Resisting Arrest逮捕時の抵抗

Resisting Arrest逮捕への抵抗

刑法148条は、公務を行う保安官や救急隊員に故意に抵抗、遅延、妨害することを軽犯罪と定めています。手錠をかけようとする警察官ともみ合いになることや尋問の際、虚偽の情報(偽名など)を当局に提供することなどが該当します。逮捕への抵抗(Resisting Arrest)で有罪となった場合、郡刑務所で1年以下の懲役および1000ドル以下の罰金で処罰されます。被告人が故意に行動していない事、誤って告発された/正当な理由なく逮捕されたという事を証明する事で弁護が有利になります。

DUI Penalties

PENALTIES FOR COURT CONVICTION OF DRIVING UNDER THE INFLUENCE ( VEHICLE CODE §23152 )

Minimum and maximum sentences with probation (3-5 years):

First Offense A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), up to 6 months in jail, and attendance in a 3, 6, or 9 month alcohol program. As a result of the court conviction, the DMV will suspend your license for 6 or 10 months, depending on the alcohol program ordered, but a restricted license may be requested. Additionally, you will receive 2 points on your driving record.

Second Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 4 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be requested with IID for 1 year. Additionally, you will receive 2 points on your driving record.

Third Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 120 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 3 years, but a restricted license may be requested with IID for 2 years. Additionally, you will receive 2 points on your driving record.

Fourth Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 180 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 4 years, but a restricted license may be requested with IID for 3 years. Additionally, you will receive 2 points on your driving record.

DMV DRIVER’S LICENSE CONSEQUENCES WHEN YOU LOSE OR DON’T REQUEST A HEARING AFTER BEING ARRESTED FOR DUI

First Offense

0.08% or greater: 4 month suspension Restricted available

Refusal: 1 year suspension  Restricted not available

Second Offense within 10 years

0.08% or greater: 1 year suspension Restricted available

Refusal: 2 year revocation Restricted not available

Third Offense within 10 years

0.08% or greater: 1 year suspension Restricted available

Refusal: 3 year revocation Restricted not available

Contact The DUI Specialist

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Alcohol DUI Defenses

DON'T ASSUME YOU HAVE TO PLEAD GUILTY

Driving under the influence of alcohol is made illegal because the alcohol in the bloodstream impairs the brain’s ability to function normally. Thus, what is important in determining the level of impairment is the alcohol content IN THE BLOODSTREAM (BAC) and AT THE TIME OF DRIVNG. If what is measured does not reflect what was in the bloodstream at the time of driving, then the results have no rational basis to support a DUI conviction. Moreover, if what is tested becomes contaminated, then the results must also be discredited.

BREATH TESTS: Breath machines are accurate, but the results often aren’t! As ironic as that sounds, it is true. Breath machines are very good at measuring what comes into it. The problem is, what comes into it is often not reflective of what it is designed to measure: a person’s Blood Alcohol Level at the time of driving. Consider the following:

1. Mouth Alcohol – breath machines are designed to measure air, not liquid. When you drink alcohol, some of it gets stuck in between your teeth. Likewise, when a person burps, liquid alcohol gets mixed up with saliva. While this type of mouth alcohol may seem minimal, it certainly isn’t so minimal for a breath machine that is designed to measure the alcohol in a person’s breath, not saliva. What makes it worse is that police officers are known for requesting that you blow into a breathalyzer as hard as you can for as long as you can. Anyone who has played a trumpet or blown into a balloon knows what happens when you blow into something forcefully—saliva gets spit out. In the case of a DUI, the BAC measured can be many times higher due to the presence of mouth alcohol.

2. Rising BAC – depending on the length of time and amount of consumption, a person’s Blood Alcohol Level can continue to rise several hours after the last drink. For example, suppose it is 11pm and you just had your last drink and you are driving home, you could be at a 0.06%, but by 12am or 1am, when you are administered a chemical test at the police station, you may register a 0.09% or higher. In other words, the results obtained simply do not reflect your BAC at the time of driving.

3. Absorption – as mentioned above, what makes DUI illegal is the alcohol in the bloodstream that impairs the brain. The problem with breath machines is, it works by measuring BREATH and converting it to a BLOOD Alcohol reading. So if the “breath” reflects a 0.10% BAC, but the “blood” actually contains only a 0.03% BAC, then you can see how an innocent person gets convicted of DUI. The fact is, when a person is still absorbing alcohol and blows into a breathalyzer, the results will ALWAYS read higher, sometimes 3-5 times higher! The reason is, the person is still absorbing alcohol, a process that can take up to several hours especially if there is food in the stomach. During absorption, the alcohol consumed has not had sufficient time to fully enter the bloodstream, so the “breath” alcohol measured can be a far cry from the “blood” alcohol, which is what affects the brain. Remember that DUI statutes refer to “BLOOD Alcohol Level,” not breath!

BLOOD TESTS:

Blood tests are generally more accurate than breath tests, because blood is measured directly and no conversion from breath is necessary. However, in addition to being vulnerable to the Rising BAC attack (see above), blood samples are often not maintained properly, and the results can be just as skewed. Consider the following: 1. Fermentation – after blood is drawn and put in a vial, Title XVII requires that an anticoagulant and a preservative be placed in the vial, which must then be shaken. The anticoagulant prevents the blood from clotting, and the preservative prevents fermentation, whereby the blood goes bad—much like sour milk —and the alcohol content multiplies. The problem is, most blood vials in DUI cases sit in the police station un-refrigerated for several weeks before someone even gets to the task of evaluating it. This is coupled with the fact that law enforcement is often unfamiliar with the requirements of Title XVII, and do a poor job documenting the chain of custody of the vial. This means that the BAC obtained from the “contaminated” sample can be much higher than the BAC of the same sample the day it was drawn from your arm!

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DUILAWYEH@GMAIL.COM

よくあるご質問

合法な逮捕とは?

逮捕は、正当な理由に基づいている場合に適法となります。言い換えれば、警察官は合法的な逮捕を行う前に、犯罪が行われたという合理的な疑いを持っている必要があります。警官が時間をかけて正当な理由を確立する前に、時期尚早に逮捕した場合、それは違法な逮捕となります。

警察署で採血を強引に拒否したら、それは逮捕に抵抗したことになりますか?

いいえ。通常、採血のために警察署または病院へ到着した時点で、あなたはすでに逮捕されています。しかし、他の容疑(暴行罪など)を問われる可能性があります。

逮捕に抵抗した場合の法定刑は、飲酒運転の罰則に上乗せされますか?

ありえます。法律上、DUIと逮捕への抵抗の両方の罪で有罪判決を受けた人は、両方の罪に対して連続して処罰を受ける可能性があります。

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