LOS ANGELES SEARCH AND SEIZURE ATTORNEY
The Fourth Amendment to the US Constitutions guarantees the rights of citizens to be free from unreasonable searches and seizures.  In order to search a vehicle without consent, police need probable cause; in order to search a residence without consent, police generally need a search warrant.  In the first part of this multi-article series, I will discuss what exactly constitutes a search.  Sometimes, what is and is not a search is quite simple.  Police opening car doors, a trunk and looking under seats constitutes a search.

On the other hand, if an officer observes someone walking down the street with a gun in hand, seeing the gun in plain view does not constitute a search.  This article will examine some of the middle ground areas that are less clear and explain the law with respect to whether the described conduct constitutes a search.  Remember, if the conduct does constitute a search, police need probable cause or a warrant; if it's not a search, police are within their rights to use the evidence they find against a suspect.  The general rule is that a person has fourth amendment rights against a search if they have an actual and reasonable expectation of privacy.  If I am in my basement, with no windows, I have a reasonable expectation of privacy; on the other hand, if I am holding contraband in my hand in a public place, I do not have the same reasonable expectation.

OUTSIDE SURVEILLANCE
It might seem like having a high fence, hedges or even wall around one's property would create a reasonable expectation of privacy.  After all, no one walking by, driving by or standing on a neighboring property can see what is going on on the property.  However, the Supreme Court disagrees!  In the 1989 Supreme Court case Florida v. Riley, the Supreme Court held that police could fly over a property (at a height of 400 feet) without constituting a search for Fourth Amendment purposes.  The Court reasoned that private citizens could fly over the property as well and that there is therefore no reasonable expectation of privacy with respect to that conduct.  In 2001, the Court decided another case, Kyllo v. United States, holding that use of infrared scanners to detect the heat caused by lamps in marijuana grow operations, even though done off of the property, was a search, because the technology was not generally available to the public.  While this decision does not directly overrule the court's decision in Riley, it is hard not to doubt that members of the public would be regularly flying over top of someone's property with a helicopter.  These cases provide guidance for other similar conduct.  If, for example, law enforcement became equipped with low-flying, small and maneuverable drone surveillance craft (see my article on drone surveillance and our privacy rights), a defense motion to suppress the evidence would focus on the Court's decision in Kyllo.  Meanwhile, the prosecution would argue that the drones are readily available and similar

K-9 SNIFF
Recently, the Supreme Court has called a K-9 sniff at the front door of a residence a search, but still permits a dog sniff to be done roadside so long as conducting the sniff does not cause undue delay.  For more information about K-9 Sniffs, read my earlier articles on the topics:  Constituionality of K-9 Sniffs and Recent Developments in K-9 Sniff Law).

TRACKING DEVICES
Police cannot put a tracking device on someone's car without a warrant, but that doesn't mean that they cannot use them without a warrant.  In United States v. Karo, the DEA put a tracking device in a barrel before it was sold to a suspected drug dealer.  Since the barrel's owner (prior to the sale) consented to the placement of the device, and the purchaser willingly accepted the barrel from the seller, the court found that there was no seizure, only a minor trespass.

TRASH
In California v. Greenwood, the Court addressed whether police need a warrant to go through someone's trash.  Property discarded with the trash also throws out any expectation of privacy.  While trash is placed on a sidewalk for the purpose of being picked up by a trash truck, it is not uncommon for people to go through trash to take discarded belongings.  So long as trash-picking is not done with the intent to use sensitive information for fraud, it is legal.  It is therefore lawful for police, too.

SEARCH OF PREMISES DURING ARREST
Two hallmark cases deal with searches of homes conducted during an arrest.  In Chimel v. California, police searched Chimel's home while executing an arrest warrant.  The Court held that in doing so, the police violated the search warrant requirement for a search of one's home.  The police did have a valid arrest warrant, but not a search warrant.  Per the arrest warrant, they were authorized to arrest Chimel, and to do a protective sweep of the house for their safety.  By opening drawers, the police exceeded that scope and the protective sweep became a search.  In Payton v. New York, the Court addressed whether officers could arrest someone in their home based on probable cause.  The Court determined that probable cause was not enough, but that if there were exigent circumstances, they could enter a home to make an arrest. 

Other Articles in this Series: 

UNREASONABLE SEARCH AND SEIZURE:  Stop and Frisk and Search of Persons
UNREASONABLE SEARCH AND SEIZURE:  Consent Searches
UNREASONABLE SEARCH AND SEIZURE:  Search of Vehicles and Effects
UNREASONABLE SEARCH AND SEIZURE:  How to Suppress Evidence

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a Los Angeles Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation at (323) 803-4352.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

Youth offenders (those under 18 years of age at the time of their offense) are typically sentenced within the Juvenile justice system (Delinquency Court).  In some cases, however, juveniles are charged and sentenced as adults.  Sometimes the District Attorney files adult charges directly for serious offenders over 14 years of age.  Other times, a serious matter filed within the juvenile system will proceed to a "fitness hearing" where it will be determined whether the juvenile will be tried as an adult or remain in the juvenile (delinquency) system. 

On September 16, 2013, Governor Jerry Brown signed SB 260 into effect, a new law that would greatly affect the fate of many youth offenders sentenced to long sentences in California State Prison.  California State Senator Loni Hancock proposed the change, which will require the State Parole Board to grant Parole Hearings to juvenile offenders sentenced as adults.

Prompted by the recent US Supreme Court decision in Miller v. Alabama and California Supreme Court decision in People v. Caballero, the new law recognizes that youthful offenders are more prone to influence by others and are more likely to be rehabilitated.  As such, life sentences and unreasonably long determinate sentences (for a set number for years, for example, 40 years), deny these youths the opportunity, and motive, to engage in rehabilitation.  Essentially, even when a 16 year old is tried and sentenced as an adult, fundamental differences remain.  Youth offenders are less likely to re-offend and the law should take that into account.  The act amends Sections 3041, 3046, and 4801 of the Penal Code and adds a new section, PC 3051.

Eligibility for youth parole hearings is as follows:
For determinate sentences (set number of years in prison), youth offenders are entitled to a hearing before the Parole Board in the 15th year of their prison sentences.  If a youth offender is sentenced to 30 years on an armed robbery case for example, current law would require that person to serve over 25 years before being paroled.  With the new law, the same offender will have the opportunity for parole 10 years sooner!

For sentences of less than 25 years to life, a youth offender shall be eligible for release on parole in the 20th year of their sentence, unless released sooner per other law.  Those sentenced to 25 years to life, shall be eligible for a youth parole hearing in their 25th year of incarceration unless released earlier per other law.

While the law would seem to only offer significant relief to those prisoners whose normal parole dates are longer than 15 years into the sentence, the amendment to PC 4801 might also offer a benefit to youth offenders with shorter determinate sentences.  Prisoners are entitled to meet with the Parole Board 6 years before their earliest eligible parole date.  At this stage, the Parole Board will assess the prisoner's rehabilitation and recommend additional course of action to ensure future eligibility for parole.  What PC 4801 does, is it allows the parole board to recommend a commuted sentence or pardon to the Governor where they believe the person has shown particularly good conduct, suffered and unusual term of sentence, and now with the passage of SB 260, the parole board is urged to give particular weight to the "diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law."  This means that someone sentenced to 15 years, for example, who would traditionally be paroled before becoming eligible for a Youth Parole Hearing, can be released as early as 6 years prior to the traditional parole date.  Getting a commuted sentence or pardon is not easy, but it is certainly more likely with the parole board's recommendation.

To me, the mere thought of a teenager being sentenced to life in prison or long determinate sentences is brutal and unjust.  I am thrilled for the thousands of California youth offenders sentenced by this law who may now get a second chance!  Additionally, this change gives young people hope and an incentive to become model prisoners.  It not only permits a juvenile offender the opportunity to rehabilitate and re-enter society, but also the motivation to seek out educational and rehabilitative opportunities early on in their incarceration. 

If you or someone you know was sentenced to a long prison sentence for an offense committed as a juvenile, contact our office for a free consultation.

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

For non-citizens, the immigration consequences of a criminal conviction can be much more severe than the criminal consequences.  Accordingly, the usual goals of minimizing jail time and fines may not be enough, and may not be the primary focus for non-citizens in criminal cases.  Not all criminal convictions will lead to removal or inadmissibility, but immigration law consequences must be taken carefully considered when defending criminal cases.  Immigration law has its own criteria, often distinct from the traditional criminal law terminology and considerations. 

Having the right criminal defense attorney during criminal proceedings may be more important than having the right representation later during immigration proceedings.  Avoiding the wrong kind of conviction could help you avoid proceedings altogether or make it possible to obtain other relief and stay in the country.  Knowing the immigration consequences of criminal conviction is extremely important for a Los Angeles Criminal Defense Attorney.  Many non-citizens are charged with crimes in California, but these charges do not have to mean deportation.  Consult with an experienced, knowledgeable criminal defense attorney before it is too late.

Aggravated Felonies
Aggravated felonies, commited any time after admission are grounds for permanent banishment for non-citizens.  Non-residents convicted of aggravated felonies are are subject to "administrative removal" meaning that they will not be entitled to a removal hearing or the defenses to removal (including asylum).  Aggravated felonies include:
-illegal trafficking (controlled substances or firearms)
-crimes of violence (crimes involving force or threats of force), where the sentence is greater than one year.
-theft offenses with a sentence of at least one year
-fraud or deceit where the loss to the victim exceeds $10,000

Crimes Involving Moral Turpitude
Crimes involving moral turpitude (CIMTs) subject non-citizens to deportability and inadmissibility.  A CIMT is a crime involving theft, deceit, forgery and the like.  A single CIMT conviction will trigger deportation for many non-citizens if the crime is punishable by up to a year.  This includes many misdemeanors.  If the offense carries a maximum sentence of 6 months, the conviction will not trigger deportation, even though the crime is a CIMT.  For non-residents, a single CIMT conviction, regardless of the maximum penalty will make the non-resident inadmissible (note: there is a petty theft exception, which allows non-residents to avoid inadmissibility with one conviction for petty theft).

Controlled Substances
Controlled substance offenses are often aggravated felonies.  Even if a state offense is not treated as a felony, if the charge has a federal analogue felony, it will be treated as such.  Luckily, most simple possession offenses are not aggravated felonies.  Still, many controlled substance-related offenses can lead to deportation or inadmissibility, even if not aggravated felonies.  In some cases, no conviction is even necessary.  A non-citizen can be inadmissible or deported for being a drug addict or drug abuser.  Moreover, a person can be deportable or inadmissible if the government has "reason to believe" a person was involved in drug trafficking, even if there was no conviction.

Crimes of Violence or Domestic Violence
Like crimes involving controlled substances, many crimes of violence and domestic violence are aggravated felonies.  Additionally, however, crimes of domestic violence are deportable, even if not aggravated felonies.  In these cases, it is important to avoid a domestic violence conviction, even if there is a conviction for a crime of violence.  The conviction must not be an aggravated felony (sentence of less than one year) and must not make mention of the domestic relationship between the defendant and victim.  In California, PC 243(e) can also help non-citizens avoid deportation because the courts have held this statute "divisible" because it includes not only violent acts, but also offensive touching.  Violating a criminal or civil stay away order in a domestic violence situation can also be a deportable offense; as such, pleading to a new offense is favorable to violating a protective order.  Like crimes involving domestic violence, crimes of child abuse, child neglect or child abandonment are also deportable offenses and require special attention.

Sex Offenses
Rape, child pornography, child molestation, and most other sex offenses are aggravated felonies.  Prostitution, while not an aggravated felony can also trigger removal proceedings.  Avoiding deportation or inadmissibility with sex offenses is perhaps the most difficult task a defense attorney may face in handling a criminal matter for a non-citizen.  Often, the goal with these cases is to limit time in custody prior to deportation, but also to limit the effect of a future illegal re-entry charge if the defendant may re-enter the country illegally.

Possible Relief
Some non-citizens are eligible for certain relief from removal or inadmissibility.  For example, non-citizens who are Licensed Permanent Resident (have a green card) who have lived in the U.S. for at least seven years may be eligible for cancellation of removal.  Additionally, non-citizens who have a close family member (spouse or child) who is a US citizen or Licensed Permanent Resident pay be able to get an "immediate relative" or "preference" visa.  Non-citizens who have been victim's of crimes or abuse might also be eligible for visa relief.  Depending on the conditions of the non-citizen's home country, eligibility for a asylum or protection per the Convention Against Torture may be possible.

US Immigration laws are as complex as they are harsh.  Criminal cases for non-citizens require special care and attention.  If you are facing a criminal conviction, and are concerned about possible immigration consequences, contact our office for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

Most California DUI cases rely on chemical tests of a drivers breath, blood or (less commonly) urine.  The proper procedure for getting samples and performing laboratory tests on those samples are controlled by California Code of Regulations Title 17.

Title 17 provides a detailed set of rules for conducting chemical tests.  One of the more common applications of this law in blood test cases concerns itself with the storage and preservation of the blood sample.  When the government takes a blood sample from a suspected impaired driver, it must retain an additional portion of blood and properly preserve the blood sample so as to make retesting possible. 

Your California DUI attorney can get a sample by requesting a "Blood-Split" order from the court.  Once the "Blood-Split" is ordered, a sample must be turned over by the law enforcement agency to an independent laboratory chosen by the defense.  The sample is not only retested for alcohol or drugs, but this process also verifies whether a blood sample was retained and whether such sample was properly preserved, using the preservatives proscribed in Title 17.  If the lab technician failed to properly preserve a blood sample, your California DUI lawyer can call into question the analyst's ability to properly test the blood, too.  After all, if the person performing the blood test is unable to follow other instructions laid out in Title 17, how can the results of his or her tests be trusted?

Moreover, your attorney can have this blood sample can be tested to investigate other defenses.  For example, if a diabetic driver experienced diabetic shock or a diabetic seizure while driving and is involved in an accident, blood sugar levels could help the defense establish that it was the driver's medical condition, rather than intoxication, that actually caused the traffic collision. 

In breath tests, no sample is stored.  Still, Title 17 provides procedures which police must follow in administering breath tests.  The most common example of this is the 15 minute observation period.  Prior to having a suspect perform a breath test, a police officer must continuously monitor the suspect for 15 minutes.  This officer looks to ensure that the suspect does not burp, vomit, eat, drink, or smoke, all of which can affect breath test results.

Additionally, Title 17 outlines how and how frequently breath, blood and urine testing devices must be calibrated to ensure their accuracy.  Your DUI attorney will inspect the calibration logs for the testing device to ensure that the agency has complied with Title 17 regulations.

If you are facing DUI charges in Southern California, contact our office for a free consultation.  See how a Los Angeles DUI lawyer can use their knowledge of proper testing procedures to help your case.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

HOW YOUR LOS ANGELES DUI DEFENSE ATTORNEY CAN CHALLENGE THE ACCURACY OF BREATH TEST DEVICES
Many people simply assume that breathalyzers are an accurate tool used by law enforcement personnel to judge whether a driver is intoxicated.  In California (and every other US state), the legal limit for blood alcohol concentration (BAC) is .08.  When attempting to ascertain how much alcohol in a driver's blood, the most accurate measure is to have a sample of the driver's blood.  Why then, do people assume that breath can tell us, accurately, how much alcohol is in someone's blood?  Why do police officers and courts use these inaccurate blood results?  The answer:  Well, Thomas Jefferson just might roll all the way out of his grave and write a new Declaration of Independence if police were taking blood from drivers based on mere suspicion, or worse, at DUI checkpoints.  This is what criminal defense attorneys are fighting every day.

Understanding how a breathalyzer estimates BAC is fundamental to understanding why they are inherently inaccurate.  It should be obvious that a breathalyzer does not ever actually measure blood.  Breathalyzers may give a fairly accurate indicator of "breath alcohol" but that measure has no legal value and does not accurately indicate alcohol impairment.  To convert a breath alcohol finding into a blood alcohol finding, breathalyzers multiply the amount of alcohol in the breath by 2100.  The manufacturers of these devices have concluded that the average concentration of alcohol in someone's blood will be 2100 times the concentration of alcohol in the breath.  This method is inherently flawed.  This number is known as partition ratio, and can range in actual people from as low as 1100 to as high as 3200.  Even if the tests are performed without human error, the presence of mouth alcohol is not affecting the tests and the machine has been properly calibrated, breath alcohol does not equal blood alcohol (nor is it consistently proportional).  A person could be found guilty of DUI, simply for being different than the "average" person.

Imagine you have five jars of loose change.  In each jar, a random assortment of pennies, nickels, dimes, quarters, and the occasional Canadian coin that found its way into the mix.  You count one of the jars and find that it contains $21.43.  Instead of counting all of the change, you multiply by five and fill out a deposit slip for $107.15 and take it to your bank.  What reaction would you expect from the teller?  What if the jar you counted was heavy in pennies?  What if it had more dimes?  What if instead of five jars, you had 2100 jars?  What if you guessed how many jars you have?

Breath tests have begun to to show their true colors.  More and more, people charged with DUI based on a breath test are taking their cases to trial, and expert witnesses are testifying that the method fails to prove BAC beyond a reasonable doubt.  Just how far off breathalyzers are depends on your source, but scientific studies have found margins of error ranging from 15 to 50%. 

If your bank wouldn't accept a mere estimate of how much loose change you're depositing into your account, how can a court of law accept a BAC estimate as evidence of guilt beyond a reasonable doubt?

If you've been charged with DUI, you need a Los Angeles DUI Attorney to help you assert the defenses that apply to your case.  Inaccurate machines shouldn't cost you your liberty or driving privilege.  Contact our office for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES DUI LAWYER
"Mouth alcohol" is just what it sounds like: alcohol that remains in the mouth.  DUI breath testing machines, both Preliminary Alcohol Screening (PAS) devices and stationary devices are supposed to collect air deep from your lungs (called "alveolar air").  However, "mouth alcohol" can interfere, leading to a false high BAC reading.  Breath test devices measure the amount of an alcohol metabolite in the breath, then multiply that number by 2100 to estimate the amount in the blood.  Accordingly, even small amounts of mouth alcohol can really affect the results of a breath test.  Two minutes after rinsing with Listerine, a person's BAC will read .20, more than twice the legal limit, even if the person has consumed no alcohol!

Some common causes of "mouth alcohol" include:

-Mouthwash/mouth spray
-Medicines containing alcohol
-Gastroesophogeal Reflux Disease (GERD)
-Dental work like crowns and bridges that trap alcohol
-Periodontal Disease (Gum Disease/Gingivitis)
-Bodily functions like burps, vomit, hiccups
-Hiatal Hernia (a condition in which part of the stomach sticks upward into the chest, through an opening in the diaphragm)

In breath test cases, a Los Angeles DUI attorney may be able the results into question using the "mouth alcohol" defense.  Discuss any medical conditions, dental work, or use of mouthwash or mouth spray with your attorney.  Also be sure to mention any vomiting or medications to your lawyer.  These defenses may help to account for some or all of the alcohol that the government must prove is in your blood.  Mouth alcohol can make breath tests unreliable, but it takes a knowledgeable, aggressive attorney to get that point across.

EXAMPLE:
Jerry is a former hockey player, living in Los Angeles.  Years ago, he lost several teeth and has since had significant dental work done to restore his smile.  After a workout one day, Jerry takes a shower and uses a strong, alcohol-based mouthwash before driving home from the gym.  Jerry did not ingest any of the mouth wash, but some of it was trapped in his dental work and remained in his mouth.

Jerry is pulled over for looking at his cell phone while driving out of the gym parking lot.  The LAPD officer comes up to the window and smells the alcohol in Jerry's mouth.  Jerry is asked to step out of the car and perform a series of field sobriety tests.  He agrees, even though he has a right not to perform the tests.  Sore from his workout, Jerry displays poor balance and raises more suspicion for the officer that Jerry is under the influence of alcohol.  The PAS breath test device shows a result of .08.  Jerry is arrested for DUI and issued a 30-day temporary driver's license.

Knowing that he hadn't been drinking (or using any drugs), Jerry wisely opts for a blood test.  The blood test later reveals that Jerry did not have any alcohol in his blood.  Jerry's Los Angeles DUI attorney uses the information to get the DMV hearing set aside and the case dismissed.  Strange cases like this do happen.  And if not for careful criminal defense, the fact that there has been no DUI can be overlooked and lead to a wrongful conviction.

If you have been charged with DUI, contact our office immediately for a free consultation at 323-803-4352 with a Los Angeles DUI Lawyer.  See if mouth alcohol or some of the other DUI defenses are available in your case.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES DUI LAWYER
Most DUI arrest reports have a page dedicated to Stardardized Field Sobriety Tests (SFSTs).  These tests are meant to gauge a driver's impairment, but are very far from perfect.  Additionally, officers will point to certain "objective" symptoms of impairment to justify their arrests.  Again, some of these fail to actually establish any impairment and can often be better explained by other factors.  While it is important to note that you have a right to refuse to perform these tests (and should!), that is not the purpose of this article.  This article is intended to explain the tests, their significance and their ability/inability to detect intoxication.  Additionally, this article explains how a DUI attorney can help you assert defenses and possibly avoid the negative consequences associated with a DUI conviction.

The three SFSTs are: the one-leg stand test, the walk and turn test, and the horizontal gaze nystagmus test:

-With the one-leg stand test, the officer will ask the suspect to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until the officer tells them to stop. The officer also times the suspect for 30 seconds, while looking for swaying, use of arms to balance, hopping to maintain balance, and putting the foot down.  If someone exhibits just one of these signs, there is not enough evidence of impairment.  If the suspect exhibits more, there could be other factors, like the suspects health, general ability to balance, nerves, loud noises, cars rushing by, etc.  A qualified DUI attorney will be able to establish that other factors can be responsible for poor performance on this test.

-The walk and turn test is also designed to measure balance, ability to follow directions and ability to walk in a straight line.  Here, the suspect is directed to take nine steps, heel-to-toe, along a straight line.  Then, the suspect must turn on one foot and take nine steps back in the opposite direction.  The officer looks for whether the suspect can keep balance while listening to instructions, begins before instructions are finished, stops while to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.  The instructions are not always clear (suspect is not always told to wait until instructions are completed, for example) and again, health issues, problems balancing, nerves, fear and environmental factors can all affect performance.

Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eye that occurs as the eyes gaze to the side. Typically, HGN occurs when eyes are turned to high peripheral angles. However, when a person is impaired by alcohol, HGN is exaggerated and may occur at lesser angles.  An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.  The officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or flashlight, horizontally with his or her eyes.  The officer looks for the following signs of impairment in each eye: whether the eye can follow a moving object smoothly, whether jerking is distinct when the eye is at maximum deviation, and whether the angle of onset of jerking is within 45 degrees of center or farther out.  Nerves, lights and loud noises can make this process more difficult, but this is the most accurate of the SFSTs.

Aside from the SFSTs, the officer might also require some of the following non-standardized sobriety tests: stand with feet together and tip the head backwards, count the number of fingers that the officer raises, count backwards, recite the alphabet, the Rhomberg stationary balance test (suspect stands, feet together, and leans the head back to look up at the sky while holding their arms out to the side), finger-to-nose, and more. 

Additionally, the officer will look for bloodshot or glassy eyes, slurred speech, an "unsteady gait" (instability while walking), flushed face, and a "strong" odor of alcohol.  Just because the officer notes the presence of these factors doesn't mean that the factors are truly present.  Sometimes video footage and booking photos can be used to challenge the officer's alleged observations.  Other times, the observations might be true, but not indicative of intoxication due to other factors.  Police are not doctors and are not scientists.  Although they have been trained to make certain observations and administer field sobriety tests, very few police officers understand the science behind impairment and BAC testing.

A Los Angeles DUI Lawyer can help you assert defenses and minimize the negative impact of bad evidence.  If you've been arrested for DUI, contact our office immediately for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES DUI LAWYER
Everyone knows a bad driver or two (or three).  Sometimes an inexperienced driver can misjudge a turn or lose control of a car.  An elderly person might have poor vision, hearing or concentration that makes driving more difficult.  Others might be impatient or careless by nature.  The point here is that people can be bad drivers, even when sober.

If police observe poor driving or there is a traffic accident, chemical tests for drugs and alcohol are often sought of the driver(s) involved.  Now, if the results of the test show high levels of drugs or alcohol, arguing this defense becomes more difficult.  But, often times people are charged with DUI based on their bad driving, not caused by drug or alcohol impairment.

People who take certain prescription medications are at particular risk of being wrongfully arrested for DUI.  Granted, sometimes prescription medications do impair someone's ability to drive.  Pain medications like percocet, oxycodone, oxycontin, hydrocodone, etc. and anti-anxiety medications like xanax and valium, in high doses, can make it difficult to safely operate a motor vehicle.  But just because some level of these drugs is present in the blood does not mean that they were too impaired to drive.  Paired with bad driving or an accident, a DUI charge is not unlikely, even though the bad driving might be due to other health conditions or poor vision, and not impairment.

In addition, young people who use recreational drugs and are still learning to drive safely, might be arrested based on drugs in their blood or urine which had stopped affecting them long before they started driving.  Marijuana, for example, is present in the urine for weeks after even a single use.  If a teenager who occasionally smokes marijuana is involved in a car accident, they are at risk of being arrested for DUI, even if they hadn't smoked within days of the accident.  Officers can falsely testify to having observed symptoms of intoxication, and all of a sudden, there is enough evidence to proceed on DUI charges.

The police officer will typically testify that the reason for their stop indicated to them that the driver might be under the influence of alcohol.  In many cases, the driving pattern is the strongest evidence of impairment.  While it may be persuasive to a jury that inability to perform difficult field sobriety tests does not prove an inability to drive safely.  Bad driving on the other hand does seem to correlate to an inability to drive safely.  Still, impairment is not the only cause of poor driving, and it takes effective cross examination to get the jury to see the other possible causes of an erratic move.  Additionally, this is a strong opportunity for your lawyer to show the jury how biased the officer is towards believing the driver is drunk, but exploring how little thought the officer gave to the other reasons someone might violate a traffic law, swerve or drift.

If you have been charged with DUI, contact our office immediately for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES DUI LAWYER
It is unlawful to drive in California with a Blood Alcohol Concentration (BAC) of .08 or higher.  Drinking before you drive, is not, in and of itself against the law.  Your BAC, while driving, must be below .08.  Alcohol takes some time to be absorbed into your blood and to affect your ability to safely drive a car.  It takes most people about 45 minutes from the time of their last drink to reach their highest BAC point.  Moreover, blood alcohol absorption can take several hours.  Accordingly, a BAC reading of .11, if conducted an hour AFTER a driver has stopped driving, there may not be strong evidence that the driver was at or above .08 while operating a motor vehicle.

DUI arrests are usually based on chemical tests conducted some time after the driver is no longer driving.  In fact, Title 17 of the CA Code of Regulations, the laws dealing with how officers must administer chemical tests during a DUI investigation, require a 15 minute observation period.  Additionally, with breath testing, multiple tests are conducted, usually 15-20 minutes apart.  These tests might very well show a higher BAC on the second test, one indicator of "rising" BAC. 

By the time an officer is finished asking a driver questions and having the driver perform field sobriety tests, the driver's BAC might be measurably higher than it was while driving.  Additionally, the physical activity associated with those field sobriety tests can accelerate a BAC rise.

If you drink two beers right before getting in the car to drive to a nearby party, the effects are unlikely to take hold while you are driving.  They might, however, lead to a high BAC by the time an officer gets around to giving you a chemical test.  Additionally, some DUI investigations are conducted after a driver has already arrived home.  Officers might get a report of a hit-and-run or erratic driving, only to locate the car parked at the suspect's residence.  BAC at that point in time is not necessarily probative of BAC while driving.  Not only could rising BAC be a factor, but the suspect may have consumed alcohol after driving.

Remember, the government has the burden of proving your intoxication while driving beyond a reasonable doubt.  A skilled DUI attorney and qualified expert witness can call into question the government's results and assert a rising BAC defense at trial.  If you've been arrested for DUI, contact our office immediately for a free consultation at 323-803-4352.

EXAMPLE:
Sarah is driving home from dinner at her favorite Santa Monica restaurant.  At dinner, Sarah drinks two glasses of wine and a piece of tiramisu, brushed with rum and coffee liqueur.  Right after dinner, she is driving home when she is pulled over for speeding on the 10 freeway by the California Highway Patrol.  The CHP officer smells alcohol on Sarah's breath, and asks if she has been drinking.  It is not a crime to drink alcohol and then drive, so long as the amount of alcohol does not impair the driver's ability to safely operate a motor vehicle or is above the legal limit of a .08 BAC.  Sarah admits to having two glasses of wine, but does not realize that there was alcohol in her dessert.

Next, the officer asks Sarah to perform a series of field sobriety tests, then asks her to sit down on the curb.  Sarah was wearing high heels and had difficulty performing the test, demonstrating poor balance.  About 15 minutes later, now 30 minutes from the time Sarah was last driving, the officer asks Sarah to blow into a Preliminary Alcohol Screening device, a hand-held breathalyzer used as a sobriety tests by officers on the scene of a DUI investigation.  The PAS device yields two results, one .075 and one .081, two minutes later.  Sarah is arrested for DUI and gives another breath sample at the station.  This time, the more accurate machine yields a result of .10.  The Santa Monica City Attorney's Office files DUI charges at Airport Courthouse.

Sarah's Los Angeles DUI Lawyer carefully interviews Sarah about her drinking pattern, what she ate, her health history, dental work, alcohol tolerance, general balance, and more.  It is clear to the attorney what happened.  Sarah drank (and ate) alcohol a very short time before driving.  It takes two hours for alcohol to be fully absorbed into the bloodstream.  Someone who drank alcohol within minutes of driving will not have been impaired by that alcohol yet.  The pattern in the different BAC results indicates that Sarah's BAC was actually lower than .08 at the time of driving, despite a .10 test result nearly two hours later.  Sarah's defense attorney calls an expert witness to explain the rising BAC defense in a way that the jury can understand.  Sarah is acquitted of all charges at jury trial. 

If you or someone you know has been arrested for DUI (or any other crime), contact the Law Offices of Nicholas Loncar for a free consultations with a Los Angeles Criminal Defense Attorney.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

IF YOU HAVE BEEN ARRESTED FOR DUI, YOU HAVE ONLY 10 DAYS FROM THE DATE OF YOUR REQUEST TO STOP AN ADMINISTRATIVE LICENSE SUSPENSION.  CONTACT THE DMV OR A DUI ATTORNEY IMMEDIATELY.

Everyone dreads dealing with the DMV.  Going in to register a car, replace a lost driver's license and the like can be a stressful, time-consuming experience.  Driving is an important privilege in California, and dealing with the DMV is a must.  DMV Administrative Per Se (APS) hearings are no different.  But like most trips to the DMV, this hearing is often unavoidable if you wish to preserve your driving privilege following an arrest for Driving Under the Influence (DUI).

If you've been arrested for DUI, and the officers suspect that your blood alcohol concentration (BAC) is above .08 (the legal limit in California), your driver's license will be taken away on the spot.  In its place, the officer will send you home with a pink sheet of paper that serves as your temporary license for 30 days.  Upon expiration of the 30 day temporary license, your driving privilege will be suspended for a period of 4 months.  And you will not be eligible for a restricted license (to drive to and from work/school/DUI program) until you have served 30 days of that hard suspension.  If you refused to submit to a chemical test, instead of a 4 month administrative suspension, you face a 1 year license suspension if you do not win your DMV hearing. 

Luckily, you have 10 days from the date of arrest to set up a DMV Administrative Per Se (APS) hearing.  You have a right to be represented by a California DUI Lawyer.  At this hearing, you, or preferably an experienced DUI attorney will be able to argue to preserve your driving privilege and stop the administrative suspension.  Even if you later win your DUI case in court, if you did not have an APS hearing, you will suffer a license suspension. 

If you did submit to a blood, breath, or urine test, the issues at your APS hearing will be:
1.  Whether the officer had reasonable cause to believe that you were driving in violation of VC sections 23152 or VC 23153 (Calfironia's DUI laws).
2.  Whether you were placed under lawful arrest.
3.  Whether you were driving a motor vehicle with a BAC of .08 or higher.

If you refused a chemical test, the issues at your APS hearing will be:
1.  Whether the officer had reasonable cause to believe that you were driving in violation of VC sections 23152 or VC 23153 (Calfironia's DUI laws).
2.  Whether you were placed under lawful arrest.
3.  Whether the police properly admonished you of the consequences of a chemical test refusal (that your driving privilege would be suspended for one year
4.  Did you actually refuse to take the test. (one refusal, even if you later offer to submit to the test, is enough to constitute a refusal and trigger the one year license suspension)

These are complex issues that many attorneys (and even many DMV hearing officers) do not fully understand.  You need a knowledgeable, passionate attorney to fight for you in your case.  If you've had your license taken away due to a DUI arrest, contact our office immediately for a free consultation at 323-803-4352.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar