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Law Firm of Aaron Bortel

Things Not To Do When Arrested For A DUI


Q: Do Not Make Admissions to Officers, Detectives, Judges or Anyone.
A: You do not want to say anything that will be likely to incriminate yourself. Whether you realize it at that time or not, saying things to the police, the things that you might think are harmless, can hurt your case and hurt your attorney’s ability to win your case. You need to give an officer your information regarding your name, address, basics like that, but you are not required to tell an officer when pulled over for a suspicion of a DUI anything else.

You’re not required to tell them where you’re coming from, you’re not required to tell an officer where you’re going, you’re not required to tell an officer a lot of other questions that they will ask you, they will ask, “How much you had to drink?” They will ask about your health, they will ask when you last drank, they will ask how much you drank and what you were drinking. They will ask what foods you had that night. All of these things can be used against you.
You can respectfully decline to answer all of these questions except for giving them your license, registration, proof of insurance, basic questions about your date of birth identifying you, because they want to make sure you don’t have any warrants. They are allowed to ask you those questions and you should answer those, but that’s where it stops.

If you want to answer the questions, go ahead, but I do not advise that in almost any case because what you can do is you can say, “Officer, I respectfully decline to answer those questions. I have been informed by an attorney that if I’m ever questioned by an officer, not to say anything other than let them know who I am.” If they’re going to arrest you at that point, they’re going to arrest you but they still have to prove the case against you and they will not have field sobriety tests, they will not have statements that maybe you wish to add something else later.

Watch the statements that you give them, because if you tell them, “Well, I only had a beer,” and your defense is a rising blood alcohol level where you had a certain number of beers and the last one was just before you got in a car, when we’re negotiating your case or when we’re at the DMV, in front of the hearing officer, changing the story is something that can be used against you. How do we know to believe you now or then? What we’re left with explaining as to why you’ve changed your story on a number of things. One would be that you were afraid, you didn’t want to get arrested but also that you just thought if you told them one beer, they’d leave you alone.

People underestimate the number of drinks they have to officers all the time and they overestimate how long ago it was. If you tell an officer, “Yes, my last drink was two hours ago,” it’s difficult to make that argument that you’re still absorbing alcohol in your system at the time you’re driving. Yet if you had a shot or big drink or something right before you got in the car and you’re pulled over 5, 10, 15, 20 minutes later, you’re most likely still absorbing a lot of that alcohol.

When they do the breath or blood test later, you’re more fully absorbing, you’re going to have a higher alcohol level than you were at the time that you were driving, which is what they’re supposed to be looking at, at the time you were driving, what’s your blood alcohol level. In almost every case, the best advice is to respectfully decline to answer any of those investigatory questions that the officers ask you and do it in a nice way. They understand, they come across people who do that sometimes and you make their job much more difficult if you do not give them the evidence they need.

Now, once you have been arrested, the other thing that you’re required to do for a DUI is a breath or a blood test. If you do not do one of those after your arrest, they will call it a refusal and most counties will get a judge to issue a warrant and do a forced blood draw. So, they will have the evidence that they need and you’ve refused, so you’re likely to lose your license for a year or more, and that’s a loss of license without a restricted license. That’s no driving for at least a year.

You want to be very careful about that and understand that not answering questions doesn’t mean don’t take the test if you’ve been arrested, and usually they do the chemical test, the breath test or the blood test after the arrest at the police station or at the hospital.

Q: Do Not Panic or Make Any Hasty Decisions.
A: Panicking could mean trying to take off and that is not a smart move. It just turns your case into a felony, evading, and you don’t want to do that. Panicking is not going to help because you need to be under control in these situations. Don’t try talking your way out of it, trying to get them to release you or just let you go home. You’ve been pulled over and when they smell alcohol on your breath, they’re running you through a DUI test. Trying to bribe an officer or trying to tell an officer that you’re someone of great importance and for that reason, they shouldn’t arrest you and they should let you go.

Those kinds of things just tend to get you in more trouble, so be careful, be smart. The problem is if someone is under the influence of alcohol and they’re dealing with the police officer, not everyone just gets what’s about them real quick, you can think about what to do. So, obviously the best thing to do is not put yourself in that situation.

Otherwise, remaining calm, not panicking, cooperating; in that, you do what the officer tells you which is, give them your information about your person and then be respectful after that, and don’t give them the answers to all the probative questions they’re asking even though you think that that might be the right thing to do and that might get them to let you go, no, it’s more of a panic you think.

If you get pulled over for a DUI, and you just thought you’re going to give more or less information that they need, there is no reason to give it to them. If you don’t want to, respectfully decline to give them all this information about how much you’ve had to drink and when your last drink was and where you were going and food you had and the medical issues and things like that, then you have basically panicked and you got to be careful about that. But almost everybody gives them the information they ask for, almost everybody, which is not a smart thing to do.

Q: Even If the Police Officer Has Been Nice to You, Do Not Confess or Give Additional Information
A: They’re police officers and they’re trained in different ways to get people to give them the information that they’re supposed to try and collect. How do you get people to do things for you that you want them to do? You’re nice to them. Some officers are not nice from the beginning and some become less nice when they realize you’re not cooperating with them, but it’s almost like they’re trained like a salesmen to get you to blow into their machines, to get you to do the field sobriety tests that you’ve never done before.

You don’t know how they grade them, you’ve never practiced the tests, and you’re going to do these for the first time. A lot of times, they don’t record them and if your word’s against theirs on how you did it usually comes out not looking good. Be careful of the officer who is being nice and be nice back, be cooperative, just answer the questions about who you are and your identification information and give them the information about your car, the registration, license and proof of insurance, but that’s all you’re required to give them.

Now, there are other situations when if you’re on probation, that’s a whole another situation but if you are on probation, you actually are required to do the preliminary alcohol screening test if asked to by an officer, the one before they arrest you. The advice I’m giving doesn’t go to every situation but it does go to most and the officer who is nice is nice because they want to get the answers. They want to fill in their boxes, they want to fill up their pages of their report, and it doesn’t look for them when they’re showing it to their supervisor that they won’t be able to get you to answer any questions at all.

They don’t like that, the DA doesn’t like that. As long as you’re doing it in a respectful way, “Officer, I respectfully decline to answer these questions based on advice I’ve been given by an attorney,” and, “Officer, I appreciate you’re doing your job, I am respectfully declining to answer those questions, most officers will continue to try and ask you questions and they’ll say, “You’re not under arrest yet,” or anything like that.

They may say, “We’re going to arrest you for DUI if you don’t answer these questions or join these tests,” but they’ve got a lot left to go on. If the reason they pulled you over isn’t that bad and they’ve got no field sobriety tests and they’ve got no preliminary alcohol screening tests, then when we run a motion to suppress the evidence based on lack of evidence to arrest you for a DUI, we’ve got a much better chance of winning your case, and that’s what we’re trying to do. That’s why you go and hire the best DUI lawyer attorney that you can get. That’s what we’re here for.

Once again, cops will be nice, most of them are, and that’s how they’re trained and most are nice people anyway and they want to get the information that their job requires them to get and they’ve got their ways of going about it.

Q: Don’t Try to Throw Yourself at the Mercy of the Court and Expect Leniency.
A: On a DUI case, you want to get an attorney. That’s plain and simple. Throwing yourself at the mercy of the court, showing up for the first court date and just saying, “I’m guilty. Do whatever you want, I’m sorry. I’ll never do it again,” what’s going to happen is the judge is going to tell you not to make any statements, to get an attorney, and then in some counties, they’ll say, “Well, okay. If you want to plead guilty, here is a form to fill out,” and they’ll have you fill it out and you’ll do it without an attorney advising you how to fill it out or talking to you about what you’re doing and you’ll have a DUI on your record.

The penalty could be a lot worst in many cases if you just throw yourself at the mercy of the court and plead guilty at the first court appearance without a lawyer. For driving or job purposes, and for your future. You know, talking about jobs, if you have a DUI conviction, it’s much tougher to get certain jobs. It’s a criminal record, and a lot of people don’t realize this. This is a misdemeanor and will stay on your record for the rest of your life.

It does not go away and 15 years from now when you’re trying to get a job, potential employers can see these things. You’re in a situation where you go, “Well, am I going to tell them about it or not, are they going to find out about it,” you know, it’s usually best to tell them about it because most employers these days do background checks.

Throwing yourself at the mercy of the court; I can go on and on and on, why that’s not a smart move. If you don’t have money for an attorney, some places like San Francisco, they have fantastic public defenders. Other places, they’re okay, some are not but at least get an attorney to advise you. If it does look like there are winnable issues, go for it, try and win your case, get an attorney to try and win your case or minimize the damage.

Q: Do Not Try to Go at It Alone Even if You Have Done Extensive Research or Know People.
A: A lot of people make mistakes by just listening to other people who have been through the process, because everybody’s case is different. You might talk to someone who had a DUI and they may not have liked the outcome of their case and they might say, “Well, I shouldn’t have gotten an attorney.” Well, maybe they shouldn’t have gotten the attorney that they got, maybe a different attorney would have been a better experience and helped them to get a different outcome.

Maybe the facts of their case were such that they really didn’t have much chance of getting a better result than they did, or in yours, you might want an attorney, you want to do your research, this is a tricky one because it’s important to do research about it but it’s hard to know exactly where to look and what you want to do is find an attorney who is experienced, who is aggressive, who’s been doing this for a long time, who does mainly or only, like I do, DUI defense.

If they’re experienced and they’re doing mainly DUI defense, and you should make sure that they’re members of the National College for DUI Defense, which has been around for quite some time. That means that they’re going to discuss the rules, the changes, and most importantly the defenses to DUI cases. That means they’re getting information on different judges and prosecutors offices and the way things are being dealt with when things are getting out of hand in one area or another, they’re there to protect you and make sure that what’s done is done properly.

You need to make an informed decision in your case. The attorney is trying to make everything go away, to get the case dismissed and save your license but if not, then you’re either going to go to a jury trial or end up pleading no contest, which is same as a guilty plea on a negotiated disposition to a DUI or something less than that. But you need to make an informed decision and an informed decision is best made by an experienced DUI lawyer.

So, when you’re reading through different websites or articles or interviews, get a feel for what’s going on and then pick out some attorneys who meet the proper qualifications and give them a call and make sure they’re the ones that are going to handle your case, not someone else in their office.

You want to hire the attorney who has a reputation because that’s the person that the DAs and the judges in the courts know, that’s a person who’s been around a long time, who is familiar with what’s going on, and who has a better chance than someone who they don’t know very well who is less experienced of getting a better result.

That’s an attorney who runs suppression motions to try and make the evidence go away, who will go to trial. Those attorneys have a better chance of getting better results because the other side knows that they have to work harder. They may give us a little bit more than someone else because they know that we’re not going to back down.

So, it is important to talk to a small handful of attorneys. After talking to two or three, if you don’t find someone that you’re comfortable with who is going to be the person representing you both in court and at the DMV, then maybe contact another. But for DUIs, you don’t want to go finding some big firm that hand these cases out to other people. You want someone who does these cases all the time, who knows how to win these cases, who knows how to save your license.

As an experienced DUI lawyer, I would want to see that the person who represents me has a time to talk to me when I first meet them either in person or over the phone and can arrange time to sit down and go over the case at a mutual time, and that person will be the one that actually goes to DMV, not just doing the case over the phone.

Some cases can be done over the phone, but sometimes it’s important to have the attorney at DMV doing the hearing, that that attorney will be the one who actually files motion and then represents you on the motion to suppress, and that’s important. The reason it’s important for the same attorney to be dealing with your case and not handing it off to associates or others is because they know the issues based on your initial conversations, initial intake interviews, finding out things about you, and finding out things about what happened that night.

Reading someone else’s note, you’re reading a line and it means one thing and it could mean many other but if you ask the question and wrote the notes, it means a lot more. You’re able to know the story, to know the book by writing the table of contents for the book. That’s what’s going on here when you’re talking to an attorney.

Q: Do Not Hire an Attorney Based on Price Alone.
A: That’s a very good rule. There are attorneys who will do DUI cases for a very small amount of money. When you see that, you might as well just go in by yourself because the protection you’re going to get from them is going to be basically what you pay for. You try and make your case go away and save your license, that’s goal number 1.

The chances of that happening are much better when you have an attorney who is willing to do the work. That means discovery request, reviewing video and audio, checking machine records for blood testing, breath testing, retesting blood if it needs to be done, doing investigations, anything that they can do to try and win your case.

The attorneys that you pay a very smaller amount are not doing that work. Some may do some of it but you’ll get real lucky if you find an attorney that charges you a very small amount because these cases take time, they take an investment and an attorney who is just taking every case that comes in because they need to keep their door open is not someone who necessarily has your rights at the top of their list. If an attorney is not able to return your calls, that means they’re too busy but if you pay them a very small amount of money and you’re getting that, that’s because they got way too many clients.

An attorney who is not able to return your calls, who tells you that they’re in jury trial or doing hearings that are going on for number of days and who can get back to answer some questions in the evening, that’s an experienced attorney who is putting everything they can into trying to win the case that they’re dealing with that week. That happens sometimes and that happens to the best attorneys, which is to be expected, that’s what you want.

If your case is up for trial, you want a week or two that the attorney’s fighting your case, you want all the attention paid to you, that’s really important and that’s something that an attorney who is going to charge a lot more money. Some attorneys will include a jury trial, and I’d be very wary about that. There are only a few of them that’ll go to jury trial in most of their cases, and I’ll be a little vary of that too because not every case needs to go to jury trial.

If you go with an attorney who charges you an amount, let’s call it somewhere between $3,500 to $7,000 for a DUI without jury trial, that’s an amount you should expect to pay for an experienced attorney. Some of them will charge you even more and they’ve all got their reasons for what they charge. Some may have very high overhead, some have big staffs, but as long as you’re getting experienced attorney and you can afford it, that’s the one that you want by all means, pay the money for it.

That amount that we’re talking about should be an amount without going to jury trial. If you’re going to go to jury trial, typically the amount of work that needs to go into it and the amount that an attorney should be charging you is at least another $7,000 to $10,000. It’s a lot of money for a lot of people, and most people don’t have that kind of money sitting around. So, you talk to the attorney about payment plans, put it on a credit card and have them do monthly payments. Some attorneys will, some won’t.

In most cases, we typically or I typically do a payment plan. Whether it’s for the trial part or the part of the case with DMV and in court before a jury trial, that’s something that can be worked out with most attorneys but don’t go out there and just hire a cheap attorney.

Many people come to me when they get another DUI or they want to expunge their record and we talk about what happened at the first time and the last thing I want to have to tell them but I think it’s fairly often is you should have hired a better attorney, a more experienced attorney, someone who’d really fought your case the first time because when you come in with a second offense, it’s much more difficult to win. And when you had a winnable first offense, that’s where you should have fought it all the way.

Q: Don’t Settle With the First and Only Attorney that You’ve Just Talked To.
A: If you were recommended by someone, and you feel comfortable with that attorney right away and they do mainly or only DUI defense, that would be the situation where you may say, “Okay, I’m there,” but most people are not in that situation, most people have never had to deal with an attorney or a criminal defense attorney before, so it is a smart idea to talk to at least two, if not three, attorneys before making your decision and do some research online about them.

You can also check with the California bar, type in their name, see if any actions against them come up. You never know, you just never know. Those actions might not be things that would dissuade you from hiring them, they may still be the best attorney out there for you, but do your research, read the reviews. There are sites like AVVO where clients and attorneys can leave reviews for other attorneys, good place to look.

Q: Don’t Try and Drive a Vehicle if You’re Legally Unable to, Even if You’re Not Drinking.
A: Driving if you’re legally not able to, if you don’t have a license or you’re on a suspended license, especially if it’s a suspended license for a DUI, can get you in a lot more trouble. There’s nothing worst getting busted for that because let’s look at it in the context of if you’re on probation for a DUI, then you’re looking at violating your probation if it’s a first DUI. They can give you up to 6 months in jail.

There are fines and penalties for driving on a suspended license itself, it’s a whole new case, and it’s going to cost you thousands of dollars and it can also result in further suspension of your license potentially needing to get an interlock device, so there are just so many different ramifications, it is not worth it.

It’s hard, especially when that car is there and you need to get somewhere and just say, “No, I’m not going to get caught”, but it’s not worth it. Whether it’s friends trying to give you a ride, public transportation, private companies, cabs, Uber, whatever you need to do, hiring someone to drive you. I know it’s tough and a lot of people live in places where it’s almost impossible to get somewhere without driving but it’s just not worth it. I know it’s easier said than done but it’s just not worth it.

Q: Don’t Continue to Put Yourself in Risky Situations that Involve Alcohol or Drugs.
A: A lot of people don’t intend to drink and drive, most people don’t. A lot of people go out and they think, “I’ve only had one or two, wait it out, I’ll be okay to drive,” and in most cases, they are okay. But putting yourself out there as a driver and if you’ve been drinking, putting yourself in those situations is just not okay. So, if you’re going to be the driver, you have to make sure you never get to that legal limit and don’t get there thinking 3 hours, 4 hours is going to worn off and that you’re fine to drive, you can do it but it’s not obviously a wise choice and it means you can get yourself into a very sticky situation.

Having to call a DUI lawyer, a lot of people will go home after being out, maybe have some drinks at home, and the problem with that is your judgment’s a little impaired, so you get hungry, you want to go to store, get some food, I’ve had this happened a lot to clients. They’re just gone a block or two instead of walking, get in the car because all of us used to get in the car, that’s where they get arrested for DUI.

Sometimes an emergency comes up, if a kid gets sick at night and you’re going to take him to the doctor or one of the parents calls and say you’re out drinking or something and they’re like, “Hey, something happened to one of the kids, we’re going to the hospital,” are you going to get in the car and go to hospital? Your judgment is not what it would normally be when you’ve been drinking alcohol. So, it’s a very tough thing.

If you’re going to go out and drink, the best think always you can do is have no access to any vehicle and no matter what anyone says, don’t drive their car. We can talk about this one, we can go on and on and on about this one, I could tell stories about situations that I’ve seen clients get themselves into. I’ve represented thousands of people on DUIs over the years and it’s so easy to put yourself into the wrong situation where you’re in jeopardy of getting a DUI.

If you weigh 100 pounds and you have a big glass of wine, you could be over the limit. You look at the size of wine glasses, they’re huge, and they can almost hold an entire bottle of wine. You may not even need to have that much alcohol because these machines aren’t completely accurate and there’s a margin of error on them and you may only be 0.07 and measure it 0.08. It’s just not worth being out driving when you’re drinking.

If you do it, you just got to be so careful about it these days. There is talk about the drinking level, the alcohol level that you’re allowed to have going down to 0.05. It may happen someday. People never thought it was going to go to under 0.08 but it did. The government’s involved and who knows what’s going to happen.

The other thing you got to be careful of is with impairment, which is one of the DUI charges. You don’t even have to be 0.08 to get arrested for DUI. You can be under 0.08, it’s usually between 0.05 and 0.08, and the officers can arrest you or will arrest you in some counties for impaired driving. The forensic toxicologist will come in in trials and testify that almost everyone who is at 0.05 or higher is impaired while driving, so that’s what we’re up against. It’s not a safe thing.

If I go out and do something myself, if I have some drinks, I keep the breath machine in my car, it’s a handheld machine, and make sure it’s in working order. I want to make sure I’m 0.03 or under before I get behind the wheel because I’ve seen what can happen, it’s just not worth having your own breath machine and being 0.07 and go, “Okay, I’m okay right now,” that’s playing with fire.

When you’re out there, anytime you go out, friends or work colleagues or anybody, you’re going to get behind the wheel after, the best thing you can do is think about it before you do it and be very careful and see if there’s a way that you cannot put yourself in that situation. It’s just not worth it. Remember, when you are drinking, you are not thinking as clearly as when you’re not drinking. So, that’s when people make mistakes. Most people don’t intend to go out and drive when they’re over the limit.

Q: Don’t Miss Any Meetings, Hearings or Dates.
A: Yes, that’s a pretty quick one. If your attorney tells you that you need to be at court, you need to be at court. If you need to be at the DMV hearing, you need to be there and most certainly if you need to be at trial, you need to be there. You should always get there early even before your attorney so your attorney doesn’t have to wait around for you or start calling you.

Often, an attorney may be in two or three courtrooms in a courthouse and just be there, ready for them and if an attorney says you do not need to be at court say for your first court appearance or in some counties, you almost never have to go, your attorney can do it for you, of course. Listen to your attorney, that’s why you hired them. But communicate with your attorney and just make sure that they know that you’re going to meet them in the court, just confirm it, which is a good thing to do but that’s pretty straightforward.

Aaron Bortel

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