especially desirable if you have injuries or other limitations. Caltrans Work This is more physically demanding work, such as picking up trash by the side of the freeway. Tough work? Sure. Going home afterwards, taking a hot shower, eating a good meal, and sleeping in your own bed with no unwanted roommates? Priceless. This sentencing alternative allows you to go to work during the day but requires that you return to a dorm-like setting by a certain time every night. Since the only allowable release is for work, weekends are typically also spent in the work furlough environment. Rehabilitation/Sober Living Environments Residential treatment can be a condition of release pending the resolution of your case, or a part of your sentence. These environments offer an attractive alternative to jail for those struggling with alcohol or drug addiction. Time spent in residential rehab can count as time spent in jail, but it will likely require the efforts of an attorney to ensure that the proper credits are awarded. Options and alternatives to jail are available in many DUI cases. The first step is to consult with a skilled DUI attorney who is experienced in negotiating alternative sentences. How A Substance-Abuse Expert Can Help Your Case A licensed substance abuse expert can play a vital role in any criminal case involving alcohol or drugs, whether it is a first-time misdemeanor DUI or felony drunk driving. One of the important questions you should ask your prospective DUI attorney is whether he or she has a licensed and well-respected substance abuse expert who can join your defense team. The role that an experienced substance abuse expert can play in your DUI defense depends on the facts of the case. In some cases, where the goal is persuade the judge or prosecutor that your DUI arrest was a one-time lapse in judgment, the substance abuse expert may find that you don t have alcohol issues, and merely had a few too many drinks at a party or restaurant. However, some individuals arrested for DUI can clearly benefit from treatment for alcoholism or drug abuse, and in those cases, a licensed substance abuse expert can recommend that rehabilitation would serve both you and society far better than a jail sentence. The expert can be of help in a serious and aggravated DUI case, or even a misdemeanor drunk driving case with no aggravating factors. Licensed substance abuse experts are often viewed as more neutral than both defense attorneys and prosecutors, who are clearly advocating for a specific point of view. Just as with defense lawyers, the skill, training, and reputation of the substance abuse expert is vital.
13 WHY THE KAVINOKY LAW FIRM IS DIFFERENT At The Kavinoky Law Firm, we know what matters to you, and we are here to fulfill on what matters to you. There are many reasons why we are different than any other criminal defense law firm. When you get to know us, we know you ll agree. What follows started out as a Top 10 list; however, there are more than 10 good reasons why we are different, and when it comes to choosing a law firm, different means better! Service. We don t merely promise great service, we deliver it. You can talk to a live person nearly 24 hours a day, seven days a week. It doesn t matter what time you call, chat, or about your legal problem: we staff in shifts so that a live person is almost always up to take your call, and you won t get off the phone without the chance to talk to a lawyer first. When you are a client of our firm, we are committed to delivering you concierge service, and handling your every need related to your case. Peace of Mind. When you ve got a legal problem going on, getting a good night s sleep can be tough. With our firm, you are able to exhale, and let us do the worrying for you. We will take care of everything. In most cases, you will never need to step foot inside a courtroom; you can attend to your normal day-to-day business, and leave solving your legal problem to us. Our team is committed to making sure you receive the best possible outcome. We can help you with every aspect of your case, including the DMV, any special insurance issues, alternative sentencing and more. Tenacity and Aggressive Defense. We are not a bargain-basement firm that just wants to quickly plead you out. We know you want this problem over with right now, and we will do our absolute best to move fast. That said, we are also deeply committed to fighting your case, and sometimes, that process takes time. We will never sacrifice doing it right just to do it fast. Most importantly, whatever twists and turns a given case brings, no one will outwork us, ever! We will examine all evidence, find every loophole, and question every law enforcement action to best serve our clients. Our only concern is you. Non-Judgmental and Caring. We know that our clients are good people who have had bad things happen in their lives, not bad people. We get that, and we treat everyone that crosses our path accordingly. We are here to be the solution, not to add to anyone s problem. We truly care about people. That s why we create the opportunity to give of ourselves to those who are less fortunate. We bring food, gifts and financial support to people who are less fortunate. We are a force for good in the world, and our clients get the benefit of that. We do one thing exceptionally well, rather than lots of things just okay. We defend people accused of crime, period. We can recommend professionals in other areas, but we aren t here to help with car wrecks, dog bites, bankruptcies, divorces, or anything else. We know lots of fantastic lawyers that do that stuff. We don t. We defend good people, who have been accused of violating the law. That s it. Nothing else. Poised, polished, and professional. When we appear on your behalf, we always look good so that you look good! We know that books are often judged by their covers, and that s why we insist that our written work product is beautiful, that we are fully prepared each and every time we go into court, and we dress and carry ourselves so that no one will ever confuse us with the public defender or a second-tier lawyer. Laser Focus. Most criminal defense lawyers that don t work for the government are oneperson operations, where a lawyer is forced to be the chief cook and bottle washer and juggle their time between marketing, intake of potential new clients, paying bills, answering calls, preparing for court, and all the functions of running their business. When they can, they service the clients. That s not good for you. We do it better. Our lawyers focus on lawyering, nothing else. They don t get involved in marketing, collections, or any other business activity. All they care about is you. Clientcentric. Our systems are designed to keep you updated, all the time. Our clients don t wonder about what s going on with their case. They know. Every court appearance, every significant development, every time, with no exceptions. Cutting Edge Technology. Software that allows us to graph out alcohol levels that change over time. Intranet that provides the latest legal developments in real time to our lawyers and staff. Software that ensures nothing can possibly fall between the cracks. A smart phone in the hands of every lawyer, and most of our support staff too. If there s any technology that can give us the edge in delivering on our promise, we will find it, and we will use it. Expertise. We believe that you are either growing, or you re going! We re really into this work, and we constantly hone our skills to stay at the top of our profession. The State Bar currently requires 25 hours of mandatory continuing legal education (MCLE) every three years. Our lawyers will often do more than that in just a few months! Our lawyers are certified in Standardized Field Sobriety Testing, are expert in cross-examination techniques, are innovators in the use of Powerpoint during jury trials because we learn this stuff, and we teach it to others. In fact, we are an authorized MCLE provider, which means that we are authorized to teach other lawyers so they can fulfill their educational requirements. We own much of the equipment used by law enforcement, we ve done our own independent studies, we work with the top experts, and we give back by teaching what we ve learned to others. Creativity. Whether it is in the context of a unique and novel defense, a creative spin on the facts, or a sentencing alternative that keeps a client out of jail or prison, we are committed to creating the outcome that best serves our client. We are not just reactive, we are cause in the matter, and that only comes from a dedication to creativity. Reputation. Our founding attorney, Darren Kavinoky, is so well thought of in the legal profession that he s constantly asked to be a legal expert by various TV, radio and print media outlets. You ve may have seen or heard him on CNN Headline News, Entertainment Tonight, The Insider, Dr. Phil, or many many other shows speaking about current legal events. (We invite you to follow his latest media appearance on Twitter. com/darrenkavinoky.) Darren Kavinoky was recently named (yet again) to the list of SuperLawyers, our firm has been AV rated (the highest level of both legal skill and ethical standards) by the Martindale-Hubbell independent directory of attorneys, and has been named one of the Top 100 Trial Lawyers in California by the American Trial Lawyers Association in 2007, 2008, 2009, and A-players only. No one on our staff is here as a junior attorney that is learning at your expense. We are the employer of choice for top-level criminal defense trial lawyers, and for the people who support them. We are constantly turning down unsolicited offers to join our firm; we only want the best. We will not tolerate anything less. Resources. Because of our geographic reach, track record of results, and commitment to educating lawyers and sharing our experience around the country and around the world, we have resources available in every imaginable area. There isn t a problem we can t answer, or a need that we can t fill. Whether it is the need for an expert in an esoteric scientific area, or a lawyer in another state to help provide information to attack a prior conviction in someplace outside California, we know just how to get the job done. Team Approach. We believe very strongly that a significant part of our success is because of our commitment to a collaborative team approach that leverages the collective wisdom and collective experience of our top-tier trial lawyers for your benefit. We have the collective experience of well over a century of criminal defense experience, including hundreds of jury trials, thousands of contested motions and thousands of great outcomes for our clients. We save all our files on a computer server that allows for easy access by this brain trust, and get together to roundtable our cases regularly. Because we are a team, and not merely a bunch of individuals, every single one of us is committed to the success of each lawyer, and the best outcome for each client. All of these unique features of our firm result in a true family environment, and therefore a special place for our clients, and for all the people that work here. Results. At the end of the day, results matter. Because of all the reasons above, and because of how we are in the world and the depth of our caring as evidenced in our actions, we will stack our achievements against the results of any other firm. We will win that contest every time. Not bragging, just telling the truth. The Kavinoky Law Firm No.Cuffs ( ) Offices Throughout California
14 Driving Under the Influence of Drugs DUI Drugs In California, driving under the influence of drugs cases are prosecuted in much the same way as DUI cases involving alcohol. The key is whether you were physically or mentally impaired by the drug to the degree that it made you an unsafe driver. Being under the influence, whether alcohol or drugs, is defined as physical or mental impairment to the extent that you are unable to drive with the same caution characteristic of a sober person or ordinary prudence under the same or similar circumstances. You can be charged with driving under the influence of drugs, or DUID, after ingesting a drug that is legal or illegal, prescribed or over-the-counter. Many people mistakenly believe that if a doctor prescribes a drug, they are allowed to drive while taking it. Unfortunately, this can be a mistake with rather severe consequences. Unlike DUI alcohol cases, there is no per se limit involving drugs. The prosecutor will try to prove that you were driving under the influence of drugs by introducing evidence related to physical signs and symptoms, driving patterns, field sobriety test performance, and chemical test results, if available. There are certain law-enforcement officers, called drug recognition evaluators, or DREs, who are trained to identify signs of drug use. Police may call in a DRE to evaluate you if you re suspected of driving under the influence of drugs. DREs are supposed to follow certain protocols in their evaluations, but a skilled attorney may be able to demonstrate that the proper procedures weren t followed, or that the supposed signs and symptoms were ambiguous and just as consistent with non-impairment as they were with impairment. Being convicted of driving under the influence of alcohol or drugs can have serious and lifelong consequences. The first step in reducing these repercussions or eliminating them altogether is to consult with a top DUI lawyer. Having a hard time getting affordable auto insurance after a DUI? We Can Help! Immediate SR22 s
15 When You Need a Second Chance Find someone who can offer you the best ALTERNATIVES D C L DrugCaseLawyers.com California drug cases involve many complex issues, and there are numerous defense strategies that can bring positive results. Drug charges can range from being under the influence to possession, manufacturing, possession for sale, trafficking, sales, and other offenses. If you re facing a California drug charge, an experienced defense lawyer can help by aggressively challenging the evidence against you as part of a strategic defense. Contact a knowledgeable California drug attorney today NO.CUFFS
16 DUIArrestReport.com The Kavinoky Law Firm Ventura Boulevard, Suite 200 Encino, California PRESORTED FIRST CLASS U.S. POSTAGE PAID PERMIT #1443 VAN NUYS, CA We see your freedom. If you re fighting a California criminal charge, you need an attorney with the legal skills needed to aggressively fight for your rights. Perhaps just as importantly, you need a defense lawyer with the foresight to imagine a positive outcome to your case. At The Kavinoky Law Firm, we have that vision we see your freedom. THE KAVINOKY LAW FIRM The Kavinoky Law Firm is one of California s biggest and most successful legal practices concentrating on drug- and alcohol-related offenses. This means we have access to vast resources when fighting your California criminal charges. We have strong working relationships with top substance-abuse experts, private investigators, and other professionals who can contribute substantially to your defense. If you need a comprehensive defense to any California criminal charge, contact The Kavinoky Law Firm today at NO.CUFFS or A PROFESSIONAL CORPORATION Attorneys at Law 800.NO.CUFFS ( )
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