Mike Harkness, Criminal Attorney in San Diego, California


Over the past decade, California DUI laws have become stricter and more complicated. As the result, the need for competent and effective legal representation in such cases has never been greater.

Misdemeanor prosecutions of DUIs can range from basic first-offense to complex multiple-offense cases. Punishment for misdemeanor convictions includes steep fines ($2,000+), mandatory DUI classes (from 3 to 18 months in duration), possible community service work and, in the event of more than one offense within a 10 year period, potentially mandatory jail time. Increased penalties can apply if the driver refused to take a chemical test, was driving more than 20 MPH over the speed limit, had a child under 14 in the vehicle and/or had a blood-alcohol-content above .20%.

DUIs can also be charged as felonies when there are four or more DUIs alleged within a 10 year period, or when someone else suffers bodily injury as the result of a DUI accident. In the event of someone else’s death, the case can be charged as gross vehicular manslaughter or even second degree murder. Punishment for felony DUI convictions can range from probation (with or without a lengthy county jail sentence) to 15 years to life (or more) in state prison.

Not only do persons arrested for driving under the influence face criminal prosecution through the court system, but they must also deal with automatic DMV license suspension hearings. For a first offense, the DMV can suspend the arrestee’s driving privilege for at least four months. Where more than one DUI is alleged within a 10 year period, or when injury or death occurred, the suspension can be from one year to life. There are provisions under most scenarios, however, to obtain a restricted driver’s license after a certain period of the suspension. Challenging the grounds for a DMV suspension is an integral component of defending a DUI case. To do so, a DMV hearing must be set up within 10 days of the driver’s arrest.

Preparation is the key to a successful DUI defense, starting with a thorough understanding of the current laws and how they pertain to the unique facts of every case, including potential constitutional violations (such as unreasonable search and seizure or Miranda issues). Next, a critical review of the many technical issues is necessary, often with the assistance of a well respected forensic toxicologist who specializes in challenging the government’s scientific evidence. Attorney preparation, coupled with the earned respect of prosecutors and judges, can often lead to negotiated dismissals or reduction in charges. If a trial becomes necessary, an attorney with a proven track record in front of a jury is a must.

We have successfully represented literally hundreds of DUI clients, including those prosecuted for murder and gross vehicular manslaughter while intoxicated. If you have been arrested for any type of DUI offense, remember that time is of the essence when it comes to defending your driving privileges and your personal liberty.

California Drug Crimes

Drug cases in California’s court system include a wide variety of both illegal substances and crimes. It is always illegal to use, possesses, sell or manufacture methamphetamine, heroin, cocaine, ecstasy and other narcotics. Marijuana, due to the recent passage of Proposition 215, may or may not be illegal to possess or cultivate under state law, depending on the particulars of the case. Prescription drugs can also be illegal if not possessed pursuant to a valid prescription. California drug offenses can range from mere misdemeanor possession to felony transportation or possession for sale.

In the case of simple possession (that is, in a quantity considered reasonable for “personal use” as opposed to “for sale”), quite often we are able to get the charges dismissed, either at the outset or after our client completes a certain drug education program. Many times, our clients’ criminal records are not even impacted by the charges. Whether someone qualifies for this type of program depends on several factors, including his or her criminal history, and both the type and quantity of the drug.

Sometimes, even cases that start out charged as “possession for sale” or “transportation” can be reduced in such a way as to allow participation in a drug program resulting in dismissal. If not, sentences can range from probation (with or without jail time) to 9 or more years in state prison—again, depending on a wide variety of factors. Of course, whether drug possession is “for sale” or for “personal use” is debatable, a debate which a skilled and creative attorney can often win.

Three Strikes

The “Three Strikes Law” is the most monumental change ever in California’s criminal justice system. It radically increases the potential punishment for those charged with current crimes that also have certain prior convictions.

Such a prior conviction (or “strike”) is defined as a previous “serious” or “violent” felony, which include: murder, mayhem, rape and certain other sex crimes, many child molestation offenses, assault with a deadly weapon and certain other types of assault, arson and specific explosive device crimes, any offense involving the personal use of a dangerous weapon, robbery, first degree burglary, kidnapping, carjacking, drive by shootings and most gang-related offenses, among others.

If an individual who is currently facing prosecution for any felony has previously been found guilty of one of these “strike” offenses, then his or her potential sentence on the new case is doubled and he or she must serve at least 80% of any prison sentence. If the person has two or more prior “strikes,” and the current case is also considered serious or violent, then he or she faces a minimum 25 years-to-Life sentence in state prison.

Fortunately, the California Supreme Court has ruled that judges are able to “dismiss” prior strikes without the consent of the prosecutor. Prosecutors themselves also have the ability to eliminate prior strikes. Often times, therefore, an aggressive and persuasive attorney can successfully argue for significant reductions in punishment. Many factors, such as how long ago the prior conviction occurred and what the defendant has done with his or her life in the meantime, are taken into consideration. In a Three Strikes case, an effective attorney not only looks for ways to disprove his client’s guilt, but also towards eliminating the “strike priors” in the event a plea bargain becomes necessary.

Violent Crimes

Cases alleging murder, shooting, great bodily injury, robbery, assault and forcible sex crimes are among the most serious and complex cases prosecuted under California law. Not only does a conviction for such a crime constitute a “strike” (which can be used against the individual in the event of a future felony conviction), but many times it requires a minimum mandatory prison sentence or, sometimes, an indeterminate Life term.

It should go without saying that attorney selection in such a case is of paramount importance. Prosecutors often focus on violent crimes with the goal of obtaining the harshest punishment attainable under the law. An experienced, zealous and intelligent defense—while helpful in any type of criminal case—is vital to protect the rights of the accused in violent cases.

Gang Cases

Almost any crime that was carried out in association with a “criminal street gang” is treated more severely than it would be absent gang involvement. For example, an individual who commits a home invasion robbery normally faces a maximum prison sentence of 9 years; if, however, the robbery was done to benefit a street gang, then that same individual faces a potential sentence of 15 years-to-Life.

Whether an accused individual is a “documented” gang member, therefore, is a critical question in defending such a case. Often times, law enforcement labels someone a “gang member” merely because he or she associates with, or has friends who are, gang members. Therefore, in any gang case, it is imperative that the “gang” label be challenged. Otherwise, it can stick with the individual for years to come, thereby potentially increasing punishment for any future crimes.

Another common issue in gang cases is whether the alleged crime was actually done “to benefit” or “at the direction of” or “in association with” a gang. Just because someone who is accused of a crime is, in fact, a gang member does not mean that the “gang enhancement” should apply to his or her case. A top-quality lawyer will conduct a thorough analysis of the specific facts of an alleged gang case and try to weave an argument that the gang laws simply do not apply.

Finally, even if someone is a gang member and commits a gang-related crime, an experienced and knowledgeable defense attorney can sometimes persuade a prosecutor and/or judge to “dismiss” the gang enhancement. For example, an individual who joined a gang out of fear for his own safety, or because of cultural reasons that left him without a choice, can often be portrayed in a way that results in a more favorable outcome.

Civil and Personal Injury

My original career goal of advancing my clients’ interests in the courtroom now extends beyond the criminal courts.  Since 2007, I accept certain civil and personal injury cases which require the same type of smart, zealous trial advocacy that I developed in my criminal defense practice.  Most of these cases, like the criminal cases I handle, pit “David” versus “Goliath”—only Goliath in the civil matters is usually Big Insurance Companies instead of the Government.  If you have been injured or otherwise harmed in a situation that wasn’t your fault, give me a call and I will happily give you a free consultation and consider taking on your case.