FAQ

Car accidents happen on a daily basis in California. There are small fender benders and serious accidents that lead to death. While the possibility of an accident is not something you tend to focus on regularly, things can quickly change. If you were at fault in a car crash that led to someone’s death, you could be facing some severe charges. In fact, you might be accused of vehicular manslaughter.

Vehicular manslaughter can be charged as either a misdemeanor or felony offense. The prosecution will look at whether you were engaging in negligent actions at the time of the deadly crash. If you were drunk when the accident took place, you could be charged with vehicular manslaughter while intoxicated, which falls under California Penal Code 191.5(b).

For the prosecution to successfully convict you of vehicular manslaughter while intoxicated, they will have to prove that you were in fact driving under the influence of drugs or alcohol. They will also need to show that you were driving in a negligent manner, which led to the other person’s death.

What you need to understand is that if you were drunk when the accident happened, the prosecution will likely charge you with vehicular manslaughter while intoxicated, even if you believe the crash was unavoidable or you were not at fault. The assumption is that since you were drunk, you are the one to blame.

Most importantly, you need to request a hearing within the first 10 days. If you do not request a hearing within this period you will lose your right to a hearing. Your lawyer can request the hearing for you. Your lawyer will obtain all the necessary documents to review your case and to advise you. Most importantly, your lawyer will represent you at the DMV hearing.

A hearing officer will receive evidence, including reports from the arresting officer, and decide what, if any, action to take. In most cases, the hearing officer will not take live testimony but will instead rely on the written reports of the officer to reach a decision. Generally, before the hearing officer can suspend a license, there must be sufficient evidence that you were driving, that you were lawfully arrested and that your blood alcohol level exceeded .08%. If there was a refusal of a chemical test or prior offenses, these issues will also be addressed at the hearing.

A careful review of the reports submitted by the police must be completed by your lawyer. If there are omissions, errors or inconsistencies in the report, this might be enough to persuade the hearing officer to not take action. Another common defense at the DMV is contesting the reason for the stop of the car. For example, arguing or presenting evidence that there was no violation of law that lead the police to stop the car. In cases where the police did not see driving such as traffic collisions or where a car is simply parked it can be argued that there is insufficient evidence of driving. Another good area for attack is the breath or blood result. In breath test cases, police must comply with a variety of technical laws including a “15-minute observation period.” The officer conducting the testing must be certified and the device must be properly calibrated. With blood testing, there must be certified documents received from the crime lab that all must be in order. Non-compliance with proper procedure is a ripe area for defense at the DMV hearing. Another very common defense at DMV hearings is the “Rising Blood Alcohol Defense” wherein it is argued that the true blood alcohol level at the time of driving was actually below .08% even if a later test registered above. At our firm, we often employ an expert witness to testify to the lack of sufficient evidence of blood alcohol level above .08% at the time of driving.

In most cases, a person will be eligible for a restricted license at some point if the DMV rules against them at the DMV hearing. Generally, in order to obtain the restricted license the person must enroll in an alcohol education class, provide proof of insurance and pay a fee in order to obtain the license. In first offense cases, a person is generally able to get a restriction after 30 days. If a person has prior convictions there is a longer waiting period.

The date on your citation is your arraignment date. Generally, your attorney can appear on your behalf at the arraignment. Your attorney will retrieve the reports and continue the case and then meet with you quietly in the office to review plan a strategy for your case. In most cases, your attorney can make all the necessary court appearances for you. Your lawyer will meet with you and review all the reports and go over options and develop a strategy to defend your case. Your attorney will meet with the prosecutor at later dates and negotiate a settlement for you. In certain cases, and only if you think it is in your best interest, the case will proceed to a jury trial. The more prepared and experienced your lawyer, the better result.

There are a wide variety of defenses available to one charged with DUI. They include the following.

• Insufficient evidence of “driving” or a lack of a good reason for the police to stop your car.
• Age, obesity or physical problems that explain difficulties on the field sobriety tests.
• An attack on the breath test or blood test that may include an argument that there was an insufficient “15-minute observation period,” that the person belched or had gastrointestinal reflux disorder causing the instrument to read high or that the accepted rate of error of +/- 10% on the breath and =/- 5% on the blood testing shows a BAC close to or below .08%. In blood cases, we often recommend an independent testing of the blood. Often our results are less than that found by the crime lab.

In most cases, a first offense conviction will NOT result in jail time. Don’t let anyone use scare tactics to tell you differently. A fine, an alcohol program and possibly attendance at a Mothers Against Drunk Driving are common penalties. Importantly, if you are convicted in California it will be mandatory through the DMV that you install an ignition interlock device in your vehicle for a minimum of 90 days. If you refused to take a test, were involved in an accident or have prior offenses there are more severe penalties.

There are four common charges that are reductions from DUI related charges (23152(a) and (b)).

23103 pursuant to 23103.5

This reduction is commonly referred to as a “wet reckless”. The penalty is commonly an alcohol awareness class and a fine. The benefit of this reduction is that the DUI counts are dismissed. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). It is important to know, however, that this charge will count as a “prior” if a person is arrested for another DUI within 10 years.

23103(a)

This reduction is commonly referred to as a “dry reckless”. The penalty is commonly an alcohol awareness class and a fine. The benefit of this reduction is that the DUI counts are dismissed. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). This charge CANNOT be alleged as a “prior offense” should you be arrested again for DUI.

23109(c)

This reduction is commonly referred to as “speed exhibition”. The penalty is commonly a fine only. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). This charge CANNOT be alleged as a “prior” offense should you be arrested again for DUI.

“Two Movers”

Just like it sounds, this reduction involves a plea to two traffic infractions. The penalty is commonly a fine only. No ID and the convictions cannot be alleged as a prior offense.

The decision to retain an attorney is an individual one. If you cannot afford an attorney you can ask the court to appoint a public defender. Abraham Lincoln is quoted as saying: “He who represents himself has a fool for a client.” Being arrested for DUI is serious. There are potential license consequences and court penalties that should be addressed carefully by a professional.

Start with the assumption that most sex crimes are felonies in California. However, some offenses that may be misdemeanors in some circumstances include molestation of a child; lewd acts in public; indecent exposure; soliciting a prostitute; prostitution; soliciting a minor; and sexual intercourse with a minor who is less than three years younger or older than the perpetrator.

The short answer to this question is: Conviction for most sex crimes in California triggers a requirement of sex offender registration. For a more detailed answer relevant to charges or allegations against you, consult with a defense attorney as soon as possible.

Since January 1, 2021, California has had a three-tiered system for determining how long a sex offender must register, as follows:

• Tier 1: At least 10 years’ registration for offenders convicted of the lowest level sex crimes such as indecent exposure
• Tier 2: At least 20 years’ registration for offenders convicted of mid-level sex crimes, including nonforced sodomy with a minor under age 14
• Tier 3: Lifetime registration for offenders convicted of the most serious sex offenses including rape

Some sex crime convictions in California may be expunged under certain criteria, but sex crimes involving children – even misdemeanors – can never be expunged in this state.

The problem with the use of a firearm in the commission of a crime is that it raises the seriousness of the offense. For example, if you discharged a firearm from a vehicle, intending to kill a person outside of that vehicle, special circumstances will attach to your case by virtue of the gun use. Special circumstances can result in harsher penalties, such as the death penalty or life without the possibility of parole.

You can be charged with carrying a weapon even if it was designed for uses other than violence.

To be convicted on a weapons possession charge, however, a defendant must know that the object is a weapon. If the alleged weapon is capable of innocent uses (in other words, the object is not a weapon “per se” or “on its face”), the prosecution must prove you possessed it “as a weapon.” In those cases, the prosecution may try to use the location of the alleged weapon (in your car, beneath the driver’s seat, on the front passenger seat, glove box, other places where it was easily reachable) to show that you possessed it to be used as a weapon. The prosecution may also show whether the object was changed from its standard form or introduce any other evidence that the object would be used for a dangerous purpose rather than a harmless one.

Ernenwein & Mathes, LLP, continues to successfully represent defendants against weapons-related charges, including possession, shooting a firearm, personal use, firearm enhancements, assault with a deadly weapon, and cases where special circumstances apply due to the use of a weapon or firearm.

Yes! Firearms and weapons laws in California are among the most complicated laws in the state. If you have been accused of a firearm crime, you need a criminal defense attorney who is highly knowledgeable in the field of firearm and weapons law. This knowledge and experience can be essential in forming a defense in your case.

For instance, under California Penal Code section 12301(j), a person who “reasonably believes” that his or her property is in immediate danger is permitted to carry a loaded firearm. Also, under Penal Code section 12301(l), any person is permitted to carry a loaded firearm at their place of residence, which includes “any temporary residence.” You are also generally permitted to carry a firearm from a gun shop or to and from a gun range.

There are several other important exceptions to the firearms laws in California, and if you have been charged under these laws, it is always in your best interest to consult an experienced attorney about your rights. At Ernenwein & Mathes, LLP, your first consultation with an attorney is always free.

In California, you may be considered guilty of felony arson if you deliberately set fire to your own home to defraud an insurance company, or if the fire injured another person or their property.

If you have been charged with felony arson, prosecutors may try to prove that the fire was not naturally caused and that you set it. If you are charged with felony arson, do not make a possibly incriminating statement to the police; call a lawyer immediately.

Torrance criminal defense lawyers use three common defenses against arson charges, including wrongful identification, insufficient direct evidence and proving that the fire was caused accidentally rather than deliberately.

Defined by California Penal Code 452, “unlawfully causing a fire” is a less serious charge than felony arson and involves reckless rather than deliberate action.

The penalties for felony arson in California can range from two to nine years, although certain factors can add to the penalty, including:

• Whether the fire injured anyone, including building inhabitants or firefighters
• Whether the fire affected the defendant’s personal property or the property of others
• Whether the fire affected one or multiple buildings and whether any of those buildings were inhabited
• Whether the defendant has an arson violation on their record

The cost of hiring a criminal defense lawyer in Southern California will vary based on the severity of your charge, including:

• Whether it is classified as a misdemeanor or felony
• What your existing criminal record looks like
• The location of the attorney’s law firm
• The knowledge and experience that they have

Therefore, it is critical to discuss the potential costs associated with your case, including legal fees, while consulting with your potential criminal defense lawyer.