The Necessity Defense in DUI Cases
Lucero, PC • September 23, 2024
Even if a jury is convinced you are guilty of a DUI, the necessity defense may negate a prosecutor's ability to obtain a conviction against you. In California, the necessity defense applies if: (1) the defendant acted in an emergency to prevent harm to himself or another; (2) the defendant had no other legal alternative than to commit whatever illegal act they committed; and (3) the defendant believed that act was necessary to prevent the purported harm. The necessity defense applies to DUI cases in many circumstances, such as, driving while under the influence to prevent their child from being taken, or to prevent harm to a loved one who was in danger at the time. The evidence required to establish a necessity defense is complicated and arduous; so, it is very important you retain the services of an experienced trial attorney to properly tell the story to the jury. If the jury is convinced that a person's actions were necessary to prevent the purported harm, unless the prosecutor can dispel that belief, they must find that person not guilty. If you have a DUI or other criminal case where you believe the necessity defense applies, contact our office immediately so we can preserve your future.
Contact our office at: 213-668-7569 to schedule a consultation.
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The California State Assembly recently passed Assembly Bill 366 which would mandate the installation of Ignition Interlock Devices for all persons convicted of driving under the influence, including first-time offenders. An Ignition Interlock Device prevents a car from starting unless and until the driver blows into the device with no detectable amount of alcohol on his or her breath. The devices' manufacturers would be required to adopt a specified fee schedule for the costs of the device, relative to and commensurate with, the convicted driver's income. Interestingly, the Ignition Interlock Device provider is responsible for absorbing the remaining costs not paid by the convicted driver. The mandatory installation of an Ignition Interlock Device and its concomitant costs to even first-time DUI convictions is a hefty penalty that drivers should be aware of. If passed in the Senate, which should be expected, the law could go into effect as early as January of 2026. Contact our office at 213-668-7569 to discuss how to handle your DUI matter.
The California State Assembly recently voted on and passed AB-1231, "The Safer Communities Through Opportunity Act". The bill must still pass through the Senate, but, if signed into law, would offer defendants charged with felonies the opportunity to enter into a term of diversion. Upon successful completion of the term of diversion, the defendant's case would be dismissed and the arrest for the alleged felony offense would be deemed to have never occurred. The maximum length of felony diversion is twenty-four months from the date of admission. The Court would impose certain requirement upon the defendant, which would be expected to be satisfied. If not satisfied, the Court may reinitiate criminal proceedings. Certain enumerated offenses are excluded from eligibility into diversion, including, but not limited to, offenses that would require the defendant to register per section 290 of the Penal Code, felony DUI, and felony domestic violence. As it stands, only felonies that are punishable by up to three years' imprisonment are eligible for diversion. The law could go into effect as early as January, 2026. If you are facing a felony charge and interested in diversion for your felony matter, contact our office to discuss.
In California, defendants charged with misdemeanors may file a motion for what is colloquially referred to as "judicial diversion". Beginning in 2021, judicial diversion permitted bench officers to divert misdemeanor cases. In so doing, the judge will require the defendant to complete several tasks over a specified period of time. Upon completion of the terms, the judge is required to dismiss the case; the dismissal will happen even if the District Attorney or other prosecuting agency disagrees or objects. Judicial diversion provides great benefits to defendants as they do not have to plead guilty or no contest to any crime. Certain misdemeanors are precluded from judicial diversion, including: 1. domestic violence charges; 2. any charge requiring the defendant to register pursuant to Penal Code section 290; and 3. driving under the influence. Judges are not required to grant a defendant's motion for judicial diversion. In the event such a motion is granted, however, the maximum term length is two years from the date of admission. If you are facing misdemeanor charges, contact our office today to discuss a possible grant of judicial diversion.
In civil matters, Requests for Admissions are a form of written discovery that require the responding party to admit or deny certain facts that are pertinent to the lawsuit. The party propounding the Requests for Admissions may serve them by way of e-mail (assuming the parties agree to this form of service) or U.S. Mail. If the responding party has an attorney, the subject discovery must be served on the party's attorney. Within thirty (30) days of service of the Requests for Admissions, the responding party must serve written responses under oath. If the responding party fails to respond within the thirty-day timeline, the Court may deem the matters contained in the Requests for Admissions admitted. This has severe impacts on the party as it may preclude the party from offering certain defenses or evidence favorable to them, or cause them to lose the lawsuit, altogether. As the issues involved and information sought in Requests for Admissions are particularly sensitive, you must have an attorney assist with this form of discovery.
After being placed on probation, a defendant may file a motion with the court to have his or her probation terminated pursuant to Penal Code section 1203.3. The reviewing magistrate is permitted to grant the motion "when the ends of justice will be subserved thereby, and when the good conduct and reform" of the probationer warrants it. If the motion to terminate probation early is granted, the probationer is discharged from probation, ending his or her probation sentence early. When negotiating a matter with the prosecutor, it is important that the defense attorney keep this is mind. Many times, when fashioning a plea agreement, the parties can agree that the prosecutor will not oppose a defendant's motion for early termination of probation; the non-opposition is usually conditioned upon completion of all of the terms of probation and payment of fines. The early termination of probation may then warrant the matter's expungement and dismissal per Penal Code section 1203.4. With so much riding on the outcome, it is necessary that early termination of probation be considered when litigating a criminal case. Contact our office to discuss terminating your probation early.
When charged with domestic violence, a judge will typically address the issue of whether a criminal protective order should be issued at the time of arraignment. A criminal protective order may be issued in two forms: 1. No contact; or 2. No negative contact. A "No contact" criminal protective order prohibits the defendant from contacting the person identified in the order, whatsoever. A "No negative contact" criminal protective order will permit the defendant to have contact with the person identified in the order, but prohibits negative contact such as harassing, annoying, stalking, threatening, and striking that person. Because there is usually a pre-existing relationship as between the parties identified in the criminal protective order (for example, husband and wife), the issuance of a "No contact" criminal protective order will have drastic consequences, including, but not limited to, forcing the defendant to move out of the home. After the issue is litigated by the parties' attorneys, the judge uses his or her discretion as to what type of criminal protective order to issue. With the stakes being so high, it is necessary to have a trained attorney at arraignment to guide a defendant through these issues. Contact our office at 213-668-7569 to strategize for arraignment and issuance of a criminal protective order.
The Fourth Amendment of the United States Constitution protects people against unreasonable search and seizure. A search or seizure is presumed unreasonable unless it is done pursuant to a warrant authorized by a magistrate. However, in California, law enforcement officers may seize a person's cellphone if they have probable cause to believe that it contains evidence of crime. At that point, because they are merely seizing, as opposed to searching, such seizure will oftentimes be deemed Constitutional. However, should the police wish to search the phone, ie., open it up and peruse its contents, such search will require a search warrant. Courts have indicated that because the seizure is less intrusive than a search, the seizure of the cellphone is acceptable assuming the officer does indeed have probable cause to believe it contains evidence of crime. Thus, even if the officer waits for a period of time to obtain a search warrant, the seizure will not later affect the officer's ability to search. The longer the officer waits to obtain the warrant to search, the greater the likelihood the seizure and subsequent search are tainted. If your cellphone has been seized by the police, contact our office today to discuss your plan of attack.