This is of course dependant on your not being totally intoxicated of course. This is more of a guidling for people who had a drink or 2 over dinner and then drove home.

Drinking and driving is a crime and very dangerous, but sometimes just having a drink can put you in the position to be convicted of a DUI. Which could have devastating effects on your ability to work and pay bills.

Of course having a designated driver or taking a cab is always the best defense for a DUI Conviction.

Back to the discussion of the blood vs. breath. Now both test have a variance within in them, and there are factors that can determine an inadmissible test.

An expert can also argue the results based on the polices own internal documentations, and you a place to start negotiation for a more lenient sentence.

Fact is if your test comes back at the legal limit or higher, there will be a reprimand of some sorts. Even if you are not above the legal limit there may still be issues, based on your driving at the time.

One thing you have to remember is driving is a privilege and not a right. The DMV has it’s own set of hearings on a DUI charge. The DMV has the right to suspend your license, even if the court does not convict you. Same goes true of the DMV hearing finds you innocent, the court can still find you guilty. All of these decisions will be based on the BAC test results provided.

The sunshine is going to distract the drivers from seeing the motorcycle parked in the shade, and with a clear sky. they can see you before they see you.

Just because they clocked you at 45 in a 35 was your speed truly unsafe? The sunny day clear visibility, and the flow of traffic all have a bearing on your case. Also was the radar gun calibrated after the long winter storage? Was the area, he was using the radar gun cleared for radar gun usage?
These are things that need to be considered before you pay the fine and have you insurance go up through the summer, taking some of that valuable gas out of your budget. say 1 speeding ticket only rasies your insurance by $50 that is $600 for just one year! Typically, the insurance company is going to require 18 months before you qualify for a good driver discount so that is $900. That is if you are lucky, not to mention the fine and traffic school, you may have to pay.
Each driving offense has to be treated differently, so it is impossible to post an article that you can use as legal advice. All I can do here is to give you an overview. The best attorneys will give you a free consultation, and sometimes just talking to an attorney may be all you need to see something you can not by being personally involved.

Wrapping up this series on writing a winning brief at the Court of Appeals we take a look at writing your conclusion, which is required under the California Rules of Court for the Court of Appeals.  Their wording instead of “conclusion” is:   “provide a summary of the significant facts limited to matters in the record.”

Even though we are pulling from the Michigan Court of Appeals, the guidance is universal, as long as it remains in compliance with your state’s Court Rules.  Not only is the guidance universal, but it brings out into the open a perspective from the Bench on brief writing.

According to the Hon. Whitbeck, writing your conclusion gives you the perfect opportunity to wrap up your story and conclude by telling your panel the relief you want.  “You can neither overcome bad facts nor can you obviate precedent that goes against you” but you can clearly write a theme and stick to it.  Your writing can be readily understood, and fair in stating facts.

We’ve gone over summary of argument, statement of questions, and statement of facts for appellate brief writing.  In this article, we delve into what is probably the most challenging part to appellate brief writing:  your arguments.

For the 2012 California Rules of Court for the Court of Appeal states in Rule 8.204 (a)(1)(B) that you must “State each point under a separate heading or subheading SUMMARIZING the point, and  [to] support each point by argument and, if possible, by citation of authority…”

The Hon. Whitbeck further guides us on what appellate court judges are looking for in this instruction:  CLARITY.  It is here that you should let each of your audiences know what is coming. He suggests to use an outline format and using the precise description of your “principal points” as headlines or signposts.

Use short declarative sentences.  Some analysts of brief writing believe that lawyers are afraid of periods.  Sentences should be no longer than 20 words.  You writing in your arguments is deliberate and expository.

DO NOT USE THE PASSIVE VOICE.  The Hon. Whitbeck says that your panel of judges is just just like theatergoers and police officers – they want to know who did it.  Saying “mistakes were made” will not satisfy this craving.

Put people in your sentences; do not use the standard, and often confusing references to “plaintiff” and “defendant”.

And finally, find the right words by editing every sentence.  Get rid of words you do not need in order to get your point across.  Even get rid of full sentences that you do not need.  Your arguments need to be succinct, POWERFUL and as brief and simple as possible.  The judges read well over 2,000 pages of briefs a week.  They do not have the time, nor the inclination to feel stupid by reading bad writing.

The law is reason, free from passion.

Aristotle

In Part V and VI we took a look at what it is exactly that an appellate court judge is looking for when reading your Summary of Argument and your Statement of Questions in your brief for the Court of Appeals; eye opening information.  To keep you up to pace in this article, here is the list again, and in this article, we shall address number three according to the wisdom of The Hon. William Whitbeck.

1. Give the judges an introduction or SUMMARY of ARGUMENT
2. Consider using the “Deep Issue” approach to the Statement of Questions
3. Convince the Judges of your credibility in the Statement of Facts
4. Put clarity above all in your arguments
5. Give the judges a CONCLUSION

Convincing the Judges of your credibility in the Statement of Facts:

Did it occur to you that in the Statement of Facts you can prove your credibility?  Many lawyers routinely are unclear, not concise, don’t pay attention to chronological order, only present the material facts that are favorable, state material facts unfairly and with argument and bias.

The statement of facts is not a place for argument or rhetoric.

According to the Hon. Whitbeck the Statement of Facts should do the judge’s work in advance; like it or not. “It should be so carefully done, so straight to the point, so scrupulously accurate and devoid of argument that a judge, even if that judge rules against you, will be comfortable adopting it, in whole or in part, in that judge’s opinion.”

The likelihood of your panel ruling in your favor is greater if you follow this standard.

In this article, we’ll continue with how to argue in a court of appeals.  We left off at the first point in Part V, how to “deliver the goods” in just 90 seconds.  Again, here are the 5 sections that reveal what an appeals court judge is looking for in how you argue:

1. Give the judges an introduction or SUMMARY of ARGUMENT
2. Consider using the “Deep Issue” approach to the Statement of Questions
3. Convince the Judges of your credibility in the Statement of Facts
4. Put clarity above all in your arguments
5. Give the judges a CONCLUSION

Considering using the “Deep Issue” approach to the Statement of Questions:  whatever the court rules are in your jurisdiction, identifying a deep, underlying issue could be addressed when you state the nature of the problem.

The Hon. Whitbeck has identified that for some reason, many appellate attorneys state each question in “one painfully long, virtually unreadable sentence, all in capital letters, that starts with ‘whether’ and ends with a question mark.”  Apparently, there is no such requirement.  “You have worked so hard on selecting your issues on appeal, why word them in a way that no one wants to read them?” — The Hon. Whitbeck.

Break the question down into separate sentences.  Weave in enough facts so that the reader can truly understand the problem.  Pose the question in such a way that there is ONLY one possible answer.  The Hon. Whitbeck gives a great example of a “deep issue” in stating the nature of the problem,  in an easy to read format that was originally brought in by Bryan Garner:

As Hannicutt Corporation planned and constructed its headquarters, the general contractor, Laurence Construction Co, repeatedly recommended a roof membrane and noted that the manufacturer also recommended it.  Even so, the roof manufacturer warranted the roof without the membrane.  Now that the manufacturer has gone bankrupt and the roof is failing, is Laurence Construction jointly responsible with the insurer for the cost of reconstructing the roof?

In Part IV we talked about what to argue after you’ve filed a claim of appeal, and how the docketing statement needs to be constructed.

In this part we’ll discuss how to argue your issues.  The Hon. Whitbeck has broken this down into roughly 5 sections that reveal what an appeals court judge is looking for in how you have chosen to argue your issues.

1. Give the judges an introduction or SUMMARY of ARGUMENT
2. Consider using the “Deep Issue” approach to the Statement of Questions
3. Convince the Judges of your credibility in the Statement of Facts
4. Put clarity above all in your arguments
5. Give the judges a CONCLUSION

Giving the judges an introduction or summary of argument:  some court rules require this and some don’t.  Just because it doesn’t require it doesn’t mean it’s not a good idea.  A summary argument or introduction can be a powerful tool insofar as it “delivers the goods”.

A great point brought up by a guy with the name of Bryan Garner, who gives seminars on how to write briefs, states that every brief should make its primary point within 90 seconds — and that probably only 1 percent of American briefs actually do so.

con’t. in Part VI

For the source of this information, please refer to Parts I and II.

Figuring out what to argue:

Just after the filing of a claim of appeal, you will have roughly 28 days to file a docketing statement.  At this point you will need to:

1. identify the issues that are the basis of the appeal
2. how they came about
3. how they were preserved in the trial court

This summary must be concise and in your docketing statement.

You have many possibilities of issues for appeal:  evidentiary matters or possible instructional errors or technical questions of venue and jurisdiction.  Where do you start?  You’ve even spoke to the trial attorney, if you weren’t the trial attorney.

One well known scholar, James McElhaney suggests to have your own theory of the case.  

Make sure the theory identifies – the big idea – the theme – that is throughout the entire case, then decide on ONLY  those issues that relate to that theme.

This is the exact opposite of what you were taught in law school:  to break legal issues down, deal with them separately – but in figuring out what to argue, you need to look at all the legal issues as a whole.

In deciding what the issues for appeal are, you must be ruthless in your selection.  In doing this, you can bring clarity, simplicity and an understanding of your brief before you even begin writing it.   The Hon. Whitbeck believes at this point all you need to do is decide on how to argue – and to keep in the back of your mind AT ALL TIMES how to tie each issue to the all encompassing theme.

Please refer to Part I and Part II for the source of this information.

The composition of the panel that will decide your brief will be unknown at the time of filing your brief, BUT, you will have an idea of your initial audience in vast majority of the cases:

• a young lawyer in the court’s research division who, like you does not know the composition of the panel and will be writing to ALL of the judges.  This lawyer will prepare a pre-hearing report that sets out the issues, states the facts, summarizes the positions of the parties, analyzes the issues, and makes recommendations as to the disposition of each issue which may be embodied in a proposed opinion.
• a bright and motivated law clerk that will examine your case at length, and understand your urgent need or demand — according to the inclination of the judge.  This clerk will prepare analyses and questions for oral argument, engage in further research, or prepare a draft opinion or dissent.
• the judges themselves - a three-judge case call panel who have been randomly assigned your case.

Thanks to the Hon. William C. Whitbeck, we are able to have a looking glass into a Court of Appeals, from the perspective of a judge.  The following is specific to Michigan Court of Appeals, but provide “need to know” questions that you can apply to any Court of Appeals in the United States.

Know your Court of Appeals.

• total amt. of civil and criminal appeals since its inception
• total amt. of judges
• total amt. of volumes of Appeals Reports written
• courts status nation wide
• know the public’s confidence of this appeals court

Know when the court usually disposes of it’s order cases?  Of it’s opinion cases? For example,  Michigan Court of Appeals often disposes of order cases in the early months of the appeal process.

Know the stages of processing time for opinion cases -

• intake
• warehouse
• research
• judicial chambers

Knowing the stages of processing time for your opinion case will help you identify your audience for your brief.  Two stages are particularly important:  research and judicial chambers.

• research stage – a research attorney prepares a pre-hearing report, a supervising attorney edits the report, and the case is loaded into the court’s computer system for random placement.
• judicial chambers stage - each month, the clerk’s office assigns available opinion cases to three-judge case call panels using a computerized random assignment program.  The court uses three types of panels: regular, complex, and summary.