Top DUI Myths And Misconceptions In California
The way officers analyze DUIs is like this: they start noticing a person’s particular pattern of driving. This is the first thing they’re going to try to claim as an indication that the person was driving under the influence.
From there, they’ll conduct a traffic stop and have some objective symptoms or observations of objective symptoms of alcohol. For instance, they’ll look for slow and slurred speech, an odor of alcohol, and bloodshot watery eyes. Once they have the person out of the car, they’ll notice an unsteady gait or an inability to stand comfortably without leaning or falling over.
They’ll also point to the person’s admission of any consumption of alcohol. Then, they create the field sobriety tests, allowing those coordination tests to be evidence against the person.
Thusly, simply refusing a breathalyzer device does not insulate or protect someone for being charged with a DUI. If you’re under 21, and you’re pulled over in California, you are, in fact, required to provide a breathalyzer in a preliminary alcohol screening device.
The breathalyzer that’s required after being arrested can be refused, although this refusal has the potential to create severe driver’s license punishment and potentially additional jail. However, refusing to provide a breathalyzer test certainly does not insulate you from being charged with a DUI.
During my initial meeting with them, most of the clients will tell me that they passed the field sobriety tests or they did well on the field sobriety tests. They will often say, “The officer said I did well on them.”
If these tests subsequently led to an arrest, however, the officer is going to write their report much differently. Even if he told the client he was doing well, the report will state another story. The reason for this is fairly obvious. The officer certainly doesn’t want to suggest that the person did well on field sobriety tests but got arrested anyways.
In fact, the misconception and the myth that doing well on field sobriety tests and making it all go away holds another component that actually makes it more difficult. Essentially, prosecutors, if they’ve made a decision to file charges, will generally be more difficult during negotiation because they tend to be a little bit more inexperienced at this level. They try to look for and make a big deal about more minor issues. The negotiations can become entrenched and a bit more difficult when you’re dealing with people who lack the sophistication and expertise that we as DUI defenders have. For example, we know that the report’s face value might be different because the police officer might not properly report the field sobriety tests.
Thusly, there are so many ways to look at this myth and this misconception amongst people who feel they did well on a field sobriety tests. They think the case is going to be easy. However, there are so many different ways to deal with this.
Quite honestly, it could be true that they did well on the tests, but it takes quite a bit of skill and knowledge from a good DUI defense attorney to be able to look at the police reports and decide what on the report can support that kind of statement. More often than not, the officers are going to write it up differently.
The problem with this is that the police officers are the ones who are in charge of the cameras. There usually is some sort of a triggering event, such as the overhead lights turning on or the airbags being deployed on the police vehicle. This will trigger the recording of the video. Most vehicles now that have video have a remote audio microphone attached to the officer. Those only work about 30 to 50 percent of the time.
The video rarely shows the interaction between the police officer and my client. This is because the video cameras remain stable and do not move to where the parties walk to, toward the sidewalk.
The fact that a police officer is being rude and/or intimidating in the eyes of the jury and/or a prosecutor doesn’t really affect the underlying question. That question is: what is the person’s blood alcohol level? The scientific evidence will tend to override the rude factor.
I always explain this to my clients, I remind them that it was great that it was a pleasant experience to be put in handcuffs and taken to jail by the police officer. Now, they’re hiring an attorney.
Thusly, although it may not have been an unpleasant experience, like it could have been, you’re still being arrested and now prosecuted for a DUI.
I’ve had clients tell me that the police officer told them what sort of defense they could get, so they don’t have to worry. Quite frankly, they tell them that just to make their job easy. This way, it’s not combative with the person that they’re putting in handcuffs.
This is a big misconception with many people. They state that the officer acted or said nice things to them to try to help them. In reality, at the end of the day, they’re still being prosecuted and arrested. They made the officer’s job easier because they weren’t combative.
Certainly the majority of people who are arrested for driving under the influence of alcohol are not alcoholics. You can have anywhere from, give or take, 3 glasses of wine. This is depending on the level of alcohol and/or mixed drinks that raise your blood alcohol level close to or around the legal limit in California, which is 0.08 per cent.
Courts certainly will be aware of that. The fact remains that simply not being an alcoholic doesn’t remove the possibility of punishment and labeling someone a criminal and hitting him or her with a DUI conviction.
Although courts are aware of the fact that this can happen once, it can certainly even happen twice. With certain people, depending on the period of time, the fact that you may or may not be an alcoholic really will not have an initial effect on how your case is handled. This information may have an effect down the road.
However, you’ve made the decision to drink and get behind the wheel. You’ve made the decision to drink to the extent that your blood alcohol level may be at or above the 0.08 percent. A court will treat you like anyone else at a 0.08 percent or higher blood alcohol level, whether you are an alcoholic or not.
Once again, we must discuss that this amount of alcohol could be enough to cause someone to be at or above the legal limit. This is found through the use of expert witnesses from the forensic toxicology crime labs and toxicologists. They must testify that your mental state is impaired to the extent that you cannot perform a physical test or drive a vehicle safely.
Thusly, two or three drinks could, from a prosecutor and a judicial perspective, be a cause of concern.
The defense attorney could offer this information. However, the irony lies in the fact that during the negotiation process, and certainly at the point of mitigation, there are many judges and prosecutors who take a more aggressive stance against people who should have known better because of their position. They should have been aware of the dangers. However, this person went ahead and took those dangers into consideration and ignored them. They basically hold this person to a higher standard.
I get into arguments with prosecutors all the time about this double-edge sword. If it’s someone who is less educated, they take a firmer stance. Perhaps the blood alcohol level is higher, and they treat them more aggressively.
When it’s someone else who is a professional, a healthcare worker, or someone who has professional ramifications from this type of a conviction, they take a firm stance as well, saying they should have known better. Thusly, they argue both sides.
I think it’s a bit unfair. People who are professionals and/or work in healthcare industry oftentimes will be held to a higher standard during the process.
I myself have been very successful in using this information to the benefit of my client. Although I know it is one of those myths, I have been very successful in using this information in worse case scenarios to help my case.
We’re in the same line of thinking for this. A judge and a prosecutor will look at this situation and say, “This is all the more reason you should not be drinking. You are the sole person to take care of your children.”
It often takes time to work cases through the system for all of the groups we just mentioned. We must also point out that there are other responsibilities for these people to get to and from work, to drive other people around, to drive depends, to take care of dependents, etc. These things should be taken into consideration.
However, those things, right out of the box, certainly don’t necessarily help. Many prosecutors and courts will treat the mothers more harshly, at least from the outset. Later on, once the cases are worked through the system, that may change.
The law has changed quite a bit in this respect. Many times, people are on prescription medications, and they should not be driving.
A lot of times, there is a combination of prescription medications and/or alcohol involved. Even in the case of prescribed medication, something like OxyContin or other types of painkillers and pain medications, would fall into categories where the person’s mental state is affected to the extent that he cannot perform the physical tests. This could even occur in a person who consumed any alcohol or didn’t have any medication.
In California, what we refer to as driving under the influence of alcohol or drugs is called “A Count.” It is not dependent on what a person’s blood alcohol level is. It’s used for illegal drugs, a combination of drugs and/or alcohol, prescription medications, or a combination of medication and alcohol.
Let’s say a person has a driver’s license from another state, moves to California for a period of time, and must obtain a California license. If the driving under the influence conviction comes from another state, it can still count as a prior conviction in California. This is provided that their statute for driving under the influence covers the same elements of our statute. Most of the time, the statues line up well.
So, from a court’s perspective, the courts can certainly take a DUI from another state into consideration in our state. Of course, we only consider them from mandatory, multiple offender sentencing purposes. In this case, we only consider it if it has occurred within the last 10 years.
If a person goes into another state, commits a DUI, and then returns back to California, the same would be true. Thusly, an out of state conviction can certainly still apply to a person’s California record and driving history.
Furthermore, we have something called the interstate compact. The interstate compact says that our Department of Motor Vehicle will communicate with the rest of the nations’ Department of Motor Vehicles regarding any out of state driver’s actions.
Thusly, in any DUI, there are two components. One deals with the person’s driving privileges through a hearing that we do through the Department of Motor Vehicles. Another is the DUI conviction, which is handled by the criminal court. Either one or both yields a suspension of license.
If a person has that type of an out-of-state conviction or suspension from another state’s Department of Motor Vehicles, that applies in California. There are still a handful of states that are not part of the compact. The majority of states are part of the compacts, however, and our DMVs are supposed to stay in communication with each other and take into consideration out of state convictions.
This is essential for the driver’s license issue. This deals with the interstate compact.
Then, of course, there is the criminal courts. If they do see an out of state conviction, they will do their best to obtain those records and take them into consideration in the charging document in criminal courts.
This is not true. The typical punishment for a DUI involves a period of probation, and it’s usually anywhere from 3 to 5 years.
It is possible to get a DUI expunged. However, the misconception about an expungement nevertheless is this: first of all, the expungement does not take it off your record, as many people think. It simply is a tool to use for future employment. It protects you from having to report it on job applications and during background checks, with many exceptions.
However, it is a stamp of approval from a court that a judge has looked at your record and said, “This person did what he needed to do; he complied with probation, and I’m willing to say, in essence, he’s been rehabilitated. I’m going to grant the expungement.”
As I said, there are many circumstances in which this still has to be reported. including the State Licensing agencies and other law enforcement jobs, the California State Lottery, etc.
The other misconception involves the fact that simply having it expunged does not mean that prosecutors and the Department of Motor Vehicles cannot use this against you during the 10-year prior ability period. It is still on your record.
A police officer conducting a traffic stop on you 4, 5, 6 years later will see it. A prosecuting agency will see it if they run your criminal history or your rap sheet for consideration of future punishment and/or filing criminal charges against you.
Having it expunged does not remove the fact that you could have a second, third, fourth, or multiple-offense charged down the road, within 10 years of that prior conviction.
If a person entered with the blood alcohol level at 0.07 percent, this does not mean that they could not necessarily be charged with a DUI.
In fact, I am about to go to trial on a case in which the blood alcohol level, as charged by the District Attorney’s office, was under 0.08 percent.
For instance, a person is pulled over at midnight, and he gives a breath alcohol sample at 2 a.m. He obviously hasn’t consumed any alcohol between 12 and 2, after his arrest. However, the prosecuting agency would likely argue that at the time of driving, this person was at a 0.08 percent or higher. They’ll state that during this 2-hour lag period, the blood alcohol level was allowed to go down.
The legal issue is not your blood alcohol level at the time you gave the test, whether it’s blood or breath. The legal issue involves your blood alcohol level at the time of driving.
Thusly, a 0.07 per cent or 0.06 may still very well be filed as a DUI. The prosecutor’s argument would be that your blood alcohol level was going down. You can still be charged with a DUI.
The Department of Motor Vehicles could also try to make the same argument by suggesting and showing with a toxicologist and through testimony that this was, in fact, the case. This is called Retrograde Extrapolation, and it is a computational theory that shows that despite the reading given after the fact, a backwards bell curve shows a higher blood alcohol level at the time of driving.
This is a huge misconception, and there are differences among counties as to how they may treat you. Some may be harsher than others.
However, simply having a first time DUI is enough for prosecuting agencies and judges to charge, convict, and punish people to varying degrees. These can cost thousands of dollars and take up precious time when people are forced to attend different alcohol classes that can range from 3, 6, to 9 months, trash pickups through Caltrans, perhaps jail, different conferences, and meetings, perhaps with alcoholics anonymous.
Furthermore, test counties within California are causing first offenders to install an ignition interlock device in their vehicles for a period of 5 months. A recent report by the Department of Motor Vehicles, however, showed that this private program for first offenders in general had no deterrent effect whatsoever.
However, this is a requirement, and so it’s important to recognize that having a first time DUI is a criminal conviction. A person can be hit with all of those punishments and licensing suspensions. It can have a detrimental effect on a person’s employment status and/or ability to find a job in the future.
Unfortunately, no. This becomes, once again, another point of contention between prosecutors and I. This is not a very uncommon situation, and the law and the courts have said that the person pulled over to the side is still in control of the vehicle.
Now, from a jury’s perspective, I think this is a very good case to take to trial. Many people would recognize that the person was trying to do the right thing. On the other hand, they would also recognize and acknowledge what the prosecutors will point out. They’ll state that the person was driving at some point to get there. Thusly, this person was driving under the influence.
In fact, it was the person’s own decision to stop because he recognized that he was under the influence. This becomes a very tricky situation. A skilled attorney must translate this thought process to a jury in an appropriate way.
Of course, we will then get into the argument of retrograde extrapolation. We’ll discuss whether or not the blood alcohol level was higher when they were actually driving their vehicle, before stopping. This analysis becomes another point of contention.
It’s absolutely harmful. I always talk to clients about what they post online. I want to make sure they’re careful about saying anything on their social media sites. Prosecutors utilize smart detectives and work to thoroughly investigative agencies and prosecutors.
Having been one, I can tell you myself I used to do it quite a bit. This was over 12 years ago. We would go online and look at a person’s social website and analyze what’s being posted. We would use it in any way, shape, or form to help the prosecutor’s case.
Posting pictures with friends, having a cocktail, or coming from a party and commenting about it is extremely damaging. It may not even be something that occurred recently. It could be an old posting of a social gathering. The prosecutor could attempt to use it and turn it against someone.
Thusly, I strongly encourage people not to post celebratory moments online that involve drinking or partying. Anything anyone says online can be used against him. Even a subsequent conversation about these charges can be used against him. This is termed admission.
This could be one of the worst things that a person can do. Although perhaps this is morally fulfilling, the criminal courts are just dealing with poor behavior and then punishing it. A person has a right to remain silent.
Although there are many judges that may be helpful in correcting the wrong behavior, they are still in the habit of dealing with the evidence that’s placed before them and punishing.
Therefore, admitting that you were drinking and driving, putting yourself in a dangerous situation, and putting others at risk by then getting behind the wheel is probably one of the worst things that you can do.
You’re better off letting an attorney do it. Allow the attorney to be the spokesperson for you and guide you through the system. It’s likely that you will avoid harsher penalties with this protection.
This is absolutely false. I am certified on the field sobriety tests, I’ve taken the training that the police officers have taken, I’m certified on the breathalyzer devices, and I do this day in, day out.
Ironically, experienced defense attorneys who do this day in, day out are 100 percent better than law enforcement officers who are trained, as well. The reason is this: they usually do not do this day in, day out. This is why I pull arrest records to see whether or not a breathalyzer device is properly calibrated or properly maintained.
I also look at usage logs. Usage logs show the name of an officer over a period of time and how many times they’ve used a given machine. More often than not, these officers will do a couple of DUI investigations, perhaps once a week at most. They don’t revisit their field sobriety tests handbooks, and they have training officers who oftentimes train them improperly.
I read their reports, and the reports must be very specific for the analysis of field sobriety tests in order to have legal validity and weight against my client. More often than not, the officers do not have the proper foundation, and the tests are done improperly.
Furthermore, when I analyze any type of a DUI, I always look at the breathalyzer device itself and check whether it was properly maintained, properly certified, and properly calibrated. I look at the operator and their experience with the machine. I often find mistakes with the operator of the device. I often find previous usages that show that they’re improperly doing the breathalyzer tests.
I look at blood records above and beyond just the simple readout that shows what the blood result was. Furthermore, I look at the blood run records to look for contamination issues.
Cross-examining officers on almost a daily basis about how these things should properly be done always exposes issues in the case. Even in the worst-case scenario, this will minimize the punishment and the affect this charge can have on a person for his future. These issues could lead to both a less harsh punishment and a reduction in charges and/or dismissals.
This is not true. Clients approach me often to say, “I just spoke to another attorney, and he scared me, even though this is the first time offense. He indicated that I’m going to go to jail for anywhere from 10 to 30 days.”
So much incorrect information exists on the Internet. Some defense attorneys use scare tactics in order to obtain clients. This is completely dishonest. There’s a possibility of jail, and this increases if this is a second or third DUI.
Even on a first time DUI, there is the possibility of jail. However, the likelihood of a non-accident, relatively low blood alcohol level DUI landing someone in jail is very remote. With proper guidance and counseling from an experienced attorney, going to jail has a near-zero percent chance.
Therefore, it’s quite frustrating when I hear some of the misconceptions and scare tactics offered by other attorneys who are simply not being honest with the general public.
This is completely false as well. Every case is different, whether it’s a DUI or something else.
As lawyers who practice this day in, day out with years of experience in law school and in the legal field, we know the ins and outs of the law to the extent that you’ll be completely hurting yourself by representing yourself in court. You won’t know what to do legally when certain issues come up.
However, attorneys further know the system, the personalities, and the people involved. This is valuable.
Someone who goes into court to represent himself in a criminal case is making the worst decision of his life.
I’ve had many clients who have had this experience. Later, they sign up with me after they achieve the awareness that being burned once doesn’t mean they should be burned twice.
This way, I can sit down with them and explain to them about the harsher punishments that can come with a multiple offense DUIs. It’s even more important that they now take it seriously and hire the right lawyer. I use that term “right” with everyone who I consult with. Hiring an attorney doesn’t always prove to be the best decision; it’s important that they hire the RIGHT attorney.
Clients want people with experience, who are educated in a certain area of law, who know the system, and who do this day in and day out. It’s important that they know who the attorney working on the case actually is.
The benefit of having my small practice, from a manpower’s perspective, is that I am the go-to when someone has a question. When a client calls, my assistant comes directly to me with the question. Furthermore, I am accessible via email and phone after hours.
Thusly, it’s extremely important that they hire the right lawyer, especially when it’s a second time or a multiple offense. The punishments become drastically higher. Unfortunately, mandatory jail is sometimes a factor.
A prosecutor who asks for mandatory jail will need to be worked aggressively by the attorney about the dangers and detriment that this can have on your driving record and employment.
Unfortunately, this is not the case. The conviction can have such an effect on a person’s driving record and driver’s license restrictions and/or suspension. It is a criminal conviction, and it will and can have a major effect on someone wanting to be hired by employers. This can be true for the next ten years or perhaps longer.
It’s important that people who are faced with this situation not take it lightly. Although it may seem minor for the time being, they must recognize that years from now, it is still going to come back to haunt them. They need to take every step to protect themselves now.
A lot of the times, DUIs take a long time to handle, if they’re handled properly.
An attorney who takes a short amount of time on a DUI is simply not looking for the evidence that can be helpful for the client. The trial itself often takes anywhere from 4 to 5 days, sometimes longer, depending on the issues. Picking a jury can take two to three days with an attorney who is experienced in picking the right juries.
When first taking on a DUI, most of the time, we are only provided with the initial police report. This just says that the officer saw this person driving at certain way. It says the officer did field sobriety, and that he gave a breathalyzer test. That’s it.
What takes time is then subpoenaing and ordering all of the background information. Thusly, we’ll go over the calibration, the maintenance record, the usage log, the blood test records, the blood run records, sending out subpoenas for audio, video recordings, etc.
All of those things cause the case to take quite a bit more time. That’s why hiring the right lawyer is very important. Anyone can walk into court and hold someone’s hand to say, “You should plead guilty to this. That’s a great offer. You should move on.” However, that’s not lawyering, that’s paper-pushing. Generally speaking, you’re never going to get a good result when doing that type of brief work.
I am frustrated a great deal when I hear that other defense attorneys tell potential clients not to take the DMV hearing seriously because they’ll lose, anyway.
I use the DMV hearing as a tool to analyze the evidence and to determine what strategies I may want to use for court. I don’t go into DMV hearings with the defeatist attitude. I have won them. Winning doesn’t happen all the time, of course, but it certainly can happen. It’s a matter of looking for the right issues and having the right lawyer try to defend against these things.
Unfortunately, that’s not true. Many times, there are health issues that can affect a blood alcohol level and/or a breath alcohol level.
Additionally, a person’s health issue can alter the way he performs his field sobriety tests. Therefore, if there are health issues, the attorney absolutely needs to know about it. This can affect everything.
If people are going to testify that they were with my client and my client wasn’t drinking and driving, that’s one thing.
Character witnesses are good through the negotiation process. However, they don’t necessarily have an effect on the legal, factual issues with the case.
Although character witnesses are good, they don’t necessarily make or break a case. There are certainly things I want to know about, but it’s important to communicate to the clients not to break the legal and factual issues of the case.
This is certainly not an admission of guilt, and it cannot be used against the client in court, heading to trial.
I oftentimes have clients enroll in the programs if it’s been a multiple offense, if the blood alcohol level was extremely high, or if the person really is an alcoholic and needs additional help. However, it is not an admission of guilt and cannot be used as such in the court.
Let’s assume that the person did the field sobriety tests well, and the police officer reported it that way. I have had these cases. However, if a breath alcohol sample of 0.08 or higher was obtained in the field prior to arrest, it’s not going to matter how well the person did on the tests.
An arrest will occur. Any subsequent tests that also show the level of 0.08 or higher will become the evidence that the prosecutor will hang their head on to try to get a conviction.
Thusly, simply doing well on the field sobriety tests does not in and of itself show that the person was not driving under the influence. If they’ve got a chemical test result that shows otherwise, the prosecuting agency will hang their hat on that.
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