You Picked Up a DUI…Now What?
Law enforcement in California places a great deal of attention and expends vast resources on stopping, arresting, and prosecuting DUI cases. When it comes to DUI in California, there is a lot to know.
Beginning January 1, 2019, there is a new California law that requires drivers convicted of DUI (VC §23152 et seq) to install an ignition interlock device (IID) in their vehicles…maybe.
Former Governor, Jerry “Moonbeam” Brown signed SB 1046 in 2016. It took effect on New Year’s Day, 2019. Now, in California, drivers convicted of a DUI will have to install an ignition interlock device – that thing you have to blow in to start your car – in order to get their full driving privileges back right away and avoid the actual full suspension.
Proponents believe that the program will deter and prevent repeat offenders. I doubt it. The DUI process is scary enough and costly enough for most people, they don’t need any extra incentive to NOT do it again. On the other hand, individuals who are going to repeat…are going to repeat.
The program seems nothing more effective than another California money-grab. Yes, another one. The device costs money; the installation, maintenance, and removal cost money; the State has its hands in all of the pockets that your dollars fill because of a DUI.
Under the new law, first-time DUI offenders (where there are no injures) can opt for 6-months of the IID with full driving privileges. In the alternative, you can forego the device and be stuck with a restricted license for a full year, after a 30-day full, no-driving-at-all suspension.
If you are a second time DUI offender or if you are a first-timer, but you caused injures, the IID will be mandatory for a full year. You will have to blow before you go.
If the third DUI is what you are facing, you can expect the IID for two full years.
Drivers in California who just can’t seem to avoid that fourth (or more) DUI, the IID will be on whatever you drive for three full years…and that is after you get released from the mandatory jail sentence and after the other actions against your driving privilege the DMV may take – including possible revocation.
DUI is responsible for over 1,000 deaths and more than 20,000 injures per year according to the CHP. It is widely believed that the new IID program will significantly reduce those numbers. I’m not so sure. If jail and substantial expense are not deterrent enough, I don’t think an IID will make the person determined to drive think twice. We will see.
Can you avoid the IID in California? Sure, don’t get a DUI. My guess is, though, if you are reading this, that ship has sailed. So, how do we fix it?
Defending a DUI Begins with the Stop
Why did police stop you and is there anything about the stop your DUI lawyer can challenge? When bad driving (such as weaving or driving too slowly or driving on the wrong side of the road) is the reason for the stop, the battle takes a more up-hill trajectory and we will probably need to look someplace else for hope.
However, it is not uncommon for DUI arrests to begin with traffic stops for tinted windows or not having a front license plate. When the probable cause for the stop is not “bad driving” related, your DUI lawyer may have more opportunities to win your case. (Keeping in mind that “winning” may mean something different in each specific DUI situation.)
In one DUI case we handled, the probable cause for the stop was that the young female driver sexy-whistled at the young male police officer who was stopped with another car on the opposite side of the street. While, I am sure she regrets whistling (he was married and she was arrested for DUI), that was not probable cause for a traffic stop. Those are the kinds of things a skilled DUI lawyer will seek out in police reports.
Does the Video Match the DUI Report?
With more and more law enforcement agencies employing dash and body cameras, DUI lawyers have more and more opportunity to challenge the reports those officers write.
Historically, every DUI report reads pretty much the same way: the driver had red, bloodshot, watery eyes; was slurring their words; was staggering, couldn’t walk or stand straight, and so on. Before video, everyone – especially jurors – just took the officers at their word. Afterall, who were they going to believe, the officer or the defendant?
Now, however, although the reports still read pretty much the same way, dash and body camera video often contradict the reports. It is very common for mug shot photos of the person with “red, bloodshot, watery eyes” to actually show bright, clear, white eyes. Contradiction. Better still, video shows the person with “slurred speech and a staggered gait” to be speaking clearly and walking just fine. Contradiction.
Odor of Alcohol…Are You Sure?
Another area for calling an officer’s credibility into question is that pesky “…odor of alcohol…” they smell on EVERY DUI driver’s breath.
In more than a decade of DUI cases, I have never cross examined an officer who actually knew that ETOH (ethyl alcohol – the kind we drink) has no odor. Rather, it is the flavorings that give vodka the smell of vodka and gin the smell of gin and rum the smell of rum. Most of us learned in college (or public high school) that beer and wine don’t smell the same and nothing smells like tequila. Nevertheless, police officers consistently say the smelled alcohol…they just can’t say what kind.
Officers also hate to answer questions about how non-alcoholic beer smells like beer; that they cannot tell the difference. They also really hate being asked whether the smell of alcohol can indicate WHEN someone drank. Because, it doesn’t. How many of us have woken up sober on a Sunday morning smelling like Saturday night? These are the kinds of questions a skilled DUI lawyer will know to ask – and when to ask them.
Because I have a medical background, I get the most joy asking officers – with zero medical knowledge other than having watched ER as a kid – whether certain medical conditions can mimic the odor of alcohol? Diabetes, maybe?
Field Sobriety Test
The medical questions get to be the most fun when we attack the officer’s assessment of HGN (horizontal gaze nystagmus). HGN is what they are looking for when they shine the light in your face and order you to follow their pen with your eyes. They are looking for an involuntary jerking of the eyes, called nystagmus. You cannot hide it, you cannot control it, and to them it confirms that you are impaired. But…not so fast.
There are literally hundreds of things that can cause nystagmus, alcohol is only one; it is the only one they are trained on, so it’s the only one they know. For DUI lawyers, it’s fun to watch as the officer squirms and struggles to answer questions about the myriad other causes of HGN and the fact that they did not evaluate or ask about any of them. Better still is the puzzled look on juror’s faces when they wonder why the officer left so much out. The clever ones will own the fact that they don’t know and force us to move on; most, though, are not as clever as they think.
My favorite, though, is when officers testify about the marijuana DUI arrests where they determined the defendant was positive for HGN. It is my favorite because marijuana does not cause HGN. Juries don’t like liars.
With the all-out legalization of marijuana in California, law enforcement agencies up and down the state are cracking down on “Marijuana DUIs” – and they are losing a lot.
As of the writing of this article, there is no specific, scientific test to determine whether one is “impaired” by marijuana; there is no specific number or measurement that connotes “impairment.” What law enforcement generally relies on is “observation.”
Marijuana Odor and DUI
Most marijuana DUI arrest reports begin with the “…odor of burnt marijuana…” the officer smells when he approaches the open car window. Sometimes they will write that the odor is of “…freshly burnt…” marijuana. I especially love that one.
If you grew up in the 70’s and 80’s – and you had older brothers – you don’t need any special training to know that the smell of burnt marijuana does not tell you WHEN it was burnt.
A skilled marijuana DUI attorney will know what to ask and when to ask about it:
OFFICER: I smelled the odor of burnt marijuana coming from the vehicle.
ATTORNEY: Did the smell tell you WHEN the marijuana was burnt?
ATTORNEY: Does the smell tell you whether anyone in the car is “impaired?
ATTORNEY: So, you can’t determine if or when my client smoked?
OFFICER: No. Not by the smell.
ATTORNEY: And you can’t tell whether he/she was impaired?
OFFICER: No. Not by the smell.
Marijuana and Field Sobriety Tests
What people commonly refer to as Field Sobriety Tests (FTSs) are nothing more than divided task agility exercises and are only loosely correlated with driving. They were developed by law enforcement and have become the standard for assisting in the determination of whether a driver is impaired by alcohol.
FSTs alone are not conclusive of anything and, presently, they have ZERO correlation to marijuana impairment. At the moment, there are no FSTs that – scientifically – show marijuana impairment.
As an aside, in California, if you are 21 or older and not on DUI probation, the FSTs are completely OPTIONAL anyway. You can just say no, and when the officer says, “I need you to do a few tests,” I strongly recommend saying no thank you. The officer will tell you that the FSTs are only to help make sure you are safe to drive. LIE!
The FSTs are used – almost exclusively – to build evidence against you. It is comical how similar EVERY DUI arrest report reads. On the walk & turn test (the one where you walk the imaginary line) it seems that, magically, every person misses steps 8 and 9 on the way out and 7 on the way back; they ALL fail to execute the turn as “instructed.”
In one case, the officer wrote that our client [failed] all of the FSTs, had a strong odor of an alcoholic beverage emitting from his breath and person, and he had red, bloodshot, watery eyes and slurred speech. The client opted for a blood test only and the results did not come back for over a month – long after his report was written and submitted. The BAC results came back 0.00%. Go figure.
Breath or Blood Test?
Marijuana DUIs rely on blood. As of now, there is no breath test for the presence of THC, although I hear they are close to having one.
If the officer suspects that marijuana and not alcohol is what has you in his or her hands, they will insist that you submit to a blood test. Under the law, you have a choice; request breath before blood.
When they do get your blood, they will test for the presence of chemicals focusing on THC. However, if there are other goodies in there like cocaine, ecstasy, meth, Xanax, etc., they will likely find those, too.
Nevertheless, when the officer suspects weed, weed (THC) is what they will be most interested in finding.
Forms of THC in Marijuana DUI Tests
Most competent crime labs will test for the presence of hydroxy, delta-9, and carboxy THC. Some crime labs – I won’t name names – only test for carboxy; those are my favorite.
Hydroxy and delta-9 THC are the psychoactive compounds. Where those are found, cases get a little tougher because juries have something more solid to grab.
Carboxy THC, on the other hand, is what is left over after the psychoactive stuff wears off. Carboxy THC is the metabolite that is left over days and weeks later. Carboxy THC is not what gets you high or keeps you high. In fact, Carboxy can tend to show that you are passed the “impairment” stage.
In a recent trial, client was charged with driving under the combined influence of alcohol and marijuana. About half way through the trial, after the experts had testified that only Carboxy THC was found and that is not psychoactive, the prosecutor knew the case was lost. The case went to the jury anyway and, as expected, the jury found the defendant not guilty of driving under the combined influence.
Hiring the Right DUI Attorney
Some people believe it is pointless to hire a lawyer to defend a DUI. Are those the same people who believe it is pointless to have a dentist perform a root canal?
It is true that DUI penalties across the southland tend to be formulaic; probation, classes, fines, community service, etc. Some courtrooms even have the prescribed penalties written on a white board in the courtroom. So, what’s the point?
Law enforcement and prosecutors want you to think it is pointless so they can get you convicted and out of the courtroom faster. But, how would you feel wondering – or knowing – that you could have done something; that there was an error; that the results they relied on were not yours; that the stop was invalid; that the machine was not working; that something could have been done to at least reduce some of the penalties?
A skilled DUI lawyer will look under every rock, reach into every crevice, examine every possibility and, if a DUI plea is how it ends, then you will KNOW that there was nothing else to be done. Moreover, that lawyer may even be able to get some of those penalties reduced.
Special DUI Circumstances
Not every case is a simple one. There can be many variables that make an otherwise straight forward case, rather complex.
For example, what if you are a nurse or a paramedic or a real estate agent? If you get a DUI, those licensing agencies will come after you, too. In many cases, licenses get revoked or suspended because of a run-of-the-mill first-time DUI.
What if you are an armed security guard? What if you are trying to get into the military? What if…anything?
Those unique twists and turns are exactly why you need a skilled DUI lawyer by your side throughout the entire DUI process. It’s not enough for your lawyer to manage what is happening now, you need a DUI attorney who will look to see what this whole thing looks like five years from now. How will today affect your future? That is what a skilled, experienced, forward-thinking DUI lawyer will do for every case.
How to Choose the Right Lawyer
There are a number of ways in which to determine whether a particular lawyer is right for you, but I think gut instinct is probably the best. However, in case you’re not sure about whether to trust your gut, here are a few things to keep in mind.
First, nobody should be in a hurry. To me, a lawyer that says “…you need to hire me today or else…” is a red flag. Unless you have waited until the day before the arraignment to call, there should be no real urgency. Assuming the arraignment is not the next day, the only time-sensitive issue in a DUI is the DMV hearing. You only have ten calendar days from the date of the arrest to secure a DMV hearing and get an extension of the automatic suspension and that leads to the second thing to consider.
You don’t NEED a lawyer to set up the DMV hearing and get an extension. You can do that and the DUI lawyer you hire should be able to take over. If you are not ready to hire a lawyer within ten days of the arrest – for monetary or other reasons – a caring DUI lawyer will tell you how to do it yourself. If you ask a potential lawyer to help you and he or she won’t, then you have your answer about that one.
The next thing to consider is how the DUI attorney you are talking to charges and what he or she includes in the fee. Most reputable DUI lawyers charge a flat fee as opposed to charging by the hour.
Flat fees vary for a misdemeanor DUI. You can expect quotes ranging anywhere from about $2,500 to $5,000. Some attorneys charge even more than that.
Whatever it is, the flat fee should include all court appearances, motions, letters, research, the DMV hearing, and even jury trial in the same fee. Beware of any lawyer who wants to nickel and dime for each little thing. It is customary for lawyers to pass some expenses on to the client. Scientific expert analysis and certain witnesses may cost extra, that is normal.
Another thing to be aware of is the prospective lawyer that uses scare tactics to try and get you to sign on the dotted line. Any lawyer who causes anxiety by making you afraid of the process or possible outcomes is probably not a good fit.
Lastly, look for someone with whom you feel comfortable. A skilled and compassionate DUI lawyer should make you feel more at ease about the process and the outlook. This is someone that will be guiding you through a very uncomfortable and, at times, scary situation, so he or she needs to offer you some sense of calm about it all. You want someone who will be available to you when you need them. A DUI lawyer who will put his or her cell phone number on their business card is a good sign. A DUI lawyer who does not make you crawl through hoops just to get them on the phone is another good sign. A DUI attorney who answers your calls and your questions is a good sign.
Contacting a DUI Attorney Near Me
If you or a loved one faces DUI charges in Long Beach, give our Long Beach DUI Lawyer a call at 562-206-2012 and tell us about it. We will spend as much time as you need to discuss your case and your options. If you decide to hire us to help fight your case – or at least make sure the system doesn’t take advantage of you – great. If you don’t hire us, it will have been our pleasure to talk with you anyway. Consultations are always free and completely confidential.