ONCE YOU HAVE BEEN CHARGED WITH DRIVING UNDER THE INFLUENCE (DUI/DWI):
One of the most important decisions you face right now is choosing an experienced, aggressive trial attorney capable of achieving the best possible results for your case.
The very first thing you must do is make sure that either you, or an attorney on your behalf, contact the DMV within Ten (10) days of your arrest to assure your driving privileges are not suspended (request a stay on your license). Once the stay is granted, this is what you can expect to happen:
COURT: The officer who pulled you over will provide his reports to the prosecutor's office. The prosecutor may add or delete charges originally brought once he or she obtains the blood alcohol results. You must enter a plea of NOT GUILTY. In no case should you plead guilty right away. It is essential to review all police reports, scientific results, and the procedures used at arriving at a particular blood alcohol level, before you enter a plea.
The scientific procedures are not available at such an early stage of the proceedings. It takes time and effort to force the prosecution to provide you every shred of evidence needed to defend your case. You must obtain calibration results of the machines used. You must obtain the protocol used to test and evaluate your blood or breath sample. You must obtain evidence from the crime lab which may establish the machine used was not properly functioning at the time your test was analyzed. You may need the services of an expert witness - called a forensic toxicologist - to help assess your defenses.
If you hire an attorney, and your DUI is a misdemeanor, you do not have to appear in court; your attorney can appear on your behalf. You may never have to set foot in court.
DMV: The arresting officer will also refer his reports to the Department of Motor Vehicles (DMV). The DMV has its own separate disciplinary proceedings distinct from the court proceedings. Even if the prosecutor offers you the option of pleading to a lesser charge because the case against you is weak, and you decide to take that offer, the DMV may still attempt to suspend your license after it has conducted its own independent review of your case. You can't let that happen.
The DMV hearing is a very technical hearing. The DMV reviews only limited issues and they are difficult for non-attorneys to understand. The hearing officers, who are not attorneys and who feel it is their purpose to keep you off the road, will not be sympathetic to you because they view anyone who drinks and drives as a menace. Therefore, it is essential for you to have an attorney at a DMV hearing to properly defend your rights.
ANSWERS TO THE MOST COMMONLY ASKED QUESTIONS:
Q: Do I have to be drunk to be charged?
A: No. In California, if your test reveals a blood alcohol level of .08 or higher, you are charged with two offenses:
- Vehicle Code sec. 23152(b), Driving with a Blood Alcohol Level of .08 or Higher. That means what it says: your blood alcohol content is at least .08. Not all people are "under the influence" at .08. This is called a "per se" law.
- Vehicle Code sec. 23152(a), Driving under the Influence of Alcohol. You could be charged with this crime if your test reveals a blood alcohol level below .08. That's because some people are under the influence at lower levels. The prosecution always charges both sections of this code because it gives them two shots at convicting you.
Q: I refused to take any field sobriety tests. Will this hurt me in court?
A: No. And congratulations for not providing the prosecution with any more false evidence. You are under no legal obligation to take any "field sobriety tests." Most of these tests have absolutely no scientific value whatsoever. Only a few of them have slight value, and that is only to assess that the person may have ingested some alcohol at some time.
Most police reports show clients failing these miserably, even when the client has a very low blood alcohol content. In other words, the police often exaggerate how poorly individuals do after they arrest them and they later sit down to write their reports. The fact that you did not take these useless tests cannot be used against you in court.
Q: The officer asked me to blow into a machine at the scene of the stop. I refused. Can this hurt me?
A: Again, the answer is no. You are under no obligation to concede to the officer's wishes that you blow into the handheld breath machine at the side of the road. You are required to take a blood or breath test at the station if you are arrested. Otherwise, you are not required to take any other test.
Q: Will my license be suspended on a first arrest?
A: Yes, if you fail to schedule a hearing with the Department of Motor Vehicles (DMV) within 10 days of the date of your arrest. Make sure you schedule this appointment, or have a lawyer do this for you, so you can fight an administrative suspension. These are very complicated and technical hearings. No one should try to handle a DMV hearing without an attorney.
Q: The officer did not give me a choice of tests but instead made me take a blood test. Is this okay?
A: NO! You have the absolute right to your choice of a blood or breath test in any situation unless it is completely unreasonable to offer you one of the choices.
Q: If my license is suspended, and I need to drive to work, can I get a restricted license?
A: Yes. If this is a first time DUI, you are prevented from driving anywhere and for any reason for a full 30 days after the license suspension is implemented. However, if you are enrolled in a Drinking/Driving program, and the 30-day initial suspension is completed, the DMV will issue you a restricted license that allows you to drive to and from work, during the course of work, and to and from the Drinking/Driving program during the remaining course of the suspension.
If this is a second DUI you may not drive at all for a full year. If you are enrolled in an 18-month second offender Drinking/Driving program, the DMV will issue you a restricted license like the one described above only after you have completed one full year of the 18-month program.
To find out more information about these topics, please call us direct at 323-467-6400