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 From an emotional standpoint, a case where someone is accused driving under the influence and killing another person is one of the toughest.  With the victim, you usually have someone who did not deserve to die.  They are often young, in the prime of their lives.  They are usually also close to the driver.  The victim is often a spouse, girlfriend, boyfriend, or sibling of the accused.  Unfortunately, that person is not available to express forgiveness to the driver.
 
As for the driver, you often have a person who has never been in trouble in his life.  He may be college educated, have a great job, and a loving family.  But for this horrible incident he would have continued to be an upstanding citizen.
 
Recently, a San Jose woman pled guilty to gross vehicular manslaughter after hitting and killing a 79 year old grandmother.  She is waiting to be sentenced by a Santa Clara County judge.  Her maximum possible sentence is 12 years in the state prison.  In fact, the judge is precluded from granting this woman probation unless he finds “unusual circumstances” where the interests of justice require it.  According to statements, the family of the victim has forgiven the defendant, and believes that the victim would forgive her as well.  Unfortunately, California DUI sentencing law provides somewhat less opportunity for the Court to forgive her. 

As a former prosecutor, I can tell you that, regardless of the outcome, nobody wins in these cases.  Regardless of what side you are on there is nothing but tragedy in these cases.  An innocent victim loses her life, and a contrite survivor is cast into the hell of the California prison system.  

3/2/2009
Mindy
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Wouldn’t it be nice if you could fool breath testing devices when pulled over for a suspected DUI?  An email has been widely forwarded that basically claims that sucking on a penny or a breath mint will help a suspected drunk driver defeat a breath test.  However, this claim is false.

Many people have made the assertion that various substances or objects placed in the mouth can improve the reading on a breathalyzer test.  Some of these items include pennies, Listerine Breath Strips, Icebreakers gum, Binaca spray, Certs, Tic Tacs and Clorets. 

People have claimed that a mouthful of pennies could negate the test because of the presumed copper content.  Pennies held in the mouth in no way lowers the BAC reading on a breath test.  Mints and gum can help cover the scent of alcohol on the breath, which could help if a police officer has pulled you over, but it will not change your BAC results from a breathalyzer.

According to Snopes.com, a man actually tried the penny trick, but it did not work.  When an East Hampton man was pulled over for drunk driving, the police officer found that he was sucking on a penny.  The driver had a slurred speech and couldn’t stand up straight.  He failed all of the standard sobriety tests.

Breath testing equipment uses a ratio when converting alcohol in the breath to alcohol in the blood.  In most states, if you have a blood alcohol content (BAC) of .08 percent or above, you will be considered to be driving under the influence (or driving while intoxicated).



Category: Keyword Search: DUI

2/9/2009
Mindy
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The Georgia immigration law from 2006 is going un-enforced.   The immigration law, which was meant to crack down on illegal immigration has been called one of the nation’s toughest because it orders local governments, contractors and subcontractors to confirm the legal status of new hires.  It also has a provision addressing illegal immigrants who have been arrested for driving under the influence (DUI) in Georgia.

Based on this 2006 law, illegal immigrants arrested for DUI in Georgia, must be reported to immigration authorities.  However, supporters of this law do not feel confident that this provision is being taken seriously.  Proponents believe that the state government has not been enforcing the law and no one at the state level has checked to see whether governments and businesses are complying.

The DUI arrest provision of the Georgia immigration law, which requires jailers to check the legal status of anyone booked on a felony or a DUI, has had some problems.  For example, someone who has been arrested for DUI in Georgia may post bond to get out of jail before the feds are called to hold that person on immigration violations. 

“There is no state oversight of any of this stuff,” Terry Norris, executive vice president of the Georgia Sheriff’s Association said.

Some believe that this law has not been properly enforced because of a lack of accountability, as the Legislature never provided money to monitor the law.

“As far as any enforcement responsibilities under the law, we don’t have any,” said Labor Department spokesman Sam Hall.

Hall said that the agency offered to conduct random audits, if it received funding.  He even said that the agency posted guidelines on its website.  According to Hall, there is no central agency that has the authority to monitor who is complying with the law.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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A DUI conviction in California will result in automobile insurance problems.  From the requirement of obtaining SR22 insurance, to renewing insurance policies, it is inevitable that automobile insurance rates will go up dramatically upon renewal.  In the alternative, the insurance company can elect to not renew the policy at all.

It is lesser known that a DUI conviction in California can effect other insurance policies as well.  You may be surprised to find out that your life insurance premiums may go up based on a DUI.  Since life insurance premiums are based on health conditions and life expectancies, a company may decide that a DUI impacts those factors.  The theory is that alcohol abuse reduces life expectancy by years and creates potential health problems.

In addition, disability insurance qualification or premiums can be affected by a DUI conviction.  Private disability insurance replaces income in the event of an illness or injury which prevents you from working.  Premiums, like life insurance, are based on your health condition.  A DUI can cause an increase in premiums, cancellation of a policy, or a denial of a policy.

It is important when you are facing a DUI charge to consult with a qualified California DUI attorney who can guide you about your various insurance concerns.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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A DUI conviction in California carries with it penalties and consequences.  For aliens, a conviction, or even just an arrest, has additional consequences.

One of the eligibility requirements for naturalization is that a person must be of "good moral character" for five years prior to submitting an application.  Generally this means that an alien must show that he or she has not violated any laws or pursued conduct that was inappropriate.

This, of course, includes a DUI conviction.  It may also include a DUI arrest which resulted a plea to a lesser included offense.  An alien can not be on probation at the time a naturalization aplication is filed. 

If an alien has the DUI conviction expunged, or erased, from his or her record, the conviction is still relevant for purposes of immigration.  In other words, it must be revealed to the immigration agency.

A qualified DUI attorney competent in immigration can advise an alien as to the effect of a DUI conviction on a naturalization application, and the options that are available to the alien.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You have been charged with a DUI in California.  You have a court date coming up.  You were not driving at the time the office came up to you.  How can you be charged with "driving" under th influence?

There are actually several ways this can happen.  The most common way is that the officer was following you and observing your driving.  You perhaps made some errors, swerving, driving too slow, no turn signals, or some other traffice violation.  Perhaps there is a mechanical defect with your vehicle.

Another way to prove you were driving under the influence is if you were "called in" by another driver or pedestrian via cell phone.  The officer will receive the tip, and then locate you.  If you are still driving, he will follow you and make his own observations.  If you have stopped, and the person who called you in is reliable or known, he will come up to your car and begin the process.  At a trial, the person who called will have to be a witness in order to show probable cause  for the officer to detain you and administer sobriety tests.

Finally, it comes down to location, location, location.  Unless you can prove someone else was driving, your presence in the driver's seat with the car engine off on the side of the highway could be sufficient to prove you were driving.

There may be other ways to prove driving as well.  It is the job of the District Attorney to prove beyond a reasonable doubt that you were driving.  If it is an issue, don't handle it yourself.  Contact a qualified California DUI attorney to tackle your case.  If it can't be shown that you were driving, you can't be convicted of a DUI in California.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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"I've been asked to get out of the car - do I have to?"  Yes, or you will likely be arrested.  If the officer pats you down, do not physically resist.  At this point, the officer has most likely determined you are under the influence.

The officer may then ask to search your vehicle.  You have the legal right to refuse the search if you choose.  The officer can not arrest you simply for refusing to consent to a search of your vehicle.  If the officer has probable cause to believe you have committed a crime, your car can be searched without your permission or a warrant.  However, if the officer improperly searches your vehicle, and finds evidence in the car, it can be excluded at trial.

Now that you are out of the car, the next phase in all likelihood are the field sobriety tests.  What happens next?  Stay tuned.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Field Sobriety tests are subjective tests designed to determine if you are impaired to drive a vehicle.  They are subjective because the officer is the one who decides if you pass or not.

The purpose of the tests is to evaluate your motor skills and coordination, as well as your mental attention and ability to process information and instructions.  If the officer asks you to do these tests, can you say "No?"

You have the legal right to refuse to take a field sobriety test, even if the officer does not ask your consent.  At any time, you can simply tell the lawyer that you wish to speak to an attorney first.  You can not be forced to do the tests.

The conventional wisdom of DUI attorneys is that, even if you take the tests, you will fail.  The tests can be failed even when one is completely sober.  They are completely subjective.  In all likelihood, the officer has already decided you are impaired.  Refusing to take the tests may result in your arrest, but the failed tests won't be a part of the record.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Whether you passed or failed the Field Sobriety tests is based totally on the officer's personal observations and impressions.  There are a number of factors that influence how you do on the tests, having nothing to do with whether you have consumed alcohol.

How even is the pavement?  Is the pavement gravel or concrete, or something even less, like dirt?  Is there traffic passing by as you're doing the tests, stopping or slowing to watch you?  How's the lighting?  Is it a street light, or the officer's flashlight?  How's the weather?  Are you shivering or shaking because you can't coordinate yourself, or because you are freezing?  What are you like - are you obese, elderly, or have physical impairments of your limbs, back, eyes or ears?  What kind of shoes are you wearing?

This is where writing everything you remember during the stop down as soon as possible helps.  An experienced DUI attorney can use this information to diffuse any negative impact of the tests.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Okay, you've been arrested and released.  You are now charged with DUI.  You have written down everything that you can remember that happened during your stop by the California police officer.  You hire your attorney.  Your attorney gives you a copy of the police report. 

As you are reading through the report, done on a computer template, you notice that much of what is there is not true.  Why?  Because police officers are using pre-written arrest reports in DUI cases. They are writing out a batch of similar reports detailing intoxication  symptoms like red eyes, slurred speech, odor of alcohol.  Also, the "details" of failed field sobriety tests, checking off procedures properly done, and the inevitable failure on the tests.  Really all the officer is doing is simply filling in the names, dates, etc., when they actually make an arrest.

With computer templates and word processing forms which have all of the “facts” already entered, with blanks to fill in for name, date, place, a busy officer has no choice.  The question is what you can do about it.

This is the reason why you need to write everything down as soon as possible after your arrest.  A good DUI attorney will know to intensely question the officer, who, several months later, will have to rely exclusively on his canned report, and won't be able to go beyond the report.  Don't let the officer get away with his laziness.  Your right to an accurate report is crucial to defending yourself.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You've been charged with DUI.  You think your worst case scenario is the minimum standard punishment:  two days in jail, fines and probation.  Can it be worst?

Yes.  In California, there are options called "enhancements" which could increase your sentence based on a variety of factors.  Speeding is one factor, especially if you are clocked at 20 or 30 miles per hour over the speed limit. 

Another factor is whether there has been an accident, even an accident where no one else was involved.  A judge may also look at whether you had minor children in the car, which could also include a child endangerment charge.

There are other factors as well, and a judge can increase jail time or fines, or even the type of alcohol program, based on the factors.  These factors could also be used as a wedge to get you to plead to a DUI with the basic sentence in lieu of a trial.

A DUI attorney can help you go through the factors, and determine how to deal with each one effectively.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Once you have been taken to the police station in California, you will be asked to take a test to measure your blood alcohol content.  Can you refuse to take the test?

In California, as well as other states, there is an "Implied Consent" law.  The law states that by driving a motor vehicle in California, you have already given your consent to take a test.  Going back on your word by refusing to take a test will result in your driver's license being suspended for a longer period of time. 

The officer will read you an advisory about the test, and in this advisory is the warning about the consequences of not taking a test.  Pay attention to the advisory, and look to whether the officer correctly communicated your rights, misleads you, exagerates the penalties, or makes any threats or inducements.  If he or she does, then a judge may throw out the results of any test you decide to take.

The decision is ultimately yours.  If you believe you are not intoxicated, take the test.  If you are unsure, or are quite intoxicated, and are not concerned about the loss of your license, then you need to weigh the test versus the consequences of not taking the test.

 



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You have just been released from jail after your arrest for DUI.  You will now be charged by the District Attorney, and you will go to court.  Besides the emotional costs that you are now suffering, there are other costs to prepare for.

The obvious initial costs will be hiring a DUI attorney.  Even if you choose to fight the DUI on your own, there are other costs to expect:  Fines, penalties and surcharges.  The costs of a DUI alcohol treatment program.  The costs involved in losing your license, and in getting your license back.  You may have to install an ignition interlock device.  Your automobile insurance will go up.

What can you do to avoid these costs?  The best way to attempt to avert these costs is to not go it alone.  Hire a qualified California DUI attorney immediately, and try to keep your costs limited to the legal fee.  Hopefully, if you are successful, the other costs will go away.

Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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They look so simple.  Easy tasks to perform.  You're sober anyway.  You can't fail the Field Sobriety tests. Wrong.  How can you fail one of the tests?  Let's look at some possibilities.

Nystagmus test:  The officer wil check your eyes.  You fail if your eyes are trembling or jerking as you follow the officer's finger or a pencil.

Standing on one leg test:  Easy, right?  The officer will look for failure such as beginning the test too early, losing count, losing your balance, falling over, or displaying poor coordination.

Walk and turn test:  Again, you fail if you start too early, step off the imaginary line, lose count, or put any space between your heel and toe.

Finger to nose test:  Close your eyes, extend your arms, and touch your nose with your finger.  You fail, obviously, if you miss your nose.  Also, you fail if you start too early, have trouble keeping balance, or have any muscle tremors.

Short of falling down, the officer will look for any failure, however insignificant.  A California DUI attorney can go through these tests at a trial to show a jury just how impossible they are.

 



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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In California, a DUI stop results in field sobriety tests.  I've discussed certain factors which affect the results, including the pure subjective aspect of them.  There are also other factos affect a performance.

Imbalance during the tests can be caused by various factors.  Weather conditions such as wind, extreme temperatures, a slippery surface, and rain.  Shoes, whether they be the height and shape, or the material of the show.  Illnesses, such as a cold, arthritis, physical injuries, age, or othe defects.  Emotional considerations, whether it be anger, embarassment, nervousness, and other feelings.

Another factor can be caffeine, which has an adverse effect on the tests in combination with alcohol, making one's muscular coordination and timing suspect.  In addition, there is the "circadian rhythim" or in layman terms, the biological clock.  Doing the tests late at night or early in the morning effect performance, as does jet lag.

A DUI attorney will look into whether any of the above factors apply, and further place into question the validity of the field sobriety tests.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You're driving home, and out of the blue an officer stops you.  You've done nothing wrong.  What happened?  In this age of cell phones, you probably were "ratted out" by an informant.  It has become more common in California for another motorist to notify police of a possible DUI.  You know, that motorist you accidently cut off, or the one who was behind you when you swerved slightly.

While informants are important, an officer still needs a reason to stop you.  However, since the officer is now observing you closely, any Vehicle Code violation will suffice to initiate a stop.  In some cases, where the informant is reliable or known to the police, that may suffice for a stop by the officer.

 



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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The Second District Court of Appeals in California has ruled that boaters who are arrested for DUI in their boats, can not lose their driver license to operate a motor vehicle.  California law treats DUI boating the same way as motor vehicle DUI, including the same alcohol limit of .08.  Boaters can be sentenced up to six months on a first offense, and required to take a boater safety course.

However, you don't need a license to drive a boat.  The Department of Motor Vehicles was suspending a person's driver's license for boating under the influence.  No longer, says the Court, because no law in the Vehicle Code allows it.

Look for this to trigger activity in the California Assembly.  A previous attempt in the assembly in 2004 failed.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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California law enforcement, looking for potential drunk drivers, can have their job made easier by how the driver uses his or her driving skills.  Detecting a potentia drunk driver at night is evidenced by some of the following driver mistakes:

  1. Accelerating or deaccelerating quickly
  2. Inappropriate or constant use of brakes
  3. Barely miss hitting an object or another vehicle or pedestrian
  4. Being too close to the center line or lane marker
  5. Drifting in one's lane
  6. Inappropriate signalling, or no signalling at all
  7. Tailing another car too closely
  8. Stopping at the wrong place
  9. Driving too slowly, at least 10 miles per hour under the speed limit
  10. Not having headlights on
  11. Weaving on the road
  12. Making a turn too wide
  13. Making sudden inappropriate turns
  14. Drive into opposing or cross traffic

The above mistakes don't mean a driver is intoxicated, but they do ensure a road side stop by law enforcement.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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In order to obtain a conviction for DUI in California, you must have sufficient control over your vehicle, i.e., driving.  You do not have to be driving a vehicle at the time you are confronted by law enforcement. 

One possibility for "sufficient control" is being seated in the driver's side with the engine running.  You could also be charged if the engine is running, and you are seated in the passenger side.  If you are in a vehicle on the side of the road, and unconscious, you coud be charged with DUI.

An informant could have contacted the law enforcement and notified them of a possible DUI.  You could have just parked in your driveway, and exited your vehicle when you are stopped by law enforcement. 

The possibilities are endless, however there must still be evidence showing that you were driving.  Sometimes this is simply a normal stop on the road.  Other times, a prosecutor needs to be more inventive.  A good DUI attorney will make sure that the prosecutor meet their burden with corroborating evidence.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You've been arrested by the California law enforcement for DUI.  They've taken your California driver's license, and handed you a piece of paper.  You have 30 days to drive before your privileges are suspended.  What do you do then?

A temporary restricted license authorizes drivers to drive a car for limited reasons.  These reasons usually involve driving to and from the work place.  They can also be other places, if allowed by the DMV, such as school, substance abuse treatment programs, or doctor appointments for a dependent person or self.

To be eligible for a temporary restricted license, you must not have any other nonDUI related suspension of your license.  Your "hard suspension" of 30 days must have elapsed.  You must have auto insurance (including SR22 reporting).

It's a hassle to obtain a temporary restricted license, but necessary if one needs their vehicle.  The consequences of driving while your license is suspended for DUI are far worse.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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The California State Assembly is considering a new bill, AB2784, which would force California judges to impose a sentencing requirement given hard-core offenders: ignition interlocks.

Ignition interlocks are breathalyzers placed in the vehicle that measure a driver's blood alcohol concentration. If a breath sample registers above a pre-set level, the engine will not start. These devices were originally developed for chronic drunk drivers with high alcohol levels.

Proponents of the bill claim the measure will fight the drunk-driving problem by keeping dangerous drivers off the road.  However, mandating interlocks for first offenders doesn't focus on those dangerous criminals.

Other states are lobbying for mandatory interlocks in every car in the state. Indeed, some car manufacturers are developing new interlock technology that could be manufactured as standard equipment. The federal government has approved a $10 million grant to promote development of this technology. 

As the popularity of punishing DUI offenders grows, the California Assembly is simply following the rest of the country.  In doing so, the rights of every driver are at risk.

Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Once a California law enforcement officer determines that you are under the influence, and arrests you for DUI, disposition of your vehicle becomes an issue.  The officer has the option of impounding your vehicle.  On a first DUI, impoundment is not likely.  The officer will usually immobilize the vehicle or tow the vehicle temporarily depending on where the stop is.

A second or subsequent DUI puts the vehicle at risk of impoundment.  A court can ordered impoundment, but can also make exceptions.  Obviously, if you don't own the vehicle, the Court cannot order impoundment.  In some situations, you can be allowed to drive an impounded vehicle if the court orders it, your driving privileges are not suspended, and an ignition interlock device is installed.

To save your vehicle, and to avoid loss of the vehicle, it is wise to consult with a DUI attorney.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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Summertime is here, and more and more people are heading to the waters of California.  Take your friends out on your boat, and bring along alcohol.  Before you do this, you should be aware that in California, Boating DUIs carry penalties similar to those for automobile DUI, including possible jail time, fines, a boating safety program, and driver's license suspension.

In addition, a boating DUI is counted as prior DUI in the future.  In other words, if you have a prior DUI, it can be used to enhance punishment in a second DUI.

To assist a police patrol boat in stopping your vessel, such actions as turning your craft too fast, or turning it aggressively, losing control of your vessel, having violations in your vehicle equipment, speeding, not using safety equipment, and other law violations, will ensure a stop. 

The same DUI defenses that a San Francisco DUI attorney would use in an automobile DUI can be employed:  the field sobriety tests, the chemical test results, and who was actually driving the vessel, among other things. 

While drinking in a boat is legal, driving impaired is not.  If you are stopped for a boating DUI, treat it just like a regular automobile DUI, and find a San Francisco DUI attorney to assist you.  Enjoy the summer, and be safe.

 



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You've been found guilty of, or plead guilty to, a DUI.  The judge has sentenced you to do at least two days in jail.  However, "jail" can mean many things, if the judge allows it, in San Francisco.

The most common sentencing alternative is the Sheriff's Work Program.  You can schedule it at your convenience.  It involves somewht physical work, such as cleaning up streets and sidewalks in San Francisco, or on the highway.  You check in in the morning, and go home at night. 

Another possibility is community service.  If you have physical limitations or injuries, you can do work in an approved community service program.  This involves little or no physical labor, and could also be used to pay some of the DUI fines.

Electronic monitoring is used for sentences that are significantly longer than two days.  They allow some flexibility, and freedom.  You can go to work, do your counseling program, and basic living chores, with some limits.

Work furlough is also available for longer sentences, and allows you to go to work each day, and then go to jail to sleep.  The main advantage to this program is that you get to keep your job and earn money.  However, you pay for the work furlough program.

Overall, there are alternatives to basic jail time.  Contact a San Francisco DUI attorney to get the program that suits you best.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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You've just been released from jail after a harrowing night.  You've been stopped, subjected to field sobriety tests, humiliation, breath tests, and handcuffs.  What do you do next?

The first thing you need to do is read that pink paper that the officer gave tp you.  This is your temporary driver's license.  On the back of this paper, in small print, are instructions on how to challenge your license suspension.  You only have ten days to contest the suspension from the time of your arrest.  If you don't do anything, your license will automatically be suspended! 

In California, the DMV suspension hearing is different from the court date you were also given when you were released.  That date, which is your arraignment, will allow you to get a copy of the charges against you, and the police report.

A wise thing to do is hire an experienced San Francisco DUI attorney immediately.  Let that attorney handle all the deadlines.  An experienced San Francisco DUI attorney knows the labryinth of time requirements and forms that need to be done.  But don't delay.  You only have ten days.



Category: Keyword Search: DUI

11/17/2008
Anders Johnson
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In evaluating a possible resolution of a DUI charge, a qualified San Francisco DUI attorney will see whether a reduction of the DUI charge to a wet reckess is possible.  A wet reckless is an inside term for an alcohol related reckless driving charge.  It is no different from a DUI charge in that it can be used in future DUI charges to increase the penalities for ten years.  Insurance companies will treat a wet reckless as a DUI for rate considerations.

The benefits of a wet reckless are considerable.  There is no mandatory license suspension.  There may be no Offender's Program, or a shorter program (if available).  Also, there are benefits to certain offenders who have licenses in the state that could be impacted by a DUI conviction.  Jail time may be reduced or nonexistent.  Finally, the fines and fees imposed are generally half of what could be incurred with a DUI conviction.

Obviously, you should have a qualified San Francisco DUI attorney examine your case to determine if you qualify for this option.  If you are looking at a DUI charge alleging priors, this option becomes even more important.



Category: Keyword Search: DUI