Tag Archives: San Jose DUI Attorney

Casey Anthony Prosecutor- Now a Defense Lawyer… Ironic.

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The Casey Anthony trial has come and gone and the attorneys in that case have moved on to new work. One of the prosecuting attorneys for the State was Jeff Ashton, esq. Mr. Ashton decided to retire after the verdict of not guilty was announced in the Casey Anthony trial. He did not state why he was retiring but I think it is safe to assume that the public reaction to the controversial trial. In fact, if I were the prosecutor in that high profile case where most of the world could not see reasonable doubt but I lost the trial, I would probably retire as well.

Mr. Ashton is back in the Florida court. However, this time he is not acting as a prosecutor. Instead, Mr. Ashton is acting as a criminal defense (DUI defense) attorney on behalf of a family member. Mr. Ashton is representing his 21 year old son, Alexander Ashton, for allegedly driving while under the influence of drugs or alcohol (in California, this case would be prosecuted pursuant to California Vehicle Code Section 23152(a) and (b)). Mr. Ashton is pushing his son’s case to trial and a Jury was selected on Monday. The DUI trial in Seminole County was set to begin Today, Thursday February 16, 2012.

 

The Orlando Sentinel wrote an article concerning a report that DUI lawyer Ashton wrote defending his son. More specifically, Mr. Ashton stated that his son deserves the “right to have his day in court like any other citizen.” As a DUI lawyer myself, I strongly agree with Mr. Ashton’s report defending his son and acknowledging that everyone deserves to have the best defense that they can get- that everyone deserves to have someone stick up for them regardless of the allegations. However, I find this statement to be ironic coming from the prosecutor on the Casey Anthony homicide trial.

 

In California, if you are convicted of driving under the influence (DUI/ DWI/ BUI/ BWI), the punishment is severe. A typical California DUI conviction consists of a minimum of two days in the county jail, a fine in the amount of around $2,000, three to five years of probation (informal court probation), a court ordered education class for 3 months (but can be as much as 18 months depending on the circumstances), and a suspension of your driver’s license for at least four months. Act Quick! If you or someone you know has been arrested for a DUI in California, it is important to request an admin per se hearing with the California Department of Motor Vehicles within ten days of your arrest and this includes weekends. Save your license and request the hearing or have an attorney request the hearing for you.

 

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Ignition Interlock Device

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In the state of California, you may be required to install the ignition interlock device on your vehicle after a DUI conviction. The ignition interlock device is a way for the court to ensure that you do not drive while intoxicated and some courts are requiring the ignition interlock to be installed after only your first conviction of a driving under the influence (DUI/ DWI).

The ignition interlock device is a small mechanical device that is mechanically installed and attached to the steering column of your vehicle. The device requires that you breathe into it before starting the vehicle as well as randomly while you drive to ensure that you are not driving while intoxicated. If you have any measurable amount of alcohol in your system, the device will not start the vehicle. The reason that the device checks your breath randomly while you drive is to ensure that you did not consume any alcohol after you started driving and to ensure that you did not have someone else breathe into the device when you started the vehicle.

The 4 counties that are requiring the ignition interlock device on first offense DUI convictions are Alameda County, Tulare County, Los Angeles County, and Sacramento County. This means that if you are convicted of any DUI offense in those 4 counties, you will be required to install an ignition interlock device following a DUI/ DWI conviction.

To get the ignition interlock device installed you must go to an expensive mechanic. More specifically, you must go to an authorized installer that is authorized by the court to install the device. Further, you must provide proof to the court that the device is installed on the vehicle. In addition to installation, the device must be calibrated every 60 days. This requires that you would have to go back to the installer every 60 days where the installer will check for any tampering. If the device has been tampered with, the installer must notify the Department of Motor Vehicles (DMV).

In addition to the ignition interlock requirement, a DUI conviction in San Jose or the bay area requires several other things. First, the court will ask you to pay a fine which is around $2,000. You will also be required to attend alcohol education classes for either 12 hours, 3 months, 6 months, 9 months, or even the 30/30 program. Further, you may face a license suspension as well as face a minimum of 2 days in the county jail. There are certain things that will enhance the penalty that you could face as well- if you were driving at a high rate of speed, if you had a blood alcohol level of .15 or higher, if you had a child in the car, if you have any prior convictions, and if you had an accident. The District Attorney can consider all of the facts in your case and offer you a deal based on all of the facts or you can take the case to trial if you have a San Jose trial attorney.

It is also important to save your license! You have 10 days to request an admin per se hearing with the California Department of Motor Vehicles or they will suspend your license. You can request this yourself of have a San Jose DUI lawyer request if for you. Act quick!

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Three DUI’s in Five Days- Quite a Feat.

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For many people, their first offense DUI is a traumatic experience that leaves them broke and disappointed. Most people who are arrested for driving under the influence believe that the punishment is harsh and burdensome which makes them reevaluate whether or not they are going to continue the destructive behavior of driving while under the influence of drugs or alcohol. A man in his forties, David Lakernafeaux, did not learn from his first DUI arrest. In fact, Mr. Lakernafeaux did not learn from his second DUI arrest. Mr. Lakernafeaux was eventually arrested a total of three times in a five day period. Imagine your typical work week replaced with drinking, driving, going to jail, and repeat. To most of us, being arrested once is enough but Mr. Lakernafeaux was arrested a total of three times in less than a week.

Sherriff’s deputies were dispatched to Seacoast Drive in Imperial Beach at around 6:30 a.m. after a concerned fellow driver called 911 to report a drunk driver (like those blue signs in California tell us to do). When police found the vehicle reported, it was parked oudside of a bar at the intersection of Palm Avenue and Seacoast Drive in Imperial Beach, California. The driver, David Lakernafeaux was inside the bar which had just opened for business that day. It seems that Mr. Lakernafeaux was prompt in getting to the bar as soon as it opened.

 

The deputies went into the bar and found Mr. Lakernafeaux. After only a few questions, they discovered that Mr. Lakarnafeaux had already been arrested for the exact same charge (California Vehicle Code Section 23152 (a) and (b)) twice in the same week. Mr. Lakernafeaux was arrested on the previous Tuesday by the San Diego Police Department and on Thursday he was arrested by the California Highway Patrol.

 

The most recent arrest, In San Diego County, landed Mr. Lakernafeaux a bunk bed at the San Diego Central Jail. He is currently being held on bail in the amount of $100,000 due to the high risk to society. Mr. Lakernafeaux has a scheduled arraignment on the 9 a.m. calendar at the El Cajon Superior Courthouse, according to information obtained from Mr. Lakernafeaux’s jail records.

 

 

 

While Mr. Lakernafeaux may not be afraid of getting a DUI, most people in the same situation find themselves asking many questions and looking for answers. The Law Office of Robert Mortland will answer any of those questions and Mr. Mortland is giving DUI advice for free. That is right, Mr. Mortland does not charge to answer any of your DUI questions and he is available 24/7. Give Mr. Mortland a call concerning your DUI case and Mr. Mortland will give you a free no obligation initial consultation for a DUI over the phone. A DUI arrest does not have to be painful and Mr. Mortland understands how to defend DUI cases to ensure that you receive the absolute minimum sentence possible given the facts of your case.

 

Fatal Shooting in DUI Case

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Police officers routinely make traffic stops because they suspect that a driver is under the influence of drugs or alcohol. Police are also trained to act in a way to protects themselves. More specifically, police are trained to watch your hands when they make a stop. They are looking to see if you reach down to grab a weapon or if you are attempting to destroy evidence of a crime.

In Santa Clara County, a man was pulled over for a routine traffic stop. The officer, was watching the suspect the entire time. When the officer approached the vehicle, he observed that the man he was stopping was reaching down. The Officer was not sure what the man was reaching for but he believed that it may be a loaded handgun stuck between the seats.

The 42 year old man, whom the Santa Clara Police have not yet released a name, was being pulled over because the officer believed that the 42 year old man was driving under the influence (DUI). He was stopped on the 2400 block of Karen Drive in Santa Clara, California.

 

The 42 year old man became uncooperative, and the city of Santa Clara police called for backup, said Santa Clara police Capt. Phil Cooke. Before additional units from other agencies could arrive, the suspect reached for a revolver between the seat in the front, Cooke said. “The officer fired in self-defense based on the suspect’s actions,” Cooke said. “Unfortunately, the suspect was pronounced deceased at the scene, but we’re grateful that there were no other injuries.”

 

The Santa Clara County District Attorney will investigate the fatal shooting by the Santa Clara Police Department and determine if charges will be filed. At this point, the officer, a 2 year officer whose name was not yet released, will be placed on administrative duties until the results of the investigation are released. Contact a San Jose DUI lawyer today if you have been arrested for a DUI! 

 

San Jose Marijuana DUI- Remain Silent.

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Marijuana and DUI’s

In California, you can be charged with a dui pursuant to California Vehicle Code section 23152 if you drive while on drugs or alcohol or both. The most common type of DUI, not including alcohol, is a DUI for driving while under the influence of THC (marijuana).

San Jose marijuana DUI

San Jose marijuana DUI

In California, the state law acknowledges the use of marijuana for medicinal purposes.  At the same time the law prohibits driving while under the influence of the substance. That being said, science has not yet developed a scientific test to determine if someone is under the influence of marijuana and to what extent. Further, the law does not state how much marijuana/ THC must be in a person’s system.  That being said, a DUI arrest for marijuana is extremely subjective and  a case is typically built on admissions from the defendant. More specifically, the officer must testify concerning the defendant’s ability to perform field sobriety tests and the overall appearance of the defendant. The officer will have to say that the defendant had bloodshot watery eyes, he lacked a smooth horizontal gaze nystagmus, there was an odor of marijuana, things like this. A simple blood test alone does not prove anything. THC can metabolize in a persons fat cells for as long as a month or even longer.

A San Jose DUI Defense Lawyer can help your case. An attorney will look at the police reports and determine if there are any critical errors. Further, the attorney may be able to build a case defending you. The bloodshot eyes could be attributed to many other factors- lack of sleep, crying, allergies, reading too many blogs on the computer, Etc. The horizontal gaze nystagmus can be attributed to hereditary factors. The odor of marijuana, while very strong evidence against you, can be negated by stating that these are the clothes you wore days ago when you smoked last or you are borrowing the sweater from a friend that smoked that night.

The most important thing to remember when being investigated for a San Jose DUI based on marijuana is to remain silent. The police understand how hard a marijuana DUI case is to build and make sure to ask you as many questions that could lead to you admitting that you were smoking and driving. Further, police do not have to read you your Miranda rights until you are in a custodial interrogation situation. Thus, your right to remain silent is important in a case where the police need your statements to build a case against you. Contact a San Jose marijuana DUI lawyer today for a free initial consultation. 

Sleeping Under the Influence

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Sleeping Under the Influence.

I have received several e-mails asking if it is possible to receive a DUI if your vehicle was parked and the keys were not in the ignition. A simple answer is YES. In many states, as well as California, you may be arrested for sleeping in your parked car. All the police have to do is prove that you are intoxicated. It is a dead giveaway when the person is passed out in their car. Police can see this a mile away. However, the police do have to prove that you were intoxicated at the time that you were driving. This can be difficult if the police do not know when you pulled over.

 

Mothers Against Drunk Driving are also pushingto have laws passed which state that if you are sleeping in your vehicle, you should be arrested to ensure that you do not drive in the future. What is scarry about this proposal is that the police would be punishing those that do not drive, they simply get back to their car and sleep there. Instead, this may send the message that people should just take their chances. If you are punished the same for sleeping or for driving, why not try to make it back to your house? It appears that the proposal is more concerned with punishment rather than deterrence.

In a particular DUI case where the defendant is caught sleeping in their vehicle, there are 2 issues that a San Jose DUI defense attorney can argue to have the case disposed of in a favorable manner. The prosecutor has to prove driving and has a public policy argument to face.

First, the prosecutor must prove that the defendant engaged in the act of driving. The definition of “driving” varies from state to state but most agree that there must be some type of operation or physical control over the vehicle. The police will typically ask you to submit to an alcohol screening at the time that they find you as well as at the time they bring you into the station. When the police have both test results they will look at where your blood alcohol level was on both tests and look to see if the level is rising or falling. When they have both of these results, they can use math to attempt to prove that you were driving under the influence. It is important to note that the first test, called the preliminary alcohol screening, is not a mandatory test in San Jose or California. You have the right to request that the police do only a breath or blood test and not the PAS test.

Second, prosecutors have a tough jury trial when we look at public policy behind issuing a DUI when someone was trying to sleep it off in their car. A San Jose DUI lawyer can argue that we shouldn’t discourage a conduct that decreases the danger to the public. More specifically, why should someone be punished for attempting to do the right thing. Due to the lobbying by MADD and the Court’s interpretation of the vehicle code, most states have stretched the definition of “driving” beyond recognition.

In these types of DUI arrests, the police will often ask you more questions then a routine stop. This is because they want you to make admissions. They want you to admit that you were driving. They will attempt to build a timeline to establish exactly when you were driving, when you were drinking, when you pulled over, and when the police arrived. They will not tell you this is what they are doing and you can simply tell them that you want to remain silent and do not wish to answer any questions because you do not want to make any admissions. They may arrest you at this point but you will have a much better defense if you do not say anything to the police when you are being investigated for a DUI. Contact a San Jose DUI Attorney. 

New Year, New DUI?

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As the New Year begins, many Bay Area motorists may have found themselves in a position that they did not prepare for before they went out to celebrate son New Year’s Eve. More specifically, some Bay Area residents celebrated the New Year and partook in festivities more than others and are now facing a San Jose DUI. If you found yourself in this situation, you may have many questions- Now what? How do I keep my license? Which attorney should I hire? Should I use a public defender? If you found yourself in this situation, you should contact a San Jose DUI lawyer and ask for a free no pressure consultation. You could discuss the facts of your case to make a more educated decision moving forward with your San Jose DUI Case.

 

Bottle of Wine


With a DUI, the officer will pull you over and ask certain questions. The Officer is very likely to ask you to submit to field sobriety tests or to blow into a preliminary alcohol screening device. In San Jose and the Bay Area, you are allowed to refuse to take both of these tests. However, you may have to submit to a blood or breath test. Depending on your blood alcohol level, how recent you have been drinking, and the amount of alcohol consumed, you may want to elect to take one or the other. Most of the time a blood test is better because the police are required to save your blood sample and your defense attorney could always order a re-test of the blood. It is important to understand that in California if you refuse to submit to a blood or breath test, your license will be suspended automatically.


If you elect to take the field sobriety tests, the results are extremely subjective. An officer can say whatever they want in the police report and they are more likely to sway the facts to make it look like you failed every single sobriety test. There are many factors that a San Jose DUI Lawyer can consider when they build a defense to your DUI case. For example, the lawyer will look to see if the breathalyzer was working correctly by ordering the calibration logs and determining if the results are off. An Attorney can also help you build a case concerning your field sobriety test results. More specifically, an attorney will look at the weather conditions, the footwear that the defendant was wearing, what the road conditions are like in that area, and so on. All of the above factors can be taken into consideration when defending a San Jose DUI case.


In California, a DUI often results in extremely severe penalties. A standard first offense DUI will result in a fine around $2,000, a license suspension of 6 month, a court ordered education class of 30 hours, 3 to 5 years of probation, 2 days minimum county jail time, and possibly the installation of an ignition interlock device. These results get significantly worse if certain factors contributed to the arrest such as: driving at a high rate of speed, having a child under 18 in the vehicle, if you have had any prior convictions in the past 10 years, if your blood alcohol level is above a .15 or a .20, if you were involved in a collision, and many other facts can increase the punishment that the District Attorney will seek.

 

A San Jose Defense Attorney will discuss the facts of your case with you, explain the potential defense, explain the maximum and minimum penalties, and will work with you every step of the way to secure the best possible result for your case. Call Bob Mortland today for a free confidential initial consultation.