January 2017 Newsletter
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Can You Refuse to Take a Breathalyzer Test? 
Drivers who are pulled over for suspicion of driving under the influence (DUI) are within their rights to decline to take before an arrest, certain breathalyzer tests.

The roadside breath test administered by a law enforcement officer is called the Preliminary Alcohol Screening (PAS) test. The device used is a handheld breathalyzer that must be maintained properly by the law enforcement agency or county crime lab. Although most people are not required to take the PAS test if validly arrested, a person is then required to take either a breath test or blood test.

If an officer believes there are narcotics in the body, a request for a blood or urine sample is allowed. Refusing to take a chemical test after an arrest at a police station or a hospital can incur additional penalties if convicted.  Under California's implied consent law, it specifically states that if you are lawfully arrested by an officer who has probable cause for a DUI arrest, then you have impliedly consented to taking a chemical test for the purposes of determining your blood alcohol content . Drivers who decline to take a chemical test after their arrest face increased license suspension time. For instance, on a first refusal, they face 48 hours in jail and an automatic one year license suspension. Drivers with a prior DUI face 96 hours of jail and a two-year revocation of their driver's license. Drivers who refuse a test after an arrest are highly unlikely to qualify for a restricted driver's license, whether or not there is a hardship or critical need.

Drivers are often confused about the distinction between the pre-arrest PAS test, and the post-arrest breath or blood test that is taken after the arrest. As a general rule, if you are offered a choice between a breath test and a blood test post-arrest, you should choose the breath test. These tests are less reliable and more easily challenged.

In addition, an officer must obtain a search warrant to draw a person's blood. In 2016, the U.S. Supreme Court ruled warrantless blood draws following DUI arrests are unconstitutional.

If you have been arrested for drinking and driving in California, you should contact an experienced DUI attorney as soon as possible to pursue your options. For more information, contact the Law Offices of Virginia Landry at 949.585.7400 or visit www.duiqueen.com .
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Cleaning Up Your Record: Can You Reduce Your Charges After a Conviction? 
A criminal conviction on a person's record can be detrimental and can negatively impact one's future in numerous ways.
There is a big distinction between a misdemeanor and a felony conviction. Misdemeanors are defined as a crime which is punishable by up to one year in jail. Felonies are defined as crimes that are punishable by prison sentences greater than one year. The consequences of a felony conviction can continue after the defendant has completed his or her sentence.
Failure to disclose a felony conviction to an employer can lead to loss of employment and the inability to receive unemployment benefits. Persons with felony convictions can lose professional licenses in their respective fields including but not limited to medicine, social work and teacher credentials.
In addition, persons with felony convictions lose their right to vote. They may also be ineligible to serve in the armed forces and are disqualified from serving on a jury, from holding public office, and owning a firearm.
In California, an individual charged with a felony may get their case reduced to a misdemeanor, thus avoiding some of the harshest consequences and punishments. Individuals seeking to reduce their record from a felony to a misdemeanor under the California Penal Code 17 (b), need to show compliance with probation terms, successful completion of programs if substance abuse was involved, or anger management issues.
Reducing a Felony to a Misdemeanor Under Penal Code 17 (b).
Defendants who have been convicted of a felony may have their offense or offenses reduced to a misdemeanor in certain circumstances, namely:
  1. If the felony conviction is a "wobbler." This is an offense that can be charged and punished as either a felony or a misdemeanor. Depending on the type of charge, these offenses typically carry a prescribed sentence of either time in a county jail or in a state prison. The prosecutor decides whether it is charged as a felony or a misdemeanor. 
  2. The defendant must have been sentenced to probation. Time in state prison will leave an inmate ineligible for reduction.
  3. If an individual is convicted of other felonies in the same case, all charges must be eligible for reduction.
A person who satisfies all three criteria may petition for a reduction of charges either post-conviction, at the time of the felony sentencing or after being sentenced and completing felony probation.
If you are serving a term for a felony conviction, our   experienced Orange County criminal defense lawyers can advise as to whether the charges are eligible for a reduction under Penal Code 17 (b). Depending on the circumstances, we may be able to obtain an early termination of probation to speed up the process.
The court will weigh several factors at the PC 17(b) felony reduction hearing including:
  1. Any previous convictions in a defendant's       criminal history;
  2. The pertinent facts of the case;
  3. The defendant's compliance with the terms of probation;
  4. The nature of the criminal offense.
Keep in mind that the reduction of charges after a conviction is not the same as an expungement. There are certain circumstances where felonies are eligible for expungement. When felonies are expunged, offenders may have difficulty restoring certain rights and privileges. For example, it can be extremely difficult to restore Second Amendment rights.  Many defendants who are charged with a 'wobbler' seek a PC 17(b) felony reduction prior to filing a petition for an expungement.
If you have been charged with a felony, you should seek every means possible to get it removed from your record. It's not possible to reduce all felonies after a conviction but California law gives you the chance to reduce a felony to a misdemeanor in certain cases.  Our Orange County criminal defense lawyers can advise as to your rights. Call the Law Offices of Virginia Landry at 866.902.6880 or visit our website.

A Note To Our Clients
  • To our current clients: Thank you for the opportunity to serve you during this difficult time
  • To our future clients: We look forward to working with you in your time of need.
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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 serving as Co-Chair of the DUI / DWI Committee. 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 and the Northern Arizona University Alumni Association.

The Law Offices of Virginia Landry Attorneys