Top Myths and Misconceptions Regarding DUI Charges in California
The officers are also trained to continue their investigation when they walk up to the car and start talking to the driver. They will look for clues like the odor of alcohol, and they’ll also look to see the condition of the person’s clothing as well as their eyes. They will build a case and develop evidence with what they’re able to see, hear and smell and then, they will also ask a person to get out of the car. They will use how the person gets out of the car as evidence of whether the person is or is not impaired and they will ask a series of questions to determine whether or not the person understands and answers the questions like a sober person or like somebody who may be impaired for the purposes of driving.
Of course, there are field sobriety tests, both standardized and non-standardized field sobriety tests, which the officers will often have somebody do. Field sobriety tests will assist the officer in preparing a case and compiling evidence to prove that someone is or is not impaired for the purposes of driving. So, the lack of a chemical test, although very important for a couple of different reasons, does not mean that the prosecution will not have any evidence. One of the biggest arguments that a prosecutor can make is that somebody refused to submit to a breath or a blood test and the reason that they refused is because they knew that they were impaired for the purposes of driving.
This is a consciousness of guilt argument and there’s actually a jury instruction of law, meaning a judge will instruct the jury that they can take into consideration the fact that somebody refused to complete a test. It gets more complicated if it’s not a straight refusal but perhaps an inability to complete a test instead, which may also be used against somebody. So, not having a breath or a blood test is less evidence for the prosecution, but it does not mean they have no evidence.
The truth is half of the test may be a physical test; the other half is observation of the eyes. The person who’s having the test performed on them will not know what their eyes are doing as far as small jerking movements within the eye. It does not affect the vision, and there are people that have this condition, nystagmus, naturally. A lot of different factors including alcohol can trigger nystagmus, which is what the officers are looking for. So, somebody may follow all of the officer’s instructions during the HGN test: stand with feet together, arms at their side, head forward and not moving, and eyes (and only the eyes) following the stimulus. People do all of this and think that they have successfully completed the test. But in reality, the officer is looking for what the eyes are doing, at what angle the eyes are doing the jumping or nystagmus, and the person who is getting the test done will not know what the officer’s observations are. Unless it’s videotaped with a videotape rolling on the eyes of the person being tested, we are left to the officer’s opinion and the officer’s report to know whether there was or was not nystagmus and to what degree.
The prosecution will likely still have observations of the officer as far as the driving pattern, how the car was driving, how the car stopped and whether there are observations of symptoms that could be consistent with alcohol impairment such as red, watery eye or slurred speech. Those observations are things the prosecution may still be able to get from an officer. I would not say it’s “home free,” but people definitely have a more defensible case with the least amount of evidence given to the prosecution.
Many people will waive their Miranda rights whether they are explicitly read to them or not. However, when we’re looking at a driving under the influence case, there is an exception to the Miranda rules because the person is not technically in custody, they have not been arrested when most, if not all, of the DUI investigation is taking place. When the person is first pulled over, they’re not arrested, so Miranda doesn’t apply and the officer gets to ask whatever questions he or she wants. When the person is asked to get out of the car and do the field sobriety tests, it’s usually voluntary and people usually agree to do it and the person is not arrested; therefore, Miranda does not apply.
Once somebody is arrested, then Miranda would apply if there was going to be an interrogation and more questioning. However, most police officers have completed their investigation except for a breath or a blood test. They had completed the investigation by the time that person had gotten arrested and there are no more questions. All of the questions about where the person was coming from or going to and what the person had to eat or drink have all been asked and answered before the arrest and before Miranda would apply. Once the person is arrested, the only thing left for the officers to do is to get a chemical test, either by breath or blood or sometimes urine, and the person is obligated in most situations to give a chemical test or they’ll suffer consequences at the Department of Motor Vehicles as well as possible consequences in court.
There may be some exceptions where a warrant may be required, but most of the time, people are going to be required to submit to a chemical test after arrest and Miranda would not apply because there is no interrogation being done. It’s simply a sample of the person’s blood or breath. So although Miranda is very important and it can come into play in some DUI situations, most of the time it is not going to be a significant factor and officers do not have to read Miranda in most DUI cases.
Additionally, when we have police departments that do have video equipment, most of the time that’s located in the car facing forward and when the DUI investigation is conducted, the subjects of the test are usually taken off to the side for safety and it is not recorded on the car’s video camera.
Many police officers are now carrying personal digital recorders, either audio or video. However, it often proves to be difficult to locate and obtain these electronic recordings. Although they are required to be turned over by the prosecution, many times the prosecutors themselves don’t even know that they exist. So, an officer’s behavior can be very important in defending a DUI case. However, what is ultimately available to the defense is going to be dependent on the law enforcement agency, whether it’s a California Highway Patrol or Los Angeles Police Department or perhaps the Beverly Hills Police Department. Each agency will have different equipment and that equipment may vary from location to location even within one particular police department and then, police officers themselves or sheriff’s deputies themselves may have their own personal equipment. However, it is often very limited in what we’re able to get and use in court.
There are no real downsides to a police officer giving misinformation to somebody who they are arresting for a DUI. The police officer may give a false chemical test result, telling somebody that they’re a borderline case like a 0.08 when in reality they’re much higher just so the person goes along with the program. They may tell someone that if they go to court and fight it, they’ll be able to get a reduction very easily when in reality, that’s not true and a police officer doesn’t have any real say as far as what charges are brought or how the charges may possibly be reduced. Police officers are interested in shortening the amount of time they have to spend in conducting an investigation getting the information they need, and officers are trained to become very friendly very quickly with a potential suspect or people that may be arrested for a DUI because it makes their job easier and safer.
So, even if somebody does not have a substance abuse problem and they’re not an alcoholic or a drug user, a DUI case has certain mandatory penalties, certain minimum penalties and maximum penalties that the court system takes very, very seriously. The court system is often watched by other organizations like Mothers Against Drunk Driving who keep an eye on the judges, the prosecutors and the entire system to make sure that DUI offenders are prosecuted, and every single case is taken seriously.
Field sobriety tests have been studied and there have been studies done that show that people who are completely alcohol free, with no alcohol in their system at all, can fail field sobriety tests and people who have very high levels of alcohol in their system but are very tolerant can do well on field sobriety tests. There have also been studies to show that police officers are very poor judges of field sobriety tests not being able to accurately distinguish or tell the difference between people who are impaired by alcohol and people who are not impaired by alcohol. So, with such a variety of possible outcomes, the best thing to do is elect not to do field sobriety tests because if you do enough field sobriety tests and you do them long enough, you’re not going to be successful. There will be errors, there will be problems and with enough testing and enough time, the officers will be able to develop so-called evidence that somebody is impaired.
And if somebody had three drinks, the officer will smell the odor of alcohol and the officer may or may not believe the person is telling the truth when he/she sas, “Yes, I had three drinks over a couple of hours.” That should put somebody below the legal limit. However, officers will still go forward conducting an investigation to determine whether the person is impaired. The person may be on medication or drugs, and that can affect an officer’s decision. But most of the time, an officer is not going to believe somebody when they say, “I only had two or three drinks”; they’re going to think that person had more. And depending on what type of testing is done, there can be false positives showing that the person actually has more alcohol in their system than they do. So, one must be very careful with how much they had to drink and what they are willing to tell an officer. And you also need to be careful when telling an officer what you had to drink because if you give them information that is determined to be false, you could find yourself in more hot water.
It’s going to depend on the prosecutor and the relationship that the defense attorney has with the prosecutor in working out a case. Sometimes, it can work to someone’s benefit but many times, it will work to their detriment where things will get worst because the person has experience with alcohol or drugs or works with children and a prosecutor may want to send a message out. Every DUI case is different and unique. Everybody’s employment situation is different and it’s important that a defense attorney take into consideration all of the factors surrounding a DUI case in handling that case. For some cases, the best possible outcome is a settlement; in other cases, it may be appropriate to go to trial.
They don’t want to consider whether somebody is a single parent or not. They’re looking at the DUI: they’re looking at the driving, the field sobriety tests, the chemical test results and they’re looking at the statutory or state law requirements that if there is a DUI and the person is convicted, there are certain mandatory minimum penalties and maximum penalties if it’s a first time DUI or second time DUI. It’s very important for a defense attorney to be able to bring in arguments and information about a person to help the prosecutor understand that there is more going on than just a standard first time DUI or standard second time DUI. So, the fact that somebody is a single parent is important and needs to be used when appropriate but it is not a given rule that they’re going to get an easier time or a harder time when they go into court on a DUI.
If a person is impaired to the point where they cannot operate a motor vehicle the same way or a similar way as a sober person would, they can be found to be DUI or impaired for the purposes of driving. We see that with prescription medication and we see it with illegal medication and we also see driving under the combined influence of alcohol and drugs, which is another code section where prosecutors have latitude to charge a DUI. It is more difficult for a prosecutor when a case is properly defended to prove that somebody is impaired from medication or drugs, whether that’s legal or illegal. There are not the same presumptive levels like there are with alcohol of 0.08. With alcohol, the law basically states that if someone is at 0.08 or above, they are impaired for the purposes of driving. That’s not scientific; that’s legal, but that’s the state of the law.
Whereas with medication or drugs, there are therapeutic doses and there are time periods (half-lives) where drugs may affect and may not affect one’s driving, but it is much more a case by case and individual by individual basis to have a case properly analyzed. So, it is much better for the defense or much easier for the defense to defend a case where it is a drug case than it is a straight alcohol case. That is the situation if the defense attorney is properly trained and experienced in analyzing DUI drug cases.
This would not be the situation if you’re in Nevada where being in possession of the car while under the influence (i.e. sitting in your driveway and you’re impaired behind the wheel), you could be charged with a DUI. There are also additional distinctions from state to state on what makes a regular DUI versus a so-called aggravated DUI. There are different charges and different blood alcohol levels from state to state. And what is required as far as submitting to field sobriety testing or chemical testing is going to vary from state to state as well. So, if you’re going to be driving in California, you need to be aware of what are the laws, the rules and the regulations for California to make sure that you comply with all the appropriate laws.
The prosecutors will argue that the person is still impaired for the purposes of driving even if they’re 0.07. They may be impaired by a combination of alcohol or drugs but even just straight alcohol impairments. We see more and more prosecutors charging them at lower and lower levels. Someone may blow a 0.08 in the field and then blow a 0.07 at the station and the prosecutor charges them with a full-blown DUI and says, “At the time they were driving, they were 0.09.” So, each case is different and many prosecutors will prosecute at or below the legal limit going forward with other theories of the case.
I’ve seen it in all different situations where someone’s stopped on the freeway, maybe they ran out of gas, and they’re prosecuted for DUI. Other cases, they’re stopped -parked legally on the side of the road – and they’re charged with the DUI. I had one case where the person was parked in Hollywood outside of a restaurant on a side street, legally parked, and he was arrested and charged with the DUI. Nobody saw him move the car, he never admitted to moving the car, and he was arrested and charged with the DUI.
So, it’s very important that if somebody is charged with driving under the influence, especially with a DUI causing injury, that they contact a good defense attorney very early on and take steps to make sure that they don’t have any inflammatory or incriminating statements or evidence posted on the web. More and more, technology plays a role in DUI cases and prosecutors are out there looking for additional information and make no mistake, the prosecutors will Google search people who are charged with the DUI to get as much information as they can about them.
Just because somebody is stopped and arrested for a DUI doesn’t mean the case is over. That’s where the case begins. When we look into what the prosecutors and the police officers are trying to use as evidence, many times we will see that that is just flawed and untrustworthy and juries understand that the prosecution has the burden of proving not only that the person drank and drove (because that is legal) but that they were so impaired that they could not drive the same as a sober person and that the chemical tests were administered in accordance with state law and scientific principles. And when the prosecution can’t do that, juries acquit.
People can do all sorts of things themselves but it’s just not a good idea in this situation. People can cut their own hair, but when you look at the result of someone who cuts their own hair, it’s not the same as having someone who has gone to school and has a license to cut hair. People could, in theory, do their own dental work; it’s not a good idea. The best chance for the best outcome is to have a private defense attorney who knows how to handle DUI cases represent a person. If you can’t afford a private attorney, then you need to apply for services of the public defender because it’s better to have a public defender than to try doing it on your own.
It’s the same type of thing with attorneys. If you have a family law question, you go to a family law attorney; if you have a criminal question, you go to a criminal defense attorney; and if you have a DUI, you go to a DUI defense attorney. That’s the way you get the best possible outcome. Your attorney needs to know the judges, needs to know the prosecutors, needs to know the police officers and needs to know the procedures for each particular police department to know what to look for, what’s there and what’s missing.
A general practitioner won’t know what they don’t know. They won’t even know what to ask for or what to look for and they won’t be able to properly analyze a case. When you’re looking for an attorney to help represent you, you could go to a family member but it’s penny-wise and pound-foolish. You’re going to end up trying to save a couple of dollars by going to someone who’s a general practitioner. This choice is going to end up costing you more in the long run. For the best possible result, you want someone who handles these types of cases all day everyday.
Shopping by price alone is not going to get you the best possible outcome. It’s not a Wal-Mart or a Costco situation. To find a good attorney, that attorney is going to have to have experience. That attorney is going to have to spend time doing extensive training above and beyond what is required by the state bar. And in order to get that training and to become an excellent DUI defense attorney, it’s going to cost that attorney time and money to do it. They’re going to pass that cost along to their clients because their clients know that they’re getting a better value even if they have to pay a couple of dollars more.