DUI: Frequently Asked Questions
An experienced DUI lawyer would be necessary to make sure that suspension did not occur, and that the proper procedures were put in motion to fight any suspension by the Department of Motor Vehicle if and when there was in fact a hearing which the driver would be entitled to at some point in the future.
There would be an automatic suspension of the person’s license 30 days after the date of arrest if they did nothing and did not hire an attorney. An experienced DUI attorney knows how to prevent the suspension and will be able to start collecting evidence and reports to not only prevent the license suspension by the DMV and fight that suspension at a hearing, but also to prepare for court, which is why it would definitely be worth it to hire an experienced DUI lawyer.
A lot of attorneys lowball their prices for DUIs and criminal cases, and then simply work on heavy volume by going to court once or twice and pleading clients guilty and moving onto the next one, whereas that is not actually the function of a lawyer, it would just be paper-pushing.
A person should look for whether or not their DUI attorney or criminal attorney was an active member of some of the local bar associations, whether they were active with DUIs with the DUI organizations both within the state and nationally, such as the National College for DUI Defense or the California DUI Lawyers Association, and whether they were active in staying educated about the law.
They should see whether there were positive reviews from other attorneys and past clients they had represented, and the best thing a client could do, would be to meet with the attorney, not an office representative, but the actual attorney who would handle their case so that they could get a feel for that attorney.
The impression the attorney makes upon the client is extremely important, assuming it was genuine and heartfelt. Meeting with the attorney or the potential attorney would help the client make a better judgment and it would help them have a better idea whether or not their case would receive the proper attention that it should from a lawyer who knew what they were doing. People should not hire a paper-pusher type of a lawyer, because they would not want to be represented by some mill that simply worked on thousands of cases but did not properly defend their clients.
Additionally, an attorney would know who would bear the burden of proof in court, which in criminal cases would be the prosecutor not the defendant. An attorney would know a much more intelligent and educated way to properly navigate the courtroom and the evidence in the case. I have often discussed with friends and family who are judges regarding defendants who come in and then tried to justify their offense.
An example would be what might happen in a traffic case where the person ran a red light. I have often seen defendants try to provide an excuse in court regarding why they made the traffic violation. In a case where the police officer said the person failed to stop at the stop sign, the defendant would tell the judge that although they may have ran through the stop sign, they did it because of certain reasons.
This would be a perfect example why people should never represent themselves, because in this case the person would have just admitted to doing what they were being charged with. There may have been a reason for the offense, but that would still not be a defense. Having an attorney is always the better option because attorneys who are well educated and spent years fighting cases would understand the rules of evidence, the burden of proof, the parties involved, and how to navigate the case through the system.
There may be 50 to 100 cases on the calendar for new arraignments so the public defender might simply handle the case at that arraignment, argue about bail, enter a not guilty plea, and then the case would get handed off to another attorney. The public defender may spend 5 to 7 minutes talking to the defendant getting their background and arguing the case, and then the case would get handed off to somebody else for the next phase. At that point in time, another public defender might handle the case and they would not get to it either until they were free or the next time it was in court.
There are some very good public defenders also, but they are generally very heavily burdened with hundreds of cases which would make it difficult for them to give each case the proper attention it deserved. This is unfortunately just the nature of the system, and that is why a private attorney and more specifically, an educated, honest, aggressive and correct attorney would be able to handle the case in a way that would be much more beneficial to the defendant.
Before being arrested, someone under the age of 21 years old who got their driver’s license would have already agreed to provide a breath test to a police officer who had probable cause or reasonable cause to have stopped the vehicle and requested the breath test. This would be because anyone under the age of 21 years would have signed the part on the driver’s license application form that stated they were consenting to that.
This would be called Implied Consent, and anyone who was 21 or older and was applying for a California driver’s license, would have to sign a similar box under the “Implied Consent” law, stating that the person would have to provide a chemical test by way of breath or blood if there was probable cause for an arrest. Someone who was under 21 would have already agreed in writing at some point in time, assuming they had a valid license, that they would provide a breath test in the field if the officer had a reasonable cause to stop the vehicle and wanted to conduct field sobriety tests, which would include the breath test in the field.
The ultimate question regarding whether or not they should take these tests would be a different question. If the officer did not have any evidence by way of statements from the person or results from field sobriety tests to suggest the person was intoxicated, that would make it difficult for any subsequent breath test to be admissible in court, even it was given after an arrest. The reason for that would be that it could potentially be shown that the officer arrested the person without probable cause.
The difference between providing a breath test and completely refusing could be catastrophic on the person’s driver’s license, because there might be other implications that could also occur in court or there might be additional penalties if a judge or jury found that the person had refused. Refusal to provide a breath test subsequent to arrest or a blood test could result in a longer driver’s license suspension if the DMV hearing was lost or if the person was convicted in court and they found the refusal to provide a chemical test to be true or the person admitted it.
The suspension for the license might be longer and the judge would be able to take the fact that the person refused into consideration for heavier punishment, which could include jail time. It might also force the person to do a longer alcohol program subsequently when they were eventually punished by the court.
Anyone 21 years or older should not submit to any field sobriety tests and not provide a chemical test in the field by way of a breath test, because they have the right to refuse to do that in the field. If they were subsequently arrested, then they would need to provide a breath test because they might suffer a much longer suspension if they refused the breath test, if they lost the driver’s license hearing, or were convicted in court versus if they did provide that test.
By performing field sobriety tests, the person would simply be providing the officer with further evidence that they were in fact intoxicated. In court or during hearings under cross-examination, the officers would always say that the tests are not pass or fail, and they would say that it was based on the totality of the circumstances, meaning the person’s statements, the field sobriety tests, or the person’s driving pattern.
Most people think they did well on field sobriety tests, but I always tell them that the police reports will be written differently. Clients often tell me the officer said they did the test great and that they passed it, but that was not the case because the police was looking for certain clues so they could form an opinion whether or not the person was under the influence. They might tell the person that they did well, and they may typically tell the person they are doing fine simply because they were trying to make it a pleasant situation.
They would obviously not tell the person in the middle of the test that they appeared really drunk but to carry on with the tests anyway. This is a problem that many, if not most, clients create for themselves by thinking they should be doing these tests when the officer is looking for very specific things and adding further evidence to their opinion that the person was in fact intoxicated.
The person would usually be arrested after they complete those tests, so the best thing to do would be to simply tell the officer that with all due respect the person did not want to perform the field sobriety tests, and that the officer could do what they needed to do like give a traffic ticket or do anything else that needed to happen. Field sobriety tests tend to be extremely subjective in their interpretation by police officers, and officers can get lazy in the way they write them up in the report so there ends up being a lot of cutting and pasting from other reports.
Because I am certified in field sobriety tests and have taken the police officer’s training, I know specifically what they will be looking for, and I also practice this when handling clients. Police officers, on the other hand, may typically make one arrest per week, so they have to do this once a week or once every two weeks. They can be very lazy and then not properly conduct these tests, which is why police reports often contradict what may be discovered in video or audio recordings. The person would be better off not doing the test.
The person would not have to provide the breath test in the field during a typical first time DUI situation, if they were someone who was not on probation anymore for a prior DUI, or if they were 21 years of age or older. The police officer will typically not inform the person that the test is optional, and they would just say they wanted the person to give the breath test as one last test to make sure they was okay to drive. They would probably let the person go depending on what their level was, and then they would just take it from there.
The difference between the field test and the breath test at the station is that someone who had been lawfully arrested would have agreed upon request by a police officer to give a breath or a blood test, so it would be in the person’s interest to give a breath test at the station because if they refused, they could be subject to a one-year driver’s license suspension or longer if they had priors. The person might suffer a longer suspension of their driver’s license by failing to provide the breath test at the station.
All of that is dependent on the officer initially having probable cause to make the arrest, because if they did not, then even if they gave that test later on at the station, the test might get thrown out of the court and be inadmissible. In the worst case scenario, the officer would in fact have reasonable cause to stop the person’s car and then further investigate the DUI so that if they had probable cause to arrest the person based on the field sobriety tests, driving pattern, odor of alcohol, or other reasons, then there would be a difference between providing the breath test in the field versus the breath test at the station.
During a typical traffic stop, the officer would have stopped the vehicle for something such as speeding, lanes straddling, or swerving within or in and out of the lane, so they would already have gathered enough evidence to make them think they might be dealing with a driver who was intoxicated.
Once they pulled the person over and came to the vehicle, they would be looking at the person’s physical state to see whether they had red or watery eyes, what their speech was like, whether it was slurred, and whether they could smell alcohol. At that point, if the person said they had a couple of drinks or two beers, the officer would typically have them exit the vehicle and the person would be jumping straight into field sobriety tests.
There will be additional questions about the drinking pattern and when the person last slept etc. We would love to think that honesty would be the best policy in this situation, although it would not be in this case because telling the officer that the person had in fact been drinking would actually provide the police officer with further evidence and reason to delve into a DUI investigation.
This would be one portion or area where a good attorney would be able to explore and navigate to try to fight the initial stop of the car. This is important because if the initial stop was found to be unlawful, then everything that happened thereafter could get thrown out of the court or be found to be inadmissible because the traffic stop itself was unlawful, regardless of whether the person fell out of the car drunk or whether they provided a breath test of 0.08 or 0.25.
A good attorney would be able to look at the reasons for the traffic stop and then investigate how they would be able to prove that was what happened, while at the same time looking for ways to disprove the reason for the stop because that could be a very important area to fight a DUI. Once the stop occurred, the officer would try to build evidence to corroborate or substantiate the DUI arrest and that would come in the form of physical observations, statements from the defendant, performance on the field sobriety tests, and chemical tests in the field, which would lead to an arrest for a DUI.
A good lawyer will be able to explore each and every one of those things through investigation of the audio or video recordings, if there were any, so they could either disprove what was represented in the police report or provide contradictions from the police report regarding what actually took place. There may be police radio transmissions that would have to do with timing of all of these things, and there may be custodial records to show any potential breath device that was used in the field and whether it was properly calibrated or maintained.
There may be issues regarding the specific police officer and his or her expertise, or a number of investigations during the time frame of this DUI arrest, other DUI arrests they may have been involved in either that night, during that shift or in the weeks preceding this, what their training and expertise was, and whether or not they had other complaints of misconduct.
From there, the person would be able to move on to the chemical test: whether it was a breath or a blood test and whether or not the results were accurate. Hundreds of pages could be obtained by a good attorney that would show whether or not the blood test was properly conducted and whether the breath device that was used at the station was properly calibrated, maintained and in proper working order, whether the police officer who did the breath test complied with “Title 17” or any other requirements to show that the breath test was either admissible or should be thrown out.
Ultimately, despite all of the information that was gathered by a good attorney prior to going to trial and that was used as negotiating tool, putting a DUI case or any criminal case in front of a jury would always have the potential to open up new issues and provide a basis for a not guilty verdict.
This does not mean that everyone who goes to trial wins, because trials can be very fluid. A good trial attorney who is experienced in front of a jury would be able to build a rapport with people from the community during the jury selection. They would be able to build a rapport with the people of the jury during cross-examination and during opening statements and while they were talking to witnesses and talking to the judge.
Many inexperienced prosecutors are provided with evidence late in the game by the law enforcement agency, because the police are lazy about turning these things over, whereas a good defense attorney would push and push, even during the trial. Things often happen in a trial that are highly beneficial to a defendant, and pushing these cases to trial and putting these things in front of a jury would be how the case could ultimately be pushed toward a fantastic result during the trial if the attorney was unable to negotiate the case away or get it dismissed before trial.
It would also be a good way to really educate the public who sits as a jury regarding some of the misconduct and the inappropriate things that take place within police agencies and sometimes within prosecuting agencies as well. A good aggressive attorney would not give up and would push these cases which is how they would be able to get a verdict of not guilty or a dismissal.
In other cases, the person themselves would have failed to take the proper steps so I would not be able to undo the damage they had caused. Hiring the wrong attorney would by far be the first mistake someone could do, so a person would need to not just hire an attorney but the right attorney to handle their DUI or criminal case. They should hire someone who was well-educated, aggressive and who knew how to navigate through the system.
With regards to a DUI, the person would need to realize they would be opening the door to a full DUI investigation when they tell the police officer they had been drinking. Snap judgments, lack of proper training, and the lack of using the training they have received in the proper way, often ends up with a police officer making an arrest simply because they had passed a judgment about getting people off the street who had been drinking and were then driving, because that is something we as a society would all want.
This may be different relating to dealing with the case in court, so if someone provided the police officer with statements where they confessed to drinking or they had a few drinks, and then they felt they did well on field sobriety tests, then they should realize they probably did not do well in the officer’s eyes because the police would not want someone behind the wheel if they had been drinking.
I certainly do not condone drinking and driving or being unsafe, but people should realize they do not help themselves as far as their criminal case is concerned by telling a police officer they had in fact been drinking and then agreeing to do the field sobriety tests so that the officer could see the person was not performing those tests satisfactorily. Those mistakes would only hurt the person in the long run, although first and foremost, the person would need to hire the right attorney, not just any attorney.
The issue regarding the Department of Motor Vehicles and the hearing would have to be addressed within 10 days of the date of arrest, because otherwise it would result in an automatic loss of that hearing resulting in serious consequences for the person’s driver’s license.
The criminal court case or traffic case from the citation might not happen until months later, although serious ramifications upon the person’s driver’s license would take place within the first week and a half of a DUI arrest, so it would be critical for the person to hire the right lawyer to fight a DUI immediately upon arrest. The attorney should be someone who was familiar with how to navigate through the DMV portion as well as how someone who could help the person on the criminal court side.
We explore this for quite some time because we would want to see how the DUI case could affect them. Work related issues might have “Collateral Consequences” that might help the DUI or criminal case. Things like immigration concerns could be brought up with prosecuting agencies to help mitigate some potential punishments that would otherwise be instituted against the person. There are often work related licensing issues with the state that could help mitigate the punishment with the prosecuting agency and that might also help the person’s case.
There might also be health related issues, such as physical ailments that the person suffered from or surgeries the client had in the past that might affect the way the field sobriety tests were reported or it may even be something the person may not have thought about. They might be taking medication that affected either the field sobriety tests or the chemical test results. Other physical ailments might also affect the breath result.
Sometimes things like whether or not the person was a student or the field they worked in might also help their case. People usually do not think about many of the things that go into a DUI such as a possible issue with the vehicle itself that might be helpful to the case, whereas a good, educated, and intelligent attorney would be able to explore each and every one of those things with the client so that they could find the right issues to deal with in both the Department of Motor Vehicles and the criminal court.
A DUI can be fought from the moment the officer first saw the vehicle because they need to have a reasonable cause to stop the car. They need probable cause to conduct the DUI investigation and to make an arrest, and they would also need to show that the breathalyzer device was working properly. Numerous things go into a DUI case that could be examined, irrespective of what the breath alcohol level was, so regardless of what the breath test score was, it would be even more of a reason to hire the right attorney to handle the case, which is often a big misconception that people have.
Another misconception people have is that it is not a big deal if it was a first time DUI, so they should just go in and plead guilty. It is extremely important to have the right attorney deal with all of the issues that could affect the case. A DUI conviction could have an effect upon the person’s immigration, it could have devastating effects on the person’s driver’s license, it might affect work related issues whether in the immediate future or for years to come and it would definitely have an effect upon the person’s insurance rates. It would be worth the investment.
The person would be able to avoid all of those issues and even ones they may not have thought of if they hire the right attorney, not some paper-pusher or some mill where they would not know who was handling the case. The person would walk in and speak to a case manager but then have no idea what was happening with the case because they would not even know where the file was or who was handling it. It would be much more beneficial and intelligent to have the right attorney handle the case than to simply assume the person would not have to worry about it just because it was a first time DUI.
Another misconception is when people think the officer would let them go if they told them they only had a drink or two, because they think that they might as well just be honest with them if had consumed some alcohol. The officer would use that to build a DUI case around, and they would use it to justify interpreting the person’s performance in the field sobriety tests as being poor. It would add to the fact that the person had in fact been drinking because the chemical test result would corroborate that the person was in fact intoxicated and under the influence of alcohol.
The better thing to do, especially if someone had been drinking, would be simply to tell the officer, with all due respect, that they would not answer any questions about drinking and driving and they would not perform any field sobriety tests. They should then ask if they are free to go, because they either will be or they will not be. At the end of the day, the officer would have to show probable cause for the arrest for a DUI because if they did not have it, then they would not have it.
The penalties for the A Count and the B Count would be exactly the same in court, although there would be a difference with the way the Department of Motor Vehicles handled the cases. As the law is right now, someone who was drinking alcohol and was at 0.08 percent or higher would be subject to a suspension of their driver’s license 30 days after the date of arrest, whereas someone who was arrested for driving under the influence of drugs or prescription medications would not have the same immediate potential punishment from the DMV.
On the court side, they would be subject to the exact same potential punishment and penalties and they would certainly have to suffer the same type of fallout in other areas of their lives in the form of insurance rates, work related issues, job applications, or immigration issues. It would be extremely important to immediately address any type of a DUI arrest, whether it involved prescription medication, drugs, or alcohol.
During cross examination and otherwise, officers tell us that when having someone perform the field sobriety tests, they look for something called “Divided Attention.” They have been trained to look for how well the person is able to follow directions as well as how they are physically able to perform the tests.
Police officers do not tell the potential arrestee when having them perform the Walk and Turn test that while they were talking to the person they are examining how well they were able to follow directions, and they would ask them some specific things so if they failed to do those things then they would mark them down.
They do not tell people what signs of intoxication they would be looking for, although they would tell them how to physically perform the test, but then they would take either mental or physical notes regarding how well the person followed directions right from the get go before the test was even conducted. This ends up as evidence that the person was not following directions because they were intoxicated or impaired, which would be completely ridiculous.
When people have conversations with each other, they oftentimes repeat what the other person said. Someone who was being instructed to do something might repeat it back to the person giving the instructions just to confirm what they wanted them to do, or if someone was being asked to do something physical, then they may try to demonstrate what was being asked of them while the person giving the orders was describing it to them. The police officer conducting a field sobriety test would consider such behavior as an inability to follow directions because the person was impaired.
During the field sobriety tests, the police officer will take note of these miniscule little things to try to determine that the person was failing the test, or more specifically that the person was not performing them as instructed, which would be nonsense. A good lawyer would be able to cross-examine and expose the falsity of the field sobriety tests results and the interpretation by an officer. 90 percent of the time when I read police reports and then review videos and audio recordings, they tend to not match up which makes it unfair to show the person’s behavior as “Poor Performance” on a field sobriety test.
If the person gave a chemical test later on, a police officer would try to over amplify the results of the field sobriety tests to corroborate the blood or breath test, which would just make it inaccurate and improper and just not the way the world works regardless of the training of the officer.
California has mandatory ignition interlock requirements for multiple DUI convictions, so the consequences for punishment through licensing issues would go up exponentially when someone had a prior DUI conviction, which is why it would be that much more important to fight the case.
From a chemical standpoint, such as a blood or breath test, there would be differences in the way that a male versus a female absorbed alcohol into their system. There might be some physical differences as well if someone was more fit versus overweight or if someone weighed less versus someone who was heavier, because those differences would play out between male and female and would certainly have an effect upon the police officer’s interpretation of the person’s performance on the field sobriety tests.
It could also potentially have an effect on the results of any chemical tests that were provided, whether it was the breath test in the field or breath test or blood test at the station because the absorption rates of alcohol would be different between males and females.
A trained and experienced attorney would know how to look for those records. That information would not be provided in a typical initial discovery packet which was provided by a prosecuting agency, which is why hiring the right attorney who knew how to look for these things would be extremely important. Just because it was a blood test would not mean it could not be fought or that it would be a hopeless battle in court or with the DMV.
A very large packet of records can also be obtained from the agency that performed the chemical test results and that would show through the Gas Chromatograph how the blood was actually heated and the chemical components were changed to determine the alcohol level. Other blood sample would also be getting tested during that blood run, as it is referred to, so they would need to see whether or not there were traces of contaminants within the gas chromatograph that might elevate the level of the blood result in a particular case.
Another thing to look at would be the records dealing with the chain of custody for the blood sample itself to either corroborate or discredit the handling of the blood from start to finish. The amount of preservative used within the vial would also need to be proper and that could be examined to see whether it was too little or too much. There is typically a percentage of an anticoagulant and a preservative. The vials would be obtained from a company typically in the Midwest and sent directly to the law enforcement agency.
Police officers make mistakes in their police reports all the time regarding who initially handled these vials and who was subsequently handling the vials. The chances for improper handling, storage or mixing of the preservative, or misconduct by the officers in the way they handled the blood could also be a possibility, so simply giving a blood test and finding a result that showed the person was over the legal limit would not mean the case was hopeless.t
This would also be very important because the attorney could then begin to immediately prepare the defense for court and examine all of the evidence, not just the initial police report, in order to properly defend their client and fight any licensing issues that may come about. The person would then be allowed to continue to drive throughout this process without suffering an immediate suspension.
Have you been arrested for DUI in Pasadena, Glendale, Burbank, Los Angeles, Santa Clarita, El Monte, East L.A., Hawthorne, Beverly Hills, Arcadia, Sierra Madre, or in Orange County, San Bernardino County, Riverside, or Los Angeles County? Contact us today!