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Law Firm of Aaron Bortel

Top Myths And Misconceptions Regarding DUI Charges In California


Q: I Refused The Breathalyzer, So There Will Be No Evidence Against Me.
A: No, that’s not true unfortunately. There will be no breath test that can be used against you and assuming you did not take a blood test or there was no forced blood test, there will be no blood evidence against you. However, what officers can use and what the District Attorney’s office can use when they decide to file charges against you is observations of the officer. When you get a DUI, you’re usually charged with two different things; impaired driving, not driving with the care and caution of a sober person, and the other charge is being at or over 0.08 blood alcohol level at the time of driving.

So, it’s much tougher for them to get you on the 0.08 but impaired driving is something where they can use – and they do even if they have a blood alcohol level at or over 0.08 – evidence such as your driving, the officer’s observations of your driving, the officer’s observation of your demeanor, your speech, what they see and they’ll often say you have red watery eyes, or taken an alcoholic beverage, an unsteady gate and then they’ll use field sobriety tests against you, the Walk and Turn test, a One Leg Stand, the Horizontal Gaze Nystagmus test, counting fingers, a Hand Clap, Romberg balancing test, Estimation of Time, Alphabet written, recite it, they will use many, many different observations against you in a DUI. They do not need to have a number.

On top of all that, they will bring in a forensic toxicologist at a jury trial, assuming you’re in a state where you get a jury trial, and in California, you do get a jury trial and you’re entitled to a jury trial on a DUI misdemeanor. And that state expert will say that everyone is impaired at 0.08 but that almost everyone is impaired at 0.05 or higher. And so, the symptoms at 0.05 can be different than the symptoms at 0.08 or higher. So, it’s not automatic just because you refused the test that this will go away, that there will be no evidence against you. In some states, it may work but in California, if you refuse a test, it’s a myth that they have no evidence against you. And on top of all that, if you refuse the test, there’s a very good chance you’re going to lose your license for a year or more. So, be careful.

Q: I Think I Performed Rather Well On The Standardized Field Sobriety Test, So It’s Going To Be An Easy Case, Right?
A: I wish there were all easy cases. When my client start, they performed extremely well, well or very good on the standardized field sobriety tests. Those standardized field sobriety tests are the Horizontal Gaze Nystagmus test, the One Leg Stand and the Walk and Turn test, those three are standardized because they’ve done studies to show that if you have a certain number of clues on a test, that there is a certain percentage that says that you’re at or over 0.10 blood alcohol level, and if a certain number of clues are present on all three of those tests, then the percentage chance that you’re at or above 0.10 blood alcohol level goes even higher.

So, there are standardized tests which officers are judging and those three tests which I just mentioned are used in most California Highway Patrol DUI investigations; not all of them but most of them. Sometimes, they add additional tests as well. Sometimes officers who are not CHP officers will use different tests but those are the three most common one. Now, the problem here, when someone thinks that they did well on the test is that the officer almost never says someone does well on the test. They never say someone does well on all of them. I can’t remember the last time I saw an officer say someone did pass all of these tests.

What happens is, for example with the Horizontal Gaze Nystagmus test, someone is asked to follow an officer’s finger or pen or flashlight side to side and sometimes up and down when they’re looking for drugs but side to side where the stimulus that the officer is using is about 12 inches, 15 inches away from your nose. The officer is telling you, “Stand still and keep your head still, follow the movement of my finger or whatever I’m using side to side with your eyes”, so someone’s able to do that and they follow the finger and they also told not to move their head and they don’t move their head. So, someone will come into my office and say, “I did great on that test, I kept my head still and I did it perfect”. Well, what you don’t realize is that that officer is looking for the involuntary jerking of your eye.

What happens is you can’t see or feel if your eye is jerking involuntarily, and in almost every case they will say that they saw it, they will say that they saw what they call a lack of smooth pursuit, they will say that they saw what’s called Nystagmus at the maximum deviation, which is where your eye’s all the way at the far edge of your face, so that side of your eye closes too rare where there’s no white in the corner of your eye anymore and they’ll say that they saw a jerking there. And then, they’ll often say that they saw it at 45 degree angle, jerking there or sometimes even before 45 degree angle and that angle’s usually about your shoulder when their finger or stimulus is at your shoulders. So, they’ll write all that down and they will say that you failed that test. With the Walk and Turn test, that’s the heel to toe test, they may tell you to take 9 steps out to pivot around and they’ll show you how to do it and then take 9 steps back heel to toe. You may think you did fine on that test and the officer may say that you raised your arms, that you weren’t counting out loud, that you took the wrong number of steps; they may say a lot of different things. They may say that you failed to touch your heel to toe, which actually is not a clue because you can get within a half inch from the heel to toe and do it properly.

The One Leg Stand test, they may say that you didn’t follow directions properly. They may say that you started too soon and they may say that you lifted your arms more than 6 inches from your side, and they may say that you didn’t count out loud and they may say that you halt, they may make up a lot of things and you’d hope that they wouldn’t but we’ve seen that happened before when we have video and something else is said in a police report. If there is no video and a lot of police officers, even the CHP who usually have video, don’t record it because they choose not to, then the officer’s word against yours and that’s a tough one. So, we hope that we have video in these cases because that can show how well you did when you think you did well on a field sobriety test.

So, the bottom line here is you may think you did extremely well and you may have done extremely well but the officers will point out things that they see that you may not have noticed or observed. A lot’s going on when you’re doing field sobriety tests, you’re scared, you’re tired off and it could be freezing cold because many DUI arrest happen right at night and you’re not wearing a jacket, you may have heels on and you may have been up since 5 or 6 in the morning from work and it’s 2 in the morning when you’re coming home and you’re nervous and you’re sharking. There are many reasons why you may not do very well on the field sobriety tests aside from alcohol in your system.

Q: I Refused Both The Breathalyzer And The Standardized Field Sobriety Test, There’s Definitely No Evidence Against Me. I Should Be Home Free, Is That Correct?
A: Absolutely not. There’s something called, “Consciousness of guilt”, and that will usually come in, “Why would you not take either these tests? What did you have to hide?” That’s what a prosecutor is going to put in front of the jury versus your attorney’s version, which is usually something along the lines of, “My client was asserting their constitutional right. They were asserting rights that they had been informed previously by an attorney or read about or heard about”, and so the officer will still have driving, they will still have what they’ll call the odor of an alcoholic beverage on your breath and it is tougher to prove a case against you but they still have the consciousness of guilt which can be used against you. And it may be what puts them over the top. So, you’ve got to be extremely careful if you are going to refuse the test because you’re going to lose your license most likely with DMV for a year. You need to make sure that your job or your livelihood does not depend on being able to drive for the next year. It will also result in insurance going up.

Now, many people will do anything they can to avoid getting a DUI but what you got to understand is in California, if you refuse to take a chemical test — and you can refuse the field sobriety tests and I would advise almost everybody to refuse to take them, refuse very politely to take field sobriety tests, respectfully decline is the wording that I would sometimes advise using. But if you don’t take a breath or blood test after you’ve been arrested for a DUI, they will get a warrant, they’re doing it all the time now, the law’s allowing them too, and they’ll get a judge to authorize the warrant and they will hold you down and forcibly take your blood. And then, you’re dealing with a blood result and a refusal. So, instead of losing your license for at most a month followed by a minimum of 5 months of restricted driving, you would be looking at a much, much longer period of up to a year or I should say at least a year of no driving at all.

Q: The Police Officer Didn’t Read Me My Miranda Rights, So The Case Will Be Dismissed.
A: What is required before Miranda needs to be read is custody and interrogation. So, basically in a DUI investigation, once they put the cuffs on, if they want to keep asking you prerogative questions about what was going on earlier, what did you drink, when you last had a drink, where you were, what you had to eat, where were you going and coming from, any of those questions to try which are supposed to be just to determine if they should continue their DUI investigation and possibly arrest you, they need to read Miranda. Unfortunately, for DUIs, Miranda pretty much doesn’t exist because the officers will ask every question they can and the courts have allowed them through the case law to ask everything and anything they want before they decide to arrest you. This is why they fill out forms; they ask many questions.

Once they have everything they need and do all the field sobriety tests, then they go, “Okay. You’re under arrest for DUI”, they cuffed you and then they give you a choice of tests, you’re required to take a blood or breath test or you will lose your license for at least a year. Miranda, after you have been cuffed and arrested for DUI, is only applicable to any non-voluntary questions that they’re asking you. So, if you are in the back of the car and you start talking out voluntary things without being asked, those are probably going to come into evidence and they’re things that can be used against you. If you’re cuffed in the back of the car and the officer says, “Look, you told us you had nothing to drink but clearly, you blew there from a preliminary breath machine and you’re lying. Tell us what you really had”, well, he can’t use your answer against you because it would be a Miranda violation. But typically, they’re getting almost everything they need before they arrest you, so that’s the misconception with Miranda.

Q: The Officer Was Rude To Me And I Feel Like I Was Forced To Say Or To Do Things Because I Was Intimidated. That’s Always Caught On Camera, Right?
A: Rectification: Unfortunately not. When we do get that on camera, it still does not mean that we’re going to be able to make the case go away but it can be helpful in trying to convince a prosecutor to dismiss charges or to reduce charges or a probative I should say helpful putting in front of the jury to show how you were treated by an officer and it can help any claim we have of anything that was coerced or if you were taken advantage of in any way. An officer is not required to be nice. Many of them believe that their job is to arrest and not be tolerant. Most officers that I’ve come across over the years has been nice and helpful, understand the stress and the pressure that you’re under when you’ve been pulled over for a DUI and most people cooperate with officers. In those situations, you’re usually not going to have an officer giving you a hard time.

Sometimes it happens and sometimes it happens because you don’t pass the attitude test but unfortunately, the exchanges with them are usually not caught on camera. When they are, if they are helpful, what the officer says if they coerce you into doing something, if they violate any of your rights, we’re going to jump all over it, bring a suppression motion that the DA wont dismiss the case and try and make it go away showing that their probable cause to arrest you was based on evidence that was coerced or maybe it’s something, a motion that we bring at trial. But unfortunately, most of these exchanges are not caught on camera.

Q: The Police Officer Was Very Nice To Me And Assured Me, As I Was Getting Arrested, That I Wouldn’t Have To Worry Even Though I Was Being Arrested That It Was Just All Part Of A Formality.
A: Rectification: A police officer, at most parts of the DUI investigation, the arrest and booking, will try and be nice and polite and make you feel as comfortable as possible because it makes their job easier. An example is when they have you blow into the preliminary alcohol screening machine; they’re not going to tell you the results most of the time. Sometimes they do but most of the time they don’t because they know that if they tell you the results that you’re over the limit, you’re going to possibly want to do it again or you’re argumentative or you stop cooperating with them. And the next thing that they do after having you blow into that machine is put handcuffs on you. So, they’re trained not to tell you the results there and hide the ball.

But a police officer being nice is all about making their job easier. And you can imagine that not everybody may be as polite as you are when you’re getting arrested for a DUI. You would assume that most people would try and be polite and nice to the officers hoping that something will work, like trying to talk your way out of a ticket. Do you yell and scream or kicking an officer? No, you’re polite and you hope that they’d say, “Hey, be on your way. This is just a warning”. Once you blow at or over 0.08 into that machine, you’re getting arrested and that’s just the way it is. So, a cop telling you, “That you got nothing to worry about, nothing’s going to happen, you’ll be okay”, that is not the case and that was an officer just trying to make their job easier.

Q: I’m Not An Alcoholic. The Court Should Understand That, Right?
A: Rectification: The courts are not the ones that you’re worried about; it’s the District Attorney’s office, it’s the Department of Motor Vehicle. In most cases, or in all cases, it’s the District Attorney’s office and mostly, the City Attorney in some counties who’s bringing the charges against you. So, whether you’re an alcoholic or not has nothing to do with how your case is going to go, unless it’s a multiple DUI where we get you into a residential treatment program or attending AA meetings to try and minimize the damage. If you’re at or over 0.08, it’s kind of black and white; they’re going to charge you with the DUI. We may win the case, we may get charges reduced. How it comes out, it doesn’t have a lot to do with your drinking habits. It has a lot more to do with what happened in the case, with the driving, with the field sobriety tests, with blood alcohol level.

So, alcoholism doesn’t necessarily help or hurt on a first DUI. The treatment you get for it can help minimize the damage in some cases but it’s not going to necessarily affect if you’re charged with the DUI or not. And the court is not necessarily going to have a whole lot to do with what happened in your cases. In most counties, what happens is your attorney is dealing with a prosecutor, District Attorney or City Attorney, who they will try and convince to dismiss the case or try and negotiate a lesser charge or a lesser sentence or go up against in a trial. The only time that your drinking habits might come into play with the court would be for sentencing purposes, if this was a case that had an extremely high blood alcohol level, say, you’re 3 or 4 times the legal limit. The courts could be thinking you’re and alcoholic and if it’s something where they have the say on whether you do jail time or on a multiple offense or do a program, get in a program, it’s something that by doing meetings, getting into a program yourself would have some discretion but unfortunately, the fact that you’re not an alcoholic is not going to help you in a standard first DUI case.

On that note, having a perfect driving record, never being in trouble before, you know, doing a lot of volunteer work, those kind of things, sometimes we can find places where that helps but what you got to understand is most people are arrested for a DUI first time have perfect or close to perfect driving records, you know, have good jobs, have family, do voluntary work, most people do that kind of stuff. So, when we’re trying to explain that to someone to get and to go easier on you, they heard it before, I still like to try and personalize my client in every case possible because it can be helpful but again, going back to the alcoholic question, not being alcoholic, that’s not going to have an effect on the court on the first DUI with the blood alcohol level is not that high.

Q: My Tolerance Level For Alcohol Is Really High. It Takes A Lot To Get Me Intoxicated. I Can Just Do The Standardized Field Sobriety To Prove That I’m Fine, Right?
A: Rectification: I would still not advise ever doing these field sobriety tests but having a high tolerance, that’s going to come out in your blood alcohol level, if it’s a blood test or a blood test, can you do well on the test? Being at or over 0.08 is a per se charge. There’s no, “Oh, I can handle my booze when I’m driving because I have a high tolerance”, it doesn’t work that way. Remember there are two different charges; the impairment charge and being at or over 0.08 charge. So, you may have good driving and great field sobriety tests but if you’re at or over 0.08, you got trouble. Now, what we can do with that is a defense, which is called the disconnect, and that’s where we’ll show a jury how much alcohol it would take to get you at or over 0.2 or whatever they got you at. And sometimes that can work in convincing a jury if there’s no way that you drank a dozen beers within a couple of hours and did that well on all these tests, that’s a tough one for the prosecution to solve. So, I mean the odds are always against us in the DUI case but a disconnect in some cases can work.
Q: I’m A Professional In The Education Field Or I’m A Professional In The Healthcare Field, The Court Should Go Easy On Me, Right?
A: Rectification: Typically, it doesn’t work in DUIs. DUI is something like a gun case or a domestic violence case, the court is not going to easy on someone or DA is not going to go easy on someone because of the field that they’re in. People are supposed to be treated the same way. Now, sometimes when someone has, say, a commercial driver’s license, I can convince a court to go easier on someone in one area or another in order to save their job. Let’s use a teacher for example. A teacher may have trouble with their Licensing Board when they come up for recertification or with the school they’re working for. A DA is not going to just go easier on someone because they teach kids. Same problem with doctors and nurses, you know, especially with nurses. Unfortunately, the nursing board comes down harder on the nurses than the medical board comes down on the doctors. And a nurse can lose her license, her nursing license. What I advise people to do in these situations, in most cases – and every case is different so you want to consult with an attorney who is familiar with what can happen with these boards – is you want to go right in to counseling, you want to start doing AA meetings, you want to get some one-on-one counseling with some type of a therapist and you want to get it all documented so that if and when the board that you’re associated with questions you down the road when they find out about this, and they will when it comes time to recertification, you can say, “I was proactive. I did all of these things in order to make sure that any problem I was having was addressed immediately and dealt with properly”, and that goes a long way.

I tell a lot of people who have some type of a professional license issue at the beginning of their case; those who listen and if they do get convicted are very happy to do. Those who do not listen have problems down the road and it’s one of those things where you can deal with it down the road but it may result in a suspension or a longer suspension and a lot more of the board looking over your shoulder and making you do a lot of things that you don’t want to do down the road and you wish that you did it earlier. So, this is something where there are administrative attorneys who deal with these boards. A number of DUI attorneys do as well but you want to be talking to the right person who’s dealt with the board you’re dealing with before and do some research yourself but also get a good opinion from an attorney on what did happen here. This is an area that’s getting tougher and tougher to deal with. The boards are getting stricter and stricter as there’s more and more competition in these professions. They had no problem taking people out or not re-licensing them or making them jump through a lot more hoops to be qualified to continue with their license.

Q: I Am A Single Mother And The Courts Will Be Lenient With Me, Right?
A: Rectification: As a single mother, one of the biggest problems you’re going to have is driving your kids to school if you get convicted of a DUI. Not being an alcoholic and things like that, being a professional, the court doesn’t care, the DA doesn’t care. Being a single mother is not going to help in getting the DA to drop the charges. If you’re on the borderline and you got a very good defense and there’s a lot of things that your attorney is able to present to the DA, that may be one of many things, saying, “Mrs. Johns has two kids. She’s a single mother”, and it might help in negotiations but most likely not and there’s no single mother exception. You could fill in the blanks with a lot of that single mother, someone who’s just recently lost their job, any type of sympathy, someone who’s lost a relative recently and that’s why they were drinking, someone was diagnosed with something very serious, unfortunately there’s not a lot of mercy in the courts when it comes to DUIs. So, don’t expect that to be what makes the case go away or get the charges reduced.
Q: My Medications Were Prescription, So I Don’t Have To Worry, Right?
A: Rectification: Wrong, unfortunately. If your medication, even has a prescription, is causing you to be impaired, they can go after you, if when a blood test is done and it’s shown the medication in your system is more than therapeutic amount, they can go after you. I’ve seen them going after people a lot more in medication cases, and especially when any medication has been mixed with any alcohol. So, that’s something where you want to ask your doctor and if they give you prescription medication, usually it says, “Do not mix with alcohol”, but ask the doctor if the amount that he or she has prescribed you is okay to drive on and if they say it is, you know, that still doesn’t mean that you’re immune from a DUI. Most likely there, you should be okay but you always want to double-check that.
Q: If I Was Convicted For A DUI, I Can Just Expunge It Right Away And Get It Off My Record, Right?
A: Rectification: An expungement is something that your attorney can apply for or you can apply for when your probation is over. An expungement can also be applied for before probation is over, you would need to request an early termination of probation and then, in the same motion, request an expungement on the charges. But it’s not automatic right as soon as you get sentence in court, no, because they put you on a probation in DUI, it’s 3 to 5 years, typically it’s 3 years for a reason. And that reason is to make sure that you behave, that you’re not drinking and driving, there’s no alcohol in your system while you’re driving. The wording that the courts use is that they are conditionally releasing you to the community for 3 years, and as long as you stay out of trouble and don’t get another DUI or commit other crimes, that you don’t have to do the jail time and I believe that’s six months.

They might have you do as part of your original sentence a few days picking up trash on the Sheriff’s Work program or maybe more depending on the case but they want to have you prove that you can stay out of trouble. So, what they’ll do is you’ll have six months in jail hanging over your head while you’re being conditionally released to the community. Now, every once a while a case will happen where the DA doesn’t think they have that great of the case and they might agree to allow you to do an expungement as soon as the sentence is handed down and the judge is usually in on that and it’s part of a disposition but it’s rare when something like that happens.

Q: I Blew Under 0.08 So I Should Be Fine, Right?
A: Rectification: That is a misconception because if they did a blood test later, there could be drugs in your system or your blood could come back out or over 0.08. If there’s an accident, they could be going after impaired driving. If you’re at 0.05 or higher, they can also do what’s called retrograde extrapolation and say at the time you were driving, which is what they are looking at, that you were higher and they can bring in an expert witness to explain that and convince a jury of that. So, typically, when you blow under 0.08 on the evidential test, which is after you’re arrested, they will not charge you with the DUI but I’ve seen it happened in many counties where they still go after you for one reason or another.
Q: What are common chemical tests for drunk driving in the Bay Area?
A: It’s The First Time That This Has Happened To Me, So The Courts Will Go Easy And Maybe Even Let It Slide, Right?” open=”y/n”]Rectification: Just because it’s the first time doesn’t mean they’re going to let it slide or get anywhere near the slide. DUIs are considered serious cases, they’re misdemeanors unless someone is injured or if it’s a fourth one within 10 years but think about it this way. Other countries consider DUI felonies. In Canada, an alcohol related reckless driving or any alcohol related driving is considered a felony and you’ll be barred from entering Canada for many years if you have a reckless or a DUI on your record in the United States. So, that’s pretty serious and a court will not go easy on you just because it’s your first time. Now, some courts go easier than others, some have harsher penalties than others. So, what you will find on first DUIs, which is common as all of them, if you get convicted, will put you on at least 3 years of unsupervised probation.

The lowest fine I’ve seen anywhere recently is typically around $1,800 or $1,900 and as high as $2,400 – 2,500. I typically see most counties are willing to give at least a couple of days picking up trash on the Sheriff’s Work Program some more than others, and you can be required to get some additional insurance on your person, it’s something called SR-22. So, you’re also going to have to do a DUI school, that’s 3 months DUI School. Getting less than that on the regular first DUIs is not going to happen, so no they’re not going to go easy on you just because it’s the first time. Are you going to jail on a first DUI? That’s the question that most people ask. I get a call at least every other day where someone’s saying, “What are the chances of my going to jail? This is the first DUI I’ve ever had”. And my answer to that is if there’s no accident, no injury, you know, especially no injury, an accident isn’t usually that big of a deal if no one’s hurt in regards to jail, you’re not going to jail.

I’m not allowed to promise or guarantee that but I can’t remember the last time I saw someone actually go to jail on the first DUI when there’s no injury involved and it’s just an alcohol case, or of alcohol or prescription medications or marijuana. Now, you could go to jail if in some counties, you go to trial, you lose and the judge decides that you need to do some time in jail. That could happen, I have seen this happened, not very often but in some counties, it does.

Q: I Was Drinking, So I Pulled Over The Side Of The Road To Wait It Off But The Police Officer Insisted On Arresting Me Even Though I Wasn’t Driving. I Should Have An Easy Case Though, Right?
A: Rectification: Unfortunately, no. If they can show that you were actually driving, and that’s the first time that the cops need to be able to put on the record, that the DA needs to be able to prove and you’re over the limit, then you’re in trouble. What happens is they’ll usually get some type of an admission from you and they’ll check the car and see it’s warm and find out when you left, whatever bar or restaurant or a house you were at. And if they can show that and if they get some type of admission from you or someone with you or someone they checked, then you’re in trouble. Now, I think that, and I’ve used this argument many times in negotiating cases, someone who pulls over is doing the right thing and they shouldn’t be penalized for it. The way that usually comes out is, “Well, yes. They were doing the right thing. That’s great that they did it but they shouldn’t have been drinking and driving at first place”.

I’ll usually say, “Well, look! Someone may not have felt impaired and it may have come on them and that’s why they pulled over at that time”, and that can be a defense because it’s got to be what was the blood alcohol level at the time they drive. And so, if it’s not a real high blood alcohol level, it may be a defense that works but if it’s a higher one, much, much tougher. I’ve had DAs go easier on my clients where we’ve had that discussion about the client pulling over and doing the right thing. That’s a phase that can really be helpful for my client but is it going to make the case go away? Almost never.

Q: What are common chemical tests for drunk driving in the Bay Area?
A: Rectification: So, that’s probably the worst advice you could ever follow. Everyone’s entitled to a lawyer and whether it’s a private attorney or a public defender, I would recommend that anybody charged with a DUI get a lawyer. If you don’t, you’re going to possibly wanted for the rest of your life; if you did have a lawyer, if you could have had a better result, if you could have won the case and charge is reduced, saved your job, stayed out of probation and in some cases, stay out of jail, it’s going in and just pleading guilty, sure, you can do that. There are plenty of lawyers out there who’ll just go in and pleads you guilty and take your money, but that is the last thing that I will advise anybody to do. It’s just not advisable. An attorney can look into the probable cause to pull you over; they can look at medical defenses, they can look at machine records, they can look at the blood testing that was done and machines that were use. They can look at alcohol defenses, they can use forensic toxicologists to try and win a case and win a DMV hearing, a lot of things an attorney, an experience DUI attorney can do.

So, I think I’ve made my answer pretty clear on whether you should just go in and throw yourself at the mercy of the court and tell them everything. No, the last thing you want to do. And on that note, it’s important that after you’ve been arrested, do not talk to anybody about your case especially the police officers, don’t call the DA’s office, contact an experienced DUI lawyer. You’d have confidentiality in talking to that lawyer and get them to properly advise you. DUI lawyers will almost, always and all should and I always have, give you a free consultation. If they’re not willing to talk to you for at least half an hour to an hour about your case, they’re probably not the right attorney for you. Some of them can’t talk continually when you first get a hold of them because they are in the middle of something or they have an appointment but a good one will always find time later in the day or the next day at the latest to talk to you about your case.

When you’re looking for that lawyer, find someone that you’re comfortable with, find someone qualified, who knows what they’re doing and who’s done this for a long time. You don’t want to be going on and hiring someone who is right out of law school and you don’t want to be hiring someone who has been doing this for 50 or 60 years and he doesn’t have the energy to do it. Someone in-between, find a great lawyer who has the time to talk with you, who has the time to research and investigate your case, who has the time to answer your calls, return your calls while your case is going on but don’t go in and throw yourself at the mercy of the court.

Q: A DUI Is An Impossible Battle That I Am Doomed To Lose.
A: I completely disagree with that statement. I win DUIs in court, I win them at DMV. And if I can’t win them, very often I will get the charges reduced. I will give you some examples over the last year or so. That case is a specific case when my client was at 0.30 blood alcohol level, that client was charged with DUI. I won that case in court, I got that case dismissed, and I won that case at DMV. Nothing happened to my client’s license, they do not have a criminal record, and the case was dismissed. Other examples are numerous; I could talk all day about cases that I’ve won where someone came to me and thought they had no chance of winning it at all. Recently, I won a case where the officer said my client was going over the line, we got the video in that case and we were able to show that they were not going over the line, the judge dismissed that case and I won that case at DMV not on that issue but on a different issue. I won that because the machine wasn’t registered and the officer didn’t wait long enough until he had the client blow into it again.

There are just so many defense out there and there are so many that we can use, that an experienced DUI lawyer can use. There’s no reason to go and find someone who doesn’t do mainly DUI offense because most lawyers out there who do general criminal defense are very good in that but they’re general practitioners, it’s like a doctor who does a little of everything. When you have a specialized problem, they send you to a specialist. There are a handful of DUI lawyers in the San Francisco Bay Area who do mainly DUI defense or like me, exclusively DUI offense, nothing else. And that’s the type of lawyer that you want to talk to. That’s the type of lawyer who understands the different offenses, who studies DUI law, who attends conferences all over the country, who has manuals in their office from all different areas of DUI law, the science, defenses, everything. These lawyers are trained and constantly keep up to the speed with all the DUI laws and defenses. That’s a type of lawyer you need, that’s a person who can help you when you’re feeling helpless.

I’ve had so many people coming to me and saying, “Hey, I think this is hopeless. There’s no way I can win but someone told me to talk to you”, and what I would tell him is there’s no promises or guarantees about wining; hard work, knowledge and lots of other things go into getting a better result on a DUI case than you would get if you just went in there with someone who didn’t know what they were doing or who’s not as experienced as they should be. So, find the right DUI lawyer for you. They’re out there and there are people very knowledgeable here.

Q: I’ve Researched Enough On The Internet And Gotten A Lot Of Information About What To Do About A DUI And I’ve Also Had Friend That’s Gone Through Similar Experiences. I Can Probably Beat This Case On My Own, Right?
A: Rectification: Absolutely not. You’ve got to find a qualified experienced DUI lawyer to help you out with a DUI case to have any chance of winning in DMV and in court. You’re really hoping for some of type of a miracle if you think you’re going to go in there and just make it go away on your own, it’s just too hard. And if you’ve ever heard the expression, “Don’t believe everything you read on the internet”, that’s the case here. There’s so much bad information on the internet about DUI law. Everybody’s piping up on it and yet most of those people are not experienced DUI lawyers. So, be very careful when making a decision whether or not you need a DUI lawyer.
Q: My Friend Had A DUI And They Were Intoxicated. If I Do And Say The Same Things, I Will Get The Same Results. They Pretty Much All End Up The Same, Right?
A: Rectification: Incorrect. Every case is different, every county is different, every attorney, every prosecutor, every judge is different. One of the worst things you can do is listen to a friend who got convicted, who said there’s no way that you can win this, or listen to a friend who says, “Yes. I won my case because of this or that and you should too”. Now, let the lawyer help you decide what your defenses are, let the lawyer deal with the court, with motions, with trials, with everything. Every case is different and your friends who’ve had DUI, some are real sharp, some may know what they’re talking about but most of the time, they don’t and thank them for caring about you and giving you advise or pointing you in a direction of a lawyer who did very well for them but your case is going to be different than your friend’s from beginning to end.
Q: I Have A Friend Or A Relative Who Has A Relative That Practices General Law. They Consider Them To Be A Master Of All Trade. They Can Help Me Out With This, Right?
A: Rectification: Anyone can fill out a police form and plead you guilty and you can do that yourself. I do not advise using an attorney who is a general practitioner to defend you in a DUI case. It’ll be better off with the public defender in most cases. They can help you out if you can’t afford the attorney but get a real DUI lawyer. As I said before, it’s a specialized area where we’re dealing with science, we’re dealing with case law, we’re dealing with understanding, absorption and we’re dealing with extra witnesses, forensic toxicologists, machines, blood testing, there’s a lot going on. And I would highly recommend getting someone who just does DUI law, and that’s your attorney when you get arrested for a DUI.
Q: Should Only Go With A Lawyer That Guarantees Me Success.
A: Rectification: Any lawyer who guarantees you anything, ask for that in writing and you will not get it. The lawyers are not allowed to guarantee a success. They will lose their license to practice law if they guarantee something like that. They cannot do it; we’re not allowed to do that. They can tell you that they will work their hardest on your case, they can let you know that’s what they do but they can’t guarantee a result, we’re not allowed to.
Q: A Lawyer Is A Lawyer. I Should Just Shop Around And Find A Best Deal.
A: Rectification: One of my colleagues has a saying and I’ll answer this question with that, “Good lawyers aren’t cheap and cheap lawyers aren’t good”. And you’ll get a lot of things in the mail from a lot of lawyers when you get arrested for DUI and most people will, it’s called jail mail. Most of them will charge small amounts, yet most of them never go to jury trial, never run suppression motions, we don’t see them during that in courts. Most of them will be happy to take your money and plead you guilty as quick as they can. And the reason that they charge such a small amount is because well, they can take on a lot of cases doing that and they’ll have the time to deal with you while the case was going on. I’ve seen lawyers who are cheap, show up for court with five or six clients on the same day and plead them all guilty on that day. It’s not okay and that’s what you risk when you shop.

Now, I understand that everyone cannot afford the more expensive lawyers. What you can do though is if you want a certain lawyer and they cost more than that, the cheap bargain lawyers; ask them if they’ll set up a payment plan. I will usually do a payment plan with the client and stretch it out over a number of months to make it affordable or more affordable. So, also the lawyer has quoted you a price within those couple of minute of your conversation with them, that’s someone who is trying to find out if you can afford them or not and get you off the phone and it’s not someone who’s concerned about winning your case. So, be careful with that lawyer.

Q: I’ve Already Had A DUI Before. The Result Wasn’t What I Was Hoping For. I Don’t Think Hiring An Attorney Would Be Beneficial And I Should Just Throw Myself To The Mercy Of The Court.
A: Rectification: In certain counties in the San Francisco Bay Area, for example, Marine County, if you get convicted of a second DUI, you are going to do 96 hours in a bucket, in jail behind bars and then, the rest of your penalty days on the Sheriff’s Work Program that you qualify. Other counties might make you do jail. Many of them will make you do 30 to 60 days on the Sheriff’s work program. If you’re okay with that, by all means, you’re welcome to throw yourself at the mercy of the court but it’s not going to hurt you to have a lawyer representing you, it’s only going to help you. You really need an experienced DUI lawyer on a second offense that should be looking at things like your prior conviction and all the elements of the current offense and all of the different offenses that are out there because the consequences are much, much more severe on a multiple offense DUI.

Aaron Bortel

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