- posted: Nov. 20, 2014
The Labor Day Weekend is upon us and we will attend more TV game watching parties and BBQ's. While having a good time, you, or a friend, may have consumed more beers than you realized.
There are many checkpoints a week before and after Labor Day. Thus some of our CV Weekly readers are going to be stopped and arrested for a DUI. So do yourself a favor and DON'T DRINK AND DRIVE or TEXT. Call a Taxi or Uber.....it is a lot cheaper than calling me.
Over 30 years of handling DUI's I have observed the stress my clients encounter before talking to me. They are concerned about the legal costs, the future, fines, jail time and license suspension.
To deal with these issues you must hire a lawyer and legal experts in addition to paying the court costs and fees. Your life will be forever changed because of a possible license suspension and the need to take a taxi or have a designated driver.
You worked to keep a clean record and now you worry about a possible expungement; increased insurance rates and the negative social effect of your name being printed in your local paper or a throwaway paper.
Most drivers believe they were "not drunk" and thus they should win their case because they did not deserve to be arrested. The reality of life is that you do not have to be drunk, you merely have to be under the influence. That is a function of not just how many drinks you consumed, but how much alcohol was in each drink ...as well as the time lapse and weight.
Then you see advertisements for DUI lawyers on TV, in the yellow pages or you get letters from out of town lawyers offering to help you......and u don't know what to do. Anyone can advertise they handle DUI's and many of these lawyers are not local and do not know the local judges, DA's etc.
Before your arrest, you will see flashing lights in your rear view mirror and hear a siren behind you. You will be asked for your license, registration and automobile insurance. Failure to produce any of these may lead to a separate Misdemeanor arrest. Failure to promptly provide these papers right away will result in the officer commenting in the report on how the driver spent a lot of time "fumbling in their purse/wallet". This suggests to the officer that the driver may be under the influence.
When I try a DUI case I always comment to the jury during closing, that we all get Black and White fever when we see a police officer. It has nothing to do with drinking and driving. However if you have been drinking you are likely to have a higher "fever".
The Officer will ask the driver to exit the vehicle and start asking questions. Though the Breath Test and Field Sobriety Test (FST) at the scene are OPTIONAL, the Officer may not advise the driver of this. The driver can only hurt themselves by taking these tests. It is arguable that taking a Blood Test at the police station or hospital is preferable. Many believe with the passage of time the reading will decrease by the time the blood is drawn.....unless the driver just chugged a drink and the alcohol had not yet gotten into the blood system. The average driver is not aware that it takes about an hour for the alcohol to go into your blood stream and an hour to come out...but now YOU DO!
The officer will tell the driver that he smells alcohol on their breath and he will ask the driver where and how much s/he was drinking. However, The Dose Makes the Poison! In other words it's the Amount of Alcohol, NOT the Number of Drinks that are Important.
I often get clients who swear they only had one drink but the legal system looks at the total amount of alcohol not the number of drinks. One drink is one 12 oz. beer, 4 ounces of wine or 1 ounce of alcohol. Thus when someone uses a red Costco 16 oz. cup and fills the cup with Vodka and tops it off with OJ they are consuming 10-12 ounces of alcohol or 10-12 drinks. If the driver weighs 110 lbs then before s/he finishes their 2nd drink they will probably be Under the Influence.
The law looks at whether the driver is Driving Under the Influence and the term Drunk Driving is a misnomer as one does NOT have to be drunk. IF one has a .08 reading then they are arguably under the influence and the burden falls back upon the driver to prove s/he was not under the influence.
If the driver was taking a prescriptive drug with a warning "not to operate heavy equipment"...they are not talking about a tractor. Many pills, when mixed with alcohol, create Potentiation, thus allowing less alcohol to make one under the influence. If so, the driver could be arrested for Driving under the Combined Influence of Alcohol and a Drug without having a .08 reading.
The best advice I could give to an arrestee is "If you are arrested for a possible DUI, DO NOT TALK TO ANYONE OTHER THAN YOUR LAWYER." The sad fact is that law enforcement officers and the DA are NOT your friends no matter how much they tell you they are. They are just doing their job and trying to make a case based on the facts of your arrest. Remember to DRIVE SOBER OR GET PULLED OVER.
"Though I am sometimes referred to as a criminal defense lawyer, I choose to not view my clients as "criminals". I prefer to view them and more importantly to treat them as good, honest people that have found themselves in a scary and unfortunate situation."