DUI Special Report

Santa Cruz and Monterey Criminal Defense Lawyer

NEWSLETTER
courtesy of JOHN R. CONIGLIO
Attorney at Law

Monterey Office:
490 Calle Principal, Monterey, CA

Santa Cruz Office:
4630 Soquel Dr., Suite 5, Soquel, CA

831-373-3151 from Monterey County
831-475-3151 from Santa Cruz County
Facsimile (831) 373-0157

1-888-475-3151 on Call
24 Hours / 7 days per week

*DISCLAIMER: These materials were written by John R. Coniglio, Esq., for information only. This information is not legal advice. It is not intended to create, and, is not, an attorney-client relationship. Do not take action based upon this information unless you consult with an attorney. In addition, this material may not be current.

1. You are being prosecuted twice!

The district attorney's office is attempting to convict you of a crime and the Department of Motor Vehicles (DMV) will suspend your driver's license unless you take action.

The DMV's prosecution against you started when you were arrested. The police officer probably took your actual license and gave you a pink Notice of Suspension and Temporary Driver's License (Form DS-367). The DMV wants to suspend your license from four (4) months (first offense with blood alcohol level of .08%) to three (3) years (third or more offense with chemical test refusal) as a result of your DUI arrest.

The action by the DMV is entirely separate from the criminal case against you. Even if the criminal charges are dismissed you may still have your license suspended by the DMV!

2. How to save your driver's license: Warning! You must request a hearing within 10 days of your arrest!

The DMV form that the police officer handed to you states in bold that you have 10 days to request a hearing. If you do not request a hearing within 10 days of your arrest, your chance to save your license will be gone and you may never have a real chance to fight it.

To prevent the DMV from suspending your license until after the hearing, you must request a hearing within 10 days of your arrest. This will stay the suspension until the hearing is held and a decision is made. This is probably the most important step you can take to protect your license.

You should have an experienced DUI attorney handle this for you (attorneys have a direct line to the DMV and can do this for you quickly). If you contact my office, we will handle it for you for free.

3. You can win your DMV hearing: It's worth fighting the DMV!

Contrary to what it states on the DMV form, you do not have to show that the suspension is not justified. This statement is misleading and an inaccurate statement of the law. It is intended to dissuade you from requesting a hearing. The burden is on the DMV to show that the suspension is justified.

If you hire an experienced and knowledgeable attorney, the odds of winning the hearing increase depending upon the lawyer's skills, hearing location and hearing officer. Even if you think your case is hopeless, you may be able to negotiate when the suspension will run. Please call me if you need to keep driving.

4. Don't plead guilty at your first court appearance!

The second case you will have to defend against is the criminal case. The prosecutors and judges handle a lot of DUI cases. This is done in an assembly line manner.

The procedure: Your first court appearance is typically scheduled within a week to one (1) month after you were arrested. This first appearance is for the arraignment. You can either enter a plea of guilty or not guilty. There will be pressure placed on you by the judge and the district attorney's office to enter a guilty plea. Don't do it. You can request a continuance to find a lawyer and the hearing will be rescheduled, usually in a week or so. You should not enter a plea until you have at least had a qualified attorney review your case with your interests in mind. In fact, if you had a blood test, the district attorney's office will probably not even have the test results at the arraignment.

After the arraignment, the next step is usually a pretrial conference, where motions and a trial date may be set. Don't worry. Most cases don't go to trial, but setting a trial date lets the prosecutor know you are serious about fighting the charges. The more court appearances there are, the more opportunities there are to plea bargain. However, sometimes if the prosecutor is not willing to deal fairly with you, a trial may be necessary.

5. What happens if you are convicted or just want to plead guilty?

If you are convicted for a first offense within 10 years and are granted probation usually for five (5) years, you will have to attend an alcohol program; pay a fine with penalties and assessments, which add up to about $2,000; and serve up to six (6) months in jail for a first offense.

The punishment for a second DUI is far more severe than for a first DUI. In addition to increased jail time and increased fines of up to $3,500, you will have to attend a multiple offender program for 18 months, probably install an ignition interlock device, and you stand a real chance of losing your license for a year.

The punishment for a third offense DUI usually results in substantial jail time from 120 to 365 days.

Jail time varies from county to county and from judge to judge. Please contact me if you are concerned about jail time. There are alternatives to jail.

What if I did not have any alcohol or very little alcohol in my system?

In California, it is illegal to drive a motor vehicle while under the influence of alcohol and/or drugs. There is no magic number. The prosecutor will argue that even persons below a .08% blood alcohol content (bac) are "impaired." It is a separate crime to drive with .08% bac or higher. Additionally, if you consumed any psychoactive drug within 30 days of your arrest and a blood or urine test was taken, this alone could subject you to prosecution for driving under the influence of drugs. If this has happened in your case, you should consult with a lawyer who handles these types of drug/ DUI cases regularly.
What if my blood alcohol level was .15% or higher?

If your blood alcohol content (bac) was .15% or higher, this can be considered an aggravating factor and will probably increase your jail time, increase the length of the alcohol classes up to nine (9) months, and the judge will most likely require that you install an ignition interlock device on any car that you own, operate or have access to for up to two (2) years. If your bac is high, you will need a good attorney to make sure you are not punished too harshly.

What if police say I refused the test?
Many people accused of a DUI get confused. The police often misinform people about their rights. If you are accused of refusing a chemical test after being arrested for a DUI, it increases the penalties in the criminal case and can mean the loss of your driver's license for a year. If this happened to you, you will need a good lawyer to go to bat for you
What if I am under 21 years old?
If you are under 21 years old, you are not allowed to have any measurable amount of alcohol in your system. This is referred to as the zero tolerance law. If you had .01% alcohol in your system, you could lose your license for a year.
What if someone was injured in an accident?
If you have injured someone other than yourself in an automobile accident involving alcohol, you are in serious trouble. An injury accident can result in a felony charge under Vehicle Code section 23153; however, Vehicle Code section 23153 can also be charged as a misdemeanor. If convicted of a DUI with injury charge, you can be faced with the possibility of jail or prison time, loss of your driver's license for at least a year, fines and alcohol classes, not to mention the possibility of a civil lawsuit.
What about my insurance?
You can expect to pay $1,500 to $2,200 per year for three (3) years, over what you are now paying for automobile insurance as the result of a DUI conviction.

We can often work with insurance companies to help you with the cost of insurance. Please call us to find out how this can be done.
What if I am an alien?
If you are concerned, contact an immigration attorney before you do anything. We regularly consult with immigration attorneys on behalf of our clients.
Will a DUI conviction/suspension affect my job?
Some professions may have reporting requirements. It is always best to consult a lawyer if you are concerned that a DUI conviction and/or suspension may impact your employment.

WARNING: COMMERCIAL DRIVERS!
Did you know that the California Legislature recently changed the law that if a commercial driver gets a DUI he/ she will lose the commercial privilege for one (1) year for a first offense DUI even if he/ she was not in the commercial vehicle at the time. There is a lifetime ban of a commercial license for a second DUI conviction. If you hold a commercial license, please contact a qualified DUI lawyer to discuss your options.

6. It may be worth fighting the case!

Depending upon the facts of your case, you may have a better chance of not being convicted of a DUI than you initially thought. If your blood alcohol content was relatively low, you stand a good chance of not being convicted of a DUI. If your blood alcohol level is a lot higher that .08%, you will need a good lawyer to go to bat for you.

What is a "wet/reckless"?
Dismissal of all DUI charges is routine when you plea bargain to a lesser charge, such as alcohol related reckless driving, also known as a "wet reckless." A "wet reckless" conviction may be as bad as a DUI conviction, since it counts as a prior conviction if you are arrested again later. However, it could be a good deal for you depending upon the facts of the case.

7. Hiring a good lawyer is always to your advantage!

Remember the district attorney is a lawyer. Having a lawyer on your side, who is looking out for you, is the safest way to make sure you are treated fairly throughout the entire process. Be careful. There are many slick sales people who will take your hard earned money and then plead you guilty to the DUI charge. You need an experienced lawyer who will fight for you.

If you have been charged with a misdemeanor DUI, a lawyer can take care of all the court appearances without you being there!

You never have to go to court if you do not want to!
Will the lawyer personally handle your case?

You will need a lawyer who will personally work on your case. There many big city lawyers who advertise locally that they can represent you. Most of these lawyers refer the case out, at a discount, to another lawyer who goes to court and you will never really know who is handling your case. Again, make sure the lawyer you hire will personally handle every aspect of your case. You and your case deserve a lawyer who will provide the highest level of professional service.

Ask the lawyer if he or she has the manual for the new breath machine and has received training on the machine. If he or she does not have a manual, find another lawyer FAST. This is someone who does not keep up with DUI science.

Does the DUI lawyer you are interviewing have a real office or are they practicing out of a post office box or Mail Boxes Etc.?
BE CAREFUL. Many lawyers who send out mailings do not have an office or a staff. You deserve to be represented by someone who has an established practice and who will be in practice five years from now. Hiring someone who is using a post office box or a virtual office may not be in your best interest because they may not be around in the future when you may need them again.
You need a lawyer who is known by the prosecutors, the judges and the court clerks.
A good local lawyer will make sure your case does not get assigned to a particular judge that punishes DUI offenders more severely than other judges. An out-of-town lawyer will not know which judges to avoid.

Do not fall for the out-of-town statewide lawyers. You will pay a lot more of your hard earned money to an out-of-town firm which then most likely will hire a local lawyer at a discount. When things have gone wrong or the out-of-town law firms need advice, they have called me for help because they know where to turn for local expertise.
Does the lawyer understand the science behind DUI prosecutions?
A DUI case is almost entirely science based. There are some basic concepts that are relatively easy to understand but most lawyers who advertise that they handle DUIs do not have a complete understanding of the science.

Ask them to explain the fuel cell technology.

Ask them to explain which devices the local law enforcement agencies are using to test a person's breath.

Ask the lawyer if he or she has the manual for the new breath machine and has received training on the machine. If he or she does not have a manual, find another lawyer FAST. This is someone who does not keep up with DUI science.

Ask the lawyer if he or she has documentation regarding the local Department of Justice Laboratory issues with the California Department of Health as well as all the logs for the new machines. A careful review of the logs for the breath machines may reveal that some machines have had problems and have been sent back to the manufacturer for repairs. This could be the key to your whole case. If the DUI lawyer you are interviewing does not have at least a year's worth of the maintenance, calibration and operations logs for the breath machines, this person is not interested in thoroughly investigating DUI cases.

Furthermore, in a recent trial, one of my experts determined that the California Highway Patrol (CHP) Preliminary Alcohol Screening (PAS) device coordinator was using the same solution to calibrate the machines that was used to do accuracy checks. This procedure was producing unreliable and artificially high results, and was opined to be scientifically unreliable.

If the DUI lawyer you are interviewing is not aware of these facts, find another DUI lawyer fast.
Does the DUI lawyer understand field sobriety testing?
Does the DUI lawyer understand what each field sobriety test is supposed to detect? There are only three (3) standardized field sobriety tests that have been scientifically validated: the Horizontal Gaze Nystagmus Test, the One Leg Raise, and the Walk and Turn. Chances are you were probably only given one or two of these tests with some other non-standardized tests, .e.g., alphabet, counting numbers, finger to nose, etc.

True field sobriety testing requires that the officer score or grade certain clues or ques. The California Highway Patrol (CHP) DUI Enforcement Manual requires that the arresting officer fill out a score card. Chances are this did not happen in your case and you will need an experienced DUI lawyer to review the reports to determine if your performance on the field sobriety tests was consistent or not with a specific blood alcohol content (bac) level. Standardized field sobriety tests do not measure impairment. You deserve a lawyer who has the validation studies and understands them.

There have been issues with the local Department of Justice lab as well as some of the breath machines. Only an experienced DUI attorney who has his or her cases reviewed by an expert will be aware of this fact.

Does the lawyer have access to experts?
Lawyers do not know it all. They must rely on experts. DUI prosecutions are almost entirely scientific. For example, the amount of alcohol in your blood was determined with a scientific test. Sometimes these tests are not performed accurately. A good lawyer will have access to experts who can analyze the records of the breath machine, retest and type your blood. Before you hire a lawyer, you should ask him or her if they routinely use experts and if they have their client's blood retested and typed by an independent laboratory.

The collection and testing to determine the amount of alcohol in your blood is strictly regulated by law. More often than not, the strict procedures outlined in California Code of Regulations, Title 17, are not followed. A fair amount of the time, there has been an error by the police officer, the lab where your blood was sent, or in the calibration of the breath machine. Only a trained expert or experienced attorney can tell if this has occurred in your case. This could be the key to your whole case.

Again, there have been issues with the local Department of Justice lab as well as some of the breath machines. Only an experienced DUI attorney who has his or her cases reviewed by an expert will be aware of this fact.
Will the lawyer keep out illegally seized evidence?
You have constitutional rights. If you have been arrested and the evidence has been seized in violation of your constitutional rights, your attorney can ask the court to exclude this evidence. It is important to ask the attorney if he or she routinely makes these motions pursuant to California Penal Code section 1538.5.

You and your case deserve an attorney who understands the law in this area. A good way to find out is to ask the attorney if he or she has ever done appellate work with regard to search and seizure law. Again, this could be the key to your whole case. You should talk to an experienced DUI lawyer to see if this motion should be made.
Has the lawyer ever handled a serious felony DUI case?
Before you hire a lawyer to represent you, you should ask if he or she has ever handled a serious felony DUI case. If so, he or she probably understands the issues in DUI cases.
Does the lawyer work with local drug and alcohol treatment centers?
Many people struggle with drug and alcohol addictions. Sometimes the only way to avoid going to jail is to enroll in a drug and alcohol treatment program. If you think you need help in this area, make sure the lawyer you work with has a good relationship with treatment centers and programs familiar to the courts.
Will the lawyer represent me for the entire case?
Most lawyers only represent their clients through the conclusion of the criminal and DMV proceedings. After conviction, a DUI case can have many confusing and time consuming aspects, ranging from enrolling in an alcohol program, enrolling in a work alternative program, home confinement, ignition interlock, as well as driver's license and insurance issues. You should hire a lawyer who will handle the entire case from beginning to end-including coordination of enrollment and completion of the DUI classes, work alternative program, home confinement program, and ignition interlock-and advise and counsel you with regard to the DMV. You deserve a lawyer who is an expert on the DMV to make sure your driver's license is returned to you, if even on a restricted basis, in the shortest time possible.

Remember, you also get what you pay for. If you are serious about saving your license and/or fighting the charges, you should be prepared to pay a fair price for your lawyer’s services.

Will the lawyer sue the DMV if necessary to save your driver's license?
Be sure to find out if the lawyer you are consulting with regularly files civil suits against the DMV on behalf of his or her clients. If the lawyer does not seek judicial review referred to as "mandamus" regularly, the lawyer probably does not how to make a good record and may not keep up with the latest developments in the law. You and your case deserve a lawyer who will take every step necessary to save your driver's license.
Does the lawyer belong to any organizations or subscribe to publications regarding DUI defense?
A good DUI lawyer is always educating himself or herself on the latest developments in the law. Make sure your lawyer subscribes to publications that deal with DUI law. It is a good idea to hire an attorney who is a member of an organization like California DUI Lawyers Association, which is committed to seeking justice for persons accused of DUI violations.
Will the lawyer evaluate my case for free and tell me truth about my case?
It is unethical for a lawyer to guarantee the outcome of a case. If your lawyer promises you a specific result, he or she is behaving unethically and you should find another lawyer to represent you. If the lawyer states or advertises that they "specialize" in DUI defense, you should be very concerned because the State Bar of California does not have a DUI "specialization."

Most attorneys will offer you a free consultation or evaluation of your case. You should take them up on it but do not feel pressured to hire them. Bottom line: You should at least consult with an attorney before your first court appearance.
Will the lawyer accept credit cards?
In today's society, even lawyers are flexible in the manner of payment and may allow for payment plans and credit cards. Ask if the lawyer takes payments or credit cards. You should find a lawyer who will work with you regarding the manner of payment.

Remember, you also get what you pay for. If you are serious about saving your license and/or fighting the charges, you should be prepared to pay a fair price for your lawyer's services.

Successful Litigation Record

The facts of your case may be different that those listed below. As such, you should not take action based upon the examples listed below. However, the results listed below are from actual clients' cases litigated by me in Monterey, Santa Cruz and San Benito counties. This list simply demonstrates there is hope in every DUI case.

About John R. Coniglio, Esq

I was born and raised in Monterey, Calif. I am fourth generation local. I graduated from Monterey High School. I then graduated from Brigham Young University and attended law school locally, and then transferred and graduated in the top 10 of my class from San Joaquin College of Law.

I have worked on both state and federal criminal cases. I have worked on hundreds of DUI cases, ranging from standard DUIs to DUI death cases, including DUI murder and involuntary manslaughter. I have appeared on local news stations as a criminal defense lawyer and have worked on cases featured on national news networks such as CNN and A&E.

It is my regular practice to have my client's case reviewed by an independent expert and to have the blood retested and typed. I personally handle each DUI case from beginning to end. I am often consulted by other "DUI" attorneys and sometimes judges for my expertise in the DUI field.

You have probably received information from other "DUI" lawyers. In my opinion, very few of these "DUI" lawyers have any real experience and, more often than not, I am consulted on a case after things have gone wrong. If I am retained as your attorney, both the DMV and local prosecutors know they are in for a serious fight. I take DUI cases to trial and have won. If am hired as your DUI lawyer, I am committed to providing the highest level of representation.

I subscribe to DUI related materials and am on the Board of Directors of the California DUI Lawyers Association. I have been retained by law enforcement to defend DUI cases against their loved ones. I have also been retained by lawyers, contractors, real estate brokers, teachers, firefighters, truck drivers, military officers and doctors. I am also referred cases from other leading DUI defense attorneys throughout the state of California.

I have received training on both the Draeger 7410 "EPAS" breath machine and the Alco-Sensor IV breath machine, and own the latest version of the Alco-Sensor IV. Both of these machines are currently in use in Monterey and Santa Cruz counties. I am not aware of any other local lawyer who has gone through this training.

Chances are I have handled a case similar to the one you currently face.

Please call if you would like a free case evaluation or have any questions regarding your DUI arrest.

(831) 373-3151 from Monterey County, (831) 475-3151 from Santa Cruz County
(888) 475-3151 24/7 in case of an emergency
Visit: www.johnrconiglio.com*, Email: john@johnrconiglio.com

I am available after hours and take Saturday appointments in both Monterey and Santa Cruz counties. My fees are competitive and I charge a one-time flat fee in most cases.

A NOTE FROM THE AUTHOR

I hope this Monterey Bay DUI Special Report has helped answer some of the questions you may have had regarding your DUI case. Of course, all the answers cannot be contained in one report. If you have any questions about your case and would like a free and honest evaluation of your case, you must contact me within 10 days of your arrest or I may not be able to help you as much as you deserve.

For your convenience, I will schedule after hours and Saturday appointments. You can email me 24 hours a day, 7 days a week. We offer competitive rates and payment plans in some cases. My staff and I are here to help you.

On-Call 24 hours

Representing clients in Monterey County, Santa Clara County, Santa Cruz County, and San Benito County, including the communities of Monterey, Carmel, Pacific Grove, Pebble Beach, Seaside, Salinas, King City, Watsonville, Santa Clara, Santa Cruz, Scotts Valley, Capitola, Aptos, Soquel, Hollister, California, Santa Cruz, Capitola, Scotts Valley, Boulder Creek, Felton, Aptos, Rio Del Mar, Watsonville, Corralitos, Live Oak and Los Gatos.