DRUNK DRIVING 101
Dec. 21, 2014
If you are a regular reader of my weekly legal column you know that I always end with the admonition:
DON'T DRINK AND DRIVE......CALL A TAXI........IT IS A LOT CHEAPER THAN CALLING ME. If you did not follow this suggestion and instead received a DUI over the July 4th weekend then you need to know what to do if you are arrested.
With temperatures hitting 110 last week and July 4th occurring on a Saturday, many of our neighbors drank too much beer and foolishly got behind the wheel of a car OR GOLF CART? Yes you can get arrested for DUI while driving a golf cart!
You, like most drivers, probably did not know that the breath test at the scene is Optional as are the Field Sobriety Tests. Therefore you should courteously ELECT not to take them. Instead you should say you want to cooperate with law enforcement and you are happy to take a Blood test.
If you are one of the many "locals" that encountered this challenge last week you have a multitude of decisions to make for which you are yet aware. Your first decision is do I hire an attorney? Do I try to handle it myself or do I qualify for a public defender?
My recommendation is to go to AVVO where local attorneys rate one another. You should hire a local DUI attorney with a 10.0 perfect rating. These DUI cases can be complicated and sometimes as complex as a serious Felony. A murder, for instance, involves who did it and did the police get the right person? With a DUI we know that information.
A DUI involves opinion testimony, cross examination of the officer, scientific and forensic issues regarding the breath testing, blood testing and inferences drawn from a chemical sample or refusing to provide a sample. A lawyer who handles your business matters is normally not the right person to understand all this and to protect your civil liberties. Nor is your cousin who is a DUI lawyer in Los Angeles.
If you hire a private lawyer, that attorney can have you sign a 977 Waiver form that allows the attorney to appear for you without you ever having to go to court yourself. However the lawyer cannot enter a plea for you without you signing notarized forms.
There is a substantial cost no matter what you do. A lawyer will cost you $2500-$10,000 with the better ones around $7500. Insurance rates will also go up and thus cost you at least that amount.
If you decide to handle it yourself, or use a public defender, remember that a DMV hearing must be requested within 10 days of the arrest. A public defender cannot be appointed until you appear in court for the arraignment which is probably 2 months after your arrest. Unfortunately a public defender is not allowed to represent you at the DMV hearing because it is not considered criminal and is instead referred to as an administrative hearing ...called an Administrative Per Se (APS) hearing.
This administrative hearing presumes the driver is PER SE GUILTY/Under the Influence if the DUI CHEMICAL RESULTS (PAS Test aka Preliminary Alcohol Screening or Blood test), show the driver to be .08 or higher. If you are stopped for a possible DUI, in order to try to save your California Driver's License or driving privileges, remember you must request a DMV hearing within TEN (10) DAYS of the arrest.
You should also go to DMV and pay $6 to get a copy of your DMV record (HR6). While there REQUEST A DMV IDENTIFICATION CARD. You will need some ID with a picture during this process and for travel.
In California the Drunk Driving arrest is referred to as a DUI, however it is also called an Operating Under the Influence or Driving While Intoxicated in other states. It is similar to a Hurricane being called a Typhoon or Cyclone in other parts of the world. A .08 is the guideline in most states, but remember, no matter what it is called, it is not how many drinks you had but how much alcohol was in each drink.
There are about 1.5 Million DUI arrests in the USA each year and here in the Coachella Valley we have more DUI deaths, per capita, than any other place in California. Thus the Indio Court is tougher on DUI's than most other places in California.
In addition checkpoints and penalties are on the rise. The DA in Indio imposes jail time on ALL DUI'S and thus it is important you handle the matter correctly from the beginning. There are also recent Federal incentives for law enforcement to make more DUI arrests in the form of GRANT money. Lucrative overtime pay compensates the officers for going to court and DMV hearings during their off days. This money allows RSO to have checkpoints, make more arrests and clearly is an incentive for the DA pursuing these cases.