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Thousand Oaks DUI Lawyers

1. Kucera, Dennis: DRIVING UNDER THE INFLUENCE CASES Part 1: Your license and the DMV In a driving under the influence case, the DMV tries to take your license, while the court handles the criminal case. To protect yourself, you need to deal with both the court and the DMV. If the police took your license and gave you a pink temporary license, then the suspension of your license is being processed. You must request a DMV hearing within 10 days of the arrest. This time frame is very critical. Of course, if you retain an attorney in time, the attorney can request the DMV hearing for you. In the event more than 10 days have gone by, there is still a possibility of obtaining a hearing, particularly if the temporary license was not filled out correctly. When we request a hearing, we can also ask for a stay of the suspension. This means the suspension is put on hold and you can keep on driving, at least until the outcome of the hearing. It is usually a good idea to request a stay. That way, if you win the DMV hearing, you have not had your license suspended at all. If you lose the DMV hearing and face a four month suspension, you can get a restricted license as will be discussed below. Another advantage of a stay of the suspension is that the restricted license period due to the administrative action can be made to overlap with the restricted license period that will be triggered by a conviction, instead of facing separate periods of a restricted license. For a first offense, the DMV will try to suspend your license for four months if you gave a test, and for one year if you refused to give a test. Sometimes the police may claim you refused to give a test, and then "forcibly" take your blood. This subjects you to the increased penalties for a refusal, but the police still get the blood result. A forced test does not really have to require "force", they really just mean "without consent." I have heard of cases where the driver is adamant that he did not refuse to give a test, but he is still written up for a "refusal" after giving blood. If there is any question about this, you can look at the temporary license to see if the police are claiming that you refused to give a test. If your pink temporary license does not have any boxes under your name checked off as the reason for a suspension, you should save that form, and of course you should ask for a hearing within time. The DMV hearing is like a trial, in the sense that the DMV has the burden of proof and must produce sufficient evidence for each of the elements of their case in order to legally suspend your license. The DMV hearing must follow technical rules of evidence. The DMV hearing is more involved than simply looking at the test result, and it is possible to save a license even when the test result is over .08%. In a refusal case, you can challenge whether you were lawfully stopped and arrested, whether you really refused, whether you were given the proper choice of tests, or whether the police gave you the proper advisement that is required to trigger the penalties for a refusal. The DMV does not consider how badly you need your license and they do not negotiate the terms of the suspension. They either take your license or they don't. There is no downside in asking for a hearing. If you lose, you face what would have happened if you had not asked for a hearing. Many issues that might help in the DMV hearing can also help in the criminal case, and vice versa. There are different rules that apply to minors who face DMV hearings. Minors face the loss of their license with a lower alcohol level, but they are also eligible to obtain a restricted license by showing a critical need to drive. If within the last 10 years (counting from violation date to violation date) you had a driving under the influence arrest that resulted in a conviction or an administrative hearing suspension, then the DMV will attempt to take your license for one year if you gave a test or for two years if you refused to give a test. Multiple refusals trigger even greater suspensions. There is no restricted license available to overcome suspensions of one year or longer. Once your license is suspended, it is not reinstated automatically. It will continue to be suspended unless and until you take the steps to have it reissued, which, at a minimum, will include having proof of insurance on file and paying a reissue fee. If you lose your license in the DMV hearing and face the four month suspension, you can obtain a restricted license after 30 days of suspension by enrolling in a three month licensed alcohol program and having proof of insurance (an SR-22) filed with the DMV by your insurance company. Then you can go to the DMV, pay a reissue fee, and obtain a restricted license. A restricted license will allow you to travel to and from work, in the course of work, and to and from the alcohol program. If you want to get a restricted license as soon as possible, it is a good idea to take these steps early so that things will be in order by the end of the first 30 days of the suspension. If you enroll in the program before a conviction, to get a restricted license, it can court toward the program the court will order if you are convicted. Caution: While a three month program will qualify you to get a restricted license on a four month DMV suspension, in an aggravated case the court may order a nine month program if you are convicted. The Los Angeles and Ventura County District Attorneys are alleging that cases with results of .15% and higher are aggravated cases. Some of the programs will roll the three month program into a nine month program if necessary, but some of the programs will not, and will make you start the nine month program from the beginning. If you enroll in a nine month program, that will count for both the DMV restricted license and the court case, but you certainly don't want to enroll in a three month program and then have to do a separate nine month program, and you probably don't want to enroll in a nine month program if it is not necessary. If you have a high reading and want to get a restricted license, you can enroll in a three month program if you have the assurance it can be rolled into a nine month program if necessary. You must pay attention to what would happen if you complete the three month program before the court case is concluded. Will the program only roll over if the program is continuous, or will they let you complete a three month program and then later on give you credit for the first three months of a nine month program. Otherwise, it is important to make an early determination of which program the court will order. If you are convicted in the court case, there will be a separate requirement of a restricted license which is triggered by the conviction. If the DMV action is not coordinated with the court case, you could face a period of a restricted license from the DMV administrative action, and later on, a completely separate period of a restricted license which is triggered by a conviction. You can reduce the effect on your driver license by coordinating the timing of the DMV hearing with the criminal case, so that the period of a restricted license from a conviction will fall into the same time frame as the restricted license from the administrative hearing. In order to coordinate the DMV action with the court case, it is a good idea to get a stay of the DMV suspension, which tends to push that suspension forward into the time frame of the court case. With a driving under the influence charge pending, you should be careful about any additional violations that will count as points, because you can also lose your license based on points. If you get any tickets, you should do traffic school if you are eligible. If you are not eligible for traffic school, you should ask for a trial on the ticket. If you get convicted at trial, you are in the same position as if you had been convicted by just paying the ticket. Part 2: The criminal case in court In the criminal case, we first need to see if the evidence can even be used against you. The police must have had a sufficient reason to detain you and to arrest you. If the police detained you or arrested you without a sufficient reason, then we can make a motion to suppress the evidence. If the evidence is suppressed, then the prosecution cannot use it. In a case involving alcohol, there are normally two charges: driving under the influence, and driving with .08% or greater blood alcohol. These are both considered forms of "drunk driving" and they carry the same penalties. The prosecution does this so the jury will have two theories on which to convict you, if the case should go to trial. While the chemical test plays a major role in these cases, we cannot overlook the other evidence, such as how the vehicle was being operated, or the performance on the field sobriety tests. But What Was the Reading at the Time of Driving? The crime is committed, if at all, only when you are driving. The chemical test is always performed after the driving and just shows what your level was at the time of the test. The real question is what your level was at the time of driving. Depending on your drinking pattern and when the test was performed, it is quite possible to be driving at a level of .06% or .07%, but have the test result come out at .08% or higher. This is because the alcohol in your stomach continues to raise your blood alcohol level after you have stopped driving. With an empty stomach, you reach your peak blood alcohol level around an hour after your last drink. With a full stomach, your peak level is even later. If you had one or two drinks shortly before the police stopped you, it is entirely possible that the test will be higher than when you were driving. This can be a viable defense in a close enough case. Breath Tests A proper breath test involves two separate blows, so you will have two results for that one test. The results must be within .02% of each other. Results of .07% and .09% would be within the acceptable limits for one test. The idea behind the breath test is that blood alcohol is exchanged in the lungs and then exhaled. The problem with a breath test is that you are measuring breath alcohol, but then trying to infer what would be in the blood from what is measured in the breath. Because a gas is much less dense than a liquid, the actual amount measured by the breath test is multiplied by a factor of 2,100 to correlate with what would be in the blood. The multiplier of 2,100 is set by law, but by no means would it tell precisely what is in your blood. It is really just an average multiplier. Different people can have different multipliers that could be used to more accurately correlate a breath reading with blood alcohol, and even your own multiplier can change depending on your drinking pattern. However, instead of using the breath test as simply some evidence of what would be in the blood, the law tries to overcome these problems by stating that the breath result is the violation. Nevertheless, it is important to understand that because of this high multiplication, any slight error in the breath test will be magnified 2,100 times! The California Supreme Court has recently ruled that you can now challenge this 2100:1 ratio when defending against the charge of driving under the influence. A different multiplier would produce a different test result! A proper breath test requires that the police must have observed you for the full 15 minutes just before the test, to make sure that a burp will not affect the reading. Remember, the idea is to measure the alcohol coming from the blood and passing through the lungs, not what is in the mouth. Failure to comply with the 15 minute observation requirement means the test was not done properly, and the reading cannot be relied upon. The police may have had you handcuffed in the back seat of the police car with the officer in the front seat, then you get to the jail and they have you blow in the machine. The police may claim that the time in the police car was the observation period. Can you "observe" someone who is behind you in the dark while you are driving? Even when there is compliance with the 15 minute period, the test will not be accurate if there is still alcohol in the mouth. This can occur with an abscess tooth, which can pool or trap alcohol in the lower teeth. The effect has also been noted with braces or dental work. For these same reasons, a breath test should be considered invalid if your mouth was bleeding at the time of the test. Persons with GERD, or gastroesophageal reflux disease, can pass alcohol from the stomach back into the mouth, and this will affect the reliability of a breath test. A person with a fever will produce a higher breath test result than a person with the same blood alcohol level but without a fever. We can check to see if the breath machine was calibrated and maintained properly. The breath machine's results are stored in the machine's memory and can be downloaded. We will want to see this if there is a question about the actual test result or the time of the test, or perhaps you might wonder if a favorable test was not reported. The breath machine is programmed to trigger and record a test if there is a sufficient volume of air and certain conditions are met. When the machine triggers, it is satisfied that the test is a proper test. If the machine triggers and the result is low enough, that can be helpful for your defense. I mention this in the event you were forced to blow multiple times, particularly if the police change the result card and start over. We want to make sure the police are not trying for a higher test result and disregarding a lower result that might have helped you. At a minimum, the concealment of a low result will hurt the officer's credibility. If significant exculpatory evidence is concealed, that can result in the dismissal of the case. The actual machine may have its own particular weaknesses. The machines do not perform a true chemical analysis. They look for a particular characteristic of alcohol, and then assume that alcohol is present when that characteristic is detected. Many of the machines rely on the principal of infrared absorption. A particular wavelength of infrared radiation is transmitted through the breath chamber. Alcohol will absorb infrared radiation at certain wavelengths. This principle is similar to the spectral lines you may have seen in a physics or chemistry book, except that the sample is absorbing radiation rather than emitting it. The machine measures the extent to which the beam is diminished, and assumes that this was caused by alcohol. In simple terms, this is like looking for the characteristic of "four legs", and then assuming that when something is found with four legs, it must be a cow! The potential for inaccuracy will depend on the methodology of the particular machine, and the chemicals to which you may have been exposed. Blood Tests In the case of a blood test or urine test, we can ask for the sample to be split and sent to a private lab for retesting. Testing urine for alcohol has been discredited and is not even supposed to be offered unless no other test is available (which is almost never.) A certain level of preservative must be present in the sample, in order to prevent the sample from fermenting and producing additional alcohol. You cannot determine the level of preservative without a chemical analysis. If the blood was put into a vial that did not not have preservative, then it doesn't really matter how high the result is, it's just an invalid test! If we have the sample tested by a private lab and the results are not helpful, we don't even have to tell the prosecution what the results were. Experts in alcohol testing are available to help with the technical issues in your case, and can even testify at a trial if you wish. DUI Drugs Sometimes the police make an arrest for driving under the influence of drugs rather than alcohol. While alcohol has been studied extensively and the law sets a legal limit, the effect of drugs on driving has not been studied to the same extent as alcohol. The law does not make any particular level of drugs a crime, as it does with alcohol. The fact that a doctor prescribed the medication is not a defense. The question is whether the prosecution can prove you were under the influence of drugs or medication at the time of driving. This is a higher burden than simply showing that some drugs were "present." If you have been taking a certain medication for some time, you may have developed a tolerance, which means that you will be less affected by the medication. The prosecution usually does a screening test for drugs when they file the case, which means they have simply detected the presence of the drug but have not measured the quantity. Over time, drugs are broken down into other compounds called metabolites. When you obtain a split of the sample you can do a quantitative test which measures the amount of the drug and its metabolites. With this information, you can get a picture of whether there was enough active drug to affect you while driving. A case involving drugs rather than alcohol is a more difficult case for the prosecution, and should be reviewed carefully. Experts in forensic pharmacology are available to help in these kinds of cases. Felony DUI Driving under the influence can be charged as a felony if the defendant has three other convictions for DUI within the last ten years. In those cases where the charge depends on the use of prior convictions, it is important to review the prior convictions to see if they can really be used as prior convictions. Convictions from out of state are particularly susceptible to attack. Driving under the influence can also be charged as a felony if some other person was injured. In a case of felony DUI based on injury, the prosecution must show that the defendant caused the accident by some violation of the law, in addition to driving under the influence. A defendant would not be guilty of felony DUI causing injury if he was not responsible for causing the accident. This point might require the use of an accident reconstruction expert to show that the defendant did not cause the accident. In a serious case, such as a felony case, or a case with prior convictions where the prosecution is seeking substantial jail time, we will want to look for mitigating factors that might convince the judge to impose a lower sentence. If you decide you are going to start attending AA meetings, by all means save some proof of attendance. AA meetings will sign off on a proof of attendance slip if you ask them. There are some other "self help" options which I will be happy to discuss with you. I can't "recommend" these steps, because they can be burdensome and expensive and I can't guarantee it will help. But you won't be making things any worse, and if you are going to do it anyway, it just might help. Particularly in a delicate case, you must be extremely careful not to do anything that would make things worse. Don't drive without a valid license and insurance. It will be more difficult to argue for leniency if you pick up a new case, even for driving on a suspended license. Potential Issues The following questions may give rise to issues in your case: Did the police actually see you driving, or did they contact you when you were not driving? Did the police have a sufficient reason to detain you? Did you have anything to drink after you stopped driving? Were you stopped at a sobriety checkpoint? Did you have drinks shortly before the police contacted you, with the chemical test being fairly low? Did the police observe you for the entire 15 minutes just before a breath test? Do you suspect that a favorable result may be on the breath machine, but that it was not reported by the police? Is the case very old, for example, were you picked up on a warrant on a case from long ago? Do you have prior convictions, and particularly, a prior conviction from out of state? Did the police arrest you without doing any field sobriety tests first? This occurs sometimes after an accident, when the police contact you at the hospital. Remember, the police must be able to show a sufficient reason for making the arrest, in order to use the evidence that results from the arrest, namely the alcohol test result. Assuming that the evidence is strong enough that you could be convicted, we can still work to minimize the sentence. There are factors that can make the case more serious, such as driving under the influence with minors in the vehicle, having an accident, refusing to give a test, driving at an excessive speed, driving with a high blood alcohol level, failure to pull over, hit and run, driving with a suspended license or no insurance, or having other convictions. Other convictions can include convictions from out of state and even from Canada! If you have three other convictions or if you had an accident in which another person was injured, the case can be charged as a felony. Other convictions can be counted even if the arrest or conviction occurred after the present arrest. Any additional conviction will make the remaining open cases more serious. If you have more than one open case, even if they are in different courts, you should consider the effect on the other cases before you plead guilty on any case. If you are on probation with an open case pending, a conviction can subject you to additional penalties from the case where you are on probation, even if it is in a different court. Even if you do not want to go to trial, you still want to keep the sentence to a minimum, particularly if there are one or more factors that make it a more serious case. The District Attorneys for Los Angeles and Ventura are now labeling cases with test results of .15% and higher as aggravated cases. Even in a serious case involving jail time, you might be able to structure the sentence so that you can be released to go to work in the daytime.
2. Sommers, Robert: DUI penalties are very severe in the state of California. Penalties can range from a 6-month suspended license, 6-months in prison and $2800 in fines to permanent license suspension and three years in jail. The extent of the penalties an individual may be sentenced for when charged with drunk driving, DUI involving drugs or medication, alcohol test refusal, DUI involving an accident (such as a car accident), felony DUI or any other type of DUI is dependent upon the specific circumstances of each individual arrest. Penalties for multiple DUI offenses become more substantial with each offense as well. Someone facing their first DUI offense can be sentenced for 96 hours to 6 months in jail, 6-month suspended license, up to $2800 in court fees and fines and then put on probation anywhere from 1 to 5 years. A fourth DUI offense can warrant a sentence for felony DUI which can carry 3 years in jail and a 4-year to permanent license suspension. If there were any injuries or if charges of vehicular manslaughter are brought to bear, the prison sentence can be greatly increased. A person may receive a prison sentence of 3 years plus 1 to 3 years for each person injured and 4 to 10 years in the case of manslaughter.
3. Dunn & Sanderson: DUI - Avoiding a DUI Conviction DUI Ð Driving Under the Influence Ð can cause a lot of trouble in oneÕs life. Not only are these charged as misdemeanors which can affect your current job or likelihood of acceptance to a University, but these misdemeanor charges can result in the suspension of your driving privileges for up to six months on the first DUI and longer for repeat offenders. Do I Tell the Officers I have been drinking? NO! The answer to this is a definite ÒNo.Ó It is never encouraged for anyone to lie to police as they will usually know you are lying and your credibility will be questioned later in court based on any lies you made to police. However, you are not required to answer any questions of the police aside from informing them of your standard information such as name, birth date, and current address. Do not be rude to the Police Officers, but simply inform them that you are implementing your right against self incrimination. DUI Ð To Blow or Not to Blow Most people want to know whether they should take the PAS or Preliminary Alcohol Screening test, and the answer is different in each situation. While the PAS device can sometimes give a higher reading, at times taking this test will result in a reading of under .08 % BAC (Blood Alcohol Content). First you should know that you are not required to submit to the PAS test, but you are required to eventually submit to some sort of chemical testing. The decision of whether to submit to the PAS should depend on how long ago you stopped drinking, and how much you have had to drink throughout the day. Alcohol does not immediately absorb into your blood, and so, if you had just had your first couple of drinks of the day and gotten pulled over less than an hour after drinking the PAS may help you. By taking a test before the alcohol fully absorbs into your body you may get a reading lower than you would a half hour later and so you want to take a test as soon as possible. On the other hand if you stopped drinking an hour or more prior to driving, you can only gain by refusing the PAS test and waiting the additional time it will take for the required test by breath or blood. DUI Ð Blood or Breath Whether or not you submitted to the PAS test, California law requires you to submit to some sort of testing when you are suspected of a DUI. Your choices are a blood test or a breath test. The devices used to measure Blood Alcohol Contest by breath are more susceptible to mistakes and make for a better defense against the results of a breath test. Blood results are generally more accurate, the scientific method of testing is more controlled and reliable and thus it is more difficult to defend against a blood reading of .08% or greater. This is not to say that blood results have not helped people in the past. If you submitted to a PAS test and it is higher than you believe accurate, and you stopped drinking well before contact with police, you may want to request the blood test not only so that you receive a more accurate read, but also in hopes that the length of time it takes to get a blood test will result in a decrease of your alcohol content. This strategy is most effective in circumstances where the initial PAS result is close to .08%. I was cited for DUI, Now What? Who do I talk to? Do not talk to the District Attorneys Office, any of their Prosecutors in Court, or any Law Enforcement Officers. Nothing good will ever come out of your pleas to these people. Remember ÒEverything you say can and will be used against you in a court of law.Ó Before going to your first Court date you should contact a Criminal Defense Attorney with experience in DUI cases. DUI cases are different than many other types of criminal cases and you want to speak with someone that not only knows the law, but that understands the system and the intricacies of a DUI defense. What Happens at My First Court Date? Your first DUI court date is called an arraignment. At this DUI hearing you will be advised of your constitutional rights, be informed of the charges against you and asked to enter a plea. DUIÕs are charged under Vehicle Code ¤ 23152 which allows two separate charges; (1) driving under the influence, and (2) driving with a .08% or greater. You may plead guilty, not guilty, or no contest to DUI. Do not plead guilty to a DUI or no contest at your arraignment as you may have a defense without even realizing it. Entering a plea of guilt for a DUI without even taking a look at the evidence is never a good idea. It is also at this first hearing that discovery becomes available to you. Discovery is simply the evidence against you which consists of the Complaint, the Police Reports, and any laboratory test results. You should contact a criminal defense attorney to review your discovery before entering any sort of plea because only an experienced eye can determine if you have a possible defense in the DUI case. If you have not contacted a DUI lawyer prior to going to your arraignment, simply ask the judge for a continuance so that you can obtain criminal defense counsel. Judges are always willing to give a defendant time to consult with an attorney and you should request a minimum of a two week extension to give yourself time to contact and retain an attorney. It is also possible that you may be told that there is a Òmissing complaintÓ against you. This means that the District Attorney has not had the time to review your case yet or they may be waiting on DUI lab results before determining the charges against you. If this is the case you want to request a date from the Judge that is approximately four weeks out to return to court. What are my Defenses? While there are many different defenses to DUI cases, the most common arise out of the initial reason for the contact, and the accuracy of the device used for testing your Blood Alcohol Content (BAC). Often police will make contact with a person without having any real reason for doing so. By law, an Officer has to have an articulable reason for making contact with a citizen. If the Officer had no such reason, then the contact was illegal making anything that the Officer found out as a result of that illegal contact suppressible. So what does all of this mean? It means that your criminal defense lawyer will file what is called a 1538.5 motion or Motion to Suppress the Evidence. This will result in a court hearing in front of a Judge with testimony from witnesses like yourself, your passenger, the arresting officer and anyone else that saw the interaction. If the Judge decides that you were contacted illegally, then the evidence obtained as a result of the stop, including any BAC reading, will be suppressed. In a DUI case, suppression of this evidence will inevitably result in a dismissal of the case. Another possible defense is the inaccuracy of the device used to test your Blood Alcohol Content. In contesting these results we look at the calibration logs of the specific device, determine if there are any discrepancies, and then forward all of the information to a Forensic Alcohol Expert that specializes in the training and reading of these devices. If it is determined that the device reading could have been inaccurate, then this information is presented at your trial in your defense. Call us now to see if there is a possible defense in your case. DonÕt go to court uninformed and alone, we will be there to help you get the best possible result in your case. Can I Still Drive? When you are cited for a DUI you are given a pink temporary drivers license. This license is good for 30 days. Once that 30 days is up your license is automatically suspended and you may not drive. You can avoid this automatic suspension by hiring an attorney to conduct a DMV hearing on your behalf. This hearing must be requested within 10 days of your DUI, so donÕt wait and ruin your chance of keeping your license. Call us immediately and we will request a hearing for you. Once a DMV hearing is requested your license remains valid until you are notified of the results of that hearing. Thus, even if you are unsuccessful in the DMV hearing, having a hearing will undoubtedly delay your suspension for a significant time period giving you time to make arrangements with work, school and your family. If the DMV Hearing is decided in your favor, the DMV will immediately return your driverÕs license to you without further incident. How Long Will My Suspension Last? The standard suspension for a first time DUI is either four or six months depending on whether you choose to obtain a restricted license. Every person who receives a DUI suspension will have a complete suspension for 30 days. This suspension starts on the date you receive notice that the DMV did not find in your favor, or the day you plead guilty to DUI in court. After the 30 day suspension you are eligible to go to the DMV and request a restricted license allowing you to go to work and any court ordered programs. In order to get the restricted license you will need to have a SR-22 from your insurance carrier and you will need to have enrolled in the court ordered alcohol school program. If you are granted a restricted license, you will be on that restricted license for five months. If, however, you choose not to get a restricted license your suspension period will only be a total of four months. So, your choices are a complete suspension without any ability to drive for four months, or a complete suspension for 30 days and a five months restriction. There are so many different options and possibilities with DUI cases that you must contact someone to can help you get the best result possible.