January 2016
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How Sentencing Enhancements Can Affect Your DUI
Typically, adults who are accused of a first DUI in California are charged with a misdemeanor offense. And if no aggravating circumstances occurred during the alleged DUI incident, there is a fixed range of potential penalties in the event of a guilty verdict. Penalties may include fines, probation, suspension of driving privileges, and jail time. However, offenses involving aggravating circumstances are treated differently. In such cases, the severity of these available penalties can increase dramatically.



Sentencing Enhancements

Under California law, DUI offenders found guilty will face stiffer punishment when the facts of their case match any of the sentence-enhancing factors listed in the California Vehicle Code. Those factors include: speeding at the time of the offense, having children in the car, causing an accident or bodily injury, having a blood alcohol concentration (BAC) of 0.15% or greater, or having a prior DUI conviction.
 
Some listed factors require automatic additional jail time, others require higher fines or a longer suspension of driving privileges. Those with prior DUI convictions may receive statutory minimums of an additional 96 hours of jail time for a second DUI, 120 days of jail time for a third DUI, and may be charged with a felony DUI for a fourth offense or if one prior conviction was a felony offense. Those charged with DUI while a minor under age 14 was in the vehicle will face additional jail time as well - 48 hours if it was the defendant's first DUI. When the defendant has a blood alcohol concentration that measures 0.15 or above, or refuses to submit to a chemical test, the judge may impose longer driver's education classes, longer jail time, higher fines, a longer driver license suspension or any combination of those things. The higher the alcohol level, the more severe the punishment may be.
 
A DUI that involves property damage or injury to a person other than the driver can also lead to elevated punishment. Significantly, this factor can cause the defendant to receive a felony DUI conviction instead of a misdemeanor. Felonies are a more serious level of crime, carry harsher punishment, and can cause plenty of unanticipated future consequences such as difficulty securing employment and mandatory disclosure on certain federal forms. Put simply, avoiding a felony conviction is important because such a conviction causes plenty of hardship beyond the sentence the judge imposes.
 
Speeding at the time of a DUI offense or driving recklessly can also lead to an enhanced sentence. Speeding 30 miles per hour (MPH) or more above the posted limit on a freeway or 20 MPH or more on other roads will trigger a longer jail term, or a jail term when none would otherwise have been imposed, and mandatory alcohol or drug abuse counseling classes. Reckless driving can similarly trigger sentence enhancements, but the prosecution is required to prove the facts that support a finding of reckless operation of the vehicle by the driver, which must include facts beyond the vehicle's speed. The sum of the facts would need to indicate operation of the motor vehicle in a manner displaying disregard for the safety of others and exceeding mere negligence.
If the court determines that any of the sentencing enhancement factors were present at the time of the offense, most of the elevated penalties described above become automatic, so the judge cannot exercise discretion. If convicted, the defendant will receive all such penalties, which can be severe. 
 
For more information about DUI charges and DUI sentencing enhancements or to discuss options after you have been charged with an offense, contact the Law Offices of Virginia L. Landry by calling 866.902.6880 or visiting us online at www.duiqueen.com. 
Proposition 47 Allows Many Convicted Californians Relief From Their Convictions
Being convicted of a felony level offense can be a life changing experience. The consequences can be severe, even after you have served your sentence. Felony convictions can result in difficulty obtaining employment, may trigger disclosure responsibilities during background checks, and may create further unforeseen challenges in day to day life. 

Fortunately, some people who were convicted of felony offenses in California are now eligible to have their convictions lowered to a misdemeanor offense. Depending on the circumstances of the case, certain convictions for theft and drug possession can be converted to the lower level category of a misdemeanor, greatly improving quality of life for the convicted person by removing the felony label from their record.

For those convicted and still serving time for certain felony offenses, there is equally good news. California law also allows for reclassification of the underlying offense, potentially reducing the length of the prison sentence. Consequently, it is important to understand which offenses may be eligible for a reduction, and to take action if you have previous convictions that qualify.

Proposition 47 

In 2014, California passed Proposition 47, creating a law that drastically changed how California charges and sentences many types of simple theft and drug possession cases. The law also provided for prior convictions of such offenses to be reclassified as misdemeanors, regardless of how old the conviction is. Even inmates currently serving time for an eligible offense may have their crime redesignated as a misdemeanor. However, the reclassification will not happen automatically; eligible individuals must take action by petitioning an appropriate court for review.
 
Proposition 47 takes several offenses that were previously categorized as felonies or straddle offenses - those eligible for prosecution as either a felony or misdemeanor - and makes them misdemeanors. The implication is that these crimes now have a punishment scheme that is generally limited to a maximum of one year in county jail or a fine of not more than $1,000.
 
There is a fairly wide range of offenses included in the scope of Proposition 47. Several crimes against property are included, but only when the value of the property stolen, received, or fraudulently transferred does not exceed $950. If that condition is satisfied, the following offenses are eligible to be downgraded to misdemeanors: shoplifting, grand theft auto, grand theft firearm, check or money order fraud, passing bad checks pursuant to California Penal Code 476(a), and receiving stolen property. In some cases, defendants may still be subject to a felony classification  as detailed below.
 
Certain drug possession crimes are eligible for reclassification as misdemeanors as well. Those crimes include possession of concentrated cannabis charged under Health and Safety Code 11357, possession of methamphetamine charged under Health and Safety Code 11377, and possession of a controlled substance charged under Health and Safety Code 11350. This should come as welcome news to anyone convicted of a qualifying non-violent drug possession crime. However, as noted below, certain conditions will bar an individual from receiving reclassification.

Conditions Preventing Eligibility For Reclassification

The conditions that trigger automatic ineligibility for reclassification of a prior offense under Proposition 47 are meant to withhold the benefit of reclassification from certain persons convicted of violent or sex-based crimes. The sentence reductions will not apply to anyone convicted of violent felonies including murder, rape, and sex offenses against young minors. Additionally, convicted individuals who are required to register as sex offenders are ineligible.
 
The above list of convictions that will render a person ineligible for reclassification is not exhaustive. Other violent and sex-based crimes may also preempt eligibility. All sexually violent offenses, which include all sex crimes perpetrated by use of force, violence, or threat of bodily injury, will preclude eligibility. Attempted murder is also a disqualifier, as is solicitation to commit murder. Assault on a police officer or firefighter using a machine gun and all serious felonies punishable by death or life in prison will also disqualify a person from relief under Proposition 47.
 
While those particular offenses prevent Proposition 47 eligibility, there are a couple of additional offenses that may be less obvious but still have the same preemptive effect. First is gross vehicular manslaughter while intoxicated. If convicted of this offense, a person forfeits the opportunity for resentencing under Proposition 47. The second and final prior conviction that would prevent eligibility is possession of a weapon of mass destruction. Even if you think you may have a prior conviction for any of these offenses, it is wise to consult with an attorney to investigate and determine your options. Actual eligibility for reclassification under Proposition 47 depends on the specific code, section, and subsection of California law that was charged.
 
Petitioning The Court

The process of asking the court to evaluate and reclassify your offense - legally known as resentencing - has three broad steps. The first step in the process is filing a petition for resentencing in the court where the conviction occurred. The petition must be filed in accordance with all applicable local rules, and must be submitted in a format that is acceptable to the court. After the petition is filed and accepted, a judge will review the petition to determine whether the conviction would be classified as a misdemeanor under Proposition 47. If the judge determines it can be reclassified, the judge then questions whether the individual would pose an unreasonable risk to public safety. Although this determination is somewhat subjective, the guiding principle underlying the inquiry is whether the person is believed to likely commit a new violent felony on the list of excluded offenses detailed above. To reduce the chance of such a finding, the petition should be carefully crafted to present the individual petitioning the court as a low-risk person.
 
For that reason, an attorney experienced in Proposition 47 casework is highly important. Anyone potentially eligible for resentencing should speak with us immediately. At the Law Offices of Virginia L. Landry, our attorneys will review your record and determine your best strategy. 

For more information about resentencing of past convictions, visit www.orangecountycriminallaw.com . To set up a free initial consultation with one of our defense attorneys, call 866.902.6880 today. 
Virginia Landry

Virginia L. Landry received her undergraduate degree from Northern Arizona University in 1982. She then went on to pursue her law degree from Western State University, graduating in 1988. The following year, Ms. Landry opened her own Law Office. As a nationally recognized Board Certified DUI Defense Attorney Specialist, Orange County Criminal Defense Attorney Virginia L. Landry, is able to practice law within all the California state courts and the Central District Court of the United States.

 

As a criminal defense lawyer with years of litigation and trial experience, Ms. Landry is fully prepared to handle criminal cases involving violent crimes, white collar crimes, theft crimes, sex crimes, juvenile crimes, drug crimes, weapons charges, and domestic violence. Attorney Landry has successfully represented clients facing a variety of complex misdemeanor and felony charges.


In addition to her current position as Regent for the National College for DUI Defense (NCDD), Virginia serves on the Board of Directors for the California DUI Lawyers Association  as its Secretary. Virginia is one of only a handful of attorneys across the nation who is Board Certified in DUI Defense. She has also received her  certificate of instruction , successfully training participants in DWI Detection and Standardized Field Sobriety Testing Student and Instructor courses.

 

Virginia Landry served on two committees and was on the Orange County Bar Association's Board of Directors for three years, is a past President and current member of the West Orange County Bar Association, is currently a Sustaining Member for the California Attorneys for Criminal Justice and is a member of the National Association of Criminal Defense Lawyers. Other local bar associations include the North Orange County Bar Association, The Newport Harbor Bar Association, the South Harbor Bar Association, the Western State University Alumni Association, the Northern Arizona University Alumni Association and the Warren J. Ferguson Inns of Court.
Law Offices of  Virginia Landry