Frequently Asked DUI Questions
A DUI arrest in the Bay Area can be a confusing and frustrating time. Here, you will find a few of these common questions, and what you can do to get your case on the fast track to resolution. Being handcuffed, arrested, booked, and jailed have likely forced you to endure the worst hours of your life, so we are ready to be your voice in a complex and often unsympathetic legal system.
That last question, trust, it’s a very difficult thing for many people because a lot of people don’t trust lawyers, and how do you know if you can trust someone that you have just met? This is why getting a referral from someone who is represented by the attorney can be one of the best ways to get started. But again, how many people are going to tell you that they had a DUI? People don’t want to admit that. So, finding the right attorney means finding someone you are comfortable with.
After you have talked to them over the phone, if you are close enough to their office, go in for a meeting face-to-face. That’s the best way to get to know someone, look them in the eye. Do they have the time to spend with you and talk to you about your case? A lot of times, attorneys get busy. You want to find the attorney who gets busy because they are working hard on their DUI cases.
Good DUI lawyers will go to trial. The ones who are not so good will just plead everybody guilty. So, if a DUI lawyer is in trial and can’t meet with you until the trial is over, make an appointment with him and if it seems like one that you may really want, hold off on hiring that one. They or their office can help you with the deadlines until you have actually met with that attorney.
See if you can establish a trust, see if they are going to be able to handle your case themselves from beginning to end, which means from first contact or first meeting in court to hearings, potential trials, the DMV, starting off the hearing and getting the right hearing officer for you, continuing the hearings at DMV if it needs to be continued, keeping me driving while the case is going on.
These cases can last many months, sometimes well over a year. You want to be able to keep driving while this is going on. Some attorneys are better than others at doing this; ask them about that. So, you develop the trust, you see what their experience is and the questions to ask them about experience are, “What type of law do you do?”
You want someone who does DUI defense exclusively, and who has doing so a long time. Look for someone who can tell you about similar cases and know when to promise you how the case is going to come up where they can give you a general idea of what you may be looking at. They may not be able to do that until they have actually seen a police report, which could take some time, but find out as much as you can about their experience, about their relation with the judges, the prosecutors, also find out what organizations they belong to.
Any DUI lawyer that you should hire should be a member, at least in San Francisco Bay Area, of the California DUI Lawyers Association at minimum and they should also be a member of a national organization that the best known one is the National College for DUI Defense. I’ve been a member of both of those organizations for many, many years.
What that usually means is that they are on these listservs with local and national attorneys who are focused on getting the best results for their clients in every case and so they are up-to-date on the newest defenses, the newest laws, ways to win, things to avoid, and so on. When you get an attorney who doesn’t do that many DUIs or doesn’t do mostly DUIs with their practice, you’re asking for a lot of problems and results that may not be nearly as good as if you have an experienced DUI lawyer.
You should also look at their rankings. One website that most people look at these days which has a lot of reviews to see is avvo.com. They have been around for a number of years now and they have a rating system. It’s not a perfect rating system but generally the top DUI lawyers will have top rankings with that site and you can read the reviews that clients have left about the attorneys.
A lot of people have found me and other very good lawyers through that site. Some of the other review sites specialize in an area like AVVO, they specialize in attorneys. That’s what they do, that’s what they rank. Other ranking sites, some of the ones that are out there, they have different algorithms that make it very difficult for a lot of clients to leave rankings on.
Something like Yelp is not going to be the best place to get a real good feel for an attorney, it might be good for a restaurant or something else but not necessarily for the attorney. I would recommend anybody to look at reviews on AVVO and attorneys review other attorneys there, clients review attorneys there and you can see the attorney’s experience.
I think in the end what you have to really do is trust your gut and that would tell you a lot. You got along with your life by trusting your gut and this is a very important decision, it’s your constitutional rights, it’s your liberty, this is your criminal record and this is your future because getting a DUI, getting convicted of a DUI can set you back in a number of different ways – employment, driving, financial, so a lot of negative effects of a DUI conviction.
Trust your gut, find an attorney you are comfortable with, talk to them a lot and that’s the best way you could do. There is no black and white here, there is no magical formula to find the right attorney but talk to at least two or three. Once you start talking to five, six, ten, getting up there, you are just going to get confused.
See what they say about your case, see what advice they give you. If somebody says, “I was just involved in a DUI, let’s go right away and start doing meetings and do all the stuff on a first DUI” when it may not be appropriate to do that, in some cases, it is, but someone who is just telling you to do that may not be giving you the best advice and make sure the attorney gives a free consultation.
There is no reason to charge someone for a consultation. It probably means that they are just too busy doing other things and probably not just DUIs, they probably have a civil practice where they do that and so a free consultation should be something that any top-rated DUI lawyer would offer.
Let’s start with the DMV hearing. A public defender’s office or a private defender’s office if it’s acting like a public defender’s office will not be any help at the DMV hearing – they cannot conduct the hearing, they cannot request it, and they don’t do anything on that for you, so you are on your own with your license. You want the same attorney, if possible, to be doing your DMV hearing as well as your court case.
A public defender is someone who defends the public. Their clients are usually people who have very low incomes, and they have very high caseloads. The state pays for a public defender and are in charge of the budgets of these offices, and there is not a lot of money there. So, you have got someone who has got way too many cases and who just can’t spend the time that a private attorney can with you on the case. It comes down to numbers. A private attorney who is a very good DUI lawyer may have 20, 30, 40 cases; a public defender is going to have hundreds and hundreds.
They can be great attorneys but it’s an issue of time, and DUIs are very complex cases that involve science and public defenders are not always as up to speed on experience as an experienced DUI lawyer would be in that area. They don’t go to the conferences all over the place like some of us do. They don’t have the resources. Additionally, they may not always have the funds to get the expert witnesses that are needed.
In regards to judges, if you go into court, depending on which county you are in, the judges are more than happy if you plead guilty or no contest, which is the same as a guilty plea for the purposes of the conviction. They won’t say a word but most judges will tell you that you should get a lawyer, that you should not defend yourself on a DUI case because they understand how it can affect you.
They also understand that their defenses are complex. They involve science and they involve needing a legal background. There is a whole discovery process that involves breath machines and blood testing or retesting, video and observation, understanding what’s sufficient probable cause for an officer to pull you over, there are a number of different areas in the law where an attorney should be evaluating your case, researching and investigating your case.
There are some things that most people try to do themselves and, in some cases, can probably do a good job; however, do you really want to try and do this by yourself? There are a lot of different analogies, but you can have a deep wound and you can try and get whatever particles are stuck in that wound, clean it out, get whatever out of it, bandage it up and hope everything is okay but then you want a doctor to take care of something like that or someone experienced in the medical field. I would. Same thing with a DUI.
I’ll make sure it’s done right, that the best job possible is done because it will affect your life for many years potentially. Judges know that these DUIs are usually misdemeanors but they could be felonies depending on the severity of the case and they know that’s why most of them will advise you to get a lawyer. Having ones who don’t, they will want to hurry their calendar along, they may not give you that advice, but you should get a lawyer.
If you cannot afford an attorney, get a public defender, put up a fight, and make the prosecution prove their case against you. I will give you an example of why this is important. I just got off the phone with the DMV, I was starting some hearings that I had been requesting over the last week or so, and I put in my request and got everything in the computer, when I sent it in and they called us on the actual hearing day on one of my cases because I had requested a hearing. The client would not have done this unless he had hired me.
The police had not sent in the DS-367, the report that goes to the DMV, which results in a license suspension. Because we requested the hearing, it looks like we are getting this. It’s been 45 days, and it looks like they may be setting aside any potential suspension. Good news!
That kind of thing happens when you request hearings. Sometimes, the blood alcohol level comes back under a 0.08. If you haven’t requested a hearing, you may still get suspended. So, just having an attorney looking at things can make a difference, not only in a court case but in a DMV case as well.
Unfortunately, usually when you get to court in most cases, it’s been more than 10 days since your arrest and if you haven’t contacted an attorney, you’ve got problems. If you don’t request a hearing or have an attorney do it within 10 days of your arrest, that’s 10 calendar days the day after your arrest, count the day after your arrest, count it day 1, if you haven’t done that after 30 days, your license automatically goes into suspension.
What that means is that if you do refuse to blow after being arrested for a DUI – I’m not talking about the preliminary alcohol screening device that they have on the side of the road before they arrest you because they usually cuff you after you’ve blown in that or if you are at or over the 0.08 legal limit – if you refuse to blow, even if you win your court case, it’s get dismissed, you went to trial, the DMV will still take action against your license and suspend you for a year or more.
Now, you have a right to a hearing if you refused to blow into the evidential device, which is the device which will take your blood test after you’ve been arrested for the DUI. If that hearing is requested within 10 days, you get the hearing; you have some of the toughest hearings to win. I win my DMV hearings, as far as I know, as much if not more than other DUI attorneys in the area. I’m told that I have a very good record that everybody knows. I don’t keep track of how many I win, but I do know that when they are winnable. I do everything possible to win it and I also know that the refusal hearings are some of the toughest ones to win.
The chance of the police making mistake on a refusal DMV hearing, the chances are a longshot and I just only won last week but the police messed up and they did not admonish my client properly, in fact, they admonished them of the Miranda rights right before they admonished them on the right to parole or giving them admonishment. They had their choice of test after they had arrested them and did, basically, what’s called officer induced confusion.
Your best option in most cases, unless you do not need your driver’s license, is to take the test once you’ve been arrested for a DUI, breath or blood or reasons for taking one or the other, but you do want to submit to the tests in California. If you refuse, not only are you potentially going to lose your license for a year but now they will hold you down and do a forced blood test.
Judges have always been able to issue warrants for this, but now we’re seeing it a lot more often. If you refuse to take a test, they are still going to take your blood, so you lose your license for a year, potentially, and they will have a number to try and convict you with. If you do not take a breath or a blood test, there is also the consciousness of guilt that could be used against you. Why wouldn’t someone take a breath test or a blood test? Well, there are plenty of reasons but that can be used against you. It’s a tough decision but refusing is usually not your best choice.
If you decide not to do them, let’s say, and I would never advise doing field sobriety tests, I would respectfully decline to do these tests and that’s what I would. If someone asks me, “Should I do them?” No, because all that does is that gives them more evidence to use against you. “I’m sorry, officer, I respectfully decline to do these tests, I’ve been told by a lawyer that I am not required to do these and I should not do these tests.”
These are tests that were designed for people to do who are in good shape without being tired, having a police siren in the background or flashing lights in the background, an officer with a flashlight in your face. In perfect, calm conditions these are tests some people can do, but a lot of people can’t do them even then. You’ve never practiced these tests, don’t do them if you don’t have to. If you don’t do them and you don’t take the breath test, if they smell alcohol in your breath, will probably arrest you, take you to the station and ask you to do an evidential test, breath or blood. You have to do that one.
If you take the breath test at that point, and you’re below the limit, most likely you will win your case. They will either let you go, they are supposed to, they can still go after you for impaired driving if you are, let’s say, may, depending on the county you’re in, if you’re at an 0.05 or higher. Not all police officers can do that. But if you do these tests and if you fail them, which was your original question, you will get arrested for a DUI and they will be able to use how you did on these tests against you.
I worry more about the results of the breath and the blood test than I do with field sobriety tests, because with field sobriety tests we can show everything that our clients did correctly and also show that they never practice these. How many tests have you taken where you’ve never been allowed to practice at once or given the rules for it? It’s not fair.
If you do these tests and you don’t look balanced on your heel-to-toe, you’re stepping off the line, you’re putting your foot down on the one-leg stand repeatedly, if the officers see the involuntary jerking of the eye when they are bringing their finger out to your shoulder length 45 degrees, those are things that they will use against you.
It just gives them more evidence that they are not entitled to that unless they can try and gather it. They are not supposed to tell you that these tests are not required, that you don’t have to do them and they don’t and there is really no remedy for the officer telling you about the test being your choice, being voluntarily.
In San Francisco and some other places they have been doing this for over a year now. If you tell the officer you had two drinks and you have a result breath or blood test over the limit, they are going to add on an additional charge, vehicle code section 31. That is giving false information to a police officer, which if you have immigration issues, jobs, lying to a cop is not something you want on your record. We can almost always get that charge dismissed if we do anything to go to trial but it is a very difficult thing to deal with if you’re convicted of it.
You should respectfully decline to answer, but if you did say, “I only had two beers” and they do their thing and do the field sobriety testing and the blood testing and they see that you are over the limit, the way we respond to this in dealing with the prosecutors or dealing with the jury is this, “That’s what most people say, that’s the standard answer” and we bring in a forensic toxicologist who is an expert witness in the trial situation to say exactly what I said before that most people who are arrested for a DUI underestimate the number of drinks they had and overestimate how long ago it was.
It’s better to say, assuming that’s what happened, that you just finished the drink recently, it’s still absorbing in your system this way and it gives us a better defense on a rising blood alcohol level if that’s what happened. But if you’re testifying or if the testimony of scientific evidence shows that you did have more than two beers, we can deal with that by just saying we’re getting testimony that says, whether it’s from you or an expert witness. A lot of people on a jury could relate to that.
If I’m going to tell the cop I had six or seven or eight beers over the last two or three hours, sometimes people do say that, better off not saying what you had, respectfully declining. But there are ways to defend that. It does create a problem with DMV because there used to not be a problem until a number of years ago when we have had our clients testify and DMV started saying, “Well, now you are testifying to five beers and you had your expert testify about what your blood alcohol level would be with five beers and what you would be at the time of driving and yet you told the cops, “two beers.”
So, since you lied or changed your story, even though you are under oath now and you weren’t back on the side of the road, were your expert witnesses not credible because you’re not credible? It’s just this bogus excuse that DMV has come up with, but they use it all the time. It makes us not want to have our clients testify and just use our forensic toxicologist and expert witness at the DMV hearing to talk about the scientific evidence and the margin of error on the machines or rising blood alcohol levels. It’s something that an experienced DUI lawyer will know how to deal with properly.
The way to hear “not guilty” or “case dismissed” is to hire a lawyer who fights. What that means is we start from the beginning, which is entering a “not guilty” plea at the arraignment and that means we start the discovery process. One of the first areas with a good, experienced fighting DUI lawyer will look at is the suppression motion and that’s did the cops have sufficient cause to pull you over and do a DUI investigation.
If they do and we are not able to win the motion, we look at the next area where we can try and win the case. We’ll see if there is a medical defense, see if we have got a rising blood alcohol defense, a margin of error defense, or see if there is something that can help us show that you were not impaired at the time of driving and that you are not at or over 0.08 at the time of driving.
So checking machine records, checking the blood testing process that was done, checking video if it exists, looking at the police report, if there are witnesses, talking to witnesses, if there are passengers in the car, it may be helpful to talk to them, witnesses at the accident scene, talk to them, a lot of different areas where we can investigate and do the discovery process. Hard, thorough work is what gets us the results.
Now, more often than not in a DUI case, you still may end up pleading guilty to something, which means we are not getting a “not guilty,” we’re not getting a “case dismissed,” but we are very often getting the charges reduced.
If we cannot convince a prosecutor to dismiss a case or if we cannot win the case on a suppression motion, getting a judge to make a ruling in our favor to suppress the evidence which usually results in the DA dismissing the case, then what we are looking at is a trial. That trial can be either in front of a judge or a jury and almost every case we won it in front of a jury, maybe if it’s a technical issue that we can win on and a judge may be better when they go that route – those are very few and far between, though.
Put the case in front of a jury, work extremely hard to prepare the trial, prepare the witnesses, prepare everything and try and establish reasonable doubt, those are all the strategies of winning a DUI trial but the bottom line is, that is very often your best chance of winning the whole thing how right is the trial and that takes an experienced, aggressive DUI lawyer. So, it’s a question that I ask an attorney, “Are you willing to go to trial in this case?” That attorney should be willing to go to trial on any case because that’s what we do when our client needs us to do it or wants us to do it.
Very often we are going for our best chances but if the client wants to go to trial, we go to trial and you can’t win a case in most cases without bringing a suppression motion or without going to trial or without doing an amazing amount of investigation or getting medical records and testimonies showing that your client does have some type of a condition that is making it look like they are at or over the legal limit at the time of driving. So, it’s a very difficult thing to do to get a flat out win in a DUI case but it is possible, not in every case, not in those cases but it is possible and that’s why you go for it.
Not passing the attitude test, being a jerk to the officer, being combative, being argumentative, those things are all things that will get the cops or officers upset with you and if they have a decision to make whether to let you go or not or to continue an investigation, they are going to hold that against you and you are in a lot more trouble if you have not passed the attitude test.
So, be cooperative, respectfully decline to do their tests, and respectfully decline to answer their questions. Once arrested, do the chemical test but if you do a refusal, it’s often a very big mistake. Telling them what you had to drink, things like that, don’t give them any evidence that they need. After you have been arrested and released, top mistakes that you make that jeopardize your DUI case are hiring the wrong lawyer or lawyers, you’ve got to be careful about that.
There are a lot of ways to find the right lawyer and I’ve talked about these before – experience, aggressiveness, knowledge of the county that you are in. There are a lot things that you need to do to find that. If you know someone who has had a DUI, ask them who their attorney was, if they were happy with them, how things came out but, again, find the right lawyer for you and other things, don’t talk of the facts of your case or that you got a DUI with anybody who doesn’t need to know.
Don’t talk to the insurance company until you’ve talked to a lawyer first if there is an accident, especially if there is an injury. Those conversations can be used against you, e-mails for the people involved, who was there and things like that. If you make admissions, those are things that the discovery process can dig it up. You’ve got confidentiality with an attorney even in initial consultations. So, use the attorney to guide you. Even if you are not hiring that attorney, most good attorneys will give you solid advice. Hire the right person, talk to the right person, the right attorney I should say.
What I would recommend people to do is to have a handheld breath machine they keep in their car, make sure it’s working properly, don’t get an old, cheap thing but get something that’s decent. There are plenty of companies out there who have two of them and blow in the machine before you drive your car and make sure it’s been quite some time after your last drink and make sure you are nowhere near the legal limit when you drive.
If you blow in a 0.07, don’t go and drive. Think about it before you get behind the wheel. Don’t give them a chance to pull you over. There is nothing that happens that’s so important that it’s worth getting a DUI. What people often think is, “Oh, if I have one drink an hour, I’ll be okay.” You don’t know. You don’t burn off alcohol at one drink an hour, you burn off less than a drink an hour.
You should also learn what a drink is. About four ounces of red wine, 12 ounces of a beer, not a micro-beer, more like 4% or 5%, an ounce and a quarter of 80-proof alcohol, very small amount, people will call it a small shot. You’ve got to understand what the limits are, you’ve got to understand if you are only a little higher than 120 lbs., you cannot drink as much as someone who weighs a lot more than you.
Again, I keep going back to finding the right lawyer and knowing what your rights are. Those are, when you’re dealing with cops, know what your rights are, things that you say to cops are going to help them in your case. What tests should you take? That’s a tough one. If you do a breath test, there is no way to retest that breath sample. If you do a blood test, it can be retested, so people will often say that blood testing is more accurate, but you can’t retest it and there could be things that cause blood to ferment if it’s not properly refrigerated or other ways that that can happen, not enough preservative in it. There are just so many different things that can go wrong with your blood before it’s tested.
Blood is drawn in the hospital depending on the method used. There are a lot of different things that can help. The problem is that people aren’t thinking about these things. Most people will not have read the things that we are talking about, the questions you are asking and my answers before getting a DUI and even if they do, they probably won’t remember because being pulled over for a DUI and dealing with the officer or officers is a traumatic experience. It’s something that hopefully most people never have to go through and those who do, hopefully, they never have to go through it again.
VC 23152: Alcohol and or Drugs: (a). It is unlawful for any person who is under the influence of an intoxicating beverage, or under the combined influence of an alcoholic beverage or drug to drive a vehicle.
The second part of this complicated law is laid out in:
VC 23152 (b): It is unlawful for any person who has a .08 percent or more by weight to drive a vehicle.
“Under the influence” is a rather unclear definition. Lawmakers attempted to clarify the definition in 1970 (CALJIC 16.831) as:
(A) person is under the influence of intoxicating liquor when as a result of drinking such liquor his physical and mental abilities are impaired so that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.
Even today there remains serious confusion about the actual wording of the law and how it can apply to your situation.
- The time the subject began drinking
- The amount, type, and rate of alcohol consumed
- The amount, type, and rate of any food eaten
- The time the subject stopped drinking
- The weight and gender of the subject
- An indication of the tolerance and drinking experience of the subject
- Physical observation of the subject at the time
- The state of the subjects physical and emotional condition at the time
This is one reason why you should never submit to any roadside sobriety tests. The information the police gather on the roadside can be used to show you were “under the influence”.
- Entering your not guilty plea to begin your legal fight
- Setting a new court date for motions and conferences
- Requesting discovery on machines, witnesses, and investigate the case
- Contacting expert witnesses and interviewing witnesses
- Requesting blood retests
We pursue every option possible to reduce the amount of time you have to spend in the courtroom. You can get on with your life, and leave the fight to us.
Breathalyzer: This test involves blowing into a machine in order to determine one’s blood alcohol content. A breath machine is supposed to measure air from deep in your lungs. Breathalyzers are notoriously inaccurate, and have been known to pick up alcohol on a person’s breath (such as from mouthwash or alcohol False readings can result from burping or gastroesphogeal reflux disease [GERD]) even though one is less than .08%. Even though the legal limit in California is .08%, many district attorneys now prosecute less than .08%
Blood alcohol tests: Blood is drawn in order to determine what percentage of it is alcohol. These tests attempt to directly measure the blood alcohol content (BAC) of a person suspected of driving drunk in the Bay Area. The blood drawn goes into a vial containing a preservative. Blood can be retested, breath cannot.
Urine tests: As of January, 1999, urine tests are not given unless:
- The officer believes the driver is driving under the influence of drugs or drugs and alcohol, or
- Blood and breath tests are unavailable, or
- History of hemophilia, or
- Taking anticoagulant drugs in conjunction with a heart condition
- Car insurance rates
- Court costs
- DUI school
- Attorney costs
- Expert witnesses such as toxicologists, doctors, etc.
- Medical examinations and testing for conditions such as Gastroesophageal Reflux Disease (GERD) etc.
- Accident reconstruction
- Blood retesting
The severity of your case can affect the costs you must pay. Repeat offenses, property damage, and injuries can add up to many thousands of dollars in additional costs.