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Darren Kavinoky - ArticlesDarren Kavinoky is the founding partner of The Kavinoky Law Firm, a
criminal defense law firm with six offices throughout California. The attorneys of the firm take pride in their constant continuing legal education and unparalleled one-on-one client service. Every attorney at the firm particpates in ten times the amount of education required by the state bar. In addition, the attorneys provide each client with a personal cell phone number, and they make themselves available to clients at all times. The attorneys of The Kavinoky Law Firm understand that there is only one case that matters to you: yours! They are dedicated to treating each client with personal service to ensure satisfaction. Darren has defended numerous high-profile clients, developed key relationships with media leaders, and earned public support for clients through effective television and radio appearances. He has provided thoughtful commentary regarding various legal issues on NBC's Today Show, CNN's Larry King Live and Court TV's Prime Time Justice, as well as many local television news and radio programs. The Kavinoky Law Firm Pros and cons of in-person vs. telephonic DMV HearingsThe Administrative Per Se (APS) hearings are held in the DMV Driver's Safety Office nearest to the location of the arrest. The APS hearings are run by DMV employees, called hearing officers. The request for the APS hearing must be made within 10 calendar days of the arrest, or else the defendant's license will automatically be suspended 30 calendar days after the date of arrest. How does Evidence Code Sec. 1280 apply to DMV HearingsA police officer's statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280, titled "Record by public employee" reads: How does Evidence Code Sec. 664 apply to DMV HearingsCalifornia Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer's sworn statement, except when it is clear that the trustworthiness is not established when the officer incorrectly reports all the facts in the sworn statement. "Downer" issues in DMV HearingsThe Downer case dealt with California Evidence Code section 1280, the official records hearsay exception. Hearsay involves any statement made outside of court, offered to prove the truth of the matter asserted. Forensic laboratory reports are hearsay, because they deal with events and statements that took place in a place outside of the courtroom, and are used to convict the defendant of a crime. However, forensic reports can be entered into evidence under the official records hearsay exception. Section 1280, titled "Record by public employee" states: DMV and court: two separate processesWhen someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an alleged blood alcohol content (BAC) over .08 percent, unless an Administrative Per Se (APS) hearing is requested within 10 days of the DUI arrest. The court case commences with the arraignment date, which is usually held within 45 days of arrest. Both cases are held in locations that are the closest, geographically, to the site of the initial DUI arrest. Davenport Issues at DMV HearingsThe Davenport case holds that the arresting officer's written statement is sufficient to support the DMV's suspension of the defendant's driver's license. The Davenport court held that the officer has a duty to administer chemical tests according to methods that are designed to assure reliability. Similarly, California Evidence Code Section 664 gives the presumption that the officer's official duty has been "regularly performed," thus giving rise to an inference of the reliability of the test. Who has burden in DMV HearingsThe DMV has the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof is that there is more evidence weighted towards driving under the influence of alcohol than not. State law has mandated that the burden rests with the DMV to justify its order of suspension. Wobblers vs. WobblettesIn California this term is used to identify crimes that are punishable either as a felony or as a misdemeanor. There are over a hundred cases that can be classified as either a felony or a misdemeanor. This distinction can be found in the Penal Code. These types of cases are referred to as "wobblers" due to the sentencing structure. In other words, wobbler crimes are those that could bring a sentence of state prison, county jail, or fines. The Process in a Misdemeanor CaseThe arraignment is the defendant's first court hearing after the arrest, booking, and initial bail phases of the criminal process have taken place. This is usually the first opportunity for the defendant to hear the charges pending against him and provides the defendant the opportunity to plead to those charges. A prompt arraignment is related to the Constitutional safeguard of providing a "speedy trial." The arraignment date will be dependant on several factors. The defendant's custodial status is the most important factor. The Process in a Felony CaseThe arraignment is the first court hearing in a felony case. An arraignment follows the constitutional principles of speedy trial rights and the ability to hear the charges being held against the defendant. Both in-custody and out-of-custody defendants must be arraigned without undue delay, no more than two calendar days after arrest, excluding Sundays and holidays.
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