Attorney Mark Rosenfeld Talks About DUI’s and DWI’s


Bert:

Mark Rosenfeld has been defending Los Angeles drivers for over 17 years. Born and raised in Southern California, attorney Rosenfeld graduated from UB Santa Barbara and California Western School of Law. He has continued his legal training attending courses at Harvard, Exxon Labs, as well as studying with Jerry Spence, the Trial Lawyers College. Attorney Rosenfeld enjoys giving back to the legal community and continue to present and teach other attorneys throughout the state on driving related issues and trial skills, as well as serving as chair of the Criminal Law section of the Beverly Hills Bar Association.

Mark Rosenfeld, welcome to Money for Lunch.

Mark Rosenfeld:

Thank you very much, Bert. Thank you very much. I’m glad to be here.

Bert:

All right, so let’s get into this. DUIs and DWIs are basically the same thing, nowadays, right? It’s still driving under the influence versus driving while intoxicated, but they’re saying, you’re driving impaired. How common are DUIs and DWIs nowadays?

Mark Rosenfeld:

Unfortunately it’s very common, and DWI or DUI, just depending on what jurisdiction, what state you’re in, is going to depend on what they call it. Basically it’s the same thing. If you’re impaired for purposes of driving, then you can get in a lot of trouble, and it happens pretty frequently. Probably about 1% of the drivers on the road end up getting arrested per year for driving under the influence of alcohol, or drugs, or a combination of both. That can be legal drugs or illegal drugs. It’s just anything that impairs the ability to drive.

Bert:

Yeah, anything that impairs the ability to drive, and as you just pointed out, it doesn’t have to be legal or illegal, it’s just whatever is impairing your ability to drive. What’s interesting to me, Mark, and I want to get your thoughts on this, is that this does not affect anyone in the sense of, we see celebrities that get arrested for DUIs. We see the rich, the poor, the famous, and the infamous. It goes across all boundaries, right?

Mark Rosenfeld:

That’s absolutely right, Bert. We see it across all different segments of society. The most prevalent is alcohol, but more and more, we’re getting more and more drug allegations in DUIs. You see all different segments of the population getting DUIs, people that don’t have licenses, people that do have licenses, 18 year olds, 80 year olds, across the board. It doesn’t discriminate on profession, or race, or gender, men, women, of all different ages and all different professions. I’m just as likely to be representing a school teacher as I am a professional athlete. It can, and it does, happen to anybody. It’s kind of the every person crime that can happen.

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Bert:

Sure, again, correct me if I’m wrong. There’s constant changes in the laws to make, for instance, DWIs are constantly revising what the legal limit for a blood alcohol is. I’m sure they’re revising the DUI statutes to make them, I guess, more stringent, is word maybe I’m looking for. Do you find that to be true?

Mark Rosenfeld:

Absolutely, Bert. It’s fair enough to say, every year there are more and more laws on the books trying to prosecute people for driving under the influence, whether it’s broadening the scope of what it means to be impaired, or there is drilling down what the so-called per se limit is, the legal limit, or what the penalties are. Every year there’s new legislation that comes in adding classes, adding ignition interlock devices, expanding to include drugs, and combined influence. Many states, not many states but a few states, have gone to per se limits on marijuana, and those states that have recently legalized marijuana are soon to follow with specific levels of THC in the system that will result in an assumption presuming somebody is impaired.

Bert:

Yeah, so the old presumption of innocent till proven guilty is, really doesn’t exist. If they pull you over, they’re just assuming you’re guilty, and you’re immediately in trouble right there.

Mark Rosenfeld:

With driving under the influence, more so than with many other crimes, there is, in theory a presumption of innocence. But when someone is stopped under suspicion of driving under the influence, the entire event is watched by law enforcement officers, and they have a goal. They have a bias to stop and make arrests. Whether they result in convictions or not is a different story, but officers get credit, they get their statistics, they get awards, they get overtime pay. It’s very easy to see someone who may appear impaired and throw a label on that, that they’re drunk driving or driving under the influence of drugs and get caught in a very large net in a very big system.

Bert:

Yeah, yeah, absolutely. You know what, it’s one of those things where unlike … If I’m drunk or impaired, and I’m stumbling around my house, I hurt myself, that’s on me. If I’m behind a vehicle that could damage property, kill people, it’s a different scenario. I think that’s one of the reasons that both politicians, as well as law enforcement people, are so, what do you call it, aware or heightened or concerned about who is behind the wheel and what kind of condition they’re in.

Mark Rosenfeld:

Yeah, absolutely, and it is a very big concern. Like you say, if someone’s in their own house, or even if they’re walking on the street, and they’re impaired, they’re really not going to have an effect on anybody else’s life. But if they get behind the wheel of a car, then they can run that risk of hurting not only themselves, but other people. That’s really our worst nightmare is that somebody is impaired for purposes of driving and gets in an accident, and somebody is hurt or killed. We absolutely want to avoid that, but at the same time, we also want to avoid people who are not drunk of getting convicted of something that they didn’t do.

Over the years, over the decade, the term drunk driving has been falling away, in place for impaired driving, because they are stopping, and arresting, and convicting people, not of drunk driving, not what we would typically assume. We would expect to see where somebody is swerving, lane straddling, having trouble controlling the car. Then when they get pulled over, they stumble, have slurred speech, that type of thing.

They’re taking the limit down to the point where people are actually driving normally, they’re walking fine, they’re talking fine, and they have very low levels, relatively very low levels, of alcohol in their system and still get arrested, because many people, at a .08 are going to show some mental impairment. But many people don’t, and those people are driving okay, but they still get stopped and arrested for driving under the influence.

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Bert:

Yeah, sure, absolutely. All right, so let’s talk about this. You have a nickname of Mr. DUI in LA there, so I want to talk about winning a DUI or a DWI. How often is that a winnable case, because again, from my understanding, the police pull you over, they’re recording anything you say. In a lot of cases, they have a body cam, they’re recording how you behave and interact. There’s a dash cam that’s recording you. So the minute they pull you over, they’re recording you, they’re questioning you. And if they feel that you’re impaired, again I’m not really sure, you can walk me through the laws. I know that they can draw blood, and I think that as a citizen, you can refuse to have that, or you can refuse to blow, as well. So how winnable are these case? Talk about this.

Mark Rosenfeld:

Bert, you would be surprised that there are very good defenses to driving under the influence cases. Like I said earlier, not everybody who’s been arrested is guilty of this charge. There is this bias out in the population that if you were driving, and you blew into a machine, or you did a blood test, then you’re done, and that’s just not the case. That’s something that people think because of the publicity that is put out there, the marketing and the advertising that is done by the government, by the National Highway Traffic and Safety Administration, by police departments, through grant funds, to present this image. They run commercials, they increase enforcement, and they want you to think that if you’re arrested, you’re guilty, and that’s not the case.

There are a lot of good defenses, and jurors will sit and listen when you take these cases to trial, and they will get educated, and they will learn that not everything the government is telling them is true. The jurors can sit and weigh what the right answer is in this particular case.

When we look at a DUI case, and we look at what is the likelihood of success, and what we’re going to win, there’s winning through jury trial, where you get not guilty verdicts. There’s also winning through settlements, through negotiation, if that’s what’s appropriate in the case.

There’s some very big defenses. There are legal defenses, there are legal strategies, using constitutional rights, state rights, to defend a DUI case. Law enforcement officers are supposed to play by the rules, and there are legal defenses in place to help people from the very beginning. The officers need reasonable suspicion to believe that someone has committed a crime before they ever make contact. Once they do make contact, the contact should be fairly limited to a very short period of time, and officers often will violate this law. They will delay, they will extend, detention to the point where it’s an illegal detention, where they keep somebody too long without probable cause.

There’s issues regarding unlawfulness of arrest that need to be looked at, and as you mentioned, when we get to a breath or a blood draw, citizens have rights as far as what they choose to do. The government is required to get a warrant if they want to draw blood. If some officers violate those rights, and they draw blood without a warrant, without an exception, blood test results can be suppressed. They can be thrown out.

If we’re talking about blood, the blood also needs to be drawn in a medically approved manner, and a lot of times that’s not done. Blood is drawn at police stations and jails, in conditions that are not medically approved and not sanitary, and resulting in injury, infection, and can cause problems for someone. When we see those situations come up, we’re often able to get blood suppressed or thrown out, which helps defend cases on legal grounds, just like the rules of evidence will prevent certain evidence from coming in, if it’s not trustworthy and reliable.

So legal defenses is one big field of defense. Another big defense are scientific defenses. The investigation that’s done by the officers is supposed to be scientific, done in a specific way. When field sobriety tests are administered, they’re standardized tests, which are supposed to be given to a person in a standardized fashion and scored in a standard way. If this isn’t done, it’s going to raise doubt as to the trustworthiness and reliability of the investigation, so that is always a big issue.

When we look at scientific defenses, there’s also common rising blood alcohol level. Alcohol levels in a person don’t stay constant. They change over time. When someone is driving, and they may have one blood alcohol level at the time of the test. A half hour later, or maybe even an hour later, their alcohol level has changed. It’s a moving target, which can create opportunities for defense. And there’s more.

Bert:

You know what, and here’s the thing. You know this probably better than most people. Again, correct me if I’m wrong, it seems to me that law enforcement and prosecutors are very slow to admit any kind of, I don’t want to say wrongdoing, but they hate to admit that they don’t have a case, they hate to dismiss a case when they do. Am I right? It seems like, as you mentioned, they’ll delay, they’ll prolong, they’ll, what do you call it, ask for a continuance time and time again as they’re trying to build a case, versus just saying, “Hey, we don’t have a case right now,” and dismissing it. It seems like they hold onto stuff. Is my perception wrong?

Mark Rosenfeld:

No, not at all, Bert. The prosecution and the prosecution team, which includes not only district attorneys and investigators, but also the police officers in the field, they are very aggressive in the way that they handle cases. It’s a very competitive business for them. Police officers want to make stops, they want to make arrests. Not only do they enjoy that work, but they keep tabs, they keep statistics on the number of stops, the number of arrests that they make, and they can not only make a lot of money in overtime, but work on promotions, and move up in ranks.

It’s no different when you get to the district attorney’s office. They keep track of the number of trials that they do, and they keep track of the number of wins, and if you want to get promoted in the district attorney’s office, you’re going to be trying cases, and you better be winning those cases. It doesn’t look good if you’re pleading all the cases out, and you’re cutting deals, or dismissing cases. The supervisors are going to be looking over the district attorney’s shoulders and wondering why they’re doing what they’re doing.

So cases can be reduced, they can be dismissed, but it’s going to take a good argument and good evidence to explain why that needs to be done. District attorneys and other prosecuting agencies will hold onto cases and will delay cases to get witnesses, find witnesses, and get the evidence that they think that they can, to prosecute a case.

Many times, you find this less likely, but it does happen, and it happens more than people think, but prosecutors will suppress evidence. It will be evidence that’s available that shows that someone may not be impaired, and that evidence never makes it to the defense attorney, and it never makes it to the jury, because it’s not helpful. We see that with the prosecution team as a whole.

You mentioned earlier about video, and the police officers are often required to videotape the entire enforcement contact, but when it gets to something that’s subjective and open to interpretation, like field sobriety tests, the officers, the suspect off camera. The camera’s pointed at the front of the car, and they take the person off to the side, and conduct this whole investigation where you can’t see what’s going on. And many times, for some reason, the microphones don’t work during that part of the investigation as well.

It’s amazing that there’s no record of any repairs or maintenance that needed to be done to the equipment, but off to the side people go. Officers say, well it’s for officer’s safety, it’s for the person’s safety, to make sure that they’re out of the street. Sometimes that’s true, and other times they’re in a well-marked parking lot at 2:00 in the morning, and no one else is around, and there’s no reason why the investigation couldn’t take place in front of a car where we could actually see what’s going on. So there is a competitive nature.

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Bert:

Sure, sure. Let me ask you this. Somebody gets pulled over. What do I have to comply with, whether I’m impaired or not, whether I think I’m impaired or not? Let’s say I get pulled over for a busted tail light, so they have probably cause to pull me over. And so Mark, specific to California, because that’s the area you work in, what do I have to give that officer? Do I have to talk to him at all? He asks me for my driver’s license and insurance, I can hand that over to him, but I don’t have to interact with him. Walk me through what should I do when I get pulled over?

Mark Rosenfeld:

Sure, there’s what the law requires, and then there’s just in reality, what’s going to happen, and what you need to do practically speaking. In the field, when you’re driving, and you get stopped by an officer, the police officer really has unlimited discretion. They could let you go, they could keep you there, they’re very limited supervision.

If you get pulled over for an equipment violation, a broken tail light or something, the conversation should be very brief, polite. You should put all the windows down, keep your hands on the wheel. In real life, they’re not there as your friend to help you. They’re going to write you a ticket, or they’re not, and you should not answer any questions that an officer has about where you’re coming from, or where you’re going, have you had anything to drink. Really the best answer is to say, “I’ve got a friend who’s a lawyer, and he said really I shouldn’t talk to police officers. So here’s my driver’s license, here’s my registration and insurance,” and that’s about it.

The problem is that police officers don’t like that, and it may turn into a bigger investigation, so as little small talk as possible when you’re in the car. Definitely don’t tell someone that, don’t tell an officer, you’ve been drinking, because you’ve just given them a reason to get you out of the car. Don’t tell them that you have not been drinking if you have, because then you’re giving false information to a police officer, and possibly you could be charged with another crime. That’s when the answer of, “My lawyer told me not to talk to the police” is really the only answer you can give. By saying, “I don’t want to talk. My lawyer said not to talk,” that’s the answer.

It’s also important to keep in mind that if a police officer does ask you to get out of the car, the fireworks should be going off, and the flags should be going up. If the police officer’s asking you to get out of the car, things have gone wrong, and they are not going to be getting better. You’re not going to talk yourself out of something once they tell you to get out of the car. If they tell you to get out of the car, at that point, you really need to use your right to remain silent. You may end up going to jail that night. If they’re asking you to get out of the car, you’re probably going to jail anyways. If they ask you to get out, you have to stop talking.

You do not need to do, as long as you’re not on probation or parole, and you’re not under 21, you don’t need to do the field sobriety test. You don’t need to walk the line, touch your nose. None of that stuff is required, but if you are lawfully arrested for Department of Motor Vehicle purposes, you do need to submit to a chemical test, which is a breath or a blood test. It’s just safer to take the blood test. If you are going to be arrested, and the officer offers you breath or blood, just take the blood test. They’ll take you either to a nurse in the jail, or they usually will take you to a local hospital to have the blood drawn, and that’s going to be the best thing to do.

The more you walk and talk and do field sobriety tests, the more information you’re giving them. The whole contact, from the minute they walk up to the window, is a DUI investigation. When they ask you questions about whether you’re under a doctor’s care, they’re not doing that to help you. They’re doing that to build a case against you. So you do not have to do the field sobriety test or answer the questions, but you do, for DMV purposes, have to do a blood test after you’re arrested. I would recommend the blood.

Bert:

Right, right. Mark, we’re out of time. Good stuff. I’d love to bring you back and talk more about our legal rights and what to do and don’t do. Again, I think this is a scenario where somebody like you who does it every day, you know exactly what to do and not to do. But for us individual citizens, most of us don’t know what our rights are. We don’t want to be rude, and especially if we feel we have nothing to hide, which is one of those big myths, if you have nothing to hide, you don’t need a lawyer, nothing’s going to go wrong. I’d love to bring you back and talk about that one myth, because that really hurts a lot of people.

Mark Rosenfeld, I want to thank you so much for stopping by.

Mark Rosenfeld:

Thank you for having me on the show. It’s been great.

Bert:

Alrighty, good stuff there from Mark Rosenfeld.

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