private property

West Virginia Supreme Court Rules for DUI on Private Property

The West Virginia Supreme Court reversed a lower court’s decision and ruled that people can be arrested and convicted of driving under the influence even if it occurred on private property and have their licenses revoked.

The case stems from an incident in 2012 when a man by the name of Joshua Beckett crashed an ATV in a field on the farm owned by his family. Following the collision, Beckett was taken to the hospital where it was discovered that his blood alcohol content was 0.17 percent. He was subsequently charged with driving under the influence.

A magistrate dismissed the DUI case, but an administrative judge upheld a prior revocation of Beckett’s driver’s license for 45 days notwithstanding Beckett’s argument that there was no evidence that he drove on a public street or highway.

Beckett appealed the decision to the Monroe County Circuit Court. There, the circuit court judge ruled that because Beckett’s “actions did not occur on land open to public use,” the administrative judge did not have jurisdiction to revoke his license.

The Division of Motor Vehicles’ commissioner who originally revoked Beckett’s license appealed the decision to the West Virginia Supreme Court.

“The Legislature’s definition of the phrase ‘in this State’ … extends the reach of our driving-under-the-influence laws to any individual driving a vehicle within the physical boundaries of West Virginia, even if the vehicle is driven only upon private property not open to the general public,” Chief Justice Menis Ketchum who wrote a portion of the majority opinion. “The Legislature chose to structure our DUI statutes to regulate the condition of the driver, not the locale in which the driving is taking place. Thus, the Legislature expressed its plain intent to prohibit an intoxicated person from driving a vehicle anywhere in West Virginia, whether on public roads or across private land.”

The decision and its rationale mirrors that which the law here in California.

Division 11 of the California Vehicle Code sets forth the “rules of the road,” if you will, which includes California’s laws against driving with a 0.08 blood alcohol content or higher and driving while under the influence. California Vehicle Code section 21001 states, “The provisions of [Division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.” The Code then goes on to state, “[t]he provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

Prior to 1982 the vehicle code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The California Court of Appeals in People v. Malvitz relied on the earlier version of the California Vehicle Code to help clarify the issue. The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

Furthermore, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

Whether you’re in West Virginia or in California, it is illegal to drive under the influence on public roads as well as on private property.

 

DUI

California DUI with Out-of-State Priors

Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.

Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?

It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.

For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.

The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.

If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.

 

Where is FBI Director Comey Now?

We have been critical of FBI Director Comey’s comments (see here and here) during the email investigations of Hillary Clinton.  On a positive note, it was good to see him pull together the FBI for a quick review of Hillary Clinton’s emails after his missteps, although this should never have been necessary if commenting during the election had not initially occurred.

But one has to wonder what kind of investigation has been occurring on the overarching problem – email hacking that is reported to be coming from outside the United States that disrupts and influences a U.S. election. (see here) The integrity of elections is crucial and a failure to assure that integrity is maintained is of the utmost importance.  So where is FBI Director Comey now, and why are we hearing nothing about this important investigation?

The NYMag.com is reporting here that “academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots.”  In light of prior hacking of the DNC and the release of emails of individuals associated with Hillary Clinton, one would think the FBI would be conducting an immediate investigation to assure voters of the integrity of our election process. So where is FBI Director James Comey now?

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INTERNET MARKETING FOR ATTORNEYS-LEGAL MARKETPLACE AT ITS FINEST

Attorneys who have been practicing law for years on small firms are aware of the development and advancement of the Internet is consistently changing not simply the trading market however the legal market as well. While the majority of the little companies around the United States are greatly dependent on the referrals from other legal representatives and previous legal-seeking clients, there are just couple of who have actually made it through with no added brand-new customers. With the popularity of the Web among individuals, making use of Yellow pages is not as effective as exactly what it utilized to be during current years.

As an outcome, the use of Yellow pages is continuously decreasing while the use of Internet continues to climb. In fact, a research conducted by the Web World Statistics confirmed that almost 70 percent of the American population uses Web nowadays. Moreover, a separate research study likewise confirmed that lawyer-related keywords are among the most-searched keywords from over 180 search engines during the last 12 months of 2005. Some of these highly-searched attorney keywords were as follows:

– Accident attorney(s);.
– Criminal lawyer(s);.
– Bankruptcy lawyer(s);.
– Tax lawyer(s);.
– Mishap attorney(s);.
– Divorce attorney(s);.
– Construction legal representative(s);.
– Property attorney(s);.
– Probate legal representative(s);.
– Malpractice attorney(s);.
– Patent attorney(s);.
– Trial lawyer(s);.
– Trademark lawyer(s);.
– Business attorney(s);.
– Work attorney(s); and.
– Securities lawyer(s).

There are several countless searches connected to these layer terms are performed every month on over 180 internet search engine on the Internet. Furthermore, a few of these areas have an average of 100,000 searches carried out each month.

That is how popular Internet is used in locating lawyers throughout the United States. It excellents as stating that people who are looking for attorneys to represent them in different legal battles are searched from the Web than the yellow pages and other existing resources.

That is why there now exists the Online marketing for lawyers. There are numerous Web marketing companies that are encouraging lawyers of different competence to sign up with the Web marketing market and promote their services on the Web. Many law firms nowadays have currently plunged to the industry, getting stable to massive flow of targeted and qualified traffic from different search engines, especially those major ones such as Yahoo and Google. This targeted and certified web traffic will be translated to extra new clients, increasing the earnings that Online marketing attorneys earn every month.

There are numerous methods of marketing law practice’s website on the Web. They may use any of the streaming marketing methods:.

– Seo (SEO)– the pages of a specific law practice’s website are enhanced by restructuring the websites material and infusing highly-searched attorney terms on the Internet. This will supply higher presence during internet search engine page results related to legal matters.
– Ppc (PPC) marketing– just like a regular Internet online marketer, attorneys can likewise enroll their sites on PPC marketing, enabling online ads posted to their sites. They will have the ability to earn additional earnings once a website visitor clicks on any of those online ads.
– Legal directory sites– it works similar to the traditional yellow pages wherein a customer can find the law practice’s website based upon the geographical location and area of proficiency. Websites are classified under such groupings.
– Legal blog marketing– composing blog sites is one of the reliable ways of getting targeted traffic to websites. Attorneys can write blogs about the cases they have dealt with along with supply preliminary yet beneficial info about legal matters that are typically disputed in lower or perhaps in higher courts. They will offer some hyperlink back to their websites that will be clicked by the readers in case they want more information about the topic gone over in the legal blog site.
– Email marketing– attorneys will keep a list of potential customers who want to get regular newsletters in the form of e-mails from them. It is one of the efficient ways of building brand-new clients base.
– Numerous domain names– more sites, far better. Nevertheless, other websites have to likewise be registered on its own domain that will affirm the trustworthiness and reputation of the site owners as law experts.

Web marketing for lawyers is the most recent pattern for those law experts who are still searching for added new clients. Why adhere to the Yellow pages if Web is much more effective?