Ask Ben Mironer a Question

Arrested for DUI in Ventura for sleeping in the car

“I went to a party in Ventura and drank too much, so I decided to sleep in my car until I sobered up. A police patrol drove by and knocked on my window. He then proceeded to tell me to step out and perform the sobriety test. He also made me blow into a breathalyzer that resulted in a .13% blood alcohol level. I was arrested for a DUI in Ventura even though I wasn’t driving and was trying to do the responsible thing. Can he do that? Can I beat that DUI?”

This is the type of situation that MUST be challenged. They are charging you for something you did not do. An essential element the prosecutor must prove in a DUI case is DRIVING. They will try to say the circumstances suggest DUI, but what I do is intervene as soon as possible to attempt to contact the filing DA, and convince them not to file a complaint.

“I thought that was OK as long as the keys weren’t in the ignition What constitutes “driving” under the influence?”

Driving is defined as volitional movement in case law. It’s whatever a prosecutor thinks they can prove. They look at circumstantial evidence to decide. Movement of a motorized vehicle, intentionally under the control of the person. Volitional – intentional, and under the control of the operator.

Expungement For RN School

“I pleaded no contest to a DUI charge a year ago. I currently hold an LVN license and plan to apply to RN school soon. I am interested in getting my record expunged. Is that possible? If so, how can I make that happen?”

You were probably placed on 3 years of informal summary probation. It is important to know which court and which department you were convicted in. The reason is, various Judges interpret the law differently on the issues of terminating probation early on a DUI conviction. In order to expunge your case, we must first get probation terminated. When we request to terminate probation, we request to expunge at the same time. Also, it is important to make sure that all of the court requirements have been met before applying. The reason it is crucial to know which court, and even which department your case was in, is because that will be the court we petition for expungement.

According to the DMV I Failed to Appeal Within 10 Days

“In May got a Dui. The arresting officer gave me a copy of the ticket he gave to DMV but the ticket had one box checked by the one-year suspension and nothing else. The ticket he gave DMV has the refusal of a breath test, and refusal of blood and urine test box checked with a three-year suspension. I did not appeal within the 10 days because I did not have anything check on my ticket. Dmv says since I didn’t appeal within the 10 days there’s nothing I can do. Is that true even though the arresting officer gave me a ticket that was different”

Cal vc 13558 – Any person, who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to Section 13353, 13353.1, 13353.2, 13388, 23612, or 13382 or notice pursuant to Section 13557, may request a hearing on the matter pursuant to Article 3 (commencing with Section 14100) of Chapter 3, except as otherwise provided in this section. (b) If the person wishes to have a hearing before the effective date of the order of suspension or revocation, the request for a hearing shall be made within 10 days.

The key is if the officer gave improper notice, the timeline starts to run when notice of suspension is received. Usually, this happens when the officer gives notice of suspension after the arrest. We can request a hearing and fight to get her day at the DMV.

Can’t Use Medicial Marijuana Because of Probation

“My son has been on probation for 6 months. He has his 215 cards and been taking medical marijuana since he got out. Now probation says he can’t continue. What can we do?”

This could be a problem for him because it may a term of his probation to abstain from the use of Marijuana. It depends on what he was convicted of, and whether this was a term he was sentenced to. If not, we would have to put the case on the calendar to request the court’s guidance on whether this is a requirement of his probation, and whether it can be modified. We can explain that it is strictly for medicinal purposes.

Ben Mironer’s Avvo Answers

Q: I am in the middle of my DUI ordered classes and need to leave because of the family emergency abroad. What do I need to do ?: I am in the middle of my 3 months DUI ordered class and I need to go abroad for several months because of the family emergency.. What should I do ?

Asked about 8 years ago in DUI & DWI

A: Ben’s answer: Ask for a leave of absence, or put case on calendar and ask the judge permission.

Q: Can my employer document my DUI in my employee package?: Got a DUI on my day off. I notified my employer. Employer conducted internal investigation, which resulted DUI arrest to be documented on my employee package. Such documentation has affected me on promoting and taking assignments at work. Can my employer do this?

Asked about 8 years ago in Employment

A: Ben’s answer: Most employers document misdemeanor and felony arrests in hiring packages whether or not it’s job related. They can document it especially after you disclosed it.

Q: On a 3 year probation for a wet reckless in LA. Got a “handling electronic device while driving” ticket in Santa Clara.: Hi, I plead guilty to a wet reckless about a year ago. I have already done all the dui classes, AA classes, mandatory license suspension, paid fines, etc. This case was in LA County. A couple weeks ago, I got a ticket in Santa Clara county for driving while holding my phone for looking at my map app to get to San Francisco. Am I in violation of my probation? Can I just pay the fine for the ticket which is not that much and not worry?

Asked about 8 years ago in Criminal Defense

A: Ben’s answer: You should be fine. It has to be a misdemeanor to violate your probation. My colleague is correct though. You may not have even broken the law. The California court of appeals ruled that drivers are allowed to look at their phones for the purpose of looking at maps. See this article:…

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