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Blood or Breath Test during a DUI Stop in Sonoma County?

During a DUI stop in Sonoma County, a police officer will likely ask you to take a portable breath test. The best thing to do is to refuse this test, but if you are placed under arrest, you are required to submit to chemical tests under California’s “implied consent” law.

So, you’re placed under arrest and you must take a blood or breath test. Which one should you take?

blood or breath test

What is More Accurate: Blood Tests or Breath Tests?

Whether you should request a blood or breath test depends upon many factors. If you strongly feel that you are under the legal blood-alcohol content limit of .08%, you will want to choose a blood test because it is more accurate, and it can be RETESTED later by your attorney.

Breath tests have a greater margin for error. They can be skewed or affected by mouthwash, cough syrup, or other products that contain alcohol. Even certain non-alcoholic products like energy drinks can create falsely higher BAC test results.

If you think that you may be below the legal BAC level but aren’t quite sure, you may want to choose a breath test. Your attorney can and should challenge the accuracy of Breathalyzer test results because of their tendency to be inaccurate, poorly calibrated or maintained from reviewing past records and logs.

In any case, it is best to be aware of how alcohol that you consumed. For an average male, each drink you consume raises your BAC about .02 to .03 percent per hour.

For women on average, it will rise at a slightly higher rate. After drinking, but before driving, it would be wise to use a phone app to calculate your BAC or a hand-held breathalyzer.

DUI

Have You Been Drinking?

Breathalyzers test for the presence of alcohol in your system, and only for alcohol. If you’ve taken any kind of drugs, a breath test will not detect this. However, a blood test will show results for drugs, including prescription medications.

Even if you think you did not take enough drugs to impair your driving ability, a blood test could detect these drugs and the results could be used as evidence against you that you were “impaired.” 

If you have taken any kind of drugs, it may be best to avoid a blood test and have officers administer a Breathalyzer test instead.

Time is of the Essence

When it comes to calculating BAC, timing is everything. The absorption of alcohol continues to rise for up to two hours after your last drink before your BAC starts to fall.

If you’re driving while your BAC is in the declining stage, a blood test might work to your advantage depending on the time of your last drink and your location.  

For example, it may take a while for the officer to transport you to a facility where your blood can be drawn. That delay could be enough to allow your BAC level to fall below the legal limit.

Meanwhile, a breath test can often be administered on the spot. If your BAC level is rising even though you felt unimpaired, this could still produce higher Breathalyzer test results.

Call the DUI Defense Attorneys at Fiumara and Milligan Law

If you or a loved one has been charged with DUI, you need to contact an experienced DUI defense attorney at Fiumara and Milligan Law. Our skilled attorneys have been successfully defending clients facing DUI charges for over 25 years. We’ve helped thousands of clients in their time of legal need, and we can help you now.

Call us today at 707-571-8600 for a FREE case evaluation and we will do everything we can to help get your charges REDUCED OR DISMISSED! Why deal with this alone! 

For more info relating to DUI in Sonoma County and how we can help you, CLICK HERE


MOST CRIMINAL CASES IN SONOMA COUNTY ARE RESOLVED BY PLEA ARRANGEMENT

While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial in Sonoma County or in California County for that matter. Most criminal cases are resolved by a plea bargain or plea arrangement. 

A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. The process may begin when the prosecutor agrees to dismiss some of the charges in exchange for a plea to the remaining charges.  

PLEA ARRANGEMENT

Or the defense counsel may insist upon the prosecutor or the District Attorney to reduce the charges from a felony to a misdemeanor. In other cases, defense counsel will persuade the prosecutor to reduce a Penal Code 422, a criminal threat, to a simple disturbing the peace or a Penal Code 415.

Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

But in many cases, defense counsel knows how the judge will sentence a defendant based upon the judge’s custom and practice and the defendant’s lack of criminal history and the like. Or counsel can simply ask for an indicated sentence.

PLEA ARRANGEMENT

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement, but the judge cannot change the terms of the agreement.

Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

Most plea bargains are conditional pleas. These pleas are treated as a contract between the defendant and the prosecution and governed by general contract principles. Because it is a form of contract, neither party can easily back out unless the plea agreement violated certain principles under contract law or is violative of the State or Federal Constitutions.  

PLEA ARRANGEMENT

Examples of this may include that the agreement was vague or ambiguous, was not fulfilled as promised, was fraudulently made or was entered (by the defendant) under coercion. The Penal Code at section 1018 permits a defendant to withdraw his/ her plea within a certain time frame and for good cause– good cause generally relates to contract principles of law.

Many criminal justice reform advocates believe that the high rate of plea bargains suggests a fundamental unfairness in the system. It appears common that prosecutors charge a defendant with every possible crime for the offense and make each charge as severe as possible with the idea that the built-in plea bargain process will result in “justice.”

But if a poor defendant does not have the resources to hire an aggressive, experienced and knowledgeable criminal defense attorney this “plea down” process disfavors them, and they end up serving much longer jail sentences.

PLEA ARRANGEMENT

On the other hand, advocates of the plea bargain process maintain that it conserves resources and taxpayer money. If every defendant went to trial, counties would quickly run out of money. Court trials are expensive.

Already, the taxpayers foot the bill for court operations, judges’ and bailiff salaries, the prosecutors’ salaries, and the public defenders’ salaries—just part of the vast public resources that are expended for the judiciary and the administration of justice.

Plea bargains often result in a favorable outcome for the defendant. The alternative is to take each case to the jury and depending on the crime and the sympathies of the jury, this can be a risky choice. Sonoma County jurors are known for their inclination towards law and order.

Sonoma County jurors are neither liberal or conservative—it depends on the particular jury pool and the luck of the draw, but one thing is certain, older and more conservative people usually sit on Sonoma County juries because they have more time than younger folks who have young children or jobs that they need to attend.

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A good defense attorney who can spot weaknesses in the prosecution’s case and who is a skilled negotiator often makes a significant difference in plea bargaining with the prosecutor.

For example, the criminal charges may indicate a prison sentence, but a defense attorney who can drive a “hard bargain” can often get probation for his or her client instead.

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Fiumara and Milligan Law has been driving hard bargains with the Sonoma County District Attorney’s office since 1992 and continues to fight for each of our clients. We will work hard to get the best outcome in your case—don’t settle for anything less.

Call us today at 707-571-8600 for a FREE CONFIDENTIAL CONSULTATION.

For more info relating to jail alternatives in Sonoma County, CLICK HERE

To view some of our recent case results where we were able to help our clients get a significantly reduced sentence or even dismissal, CLICK HERE


When A DUI Results in A Death

It’s the scenario we all hope never happens—and one that in truth should never happen.

Someone has a lapse in judgment, gets behind the wheel while under the influence of alcohol or another substance, gets into an accident—and another person dies as a result.

Aside from the overwhelming sense of loss and guilt of knowing his/her actions have caused a death, now the intoxicated or impaired driver may be facing very serious felony criminal charges on top of the DUI.

When A DUI Results in A Death

In a perfect world, you should never find yourself in this situation, but if you are charged in California with a DUI involving a fatality, what can you expect? What, exactly, are you facing?

Three Possible Charges

By California law, when a DUI results in someone’s death, you may be charged with one of three serious felony crimes in addition to your DUI. In order of severity, they are:

  • Vehicular Manslaughter while Intoxicated;
  • Gross Vehicular Manslaughter while Intoxicated; and
  • DUI Murder

Let’s examine each of these in more detail.

Vehicular Manslaughter while Intoxicated

The lightest of the three possible charges, Vehicular Manslaughter while Intoxicated is described in California Penal Code Section 191.5(b) PC as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle…but without gross negligence.”

In other words, the only factor separating this charge from Gross Vehicular Manslaughter is the degree of negligence involved. If your actions in your DUI case appeared to be an arbitrary lapse of caution (ordinary negligence), rather than a flagrant disregard for the safety of others (gross negligence), the prosecution may choose to charge you with the lesser crime of Vehicular Manslaughter while Intoxicated.

When A DUI Results in A Death

Proving Vehicular Manslaughter while Intoxicated

To prove this crime in court, the prosecution must effectively demonstrate four things:

  1. You had a blood alcohol content of 0.08 or greater;
  2. You violated some other law in the course of your DUI (for example, speeding or running a stop sign);
  3. You acted with “ordinary negligence”; and
  4. Someone died as a result of your actions.

What Are the Penalties?

Vehicular Manslaughter while Intoxicated is a “wobbler” under California law, meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances and your previous criminal history.

If convicted of the misdemeanor, you could face stiff fines, community service, mandated alcohol counseling, restitution for the victim’s family and up to a year in county jail.

For the felony, you could face up to 4 years in prison (plus another 6 if other people sustained serious bodily injury), plus a fine of $10,000 and victim restitution.

When A DUI Results in A Death

Gross Vehicular Manslaughter while Intoxicated

The second-most severe offense, Gross Vehicular Manslaughter while Intoxicated, is covered in California Penal Code Section 191.5(a) PC. It’s effectively the same charge as Vehicular Manslaughter while Intoxicated, with the following exceptions:

(a) it alleges “gross negligence” versus “ordinary negligence”;

(b) it is always a felony; and

(c) the penalties for conviction are more severe.

To best understand the difference between these two charges, let’s discuss the legal differences between ordinary and gross negligence.

Ordinary negligence refers to a failure to use reasonable caution, while gross negligence alludes to a conscious disregard for potential risk—typically meaning something that likely will result in another’s injury or death—and it is something that others could easily identify as reckless.

For example, if you were driving aggressively, speeding or swerving between lanes at the time of the crash, you would be much more likely to be charged with Gross Vehicular Manslaughter. This would especially be true if your bad driving took place in a crowded residential or school zone where the risk of harm is greatest to members of society.

 However, if your accident occurred as a result of a momentary distraction (e.g., failing to notice a red light or a brief moment of looking down at your car radio), it could be argued that you were not acting with ordinary negligence for a moment and you might be charged with the lesser offense.

When A DUI Results in A Death

Proving Gross Vehicular Manslaughter while Intoxicated

To demonstrate this elevated charge in court, prosecutors must begin by proving you were above the minimum legal BAC limit, violated another ordinance or statute and caused someone’s death. Then, the prosecutors must provide ample evidence that your actions were grossly negligent as opposed to an ordinary level of negligence.

What are the penalties?

If convicted of Gross Vehicular Manslaughter while Intoxicated, you may face fines of up to $10,000 and a prison sentence of up to 10 years.

Call Fiumara & Milligan Law Today for Help

Regardless of the severity of the possible charges or penalties, the most important takeaway to remember is that driving while impaired, intoxicated or under the influence of any substance always puts other lives in danger, whether the prosecutor claims you knew the risks.

When you seriously consider how even one of these charges could ruin your life (not to mention the lives of others), you will understand that even a simple DUI conviction could lead to devastating consequences.

When A DUI Results in A Death 

Why face these alone—CALL US 24/7!

If you do find yourself charged with someone’s death due to a DUI, don’t face the charges alone; let us help you navigate these treacherous waters.

Call Fiumara and Milligan Law Today at 707-571-8600 or 415-492-4507. 

Please CLICK HERE to see more on DUI related matters. 


The Immediate Benefits of Having a Santa Rosa DUI Lawyer Represent You Immediately After Arrest

Many times, people do not see what benefit a Santa Rosa DUI Lawyer can provide when you have been arrested for suspicion of driving under the influence.

People in this situation often take their time deciding if they want legal representation, and shopping around for an attorney that offers them the best price. Keep in mind that valuable knowledge and experience is NOT something that should be bargained for under the circumstances. 

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

I cannot imagine a patient who needs a complex surgical procedure going to the cheapest or least expensive medical doctor?  There are many benefits to having a highly skilled and experienced attorney on your side as soon as you have been arrested who will provide you with immediate benefits right from the onset of your case. 

The first benefit is your DMV Hearing.

The DMV hearing is a separate hearing from your criminal court case. It is handled solely by the DMV and falls under the DMV’s laws and regulations. It needs to be scheduled within ten days of your arrest, if it is not scheduled, you lose your right to have a hearing regarding your driver’s license.

You need to determine which DMV department to call and schedule a hearing, and you need to make sure you have done it in a timely manner. Having chosen an experienced Santa Rosa DUI lawyer right off the bat, will assure that this deadline is not missed, the correct DMV department has been contacted, and that you will have legal representation at this hearing.

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Our law firm contacts and schedules your DMV appointment by written FAX so there is no question that your hearing will take place timely which allows you to drive until your matter is finally resolved.

Another benefit to having a skilled and knowledgeable attorney represent you is to assure that all discovery is immediately obtained from DMV, the Police and the District Attorney’s Office so that you get a fair DMV hearing as well as criminal court hearing.

Discovery is any type of evidence that was gathered by law enforcement officers during the arrest and information the prosecutors have used to file charges against you. This includes surveillance video or audio and a police report. Body worn cameras are included for obvious reason.  

PLEA BARGAINING A DUI CHARGE TO A LESSER CRIME IN NORTHERN CALIFORNIA

Generally, these may be obtained at your first court appearance. But when you hire an attorney, the attorney can contact the prosecutor’s office prior to any court hearing and give the prosecutor a heads-up on the discovery request and any retained property that the client needs returned right away.

This quick attorney involvement allows the attorney to contact any witnesses or speak to anyone that can punch holes in the prosecutor’s case. With that added advantage, the attorney can walk into the first court appearance BETTER prepared and keep the case moving forward quickly, rather than have to continue the hearing.

Another big advantage in having an attorney represent you in Court is that the attorney can appear on your behalf. YOU don’t have to be present if it is misdemeanor charge.  It is already stressful enough to having charges filed against you, but then having to take time off from work to be in court can cause you to be fired. It is an added burden to be placed in a situation for which you are not familiar.  

Santa Rosa DUI Lawyer

All of this is enough to give anyone unnecessary stress. But when you have an attorney present to represent you, that stress is alleviated because in most cases the attorney can appear on your behalf. You do not need to take the day off work and put yourself in a situation that causes you more stress.

The attorney will go to court and call you with an update afterwards or send you a text or email whether is your best mode of communication.

We aim to please at Fiumara & Milligan Law.  An attorney will never enter a plea of ‘no contest’ or a ‘guilty plea,’ without your knowledge or consent, so you can rest assured that your case is in good hands.

There are many perks to having a Santa Rosa DUI Lawyer represent you immediately after an arrest. Take steps to ensure your future is given the best possible chance and contact Fiumara and Milligan Law at 707-571-8600 or 415-492-4507 to schedule your free consultation!

Please see our dedicated DUI page, CLICK HERE


How to Avoid Trial for DUI Charges in California

If you are arrested on suspicion of driving under the influence of alcohol or drugs, it does not necessarily mean you will be convicted, but it also doesn’t mean your case will automatically go to trial.

In fact, your best option may be to agree to a plea bargain before the case goes to trial.

An experienced DUI defense attorney can help you negotiate a favorable plea agreement, which could result in reduced charges and lesser penalties without the risks of going to trial. If there is no benefit to advancing the case to trial, then we don’t waste our clients’ money or time.

How to Avoid Trial for DUI Charges in California

Under a plea deal our experienced DUI attorneys will further reduce any jail time by applying day for day credits for time that you may have spent in jail before bail or until you waited for your first court appearance. But most importantly our DUI attorneys will fight all jail alternative for our clients during the plea negotiation process that includes:

  1. Any county work release jail alternative program so that you may work on the weekends instead of spending time in Jail;
  2. Negotiate for any electronic monitoring or GPS based program so that you can avoid jail altogether;
  3. Negotiate all jail alternatives available and this varies county to county. SEE our link to: JAIL ALTERNATIVES.

Avoid Trial for DUI Charges

A DUI conviction has serious consequences. A first-time conviction carries up to six months in county jail and a $1,000 fine or both.  The fine varies in each county because of add-ons so speak to your criminal defense attorney about the ultimate payout.  

Additionally, you could also lose your driving privileges for a year or longer depending upon the facts in your case:  Is this your first offense only? Did you refuse to give a breath or blood sample? 

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If you are convicted of DUI there are so many negative consequences to list here, but speak to one of our experienced criminal defense attorneys, but here are just a few:

  1. DUI classes depending on the 3, 9 or 18-month variety are expensive and time consuming;
  2. Your ultimate fines to the Court in Sonoma County alone top $2,500!
  3. An ignition interlock device may be required to be installed in your car or cars at your expense. The maintenance is pricey, and it is embarrassing. On a date or in front of your boss or colleagues you will have to blow into a monitor before your car starts!
  4. Your insurance rates will skyrocket, but we have a solution for that so come into our office for your free and confidential consultation—NO OBLIGATION.
  5. You will be on Court Probation for three years, but that can be shortened so ask us.

However, your attorney may be able to protect you from facing all these harsh consequences by negotiating a plea deal with the prosecution.

A plea deal is when you agree to plead guilty or no contest to the charges against you in exchange for the prosecution agreeing to reduce the charges you face or push for a much more lenient sentence. If you agree to plea bargain, you will not have to risk being convicted at trial. You avoid trial fees, wasted time and added trial fee expense.

DUI classes these days can consist of a 6 month program, usually required by DA’s as part of a plea deal when the client has out of time priors or other aggravating circumstances.

As part of your plea bargain, you will likely be asked to plead guilty to one of the following crimes:

Wet reckless driving: A wet reckless charge is a lesser included offense to a standard DUI conviction. It is treated as such so your fines are a fraction of the $2,500 fines mentioned above. Although you can technically face 90 days county jail time, in these types of offenses jail time is substantially reduced and sometimes not imposed at all depending upon our experienced defense attorneys skilled negotiation.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

A wet reckless allows you the ability to take a much shorter in duration first offender/ wet reckless program or class saving you additional time and money.

Your Court Probational period will be substantially reduced from 3 years to 18 months depending.

A wet reckless conviction does not require a mandatory suspension of your driver’s license. However, if you are convicted of another DUI within 10 years, a wet reckless conviction will be treated as a DUI conviction, which would result in harsher punishment and more jail time for you.

 Dry reckless driving: The probation period and penalties for this crime are very similar to a wet reckless conviction, but there is no mandatory jail time for a dry reckless driving conviction. Additionally, a dry reckless does not count as a prior DUI offense if you are charged with a DUI again within 10 years.

Exhibition of speed: An exhibition of speed conviction is punishable only by a fine.

Traffic infraction: The best possible outcome for a plea agreement would be a reduction to a traffic infraction. Your DUI charge would be amended by the prosecutor to an infraction for an unsafe lane change or speeding, and you may be able to remove the infraction from your driving record by going to traffic school.

Contact the DUI Defense Attorneys at Fiumara and Milligan Law Today

An experienced DUI defense attorney could make a huge difference in your case and save you a lot of time and grief, never mind money!  Criminal defense attorneys like ourselves who know the prosecutors and judges in the court where your case will be heard are in the best position to negotiate a favorable plea bargain for you so that you do not have to face the harsh penalties of a DUI conviction.

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At Fiumara and Milligan Law, our skilled DUI defense attorneys have been successfully defending clients facing DUI charges for almost three decades in Sonoma, Marin, Napa, Solano and throughout most of northern California.

Contact our offices today at 707-571-8600 or 415-492-4507 for a free consultation.

For more info on DUI related matters in the North Bay, CLICK HERE. 


EIGHT (8) WAYS TO BEAT A DUI IN SONOMA COUNTY

There can be a lot of stress with a DUI charge, considering the severity of the possible consequences – ranging from a suspended or revoked driver’s license, exorbitant fines, possible jail time and a huge increase in your auto insurance premiums!  

But just because you have been charged with a DUI, it doesn’t mean you have no hope of fighting and beating the case.

While a DUI can be complex and it may seem, the odds are stacked against you, there are other options aside from just pleading guilty.

California Penal Code 2800.1 VC Evading a Peace or Police Officer

HIRE A TOP DUI LAWYER IN SONOMA COUNTY

If you are facing a DUI charge, especially a first-time DUI charge, it is important to act fast and hire a seasoned and highly skilled DUI lawyer who can pull all the necessary strings to get the charges reduced or dropped entirely.

There are ways to get out of a DUI, and below are ten common ways a lawyer can help you beat a DUI charge:

  1. CHALLENGE THE BASIS FOR THE DUI TRAFFIC STOP

Even when a traffic stop ultimately results in a DUI arrest, a police officer must have probable cause to stop you while driving.

Based on the Fourth Amendment of the U.S. Constitution, if an officer stops you without probable cause, then the stop is considered illegal. In the case of an illegal stop, any evidence the officer collects – and this includes breathalyzer results and/or blood and urine testing – is considered illegally obtained and therefore inadmissible in court.

  1. WHAT CONSTITUTES PROBABLE CAUSE

The officer must have a legitimate reason for pulling you over and questioning you. In most cases, a legitimate reason can be a traffic violation or erratic driving.

However, if you can argue that the officer had no reason for pulling you over then any evidence gathered after you were pulled over can be ruled inadmissible in court. In many cases, the loss of evidence from a traffic stop will suck the air right out of the prosecution’s arguments in a DUI case.

Challenging the traffic stop in a DUI case is tricky and sometimes difficult. The CA Vehicle Code is full of instances and justifications for very minor technical violations that give law enforcement almost unbridled reasons to detain you. 

Police can stop people for somewhat minuscule reasons. If your DUI lawyer can successfully argue that there was no basis for a traffic stop, chances are good that your case will get dismissed.

Santa Rosa DUI Defense Attorney

  1. CHALLENGE THE BASIS FOR THE DUI ARREST

Even if you can’t win the argument that the traffic stop itself was not justified, you can argue that there was no basis for the DUI arrest. If there was no basis for the DUI arrest, the evidence taken during the arrest will be deemed inadmissible in court. Your attorney should consider filing the appropriate 1538.5 Suppression Motion for this purpose.

Being pulled over is separate from being arrested for driving under the influence of alcohol. A police officer can pull you over for ‘bad driving’ or a wide variety of different traffic violations and write you a ticket but for them to arrest you for a DUI, they must show they had probable cause to believe you were intoxicated.

Here are some examples: if the police officer smelled alcohol on you, they observed red blood shot eyes, if you performed poorly on any of the field sobriety tests, or if you appeared otherwise intoxicated pursuant to your gait and balance.

  1. FAILURE TO READ MIRANDA RIGHTS DURING DUI ARREST

In the 1966 Supreme Court case Miranda v. Arizona, the U.S. Supreme Court ruled that individuals must be informed of their Fifth Amendment Rights when placed under arrest. The arresting police officer must recite the Miranda Warning, which informs the arrestee of their right to not self-incriminate.

The person being arrested has the right to remain silent. They also have the right to hire a lawyer, or to be appointed a lawyer if they are unable to hire private counsel.

Law enforcement likes to get around this requirement by introducing evidence that you were merely detained and that you were free to leave anytime.  We can easily debunk that argument and win.

If a police officer fails to read you your Miranda Warnings at the time of an arrest, anything you say during or after your arrest is inadmissible and unable to be used against you in a court of law.

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  1. IMPROPER ADMINISTRATION OF A BREATHALYZER TEST

Like a field sobriety test, there are many rules and procedures which must be followed when a police officer administers a DUI breathalyzer test in California. The equipment the officer uses must be approved, maintained and calibrated to specification.

If a breathalyzer malfunctions, it will give inaccurate results. Even if a perfectly functioning breathalyzer is improperly calibrated, it can read a completely different score than what your Blood Alcohol Concentration is.

WE carefully review all calibration and maintenance records in every DUI case to make sure that each defendant gets the benefit of doubt to establish his or her innocence.

If there is a possibility that the breathalyzer test administered to you was incorrectly given or a chance that the results are skewed. 

A highly experienced and skilled DUI lawyer can challenge the results of the test and convince the judge to dismiss the DUI charge outright!   If your attorney finds enough evidence in your favor your lawyer can get the results of your breathalyzer test suppressed in court.

  1. DUI VIDEO EVIDENCE

In many cases, there is video footage of your DUI traffic stop and arrest. Body Worn Cameras or BWC’s are so much more common today than just a few years ago and we always strictly scrutinize them to find anything in your favor.

Additionally, there may even be video of you while standing in front of the police car with a dashboard camera performing your sobriety tests or there may be video footage of you at the police station.

The footage taken during and after your DUI arrest can be helpful to your defense. If the footage shows you behaving in a way you appear sober, then you can create doubt about your being intoxicated.

Even more helpful is when the dash camera or arrest footage shows anything which contradicts the police officer’s report. If you can use video footage to challenge the credibility or behavior of your arresting officer, you can open a door to challenge the legality of your DUI stop and arrest.

California Penal Code 23136 VC Underage DUI

  1. OUTSIDE WITNESSES IN YOUR DUI CASE

If you can introduce witnesses who can testify to your sobriety right before the arrest they may be able to create enough doubt in your case to beat the DUI charge.  Maybe you can find people who can testify that you did not drink prior to operating a motor vehicle.

Or, maybe you have witnesses to your arrest who watched the entire DUI stop and arrest and can attest to you appearing sober. Alternatively, witnesses can also be helpful if the situation involved police misconduct before or after the arrest.

Video footage could also support your argument that law enforcement did not follow proper rules, protocol and procedures.

Whether you are challenging the legality of your arrest, improper testing procedures, or your arresting officer’s failure to mirandize, having witnesses or video footage to back up your argument will make the entire process easier for you.  

It is harder to deny what someone else can attest to, and nearly impossible to contradict something that is shown on camera.

  1. POLICE MISCONDUCT IN A DUI ARREST

Police misconduct covers a broad area, but one that may be able to help beat your DUI case. If you were treated improperly or too forcibly by police officers – if they used inappropriate or illegal behavior when arresting or detaining you – you can make a case for police misconduct.

Illegal or inappropriate behavior can include a broad range of conduct, stemming from racial profiling to sexual harassment to physical brutality. If you can successfully make a case for police misconduct during your arrest or detainment, it is very possible your DUI case can get dropped if the misconduct is considered serious enough.

An experienced and highly skilled defense lawyer will know how to recognize a situation where you can claim police misconduct.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

CONTACT OUR TOP-RATED DUI LAWYERS IN SONOMA COUNTY

Fiumara & Milligan Law, PC has been recognized as one of the Top 100 DUI law firms in the state of California by The National Advocacy for DUI Defense (NAFDD) in 2016, 2017 and again in 2018.

We are experienced lawyers who will fight HARD to get you the best possible results in your Sonoma County DUI case.

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Contact Fiumara & Milligan Law today at 707-571-8600 to speak with a DUI lawyer for a FREE consultation.

CLICK HERE to learn more about how Fiumara & Milligan Law can help you FIGHT and WIN a DUI case.


Expunge Your Criminal Record In California

Top 10 Reasons to Expunge Your Criminal Record In California

Criminal Record Expungement basically means getting your criminal record or a conviction erased completely in the eyes of the law.

There are other procedures that have been put in place to reduce Felonies to Misdemeanors and then to set the misdemeanor to the side or expunge them.

Some of the top reasons for applying for Criminal Record Expungement are as follows:

  1. If you apply for insurance and the insurance company finds a conviction on your criminal record, they may charge extremely high insurance premiums or rates of interest. Depending upon the type of crime, they may outright deny you insurance coverage altogether.
  2. Denial of personal and business loans: Having a criminal record will also put obstacles in your way of applying for a loan. Many banks and other financial institutions may hesitate before loaning you money and they will charge you a high interest rate. Students may not receive a loan or even financial aid from their institution of higher learning if they are found with a criminal record.
  3. Denial of Private and Government subsidized housing: Another major problem that can arise is in housing; a lot of private landlords, housing authorities and real estate agencies may refuse to provide you with services or provide you with housing assistance if you have a criminal record. If you are later found to have acquired a criminal record, HUD and Section 8 housing subsidies could be withheld and you may be forced to vacate your leased premises.
  4. Student Dilemma: Having a criminal record can be even more precarious and punitive if you are a student. Your university may expel you from your current program, they may refuse or even rescind your financial aid or grant. They may also make you ineligible for any kind of honors or awards. If you apply to a university, you may not be admitted based solely on your criminal record—And they don’t have to tell you!
  5. Working and employed people may find it difficult to continue with the same job after a conviction. Current employees may be terminated, or even demoted and future employers may refuse to employ you once they find out about your criminal record.
  6. Denial to possess or purchase any kind of firearm: A criminal conviction and especially a felony record will affect your rights to possess or purchase any kind of firearms. Gun ownership and possessing other kinds of armor and ammunition may be restricted or even banned for people with a criminal record.
  7. Restriction to volunteer for certain agencies, institutions and churches and curtailment of your right to vote: A felony conviction will prevent you from participating in your political process by curtailing your ability to run for office and even to vote in any election. That time may extend for as long as your parole lasts or longer.
  8. 8. Restriction on family adoption and or losing custody of natural born children where the non-convicted spouse is favored to get full legal and physical court custody. Although you may not have considered this before, but if you wish to adopt a child then such rights of yours will also be challenged and maybe even be denied if you have a conviction in the past.
  9. State licenses and certificates and other privileges including driving licenses may also be denied to you if you have a criminal conviction on your record. A felony conviction usually has greater consequences than a misdemeanor conviction.
  10. Denial of federally funded assistance or benefits: Most states and many local governments have restricted a person with a criminal conviction from receiving or being eligible for federally funded assistance including food stamps. This applies to federally assisted housing and in some cases tenants who have been arrested are evicted from their low-income housing and or lose all subsides.

PROTECT YOUR FUTURE, EMPLOYMENT, GOVERNMENT BENEIFTS, LICENSES AND YOUR LIVELIHOOD!

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Contact Fiumara & Milligan Law today at 707-571-8600 and take the first step toward erasing your criminal record.

EXPUNGMENT CAN MAKE ALL THE DIFFERENCE IN THE QUALITY OF YOUR LIFE!

For more information on Expunging your record, CLICK HERE.


Everything You Ever Wanted to Know about Wobbler DUIs In California

Unlike other states, one term you will likely hear in the context of California criminal law is the term, “wobbler” or that you were charged with a, “wobbler offense.” 

While other states do have “wobblers,” California law is known for them; in fact, there are over 100 “wobbler” offenses documented in the California penal code, including some related to DUI.

What are these “wobbler DUIs,” what do you need to know about them, and how can your attorney address them in a way to help you obtain the most positive possible outcome?

Santa Rosa DUI Lawyer

“Wobbler” Defined

A wobbler is simply a crime that can be prosecuted either as a misdemeanor or a felony. The decision to pursue one or the other is usually left to the prosecuting attorney who considers the circumstances surrounding the case to decide which is the more appropriate charge—or which he or she believes carries the best likelihood of a conviction.

Aggravating or Mitigating Factors

While the prosecutor or charging District Attorney typically decides whether to pursue a wobbler as a felony or misdemeanor, it’s not necessarily a random decision. The California District Attorneys Association has developed a set of Uniform Crime Charging Standards that most prosecutors consult when deciding how to move forward with charging a criminal case.

Some of the factors considered include:

  • The seriousness of the underlying crime itself—is it crime of violence? Is it a SEX Crime?
  • Extenuating/aggravating circumstances (for example, if someone was hurt or killed during the commission of the crime, if a weapon or gun was used in the commission of the offense;
  • Whether the defendant cooperated and overall behavior and whether there is a history of FTA’s;
  • Whether the defendant has a criminal history and/or likelihood of repeat offenses;
  • The strength of the prosecution’s case (i.e., the likelihood of conviction)

PLEA BARGAINING A DUI CHARGE TO A LESSER CRIME IN NORTHERN CALIFORNIA

What Types of Crimes Can Be Wobblers?

Many types of offenses can be prosecuted either as misdemeanors or felonies under California law. Some of the more common examples include:

  • Child endangerment
  • Burglary
  • Forgery
  • Sexual battery
  • Vehicular manslaughter
  • Assault with a deadly weapon
  • Making criminal threats
  • Statutory rape

Wobbler DUIs

Most DUI charges in California are misdemeanors by definition, but in certain circumstances a DUI may also be classified as a wobbler, giving the prosecutor the option to pursue your case as either a misdemeanor or a felony.

Fourth Offense DUI

If you have three prior DUI convictions and are charged with a fourth DUI within a 10-year window, the fourth DUI charge qualifies as a wobbler, as do any subsequent charges. The District Attorney won’t automatically charge you with a felony, but he or she might do so if he considers you a potential habitual traffic offender and or a threat to public safety.

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DUI Causing Injury

If someone is injured because you were determined to have driven while under the influence, you may be charged with DUI causing injury, which is a wobbler offense. The prosecuting attorney generally looks at the circumstances of the case before deciding to pursue this type of DUI charge as a felony. The prosecutor will consider the severity of the injuries, your speed, your conduct while driving, and the level of alcohol or DRUGS in your system.

Please keep in mind that if you are convicted of a DUI in the State of California you will be required to sign the WATSON ADVISEMENT as part of your PLEA agreement.  This advisement warns you and acknowledges from you that you will be responsible for MURDER if you are again caught driving with any measurable amount of alcohol or intoxicating substance in your body while driving which results in the death of another!

Vehicular Manslaughter While Intoxicated

If you are involved in a DUI-related accident causing the death of another person, you may be charged with vehicular manslaughter while intoxicated. While this is technically a wobbler offense, most charges of this nature are pursued as felonies unless the judge or prosecutor can be convinced to reduce it to a misdemeanor. GOOD Lawyering is what is needed in cases like this!

One other DUI-related charge worth mentioning: In the case of someone’s death, if the prosecutor believes you exercised “gross negligence” in that you had full knowledge that your actions were putting others at risk, the prosecutor may upgrade the charge from vehicular manslaughter while intoxicated to gross vehicular manslaughter while intoxicated, which is always a felony.

Santa Rosa DUI Lawyer

The Implications of a Felony DUI

When a DUI is pursued as a felony charge, the stakes are much higher for YOU and your life can become even more complicated. If you are convicted of a felony DUI, you may expect the following:

  • More jail time. A DUI felony conviction typically earns you a minimum of 16 months in state prison, up to 2-3 years. If someone was injured or killed, you could be facing up to 16 years or even more.
  • Longer license suspension/revocation. Convicted DUI felons generally lose their driver’s license for 4-5 years.
  • Permanent police record and required disclosure. You must disclose your felony conviction anytime you apply for a job—and it will disqualify you from working in many jobs and even some professions.
  • Lose your right to vote. Convicted felons can’t vote while in prison or during the time of their parole.
  • Loss of professional license. Many professional licensing boards may revoke your license if you are convicted of a felony.
  • Restricted travel. You’ll need permission from your parole officer to travel more than 50 miles from home, and you’ll need a travel pass to leave the state, according to the California Conditions of Parole.
  • Lose your right to bear arms. Under California law, you can’t own a gun for the rest of your life once convicted of a felony.

Defending Against Wobbler DUIs

The good news about wobbler DUIs (if there is any “good news” here) is that they give your defense attorney some latitude for negotiation. We may be able to present evidence before the prosecutor and judge as to why your DUI should be prosecuted as a misdemeanor rather than a felony. We will also negotiate with the prosecutor or appeal to the judge to have a felony charge reduced to a misdemeanor—for example, as part of a plea agreement.

The presiding judge may also exercise the option to reduce a wobbler DUI from a felony to a misdemeanor at the preliminary hearing or at certain stages of the trial is the case goes forward. Also in certain instances, even after conviction, your attorney may be able to appeal your case to have your felony conviction reduced to a misdemeanor or even over-turned at the appellate level.

If you are charged with a DUI offense in California—especially one that is categorized as a wobbler—hiring an EXPERIENCED and SKILLED attorney is an essential ingredient in obtaining the best possible outcome and hopefully avoiding a felony conviction—which has severe and lasting consequences.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

If you need effective and strong legal representation for a DUI charge in Sonoma or Marin County, call our offices today at 707-571-8600 or 415-492-4507 for a FREE case evaluation.

For more info on DUI Defense, CLICK HERE.


AVOIDING A DUI THIS MEMORIAL DAY WEEKEND

For most throughout Sonoma and Marin Counties, this holiday weekend will be filled with parties, cookouts, and other celebrations with friends and family.

However, it may also likely be a weekend filled with DUI check points which may result in DUI or Boating Under the Influence charges. California has consistently ranked high on the list of states with the most DUI related deaths.

Santa Rosa DUI Lawyer

TIPS TO AVOID A DUI IN SONOMA OR MARIN COUNTY

-Have a designated driver, whether you’re in a car or boat

-Take a cab, Uber, or public transportation

-Be the host of your own party

-Don’t text while driving/boating, especially if you’ve consumed alcohol

Following these simple guidelines can keep you from incurring the heavy costs of being arrested for driving or boating under the influence.

DUIs and/or boating under the influence has long lasting consequences, and you should always contact a DUI defense lawyer before proceeding in your case. If you are arrested, you have the right to an attorney.

Santa Rosa DUI Lawyer

AVOID THE RISKS

Driving drunk is never the right thing to do, even if you are only traveling a short distance. By limiting yourself to a house party or a small family get together, you can avoid the risks that come with driving while intoxicated.

You can engage in festivities in a stress-free environment. If you chose the more dangerous route of driving your vehicle to a Memorial Day celebration, the consequences can be dire.

In many cases, just being accused of a DUI can lead to a license suspension, especially if you refuse a chemical test before you are arrested.

Santa Rosa DUI Lawyer

 

POLICE CHECKPOINTS AND BEING RESPONSIBLE

With an estimated 34,800,000 people traveling on May 29th, Memorial Day is one of the most dangerous times to drive all year.

The sheer number of people on the road present many hazards, such as cars following too closely and road rage that is caused by crawling traffic jams. Throw in thousands of drunk people who decide to get behind the wheel and it can be seen why this weekend ranks number one in traffic accidents and fatalities.

With the high frequency of drunk driving that occurs on Memorial Day, police have gone to drastic measures to CURTAIL this dangerous activity.

During Memorial Day weekend, police set up DUI checkpoints to make roads safer. During these stops, officers have their senses heightened, so much so that they might detect things that are not there.

For example, they might arrest someone because they claim to smell alcohol, even if the accused’s blood alcohol content (BAC) is under the legal limit of .08 percent. They may even smell the other passenger’s alcohol laden breath and attribute to YOU.

GETTING A RIDE ON MEMORIAL DAY

If you live in a popular and highly trafficked area, you may be able to use a taxi or rideshare program to eliminate the risk of a DUI charge. With certain companies, such as Uber or Lyft, it can be as simple as requesting a car with your phone.

Santa Rosa DUI Lawyer

When you think about it, it is far more cost effective to spend $30 for a couple rides than to pay $2,500 or more for a DUI fine, let alone BAIL FOR JAIL, and LAWYER’S FEES of many THOUSANDS of dollars!

It would be much cheaper to hire a limo laden with Strippers, fine spirits, beer and wine then to suffer the humiliation and monetary set-back a DUI will bring upon you! 

HOW FIUMARA & MILLIGAN LAW CAN PROTECT YOUR RIGHTS

With decades of combined legal experience and a passion for protecting the rights of good people, our DUI attorneys have the resources to get your charges reduced or eliminated.

It may be possible to employ one of several effective defense strategies, or to avoid jail time with a plea bargain.

Regardless of the circumstances surrounding your case, having the right legal representation can be the difference between having a criminal record and getting your charges dropped. Our lawyers will help present your case in the best possible light.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

To see how you can fight your charges in court, call Fiumara & Milligan Law at 707-571-8600 for a free consultation.

We wish everyone a happy and safe Memorial Day, especially all our men and women in uniform. Thank you for your service!

For more info on DUI Defense, CLICK HERE.

For more on Boating Under the Influence, CLICK HERE.

To see some examples of how we have won for others who have been arrested for DUI, CLICK HERE.

To see where many of the DUI checkpoints are being setup this weekend, CLICK HERE.


California abalone law

Poachers And Would-Be Poachers Beware!

An article in the press democrat yesterday talks about jail sentences for abalone poachers..
 
CLICK HERE to read more and see below on how we can help you FIGHT charges! 
 

Fines ranging from $15 to $40,000 are not too uncommon. 

You will need to lawyer-up if you are accused of illegal abalone diving, fishing or acquisition of same.

WE have handled hundreds of cases in Mendocino and Sonoma Counties since 1992

—Don’t risk being locked up and even being deported, you have rights too. 

There is still the presumption of innocence…

Abalone cases are prosecuted vigorously on the Coast, and they should be, but punishment must fit the crime.

Most violators receive a misdemeanor conviction for a first offense, leading to substantial fines and potential jail time. Many visitors to the Coast receive a citation for what they think is a minor violation of the Abalone law, only later to find out how harsh the punishment can be.

DO NOT make the mistake of assuming there is nothing you can do, or it that it is not worth it to fight your case if you are not local and have to make a long trip to appear in court.

In most cases we can appear for you, when appropriate, without you needing to lose valuable time from work or home. Call 707-571-8600 OR 415-492-4507 for help NOW! 

To see our dedicated webpage relating to Abalone Law, CLICK HERE


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Case Results

  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • POSSESSION OF METH- DISMISSED
  • FELONY ARSON- RESOLVED
  • RESISTING ARREST- RESOLVED
  • POSSESSION OF MARIJUANA- REDUCED
  • PROBATION VIOLATION- RESOLVED
  • POSSESSION OF COCAINE- REDUCED
  • CONCEALED WEAPON- DISMISSED
  • DRUNK IN PUBLIC- RESOLVED
  • JUVENILE DRUG/WEAPON- RESOLVED
  • FELONY RAPE- REDUCED
  • DUI- Hung Jury
  • SOLICITATION OF PROSTITUTE- DIVERSION
  • POLICE EVADING- REDUCED
  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • FURNISHING ALCOHOL/MINOR- RESOLVED
  • RESISTING ARREST- DISMISSED
  • ACCIDENT DUI- DISMISSED
  • CANNABIS CHARGES- REDUCED
  • DOMESTIC VIOLENCE- DISMISSED
  • DRUNK IN PUBLIC- DISMISSED
  • PUBLIC INTOXICATION- DISMISSED
  • JUVENILE CASE- DISMISSED
  • PROSTITUTION SOLICITATION- DISMISSED
  • ASSAULT & BATTERY- DISMISSED
  • ARSON- RESOLVED
  • PETTY THEFT- COMMUNITY SERVICE
  • POSSESSION OF NARCOTICS- DISMISSED
  • FELONY MARIJUANA- MISDEMEANOR
  • FELONY WEAPONS POSS.- REDUCED
  • Felony Assault - JURY ACQUITTAL
  • Domestic Violence - JURY ACQUITTAL
  • Felonies - REDUCED to 1 MISD.
  • Felonies - REDUCED to 1 MISD. NO JAIL
  • Sex Felonies - REDUCED/NO JAIL
  • Prostitution - DIVERSION/NO JAIL
  • 2nd Theft - DISMISSED
  • Drug Felonies - NO JAIL
  • Driving Misd - REDUCED TO INFRACTION
  • Resisting Arrest - DISMISSED
  • Juvenile Sex Felonies - DIVERSION
  • Multi-ED CODE Charges - REMAIN IN SCHOOL
  • 3 VOP'S - ALL DISMISSED
  • 1st Degree Burglary - REDUCED

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