“Alcoholic Beverage” by Darren Kavinoky “Alcoholic Beverage” 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 v ... “Driving” by Darren Kavinoky “Driving” “Driving” is one of the required elements of a DUI offense. Driving requires Author's Biography: ... DUI Elements: Alcohol by Darren Kavinoky DUI Elements: Alcohol 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. Specifically, the elements are: „X Driving: The defendant had to be driving at the time alleged to have been intoxicated. „X Vehicle: The defendant had to be driving a vehicle, as defined by the California Vehicle Code. „X Under the Influence: The defendant had to be ¡§under the influence¡¨ of ... Per Se Rule by Darren Kavinoky “Per Se”: 23152(b) 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 sympt ... “Under the Influence” by Darren Kavinoky “Under the Influence” 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. BAC below .08 percent A BAC below the per se legal driving limit of .08 percent ... “Vehicle” by Darren Kavinoky “Vehicle” In order to be arrested and convicted of a DUI, the individual must be driving a vehicle. The California Vehicle Code defines vehicle as Author's Biography: ... Federal Crimes by Darren Kavinoky Federal Crimes 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. There are two scenarios which lead to the filing of a criminal case in federal court: (1) An alleged violation of federal law (2) Where ... Carrying Concealed Weapon by Darren Kavinoky Carrying Concealed Weapon 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 firear ... Possession of Weapons/Explosive Devices by Darren Kavinoky Possession of Weapons/Explosive Devices 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. Felony Convictions A felony firearm crime may involve unlawfully carrying a firearm when a felony crime was attempted or committed. It is also a felony firearm crime for a convicted felon to possess a firear ... Shooting From a Motor Vehicle by Darren Kavinoky Shooting From a Motor Vehicle 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 ... Blood Tests by Darren Kavinoky Blood Tests When a person is arrested for a DUI, that person must submit to a chemical test under the “Implied Consent” provision in the California Vehicle Code. Implied Consent, under Section 23612 states that if a person is lawfully arrested for a DUI, they are deemed to have given his or her consent to taking either a blood or breath to determine blood alcohol content (BAC). If drugs are suspected, a blood or urine test may be demanded. If a person fails to submit or fails to complet ... Urine Testing by Darren Kavinoky Urine Testing When a person is arrested for a DUI, a chemical test is required to measure the alcohol content in the blood (BAC). The three chemical tests available are: blood, breath, or urine testing. Urine testing refers to the chemical examination of the urine in the detection of drugs or alcohol. Urine testing is generally only given as an option where a person is arrested of driving under the influence of drugs, driving under the influence of alcohol and drugs, but not for merely dri ... Alcohol and the Human Body: 101 by Darren Kavinoky Alcohol and the Human Body: 101 Alcohol is a central nervous system depressant. The degree to which the central nervous system function is impaired is directly proportional to the concentration of alcohol in the blood. There are 3 stages: absorption, distribution, and elimination. Absorption Absorption is the process of moving alcohol from outside the body into the bloodstream where it can be distributed throughout the body. Alcohol typically enters the body through the oral ingest ... Evidential Breath Tests by Darren Kavinoky Evidential Breath Tests Evidential breath tests, commonly known as EBT¡¦s, are the most commonly used breath-testing instruments. These instruments detect ethyl alcohol by infrared spectroscopy. How alcohol gets in the breath First, a person ingests an alcoholic drink. The alcohol does not get digested like other substances, but instead gets absorbed by the stomach and small intestine. From this point, the alcohol enters the bloodstream. Second, the alcohol is distributed by t ... Forced Blood Draw by Darren Kavinoky Forced Blood Draw When a person has been lawfully arrested for a DUI, the Implied Consent provision of the California Vehicle Code mandates that they take a chemical test in order to determine their blood alcohol content (BAC). Although a person may refuse to submit to a chemical test, law enforcement is authorized to take a “forced blood draw.” A forced blood draw can be either the incapacitation of a person by law enforcement officers (physically holding him down) or the threat of doing s ... Inappropriate Subjects for Breath Testing by Darren Kavinoky Inappropriate Subjects for Breath Testing Although breath testing is widely used to measure blood alcohol content (BAC), it is not appropriate for all people. Breath testing measures the amount of alcohol that is evaporated from the alveolar tissue in the lungs. Breath is expelled from the deepest portion of the lungs, passes through the throat, and then exits from the mouth. However, where residual alcohol is retained in the mouth, the resulting BAC reading will reflect mouth alcohol and ... PAS Tests by Darren Kavinoky PAS Tests Preliminary Alcohol Screening devices, commonly referred to as PAS tests, are one of the types of field evidence police officers use in determining probable cause to make an arrest. Although officers don’t often reveal this, a person stopped for a DUI is not obligated to take the PAS test, as it is a voluntary test and is not subject to the “implied consent” laws. The most widely used PAS device in California is the Alco-Sensor III or IV. The Alco-Sensor utilizes fuel cell tech ... Homicide: Intro Page by Darren Kavinoky Homicide: Intro Page Homicide is the unlawful killing of another human being. Included among homicides are murder and manslaughter, of which there are varying degrees and types. 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 ... Manslaughter by Darren Kavinoky Manslaughter 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. Voluntary Manslaughter Voluntary manslaughter is defined in California Penal Code Section 192: ¡§(a) Voluntary manslaughter: upon a sudden quarrel or heat of passion.¡¨ Voluntary manslaughter means that while the pe ... Manslaughter While Operating a Vessel by Darren Kavinoky Manslaughter While Operating a Vessel 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 deat ... Murder by Darren Kavinoky Murder 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. However, not all homicides are a crime, particularly when there is a lack of criminal intent. Lack of criminal intent provides the basis for homicide defenses ... Special Circumstances Murder by Darren Kavinoky Special Circumstances Murder 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 mu ... Vehicular Manslaughter by Darren Kavinoky Vehicular Manslaughter 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 ... Investigation of DUI Cases: What driving patterns do police typically look for in DUI cases? by Darren Kavinoky Investigation of DUI Cases: What driving patterns do police typically look for in DUI cases? What do each of these driving patterns signify? Why are they evidence of impairment? 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 desce ... Investigation of DUI Cases: HGN by Darren Kavinoky Investigation of DUI Cases: HGN Horizontal Gaze Nystagmus 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. In order to get an accurate result, HGN must be performed properly. In order to rule out the possibility t ... | ||||||
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