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Brian Neal Gurwitz
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Brian Gurwitz’s Answers

109 total


  • Are there occasions that you can you get a hit and run associated with a second dui dropped?

    I woke up thinking I had scraped a wall or something. I didn't realize I had hit a pole and that the damage was so bad to my truck. I panicked thinking I needed to get out my vehicle because of fear of second dui. Well I drove down the block looki...

    Brian’s Answer

    The short answer is yes. Whether it is likely depends on many facts. I strongly suggest you speak with a local criminal defense attorney about your case.

    Best Regards,

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  • After a plea can you go back and fight your case

    i have been convicted of 48 counts all feloneys and i feel like i was railroaded in to taking a deal after being in jail for 1 1/2 years i do believe i could have beatin most of the charges but i took a deal because i felt that my atto...

    Brian’s Answer

    There are a number of ways that you can seek to vacate the plea agreement. It is usually very difficult to do, but it is certainly possible depending on the facts of your case, and whether you were represented by incompetent counsel.

    Most criminal attorneys offer free consultations. Your question really requires a consultation since there are way too many facts that an attorney would need to offer you any meaningful guidance.

    Best regards,

    Brian (Tustin criminal defense attorney)

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  • CA DUI Probation Violation- what are the consequences of receiving a traffic infraction and having a BAC of .06?

    Pulled over for coming to a complete stop at a stop sign partially in the crosswalk. Was put through the field sobriety test and passed. Blew a .06 BAC, was given a ticket with the traffic infraction and a notice of Probation Violation (convicte...

    Brian’s Answer

    It is highly unlikely that you'd be charged with a DUI, given the lack of a citation or arrest for that offense.

    You could receive a jail sentence if you're charged with a probation violation, but realize that the DMV does not have the authority to do this. This would be a court proceeding.

    Depending on a variety of factors, a one-year suspension is a possibility.

    My advice is to contact a local attorney and be sure to request a DMV hearing within the 10-day period.

    Good luck to you,

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  • I was arrested for (first) DUI and my blood alcohol results is .19%. Am I facing jail time? How often that happens?

    I was arrested for (first) DUI and my blood alcohol results is .19%. Am I facing jail time? I know that the law says 48h to 6 months in jail but how often that happens?

    Brian’s Answer

    In my 15 years as an Orange County attorney, I've never seen a person sentenced to jail time for a first-time DUI without more (e.g., prior convictions, probation, injury, lying during trial, etc.).

    Your chance of getting jail on a first-time DUI with none of these things is approximately zero.

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  • NEW Bill SB 598 what are the chances of getting my license back before the July 1, 2010 Begin Date

    I got convicted of my 2nd dui and licesne suspended in may 2009 and I am eligible for a restricted in may 2010. I notice that the new California bill SB598 does not go into effect until July 2010. Is there any chance that I can get my restrict...

    Brian’s Answer

    I don't believe this new law will be interpreted in a manner that will allow you to get a restricted license since it does not go into effect until July 1, 2010. For an explanation of why this is so, I invite you to read a blog article I wrote on this issue at gurwitzlaw.com

    Best regards,

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  • 2nd dui in 5 years

    my wife just got 2nd dui in 5 years the first was .08 and wasa wet 7 reckless this one .16, she doesn't want to fight it , should she go with public defender to plea the case or would a private attorney be any better since she dosn't want to fight...

    Brian’s Answer

    I respectfully disagree with the suggestion that your wife does not need to hire an attorney if she intends to plead guilty. A prosecutor's recommended sentence for a second-time DUI (which will include jail time) can vary rather widely from case to case. A defense attorney is not only helpful in "fighting" the case (i.e., seeking an acquittal through trial) but also for negotiating the best possible sentence given the circumstances of her case.

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  • DUI with Injury Conviction Appeal

    I fell asleep driving and hit a retaining wall causing injury to my passenger (girlfriend). She had a cut under her chin and required stitches. My BAC was 0.06 by blood test. I had no prior criminal record. I was convicted on 23153a and acquit...

    Brian’s Answer

    Technically, you can't appeal on this basis since the record (trial transcript, clerk's minutes, etc.) will not show what your attorney did or did not tell you, what you would have done in response, etc.

    However, you can seek reversal of your conviction through a petition for a writ of habeas corpus. You would face a very difficult time doing this, but it is possible. You would have to show:

    1) Your attorney gave incompetent advice,

    2) Had he given correct advice, you would have agreed to plead guilty, and

    3) Had your attorney approached the DA, he or she would have offered you something better than what you received.

    Note that the law is VERY tough toward defendants in this situation. The California Supreme Court has repeatedly made clear that they don't want to allow convicted defendants with "buyer's remorse" about their decision to plead guilty (or not plead guilty) to easily avoid the consequences of their decision.

    Good luck to you –

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  • Can a misdemeanor show up on a background check from 16years ago

    trying to get job at preschool

    Brian’s Answer

    Yes, depending on the misdemeanor. I assume you're speaking about a conviction. It is unlawful in many situations for an employer to inquire about arrests that did not lead to convictions.

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  • How does a person in prison find out when they are eligible for parol?

    Inmate's family was informed by an consulting attorney, that the case was grossly mishandled and something should be done rightaway. Given this fact, at least parole stipulation should have been part of sentencing and it was not. Family does not ...

    Brian’s Answer

    If it has been 60 or fewer days from sentencing, a notice of appeal should be filed. If it has been longer than that, the inmate may be entitled to proceed by way of a petition for a writ of habeas corpus. California provides appellate attorneys without charge to inmates who cannot afford them through the California Appellate Project. Five different projects exist in California. If you email me the court where the sentencing occurred, I'll send you the contact info for the appropriate panel.

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  • Diversion program in Los Angeles County Superior Court?

    I am being cited for petty theft charge 484a PC in Los Angeles. This is my first time offence and arrest in my life. I heard about diversion program available. I do understand that the availability varies from county to county. How likely is it t...

    Brian’s Answer

    You need to speak with a criminal defense attorney who is familiar with local practice. This can be a public defender if you cannot afford to retain one. You certainly have the right to represent yourself and attempt to negotiate this with the prosecutor on your own, but it would likely be a mistake for a number of reasons.

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