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.

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.

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.

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.

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.

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.

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.

The first thing the officer will do is ask you to show your drivers livence, registration and proof of insurance.  You can refuse to give that information, but it is legal for the officer to search your vehicle in any location within the passenger compartment where he or she believes that a drivers license or vehicle registration may be located. 

The officer during this time is observing you for "traditional" indicators of intoxication, such as an odor of alcohol, bloodshot or watery eyes, slurred speech, flushed face, or you fumbling to find your vehicle information.  Keeping your information easily accessible will help avoid the latter observation.

You then will be asked if you have consumed alcohol.  You can refuse to answer, however, your refusal to answer is not sufficient evidence to arrest you.  No matter how you answer, the officer at this point suspects you were driving under the influence. 

He then asks you to exit your vehicle.  What do you do next.  Stay tuned . . .

The most common reasons are as follows:

1. Driving on or over the lane divider


2. Drifting into the other lane


3. Making a wide turn


4. Making an illegal turn


5. Weaving


6. Braking frequently


7. Nearly missing an object in the road, or another vehicle


8. Driving very slowly, below the speed limit


9. Swerving


10. Driving at night with your headlights off


11. Not making a turn signal, or having your turn signal on inappropriately


12. Stopping in the middle of the road


13. Accelerating or deaccelerating too fast


14. Following another vehicle too closely


15. Speeding

And the list is endless.  Which is why is is important to be careful driving, especially at night, if you have been drinking, and to not drive at all if you really have had too much to drink.  A reason for a San Francisco police officer to stop you can be a small infraction, but the consequences can be expensive.

Nationally, fifteen percent of adults admit driving under the influence of alcohol in the previous year.  In Wisconsin, the percentage is 26.4 percent, and Minnesota, Nebraska, North and South Dakota follow close behind.  The South and Utah have the lowest percentage, 11 percent and under. 

Possible reasons for the disparity include religion, as well as a heavy emphasis on drinking in social activities.  The report indicated that states need to review their approach to alcohol and driving, even Utah, where 10 perent of the adults in the survey admit to driving under the influence.

A side note:  California was below the average, but not by much, in a range of between 13 and 15 percent.  The National Report indicated that their report supports other previous studies showing a heavier than average drunk driving rate in the Upper Midwest.

Three things to remember.  First of all, know your car.  If you are uncomfortable or unfamiliar with the car you are driving, your chances of driving erratically or making mistakes increase.  Take a moment before you go out, and make sure you know where all the devices are in the car, get your seat and positioning set, and get an overall feel for the car.  Taking a few seconds to do this will save money in the long run if you are stopped later on.

Know where you are going.  Many of my DUI clients get stopped because they got lost, and made a wrong turn.  At 3 a.m. in the morning.  Before you start driving, know where you are going, and how to get back home.  Getting lost will lead to errors in your driving, and getting stopped by law enforcement.

Finally, avoid sobriety checkpoints.  While law enforcement is legally required to notify the public of where and when checkpoints will be, you may not have gotten the memo.  Check the newspaper or website before you go out.

San Francisco is a beautiful city, and its nightlife is varied.  Taking these precautions will make your night excursion safe, and hassle free.

Understanding Supreme Court decisions is never easy. What often sound like sweeping rulings are inevitably based on legal technicalities?usually boiling down to a question about the intended definition of a certain word or phrase.

Although the case of Begay v. United States is no exception, the question before the Court could not be more fundamental: is drunk driving a violent crime? In the words of the court, does it ?involve purposeful, violent, and aggressive conduct toward another person??

Many anti-drunk driving groups, most notably MADD, would have us think so. In fact, MADD?s mission statement calls DUI a ?violent crime.?

Does the Supreme Court agree?

They do not.

Here?s some background on the decision:

The Armed Career Criminal Act (ACCA) is a federal law that imposes a mandatory 15-year prison sentence for firearm possession when the individual has three or more prior convictions for certain drug-related offenses or ?violent felonies.?

In September 2004, Larry Begay, a New Mexico resident, plead guilty to unlawful possession of a firearm. Begay had been convicted of DUI six times, and New Mexico law makes a fourth DUI a felony, giving him three prior felony convictions. The judge concluded that Begay?s prior DUI convictions constituted ?violent felonies? and sentenced him to the mandatory minimum prison sentence of 15 years.

Begay and his lawyers appealed the decision, arguing that DUI does not qualify as a ?violent felony? under the federal Act. Several years later, Begay?s case reached the Supreme Court.

The ACCA defines a violent felony as ?burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.?

The Court interpreted the law as defining a violent felony as more than simply something that ?presents a serious potential risk of physical injury to another.? In light of the law?s specific list of criminal acts?burglary, arson, extortion, the use of explosives?the Court concluded that the definition of ?violent felonies? was meant to include only crimes that involve ?purposeful, violent, and aggressive conduct toward another person.? According to the Court, DUI doesn?t qualify.

Predictably, MADD was unhappy with the decision.  

Every since MADD changed its name from ?Mothers Against Drunk Drivers? to ?Mothers Against Drunk Driving,? the organization has been careful to maintain the appearance that they hate the sin but not the sinner.

However, MADD?s criticism of the Supreme Court betrays this façade. In the organization?s collective mind, those convicted of drunk driving are in the same category as burglars and arsonists.

Like the majority of the Supreme Court?including some of its most liberal and conservative members?I must disagree.

 Several years ago, I noticed that many of my Fairfax, Virginia, DUI cases were being won or lost depending on how the Judge and/or the Police handled the use of Preliminary Breath Tests.   Just last week, I had another case, in Fairfax County Circuit Court, where the Judge dismissed the case based on how the Cop handled the PBT. 

 This test, called "the PBT", or, as I call it, "the Portable Breath Test", is used at the scene of an arrest to help the officer justify his decision for "probable cause" for the arrest.   The device commonly used in Fairfax is called an Alcosensor IV made by Intoximeters, Inc.   This is not the same as the final breath test, which is usually given down at the jail on a machine called "Intoxilyzer 5000".  

 Virginia law has a lengthy section that outlines the use of the PBT and whether it can be used at trial.   First, the law passed by the Virginia State Legislature says that the results of the PBT cannot be used against us in a prosecution under the DUI laws.   Then, there is caselaw that says that the results of the PBT can be used as evidence against us under certain circumstances, particularly when the Defense raises the issue of probable cause.  

So, now, we have some Judges who will admit the PBT results and come who don't.  If they admit the PBT results, they are almost certainly going to make a finding of probable cause any time there is a PBT result of .08 or more.    In other words, if there is a PBT, we probably lose the probable cause motion every time.  Without a PBT result, probable cause has to be judged based on the officer's testimony as to the appearance of the defendant, including his statements, driving, and performance on various roadside tests-- the so-called "field sobriety tests".

 In my case last week, we were fortunate enough to have a video which showed my client doing pretty well on the sobriety tests up to the point where the officer offered him the PBT.   In offering the PBT, we then heard the officer, on tape, saying "this is not admissible in court".    The officer didn't make any distinction, as in the caselaw, between "a prosecution" and a "probable cause hearing", and the Circuit Court Judge refused to allow the PBT result in evidence.  

 We cut off the Video at that point, and the Judge had to make his ruling on Probable cause based on the remaining evidence.   Without the PBT result, the Judge ruled in our favor on the probable cause issue, and dismissed the case.   The case never proceeded to the point where the final breath test of .11 could be offered into evidence, and the case was dismissed in spite of the fact that my client blew a .11 on his final breath test.  

  Click on the highlighted link to read more about Fairfax  County DUI  Lawyer  Paul  McGlone.

The answer is, not much.  If you are stopped in land controlled by the National Park Service, you can be charged with a DUI if you are under the influence of alcohol or drugs which render you incapable of safe operation, or have an alcohol content of 0.10 (or less if state law is more restrictive).  It is a Class B Misdemeanor and is punishable by six months in jail, fines up to $5,000, and probation up to five years.

On any other federal owned land, the laws of the individual state apply, and one is subject to state and federal punishment.

If you are stopped on federal land, you need to consult with a DUI attorney familiar with the federal laws and procedures to help you through the process.

Here?s the text of the California Vehicle Code, which lays out these two separate offenses.

Section 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

What?s more, if you?re arrested for DUI, you?ll most likely be charged with both crimes.

You?re probably thinking to yourself, ?Hold on. I thought driving with 0.08% BAC was driving under the influence. Why am I being charged for the same thing twice??

If you?re confused, you?re not alone. In fact, a client of mine who was recently arrested for DUI in San Francisco asked me this very question. I represent people from around the Bay area?San Francisco, Daly City, Oakland, San Jose?and this is just one of those confusing aspects of DUI law that I try to help all of my clients understand.

So, what is difference between the two offenses?

Well, for simplicity?s sake, think about it this way: The second offenses?the so-called ?per se? offense?is based on blood alcohol (BAC). The first offense, on the other hand, is based on impairment: the degree to which alcohol has diminished your coordination and cognition, that is, your ability to drive safely. Field sobriety tests, for example, are meant to be test of impairment.

One could argue that there should be two different laws because BAC and impairment are two different things. Two people with the same blood alcohol content may not be impaired to the same degree. We all know that some people?s tolerance to alcohol is far greater than other?s.

Here?s where, I?m sorry to say, things get even more confusing.

Even though BAC and impairment are, in principle, two different things that require two different kinds of proof, the results of a chemical test at the police station are potentially enough to convict you of both crimes. Even though the first offense is based on impairment, the state doesn?t need any evidence of actual impairment?such as slurred speech, the results of a field sobriety test, etc.?to convict you of driving ?under the influence.?

However, the good news is that, if you?re convicted of both offenses, you will still only be sentenced for one.

For an extended discussion of the two drunk driving offenses in every state, read the article ?Why You?re Being Charged With Two Offenses.?  

The IDLC is an agreement between 45 states to communicate about driving-related crimes, including DUI convictions.  The states agree to notify each other of a DUI conviction.  Some states take action on your license only after being notified of a DUI court conviction.  Some states will only take action if the burden of obtaining a criminal conviction in the other state is equal to that of the home state.  Some states may add penalities and other states may impose lesser penalities.

If you receive a DUI in Georgia, Massachusetts, Michigan, Tennessee, or Wisconsin, no report will be forwarded, as those states are not part of the Compact. 

It takes a good DUI defense attorney to advise you about the consequences of a DUI outside of California.

What exactly are these tests, and what do they purport to show? One test is the Walk and Turn Test.  During this test, the officer asks you to take nine heel-to-toe steps, stop, turn, and take nine more heel-to-toe steps.  While performing the test, the office looks to see if you can folow instructions, maintain balance, and stay on a designated line.

Another test is the "One Leg Stand test.  During this test, you will be asked to stand with your heels together, and your arms at your side.  The officer will then ask you to raise one leg six inches off of the ground and count out loud until told to stop.  The office looks to see if you lose balance, sway, or put your foot down.

A third test is the Nystagmus Test.  During this test, which is also called the horiontal or vertical gaze test, the officer will hold an object, like a pencil, about 12 to 15 inches from your face.  The officer will then move the object from side to side while watching your eyes.  The officer is looking to see if your eyes involuntarily jerk or tremble.

Sounds easy?  Even if you swear you did the tests correctly, and passed them, the officer will disagree.  It will take a good DUI lawyer to sort through the tests, the officer's procedures, and the results, in order to dispute the officer's final grade on your tests.

It's not a sure fire conviction, but it raises issues that require a good DUI attorney to combat.  Don't assume you are safe if the car is off, and you're not driving it on the road.

As if the California DUI laws aren't strict enough, this proposal would serve only to increase the costs to the individual DUI defendant, costs which are already astronomical.

Does this make sense?  The purpose of Proposition 36 is to not assist people with addictions, but also reduce the court caseloads in California.  However, California courts have held that the purpose of the DUI laws is to impose criminal consequences for driving a motor vehicle while impaired. 

Thus, in California, the only "treatment" one gets after a DUI is the alcohol offender program.  Hardly the kind of treatment that some people may need.  And with no "reward" or incentive, such as dismissal of the DUI charge, to encourage successful completion and long lasting results.

But in their defense, it?s no fun to be played for a fool, especially by a bunch of teenagers.

When police received a call complaining of cars blocking the road, a few offers were dispatched to the scene. What they found when they got there was unmistakable, or so they thought. A car lined street, loud music, a house full of high school students drinking from red cups, loud music, drinking games, a keg?who wouldn?t jump to the conclusion that the house was full of drunk minors?

Much to their surprise, the police found that the keg was full, not of beer, but of root beer?1919 Classic American Draft Root Beer, to be precise.

It?s hard to blame the police officers for feeling like they had been set up. Clearly, the party was a prank, and they were the intended victims. 

But the way they proceeded to handle the situation suggested an inability to take a joke.

The poor sports lined up some 90 teenagers and breathalyzed every single one. 

Their rational seems to have been that, if they could find at least one partygoer who was drunk?and it seems likely that at least one would have brought some liquor to the otherwise sober party?then they would save face. That or they were simply pissed off and wanted to arrest someone.

The result: teenagers 1, police 0. 

To their supreme disappointment, no doubt, the cops kept coming up with 0.00%. 

Teenagers, in general, are not the most organized creatures on the planet. So who was the mastermind behind the root beer kegger? 

His name is Dustin Zebro, an eighteen-year-old student at the local high school. He got the idea for the party after a few of his friends were suspended from sports when the school found pictures of them drinking from red cups. 

His point? Don?t judge a beverage by its container.  

Point made.

Another problem is the testing itself.  When a blood sample is taken, a white powder is placed in the base of a testtube.  This powder prevents coagulantion and preserves the specimen.  The accuracy and reliability of the powder is critical to determining the validity of the test result. 

The attorney should always order a sample of the blood for independent testing to have a forensics laboratory determine if any of the above problems occurred with the blood sample, the blood testing, or even if the blood sample is the client's! 

An Ignition interlock device (IDD) is a machine that can be installed in your car, which will prevent your car from starting unless you pass the machine?s built-in breathalyzer test.

In most States, IDDs are reserved for repeat offenders, or for those whose blood alcohol level was substantially higher than the legal limit. 

The California state assembly is currently considering a bill that would make these devices mandatory for all DUI convictions.

Lawmakers who support the bill argue that IDDs are the most effective way to prevent convicted drunk drivers from continuing to break the law, and that the bill would save a great deal of money and great many lives.

Assemblyman Todd Spitzer provided this forceful, albeit somewhat frightening analogy: "We have the ability to put a police officer in the front seat of every single car in California.?

Opponents of the bill, chief among with is the American Beverage Institute, argue that the bill is unfair, mandating the same punishment for offenses of different severity. 

"You wouldn't punish someone driving five miles over the speed limit the same way would someone driving 25 miles over the speed limit and that's what we think this bill does," said Sarah Longwell from the American Beverage Institute.   

There are currently four other States that require ignition interlock devices for all drunk driving offenders: Arizona, New Mexico, Illinois, Louisiana. 

I recently had a client come in to discuss his new DUI.  He wrote down everything he could remember, and brought it to me.  The details were helpful to evaluate the police officer's actions and statements, how the FSTs were conducted, the surrounding environs of the arrest area, and the client's statements that were made. 

So, if you are faced with a DUI, remember to write down all that you can remember, while you still remember it.  It'll be valuable down the road.

If Representative Bill Lippert, Chairmen of the House Judiciary Committee in Vermont, gets his way, the new limit would drop to .05%.

The motivation behind Rep. Lipper?s proposal is to ?send a very serious message that impaired driving is not tolerated on Vermont roads.?

If the proposal becomes law, Vermont would be in a category by itself within the United States. However, Vermont would have plenty of international company. 

The illegal limit is .05% in Australia, Austria, Belgium, Bulgaria, Croatia, Denmark, Finland, France, Germany, Greece, Israel, Italy, the Netherlands, Portugal, South Africa, Spain and Turkey. Some countries have even lower limits: .03% in Poland and .02% in Norway, Russia and Sweden.

For an interesting contrast, consider that, in some U.S. States, the zero tolerance limit is as high as .02%. This means that minors can legally operate a vehicle with a BAC lower than .02% in these states. 

So, what would this mean for Vermont drivers? Essentially, it would mean that drivers would no longer be safe in telling a police officer that they had ?one or two drinks.? Most DUI lawyers encourage drivers to say this, if true, because one or two drinks will not yield a BAC over the legal limit.

With a legal threshold of .05%, anything more than one drink could possibly result in a DUI (depending on the usual factors: gender, weight, amount of time between drinks).

The legal limit has been lowered several times in the last few decades?from .15% to .10% to .08%. And there?s nothing to prevent it from being lowered further. 

If Rep. Bill Lippert?s idea is enacted into law, Vermont may well be the harbinger of a new nationwide drunk driving limit.

The easiest evidence a district attorney has is a blood test.  Lacking that, the state is forced to show a person is under the influence by looking at the person's driving,  Erratic driving patterns.  Tell tale signs of being under the influence of a drug.  Field Sobriety tests.

A typical police officer will not be able to testify as to whether a driver is under the influence.  Typically an officer with training will be called in.  These officers are called Drug Recognition Evaluators, and must follow specific procedures to evaluate the driver. 

In California, you will need a qualified defense attorney to make sure procedures were followed, and be prepared to question the final results of the officer. 

On Tuesday, March 11^th, the city of La Mesa, California, held a ceremony honoring its Mothers Against Drunk Driving DUI Officer of the Year.

This otherwise unremarkable event became a bit of a spectacle?with flavors of both irony and hypocrisy?not because of the officer being honored, but because of the person giving the honor: La Mesa mayor Art Madrid.

On February 20th, less than a month before the ceremony (and on a Wednesday for crying out loud), Mayor Madrid was discovered by police lying flat on the sidewalk?intoxicated to the extreme?several feet from his idling SUV. It is not clear that he had been driving, however, since a city employee was also found, in a similar state of impairment, sitting in the driver?s side of the car. (It is not known what these two were doing prior to being found by police, but it would appear that they were enjoying themselves.)

Despite the obvious fact that someone was clearly guilty of DUI?and that both were drunk in public (an understatement, to be sure)?the police promptly drove them home, without so much as breathalyzer test or citation. 

It?s difficult to make sense of cases such as these, when police officers and public officials are the lucky recipients of blatant favoritism. And this happens surprisingly often: simply perform an internet search for DUI news, and you?ll see what I mean. 

Our common sense (and, possibly, our knowledge of Constitutional law) tells us that laws that are selectively enforced are inherently unfair.

I hope that things change. I hope that DUI I laws and DUI law enforcement will become more fair?rather than more politicized, more hysterical, and more inequitable.

Maybe then it won?t be as essential to people to fight, tooth and nail, for the rights that they are guaranteed.

But until then, it is essential. It is essential for you to educate yourself about the law and your rights. And it is essential, above all, that you find an experienced DUI attorney who will go to bat for you.

Judges, politicians and police officers might not need to, but?until things change?you do. 

If you are convicted of a DUI, the Court may order an ignition interlock device as a condition of probation.  This could be from six months to three years.  The Court will ususally impose a requirement of an ignition interlock device in a second or subsequent DUI.  Also, if you are driving a vehicle while your license is suspended for a prior DUI, an ignition interlock device is mandatory. If you are convicted of a first DUI, the Court will usually not impose an ignition interlock device requirement unless there is a high blood alcohol content test result, or some other considerations the Court feels warrant such a requirement.

Sometimes, a person may choose to have an ignition interlock device on a voluntary basis to offset a one, two or three year license revocation.  There may be other reasons to agree to an ignition interlock device, such as a condition of release from jail pending a DUI trial, for example.

A good DUI attorney in California will have this option available in his arsenal of weapons to protect you after an arrest for a DUI.  It sounds corny, but the ignition interlock device could be your friend, not just an inconvenience.

The first way to appeal is to appeal directly for an administrative review of the decision of the hearing officer.  The office that reviews the decision is the DMV itself in Sacramento, California, with a nonlawyer DMV employee.  The request for a review must be made within 15 days of the decsion, and be accompanied by a fee of $125.  The chances of success?  Slim.

The second way to appeal is to file a Writ of Mandate in your local county Superior Court.  The Attorney General's office represents the DMV, and a judge reviews the Writ.  Your chances of success are much better, and if you can show a likelihood of success on the merits, and that you are not a danger to the community, you may get your license suspension stayed.

Perhaps this seems like a hassle to the first time DUI offender.  But it may not be.  And for those who are facing more serious suspensions, it is necessary.

If a person under 21 has a breath alcohol content over 0.01, a no tolerance policy in California kicks in, and the young person can be charged with a DUI.  If that person has a BAC over 0.05 and under 0.08, he or she can also be charged under California Vehicle Code section 23140, which requires a ONE YEAR suspension of their California driver's license.  One can get a limited license only after showing hardship, such as needing to support a family, having an ill family member, and there is no alternative transportation available.  Suffice to say, getting such a license is rare.

In addition, a person under 21 must take the Preliminary Alcohol Screening test, while an adult driver can refuse such a test.

A young driver under 21, facing such obstacles, is wise to seek the advise of a California DUI lawyer as soon as possible to try and reduce the consequences of these laws.

Here?s yet another recent bill that creates harsher penalties for DUI convictions in California:

In late February, assemblyman Mike Feuer introduced a bill that requires an ignition interlock device (IDD) to be installed on any vehicle that is owned or operated by a person convicted of DUI. Mothers Against Drunk Driving (MADD) and the California Highway Patrol are the sponsors of the bill.

Currently, IDDs are a common penalty for those with prior DUI convictions. This bill would require all offenders to pay for the installation, rental fees and maintenance of these devices, which can amount to a costly monthly expense.

Assemblyman John J. Benoit (R-Bermuda Dunes) recently introduced a bill, which is likely to become law, that beefs up California DUI laws in a number of areas:

• Under existing law, if an intoxicated driver causes great bodily injury to a victim, the driver can receive a maximum of 6 years in state prison. However, if an intoxicated driver causes a fatality, the maximum sentence is, strangely, only 4 years. The new bill would make the make the maximum sentence 6 years for both offenses.
• The bill also makes repeat DUI offenders ineligible for probation (meaning that a second DUI would automatically result in a prison sentence). It also adds 3 years in prison to the sentence for a subsequent conviction.
• Currently, if a person were convicted of BUI (boating under the influence), prior DUI convictions would result in harsher penalties. The converse, however, is not true: prior BUI convictions do not result in a harsher sentence for a DUI.  The bill would change this, allowing prosecutors to enhance DUI charges if the defendant has prior BUI convictions. The bill also increases the statute of limitation on prior BUIs from 7 to 10 years, which is the current statue of limitation for DUIs.
• According to present DUI law in California, a person arrested for DUI can choose between taking a urine, blood or breath test at the police station. However, the urine test cannot adequately determine the amount of drugs in a person?s system. The bill would remove the urine test as an option in an effort to facilitate the prosecution of drugged drivers. 

Almost without exception, DUI laws nationwide only move in one direction: toward harsher penalties. And California?as we have seen in this, and previous, blogs?is no exception. As laws get harsher and more complicated, two things happen: the potential consequences of a DUI arrest become more devastating and, consequently, the need to find an experienced DUI attorney becomes more dire. 

It?s a relatively unknown fact that many states have two different levels of DUI??standard? and ?excessive??determined the driver?s blood alcohol level. Those convicted of excessive DUI are typically penalized more harshly.

The .08 percent that most people are familiar with is for a standard DUI. In California, an excessive DUI currently requires a BAC of .2 percent, more than double the standard level.

Recently, California State Senator Jenny Oropeza (D-Long Beach) introduced a bill that would lower the threshold for excessive DUIs from .2 to .15 percent.

This change was recommended by the National Highway Safety Administration, and would make California?s DUI laws essentially identical to many other states in this regard. Lowering the threshold is also supported by research indicating that 58 percent of DUI deaths involve drivers with a BAC of .15 or higher. 

California?s current law prompts judges to consider imposing harsher sanctions on those with an excessive BAC, including ignition interlock devices. IIDs are often reserved for those with multiple DUIs, but first time offenders can be required to install them in their vehicles if there BAC was above the level for excessive drunk driving.

The DMV hearing is thus crucial.  However, the "hearing" that you have has some obstacles which you must overcome.  FIrst of all, the prosecutor at the DMV hearing is . . . the hearing judge.  Really.  In addition, the hearing judge is not a lawyer or even a real  judge, but rather an employee of the DMV.  The hearing judge is evaluating your case while at the same time introducing all of the evidence against you.  In addition, evidence presented at the DMV hearing is for the most part reports of the officers, without the officers present.

Do you bother to fight at the hearing?  Of course.  DMV hearings can be won.  A lawyer can subpoena officers to appear at the hearing.  A lawyer can object to all the reports as hearsay, and these objections can be granted, making the DMV judge reverse any suspension.  If all else fails, the hearing gives you ample information for the criminal case to follow, and the weaknesses of the case for both sides.

The moral of the story?  Have the DMV hearing, irregardless of what your feelings are about the success of such an action.  The best thing that can happen is you win.  The worse thing that can happen is you garner information to fight the DUI criminal charge.  In other words, it's a win win.

Work release:  If you have a significant amount of time to do, you can go to work by day, and sleep in jail by night.  This allows you to keep your job during this difficult period of time.

Electronic home monitoring:  This program keeps you at home and work, and living a relatively normal like, except for that ankle bracelet you're wearing.

Rehabilitation programs.  If you have a serious alcohol or drug problem, a rehab program can be credited toward jail time, and at the same time, you obtain benefits from a quality program.

Sheriff work program or community service:  This option gets you outside to help clean up the community or work in a community program.  It can be used not only for jail time, but also as an alternative to some of the fines.  Some of this may be laborious, but in the end, you go home after you're done.

1.  Every glass of beer, shot of liquor, or glass of wine can increased your breath alcohol concentration by about 0.02 percent.

2.  Not only are there problems with the breath tests, but your blood tests results can ferment, increasing the reading artificially.

3.  Even if you have a driver's license from another state, you still have to request a Department of Motor Vehicle hearing within ten days, or your license will be suspended by your home state.

4.  For every drink that you have, it takes at least one hour to eliminate that drink and it's alcohol from your system.

5,  Many things can effect the results of a breath test, including a tongue piercing, which holds alcohol in the mouth.

As I noted before, the above facts point out the need to hire a qualified DUI lawyer to help you here in California and San Francisco.  Don't try to go it alone.

1.  Which DUI offender program you are ordered to go to by the Court depends on the BAC result, whether it's a first, second, or subsequent DUI, or a wet reckless (driving reckless with alcohol involved).  You can be ordered to a 3 month, 6 month or 18 month program.

2.  When the Court orders you to jail, there are alternate sentencing options available to straight jail time, such as electronic monitoring, a sheriff's work program, or community service.  These options usually involve extra fees that must be paid.

3.  Refusing to take a breath or blood test at the time you are arrested will automatically suspend your driver's license for one year.

4.   In California, there are no scores available for a field sobriety test.  Rather, your success on the tests is the subjective opinion of the arresting officer.

5.  To ensure a "successful" breath test at the police station, an officer must observe you for 15 minutes before administering the test.  This is to make sure you don't burp, vomit, or otherwise do something that will skew the result.

More DUI fun facts next week. 

1.  If you are stopped by a police officer in San Francisco, for example, you can refuse to take the field sobriety tests. They're optional.

2.  In the  Bay Area, most car rental companies will not rent a car to you if you have a pending DUI.

3.  If you are arrested in California for a DUI, and had a prior DUI in the last ten years, you will be charged with a second offense DUI.

4.  If you are arrested for a DUI in California, you only have ten days to request a hearing before the Department of Motor Vehicles regarding your driver license.  If you don't, then you will automatically lose your license.

5.  In California, if you are arrested for DUI and your license is taken away, you will lose your license for ONE YEAR if you are under 21 years of age.

These fun facts show the importance of finding a DUI lawyer in the Bay Area who knows the laws inside and out. 

More fun facts tomorrow. 

1.  The probationary period of the conviction is completed.

2.  All of the conditions of the probation have been met, i.e. fines paid, jail sentence done, treatment program completed successfully.

3.  There are no other pending criminal cases, or criminal cases where probation is still active.

The advantages of expungement is to be able to say "no" to the question of whether you have ever been convicted of a misdemeanor when applying for a job.  However, expungement does not prevent the State from charging a new DUI as a second offense if within the 10 year period after the first DUI.  It also does not preclude admission of a conviction in immigration cases or some licensing applications.

T. Kevin Wilson's client was arrested by a Fairfax County Police Officer and accused of Driving Under the Influence of Alcohol and/or Drugs in violation of 18.2-266 of the Code of Virginia.  Her blood was drawn and an analysis performed at the Department of Forensic Science suggested three distinct drugs were present.   

Virgiinia DUI / DWI law permits a Circuit Court to enter an order allowing certain persons to withdraw blood in a DUI / DWI case.  However, the law in question requires the Circuit Court entering the order to act on the recommendation of a licensed physician.  In this particular case, the order which was presented to the Fairfax County General District Court as authorization for this particular blood draw had been entered by the Fairfax County Circuit Court in 2005, but was not on the recommendation of a licensed physician, as required by Virginia law.  As a result, the blood test was suppressed and the DUI / DWI case was dismissed, adding this particular client to the list of satisfied clients for T. Kevin Wilson. 

Since the court order authorizing many people to withdraw blood which was used in this case was entered by the Fairfax County Circuit Court back in 2005 and was still being used, it is reasonable to assume that other lawyers must had cases involving this particular order and failed to recognize the defect in the order.  If that assumption is true, the failure of those lawyers to recognize the defect in the order may very well have resulted in their clients being unjustly convicted.     

Miranda rights, which inform a person of the right to remain silent, the right to an attorney, and notificaiton that anything that you say can be used against you in trial, are only required once a person is in custody, and not free to leave.  The failure of an officer to read a suspect those rights can result in all statements made during custody to be suppressed at a trial.

However, a person stopped on the road and initially questioned by an officer, is not in custody.  While one could make an argument that you are not free to leave, and technically in custody, the courts in California and elsewhere have determined that in mosts cases, the statements you make prior to arrest are admissible.

So what do you do?  You have a right to say nothing when you are stopped.  However, the problem with this is that if you are not intoxicated, you will be arrested anyway.  It is a conundrum that besets everyone when the officer turns his siren on.  If you ARE intoxicated, and know it, silence would be golden.  Many cases in California and the Bay area that I have seen involve statements made which clearly indicate intoxication.  And these statements are admissible.  Take the arrest, and let your attorney work on fighting the breath or blood test and the field sobriety tests, versus the statements you wish you had never made.

This can be a hidden consequence for a non-citizen client who pleads guilty to DUI with the aggravating factor of transporting a minor 17 years or under.  Many attorneys are not aware of the extreme consequence to the non-citizen of just pleading him or her guility to DUID or DUI with a passenger 17 years of age or younger in the vehicle.

Have you or someone you know been arrested for DUI or DWI?

No matter where you live?whether in San Francisco or Austin, Denver or Baltimore?if you?ve recently been charged with driving under the influence, the first thing that?s taken away from you is not your driver?s license.

It?s your peace of mind.

The feeling of insecurity that comes with not knowing what to do or what?s going to happen is one of the most painful aspects of a DUI charge.

Does this feeling sound familiar?

There are two things that you can do to regain your peace of mind.

• First, and most importantly, find a experienced DUI attorney who?s an expert in DUI a law?someone who knows the process, knows the system, knows the laws, and knows how to fight for your rights.  There?s nothing like the feeling of having someone like this on your side. (For more information on how to pick a qualified DUI lawyer, please read this article: ?How to Pick a DUI Attorney?Know What Questions to Ask.?)

• Second, educate yourself. When it comes to facing a DUI charge, knowledge is not only power. Knowledge means less confusion and more understanding. It means less anxiety and more peace of mind.  (For an easy-to-read overview of DUI law (including the criminal charge and the DMV hearing) get yourself a copy of ?DUI/DWI Arrest Survival Guide?The Guilt Myth.??a free e-book written by experts.)

If you or someone you know was recently arrested for DUI, now is critical time.

Don?t wait another second to put your mind at ease.

There are numerous problems with the breath tests beyond the human error of conducting them.  Here's a short list of problems seen here in San Francisco which a DUI lawyer should explore in every DUI case:

1. A police officer who is not properly trained to administer the test.


2. Erroneous calibration of the machine, causing skewed results.


3. Pre testing requirements not observed.  For example, the testee is burping, vomiting, or a significant amount of time has passed beyond the 15 minutes.


4. Medical conditions of the testee which effect the result, such as gastro esophageal reflux disorder.


5. Elevated body temperature of the testee, or something as simple as alcohol still in the mouth at the time of testing.


6. Results skewed by such factors as absorption phase, other effectors on in the breath which resemble alcohol, and so on.

The list goes on.  Overall, it shows a faulty testing system that can be successfully challenged in California, and the results not used as a presumption of guilt of the client.

Time will only tell if the California courts follow Washington's lead.

The State of Illinois Supreme Court overturned the rulings of a trial court and appellate court with regard to entering HGN results as evidence in determining the alcohol impairment of defendant Joanne McKown when she was arrested by police in June, 2002. McKown had veered into oncoming traffic, causing three motorcyclists to be thrown from their vehicles in Peoria County. Two of the three riders suffered serious injury.

High Court Orders Evidentiary Hearing

The state?s high court remanded the case to the Circuit Court of Peoria County, ordering an evidentiary hearing pursuant to Frye vs. United States (1923). Neither of the lower courts held such a hearing at McKown?s trial, accepting the reliability of the HGN test in determining alcohol impairment based on previous state court opinions. In both trials, the court admitted testimony of the arresting police officer who tested McKown for HGN.

At the first trial, McKown was found guilty of two counts of aggravated driving under the influence of alcohol, two counts of aggravated reckless driving, one count of reckless driving and one count of driving under the influence of alcohol. Damaging evidence consisted of three eyewitnesses and the opinion of the police officer who administered the HGN test at the scene.

Keep Your Eye on the Light?

The HGN test measures involuntary, erratic eyeball movement to the left and right while a miniature flashlight is shone into the person?s pupil. With a normal eye, there will be some ?jerking? of the eyeball but in the eyeball of one who is intoxicated, there is more ?jerking? to the left or to the right when the eyeball is closer to center position. Such movement also can be the result of other illnesses or causes. The test was devised by the National Highway Safety Traffic Association. Instructions are standard in the NHSTA?s DWI Detection and Standardized Field Sobriety Test Instructor Manual.

Witnesses at the accident scene said McKown was speeding. The approaching officer noticed an open can of beer inside the vehicle. That officer testified at trial the defendant had bloodshot eyes, slurred speech and breath smelling of beer. McKown admitted to having consumed three cans of beer before opening a fourth can after the accident.

Some examples of special allegations are:

1. Driving over the speed limit


2. Causing injury to another person, whether it is another vehicle, or the client's own passenger


3. Having children in the car under a certain age.  The younger the child, the worse the sentencing options.


4. Having a blood alcohol content limit above a certain level.  A BAC of 0.20, for example, is treated differently than a 0.10.


5. Refusing to take a chemical test when asked

Obviously some of these could also result in a DUI charge that is a felony, versus a misdemeanor.

A good DUI lawyer will try to eliminate these special allegations if possible, and certainly will try to negotiate the allegations if it gets to that point.  Failure to do so could dramatically increase penalties for your client.

This, by far, is the most common question I?m asked as a DUI attorney:

If I get pulled over or arrested, what should I do?

I was recently asked this by a friend who knew someone who had been arrested for DUI in California.

The first thing I told him is to remember that everything the officer does?on the roadside and at the police station?is meant to ensure a conviction.

I told him the there?s a big imbalance of power between the officer and the person who?s being arrested, and that cops know how to use this coercive power to get people to do things that actually get them convicted.

To answer his question more fully, I wrote an article, stripped of all legal jargon, which provides a no-nonsense guide to protecting your rights and reducing the likelihood of a conviction.

Think you know what do if you were pulled over and arrested?

Find out.

What To Do If You?re Pulled Over and Arrested For DUI

A Miami-Dade County jail spokeswoman said Parrish was released on a $1,000 bond. The 25-year-old is a Miami native and attended both high school and college in Dade County. He was a second-round pick of the Bills in 2005.

Parrish led the NFL last year in punt returns, averaging 16.3 yards on 27 attempts. That average was also a Bills record. From scrimmage, he caught 35 passes for 352 yards and one touchdown for the Bills, who went 7-9. Parrish, who has played three years for Buffalo, became the second Bill ever to score a touchdown rushing, receiving and on a punt return when he accomplished that trifecta last year.

Though alcohol is not banned by the National Football League, the league?s substance abuse policy states, ?The commissioner will review and could impose a fine, suspension or other appropriate discipline if a player is convicted of or admits to a violation of the law? relating to the use of alcohol.?

The Washington State Legislature wisely decided to reject a bill that would require people convicted of DUI to put special, florescent yellow license plates on their cars for one year.

Unfortunately, Senate Bill 6402, which thankfully died in Washington, is similar to bills that have already passed in several other states.

This relatively new idea of special license plates for DUI offenders is a supremely terrible one.

Please read the article ?DUI License Plates?A Shameful Trend? for a discussion of the pitfalls and inherent unfairness of this absurd development in DUI law.

Rather than the expression of a sincere desire to limit drunk driving, DUI plates tend to be merely a tool of politicians who want to appear uncompromising and tough on crime.

Let?s hope that California politicians, should they ever contemplate DUI plates, would follow in the footsteps of there fellow lawmakers in Washington State. 

Not even the most crunching quarterback sack can compare to what NFL signal caller Josh Booty was hit with last week in California. After allegedly becoming combative with Orange County (Calif.) Sheriff?s Deputies, the former Louisiana State University and NFL signal caller was stunned with a Taser gun after being arrested on suspicion of misdemeanor driving under the influence, according to the Orange County Register.

Booty was arrested by the California Highway Patrol after being pulled over for a traffic violation on a California freeway. Booty is the older brother of University of Southern California quarterback John David Booty.  The older Booty is a sportscaster for the FOX Television Network in Los Angeles.

Taser is an electroshock weapon that emits a temporary, high-voltage, low-current electrical discharge to disarm an individual. The recipient feels pain and can be momentarily paralyzed, according to Wikipedia.

Orange County Sheriff Department Lt. Hal Brotheim said the 6-2, 221-pound Booty became irritated and started fighting with deputies while he was being moved from one cell to another.

"He became belligerent and uncooperative," said Jim Amormino of the sheriff?s department. During the altercation, Booty fell and hit his head on a table. Booty apologized and was taken to a hospital for treatment.

Booty played professional baseball for five years in the Florida Marlins' organization before enrolling at LSU to play football for two years. He then opted for the NFL, where he played three seasons with Cleveland before signing with Oakland.

Booty was released with a citation to appear in court.

It all started in 1984 when the California Attorney General's office gave guidelines on what was then called ?dunk driving roadblocks? to the CHP and local police departments. This was the birth of the sobriety checkpoints that we have today. Not only are they legal, but?from the police?s perspective?they also are successful in taking drunk drivers off the road and increasing the number DUI arrests throughout California. However, many feel that sobriety checkpoints are a violation of the driver?s constitutional rights.

In1987, the California Supreme Court issued a decision that narrowly approved sobriety checkpoints. The case of Ingersoll v Palmer required the Court to balance the civil liberties of individuals on the one hand, and the risk posed by drunk drivers on the other. In this 4-3 decision, the court stated, "We conclude that within certain limitations a sobriety checkpoint may be operated in a manner consistent with the federal and state Constitutions." The United States Supreme Court gave their stamp of approval in 1990 in the case of Michigan State Police Dept. v Sitz.

The Supreme Court based their reasoning on the argument that the purpose of the sobriety checkpoint was to stop drunk driving, rather than to arrest drivers for DUI. They used this argument to ?balance? 4^th Amendment rights against the apparent deterrent affect of sobriety checkpoints.

That is some background of sobriety checkpoints. You may not like them, but you may as well learn to live with them because sobriety checkpoints in California are legal and here to stay.

For more information, read our article ?How Sobriety Checkpoints Work.?

Let?s face it: police officers can be intimidating, especially when you?re already nervous. We tend to think that we have to do whatever the officer tells us to do. 

Wrong.

Once the officer has pulled you over, suspecting that you?re driving drunk, his primary goal is to collect evidence against you. He?s not looking to see if you?re drunk; he?s looking for proof that you are drunk. And all the evidence he collects will go in the police report?a document that can have a significant impact on the outcome of both your criminal trial and your DMV hearing. One of the best ways of collecting evidence of your guilt is a field sobriety test (FST).

So, doing what the police officer asks you to do?when it?s not required by law?is often not in your best interest. And this includes a field sobriety test.

Let me be clear: you are under no legal obligation to submit to an FST.

The thing to remember about field sobriety tests is that they are practically designed to make a person appear drunk. And it?s been shown that police officers hugely overestimate subjects? levels of intoxication based on watching them do these kinds of tests. Another thing to remember is that it?s not how you actually do on the test that counts, but how the police officer thinks you do, because that?s what goes into the report.

(For more information about the history and science behind FST, read the article ?Are Field Sobriety Tests Accurate??)

If you choose to refuse to submit to a FST?which is often the wisest course of action?you can simply say to the officer: ?I?m sorry, officer, but I?d like to speak to an attorney first.?

All too often, by simply doing whatever the officer says, people unknowingly help collect evidence against themselves?proof for a conclusion that the officer has already made: this person is guilty of DUI.

The best way to combat the DUI Guilt Myth?according to which everyone suspected of DUI is guilty?is to know your rights. Police officers usually count on the fact that most people don?t know their rights, which makes it that much easier to get people to waive them.

You don?t need to make the police officer?s job easier.

Your greatest responsibility is to make sure that you don?t wind up being another victim of the DUI Guilt Myth.

The
Virginia House of Delegates recently passed HB161 and now it?s up to the Virginia  Senate to decide if
the measure becomes Virginia law. In addition, the measure proposes
fines of $ 2,500 to $3,000 for vehicle-related felonies.

The measure would repeal the controversial Civil Remedial Fees and replace it with fees paid by all
abusive drivers in Virginia, not just Commonwealth residents. The bill
enumerates offenses for which fees shall be paid. The bill also
requires payment of liquidated damage fees on the basis of the
accumulation of driver demerit points. The bill allows a court to
suspend fee payment when a person is convicted of driving on a
suspended license and the suspension was a result of failure to pay a
fine, DMV fee or liquidated damage fee.

Obviously, finding an expert who has the experience and credibility is crucial.  In the San Francisco Bay Area, there are many sources to find a qualified expert that will help sway the judge.  So, when first meeting with your client, think about whether a substance abuse expert could be helpful.

One solution, if your client needs SR22 insurance, is to obtain the SR22 insurance from somewhere other than the current insurance company.  There are insurance companies who cater to those with adverse DUI consequences, and the rates will be reasonable.  A good DUI attorney will discuss the insurance company policy options with their client to help save the client from even more grief.  This is important especially in locations such as San Francisco and the surrounding Bay Area, where rates are already extremely high.

For most of us, losing our driver?s license would be more than an inconvenience. It would interfere with our ability to earn a living and care for our families.

Unfortunately, the majority of people arrested for DUI in California assume that the fate of their driver?s license depends on the outcome of their criminal trial. Not so. In California, there is a separate hearing: the DMV hearing.

What?s worse, nearly everyone also assumes that the DMV hearing will be set up by the DMV, just as the date of their trial will be set by the judge. Again, not so. Here?s the truth:

IF YOU DON?T REQUEST A DMV HEARING WITHIN THE FIRST 10 DAYS AFTER YOUR ARRAIGNMENT, YOUR DRIVER?S LICENSE WILL BE AUTOMATICALLY SUSPENDED AFTER 30 DAYS.

The reason more people don?t know this crucial fact about DUI law