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Law Firm of Aaron Bortel

Top DUI FAQs


Q: What Happens When I've Been Pulled Over, And Have Been Drinking?
A: So when you’re pulled over and you’ve been drinking, what an officer is going and try and do – what they’re trained to do – is to detect the odor of an alcohol beverage on your breath. Which means they’re going to want to get as close to you as possible; sticking their head at or inside your open driver-side window. If you have had one drink or a small amount, and you know that you’re fine, you’re not going to have a problem unless you refuse to take a chemical test and they think that you’re under the influence.

But if you have had more than a couple of drinks, and there’s a chance that you may be at or over a 0.08 BAC or under the influence of alcohol – which is also defined as not able to drive with care and caution of a sober person – then you’ve got some quick decisions to make. And you need to decide if you’re going to do tests or not. What you can expect is an officer to ask you to get out of the car. Sometimes they’ll do what’s called the horizontal gaze nystagmus test or the HGN test, by having you follow their finger, a pen, or a flashlight, while you’re sitting in the car keeping your head still, and following it back and forth. Most of us have seen these tests on movies or on TV, or seeing other people do these tests.

You’re not required to do that test; in fact you’re not required to do any field sobriety test. If you don’t do them, most likely if there’s alcohol on your breath and you decide not to do the test, you’re going to get arrested for a DUI. You can respectfully refuse to do any of those field sobriety tests; in fact you can refuse to do the chemical test on the side of the road – which is not the evidential test. Once you are arrested however, you are required to do either a breath or a blood test. So what you can pretty much expect is an officer to ask you out of the car; ask you a lot of questions. What have you had to drink? When did you start drinking? When did you stop? They’ll ask you potentially, questions about when you slept, what you had to eat.

If you have any medical issues, they may start asking you questions about if you have any back or leg injuries, or head injuries, or medical problems. That’s usually leading up to whether or not they want to give you a field sobriety test. If you’ve got some pretty major injuries or problems with your body, they’re not as likely to have you go through those tests or do all the balancing tests. But if they start asking you those, you can pretty much expect that that’s what’s coming next. And you’ve got a choice to make before you start answering any questions or get out of the car, or do any of these tests, and that’s, ‘am I going to cooperate or not?’ If you decide not to cooperate with them, what you’re doing is you’re probably going to get arrested but you’re giving them less evidence to use against you.

So if you decide not to answer their questions or not to do any of these test, you would respectfully decline to do the tests. You can let them know that you’ve been advised by attorneys; criminal defense attorneys, DUI lawyers – that you should never do any of these tests; that you don’t want to blow into a machine on the side of the road because, you know, you’ve heard that there are issues with accuracy or that you’ve heard that certain police departments have fabricated calibrating the machines – which has happened in different parts of the bay areas, San Francisco bay areas. But if you believe that you’re pretty much at or over the limit, you don’t want to give them any additional evidence. There are counties that will charge you with a DUI if you later blow under an .08 and that’s one of the reasons you don’t want to blow into that machine on the side of the road; because then they’re going to try and use that against you.

You don’t want to help them, you don’t want to give them extra evidence. And different attorneys will tell you different things, but in most cases you want to give them – especially if you think you’re at or over the limit – you want to give them nothing to use against you later. Once it comes time, once you’re arrested, once it’s time to do a chemical test; then you’ve got to choose which test. And if you do refuse to take that chemical test after arrest, you’re looking at potentially losing your license for a year or more – and that’s with no restrictions. So that’s where you’ve got to make another big decision.

Q: What Happens if I Refuse The Breathalyzer?
A: If you refuse – and we’re talking about the one after you’ve been arrested – then, like I was just saying, you could lose your license for a year or more. And it changes the whole approach DMV takes with the DUI arrest. There’s something called an administrative per se or admin per se – APS – hearing, which is separate from the court case. And that’s where DMV is trying to take away your license. The court is not always going to charge you with a refusal, the D.A’s office won’t always charge you with a refusal, if you late have a forced blood test; but the DMV almost always will.

And so at DMV, the issues are going to be that they have probable cause to pull you over. Were you lawfully arrested? Were you instructed, admonished? What would happen if you refused to take a chemical test after an arrest; and did you refuse the chemical test? Those are the four issues. Those issues are very tough to beat. I’ve beat them before, but certainly not every time. And if we cannot beat that at DMV, then you are looking at a minimum of one year of no driving. And if you have prior DUIs or prior suspensions, or put on probation for a DUI or other alcohol related driving offenses; you could potentially be suspended for longer than a year.

Q: What Can I Expect When I Go to Court?
A: Well the nice thing about hiring a DUI attorney – especially in every county in the bay area – if it’s a misdemeanor DUI, you can have the lawyer go to court for you – at least for the first court appearance. In some counties, the judges will order you present for following appearances. Usually in San Francisco, on a DUI case, the judge won’t want you there the next time – some other counties do; but most of them don’t. And in fact if you hire a lawyer to fight your DUI case, they can show up for all your court appearances.

Now if the case is going to go to – if there’s going to be a suppression motion, you’re going to want to be there most likely to see the evidence against you. See what the cop looks like testifying against you, and certainly if you went to a jury trial down the road – and that’s usually many months or a year or more later, after your DUI arrest – you would want to be at the jury trial. Your lawyer would want you there. But what you can expect in court is – at that first court appearance – depending on the circumstances of your case, if it’s a DUI without injury or a high blood alcohol level allegation, if you’re under .015 or under a 2.0, there’s no injury/no accident: in most cases a new court date is going to be set, the attorney’s going to get the police report; and that’s about all that’s going to happen.

The attorney enters a plea of not guilty. So not a whole lot happens at the first court appearance – that’s where we get the police report, that’s where we get the results of the breath test or the blood test if we don’t already know them, that’s where the attorney makes first contact with the D.A and may start requesting discovery, and definitely will request additional discovery between the first and second court appearances. But I can tell you – and this is a concern for a lot of people who have never dealt with, or no anyone who had dealt with a DUI – when you first go to court, you’re not going back to jail.

That’s just not going to happen unless you’ve had a prior DUI or two, and especially if it’s just a second DUI – if there’s accidents or things like that – then the judge will order a high blood alcohol level – the judge could request a bail be set, or a bail be raised. So that’s the only time when you might be looking at going back to jail or having to post a bail. What we recommend in a lot of cases – especially when we start getting into a third DUI or more – is starting some type of a treatment program, whether it be AA meetings or – even better – residential treatment program, wearing an ankle monitor that will monitor alcohol; so that the court can see you’re doing that, give them something in writing to show them that you’re not going to go right out and re-offend.

They feel a little better, they cover their tails and feel a lot more comfortable with just not imposing additional conditions of release. So typically, we’re not going to be dealing with that in most DUI cases, but you need to be ready, and the attorney you should go over all that with you – especially when there’s more extreme circumstances. And in a number of cases there are.

Q: What Kind of Evidence Would be Used by The Prosecution to Convict me?
A: It starts from the beginning, with the driving that the officer observes – whether you’re weaving, going over the line, erratic driving, slowing down/speeding up, any vehicle code violation failure at a signal, signal to stop at a stop sign – you can get pulled over and have a DUI investigation start. If your headlights are out, taillights aren’t working, break lights aren’t working, license plate light in the back is out – I mean there are so many different vehicle code violations for why they could pull you over.

If there are more driving offenses like forgetting your turning lights on – moving violations – those are more likely to be used against you. Then there’s everything you tell the police officers, which is why I recommend not giving them any information and respectfully declining to give them information. Another thing that you have to be very, very careful about – and this is something that we’re starting to see more and more in different counties in the San Francisco bay areas; specifically in San Francisco – and this is, it’s just a way that they’re using to try and get people to plead guilty to their DUI cases: the D.A or district attorneys will now charge people with what’s called a violation of sections 31, which is lying to a police officer, giving false information to a police officer. And that is something that is charged when someone says they had nothing to drink or only one drink, and they’re over the limit. So you’ve got to be very careful about that.

What else can be used against you – statements that you give to the officers obviously, how you perform on field sobriety tests – which is again a reason not to do them – the breath test results, observations by the officers – they’ll say that you have blood-shot, red, watery eyes, or that you’re swaying, you have an unsteady gait they will say that you smell like alcohol or strong odor of alcoholic beverage – things that other people in the car say about you – sometimes they’ll ask them what you had to drink.

There’s just so many different things that officers can use against you – accidents, speeding, driving too slow, where you tell them you’re coming from – from a bar – where they pull you over, see you coming out of a bar, sleeping in the car with the engine still running and sometimes sleeping at a stop light – people fall asleep all over the place when they’ve had too much to drink or just when they’re tired – but there’s so many things that can be used against you.

Q: What Effect Does a DUI Have on My Driver's License?
A: Well when you get pulled over for a DUI, the police will always almost give you a pink sheet – it’s called a temporary license; it’s a admin per se order; it’s also a warning that you have ten days to request a hearing with the DMV. Ten days from the date of arrest; then the day after your arrest is day one – weekends count unless they’re the tenth day. So you get that piece of paper from the police officers who arrest you and they send that in the DMV.

Once that’s in the DMV computers, your license is effected and technically you are suspended. Now they will stay the suspension, meaning that they will hold up and stop the suspension as long as you or your attorney have requested an admin per se DMV hearing within the ten days of arrest. And if you are eventually convicted either in court or lose your hearing at DMV, you’re looking at losing your license for a period of time, which can be anywhere – if it’s a first DUI – anywhere from four to six months or it’s a higher blood alcohol level, it can be nine or ten months.

And you’re looking at that being on your criminal record permanently; but your question was in regards to the driver’s license. It can cause your insurance rate to go up in certain counties in the San Francisco bay area – that would be Alameda and Sacramento which is out of the bay area. But you’d have to get an ignition interlock device to be driving again. And your license – you’d have to pay reissue fees in order to get your license eventually reinstated. You’re looking at – after a period of suspension – a restricted license; and you’re usually looking at a minimum of thirty days of suspension from the DMV.

Q: What Can I Expect if I Were to Get Convicted For a DUI?
A: DUI – driving under the influence of alcohol or drugs, or the combined influence of alcohol and drugs – on a standard first DUI – now there’s nine bay-area counties in the San Francisco bay area, and all of them have different sentences for first DUIs. Let’s talk about what your sentence would be most like in one of the nine bay area counties. You’re looking at picking up trash on the sheriff’s work program.

You’re looking at a fine anywhere from about eighteen hundred and something, to twenty-four/twenty-five hundred dollars; a DUI school which would typically be a 3 month DUI school – 32-hour school. You are looking at probation of three years – it’s an unsupervised probation where you would not have to report to a probation officer. And you’d have a probation condition of zero tolerance meaning no alcohol – you cannot have .01 or over, alcohol in your system when you are driving. You’re not looking at going to jail on a first DUI; you have to have additional circumstances before anybody is going to put you in jail. And there could be so many different circumstances past record – multiple DUIs, injury accidents, things like that.

We’re talking about a misdemeanor DUI here with no prior DUIs – I mean a permanent clean record. The other things you would need – you’d need to get what’s called an SR-22, which is an additional insurance on your person and you need to maintain that for three years with high-risk insurance. You can often get it much cheaper if you get it before conviction. Your insurance rates will eventually go up after you’re convicted of a DUI. Other consequences – you’re not allowed to drive unless legally licensed. Your license, as we spoke about before, would get suspended for usually thirty days and then you can get a restricted license after that – and that would be if you got convicted in court and lost you’re hearing with the DMV. Those are the main penalties for a first DUI.

Now to point a few differences in some of the bay area counties: in Lorain county, they’re usually not looking on a first DUI under a .15 blood alcohol level. They’re not looking to have your client do any sheriff’s work program. I just finished a case today with a client who had a .34/.35 blood alcohol level, and that client got in an accident with no injuries; and they did not require a single day on the sheriff’s work program. They required a nine-month DUI school due to the high blood alcohol level – but no jail; no sheriff’s work program. Typically in Lorain county, they now will want meetings or some type of volunteer work if you’ve got a high blood alcohol level over a .15.

Then after that, Santa Clara county – the lower part of the bay area – they usually want six days or five days on their sheriff’s work program for a DUI; a first DUI under a .15. San Mateo County usually wants two days on their sheriff’s work program, and yet if you’re over a .15 and you plead to a high blood alcohol level allegation, they’ll want another two days on their work program. These are kind of standard – these are things that can be negotiated depending on the circumstance and the case. But these are the different penalties that you’re typically looking at for a first DUI under a .15 blood alcohol level.

Q: What Happens if I Were to Have Multiple DUIs?
A: Well let’s start with a second DUI, and this is within ten years – the law used to be second DUI within seven years, but it changed to ten. And your penalty there would be increased. You’re required to do a minimum of ten days in jail on a second DUI up to a year; whereas a first DUI is a maximum of six months in jail. Most counties will let you do the sheriff’s work program for those minimum ten days – Lorraine County actually requires you to do ninety-six hours in custody.

You can do two stints of 48 hours, but they are – it’s a tough county and they come down hard on multiple DUIs. Other counties will – I’ll go back to San Mateo County; they usually want a minimum of thirty days – sometimes it’s a lot more than that – on the sheriff’s work program, on a second DUI. All counties pretty much will want an 18-month DUI school which is once a week for a year, and then once a month for the next six months. You’re looking at having to get an ignition interlock device put on your car after three months of no driving; and then you’d have that device on your car, you’d be able to drive anywhere for the next 21 months – so that means you get in your car to start it, you need to blow into the machine at every twenty minutes or so – sometimes less – you have to blow into the machine again to show there’s not alcohol in your system.

You’re looking at probation between three to five years – most counties are three; Napa county would require five years on most second offense DUIs. You’re looking at a fine which often is more than the first offense DUI. And in some counties, such as San Francisco, they’d want you on a supervised probation. Other penalties – you know, similar to the first offense. You need to have the additional insurance – the SR-22 insurance – high risk insurance on your person; that would have to be bought and maintained for three years. And those are most of the penalties for the second offense DUI. Once we get into a third offense DUI, everything increases – you’re looking at usually the eighteen month DUI school and a fine which can be more than the second offense, but there’s a minimum of 120 days in jail.

This is where we will get people to – if they’re able to and willing to – get into a residential treatment program as soon as the arrest happens. As soon as they come to us to try and minimize the damage; because a number of courts will allow those arrested and eventually convicted of a third DUI – instead of going to jail for the minimum 120 days – they’ll allow them to do a residential treatment program. And many of those will allow you to continue work, keep your job, so it’s critical. The other thing we’ll have people do is, start doing a lot of AA meetings, self-help meetings – it’s really important to do that and show the court that this is it; that you’re not going to come back again; that this is the last time they’re going to see you.

The fourth DUI can be a felony – it is a felony if it’s within ten years, and it can result in going to state prison. And we’re talking a number of years in state prison. So the other way to make a DUI a felony is if someone is injured in an accident – and it can be someone in your car or another car.

Q: What Are Some of The Repercussions if Someone Had a Vehicle Accident And Were Arrested For DUI?
A: Typically the first thing that they’re going to need to deal with is restitution. And with any property that they’ve damaged – whether it’s county property or someone else’s property or another vehicle – but that can result in the D.A wanting a stiffer penalty; whereas the D.A may want to give you credit for time served and only give you a couple of days on the sheriff’s work program for a first DUI. If there’s an accident, they may want 10, 20, 30 days depending upon the severity of the accident, depending on the county you’re in, depending on who the D.A is.

And so it can be a lot more severe – and we’re talking about an accident where there is no injury; completely different story once we do have an injury. But an accident will get insurance involved, will get restitution; can lengthen the case for many months until restitution is paid. It can result in additional fees to your probation department or a pre-trial diversion department who are doing the investigation into the accident – it can usually mean 300 or 400 dollars to those departments, to just cover the restitution in investigation. It makes things – it creates a lot more work for the attorney, for the court; and it has to be dealt with properly. You have to be very careful about that because those things can turn into a much more complicated situation. And it often gets that way when people are injured, or when all the damage to property is not dealt with early on by insurance. So there’s a lot going on there, and it’s definitely important to have a very good – you know, the best DUI attorney that you can find when you’ve got accidents; especially with injuries.

Q: What Are Some Options Besides The DUI Conviction?
A: Meaning what are other ways that a DUI can come out? Well the best result is a dismissal or a not guilty verdict on all accounts of trial. There are reduced charges wet reckless, dry reckless, moving violations. There are many different ways that a DUI case can end – more often than not, someone gets convicted of something. But when you go out and find the best DUI attorney you can, you’re going to have a much better chance of getting the best result possible. In order to do that, you want to find a DUI attorney in the San Francisco bay area who’s a member of the National College for DUI Defense. You want to find someone who’s a member of the California DUI Lawyer’s Association.

You want to find someone who’s doing this for a long time, and is familiar with the bay area courts – the courts they practice in. And someone who mainly does or only does DUI defense – and that is very important. You want to find someone you’re comfortable with; someone who will spend the time with you to understand your case. Someone who will fight your case – finding the attorney to talk to, and if they have, someone else may call the court appearances for you. That’s not the best way to go about, getting the best results. You want the attorney you talked to in the beginning, who you do a nice phone consultation with and tell them everything you can about yourself and your case, and answer every question they ask, to better help your final outcome.

You want that attorney fighting for you. And you need to feel comfortable with that person. So be careful when you’re trying to find your DUI lawyer. Make sure that they don’t have a lot of – or any discipline with the state bar that cause you concern. If they do, ask them about it, and I’m sure they’re more than happy to tell you about it. But there are a lot of great attorneys out there; but you won’t find that many great DUI lawyers. You’ve got to look hard, you’ve got to look at the credentials, and you’ve got to talk to them. If you can, get into their office, talk to them in person, ask them every question you can, and give yourself the best chance to win your case.

Because if you get convicted of a DUI, that’s going to be on your criminal record for life. And that can result in many, many different problems – work related, credit related, travel related. You want your best chance to win.

Aaron Bortel

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