1255 West Colton Avenue, Suite 101, Redlands, CA Phone: (909) Fax: (909)

Transcription

1 1255 West Colton Avenue, Suite 101, Redlands, CA Phone: (909) Fax: (909) Pierce Street, 2 nd Fl, Riverside, CA Phone: (951) Fax: (951) East Guasti Road, 7 th Fl, Ontario, CA Phone: (909) Fax: (909)

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4 Dear Potential Client: First off, I would like to welcome you to my office and let you know you are in good hands. I ve created this Client Handbook in order to help ease some of the stress that can be associated with an often embarassing situation resulting from an arrest. For your convenience, I have included some information in this handbook that helps to explain some of the Court and DMV processes so that you can simply refer to this handbook when you have a question about some of these. There are various sections of this Handbook and it is intended to act as a primary resource when you have a quick question. Most likely, someone has already asked it and it may be one that I frequently get. If so, it may be in this handbook. If you feel there is some information that should be included here, please let us know. Of course, you should always feel free call, , or text any questions you have. I look forward to assisting you with your case. Sincerely, Matthew Murillo, Attorney at Law

5 The DMV Hearing process begins with my office requesting a hearing if you are still within the 10 day window to request it. My office will always submit a request for a DMV Hearing by fax, so that we have a record of that request. If you are on the 10 th day, we will call the DMV immediately after faxing the request in order to confirm that it was received. In all other circumstances, I call DMV the day after submitting the request in order to confirm it was received. In most circumstances, we may also schedule a hearing at that time. While the DMV case is pending, your license remains valid, without any kind of restriction. You only need to maintain a Temporary License. After release from custody, the Police Officer should have provided you with a Pink Temporary License which is valid for 30 days. Close to the expiration of that license, you should receive a new white temporary icense from the DMV after your DMV Hearing has been requested and scheduled. Sometimes, it is necessary to reschedule a hearing if we have not completed our investigation or if an officer Is not available for testimony. When this happens, you will be notified as soon as possible. My office always investigates every case as if it were going to Trial, even though the hope is to get the result we want, without the need to go to Trial. Because we fully investigate a case, however, we expect to have every piece of evidence before we agree to proceed with the DMV hearing. However, we cannot begin this investigation until we receive a copy of the Arrest Report in your case from the DMV directly. Every case is different. Sometimes, I receive this report several weeks before the DMV hearing and have plenty of time to issue subpoenas for all of the evidence I wish to obtain. Sometimes, though, I don t get the report until a couple of days before the hearing. When this happens, I request a continuance in order to reschedule the hearing and having enough time to issue a subpoena. Myy office issues various subpoenas immediately after receiving a copy of the Arrest Report in your case. When doing so, we are often requesting additional information that may help us defend your case by arguing that your rights were violated, the officer lacked probable cause to stop you, the officer lacked probable cause to arrest you, or some other legal argument. Sometimes, those agencies charge a fee for providing those documents to me; sometimes, they do not. We will never know whether that item of evidence will help your case until we can examine it. The important thing to remember between the date my office is retained and the date of your DMV Hearing, is that we cannot get any information without first getting the Arrest Report. As soon as my office received the Arrest Report, we will go through and redact any information that

6 I cannot legally allow you to see. Then, you will get a copy of the modified report so that you can review it for accuracy. Until my office is given the report, I cannot tell you how your case looks or provide you any updates beyond a date of hearing. The investigation for the DMV hearing, however, is very critical in the way my office prepares a case for Court. This investigation will allow me to prepare the case for some type of Motion in Court, where we can seek to dismiss the case or ask the judge to prevent the District Attorney from using certain evidence against you. A DMV Hearing is an informal process. All that is at stake at this hearing is your driving privelege. This hearing does not decide whether you are Innocent or Guilty in Court. This hearing also has no influence over what happens in Court, just like what happens in Court has no influence on what happens at this hearing. However, you are still entitled to present and rebut evidnece and witnesses, as well as crossexamine witnesses the DMV brings. At the DMV Hearing, the DMV must prove its case well beyond simply having evidence that your BAC level was above the.08% limit. It must prove that you were driving at the same time your BAC level was.08% or greater. This necessarily means that it must also prove the Police Officer had a valid reason to contact, or stop, you an officer cannot stop you without some factual reason for beleiving you were violating a law. Additionally, the officer must have Probable Cause to Arrest you. If the Stop/Contact is unlawful, or if the Arrest itself is unlawful, the results of the blood or breathe test you took, may not be used against you and must be thrown out. In addition, the DMV Hearing could he to determine whethere there was a Refusal of a chemical test. If that is the case, the BAC level makes no difference only whether you refused to submit to a chemical test. Although the other issues regarding lawful stop, arrest, etc., remain viable defenses. The DMV requires a different standard of proof then Court does, therefore, some strategic tactics that works for the DMV hearing may not work in Court, and vice versa. Additionally, even if the stop/contact, and arrest, are lawful, that doesn t mean that the breath machine was properly working or maintained, or that the blood sample was properly analyzed. Most of the time, Respondents (this is the name used to refer to a licensee at the hearing) are not required to attend. The only time I ask for your attendance is if you will present testimony. This, however, rarely happens because this testimony can potentially be used against you in Court. Although, you are welcome to attend the DMV hearing if you wish to do so.

7 The DMV Hearing Officer (the DMV s version of a judge) never makes an oral decision on the day of the hearing. Sometimes, they are made the next day. Sometimes, they are not made until several weeks later. The decision will always be in writing and will be mailed to my office, as well as you as soon as it is made. The suspension period can be from as low as 4 months, to as high as several years, depending on various factors that include prior suspension history. If the DMV decides to suspend your license after holding the hearing, there are some things you can do to appeal that decision, which may depend on whether there has been a resolution in Court yet. We will discuss these options if the need arises. If it is a first offense, and you are over 21, you will also be eligible for a restricted license. If you are under 21, or have prior offenses, we will discuss all of your options if the need arises.

8 The Court process begins with an "Arraignment" hearing. Usually, nothing happens at this hearing other than simply setting a "Pre-Trial Hearing" in order to begin/continue discussing your case with the District Attorney to resolve the case through a settlement or dimissal without the need of going to Trial. At Arraignment, there are three (3) options for entering of a plea - Guilty, No Contest, and Not Guilty. I NEVER enter a "Guilty" plea at Arraignment. My office always enters a "Not Guilty" plea at the Arraignment for two reasons. First, if you enter a "Guilty" plea, you must plead to the charged offense - in this case, a DUI. Second, entering a "Not Guilty" plea allows us to negotiate a disposition with the District Attorney. Additionally, entering a "Not Guilty" plea does not look negatively on you and still allows you to change your plea later, if there is a settlement to your case. A "Pre-Trial" hearing is the next stage of a Court case after Arraignment. Usually there are several Pre-Trial hearings in any case and, together, make-up the investigative stage of the Court process. Setting your case for "Pre-Trial hearings does NOT mean you must take your case to Trial. It it simply the name given to the stage a case goes into after Arraignment. Some courts have different names for these hearings; such as, Pre-Trial Hearing, or Trial Readiness Conference, etc. Remember, this stage Frequently, it is necessary to have several Pre-Trial hearings if we have not completed our investigation or if we need to get more information from the District Attorney's office in order to come to a resolution of the case without the need to go to Trial. Sometimes, other type of hearings will be scheduled, depending on the circumstances of the case and what we may be able to do such as a Motion to Suppress Evidence hearing. This type of hearing a request by us, to the judge, to prevent the District Attorney from using certain evidence against you because of a violation of your Consittutional Rights. The final stage is the Trial stage. This is where a Jury is selected and the District Attorney must prove your guilt beyond reasonable doubt. My office always investigates every case as if it were going to Trial, even though the hope is to get the result we want, without the need to go to Trial. Because we make every effort to fully investigate a case in preparation for the DMV Hearing, when its available, we will usually have most evidence available in your case before the first court hearing. When the DMV Hearing is not available, we still perform the same investigation except it is by a Request for Evidence submitted to the District Attorney handling your case. We are often requesting additional information that may help us defend your case by arguing that your rights were violated, the officer lacked probable cause to stop you, the officer lacked probable cause to

9 arrest you, or some other legal argument. Sometimes, those agencies charge a fee for providing those documents to me; sometimes, they do not. We will never know whether that item of evidence will help your case until we can examine it. This investigation can cause the Court case to be post-poned a couple of times, but is necessary to allow us to provide you with appropriate advice and to properly negotiate a resolution to your case. Most of the time, in misdemeanor cases, you will not be required to attend - though you are welcome to attend any Court hearings if you would like to do so. For felony cases, you MUST be present at each and every hearing. However, even for Misdemeanor cases, you will be required to attend if we schedule a Motion hearing (such as a Motion to Suppress Evidence) or set your case ready for Trial. Unless your case goes to Trial, or you plead Guilty at the Arraignment, the Court will never decide whether you are Guilty until you have submitted a Plea Agreement for approval by the Judge, or if you actually proceed to Trial and a Jury finds you guilty after that Trial. A Plea Agreement will never be submitted by my office until after I have completed my investigation and believe that negotiations with the District Attorney cannot proceed any further because we have exhausted any potential agreements and cannot come to terms on one. When this happens, you and your attorney will sit down, review the evidence we have received in your case, discuss the Plea Agreement on the table at that time, and your options will be explained to you in detail. From there, we will talk through a course of action for how to proceed.

10 If your case goes to trial and you are found guilty or plead guilty to a DUI offense, you may be sentenced by a judge depending on the circumstances of your case and your past criminal record. There is a good possibility that you will be facing fines, driver's license suspension or revocation, probation and lengthy jail or prison time. Following a stop for a DUI offense, you will initially have your license revoked. California recognizes implied consent law, which means that the automatic refusal of a breath or blood test could result in your revocation immediately. Likewise, if you adhere to the test and are found intoxicated, your license will be suspended as well, unless we can show that it was the result of an unlawful contact, unlawful arrest, or invalid chemical test. It is important that you work with us to defend your driving privileges. If you are a multiple offender and this is not your first arrest, your penalties will be higher than those who are first time offenders. Your exact penalties will vary depending on the circumstance and the judge, but it is almost always guaranteed that you will have to pay higher fines, possibly spend lengthier time in jail or prison and have your license suspended for up to three years. Yes and no. You could have refused the blood, breath or urine test but the state of California recognizes implied consent law. This law states that if you refuse a sobriety test, your license may be suspended for one year or revoked for up to three. If you did adhere to the test and it was determined that your blood alcohol level (BAC) was.08% or higher, you still could lose your license. If you feel that you were stopped and possibly arrested by an officer without probable cause to do so, you may have a strong defense for your charges. Although being wrongfully stopped does not necessarily dismiss your charges, it could bring forth a very strong defense for an attorney to help build you a case. It is important that you protect your rights and if you feel that you were wrongfully stopped, you need to provide us with all the details about why you believe you were wrongly stopped. With this information, and comparing it to the evidence that we are able to obtain, we may be able to file a

11 Motion to Suppress Evidence to prevent the District Attorney from using certain evidence against you. My offices strongly believes in a single point of contact for you, the Client. This means that you will be assigned an attorney to personally handle your case, not simply pass it on to another attorney with no relationship to the firm. The firm s belief is simple When you hire this law firm, you will be represented by this law firm at every hearing and every stage of your case. Your case is assigned one attorney, and that attorney will handle your case from start to finish. You will speak directly with your attorney about your case, at all stages of the legal process, every step of the way. Attorneys are normally assigned within the first week after our office is retained. Once assigned, you will receive a letter indicating who your attorney is and how to contact them. There is no need to call the office to find out how your hearing went. We do our best to prepare you for anticipated outcome before a scheduled hearing date, so that you are aware, in advance, of what will likely happen. When a new date (Court or DMV) date is scheduled, we will send you written notification by mail or (if you have provided an address). Most hearings do not end with a result. In Court, a hearing may end with an understanding or an initial plea agreement that we will discuss with you, or simply a new date so that we can further our investigation. At the DMV, we are never given a result on the same day. Those hearings are either continued to allow for further investigation, or, if we proceed with the hearing, a decision from the hearing will be mailed (see question 15, below). Either way, if we receive important information to we feel you need to know immediately, we will call you. Otherwise, you will receive a letter, or text (whichever you request) with an update. If you do call, however, please leave a message. Please, DO NOT keep calling every few minutes expecting to get in touch with someone as it only ties up the phone lines and helps no one. We do our best to return messages the same day they are received. At your DUI Arraignment hearing, the first time you appear in Court, the judge will simply provide a copy of the arrest report to us, ask for a plea and schedule a new pretrial hearing date to come back. An Arraignment is only a hearing to advise you, the Defendant, of the pending charges, and to make sure you understand those charges, as well as rights; it is not a trial, and the Judge will not hear any arguments or excuses you may have regarding legality of arrest or reasons why your license cannot/should not be suspended. Those arguments are kept for Pre-Trial hearings.

12 Yes, and No. Most people believe that if an officer fails to show up at the first Court hearing (Arraignment Hearing), then the case will be dismissed. This is only true for Infraction offenses (i.e., minor speeding tickets). A DUI is a Misdemeanor offense. This means that an Officer is not required to appear in Court until summoned to do so. So, the only time your case could be dismissed for failing to appear is if the officer was summoned by the Court to testify (such as for a Motion to Suppress Evidence, Preliminary Hearing or Trial). Even if the Officer fails to appear, if there is a good cause for that failure, the Judge does not have to dismiss your case. If you were released on your Own Recognizance or bailed out, then the likelihood of being arrested at the hearing is low. However, depending on the case and severity (i.e., injuries, multiple priors, etc), then being taken into custody is a possibility. With any criminal charge yes, a DUI is technically a criminal offense jail time is always a possibility. Depending on the severity (misdemeanor or felony), you could be looking at a maximum term of one year in County jail (misdemeanors) or a sentencing range of 16 months to 3 years, plus any additional enhancements. Your likelihood of spending time in jail depends on the circumstances surrounding your case, including any prior offense you have and what can be worked out with the District Attorney. YES! While we cannot guarantee work release instead of jail, it is often possible to plea bargain for Work Release, or some other custody alternative in order to minimize the impact custody time has on your personal and professional life. Our attorneys have successfully negotiated Work Release terms for many Clients, in addition to reduced and/or dismissed charges. The DMV hearing is an administrative proceeding following an arrest that determines the suspension of your license. This process does not prove if you are innocent or guilty of driving under the influence, but rather determines if there was probable cause for your arrest, if you were intoxicated above a.08% blood alcohol content level and if you were unlawfully arrested. No, you do not have to be present at the DMV Hearing in most circumstances. Whenever possible, we try to avoid having you testify at the DMV Hearing because that

13 testimony can be used against you in Court, should your case go to trial. We want to eliminate any possibility of that happening especially if the Arresting Officer will be testifying. If the officer will be testifying, there is a strong liklihood that we will be, at least, showing transcripts to the District Attorney. If that is the case, we don t want to give them any further ammunition against you. The decision whether to suspend your license or not never happens right after the DMV Hearing. The DMV Hearing Officer will take anywhere between a couple of days to a couple of weeks to make that determination. Once a decision is made, you and I will both be notified by mail. If the DMV Hearing Officer determines that a suspension is warranted, that suspension does not start until approximately one week after the Findings & Decision letter is mailed out, so you can rest assured knowing there is no possibility of you driving on a suspended license. Immediately after my office receives the Findings & Decision letter from the DMV, we will issue a separate letter to you explaining what steps you need to take to get a restricted license (if you are eligible for one). The answer to this questions depends on a variety of factors, such as, your age, whether you have any priors, whether you refused a Chemical Test, what the rest of your driving records looks like and what the current state of your license is. If the DMV deteremines a suspension is warranted, and if you are eligible for a restricted license, we will discuss that with you and let you know what steps must be taken to get it. If your DMV Hearing was requested in time, you can rest assured that your license is not suspended. If you retained our office prior to your DMV Hearing request deadline, we have requested your hearing and it has been scheduled. Sometimes, when the DMV believes that you were not properly served with a Notice of Suspension (the pink temporary license you should have been given when arrested), it will send you some documents. These documents, approximatley 4 pages total, will indicate your license is suspended unless you request a hearing within a certain period of time from the date of the documents. If your hearing is already requested, don t worry about it. If you are unsure if these are the documents you received, feel free to call your attorney, or send a copy by fax or .

14 1) Provides SR-22 and other insurance services. Ph: (800) Fax: (949) E. Hunter Ave., 2nd Floor Anaheim, CA Provides SR-22 and other insurance services. Ph: (949) Redhill Avenue, Suite A Tustin, CA 92780