2011 November Archive

Last week in Santa Ana, an 18-year-old Lake Elsinore resident was driving on Ortega Highway in Orange County. Francisco Jesus Ochoa, 18, apparently did not possess a license to drive a motor vehicle and was uninsured. Ortega has been charged under the California Penal Code section 191.5 (a) vehicular manslaughter with gross negligence, for the killing his friend while driving under the influence of prescription drugs and possession of a controlled substance.

The crash occurred in the early morning hours on Ortega Highway when the driver struck an oak tree. He was taken to the hospital with moderate injuries, while his passenger was pronounced dead at the scene. If convicted on all charges, he faces approximately 11 years in state prison.

Are you or a loved one facing similar charges? To prove that you are guilty of this crime, the People must prove that:
1. You drove under the influence of an alcoholic beverage or a drug; 2. While driving that vehicle under the influence of an alcoholic beverage or a drug, you also committed a misdemeanor, infraction or otherwise lawful act that might cause death; 3. You committed the misdemeanor, infraction or otherwise lawful act that might cause death with gross negligence; and 4. You grossly negligent conduct caused the death of another person.

Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; and 2. A reasonable person would have known that acting in that way would create such a risk.

Gross vehicular manslaughter while intoxicated alone is punishable by imprisonment in the state prison for 4, 6, or 10 years.

If you or a loved one have been accused or charged with this crime in Orange County, it is very important that you speak with an experienced Orange County DUI defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling this type of matter and can assist you in obtaining the best possible result. Call the law firm of Wallin& Klarich today at, (888) 749-0034 to speak to an experienced criminal defense attorney about your case.

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California Vehicle Code section 21658(a) provides that “A vehicle shall be driven as nearly as practical within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.” In People v. Butler, the court held that this places two affirmative duties upon the driver of a vehicle:

1. drive as nearly as practicable entirely within one lane of travel; and
2. to not move from that lane until such movement can be made with reasonable safety.

Based upon the specific facts and circumstances of your case, your Orange County DUI attorney will determine whether the officer observed “pronounced weaving” or merely a slight deviation from one’s own lane. Weaving in the roadway, even for a short distance and when the observation is made by an inexperienced police officer, may nevertheless furnish sufficient probable cause for a vehicle stop. However, an experienced DUI attorney knows how to effectively challenge DUI stops based solely on alleged weaving.

Pursuant to the 4th Amendment of the U.S. Constitution, every citizen has a constitutional right against unreasonable searches and seizures. This means that the police cannot stop your car or order you to pull over unless they have a reasonable suspicion that you committed or were about to commit a crime. Make sure you know your rights and that your rights are protected by hiring an experienced DUI attorney.

If you or a loved one have been accused or charged with a DUI in Orange County, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling this type of matters and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced Orange County criminal defense attorney about your case.

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People v. Bennett (1983) 139 Cal.App.3d 767, holds that a person lawfully detained for drunk driving, and found to have symptoms consistent with intoxication, may be further detained for the purpose of administering field sobriety tests. In Marvin v. DMV (1984) 161 Cal.App.3d 717, the court held that an arrest, based solely on the fact of erratic driving coupled with a breath alcohol odor, may be legal even without field sobriety tests. Similarly, in People v. Deltoro (1989) 214 Cal.App.3d 1417, it was determined that the police had probable cause to arrest the defendant for DUI based solely on his odor of alcohol and his failure to negotiate a turn in the road while going 50 mph in a 15 mph zone.

However, these holdings do not mean that an arrest for DUI is always legal without field sobriety testing. Each and every DUI arrest is unique and must be closely analyzed and investigated by your Orange County DUI attorney. Often times, the police do not have sufficient, objective evidence for the police to have probable cause to believe the DUI suspect was impaired. Just because you were arrested for a DUI does NOT mean you are guilty of DUI beyond a reasonable doubt. Probable cause and proof beyond a reasonable are two entirely different criminal law standards of proof.

Pursuant to the 4th Amendment of the U.S. Constitution, every citizen has a constitutional right against unreasonable searches and seizures. This means that the police cannot stop your car or order you to pull over unless they have a reasonable suspicion that you committed or were about to commit a crime. Make sure you know your rights and that your rights are protected by hiring an experienced DUI attorney.

If you or a loved one have been accused or charged with a DUI in Orange County, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling this type of matters and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced Orange County criminal defense attorney about your case.

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Very frequently in Orange County a DUI stop and subsequent DUI investigation will be prompted by a tip from another driver to police about an alleged “drunk driver” on the road. A DUI stop based on a “tipster” must be critically evaluated and scrutinized by your Orange County DUI defense attorney.

When evaluating the constitutionality of a detention based on a tip to the police, it is important to note the distinction between “anonymous tipsters” (persons who telephone the police about a crime, but do not identify themselves and are not known to the police), and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters,” there is no presumption of reliability attached to their reports. With “citizen informants,” however, the law recognizes a presumption of reliability. Regardless, any tipster and informant must provide underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed” People v. Ramey (1976) 16 Cal3d. 269.

If the officer making an enforcement stop does not know whether the tipster exposed his identity, then the source of the information must be treated as an “anonymous tip.” This is because the constitutionality of the detention turns on what the officer knew prior to the enforcement stop. It is critical to understand that a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. If not, the stop may be deemed unconstitutional and the DUI case against may be dismissed entirely.

If you or a loved one have been accused or charged with a DUI in Orange County, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling this type of matters and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced Orange County criminal defense attorney about your case.

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When you are arrested for a DUI in Orange County, your driving privileges will be negatively affected. For first-time DUI offenders, the DMV will automatically suspend your license for 4 months. During this period, you are not permitted to drive a motor vehicle for any reason – doing so can result in a criminal charge.

You do, however, have the right to request a DMV Administrative Per Se Hearing to contest the suspension. Keep in mind that you only have 10 days after the arrest to make the request. Once you or your attorney schedules the hearing, the DMV will temporarily lift the suspension until the DMV makes a ruling from the hearing.

The DMV hearing essentially considers the validity of the traffic stop and determines whether or not the arresting officer had probable cause to make the arrest. You can hire an attorney to attend the hearing appearance for you and make arguments on your behalf (you, of course, would not need to be present). Although defendants in a DMV hearing rarely prevail, it is still worth pursuing.

If the DMV rules in your favor, no action will be taken on your license, which means you will be able to keep your license free and clear. However, if the DMV rules against you, the suspension will be re-instated.

For first-time DUI offenders, the DMV will allow you to get a “restricted license,” which will allow you to commute to work, school, or DUI classes. You will only be eligible to get a restricted license after the first 30-days of the suspension. Although you will be allowed to drive for limited purposes, if you decide to seek the restricted license, the DMV will extend the suspension period to 5 months from the time you are issued your restricted license.

If you are later found guilty of the DUI, you will also suffer a 6-month license suspension as ordered by the court. However, you will be allowed to get a restricted license immediately and you will receive credit for any license suspension time you did serve without getting a restricted license.

In any criminal matter, it is imperative that you are kept fully informed of consequences that stem from a criminal charge. For this reason, you need the legal aid and expertise of an Orange County DUI attorney. At Wallin & Klarich, our attorneys have been in practice for over 30 years and can keep you well informed while working to achieve the best possible result in your matter. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

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Recently in Santa Ana, a young man was arrested on suspicion of vehicular manslaughter as well as felony hit and run, felony DUI. Police believe that Angel Alberto Cruz Perez, 23, was involved in the incident where a two year old boy was struck and killed by the driver of a Sports Utility Vehicle (SUV).

Police identified the 2 year-old boy that was killed as Darwin Almeida. On Wednesday, Darwin’s mother was attempting to cross Fifth Street in an unmarked crosswalk in the early evening hours with her two children. She was carrying her 1-year-old daughter in an arm while holding Darwin by the hand.

The SUV struck Darwin, pulling him underneath the SUV, while the mother and the 1-year-old hit the hood of the vehicle and then fell to the ground. Darwin was taken to a hospital, where he died from the injuries.

Police tracked the SUV to a mobile-home park and found Cruz Perez, who after failing a field sobriety test, admitted to driving the SUV.

Are you or a loved one facing similar charges? You will need to speak with an experienced criminal defense attorney immediately.

If you are charged with gross vehicular manslaughter, then the prosecution will need to prove that you:
1. Drove a vehicle; 2. While driving that vehicle, you committed a misdemeanor, infraction, or otherwise lawful act that might cause death; 3. You committed the misdemeanor, infraction, or otherwise lawful act that might cause death with gross negligence; and 4. Your grossly negligent conduct caused the death of another person.

Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; and 2. A reasonable person would have known that acting in that way would create such a risk.

If you or a loved one is facing a charge of vehicular manslaughter and need to contact an Orange County DUI attorney, contact the criminal defense attorneys at Wallin and Klarich. We at Wallin and Klarich have many years of experience successfully defending people charged with these types of crimes. We will work to aggressively defend you by investigating all aspects of your case. We will work to ensure that your rights are protected and that you clearly understand the legal process. The attorneys at Wallin & Klarich can be reached by phone at 1-877-230-1529 or through our website at www.wklaw.com. We will be there when you call.

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A wet reckless conviction in lieu of a DUI conviction will not vacate a DMV suspension unless the Court makes a finding of “not guilty” on the CVC §23152(b) or §23153(b) charge as opposed to just dismissing it. You must speak with an Orange County DUI attorney well versed in California DUI Law before entering a plea of guilty in any DUI case.

Even where a DUI charge is reduced by the prosecutor, the court and the DMV retain the authority for discretionary action under other statutes. Generally, the court is precluded by the plea bargain from giving a severe penalty. However, the DMV has authority to suspend one’s privilege to drive by identifying people with alcohol problems as negligent operators. A negligent operator is defined in the California Vehicle Code as any driver whose record shows a count of four (4) points in 12 months, six (6) points in 24 months or eight (8) points in 36 months.

Insurance companies and the DMV may treat a wet and reckless conviction the same as a DUI conviction. You will need to work closely with your Orange County DUI attorney to understand the positive and negative aspects of any plea agreement.

If you or a loved one have been accused or charged with DUI in Orange County, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling these types of matters and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced Orange County criminal defense attorney about your case.

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Depending on the facts of your case and the knowledge and experience of your Orange County DUI attorney, prosecutors may offer to reduce a drunk driving charge to a lesser offense of “wet” reckless, “dry” reckless, or maybe one or two infractions.

A “wet” reckless conviction occurs where the prosecution reduces a charge to the lesser included offense of reckless driving under California Vehicle Code section 23103. The term wet reckless does not actually appear anywhere in the statutes. Instead, under the provisions of CVC §23103.5, a §23103 conviction is specially permitted in a drunk driving case when the following conditions are met:
1. the defendant pleads guilty to a violation of §23103, in satisfaction of or as a substitute for, an original charge of non-injury drunk driving (§23152 not §23153);
2. the prosecutor states for the record a factual basis, including facts disclosing that alcohol or drugs were consumed; and,
3. the court advises the defendant that the reckless driving conviction will be treated the same as a drunk driving conviction in any future drunk driving case.

Upon a wet reckless conviction, a minimum 6-week educational component portion of the first offender drinking driver program may be required. In addition, county jail and fines are potential consequences of a wet and reckless conviction. It is important to understand that a wet reckless conviction counts as a prior conviction of drunk driving. Insurance companies may also treat it the same as a drunk driving conviction, raising rates for five to seven years. And for a person under 21, it means a one-year driving privilege suspension (CVC §13202.5). On the other hand, the fines can significantly less, and the school can be only 12 hours (as opposed to 3, 6, or 9 months).

If you or a loved one have been accused or charged with DUI in Orange County, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling this type of matter and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced Orange County criminal defense attorney about your case.

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