Expert DUI & Criminal Attorney Richard McGuire, Tustin, CA (2026)

04/20/2018

WHAT ARE MY RIGHTS WHEN I’M STOPPED FOR A D.U.I?

If you are stopped for a driving under the influence investigation what are your rights and how should you proceed?
These are questions I am frequently asked by clients.
Let’s start with the initial stop. According to the California Highway Patrol the number one reason why traffic stops are made leading to D.U.I investigations is speeding. If you are going even one mile over the speed limit, law enforcement can legally stop you. It sounds unfair but the line has to be drawn somewhere and over the speed limit is illegal even if only one mile over. There are many other reasons why a peace officer can pull you over and investigate but all of them must rise to the level of probable cause for there to be a legal stop. The key word is probable cause and it has been defined by the Supreme Court of the United States as “reasonable suspicion based on articulable facts that criminal activity is afoot.” What that means is that whether a felony, misdemeanor, or infraction (including no visible license plate, obstructed windshield, non-operating light or expired tags), if the officer observes some violation of the law including the California Vehicle Code, then he can make a legal traffic stop.
So what does that mean for me when I’m pulled over.
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Do I have a constitutional right not to speak with the officer?
Yes and no. You must provide your driver’s license and identify yourself and inform him of your correct address. Beyond that you do not have the obligation to disclose any information relating to where you were coming from, where you are going, what time you got up in the morning, when you last ate, when you last slept, if you have any medical conditions, whether you have been drinking, how much you have been drinking, when you started drinking, or when you had your last drink. All those questions can implicate you and are inherently incriminating. You can invoke your fifth amendment right against self-incrimination and politely tell the officer that while you are willing to cooperate with any lawful requests by the officer, you are invoking your right to remain silent. If you are polite and say it in a nice tone, the officer will more than likely respect your decision.
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Does the officer have to “read me my rights”?
We are all familiar with the Miranda instruction having seen it on T.V. “You have the right to remain silent, anything you say can and will be used against you in a court of law, you have a right to an attorney and if you can’t afford it, one will be appointed to represent you.” The answer is no. The officer does not have to inform you of your right to remain silent or read you your rights. This is settled law. Don’t confuse it with being required to talk – you aren’t. It’s just that the officer doesn’t have to tell you that you don’t have to talk. Be cooperative and give him your I.D. and tell him where you live.
Just because the officer had probable cause to stop my vehicle, does he have a legal right to arrest me?
Maybe the officer saw you weaving within your lane or you made an illegal turn. Whatever the reason, he had the right to pull you over and asks you for your license. You comply with all of his directives and show him your valid license, registration and proof of insurance. The officer does not have a right to arrest you just based on these facts. Let’s add an additional fact: the interior of the car smells like alcohol and the officer suspects you have been drinking. He asks you to exit your vehicle and you comply. He then proceeds to arrest you. Is this legal. Most likely not. Simply detecting the odor of an alcoholic beverage does not lead to a reasonable suspicion that you were driving impaired. The source of the odor could have just as likely been due to an open container or spillage on the floorboard. How about if we add another factor and the officer smells alcohol emitting from your breath when you talk to him? Still doesn’t rise to the level necessary to arrest you. That is why the officer will request that you submit to field sobriety tests, some of which are approved by the National Highway Traffic Safety Administration and some that are not. The results of your ability to perform the various tests usually conclude with a determination of whether you “passed” and has various boxes and charts in the police report purporting to support the observations of the officer. There is no clear cut pass/fail score so the officer makes a subjective determination as to whether or not you “passed”. If you didn’t, the officer probably still doesn’t have reasonable cause to arrest you because there are numerous reasons why someone may not be impaired for purposes of driving yet perform poorly on a balance or coordination test.
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This is where the preliminary alcohol screening device comes into play and this is when they usually ask you if you are willing to submit to the P.A.S. test. By law, they are required to tell you that you do not have to submit to the in-field breath test. Often they don’t but if you do agree to take it and you blow over a .08, they will arrest you for driving under the influence and driving with over .08 blood alcohol in your system. The important thing to remember is that you are not required by law to submit to any of the in-field sobriety tests nor the preliminary alcohol screening device breath test. These are all tools that law enforcement uses to determine whether or not they have enough evidence to effectuate a legal arrest. The less information you give them, the better. Always remember, if you have been unfairly arrested, your remedy for justice and a possible dismissal is a motion to dismiss in court. Don’t fight or resist the officer. With a good attorney, you will be able to resolve the injustice in a court of law.
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Assuming you have been legally arrested, you will be asked to submit to a breath or blood test. This is where it gets interesting. You still do have a constitutional right against self-incrimination and as such you can legally refuse consent to a blood or breath test. The problem is that by being issued a California driver license, you are agreeing to what is referred to as “implied consent” and if you invoke your fifth amendment right against self – incrimination by refusing to submit to a chemical test you will lose your license for one year on a first offense. In other words, because a drivers license is a privilege and not a right, you give up certain constitutional protections as it pertains to your possessory interest in your driver license. Of course, you would be afforded a right to an official hearing with an attorney present to determine if in fact you did refuse the test.
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Finally, it is important to note that if you do refuse to submit to a chemical test and there are no extenuating circumstances that would allow the officer to force the test, a warrant can be obtained and you can be physically restrained and have your blood drawn against your will. It usually makes more sense to agree to submit to the chemical test than it does not to. Remember, if there was some malfeasance on the part of the arresting officer and proper procedures were not followed, you will have your opportunity to have those issues resolved in a court of law. You always have a right to judicial review and most importantly a jury trial by a panel of objective citizens in your community.

For more info please contact Richard McGuire DUI Attorney
(714) 337-9331
http://attorneyrichardmcguire.com

12/07/2017

What is California vandalism penal code

California Penal Code 594(a) states in part: “Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys.”

What is California vandalism penal code

If the amount of damages are $400.00 or more then the charges can be a felony. If $400.00 or less, it is a misdemeanor. In either case, the court can as a term of probation require the defendant to clean up or repair or replace the damaged property himself or herself. This is usually ordered in graffiti type cases. When the property damaged is a vehicle or some other property requiring expert repair, the defendant is responsible for paying for those repairs as a term of probation.

Being convicted of vandalism also impacts the driver’s license. California Vehicle Code 13202.6 (a)(1) states: “For every conviction of a person for a violation of Section 594 of the Penal Code, committed while the person was 13 years of age or older, the court shall suspend the person’s driving privilege for not more than two years, except when the court finds that a personal or family hardship exists that requires the person to have a driver’s license…” This is extremely burdensome and as such anyone charged with this crime should consult with an attorney.

A vandalism conviction should be avoided at all costs. It is possible to resolve a vandalism charge in ways that don’t result in a conviction and license suspension. Penal Code 1377 and 1378 allow for a “civil compromise” in which the accused pays the victim money for the damages to his or her property and if the victim notifies the court in writing or in person that they have been compensated in full and both the prosecutor and the judge agree to dismiss the case, then the case will be dismissed and the defendant will avoid both jail, probation and suspension of driving privilege.

Like any other crime, vandalism does require knowledge and intent. You can’t accidentally commit vandalism, and if it is just an accident, you may be civilly liable for damages but will not be charged with a crime. Always consult with a professional criminal attorney when you aren’t sure.

For more info please call (714) 337-9331 or visit
http://attorneyrichardmcguire.com

12/06/2017

DRIVING ON A SUSPENDED LICENSE

If you have been charged with driving on a suspended license and issued a ticket to appear in court, you may want to consult with a DUI attorney before you go. Driving on a suspended license is covered by California Vehicle Code section 14601.1 and section 14601.2 Both sections are punishable by jail with a first offense up to six months under 14601.1 and up to six months jail and a MANDATORY MINIMUM of ten days in jail for the first offense for a VC14601.2 which constitutes driving without a license because of a DUI conviction.

DRIVING ON A SUSPENDED LICENSE

What may seem like just another “ticket” can actually turn into an extended period of incarceration in certain circumstances. As already stated, VC14601.2 is based on a DUI suspension. All other driving on suspended cases are filed under VC14601.2 These include: where the suspension was triggered by too many points on the DMV record, failure to renew the license, failure to pay child support, or even for a conviction of vandalism or reckless driving. All of these aforementioned will almost always carry a temporary license suspension.
Because driving is such a necessary activity especially in southern California, it can be very difficult to get around without driving. As such, it becomes very difficult to avoid racking up numerous tickets for driving on a suspended license.

This is where an attorney can be very helpful. Even where you may have two or three charges for driving on a suspended license out of two or more courts, the first thing to do is get the warrants recalled if the cases have gone to warrant status. If they haven’t, then the attorney can make the appearances for you and plead not guilty for you. As a strategy, the cases can be continued until the defendant has obtained his or her license and in so doing the court ,(judge or district attorney), will take this into consideration and reduce the sentence or in some cases even reduce the charge to a Vehicle Code section 12500 which is driving without a license in possession. As such it will often be reduced to an infraction from a misdemeanor and will carry no term of probation with a small fine.
Other strategies include pleading guilty to the charge of driving on a suspended license (VC14601) but putting off sentencing for three to six months allowing the defendant to obtain his or her license and bring it to court on the day of sentencing for a pre-agreed upon sentence which is significantly better than what would otherwise would have been .
Judges and prosecutors will usually take this into consideration and reduce the sentence.

DRIVING ON A SUSPENDED LICENSE

Regarding driving on a suspended license because of DUI, the statute is clear: “Upon a first conviction, by imprisonment in the county jail for not less than 10 days or more than six months and by a fine of not less than three hundred dollars or more than one thousand dollars…” Tack on court fees and assessments and the fine will be between $1000 and upwards of $3,500. For most people jail is not an option but the court will not hesitate to impose a jail sentence. There are options that can take the place of spending time in a jail facility. Depending on the circumstances of the defendant, some judges will allow for home confinement or “house arrest”, some judges will allow for work furlough or Caltrans work picking up trash or doing other kinds of physical labor.

Always consult a DUI attorney regarding your DUI case. It can make the difference between a conviction or a dismissal

http://attorneyrichardmcguire.com

12/06/2017

What to do if you get stopped for a driving under influence (DUI)

Being arrested for a DUI or driving under the influence in California is covered by the Vehicle Code statutes 23152(a) through(f). VC23152(a) states: “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” This means that if you have any amount of alcohol in your system and the prosecution can prove that it affected your ability to operate a motor vehicle as a “reasonably prudent person” would, you are in violation of the law. This means that it is quite possible that even if you are under the legal limit as designated by section VC23152(b) .08 percent alcohol in your blood, you can still be charged with driving under the influence of alcohol. Alcohol impairment affects certain individuals differently than others. As such, someone who may not display symptoms of alcohol impairment at .06 might be safe to drive and thus be legal while as some people may feel the effects of .06 blood alcohol level and it may impair their ability to drive safely. How is this determined? Who is impaired and who isn’t? The final decider is the jury. They are the final arbiters of who is impaired and who isn’t, but as far as filing charges, the District Attorneys’ office makes the decision. What do they look for in making that decision? If someone is weaving within the lanes, if the person does poorly on the balance tests and other filed sobriety tests, if they have physical symptoms of intoxication such as slurred speech, slow reaction time, and bloodshot watery eyes. These are all indicators that there is a possibility that the person is driving impaired. Remember, the more factors showing impairment, the more likely the person will be arrested.

what to do if you get stopped for a driving under the influence

Other factors that might trigger a law enforcement stop are falling asleep in the car at a stop light in the middle of the road, excessive speed, driving without lights and other infractions. Remember, the officer only needs probable cause to make a traffic stop. That is, he or she must witness some infraction of the law to make contact with the driver. Once that contact is legally made, then the officer can conduct a DUI investigation and will make a determination as to whether the person is impaired. Remember, you always have a right to an attorney and a jury trial. You are innocent until proven guilty once the trial starts. Just because you were arrested does not mean that you are guilty.

Vehicle Code 23152(b) states: “It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” That means that if there are .08 grams of alcohol in a 100 milliliter sample of your blood or more, you are driving in violation of VC23152((b). But what if you are a regular drinker and you “hold your alcohol well”? Or maybe you don’t exhibit any symptoms of impairment or you were only speeding a little bit and did well on your balance tests. It doesn’t matter. If you have .08 grams of alcohol in 100 milliliters of blood or in 210 liters of your breath, you are in violation of the law. Again, when arrested, the standard is probable cause for there to be a legal arrest. That does not make you guilty. You have the right to have an attorney represent you in court and there are many potential defenses to the charge of driving with over .08 alcohol.

what to do if you get stopped for a driving under influence

An example of a possible defense is that when you were stopped your blood alcohol level was still rising. You just finished your last drink just a few minutes before being pulled over and by the time you submitted to a blood or breath test thirty minutes later, your test result showed a much higher result that what you actually were at the time of driving when the officer stopped you. Of course, the reverse can be true also. If you tell the officer that your last drink was two hours ago and thirty minutes after you are stopped you submit to a breath test and it shows an alcohol percentage of .09, it would be a very difficult if not impossible argument to say that you were still rising and that you were under .08 at the time of the stop. Again, keep in mind, when stopped by an officer for DUI, whether you feel you are impaired or not, always show a respectful attitude and don’t argue with the officer. Comply with all of his directives and address him or her appropriately. If you are right at the limit and show courtesy and respect you just might avoid an arrest and get off with just a warning. Being cooperative does not mean that you are obligated to talk about how much you had to drink or when you started and when you stopped. Those questions all involve potentially incriminating evidence, but you can still be nice when you tell the officer your name and address and that you will submit to the breath test or blood test back at the station. Remember, you are not required to blow into the breath machine on the side of the road. That is the preliminary alcohol screening device. However, once arrested and taken into custody and transported back to the jail or police station and asked to submit to a breath or blood test, noncompliance will result in a one year suspension of your license.

Vehicle Code 23152(d) states: “It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle as defined in Section 15210.” For obvious reasons, truck drivers and commercial vehicles carry a greater risk of injury if involved in an accident and as such the drivers of these vehicles are held to a stricter standard. All other defenses mentioned above still apply.

Vehicle Code 23152(e) states: “It is unlawful for a person who is under the influence of any drug to drive a motor vehicle.” Does that mean I can’t smoke ma*****na and drive my car? It does if it impairs your ability to safely operate the vehicle. If it doesn’t then no problem. Who decides? Just like VC23152(a), the jury gets the final say and the prosecutor looks for the same factors as in the case of alcohol impairment; physical symptoms and erratic driving. Each case is different and there is no clear demarcation as in the case of 0.08 for alcohol. All drugs are covered under this section. They can be illegal drugs or prescribed drugs. It makes no difference You could be charged with driving under the influence of drugs by taking over the counter cough medicine if it can be shown that it impairs driving.

Vehicle Code 23152(f) states: “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.” Some ma*****na by itself may not impair driving but that same amount combined with a little alcohol can be a very potent combination and impair your driving. Most experts would agree. When combing different types of both legal and illegal drugs and with alcohol, the effects of each individual drug can be significantly magnified and it is not a good idea to operate a vehicle when so doing.

Always consult a DUI attorney regarding your DUI case. It can make the difference between a conviction or a dismissal

http://attorneyrichardmcguire.com

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Tustin, CA
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+17143379331

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http://attorneyrichardmcguire.com/

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