Question & Answer Forum on
Driving Under the Influence (DUI)
Driving While Impaired (DWI)
Boating Under the Influence (BUI)
DUI, DWI & BUI:
DMV Administrative Per Se Proceedings:
First things first...schedule your DMV Administrative Per Se hearing within ten (10) calendar days of receiving your DUI citation and the Notice of Suspension (the pink piece of paper which serves as a temporary license) from the law enforcement officer. If you do not do this in a timely manner, you will forfeit your right to a hearing and your driving privileges will be suspended! The best way to avoid a license suspension or to obtain a restricted license for work is to consult with a competent attorney right away. The DMV and the Superior Court proceedings are two completely separate legal processes.
If you need assistance in scheduling the DMV hearing, do not hesitate to contact my office at (760) 326-5297 - my consultations are always FREE of charge!!
Q: Can DUI / DWI charges be successfully challenged in Court?
A: Absolutely! I personally know of over two dozen (24) different ways that these charges could be challenged. Below are just a few examples of DUI defense strategies that might be deployed:
1. An officer must have probable cause (PC) to stop, detain, or arrest you for DUI. More specifically, the US Supreme Court (Terry v. Ohio, 392 U.S. 1 (1968)) ruled that an officer must have a reasonable suspicion or reasonable belief that you are violating the law. It isn't necessary that the officer initially suspects that the driver is, for example, guilty of DUI, but only that the driver has committed a traffic violation or infraction. To stop a vehicle or detain the occupants, an officer needs a reasonable suspicion that the driver is committing, has committed, or will commit a crime - a criminal offense in California can be as straightforward as a traffic infraction violation. Reasonable suspicion must be more than "a guess" or "a hunch." If an officer doesn't have the probable cause necessary before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed. When evidence is suppressed, it means that the prosecution cannot use it against you. As a result, evidence obtained without probable cause usually results in reduced or dismissed California DUI charges.
2. California field sobriety tests ("FSTs") aren't accurate indicators of alcohol and/or drug impairment. Studies have shown that FSTs are only between 65-75% accurate at detecting impairment - assuming they are precisely administered. FSTs can also be negatively impacted by factors such as intimidation by officers, uneven surfaces, weather conditions, and the type of footwear you had on at the time.
3. California DUI breath tests are susceptible to a wide variety of errors, including malfunctioning, a person's physiological conditions (i.e. acid reflux or heartburn), and improper handling of the testing procedure by law enforcement.
4. "Rising Blood Alcohol" can mean your blood alcohol concentration (BAC) was much higher by the time you took the chemical test - blood, breath, or urine - than it was an hour or two hours earlier, when you were actually driving your vehicle. Alcohol takes a certain amount of time, typically between one (1) hour and and three (3) hours, to absorb into your system. The important thing to remember is what was your BAC at the time you were driving! In many cases, it was much lower than it was by the time the law enforcement officer got around to finally testing you - via a Breathalyzer machine at the patrol station, or a Blood Draw or Urine Sample at a medical facility.
5. Your BAC doesn't reflect your level of impairment. If you exhibited no objective signs or symptoms of impairment (i.e. you drove very safely prior to your stop; passed all the FSTs, etc.), but your BAC level was bordering on exceeding the "legal limit" (i.e. .06 or .07), your BAC doesn't necessarily accurately reflect your alleged level of impairment. I handled a case many years ago where my client's BAC was high. The jury ultimately found him NOT GUILTY because all of his actions leading up to the arrest (i.e. - he avoided hitting a young child that ran out into the roadway in front of his car just prior to being pulled over by law enforcement) indicated that despite his high BAC level, he could not be considered impaired under the law.
6. The DUI laws state that you must be driving under the influence. If you were not driving by the time law enforcement made contact with you, the District Attorney (DA) will have a much tougher time proving their case against you. If, for example, you were involved in an accident and no one saw you driving the car, or the police found you when you were in your parked car, the DA will have their work cut out for them, and it will be more difficult for them to prove one of the key elements of a DUI: that you actually drove. You cannot be convicted of a California DUI, if the DA cannot prove you were driving!!
7. Last but not least, your Miranda Rights!
They are required when...
(1) you have been arrested, and
(2) the officer is conducting a custodial interrogation.
When an officer asks questions that are designed to solicit incriminating responses from you after you have been arrested, then a a "custodial interrogation" takes place. These two conditions are what "trigger" law enforcement's requirements to read you your Miranda Rights. If they do not, then valuable evidence may be excluded, which could ultimately result in the dismissal of your DUI charges!
GENERAL DEFENSE TOPICS:
Q: If I a person is stopped by a law enforcement officer, what is the most important thing he/she must do, first?
A: Don't fail the attitude test. Be polite and cooperative. Present their license, registration and insurance information promptly. Unless an individual already has their license in hand, they should tell the officer that they are going to retrieve the driver's license (i.e. - from a wallet or purse). Also, the officer should be informed as to where the registration, insurance, and log book (for commercial operators) is kept. If a driver starts reaching here and there without informing the officer, he/she may feel threatened and might reach for his firearm! Keep in mind, officers are always concerned about their safety, first and foremost.
Q: Should someone be "cooperative" and try to explain away their driving?
A: Absolutely not - they should exercise their right to remain silent! Let the officer do all the talking. This is no time to plead a case. That is what a court of law is designed for. Say nothing directly or indirectly about your driving. Listen attentively to what the officer has to say. Most citations do not come with police or incident reports. This is your opportunity to get ready to win your case in court; or mitigate the results. By the way, NEVER mention to the officer that you are planning to fight your citation in court. Remember, forewarned is forearmed!
Q: Can I use my own notes in a Court Trial?
A: Yes, that is why an individual needs to write down as many facts as they recall, immediately following the receipt of the citation. One's memory will be the best at that time. By law, a person is allowed to use their own notes to refresh their memory in court. They need to simply ask the presiding judge for permission to do so. IMPORTANT, an individual should not write down anything they do not want the officer to read. The judge may order them to share those notes! The more factual and detailed the better. If you hire an attorney to represent you, then you should make sure your attorney is given a copy of all notes and evidence you have gathered.
Q: What types of tips and tactics would you suggest I utilize if I choose to represent myself and conduct my own Court or Jury Trial?
A: When you ask the officer questions during your court trial, you should test his knowledge and memory of the events surrounding your traffic stop. For example, you may ask him what he remembers you were wearing that day, or what type of special decor was on your vehicle. Try to focus on as many minor and major details surrounding the traffic stop as you have noted prior to your trial proceeding. Ask about relevant areas such as locations, distances, conversations, unusual weather conditions, and the officer's own actions during the traffic stop (especially if they were out of the ordinary). Your notes should contain anything legitimate that will test the officer's memory and credibility: Your goal is to raise as much reasonable doubt as possible. If you are able to successfully accomplish this, the chances are good that the Judge will rule that you are NOT GUILTY, and your charges will be dismissed!
Q: By law, does one have to prove their innocence?
A: NO! A person is presumed innocent, unless and until, they are proven guilty. Even in traffic court, the prosecution (law enforcement officer) has the burden of proving guilt beyond a reasonable doubt. Therefore, one should be prepared to knit pick, toward creating reasonable doubt. Photos and diagrams are optional. When a person receives their citation, they should review it and then sign. Again, it is not advisable to start commenting about or questioning the contents or charges cited by the officer - save that for the courtroom. By the way, thank the officer, but do not say "See you in Court."
I have been in practice for over 35 years, and have a very high success rate ! Please contact our office today for a FREE case evaluation at (760) 326-LAWS (5297) or (702) 817-4661 - Call Anytime !
Attorney at Law
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