Most people do not realize how much power the California Department of Motor Vehicles has until they are forced to come in contact with them.  Unfortunately this is usually as a result of being arrested for driving under the influence.

In California, the law allows the DMV to conduct their own administrative hearing to determine whether an individual was driving with a blood alcohol of .08 or higher, regardless of the outcome of any criminal proceedings.  Because the DMV administrative hearing is not a criminal hearing, they are not held to the same standard and the individual being accused of DUI is not afforded the same constitutional protections as they are in a criminal proceeding.

The DMV hearing officers who conduct these administrative hearings are not lawyers or judges and are not required to have legal degrees.  They act as both prosecutor and judge when conducting a hearing.  They rely on the information they receive from the arresting agency and on whatever blood alcohol results the agency submits.  Although the hearing officers should be concerned with whether or not the arresting officers followed proper procedures when stopping, detaining and arresting an individual, their conduct at the hearing seems to indicate that they are not.  For example, if a police officer does not have reasonable cause to pull someone over, and it can be proven, the court case would have to be dismissed, regardless of the results of the blood alcohol level of the individual.  The same should apply to the DMV Administrative Hearing but, as evidenced in a recent case in Orange County, the DMV continually ignores police officer errors.  In this particular case, the police officer illegally obtained a test showing that the individual’s blood alcohol was over the legal limit and therefore, the case was thrown out.  However, even in the face of a court ruling that the test was obtained illegally, the DMV chose to ignore this and suspended the individual’s license anyway.

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Every summer, the Orange County Sheriff’s Department launches their “Summer/Labor Day National Anti-DUI mobilization” in an effort to minimize the number of people who get behind the wheel after drinking.  The campaign has been in effect for several years now, and the Sheriff’s Department has made the campaign public, hoping to deter people from driving after a night of drinking and partying with friends.

The campaign usually starts sometime in late June or early July and continues through Labor Day weekend.  The Sheriff’s Department puts out extra effort to crack down on drunk drivers during this time because the summer months, after school lets out, is the time when people are celebrating the end of school, graduations and vacations.   Also,  summertime in Orange County, with its beaches and great weather, brings people out of their homes to socialize in their beach communities.

The campaign this year began with the “Avoid the 38″ campaign, which started on August 15th and ended on August 24th.  The campaign consisted of officers and deputies from 38 Orange County law enforcement agencies, and resulted in 483 arrests for DUI of alcohol and/or drugs.  This number is up from 374 arrests that were made during the same campaign in 2013.

Over the next several days, the campaign will continue, along with extra DUI Saturation Patrols, through the Labor Day weekend.  It’s not only the DUI task forces who will be on the lookout for drunk drivers, the regular traffic/patrol officers will be especially vigilant  in their efforts to stop and arrest drunk drivers.

Drivers in Orange County can expect multiple DUI/Driver’s License Checkpoints, along with the task force presence, to continue through Labor Day and should plan accordingly when out socializing and drinking.  Even if you have only two drinks, if you end up at a checkpoint and are asked if you have been drinking, your answer “yes” will prompt the officer(s) to check further for signs that you may be over the legal limit of .08.

If you would like to know more about the penalties and consequences for being arrested for DUI or, if you would like to know more about the guidelines for DUI checkpoints, please see the links below.

Driving Under The Influence Penalties

 

What Are Some Of The Guidelines for DUI Checkpoints?

 

 

If you have been arrested for DUI in Orange County, California, you need a lawyer who can protect your rights and who will make sure that your rights are not violated. Orange County is considered very strict when it comes to driving under the influence and they take it very seriously.

It is understandable that you are probably feeling afraid, confused and angry about what has happened and what you may be facing as a result of your arrest. The whole process of being arrested, taken to jail, fingerprinted and photographed is embarrassing and scary and we are very sympathetic to that. But, the reality of the situation is that a conviction of DUI can have very serious consequences. However, having an experienced attorney can help to mitigate the severity of those consequences.

There are many possibilities that can be challenged in an arrest and potential conviction for DUI. An aggressive defense attorney will raise those challenges, and look for those challenges to see if they apply to your situation. Closely reviewing the police report, viewing any video and listening to audio can sometimes reveal inconsistencies in the police officer’s report and/or testimony.

Although our goal is always to have the case dismissed without a conviction, as well as preserve your right to drive, when the evidence is overwhelming against you, the next step is to be aggressive and creative with the ultimate outcome. The first thing we always look at is was the stop and arrest legal. Did the arresting officer have cause to pull you over and ultimately arrest you? Were any of your rights violated with regard to the stop and arrest? These are questions that must be addressed immediately to determine what the rest of the case may look like going forward.

Another very important piece to the arrest is, was any equipment used in assisting the officer with his decision to arrest you? If so, was it working properly and was the officer who administered the test certified to do so. If any of these procedures were not followed properly, it may result in your case being dismissed and preserve your right to drive.

There is no guarantee that any attorney will be successful because each case is different and has a different set of circumstances. Each case has to be looked at individually, looking for those errors, mistakes or inconsistencies on the part of the arresting officer. Further, taking a look at your life, your history, your family and just getting to know you will help us when it comes time to talk to the District Attorney. We feel it is extremely important that the prosecution and judge know you as a person, not just as the person who has been arrested for DUI.

So, even if you know that you were in fact over the legal limit when you were stopped and arrested, you should consult with an experienced DUI attorney to determine whether or not you have a chance at preserving your record.

Anyone who is arrested for driving under the influence faces the possibility that his or her driving privilege will be suspended by the Department of Motor Vehicles. So, not only will you have to defend your case in Court, you will also have to defend yourself to the Department of Motor Vehicle. There are two separate hearings and, one has nothing to do with the other. The Department of Motor Vehicles hearing is an Administrative hearing, not a criminal court proceeding.

The Department of Motor Vehicles’ role is not to determine whether or not you have committed a crime, only to determine whether you were driving under the influence of alcohol or drugs, a violation of the Vehicle Code. This subjects you to suspension or revocation of your driving privilege.

When determining whether or not your driving privilege will be revoked or suspended, the DMV focuses on the following only:

If you took a blood or breath or a urine test:

• Did the officer that pulled you over have reasonable cause to do so; did he/she have reasonable cause to believe that you were under the influence and, did the officer have reasonable cause to believe you were driving the vehicle in which you were in.
• Was the arrest legal, meaning did the officer follow all of the rules and guidelines to make the arrest?
• Did the test results show that you had a .08% or higher alcohol content in your body?

If there was no test given or, if you refuse to complete or submit to a test, the DMV will suspend your driving privilege based on your refusal and/or failure to complete the test. In this situation, the DMV will look at the following:

• Was the stop lawful and were you driving the vehicle.
• Were you asked to take a test?
• Was your arrest lawful?
• Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or urine, (if drugs are suspected), that your driving privilege would be suspended or revoked?
• Did you refuse to submit to or failed to complete a blood or breath test, or a urine test after being requested to do so by a peace officer?

If your response to any of the above questions is No, you may have a chance at getting your driving privilege restored. A good experienced DUI defense attorney can take a look at your case and determine whether or not you have a shot at prevailing at a DMV Administrative Hearing.

It is important to keep in mind that, if you are arrested for DUI, you have only 10 days to request a DMV hearing. If you fail to request a hearing, the DMV will automatically suspend or revoke your driving privilege.

While it is very difficult to win a DMV hearing, it can be done. Hiring an attorney who has experience in conducting these hearings, who knows what to look for, and what types of defenses the DMV Hearing Officers will accept, will help your attorney determine whether or not you will be successful. However, in all cases, your attorney should always request a DMV hearing and attempt to help you keep your driver’s license.

In California, driving under the influence is considered a serious offense and the consequences to such a crime reflect just how serious it is. The consequences are set up so that it impacts one’s life in such a way as to deter the offense from happening again. However, there are those who do end up with multiple DUI’s, and with each new charge, the consequences become more severe.

While driving under the influence in general are filed as misdemeanors, there are situations where it may be charged as a felony. Among those situations is if you are arrested and charge with a fourth DUI, within a ten-year period of time. As mentioned above, with each new conviction, the consequences become harsher. Four a fourth DUI, the maximum period of sentence for a felony DUI, without any injury to any person, may extend up to three years.

Other circumstances that may cause a DUI to be filed as a felony are: 1) Bodily injury to another person and 2) If you have at least one prior felony DUI on your record.

Prison time can be imposed, but it is not mandatory. Before we get to the sentencing stage, let’s take a look at the present arrest for DUI, as well as the priors. A good DUI defense attorney will look carefully at the priors. For instance, were they all within a ten-year period? This is crucial because if even one of the priors was more than ten years ago, it could make the difference in a misdemeanor filing and a felony filing. Also, taking a look at each individual prior to ensure that they were proper convictions is important. If there is any way to take a prior out of the situation, your attorney should pursue this aggressively.

The new DUI should of course be looked at very carefully. Making sure that all law enforcement procedures were followed correctly, the blood or breath tests administered properly, the initial stop was a legal stop, and that the report is accurate. Taking a look at the calibration of the machines used and the blood draw procedures and tests must also be reviewed, looking for any errors or discrepancies. Any errors, inconsistencies or questionable procedures may be enough to get the case dismissed.

However, if it appears that all procedures have been properly followed, and a conviction imminent, we must then turn our focus on alternative sentencing. The maximum sentence for a felony DUI, as mentioned above, may extend up to three years and while prison can be imposed, it is not mandatory. A lot will depend upon the circumstances surrounding the new conviction.

A fourth conviction for DUI is very serious and the prosecution will pursue jail or prison time. An aggressive DUI defense attorney will try to convince the District Attorney and Judge to allow alternative sentencing. But, it depends upon many factors. For example, what was the blood alcohol, how long has it been since your last conviction, what steps have you taken to remain sober and what is happening in your personal life. IN other words, are you married with children? Do you have a job? Are you the sole support of your family? These are all things that will come into play when trying to convince the judge and district attorney to allow alternative sentencing.

Alternative sentencing includes the following:

1) Electronic Monitoring
2) Work Release or Work Furlough
3) City Jail
4) Alcohol or Drug Rehabilitation
5) Sober Living
All of these options should be explored in an effort to avoid going to jail or prison. These types of alternatives will allow you to work or go to school, and allow you to still have some form of regular contact with your family.

Convincing the District Attorney and the Judge that these options are much better solutions than jail or prison, especially when the problem is more than likely addiction, is the best option for you. These options allow the individual to work on their sobriety without loosing everything important to them.

You’ve just been arrested in Orange County, California for driving under the influence. What happens next?

The most time-sensitive matter you need to address is the DMV Administrative Per Se (APS), hearing. You have ten days from the date you are arrested to request this hearing, in writing.

What many people don’t know is that when you are arrested for DUI, if you fail the blood, breath or urine test, meaning that you had a .08 or higher blood alcohol level, your driving privilege in California is automatically suspended by the Department of Motor Vehicles. The length of the suspension depends upon whether it was your first arrest for DUI and, whether you were under the age of 21 years at the time.

Once you request your APS hearing with the DMV, your license suspension is “stayed” meaning that you may continue to drive pending the outcome of the hearing. Requesting a hearing with the DMV is completely different than the Court hearing which you will eventually be required to attend.

The DMV is very strict and basically just wants to know whether or not you were driving with a blood alcohol level of .08 or higher. They do not negotiate. However, there are situations where the DMV sides with the driver and overturns the suspension. This only happens in very specific instances. For example, if you can prove that you were not driving and had not driven the car you were in. Or, if the police officer’s report is inaccurate or the officer’s testimony conflicts with his report. There is also the rare instance where an officer fails to turn in the paperwork to the DMV or fails to appear at the hearing. There are other situations but each case/report needs to be reviewed carefully to determine whether or not there is a chance at over-tuning the suspension.

Completely different and apart from the DMV hearing is the Court hearing. After you were arrested, you were most likely given a piece of paper with the date, time and location of your court date. You must appear at this hearing or a bench warrant for your arrest will be issued. However, you do not need to attend if you have hired an attorney to represent you. Most DUI’s are misdemeanors, which means you may have an attorney appear for you at each hearing, all the way through to its conclusion. For some, hiring an attorney to handle their matter is worth it just so that that they will never have to appear in court. For some, it is because they can’t or don’t want to miss time from work. For others, they feel embarrassed and would rather have an attorney go to court and take care of it for them. Most DUI’s can be handled without the person every having to step foot inside of the courthouse. This is motivation for many and reduces the amount of stress associated with the arrest and consequences that are associated with a conviction for DUI.

For more information regarding DMV hearings or your arrest for DUI, feel free to contact William Weinberg at 949-474-8008 or visit my DUI website at http://dui.williamweinberg.com.

Being arrested for DUI is embarrassing and can cause extreme anxiety, as well as the effect is has one one’s day-to-day life. My job is to help you through this long, complicated process. From the DMV Administrative hearing all the way up to Trial, if necessary. In prior blogs, I have discussed some of the different defenses to driving under the influence. There are many ways to challenge a DUI but each case is unique and must be looked at individually. In some situations, when none of the defenses seem to fit your case, you may decide that you want to go to Trial rather than pleading. It is also my job to advise you of both the pros, as well as the cons to such a decision.

There are many charges that can be associated with a driving under the influence. They include DUI of not only alcohol but also prescription drugs or marijuana. Police Officers can now charge you with DUI even if they didn’t see you drive but you were behind the wheel. This is known has having physical control over the vehicle. These types of cases are complex but can be successfully challenged and won. Reckless driving and negligent driving are also charges that can come with a driving under the influence charge. Driving on a suspended license, hit and run, minor in possession of alcohol and furnishing liquor to a minor are other charges that I have defended that were associated with DUI charges.

A conviction for driving under the influence is a serious charge and the consequences can be quite extreme, depending on the circumstances. As discussed in prior blogs, the punishments for DUI vary depending upon whether it is your first, second, third, etc., how high your blood alcohol level was, was there an accident involved, were there children in the car, etc. A conviction results in a loss of your driving privilege for a period of time, along with other consequences. Just the loss of your driver’s license is bad enough. So taking the time to find the right attorney and ask questions is important and can make all the difference in the outcome.

I have practiced law in Orange County California for more than 20 years and have represented clients in all Orange County Courts. I am familiar with the Judges, Prosecutors, and Court staff. I believe that my reputation and good, professional relationship with them all, have afforded me opportunities to get the best possible outcome for my clients. When trying to make a decision as to which attorney to hire, you may feel extremely vulnerable and lost. It is important to meet with potential attorneys and ask as many questions as you need, to help you make your decision.

As a DUI defense attorney, practicing law in Orange County California for more than 20 years, I have handled hundreds of driving under the influence cases. My clients come from all walks of life. They include lawyers, doctors, business professionals, college students, as well as the average person who is just living their life comfortably, until one day when they make a mistake and drive after having had a few too many drinks. This is the time when you need an experienced attorney who will look closely at your case and determine whether or not there is a good defense. The following is a list of some defense to DUI that I routinely look for when evaluating a new case.

1. Can the prosecution prove that you were the one driving the car? This may sound obvious, but surprisingly, there are those situations where police officers come upon a car and there is more than one occupant in the car. If no one is in the driver seat, how can they determine who was driving.

2. Did the police officers have reasonable suspicion to stop you in the first place? As most people know, all an officer has to have in order to pull you over is a reasonable suspicion that you have done something wrong. Challenging the stop is extremely difficult because there are so many reasons an officer can pull you over. Obviously any traffic violation, regardless of how minor, gives an officer reasonable cause. It can be something as small as a taillight out, driving too slow, or forgetting to use your turn signal. So, one of the first things I look at is why you were pulled over in the first place.

3. Once you are pulled over, did the officer have a good reason to keep you there rather than just citing you for the initial violation, which you were stopped for? In other words, if you are pulled over for a tail light out, if he doesn’t just cite and release you but instead calls for a DUI officer to assist him, it is unreasonable for the officer to hold you there, for an unreasonable time, waiting for the DUI officer to arrive. This is very important in situations where the officer has pulled you over for a traffic violation, and not because there was any indication of a potential DUI.

4. Did the officer have probable cause to arrest you? When an officer is trying to determine whether or not to arrest someone for DUI, they will look for signs such as slurred speech, watery or bloodshot eyes. They will ask a series of questions, including whether or not you have been drinking or smoking marijuana. They will ask the individual to perform a Field Sobriety Test, including blowing in to the roadside Breathalyzer. As discussed in other blogs, you do not have to answer any questions, you do not have to perform the FTS nor do you have to submit to the roadside Breathalyzer. If none of these tests are performed, the officer must show probable cause to arrest you for DUI. This isn’t necessarily difficult for a police officer because, if they smell alcohol, they can say that you exhibited symptoms of intoxication such as slurred speech, watery, bloodshot eyes, and if they observed you driving, they may say you were swerving. Even if none of this is true, some officer will use these reasons to arrest. These things can be challenged if the officer has his microphone on during the investigation and if they have video in their patrol car. It is important to note that, if you are arrested, once you arrive at the police station, you must submit to a breath or blood test or you will automatically lose your license to drive for one year.

5. If you are arrested and submit to a blood test, it is my practice to request the testing procedures from the Orange County Crime Lab, looking to see that they have followed proper, legal procedures. I will often use an expert in toxicology to help determine whether or not the blood draw could influence the outcome of the case. New law does require that, if someone refuses to submit to a blood draw, the officer may seek a warrant, even if it’s in the middle of the night, and force the blood draw. In this situation, you end up forcibly giving a blood sample, and losing your license for one year. So, if you are arrested for DUI, submitting to a blood, breath or urine sample, at the station, is recommended.

6. There is something that is called “Implied consent Warnings”. Prior to you submitting to a test, the officer must read to you the warnings. If he did not, and it can be proven that he did not, then the case may be dismissed.

Because there are so many potential defenses to a driving under the influence charge, it is important to seek the legal advise of an experienced DUI defense attorney to determine whether or not you have a defensible case.

As anyone who has been convicted of driving under the influence can tell you, the consequences definitely have a negative impact on one’s life. But, the consequences of multiple convictions will result in much more than just having a negative impact; it may, and usually does, result in jail time. How long depends upon several things such as 1) how many priors you have; 2) your blood alcohol level for this arrest, as well as the other; and 3) whether the priors are “priorable” meaning were they within the past ten years.

In a situation where the evidence in your most recent arrest for DUI is so overwhelming that a conviction is imminent, your defense attorney should begin to focus on alternatives to jail time. Because law enforcement and courts are cracking down on driving while intoxicated, they are demanding that multiple offenders be ordered to spend time in jail, or in some cases prison, depending upon the circumstances. One alternative to spending time in jail is “SCRAM” and could be the alternative to jail time if you have a good DUI defense attorney. Below is more information on SCRAM and how it works.

SCRAM stands for Secure Continuous Remote Alcohol Monitor. It is a high-tech monitoring tool used to track an individual’s alcohol consumption and is worn like a bracelet on the ankle of the individual being monitored. The individual wearing the bracelet can be monitored 24 hours a day, seven days a week. The bracelet is able to read the blood alcohol level and report those readings to law enforcement. The difference between a blood or breath test and SCRAM is that, unlike blood and alcohol tests, the bracelet can obtain a sample of the wearer’s sweat and can detect any alcohol that may be present in the person’s skin. While being worn, the wearer’s sweat is tested every half hour. Any amount of alcohol detected would be a violation in that those who are fortunate enough to wear the SCRAM bracelet in lieu of jail time are not allowed to consume any alcohol at all, regardless of how little they consume.

The SCRAM device is non-invasive in that it gets its readings from the sweat and skin of the wearer. It is worn 24 hours a day and is therefore monitoring the person 24 hours a day. When the device is taking a reading, the wearer may feel a slight vibration but otherwise can be worn quite comfortably.

The SCRAM bracelet is constructed in such a way that any attempt to remove it, temper with or interfere with it’s readings, will be detected and reported to whom ever the supervising agency is.

Even if you have heard of the SCRAM bracelet, what some people might not know is that the bracelet can detect your whereabouts. So, if you have been given house arrest, the bracelet can detect if you leave your home. All of the tests/monitored results are stored electronically and are made available to your supervising agent at any time.

While it may sound like big brother is constantly watching you, in reality, the main purpose of the SCRAM bracelet is to help you refrain from drinking alcohol. Most people who end up using this device are people who have a substance abuse problem and in an effort to avoid jail time, may find it extremely useful in their fight to overcome their addiction.

So if you have been arrested for DUI, and especially if it is not your first, consulting with an experienced DUI defense attorney is your best chance at finding an alternative to spending time in jail. A good defense attorney who has a good reputation and respectful working relationship with the District Attorneys and Judges in the County in which your case is pending, may be able to convince the District Attorney and/or Judge to allow you an alternative to incarceration.

Here are some tips you may want to consider if you are ever pulled over for driving under the influence.

You should always know exactly where your driver’s license, car registration and proof of insurance are. As we all know, whenever you are pulled over by a police officer, you are always asked to produce these three items. If you have been drinking, and you are fumbling around looking for your registration or proof of insurance in your glove box, police officers use this, as “evidence” that you were in some way impaired. If you cannot find your wallet or driver’s license, that will also translate negatively in the police report. The police report will be written in such a way that it looks like you were too intoxicated, or impaired to some extent, to produce the requested items without difficulty. So if you know you are going out and plan on having a drink or two, be sure to be prepared so it doesn’t appear that you are intoxicated if you are unable to find your registration or proof of insurance immediately, when in fact it may just be that your glove box had too much clutter and it took a minute or two to find them.

When you are signaled to pull over by a law enforcement officer, be sure to do so immediately and in a safe manner. You should roll down your window and keep your hands on the steering wheel. Once the officer approaches the car, he or she may ask you if you know why you have been pulled over. They obviously know why they pulled you over, and more likely than not, it’s to find out whether or not you have been drinking. However, they may use some minor violation as an excuse to do so. So when you are asked, “Do you know why I stopped you?” remember, you do not have to answer any questions. You may simply respond by saying “Why?” The officer may then tell you why they pulled you over. Or, the next question may be “have you been drinking” or “have you had anything to drink tonight?”
Remembering that you are not required to answer any questions, you may want to politely decline to answer. Most people are afraid to do this for fear that the officer will become angry and arrest right away. People also think that if they tell the truth they may have a chance of not being arrested. The truth is though that if an officer smells alcohol when you are pulled over, they are going to arrest you. The questions, field sobriety tests, and roadside Breathalyzer are just information and tools used to build his case against you. By declining to answer the officer’s questions, you are making it more difficult for him or her to build a case against you.

The same holds true for the field sobriety tests. When the officer asks if you are willing to participate in some tests, field sobriety tests, you are within your right to decline to take these tests. Again, these tests are strictly for the officer to determine whether or not he/she is going to arrest you. The big problem with field sobriety tests is that they are subjective. Some people perform well and some people do not. There are too many other reasons a person may perform poorly on a field sobriety test, other than being intoxicated. So it is recommended that you not submit to this test.

This also applies to the hand-held breath test. The officer will then ask that you take a breath test. You do not have to take this test. These roadside, hand-held breathalyzers are extremely unreliable and often result in higher alcohol readings than are accurate. At this point, the officer has no statements from you and no field sobriety test so the breath test is now the only tool the officer has left to determine whether or not to arrest you. So, unless you have had no alcohol at all, it is recommended that you not take this breath test.

At this point, the officer will probably arrest you if he feels that you are intoxicated. Once you have been arrested and are taken to the police station, you must take a breath or blood test. This is required by law. If you refuse to take either a blood or breath test once you have been arrested, you will automatically lose your driver’s license for one year. So depending upon 1) whether or not you were drinking; 2) how much you had to drink and 3) your drinking pattern, this may or may not play out in your favor.

If you would like to know more about rising blood alcohol levels, visit my DUI website.