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Daniel M. Fox

Daniel Fox’s Answers

174 total


  • I was detained at a checkpoint when I pulled over and did not pass through. Was using navi on phone. BAC .11

    I idled my car in a red zone. I saw a checkpoint and pulled to side. Did not want to risk cell phone ticket. Officers approached. Quickly demanded to know why I stopped at curb and was asked to exit the car. would like to take this case to t...

    Daniel’s Answer

    Statistically speaking - in San Diego County the rate of DUI conviction is upwards of 90+%. (You can looking it up yourself in the DMV DUI MIS report published each year.) (http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-236.pdf) You should also be aware - there are over 15,000 people arrested each year in San Diego for DUI. So, the "99%" cited in the UT is a bit off. (Not surprised - most prosecutors don't even know about the DMV MIS report.)

    Checkpoints are "tricky" - especially for the prosecution. There are some pretty set rules handed down by the US and Cal Supreme Courts on checkpoints and how they should be operated. If they are not operated in accordance with those rules, then they violate the 4th Amendment. (You want to ask for an "Ingersoll package" during discovery.)

    Based upon your facts, you didn't even enter the checkpoint. So, this means the cops need an independent "probably cause" basis for DETAINING you. (Being stopped in a red zone can prove to be such a reason.) Note: the cops (and the prosecutor) will claim the initial contact was consensual under the law, and they could be correct.

    If you really want to know if you have a shot at being one of the "10%" (about 1,500 a year), then you're going to need to have a more detailed discussion with a local, qualified DUI attorney. Many of us offer free initial consultations. If nothing else, you'll come away better informed and better able to make a judgment about your course of action.

    Oh, and remember - request you DMV hearing within 10 days of your arrest!

    good luck

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  • I got a 1st offense DUI. I got 34 days in jail time. How much of it will i Actually serve?

    My public defender recommended me to take the jail time over the community labor and they gave me extra ten days on top of the 24 for the refusal to be stricken. How much time will i actually do. I am so scared I will lose my job. I turn myself in...

    Daniel’s Answer

    34 days = 17 actual, by statute. Plus, if you were booked at the time of the offense, you get a day of credit there as well. (and it would be 1 day = 2 days; so now you're looking at 15 or 16 actual.)
    You may get just a book & release; you may get work furlough; you may get weekend work crew. A lot depends on how many bunks are available when you arrive. (and the answer to that is usually, "slim to none.")

    Can you go back and ask for a change? Yes, but since you're supposed to turn yourself in on Friday, you'd be hard pressed to get on calendar that quickly.

    Good luck.

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  • Can you enter a bar after pleading guilty to a dui

    I have heard different stories. Want to know

    Daniel’s Answer

    In almost all instances - yes. Plead guilty and go have a drink.
    The only limitation maybe that put in place by the terms of your probation. As Messrs. Freemont & Murillo correctly pointed out: such limitations don't usually come up until you're dealing with "habitual offender" type of convictions. Other times similar terms are seen is if you're in a "DUI Court" type of program (OC has one, Riverside does not.)

    You have to agree to give up your freedom of association and assembly (1st Amendment), and that includes the freedom to associate and assemble in a bar. Hence, a "no bar visiting" term of probation can only be valid if you agreed to it. (Of course, if you refuse to agree to such a term, you can expect a court to impose more onerous terms.)

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  • Dui, dmv, will my liscence be suspended as a second charge even tho I was not convicted the first charge?

    I got a dui when I was 19, I never went to court and I never got convicted, however my liscence remained suspended for 1 year, I had not realized I never got a dui but I still went and got a sr22. Well now im 21 and I unfortunately got another dui...

    Daniel’s Answer

    I'm going to take a slightly different tact here. Why exactly was you license suspended when you were 19? Here's what I'm thinking: You say you got a "DUI", but you never went to court or got convicted. Therefore, you didn't get a "DUI" (as the criminal convictions are commonly called.) Yes, you almost definitely got a 1 year suspension from the DMV for conduct equivalent to CVC23136. That's an administrative act by the DMV. (See CVC 13353.3(b)(3)) IF this is is the case, then the question becomes, "how does the DMV view/treat this 1st criminal DUI?"
    Per 13352 - the term of suspension is contingent upon the penalty imposed by the court. So, if the court imposes a "first DUI" penalty (which it would be bound to do if there is no "prior" conviction), then the DMV has to take action commensurate with a "first DUI" (as opposed to a second.)

    Rather than keep going on, because this discussion is really dependent upon what/why was done to your driving privilege when you were 19, I'd suggest you find out exactly what the reason for suspension was 2 years ago, and then work forward through the labyrinth of the vehicle code once you have that information in hand.

    Good luck.
    (Oh, and don't expect the DMV to immediately follow the statutory process of its own accord. You're going to have to fight for this one, assuming you have a shot.)

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  • I got a DUI in 1999,a second one on 2005 and the third on 2013,I took care of the first and second.How will I be affected with 3

    I felt to sleep in a parking lot with the car off ,police came did sobriety test,blood test and gave me a DUI citation.What will I be expecting this time in court.I took care of the two previous dui and no probation.

    Daniel’s Answer

    IF you get charged, it will be as a second DUI, not a third. DUI priors are measured by offense date. So, an offense in 1999 became "non-chargeable" in 2009. (Of course, should the case go forward, the DA can still use the fact of the prior as an argument in aggravation.)

    If you do get a second...well, you've been there before (in 2005.) You can expect the costs (fines and such) to be a bit higher given the passage of seven years.

    As my colleagues have pointed out - you may have a "no driving" defense given the facts you related. Even if it doesn't amount to an "total defense," a good attorney may be able to argue it to your advantage with the DA and try for a 1st instead of a 2nd. (thing of it as a bargaining chip as opposed to a full on defense.)

    You should consult with some local, qualified attorneys. You can find many hear on Avvo who offer free consultations. You may end up getting some good news, at the very least you'll be better informed.

    Good luck.

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  • MOTION PURSUANT TO PC 1538.5 - how many times can an attorney request this - then it goes to pretrail conference for a DUI - the

    MOTION PURSUANT TO PC 1538.5 - how many times can an attorney request this - then it goes to pretrail conference for a DUI - the DUI was back in May - and now has been extended to the end of January - can you tell me why they keep doing this? Want...

    Daniel’s Answer

    You get one shot at a 1538.5. It must be in writing, and it must set forth specifically what is sought to be suppressed (along with a concise statement of facts and pertinent law.)

    Why a case gets continued multiple times can have a thousand of more answers. Your attorney is the best source of information as to why YOUR case is getting continued. It could be as straight forward as "The prosecutors rotate assignments come Jan 1., and I want to see if we can get a more reasonable prosecutor before we move forward." (Of course, I'm just guessing, but....)

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  • Can I start my DUI program classes before I have my court date? Additional questions in *details part*

    If I am supposed to be working abroad and I don't have my court date until late February is there a way to start taking my DUI programs asap? is there a way to postpone the classes? and is there a way to push my court date up? I am supposed to be ...

    Daniel’s Answer

    When you can start classes and receive credit is really a statutory issue.
    You're probably going to fall under CVC 13352. You want to look at 13352(a)(1), last two sentences:
    "For the purposes of this paragraph, enrollment in, participation in, and completion of an approved program shall be subsequent to the date of the current violation. Credit shall not be
    given to any program activities completed prior to the date of the current violation."

    Translation - if you start before you get a violation (right? who would? but you'd be surprised), you get no credit, but it you start after the violation, even if it is before the DMV or court proceedings, then you are entitled to credit for time spent in the program.

    There are some DDP providers who will not accept you without a court order. If this happens, go looking for another provider. (You can find a list of approved providers on the DMV website at: http://www.adp.ca.gov/Criminal_Justice/DUI/pdf/DUI_dir.pdf)

    Good luck.
    (Oh, and like the others have said, you can hire a private attorney to appear for you to handle the matter while you get on with life.)

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  • Ive already asked to extend a court date to find an attorney, can i extend again?

    i have a court date tomorrow at west in oc for a second dui, I went on oct. 31 for the arraigment and asked to continue to seek an attorney, because I've been told I could lessen at least jail time with the right attorney..I haven't been able to ...

    Daniel’s Answer

    1. You need to appear. So, that is something you definitely should do.
    2. If you are going to ask for another extension, then you need to be prepared to explain to the judge what you have been doing to get an attorney for the past 3 weeks.
    3. Expect the court to not grant another extension, but appoint the public defender (or at least refer you over to the PD for a "needs review.")

    Courts are measured on how quickly they move cases through. That's not to say they are not interested in justice, only that they don't want cases hanging around unnecessarily. Courts will usually grant one continuance of the arraignment, but not two.

    Good luck.

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  • I was driving on a suspended license and accidentally drove threw turn while it was yellow turning red and got flashed.

    What am i to expect? could this violate my suspension or does it work more like a toll in the sense where theres just a fine? I'm scared, any insight would be helpful.

    Daniel’s Answer

    OK, let's break this down.
    1. You're driving on a suspended license. That is a 14601.* crime. (What section depends on why your license was suspended in the first place.) So, there is a possibility of your being charged with a misdemeanor for driving on a suspended license. HOWEVER, that would mean someone would have to review not only the "got flashed" offense, but also your driving record and make the connection. You should know that most "photo offenses" are outsourced to private companies for review and filing. (Many are based in AZ.) Thus, the connection of "you" and "your driving record" to the "photo" is going to require some legwork by a group that may not be inclined (or even aware) to do so.
    2. You have a "photo" traffic offense. Often, these are just infractions. (Is this a red light camera or a speed camera?) Again, these are often processed not by law enforcement but private companies. AND, they way it is often done is by connecting the license plate to the registered owner - not the facial recognition of the driver. And, as we all know, the actual driver is often not the registered owner. (I know of one judge who says "show me the picture, if it is not you, then I am NOT going to ask you to tell me who it is.")
    3. "Photo" infractions have major evidence law flaws in them. You might want to take a look at some of the cases involving photo cases. (Start with People v Goldsmith) Most of them that resulted in conviction involved some sort of human (police) testimony as to the proper functioning of the device and traffic signals. Without that actual, in court testimony (yes, that means you have to request a trial) the photo is often not enough to sustain a conviction.

    Here's the other thing - if all you get is a "photo" infraction citation - and you plead to it - then the state may be barred from pursuing any 14601 violation is later comes up with. The basis for the bar on further prosecution is 654pc and "double jeopardy." By issuing a infraction citation without an accompanying 14601 charge, the state "elected" to pursue only one of the possible offenses you face. When you plead guilty to it and pay the fine, the state is then barred from coming back and saying, "oh, we meant to include this as well." (They may try, but the case law is against them.)

    So, you should just wait to see what turns up in the mail. (Your best bet? You're not the registered owner. Then, all you have to do is keep the RO from tattling on you.)

    Good luck

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  • I am expecting to be sentenced for a DUI with enhancements. What steps can be taken to lower my sentence?

    I've had friends mention character letters and neuro-psychiatric evaluations. Can anyone elaborate on these two and offer any other helpful measures for getting the sentence lowered? I've been in rehab and I do have cognitive/psychological conditi...

    Daniel’s Answer

    To get a nuero-psych eval you should talk to your primary care physician and start the process that way. A cognitive/psychological condition "that can be argued to have influenced the car accident in context" can also be used to argue why you should never have been behind the wheel in the first place. So, you should expect that to be turned around on you.

    A second with GBI = mandatory sentencing. I am guessing you were convicted of a 23153VC as a felony with a 12022.7 allegation. The 12022.7 (GBI) is going to carry a 3 yr sentence. About all you can hope for is the court stays (not strikes) the imposition of that time. However, to do so, the court is going to have to go on the record and state the compelling reasons for its staying the time. (Most courts are loathe to do so.) GBIs are pretty much viewed as "mandatory" time that must be imposed in almost all instances. So, you're really working to lower the base sentence on the 23153 - and that's 16 months. You'll probably get the low term of 16 months without having to do much, but staying the GBI is going to be very difficult. (Sorry, that's usually the way it is. And, if the GBI was to a 3rd party (someone not your passenger), then you really have an uphill battle.) Because of the GBI you will be limited to 15% good time credits.

    As my colleagues have pointed out - you probably have an attorney already. You really need to be discussing these issues with him/her.

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