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Los Angeles DUI Attorney - FAQsDrunk Driving Defense: Questions Below
If this is your first offense and you have not been arrested before, I know this is probably the first question, err, concern on your mind. As such, you should know that in most counties, jail is not required and only certain counties in California require jail or an alternative for first offense DUI. However, an experienced Los Angeles DUI lawyer may be able to keep you out of jail and resolve your case in a favorable manner. If I was drinking and driving, I'm guilty, right? WRONG! It is NOT against the law to drink and drive!!!! It is illegal to drive while impaired, or if your blood alcohol level (BAC) is above 0.08% and even then, the prosecution must prove these facts (your were impaired and/or your blood alcohol concentration was above the legal limit) beyond a reasonable doubt. Why a lawyer who specializes in Driving Under the Influence Defense? Just as lawyers specialize in certain areas of the law, certain lawyers have special expertise in extremely specialized areas, such as driving under the influence (DUI) defense. Because of the complex, technical, and scientific nature of drunk driving defense cases, it is extremely important to have a Los Angeles drunk driving lawyer who knows the very specific and detailed scientific and legal basis of the government's case better than they do! Significantly, there are defenses available to almost every set of facts in a DUI case, depending upon the specific type of evidence in each case. The trick is knowing what to look for and how to use those facts in creating a defense to the allegation of driving under the influence. Why am I being charged with TWO crimes? The traditional offense of "driving under the influence of alcohol" (DUI), dealt with driving while impaired. However, in recent years, almost every state has enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration of .08% or above. In California, BOTH offenses are typically charged and prosecuted and following trial, a defendant can be convicted of both offenses. If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged. What if the police officer says I was drunk? Fortunately for you, the officer's subjective opinion is not necessarily an accurate statement of fact and often subject to challenge and review. Significantly, studies have shown that even properly trained officers subjective opinions of impairment and/or intoxication levels are typically no better than 50/50 in determining whether a person is "under the influence" through the use of normal "field sobriety tests." What if the evidence against me seems overwhelming? When the evidence "seems" overwhelming, that is when you need a Los Angeles DUI attorney dedicated to drunk driving (DUI) defense in order to make sure that ever possible issue and defense is explored before you contemplate accepting an offer by the Government. What is a sentence "enhancement"? Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within seven years of the current offense. Other common enhancements include: • A child was in the car at the time. • The defendant was traveling 20 or 30 miles over the speed limit at the time. • The blood-alcohol concentration was over .20%. • The defendant refused to submit to a chemical test. • There was property damage or injury. • The defendant was under 21 ("zero tolerance" laws commonly require a much lower blood - alcohol level, and impose longer license suspensions). • Personal injury caused by drunk driving elevates the offense to a felony. • A death can trigger manslaughter or even, in a few states (including California), murder charges. What will DMV do to my license? Regardless of the outcome of your criminal case, the Department of Motor Vehicles will act independent of the court on the "Administrative Per Se" suspension of your privilege to drive. In order to obtain relief from the mandated DMV suspension, a DMV hearing must be requested within 10 days of your arrest. At this DMV hearing, evidence can be presented to dispute the issues to be raisedand a properly trained Los Angeles DUI lawyer can fight to avoid suspension of your driving privilege. What is Law Enforcement Looking for as I am driving? Police officers look for anything they could use to arguably justify a stop of your vehicle. However, The National Highway Traffic Safety Administration (NHTSA), part of the Department of Transportation), has produced a guide for detecting drunk drivers at night. These are the 20 signs NHTSA has published as cues officers look for when determining whether to detain a vehicle for a DUI investigation. • Turning with wide radius • Straddling center of lane marker • Appearing to be drunk (based upon posture, gestures, etc.) • Almost striking object or vehicle • Weaving • Driving on other than designated roadway • Swerving • Speed (more than 10 miles below legal limit) • Stopping without cause in traffic lane • Following too closely • Drifting • Tires on center or lane marker • Braking erratically • Driving into opposing or crossing traffic • Signaling inconsistent with driving actions • Slow response to traffic signals • Stopping inappropriately (other than in a lane) • Turning abruptly or illegally • Accelerating or decelerating rapidly • Headlights off What is the officer looking for during the initial detention at the scene? The traditional symptoms of intoxication taught at the police academies are: • Flushed face • Red, watery, glassy and/or bloodshot eyes • Odor of alcohol on breath • Slurred speech • Fumbling with wallet trying to get license • Failure to comprehend the officer's questions • Staggering when exiting vehicle • Swaying/instability on feet • Combative, argumentative, jovial or other "inappropriate" attitude • Soiled, rumpled, disorderly clothing • Disorientation as to time and place • Inability to follow directions What should I do if I'm asked to take field sobriety tests? Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any field sobriety tests and a polite "no thank you" should be sufficient. What if I refused a chemical test? Refusal of a chemical test MAY result in a One year suspension of your drivers license and cause the imposition of higher fines and/or other penalties in the court case, if you are convicted and this may be a big if. However, if there is no chemical test to offer as evidence, the Government is limited in their case and can usually only proceed on the allegation of impairment as supported by the officers observations and the results, if any, of the Field Sobriety Tests (LINK), both of which can be the subject of challenge. Should I agree to take a chemical test? What happens if I don't? YES!!! California's Implied Consent Law requires all drivers to submit to a chemical test if the officer believes you are under the influence of alcohol, drugs or both. The consequences of refusing to submit to a chemical test will result in a minimum one year suspension of your license and may cause greater penalties in the criminal case. Further, the mere fact of refusal may be introduced as evidence during trial to establish "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal. Thus, it is always required to submit to a chemical test and the decision, if any, is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing. Do I have a choice of chemical tests? Which should I choose? In California, only blood or breath are offered, unless neither is available in which case a urine test is possible. Analysis of a blood sample is potentially the most accurate, while breath machines are susceptible to a number of problems rendering them inherently unreliable. Therefore, if you are confident that you are sober, a blood sample is the wise choice. What defenses are there in a DUI case? Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. However,the majority can be broken down into the following areas: • Driving: the prosecution must prove the defendant was driving. • Probable Cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. • Statements/Miranda: Incriminating statements may be suppressed if warnings were not given at the appropriate time. • Implied consent warnings: If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may be an issue in defense. • "Under the influence": The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, the subjective (and predisposed) nature of what the officer considers as "failing". • Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. Significantly, most breath machines will register many chemical compounds found on the human breath as alcohol and breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood. While, in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist. Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 to 90 minutes complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results. Quite simply, a skilled DUI attorney is the only person who will be trained to properly spot and address the unique and highly complex issues found in a drunk driving defense case. Will I be able to get my case dismissed because I was not read my rights? Probably not. However, depending upon the facts of your case, it is possible to challenge admissibility of the statements depending upon when they were given in relation to your stop and/or arrest. I lost my CALIFORNIA license. May I obtain a license in another state? In most cases, no. What is the worst case scenario if I am convicted of a first offense driving under the influence (DUI)? and is this realistic? If you are convicted of a first offense DUI, the worst case will involve a fine of approximately $3,000.00, a maximum of six (6) months in jail and a 90 day alcohol/DUI program and a 4 month license suspension. NO!!! Everyone I have ever spoken with asks for the worst case scenario. However, the worst case scenario is almost never what happens and I have never represented anyone on a first offense DUI who suffered anywhere near these consequences. A "typical" first offense DUI can result in fines of approximately $1,500, three years of summary probation, a 90 day DUI/alcohol school, a 90 day license restriction from the court and a four month suspension of your license. For a more detailed breakdown of the possible punishments associated with DUI convictions and subsequent convictions for DUI click here (SEND TO PUNISHMENT SECTION) What is "rising blood alcohol" and is it a defense to driving under the influence? Rising blood alcohol is a scientific analysis of the rate at which alcohol is absorbed and distributed by the body. Basically speaking, if you have one drink and your blood alcohol is tested at various intervals, you will see that over a period of time the alleged BAC will rise and after more time decrease as a result of elimination. So, if your have one drink at 1:00 a.m., get pulled over at 1:05 a.m., and get tested at 2:00 a.m., your blood alcohol at the time you are tested will likely be significantly higher than it was at the time you were driving versus a chemical test conducted at 1:10 a.m. It is also important to understand that under the right circumstances, this may constitute a defense to a charge of driving under the influence. I was driving, I got arrested, and the test showed that I had been drinking. Can a DUI attorney do anything to help? The short answer is YES!!! In many cases, the reason behind the stop of your car and reliability (or lack thereof) of the test results are susceptible to challenge in and out of court. Police officers write hundreds of reports a week and often fail to include details which, when properly investigated, provided a legal defense for the stop and possible the administration of Field Sobriety Tests (LINK) and Chemical Tests. (LINK) Further, even if we cannot show there was a problem with the machine, it is often possible to show the results are not reliable and that errors and/or mistakes can be made, and therefore a reasonable doubt may exist as to the accuracy of the test result in a particular case.
If I obtain an international driver's license, may I drive in CALIFORNIA, even though my CALIFORNIA license is revoked? No. |
