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Articles in Home | Society | Law & Legal Sort By: Title|Newest|Oldest Business Entities – A Quick Guide  By : Richard Chapo Business entities comes in so many types that business owners can easily get confused. Here’s a quick guide that will hopefully shed a little light on business entities for you. Business Entities – Filings With The State  By : Richard Chapo Nearly all small businesses should form entities to limit their exposure to civil liability in the form of lawsuits. In forming an entity, certain documents have to be filed with the state in question. Business Entity Mistakes – Criminal Conduct and Independence  By : Richard Chapo In this age of information, most small business owners understand they need the protection provided by a corporation or limited liability company. Such protection, however, can be lost though certain actions. Business Name – How To Pick One From A Legal Perspective  By : Richard Chapo A business name can be a huge factor in the ultimate success or failure of the entity. Unfortunately, many people fail to give a lot of thought to it prior to moving forward. There are many factors to consider including something memorable, a name related to your area of work and, potentially, the availability of the domain name. Business Strategy – Year End Considerations  By : Richard Chapo As we enter the final weeks of 2005, you are undoubtedly hunting for gifts. While these are obvious year end considerations, you should also be reviewing your business strategy for 2006. Bylaws – The Guts of a Corporation  By : Richard Chapo Most states make forming a corporation relatively painless by providing forms for practically everything. The bylaws of the corporation, however, are an area you don’t want to rely on a form. California Business Entities – How Long Does It Take To Get Approved?  By : Richard Chapo You’ve done your research and have decided on a business entity. You’re chomping at the bit to open a bank account and get moving. You file your corporation or LLC with the Secretary of State and wait…and wait…and wait. Just how long is this going to take? California Businesses Incorporating In Nevada  By : Richard Chapo California is a notoriously bad state to do business in. Regulations, worker’s compensation and tax issues overwhelm companies. Seeking relief, many incorporate in Nevada. Unless done carefully, this decision can lead to disaster. California Limited Liability Company – An Overview  By : Richard Chapo Many people are surprised to learn that the LLC business entity is a fairly recent phenomenon. Wyoming was the first state to legislate the creation of LLCs in 1977. Most states didn’t jump on the LLC bandwagon until 1988 when the IRS classified the LLC as a pass through entity for tax purposes. This ruling turned LLCs into the popular monster they are today. Now every state has legislation allowing the creation of LLCs and California is no different. Copyright – What Can You Protect?  By : Richard Chapo The legal protection known has “copyright” has come front and center over the past few years with major legal rulings regarding peer-to-peer networks on the Internet. Copyright protection, however, can be a confusing area of the law. This article details what can and cannot be protected by copyright. Need a Lawyer?  By : Troy Porter Everyone will need a lawyer at some time in their life. Finding one that you are comfortable with and confident in can be difficult. There are a few simple things you should consider before hiring a lawyer. Selecting Judge: Hurculean Task  By : aditi sambhar The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process," the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: "[judici 'Help The Court Has Seized My Assets' - Garnishment In Law And Practice  By : Henry Byers - A court order that seizes assets from the defendant to pay off a debt is known as Garnishment. One form of garnishment is automatic withholding of the debtor’s wages. When a creditor fails to satisfy the debt taken, the court can issue a garnishment against him. When the creditor petitions the court to send a portion of its pay to satisfy the debt then this step is taken. The garnishment law differs from state to state and varies in details also. Generally, the TVA is req... Legal issues about Trademarks and Domain Names  By : Word Content Trade marks are a name or symbol that are used to distinguish the goods of services of a particular company from others. Similar to copyrights and other signs of intellectual property, the effects of the trademark system is territorial. This means, that each country has its own trademark system. Criminal Background Check Get it Quickly Online  By : Bob Benson How often have you been searching for a phone number or address and seen an advertisement for a criminal background check? Physician Assisted Suicide and The Art of Care  By : Sam Oliver In an age of managed care, rationing of care, and technological care, there is The Art of Care. We live in a society that has been given various choices to “self-determine” one’s destiny in dying as one has been able to “self-determine” one’s destiny in life itself. Lawyers & How They Negotiate Personal Injury Settlements  By : Aurel Radulescu If you have recently been injured in an accident through no fault of your own, you may find yourself in a sea of lawyers without knowing which one to choose. After being injured, many individuals turn to lawyers for help in protecting their rights and helping to ensure they are fairly compensated for lost wages, medical bills and pain and suffering. Estate Planning Basics  By : Kelly Y. Chang, Esq. Benjamin Franklin famously said, “In this world, nothing is certain but death and taxes.” Unfortunately, you can’t avoid death. But a carefully-drafted estate plan can help avoid taxes, family conflicts and a lot of unnecessary heartache. The following provides a general overview of the estate planning process, and what to expect. The Non-Profit ByLaw Legal Form  By : Michael Colucci The non-profit bylaw legal form does not have to be a difficult problem. Here is the easy answer to your legal form needs. Lung Transplant Lawyer  By : Todd G Many United States workers have manual labor jobs that require them to work in coal mines and other areas that require the use of dust respirators or masks. Dog Attack Lawyers  By : Todd G Dog attacks have been a serious problem in the United States. Reports estimate that around twenty Americans each year are killed by dog attacks. Certified Legal Nurse Consultant Spots Medical Negligence Where it's Least Expected  By : Vickie Milazzo When an attorney takes on a medical-related lawsuit, the attorney is confronted with enormous volumes of medical records. Yet his client's future depends on the attorney understanding those records and using them to support the case effectively. Beat that speeding ticket  By : Carl Carlson Speeding tickets are a safety measure taken for safe driving. Your fast speed may prove to be faster for another person on the road to final upliftment Medical Malpractice – You Are Not Helpless  By : Kael To often, the general public just sits back as very qualified doctors and medical professionals make mistakes in the normal course of their everyday business. Their business is the treatment of us, the average citizen. Over the years we have placed Doctors (and some extent Lawyers) on top of pedestals which puts them out of reach of any retribution for wrong doings. Criminal Background Checks: A Necessity In Our Society?  By : Crimechecker A criminal background check can and should be used in any situation where safety or trust is an issue. Don't become a victim of violence when you can protect yourself in such an easy and valuable way. Surrogacy  By : Barry Hooper Imagine infertility. Imagine never being able to have your own child. Lemon Law Lawyer Could Be Useful  By : essmeier Hiring an attorney to help you with your lemon law claim could be quite helpful. While the system is designed to be "do it yourself", it never hurts to have professional help. Move Away Cases  By : dave4 Move away cases occur when one parent, usually the custodial parent, chooses to move to a location that either severely limits or eliminates the other parent's ability to have contact with the children. Affidavits Are Also Affirmations  By : Michael Colucci Affidavit is both a legal and moral piece of document. The value of affidavit can add or diminish a person's true worth... Power Of Attorney Power Packs In A Paper  By : Michael Colucci The Power of Attorney is a very powerful legal document. Countless business transactions have been accomplished when a principal legally authorize an agent through the power of attorney to conduct his affairs in his behalf. Difference Between Solicitors and Barristers  By : dave4 Every country has its own regulation with regards to legal profession. The legal profession in England, New Zealand, Wales Australia and Canada is composed of two different groups which are the Solicitor and the Barrister. Lemon Law Basics Reviewed  By : jdschuman3 In this article we look at a few lemon law basics you need to know when deciding to pursue a possible case in your favor. Supplement Regulating – Is it a good idea?  By : VitaNet® Health Foods Under the Adverse Event Reporting (AER) bill before Congress, dietary supplements could eventually be taken off the over-the-counter status. In this day of offhand and frivolous lawsuits, Congress is poised to pass legislation that would allow private citizens to sue the supplement manufacturers, and possibly the marketplaces as well, for health related issues allegedly caused or aggravated by dietary supplements. Importance Of Criminal Background Checks  By : florence A criminal check is a part of the background check done for pre-employment screening. A criminal background check has become an inexpensive way of legally obtaining details about a person. The details of the person can even be provided to the companies through their websites online and the results would be produced as soon as possible depending on the extent of the background check required. So you got a Speeding Ticket, so now what?  By : Dick Web Got a speeding ticket? Learn the what you can do to get out of it. IP Briefing Note - Intellectual Property Law & Copyright  By : pete arkwright A briefing note on copyright law Copyright FAQs - What Exactly is the Significance of the © Copyright Symbol?  By : pete arkwright A briefing on copyright notices and use of the © copyright symbol Trade Marks & Service Marks on the Internet  By : pete arkwright An overview of the use of trade marks and service marks on the Internet Class Action Lawsuits – Individuals Against Corporations  By : James Johnstone Class actions are a thorn in the side of large corporations. The help give the little guy a much needed voice. They also help reduce pressure on the legal system. However they do have their detractors who are against the systems and suggest that lawyers are the ones who are truly winning by abusing the system. The Claiming Compensation Culture in Europe  By : Martin Bleasdale Over a decade ago in the USA the compensation claim culture came to rise, this has now followed into Europe, but what is compensation culture and is this a positive or negative part of our society ans European Law? Accident Reconstruction  By : Darren K Accident reconstruction is an important, but often overlooked tool, of a DUI defense. Where there has been an accident, the responding police officers and detectives write a traffic collision report. This is often the only means the prosecutor will be able to piece together the events leading up to the crash and its aftermath. The Process in a Felony Case  By : Darren K The arraignment is the first court hearing in a felony case. An arraignment follows the constitutional principles of speedy trial rights and the ability to hear the charges being held against the defendant. Both in-custody and out-of-custody defendants must be arraigned without undue delay, no more than two calendar days after arrest, excluding Sundays and holidays. The Process in a Misdemeanor Case  By : Darren K The arraignment is the defendant’s first court hearing after the arrest, booking, and initial bail phases of the criminal process have taken place. This is usually the first opportunity for the defendant to hear the charges pending against him and provides the defendant the opportunity to plead to those charges. A prompt arraignment is related to the Constitutional safeguard of providing a “speedy trial.” The arraignment date will be dependant on several factors. The defendant's custodial st Wobblers vs. Wobblettes  By : Darren K In California this term is used to identify crimes that are punishable either as a felony or as a misdemeanor. There are over a hundred cases that can be classified as either a felony or a misdemeanor. This distinction can be found in the Penal Code. These types of cases are referred to as “wobblers” due to the sentencing structure. In other words, wobbler crimes are those that could bring a sentence of state prison, county jail, or fines. Who has burden in DMV Hearings  By : Darren K The DMV has the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof is that there is more evidence weighted towards driving under the influence of alcohol than not. State law has mandated that the burden rests with the DMV to justify its order of suspension. “Davenport” Issues at DMV Hearings  By : Darren K The Davenport case holds that the arresting officer’s written statement is sufficient to support the DMV’s suspension of the defendant’s driver’s license. The Davenport court held that the officer has a duty to administer chemical tests according to methods that are designed to assure reliability. Similarly, California Evidence Code Section 664 gives the presumption that the officer’s official duty has been “regularly performed,” thus giving rise to an inference of the reliability of the test. DMV and court: two separate processes.  By : Darren K When someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an alleged blood alcohol content (BAC) over .08 percent, unless an Administrative Per Se (APS) hearing is requested within 10 days of the DUI arrest. The court case commences with the arraignment date, which is usually held within 45 days of arrest. Both cases are held in locations that are the closest, geographically, to the site of the initial DUI arrest. "Downer" issues in DMV Hearings  By : Darren K The Downer case dealt with California Evidence Code section 1280, the official records hearsay exception. Hearsay involves any statement made outside of court, offered to prove the truth of the matter asserted. Forensic laboratory reports are hearsay, because they deal with events and statements that took place in a place outside of the courtroom, and are used to convict the defendant of a crime. However, forensic reports can be entered into evidence under the official records hearsay exception. Section 1280, titled “Record by public employee” states: How does Evidence Code Sec. 664 apply to DMV Hearings  By : Darren K California Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer’s sworn statement, except when it is clear that the trustworthiness is not established when the officer incorrectly reports all the facts in the sworn statement. How does Evidence Code Sec. 1280 apply to DMV Hearings  By : Darren K A police officer’s statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280, titled “Record by public employee” reads: Pros and cons of in-person vs. telephonic DMV Hearings  By : Darren K The Administrative Per Se (APS) hearings are held in the DMV Driver’s Safety Office nearest to the location of the arrest. The APS hearings are run by DMV employees, called hearing officers. The request for the APS hearing must be made within 10 calendar days of the arrest, or else the defendant’s license will automatically be suspended 30 calendar days after the date of arrest. Standard of proof in DMV Hearings  By : Darren K The standard of proof at DMV hearings is the preponderance of the evidence standard. This level of proof is required in most civil cases, which DMV hearings can be likened to, as opposed to the criminal court trial where the burden of proof is beyond a reasonable doubt. The preponderance of the evidence standard merely requires that there be more evidence in support of a defendant’s guilt than not. Battery on a Peace Officer  By : Darren K The crime of battery occurs with the striking of someone, with intent to harm them. . California Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.” It is a crime to commit a battery against a peace officer, whether they are on duty or off duty. Evading a Peace Officer  By : Darren K The crime of evading a police officer is a misdemeanor. A misdemeanor is a crime punishable by a term in the county jail, up to one year. There are multiple reasons why evading a police officer is unlawful, including interfering with the duties of a police officer in the scope of their duties, and the danger to the public in fleeing from the officer, oftentimes involving high speeds and other traffic violations, like running red lights. However, in order to convict someone of evading, a number of criteria must be met. Intro to Defiance  By : Darren K It is a crime to act defiantly to law enforcement. Such categories of defiance include the act of evading a police officer who is trying to pull you over, resisting a police officer or firefighter when they are engaged in their duties, and battery on a police officer. Resisting Peace Officer or Firefighter  By : Darren K California Penal Code Section 148 makes it a criminal offense to willfully resist, delay, or obstruct police officers and firemen when they are performing their duties. The punishment varies with the degree of the offense, as a misdemeanor or a felony. Some of the offenses are “wobblers,” meaning that the crime may be punishable as either a misdemeanor or felony. DMV Hearings  By : Darren K The California Department of Motor Vehicles has the jurisdiction to administer an Administrative Per Se, commonly known as APS, hearing affecting the driving privileges of the DUI offender. The DMV case is totally separate and independent from the criminal case. Therefore, a DUI defendant must defend himself twice-at both the DMV and at criminal court. This also means that the DUI defendant gets punished twice. Forging a Prescription  By : Darren K Forging a prescription is against the law. It is generally defined as the illegal acquisition of pharmaceuticals for personal use or profit. People commit prescription fraud in many ways, including going to multiple doctors for multiple prescriptions, and forging the quantity on the prescription to increase the quantity. The biggest factor driving prescription fraud is the increasing abuse and addiction to prescription drugs. Health and Safety Code Section 11368 defines the offense and the punishment, reading: Intro to Drugs  By : Darren K California is the nation’s leader in drug arrests. A drug arrest causes major havoc in a person’s life, because the penalties are harsh, with imprisonment in county jail or state prison. A drug arrest can follow a person through their whole life, because a criminal record lasts a lifetime. Although there are many different types of drugs, the most commonly prosecuted are: Maintaining Place for Selling or Using Controlled Substances  By : Darren K It is illegal to maintain a place for selling or using controlled substances. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Marijuana Cultivation  By : Darren K It is illegal to grow, or cultivate, marijuana. The California criminal jury instructions gives guidance to the factors that the prosecution must prove in order to successfully convict someone of this offense. Possession for Personal Use  By : Darren K Possession of drugs for personal use requires the following knowledge:  Knowledge of the presence of the controlled substance  Knowledge that the substance is in fact a controlled substance. It is not necessary that the defendant know the chemical name or the precise chemical makeup of the substance. Possession for Sales  By : Darren K Possession for sales of illegal drugs may be classified as a misdemeanor, felony, or “wobbler.” A misdemeanor is a crime punishable by a maximum of one year imprisonment in county jail. A felony is punishable by imprisonment in the state prison. Either of these classifications may include fines. A felony term in state prison may have a range of years for sentencing purposes. Possession of Precursors (Meth or PCP)  By : Darren K Not only is it illegal to possess methamphetamine or PCP, but it is also illegal to possess the ingredients with the intent to manufacture these drugs. Special Considerations in Drug Cases  By : Darren K Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or deferred entry of judgment (DEJ), both of which divert from criminal prosecution only people charged with simple possession or being under the influence. Both programs require the defendant to attend and complete a certified or approved drug rehabilitation program. When the treatment is complete, the defendant's conviction is erased from the record. The goal of both programs is rehabilitation rather than punishment, but there the similarities end. DUI and Motorcycles  By : Darren K Alcohol intoxication is a leading factor in motorcycle accidents and fatalities. Law enforcement officers have been trained to identify driving patterns that indicate a probability that a motorcyclist is driving while intoxicated. The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA). “Alcoholic Beverage”  By : Darren K In order to be convicted of a California DUI or drunk driving (driving while impaired by alcohol, or under the influence of alcohol), it must be proven beyond a reasonable doubt that the person was under the influence of an alcoholic beverage, which caused the driver to either drive without due caution or it is proven the driver’s blood alcohol content (BAC) was at or above .08%. Where a driver’s blood or breath alcohol content exceeds the legal limit, it is considered a violation of the “per se” law. “Driving”  By : Darren K “Driving” is one of the required elements of a DUI offense. Driving requires "volitional movement of a vehicle." In everyday usage the phrase, "to drive a vehicle," is understood as requiring evidence of purposeful, actual movement of a vehicle. DUI Elements: Alcohol  By : Darren K To obtain a conviction for driving under the influence, the prosecution must prove that the defendant drove a vehicle while under the influence of any alcoholic beverage. Per Se Rule  By : Darren K In order to be convicted of a DUI, the prosecutor must prove beyond a reasonable doubt that the defendant was driving under the influence of alcohol. The types of evidence which normally support this charge are: driving pattern, physical appearance, performance on field sobriety tests, and the results of chemical tests. However, the fact is that many people can drive at or above the legal limit (at .08% BAC) and have a perfect driving pattern, none or few physical symptoms of intoxication, and perform the field sobriety tests with flying colors. This can primarily be explained by the theory of tolerance. Some people have a high tolerance, be it by their very biology, or through years of drinking. “Under the Influence”  By : Darren K There are two different types of DUI offenses that may be charged, depending on whether the person had a blood alcohol content below .08 percent or at or above the .08 percent. BAC is measured by the grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. BAC is tested by way of blood tests or by breath tests which use fuel cell and infrared technology. “Vehicle”  By : Darren K In order to be arrested and convicted of a DUI, the individual must be driving a vehicle. The California Vehicle Code defines vehicle as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks." Automobiles, trucks, motorcycles, mopeds, and snowmobiles fall within the classification of a vehicle. Federal Crimes  By : Darren K Federal crimes are those crimes which fall under federal jurisdiction. Congress enacts laws in areas that fall within federal jurisdiction. Typically, these are laws and regulations dealing with federal property, federal matters and federal taxes. Additionally, there are significant federal crime laws governing interstate commerce. Carrying Concealed Weapon  By : Darren K Generally, California law prohibits any individual from carrying a loaded firearm of any kind on his or her person or in a vehicle while in any public place or on any public street in an incorporated city, or in any public place or on any public street in a prohibited area of unincorporated territory. A loaded firearm refers to a firearm that has a cartridge or shell in a chamber, clip, or magazine that is located inside of or is attached in some way to the firearm itself. California Penal Code Section 12025 reads in pertinent part: Possession of Weapons/Explosive Devices  By : Darren K California law prohibits convicted felons, violent offenders, the mentally ill, persons with restraining orders and other specified individuals from possessing a gun. This included people convicted of misdemeanor crimes of domestic violence. Shooting From a Motor Vehicle  By : Darren K Shooting a firearm from a motor vehicle, commonly known as a “drive-by” shooting, results in increased penalties. It is a felony punishable by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. Consecutive punishment means that the additional term would follow any other term of imprisonment imposed. Consecutive punishment adds more years of imprisonment as compared to concurrent punishment which allows for the crimes to be served at the same time, resulting in less total years of imprisonment. Homicide: Intro Page  By : Darren K Homicide is the unlawful killing of another human being. Included among homicides are murder and manslaughter, of which there are varying degrees and types. Manslaughter  By : Darren K Manslaughter is defined as killing a person without premeditation or malice aforethought. Malice aforethought means having an evil intent prior to the killing. Like murder, there are different degrees of seriousness of manslaughter: voluntary and involuntary. Manslaughter While Operating a Vessel  By : Darren K Manslaughter is the unlawful killing of another person, without having the intention to kill (known as malice aforethought-a prior intention to kill). Manslaughter may be either voluntary or involuntary. Voluntary manslaughter is generally defined as a killing occurring upon a sudden impulse. Involuntary manslaughter is generally defined as an unlawful act which causes death, but would not ordinarily be expected to result in great bodily harm or death. Murder  By : Darren K Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. There are two types of murder: murder in the first degree and murder in the second degree. In order to bring murder charges, the victim must die within a year of the crime causing his death. Murder is defined in Penal Code Section 187. Special Circumstances Murder  By : Darren K Under California law, a person found guilty of murder in the first degree can be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. However, if the jury finds that the murder was committed under special circumstances, the only penalty is death or life without the possibility of parole. The California Penal Code lists the special circumstances that must be considered by the jury: Special Circumstances Murder  By : Darren K Vehicular manslaughter is a type of involuntary manslaughter which does not require the element of an intention to kill. The only difference between a vehicular homicide and other homicides is the use of a motor vehicle as a weapon, as opposed to a gun or knife. This does not change in any way the elements required to be proved for murder. As long as the elements for murder can be proved, a vehicular homicide defendant can be tried for murder just like someone who uses a gun. Investigation of DUI Cases:  By : Darren K The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA). NHTSA has delineated a number of “cues” that police officers can look for in detecting intoxicated drivers driving at night. The list presented below represents, in descending order, the visual cues giving rise to the probability that the person observed is driving while intoxicated. Often, police officers will observe several cues in conjunction, which increases the probability that the driver is intoxicated, that is, driving with a blood alcohol content (BAC), over the legal limit. Studies have indicated that cues by themselves or in conjunction with other cues, give rise to a statistical probability of intoxication. Investigation of DUI Cases: HGN  By : Darren K Horizontal Gaze Nystagmus (HGN) is an eye test. Nystagmus is defined as an involuntary jerking of the eyes as the eyes move from the center position off to the side. Alcohol and some drugs cause HGN. If administered properly, HGN is 77% determinative of the subject having a blood alcohol count (BAC) over .10 percent. Investigation of DUI Cases: Give Examples of Non-Standardized FST’s  By : Darren K Law enforcement agencies employ a number of different field sobriety tests to determine enough probable cause to make an arrest for drunk driving. The National Highway Traffic and Safety Administration (NHTSA) has conducted studies which have determined that some tests are accurate indicators, to a degree, of a blood alcohol content (BAC) above .10%. However, law enforcement agencies often use non-scientific tests, or non-standardized field sobriety tests, to determine intoxication. These tests include: Investigation of DUI Cases: OLS  By : Darren K The One-Leg Stand (OLS) is a test that is performed in a stationary position. If administered properly, the OLS has a 65% accuracy rate in determining a blood alcohol content (BAC) above .10%. Proper administration of the OLS requires a reasonably dry, hard, level and non-slippery surface. If the subject is wearing heels above 2 inches, they should be allowed the opportunity to take them off. Investigation of DUI Cases: What Physical Symptoms?  By : Darren K Officers will observe the physical appearance of the alleged intoxicated driver very closely. This is done to determine symptoms of intoxication in order to form the basis of arrest (probable cause). The symptoms will be included in the arrest report for the use by the prosecuting attorney in the prosecution of the driver for DUI. Investigation of DUI Cases: Walk and Turn (WAT)  By : Darren K The Walk and Turn (WAT) is a walking test. If administered properly, the WAT is 68% accurate in determining blood alcohol content (BAC) above .10%. In order to be administered properly, the test must be conducted on a reasonably dry, hard, level, and non-slippery surface. There should be a designated straight line. However, courts have allowed the introduction of the results of this test into evidence where there has not been a designated line. In this case, defense counsel will attack the weight of the evidence. If the subject is wearing heels above 2 inches, they should be given the opportunity to remove their shoes. Investigation of DUI Cases: What are the SFST’s?  By : Darren K The National Highway Traffic and Safety Administration (NHTSA) has done extensive studies of field sobriety testing (FST’s) in order to determine the probability of intoxication. Law enforcement agencies have utilized FST’s for many years to develop probable cause for arrest and as evidence to be used in the prosecution for drunk driving. However, not all FST’s have been scientifically determined to be accurate reflectors of alcohol intoxication. NHTSA has determined that three FST’s are accurate indicators of alcohol intoxication, when administered in a standardized manner. These tests are called Standardized Field Sobriety Tests (SFST’s): Jury Instructions  By : Darren K Jury instructions are the judge's directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply. Although the court has discretion to give instructions at the beginning of trial, it is customary to give the instructions after closing argument. Plea Bargains: What are the factors or special allegations that will increase a person’s exposure to jail time/harsher punishment in a misdemeanor case?  By : Darren K There are a number of factors or special allegations that will increase a person’s exposure to harsher punishment in a misdemeanor case. The increased punishments include greater fines, mandatory attendance in longer alcohol education courses, and a required period of incarceration in the county jail. Plea Bargaining: When is a DUI a felony?  By : Darren K A felony is a crime punishable by imprisonment in the state prison, for over one year. The length of punishment is determined by a low, mid, and high term, usually 16 months, 2 years, and 4 years, respectively. A DUI can be a misdemeanor or a felony depending on a number of factors, such as whether injury occurred and/or whether there are prior DUI convictions. DUI convictions and punishments are guided by the California Vehicle Code. Plea Bargaining: Wet Reckless, Dry Reckless, Exhibition of Speed  By : Darren K The prosecutor and defense counsel can agree to a lower charged offense, as a result of what is known as “plea bargaining.” Plea bargaining usually results in a lower-charged offense and/or a lighter sentence in exchange for a guilty or nolo contendere plea by the defendant. However, the judge in the case must approve the plea bargain in order for it to be effective. There are many advantages to a plea bargain. A plea bargain will avoid further court proceedings and avoid a full-blown trial. This saves money and time for both the prosecution and the defense. The court system is overburdened with cases already, so plea bargains are an inviting solution, so long as the judge goes along. Arson  By : Darren K Arson is considered a general intent crime. This means that the defendant need not have intended the specific results, namely the burning of a structure, forest land, or property. What matters are the actions that the defendant undertook that caused such a result. Generally, a person cannot commit “arson” against his own property, unless there is intent to defraud or where there is injury to someone else’s body or property. Hit and Run: Property Damage  By : Darren K Hit and run is generally defined as a criminal act. Where the collision is with property only, such as another vehicle with no occupants, the driver must leave information attached to the damaged property, as well as make a report to the police. These duties do not implicate the driver in terms of being responsible for the accident. Intro to Property Destruction  By : Darren K Property damage is punishable under the law by fines, imprisonment, and community service. Property damage means many things, from scrawling graffiti on a park bench, hitting something with your car, to causing a fire which damages property. Property damage can be minor to very great. The level of damage will increase the fines and the amount of imprisonment. Convictions for property damage may be misdemeanors, felonies, or “wobblers.” Recklessly Causing Fire  By : Darren K Recklessly causing a fire is defined by California Penal Code Section 452 which states, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” Recklessness occurs when a person knows that one's actions have an unjustifiable risk of leading to a certain result, but did not care about that risk and acted anyway. Vandalism  By : Darren K California law makes it a crime to deface, damage, or destroy the real or personal property belonging to another person. The crime is termed “vandalism,” which is a misdemeanor, unless the monetary damage is great, and then it is a felony. A misdemeanor is a crime punishable by a term in the county jail for no more than a year. A felony, on the other hand, is punished by a term in the state prison. Some vandalism crimes are referred to as “wobblers.” Wobblers are punishable as either a felony or a misdemeanor. Refusals  By : Darren K When a person has been lawfully arrested for a DUI, they are mandated to take a chemical test. If a person refuses, his or her license will immediately be confiscated by the law enforcement officer pursuant to their authority to do so in order to send the license to the Department of Motor Vehicles (DMV) for an Administrative Per Se (APS) hearing. The refusal will be utilized in a criminal case, as a “consciousness of guilt.” Additionally, evidence of the refusal can be used as a sentencing enhancement, thereby increasing the punishment if convicted for DUI. Legal Requirements of Roadblocks: The Ingersoll/Palmer factors  By : Darren K The Supreme Court of California rendered a decision on the premiere California roadblock case, Ingersoll v. Palmer, in 1987. This decision set the standard for how law enforcement agencies must conduct roadblocks, otherwise known as sobriety checkpoints. The Supreme Court identified a number of factors for minimizing the intrusiveness on the individual while balancing the needs of society in keeping drunk drivers off the road: [1] [2] [3]	Authors Sign Up for a free account. Submit your articles. Publishers Category RSS feeds. Resources Accredited Home Schools Article Directory More Resources

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