Using Prior Convictions to Enhance a Utah DUI–State v. EILEEN JIMENEZ-WISS,

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By Glen Neeley on February 26, 2015 Posted in Utah DUI Laws

The Utah Court of Appeal issued the decision in State v. Jimenez-Wiss.  Defendant was charged with Felony DUI based on prior convictions.  One of the convictions involved a case where Defendant was not represented by an attorney and no evidence was produced that Defendant waived the right to have an attorney.  The District Court gleaned from the evidence that Defendant did intend to waiver the right to an attorney.  Utah Court of Appeals disagreed.

The holding states:

“Because the State failed to meet its burden, the district court erred when it denied Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 offense. We therefore vacate Jimenez- Wiss’s conviction on that offense and remand this matter for further proceedings.

CONCLUSION

¶27 Once the district court found that Jimenez-Wiss had produced evidence that she did not knowingly waive her right to counsel prior to her 2008 DUI conviction, the State bore the burden of establishing that she had waived that right. The only evidence before the district court—the Plea Document—does not demonstrate waiver by a preponderance of the evidence. Moreover, the multiple omissions in the Plea Document raise doubts concerning Jimenez-Wiss’s intentions—doubts our supreme court has held must be resolved against a finding of waiver. The district court therefore erred in denying Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 DUI charge. We vacate Jimenez-Wiss’s conviction on the 2012 charge and remand this matter for further proceedings.”

I have been defending people accused of DUI since 1998. I have defended people from all walks of life including clergy, engineers, lawyers, doctors, teenagers, and the average hard working person.  I go all over Utah to defend people that need a defense. 

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DWI convictions not as cut and dry as .08 blood alcohol content

Posted by: DUI News Staff Writer February 13, 2015 in DUI News Digest Leave a comment

The blood alcohol content of .08 is the legal limit for North Carolina, but the process from breath tests to booking and beyond for a DWI can be quite complicated and lengthy.

Read more: http://www.witn.com/home/headlines/DWI-convictions-not-as-cut-and-dry-as-08-blood-alcohol-content-291788911.html 2015-02-13

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Florida Convictions for Boating Under the Influence and Your Driving Record

Gasparilla is right around the corner, and that means Tampa law enforcement will be out in force on the water. Many people like to celebrate Gasparilla on their boats and by bringing along plenty of alcohol. Before you read any further about boating under the influence, here’s some free advice: have someone be the DD captain for your boat. If you’re drunk, don’t get behind the wheel, helm, tiller, or rudder.

Right now convictions for boating under the influence (BUI) aren’t recorded on your permanent driving record. This means that if you have a BUI conviction and are charged with a DUI, it will only be considered your first DUI offense. You will not face the enhanced penalties that come with a second DUI conviction.

One Florida lawmaker is trying to change that, and has filed a bill that will make any BUI convictions a part of a person’s permanent driving record. If this bill passes any BUI conviction will act as a “prior conviction” if you are charged with a DUI. This means you will face increased penalties and fines.

The penalties for a BUI conviction are very similar to those for a DUI:

$500 fine;6 months probation;50 hours of community service;DUI school / substance abuse counseling; andA 10-day vessel impound.

Be careful out there. If you’ve had too much grog, get someone else to drive the boat. Having a sober captain is the easiest way to avoid a BUI conviction.

Sam proudly represents those accused of crimes and injured through no fault of their own throughout the greater Tampa Bay area.

Read all posts by Sam Harden

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San Diego County Going To Require IID’s For All DUI Convictions?

California State Senator Jerry Hill plans on introducing a bill on Monday, January 5th,  that would require all defendants who are convicted of drunk driving to install ignition interlock devices, (IID’s).  A first DUI conviction would result in a 6-month requirement.  A second driving under the influence conviction would result in a 1-year IID requirement.  (See news article on CBS.)

What is an IID?  It is a breathalyzer instrument that is professionally installed in your vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample, in order for the car to start.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during these random samples, the car will stall and become inoperable.  Sample “failures” are reported to the court.

Currently, there are four counties in California that are participating in an IID pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, (see CA Vehicle Code Section 23700).  According to this statute, first time DUI defendants must install an IID for a period of 5-months in any car that they operate or drive.  On a second conviction, the term is extended to 1-year.  On a third conviction, the device is required for 2-years.  On the third or subsequent DUI conviction, the IID is ordered for 3-years. 

If the case involved an injury, (CA Vehicle Code Section 23153), the IID is required for 1-year on a first conviction, 2-years on a second, 3-years on a third, and 4-years for a fourth or subsequent conviction.

Hill’s bill will extend the ignition device requirement to all counties in California, including San Diego.  Typically, San Diego prosecutors are only asking for an IID at sentencing for first time DUI defendants if the blood alcohol was at or above a .15% and/or the defendant refused to submit to a chemical test after a DUI arrest.

A  judge, however, may order the installation of an IID in any DUI related case, including drunk driving, drunk driving with injury, and even driving on a suspended license if the suspension was due to a DUI conviction.   The maximum IID term is for three years.

The above summary of ignition interlock devices is by no means all-inclusive and is not legal advice. Laws may have changed since our last update. For the latest information on IID’s, speak to a DUI attorney in your area.

The Law Offices of Susan L. Hartman offer free telephone consultations.  If you have a pending drunk driving case or questions about your case after sentencing, contact our office at 619-260-1122, or use the Contact Us form on this page.

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Man with Multiple DUI Convictions (An Astonishing 24!) Cited Yet Again

Fingers crossed, your history of driving under the influence in Los Angeles looks nothing like that of David Louis Layne, a fifty-five-year-old resident of Alabaster, Alabama who was recently cited for driving under the influence…. For the 25th time. Come on!

The Shelby County Circuit Court charged him with DUI and third-degree assault, saying Layne drove “recklessly” and injured an occupant of the other vehicle when the auto crash occurred.

If Layne is convicted, this will be his latest in a string of serious DUI convictions that date back decades. Layne has received at least 24 previous DUI convictions in Alabama and remains in Shelby County jail on $101,000 bond. He was formally indicted in October 2014 for causing a crash that injured at least one other person on September 4, 2014. Layne’s next hearing is set for February 24, 2015.

Layne pled not guilty to his most recent DUI charge based on “reason of mental disease or defect.” In recent years, Layne’s DUI convictions have also involved charges of driving on the wrong side of a roadway and driving with a revoked or suspended license. Alabaster police chief Curtis Rigney calls Layne and his circumstances “a tragedy waiting to happen.” Shelby County district attorney Jill Lee corroborates this view, adding that she perceives Layne to be “a danger to the public at large.”

In Los Angeles, DUI penalties can include informal probation for a first offense to DUI school attendance from three to thirty months. Other penalties can include jail time from sixteen months to four years, revocation of a CA driver’s license, and fines up to $5,000. If convicted of felony DUI or second degree murder DUI, the defendant could face revocation of his or her license for up to ten years and possibly life in prison. If released from prison, a defendant in a second degree murder DUI case must be on parole status for up to five years.

Michael Kraut and the Los Angeles DUI attorneys of the Kraut Law Group would agree people like Layne can be quite dangerous, but most people who get arrested for similar crimes do not have anything like that kind of checkered driving history. Mr. Kraut would like to remind readers that multiple DUI convictions in Los Angeles and the greater area can result in escalating punishments, including the elevation of what would be a misdemeanor to a felony. The increasingly harsh discipline for multiple DUIs can affect a person’s physical and mental health, self-concept, career prospects, and more.

If police arrested you for Los Angeles DUI, you may feel scared and confused. Contact Harvard Law School educated, ex-prosecutor Michael Kraut for assistance at (323) 464-6453 or online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

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New Jersey Intoxicated Driver Program for DUI convictions

Any time a person is convicted of DUI, New Jersey law requires that the individual complete an Intoxicated Driver Program at an Intoxicated Driving Resource Center. Those who are convicted and need addictions treatment but are unable to afford it may be eligible for funding from the Driving Under the Influence Initiative.

The IDP is a program that provides interventions for people who are convicted of DUI of alcohol or drugs. Every county of the state has an IDRC for persons who are convicted for the first and third time while every region has centers for people who are convicted for the second time.

The IDRCs detain, teach and screen the convicted drivers to determine whether they need additional treatment for addiction. During the educational phase, the individuals attend courses about highway safety and alcohol. The centers also provide recommendations to the Motor Vehicle Commission on whether to suspend or restore the individuals' licenses.

If after a clinical assessment the convicted drivers need addiction treatment, they must complete a treatment over a minimum of 16 weeks. The DUII provides financial assistance to those who are poverty-stricken and meet the financial eligibility limitations. This is a $7.5 million fund set aside to reduce the chances of the drivers returning to New Jersey roads while drunk driving. More than 6,500 residents receive financial help through this fund every year.

When an officer thinks that someone pulled over for a traffic stop could be intoxicated, the officer is likely to conduct field sobriety tests, chemical tests or both. Drivers who are detained and charged with DUI may seek the guidance of a lawyer to get the charges dismissed or at least negotiate a plea bargain to get the penalties reduced. If a plea bargain is agreed upon, the drivers could still be required to participate in an IDP.

Source: State of NJ Motor Vehicle Commission, "DUI: Driving Under the Influence", September 26, 2014

Tags: penalties

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Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers

In most drunk driving cases, by far the most important evidence comes from a breath test.  Our DUI laws even provide that they are sufficient by themselves to warrant a conviction.  The accuracy of these devices is, therefore, critical.  And I’ve posted dozens of time on the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work — and Why They Don’t, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines and More Massive Breathalyzer Failures.

Besides the inherent inaccuracies of breath-testing devices, they are also entirely dependent upon proper maintenance and calibration by the police making the arrest. Failure to properly calibrate one of these devices on a regular basis is going to result in false readings — and wrongful convictions.

Unfortunately, cops and police agencies are notoriously lazy or incompetent when it comes to these irritating "technical" tasks….

SFPD Breathalyzer Error Puts Hundreds of DUI Convictions in Doubt

San Francisco, CA.  March 5 – Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment.

Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.

“We do expect that the cases will be in the hundreds. It’s possible that it could go into the thousands. The District Attorney’s Office is still investigating the scope of this,” Adachi said during a joint news conference with District Attorney George Gascon…

Amazing….no calibration tests in six years!  The cops just made up numbers to make the machines look accurate.

Even more amazing that a reading from one of these machines is legally considered proof beyond a reasonable doubt in a DUI case — and even triggers a legal presumption of guilt, forcing an accused citizen to prove his innocence.  See Whatever Happened to the Presumption of Innocence? and How to Overcome Scientific Facts: Pass a Law. 

(Thanks to Andre Campos and Murphy Mack.)

This entry was posted on Tuesday, March 6th, 2012 at 9:40 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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Mattapan Man Seeks Driving License After Six OUI and One Vehicular Homicide Convictions- Attorney Sam’s Take

We take today’s blog from the “You’ve Gotta Be Kidding Me” section of the news. It involves a man who clearly picked the wrong time to attempt to get back his Massachusetts driver’s license.

One would imagine that even without the pending Parole debacle claiming the front page every day , that Algary Horton, 53, of Mattapan (hereinafter, the “Nondriver”) would still be refused.

You see, the Nondriver does not have the greatest driving record. He has been convicted six times for drunk driving for example. Oh yes, and there was that time, in 1993, when he killed a woman on one of those allegedly drunken drivers and then fled the scene.

The Nondriver does get points for consistency, however. He was convicted of OUI in 1979, 1987, 1989, 1993, 1998 and 2004, authorities said.

In the 1993 case, interestingly not his last, the Nondriver was also found guilty of vehicular homicide when his vehicle veered off Park Street in Dorchester, plowing into a 38-year-old woman. She, a mother of three, was sent flying into the air while her children and friends looked on in horror. The Nondriver drove on.

In that case, he was sentenced to 12 to 15 years in prison. Somehow, however, he was back behind the wheel and driving (although without a valid license) for the occasions of his 1998, 2003 and 2004 arrests, authorities said.

Meanwhile, not to be deterred, the Nondriver continues to appeal and fight for his privilege to drive to be returned to him.

Don’t think he hasn’t been busy while carless, mind you. Apparently, he also has three pending assault cases in Dorchester District Court, court officials confirmed

He’s probably no longer a threat.

As a Boston-based drunk driving defense attorney of many years, I have seen some very odd results of cases…and their aftermaths.

The pending plight of the Nondriver and his nonlicense is not as shocking to me as it probably is to you. For anyone in this man’s position to try to get his license back, particularly when the recent Parole Board fiasco is still playing out is to be living in another universe. Had he given the situation some more thought, perhaps he would realize that if, at this time, he was given his license back, whoever made such a decision would likely be drawn and quartered.

However, there is an interesting question here. How many of these convictions were plea bargains and how many were trials?

“Sam, why on Earth should that matter?”

Sometimes there is a snowball effect. Sometimes, when one is facing trial and potential jail time, one pleads guilty in order to avoid the risk. Believe it or not, innocent people do this as well as guilty people.

Why might they do this? Well, for many, jail is a pretty scary possibility. Further, they might find themselves with an attorney in whom they have little faith. Perhaps the attorney is exuding the vibes of “Omigod, we’re gonna lose! We’re gonna lose!”

And so, in panic, they plead guilty.

Pleading guilty sometimes makes sense under such circumstances. Sometimes, however, it does not. Particularly in certain cases, where one’s future in job potential, immigration consequences or ability to drive may be in jeopardy.

Then, at the next case, the prior conviction-by-way-of-plea is considered and the odds for either acquittal or more consideration become worse.

How best to avoid such a catastrophe? Retain and experienced criminal defense attorney who has handled matters like yours. Also, make sure it is someone in whom you have faith. That way, you know whether you can believe what he or she is telling you.

Before the moment of panic.

If you want to contact me to discuss such a case, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://news.bostonherald.com/news/regional/view/20110115man_in_fatal_oui_loses_bid_to_regain_license/ and http://news.bostonherald.com/news/regional/view/20110114despite_6_ouis_including_one_fatal_man_wants_license_back/

View the original article here

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4000 Wrongful Drunk Driving Convictions

There are many cases ruled out for wrongful drunk driving offense. For an accurate breath test, there are some prescribed parameters. Any fraudulent DUI offense can be challenged using the available options for its recovery.

View the original article here

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