Robert Lee Hamilton Blog

Drunk Driving penalties in California are set by statute and can be highly complex. The range of sentences are established by law with sentence enhancements applied to the following: Having a Prior Conviction within Ten Years (runs from the date of offense to date of offense).  Prior Convictions - For defendants having one prior drunk driving conviction (DUI or .08% or more) within the past 10 years, the minimum jail sentence, DUI school and license suspension penalties are increased. Two priors within ten years increases the penalties even more; and three "priors" within 10 years may result in felony charges punishable by state prison. Note : On January 1, 2005, the time in which a prior offense could be used against you "retroactively" increased from 7 years to 10 years (our courts currently hold this does not conflict with the U.S. Constitution's prohibition against Ex Post Facto laws). Example: DUI arrest & conviction in 1996 -- another in 2004 (no prior offense).Third DUI arrest & conviction occuring in 2005 would result in you being charged with two priors. Speeding 20 or 30 mph over the limit Speeding and Reckless Driving - This enhancement involves driving in excess of a specified speed while under the influence of alcohol or over the .08 percent Blood Alcohol Concentration [BAC]. California, enhances the penalty for drunk driving when a defendant also drives 20 mph over the speed limit on a surface street or 30 mph over the speed limit on a freeway. Having a child under 14 in the car Child Endangerment - Increased penalties apply when a minor (an individual under 14 years of age) is a passenger in the vehicle and the driver is deemed to be under the influence. Accident or Injury Accident or Injury - Causing property damage while under the influence can trigger more severe sentencing and may result in a seperate offense. When personal injury involved, the offense can be elevated to felony. Having a blood-alcohol reading over .20% [.15% is discretionary] Refusing to submit to chemical testing Miscellaneous Statutes: Cal Veh Code § 15302 list the offenses for which the privilege to operate commercial vehicle may be terminated for life: A driver of a commercial motor vehicle may not operate a commercial motor vehicle for the rest of his or her life if convicted of more than one violation of any of the following: (a) Subdivision (a), (b), or (c) of Section 23152 while operating a motor vehicle. (b) Subdivision (d) of Section 23152. (c) Subdivision (a) or (b) of Section 23153 while operating a motor vehicle. (d) Subdivision (d) of Section 23153. (e) Leaving the scene of an accident involving a motor vehicle operated by the driver. (f) Using a motor vehicle to commit a felony, other than a felony described in Section 15304. (g) Driving a commercial motor vehicle when the driver's commercial driver's license is revoked, suspended, or canceled based on the driver's operation of a commercial motor vehicle or when the driver is disqualified from operating a commercial motor vehicle based on the driver's operation of a commercial motor vehicle. (h) Causing a fatality involving conduct defined pursuant to Section 191.5 of the Penal Code or in subdivision (c) of Section 192 of the Penal Code . (i) While operating a motor vehicle, refuses to submit to, or fails to complete, a chemical test or tests in violation of Section 23612. (j) A violation of Section 2800.1, 2800.2, or 2800.3 that involves a commercial motor vehicle. (k) Any combination of the above violations or a violation listed in paragraph (2) of subdivision (a) of Section 13350 or Section 13352 or 13357 that occurred while transporting a hazardous material. Cal Veh Code § 13352 (2008) § 13352. Driving under the influence or engaging in speed contest; Suspension, revocation or restriction of license; Application and conditions for reinstatement

Field Sobriety Tests (FSTs) -- IN GENERAL  These are not really tests at all; rather, I like to think of them as highly subjective Roadside Agility Exercises that are designed for failure. In theory, these tests were designed to simulate and evaluate your "divided attention" abilities, a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer's satisfaction, and pay the price with a DUI arrest. Note: should you fail the roadside (non-chemical) breath test (PAS), which is also considered a FST -- you will most likely be arrested regardless of how well you performed (or think you performed) on the other tests. DO YOU HAVE TO SUBMIT TO THE FSTs? NO! What most people don't know is that these tests/exercises are not mandatory! However, the officer who stopped your car won't tell you this and will use the test results to justify your arrest and accumulate evidence to be used against you in court or at the Department of Motor Vehicles. Remember, it is your right to politely refuse to accept an invitation to submit to any or all Roadside Agility Exercises. HOW DO THEY WORK? Drivers get scores -- points against them for swaying when they stand on one leg; for using their arms for balance; for failing to follow instructions; etc. More points indicate impairment. In order to make the test look scientific, an arbitrary magic cutoff number is chosen. Thus, once the magic number is obtained (clue), the officer will write that signs of impairment were present.Changing the cutoff level does not change the basic accuracy of the tests -- it just cause more or less innocent drivers to be arrested - or lumped in with the impaired drivers. According to NHTSA, officers who correctly use SFSTs still arrest amost 30 percent of the innocent drivers they assess. WHAT IF YOU ARE EVALUATED FOR DUI? EXERCISE YOUR RIGHT TO REMAIN SILENT: In California, other than questions about your identity (i.e., driver's license, registration, and proof of insurance), you are not required to make any admissions or statements regarding drinking and driving to a police officer. Prior to arrest, if you are questioned for DUI or drunk driving, you are not in custody for purposes of Miranda warnings. By politely refusing to answer any of the officer's questions concerning the DUI/DWI investigation, either before or after arrest, there will be little or no statements that can be later used against you in court. Saying too little is the safest bet, because saying too much is almost guaranteed to be used against you. If the officer asks if you have been drinking, simply say, "on the advice of counsel, I choose to exercise my 5th Amendment Right and remain silent." The officer will want to ask you questions about where you've been, what you've eaten, how many alcoholic beverages you drank, what were you drinking, when you last slept, etc. The officer is gathering information to make a quick determination of your drinking pattern, and with this information, the officer can determine if he/she should test your blood alcohol level as soon as possible or wait until you fully absorbed the alcohol in your stomach. By answering the officer's questions you are helping the officer gather evidence against you – which "can and will" be used against you in court. Again, politely say “Officer, I choose to exercise my 5th amendment right and remain silent.” This is important becuause at trial, the prosecutor can ask the officer to tell the jury portions of what you said - something the defense is precluded from doing. Thus, selective, misunderstood, or misconstrued evidence about what you said is often all a jury ever gets to hear. FIELD SOBRIETY TESTS (FSTS): Do not let the officer check your eyes and do not agree to take other Field Sobriety Tests. Always be polite, but say, "on the advice of counsel, I elect not to participate in any field sobriety test." Many law enforcement officers will say, "if you pass the FSTs, you will not be arrested." Some officers will say, "if you refuse to take the FSTs, you will be taken to jail." Some officers will even threaten to inform the court if you refuse to take the FSTs. Some officers will tell you that your refusal can be used as evidence of your guilt. Do not allow the officer to trick or intimidate you into taking any FST. FSTs are completely voluntary and it is your right not to take them. Electing not to take them cannot be used against you . Remember : If you've been drinking and the officer smells alcohol on your breath, you will most likely be arrested regardless of your performance on any FST. DO NOT SUBMIT TO A ROADSIDE PRELIMINARY ALCOHOL TEST (PAS): If you are older than 21 (or not on probation for a prior DUI), you have the right refuse to take a preliminary alcohol screening test. This on scene breath test is completely voluntary and you have the absolute right to refuse this type of breath test. IMPORTANT: IF ARRESTED -- YOU MUST CHOOSE BETWEEN A BLOOD, BREATH, OR URINE TEST. You DO NOT have the right to refuse to take a chemical test (blood, breath, or urine test) AFTER you have been arrested for DUI - AND doing so will create more problems for you with both the DMV and the court system. If you submitted to the PAS test on the roadside and you are over age 21, that test DOES NOT satisfy your "implied consent obligations" to take a chemical test after you are arrested. This can be very confusing, especially now that the some Police Departments are using "in-car" breath testing devices that they administer AFTER you have been arrested. Note : If you are on probation for a previous DUI - Drunk Driving conviction, you have likely given up your right to decline the PAS device test. If on probation, be sure to review the terms and consult a DUI - Drunk Driving defense attorney. SHOULD YOU CHOOSE A BLOOD TEST? Note : Though usually unavailable, Urine is the least accurate and least invasive. If arrested, choosing a blood test precludes additional tests from being taken and prevents the officer from knowing your breath alcohol concentration, which prevents the officer from writing his/her arrest report with your BAC level in mind and potentially influencing or embellishing facts to support the arrest. Blood and urine can also be re-tested by an independent lab. Example: driver, weaving within his lane, had slurred speech, stumbled when he walked, fumbled in his wallet while getting his driver license, etc. - could all easily be embelished upon simply because the officer knew your breath alcohol concentration before writing his report. If you choose a blood (or urine) test, the arresting officer will not know the results of the test for weeks. The arrest report will more than likely have been written prior to the blood test results being available. The arresting officer's report will likely be more objective and honest because the officer wrote it without knowing the level of your blood alcohol concentration. In addition, if you choose a blood test, an experienced DUI - Drunk Driving defense attorney will have the opportunity to have your blood re-tested by an independent laboratory to verify the result as well as check for proper preservative levels, the presence of bacteria, etc. If you choose a breath test, the breath sample is not saved and therefore can not be retested. Also note that things can go wrong with the blood sample, such as bacteria growth, coagulation, etc. IMPORTANT: Be sure to take only one test! Some officers will talk an arrestee into taking a breath and a blood test. That's like having two smoking guns. Take one test only. BE POLITE, RESPECTFUL, AND COURTEOUS It may not seem like it at the time, but the more cooperative and less antagonistic you are with the arresting officer, the better you will fare. Arguing, fighting, spitting upon, or cursing at the officer will NOT get you out of being arrested, and could result in additional charges against you that will result in your having to post bail to get out of custody, as opposed to being released on your promise to appear in court. INSIST ON YOUR RIGHT TO THREE COMPLETED PHONE CALLS AND MAKE A RECORD OF ALL EVENTS: Penal Code § 851.5 entitles an arrested person 3 completed telephone calls. Call your cell phone and leave yourself a voice message to record your voice, that way if your speech is not slurred the recording can be used as evidence in your defense. You should also call DUI - Drunk Driving defense attorney Robert Lee Hamilton at (530) 244-1755 where you can leave a voice message 24 hours a day, 7 days a week. Also remember to make a detailed record of all the events that occurred before being stopped, up to and including being released from custody. Do so while it is fresh in your mind. This information may be helpful in defending your case.

When You're Stopped For DUI In California If you drink, wait at least 12 hours before driving. If stopped by a policeman: Provide him/her with your drivers license, proof of insurance and vehicle registration. DO NOT ANSWER ANY QUESTIONS BEYOND WHAT IS ON THOSE DOCUMENTS. DO NOT TAKE ANY BALANCE, COORDINATION OR MENTAL AGILITY TESTS (FSTs) DO NOT TAKE ANY PORTABLE BREATH TESTS (non-chemical test) unless you are on probation for a prior DUI or under 21 years old.5. IF ARRESTED, INSIST UPON A BLOOD OR URINE TEST Remember, the police will do and say anything to get you to deviate from this advice, but remember, they want to arrest you - and if they saw you drive and smelled alcohol on your breath - you are going to be arrested and you are not going to talk your way out of it. You cannot prove the breath test(s) are inaccurate, so DON'T TAKE THEM. Accept the fact that you are going ot be arrested and make them do it with as little evidence as possible. Make them arrest you with nothing more than a blood test - because that will inhibit their ability to write a report that makes your symptoms fit your breath test scores. By making them write their report without the assistance of a breath test, neither of you will have an estimate of your BAC results, and you will not have to take the officer's word about the results. Note: Their labs make daily mistakes and you can have your blood independently tested (something that cannot be done with a breath test). FIELD SOBRIETY TESTS Field sobriety tests are used by police officers to establish probable cause for making a DUI/DWI arrest. These tests, both in theory and practice, are not as reliable as law enforcement officials would like the public to believe. That's why it is important to hire a qualified defense lawyer to represent you upon being arrested or DUI/DWI (i.e., drunk driving charge). RELIABILITY OF THE BREATHALYZER Breath analysis is probably the most commonly used technique by law enforcement to attempt establishing that a suspect was driving with a prohibited amount of alcohol in their system (i.e., .08 or above - or simply impaired "to an appreciable degree"). The reliability of this test has been called into question. Some scientists and experts contend that breath tests, as they are currently administered by police, are very inaccurate [as far as their ability to accurately measure blood alcohol content (BAC)]. Some courts have even thrown out breath test results because of their unreliability. In 2002, the Washington Supreme Court ruled that a woman could not have her driver's license suspended because of reliability problems associated with the alcohol breath test. The woman challenged the administrative suspension of her driver's license, by taking issue with the reliability of the thermometers used in breath-test machines. Thermometers are used to test the machine's accuracy. Operators test the machines by taking a reading from an alcohol/water mixture. The mixture must be kept at 34 degrees centigrade, which is where the thermometer comes in. The Supreme Court ruled that because evidence was not produced to establish that the thermometer used on the machine was certified as reliable, her license could not be suspended. At least one court has even reversed DUI convictions on the grounds that breath tests are inherently unreliable. In State v. McGinley, 550 A.2d 1305 (N.J. Super. 1988), the New Jersey Superior Court, Law Division, considered the consolidated appeals of four defendants whose convictions involved Breathalyzer tests. Although noting that the New Jersey Superior Court had essentially taken judicial notice that the Breathalyzer models "900 and 900A are scientifically reliable," the court nevertheless felt free to consider new scientific evidence not previously available. The Court said that new scientific evidence showed: The breathalyzer is designed to test persons having a 2100/1 blood-breath ratio. Such ratios in fact vary from 1100/1 to 3200/1. The variance can produce errors in test results. In fact, high readings were taken in 14% of the population. The temperature of the machine itself varies, thus affecting test results. Body temperatures in fact vary between human beings, also affecting test results. Hematocrit, or the solid particles in whole blood, vary (particularly between males and females, which also affects test results). Even with the inherent unreliability of various breath testing machines, errors can be magnified when police fail properly follow procedures, such as in calibrating a machine, obstructing the port, testing blank specimens, or making sure a suspect is not affected by his or her ambient environment.

Scenario : You get a DUI in California -- then move to another state where you satisfy the terms of your court ordered probation by waiting out the suspension period and compeleting an out-of-state DUI Program. You then find that regardless of whether you move back to California, no DMV in the country will give you driver's license. What are your options? Answer : You have two options (1) stay in California and complete the alcohol classes, or (2) move to another state and waive your "privilege" to drive in California. So long as you live in California, Calfiornia DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation. Note : DMV & Court are separate.  If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a "1650 waiver packet." They will only mail this packet to the licensee at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such). This waiver allows out-of-state licensees to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver. One can only qualify for the 1650 waiver once in a lifetime as of March of 2005. The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable California DUIP class.

Assuming there are no State or Federal restrictions on owning a firearm registered to you and you do not have a concealed carry license – how do you move the firearm from one location to another in California? In California a concealed firearm (for which you do not have a concealed weapons permit) can only be legally transported via a motor vehicle by carrying it: 1) while in lawful possession of the gun (i.e., with permission of the lawful owner, etc.); 2) while the gun is unloaded; and 3) while the gun is locked in the vehicle's trunk or in a separate locked container other than the utility or glove compartment. If the vehicle does not have a trunk, it must be carried in a "locked container" separate from the utility or glove compartment. "Locked container,” means a secure container, which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device. This includes the trunk of a motor vehicle, but does not include the utility or glove compartment. See California Penal Code section 16850. It is legal to carry ammunition within the same motor vehicle or compartment of the vehicle in which the gun is located, so long as the gun is not loaded and the ammunition is not attached to the gun in any manner. Important Note: It is illegal to carry a gun without a permit, even when the gun is in a locked container of your car, for general purposes such as self-defense. Citizens are only allowed to transport firearms from one specific location to another (i.e., such as to a shooting range, gun shop, hunting, taking it home, etc). Gun Laws are complex and easy to violate. Make sure you know and understand the laws and have taken the proper safety courses before possessing a firearm. Check with the California Rifle and Pistol Association (CRPA) if you have questions. A copy of their pamphlet “Summary of California Gun Laws & Basic Safety Rules” is available at http://www.crpa.org  The NRA's Website is: http://membership.nrahq.org/

A dog bite attack can be a traumatic experience that may cause severe and long-lasting injuries. If you or a loved one is the victim of a dog bite you should seek immediate medical assistance without delay.  California's dog bite law imposes strictly liability on dog bite owners even if the dog doesn't have a history of biting or vicious behavior, the owner can still be held liable. California Civil Code § 3342 (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner. What should you do after you are injured by a dog or other animal: Seek immediate medical attention Identify the animal that injured you Type of animal Color or markings Location of animal Owner of animal Report the dog bite / attack to the local animal control agency Have photo's taken of the injury Call our office to schedule a consultation

On February 7, 2007, CNN investigative reporters revealed damning evidence against major insurance companies, such as State Farm and Allstate, which have been accumulating billions in profits by underpaying injured car accident victims. The money these insurance companies deny car accident victims should go toward doctor visits, lost wages, and rehabilitation. However, new strategies adopted by insurance companies have adjusters making take-it-or-leave-it payout offers that in many cases don't even cover a fraction of the victims' expenses.  Imagine you are driving along and another car comes out of nowhere and runs into the side of your car, injuring you to the point where you can barely walk, are in severe pain, and need doctor visits, CT scans, X-rays, MIRs and rehabilitation. Shouldn't you expect the insurance company of the driver who hit you to pay those bills? Roxanne Martinez did. CNN reported that when she was hit by an SUV on the passenger side of her car, she was smashed up against her driver-side window, damaging her spine. Her medical bills quickly accumulated and she thought Allstate, the insurer of the driver who hit her, would pay for her injuries. Allstate offered her a meger $15,000 for her $25,000 in medical expenses. Instead of accepting the offer, Martinez lawyer filed suit and obtained a money judgment in excess of $165,000. Martinez filed suit because she had CT scans, doctor visits, X-rays, and a host of medical problems, that she could not afford. Allstate's $15,000 offer did not cover her medical expenses, much less her pain and suffering, time lost from work, and/or the emotional anguish of not knowing whether she could afford her treatment. This tactic is part of a strategy insurance companies are using to make themselves billions of dollars. CNN's year-and-a-half investigation into the insurance industry found that if you are injured in a minor accident, major insurance companies will likely challenge your claim, drag you into court, and take years before making you an offer. This offer is often significantly less than your claim is worth. Industry insiders say this results in 80% to 90% of injured victims accepting what the insurance company offers instead of fighting. Why would an insurance company, especially one that you trust and have given significant amounts of money to over the years to take care of you in the event you're injured, act with such reckless disregard toward your personal well-being? The answer is simple: Insurance companies make more money if they pay you less money for your injuries, even if you need the money to cover necessary medical bills, lost wages, and rehabilitation. According to Jeff Stempel, Nevada insurance law professor, accident victims are getting hurt further by being dragged into court by insurance companies. Other policyholders aren't seeing any benefit, such as reduced premiums, when Allstate or State Farm takes someone who needs money for their injuries to court. This practice isn't saving the consumer money at all. In fact, the only real beneficiary of keeping money from the people who need it are the insurance companies themselves. Professor Stempel says, “To continue this kind of program is, in my view, institutionalized bad faith.” These insurance companies seem to believe their money is better spent dragging someone hurt who needs insurance money for their injuries through court instead of helping them pay their bills. Both Allstate and State Farm would not discuss the investigation's results with CNN. Jim Mathis, a former insurance company insider, told CNN, “As long as the public allows this to occur, insurance companies will get richer, and people will not get a fair and reasonable settlement. Period.” The math behind the insurance companies' strategy is simple: Take $1,000 off of 1 million claims and you've essentially made $1 billion. Do this with every claim over a number of years and you've made billions of dollars. Insurance companies achieve this cost cutting through a process known as the “Three Ds:” Deny the claim. Delay the claim. Defend their denial of the claim. By forcing “smaller, walk-away settlements,” which are take-it-or-leave-it offers years after the actual accident occurred, battles have already been fought, bills have added up, and people are afraid that they won't get any money for their claims, insurance companies can essentially force an injured victim to accept whatever it is they're offering. This tactic preys on the fear of a car accident victim who wonders if they're ever going to get any money for their accident. One Indianapolis superior court judge told CNN that many insurance company lawyers have confided in him that they want to settle many of these minor impact cases, but the insurance companies won't allow it. The insurance companies would rather fight every claim, even though that means not giving their paying customers the money they need to heal and get back to their lives. A lawyer for Allstate said that the company's strategy was to drive lawyers who represent victims out of the insurance industry. The company tried to accomplish this by making the act of fighting a claim “so expensive and so time consuming that lawyers would start refusing to help clients.” The Law Office of Robert Lee Hamilton refuses to stop helping people fight against unfair insurance companies. We will fight for you against any corporation that puts profits over people. Call our law firm today, we want to help. Source: Insurance companies fight paying billions in claims , published 02/07/07 on Anderson Cooper 360 Blog. Accessed 02/08/07 via www.CNN.com .

Drunken driving arrests during Shasta County's special holiday enforcement season were down compared to the 2011 season, but unlike that year, 2012 recorded an alcohol-related fatality. During the 19-day campaign against driving under the influence, participating law enforcement agencies made 59 arrests, down from 76 during the same period in 2011. The season runs from Dec. 14 to Jan. 1 each year.  Authorities say they plan to conduct more anti-DUI operations throughout the area during Super Bowl Sunday, which falls on Feb. 3 and on St. Patrick's Day on March 17.