Attorney Matthew Ruff Explains What You Need To Know About DUI

Before you begin to read the information on this page it is important to understand that in California there is no more aggressively legislated, prosecuted or adjudicated criminal offense than that of DUI or driving under the influence. For all that the state does to encourage its prevention, the simple act of drinking and then getting into an automobile and driving prevails one of the most prolific crimes committed in the United States every year. This year alone some reports have it that DUI arrests totaled well over 2 million state wide. The penalties for DUI are ever increasing, convictions for the offense have been met with harsher penalties from the Courts and license suspensions from the DMV come sooner and last longer. Prosecutors have become empowered by juries who are becoming more inclined to convict on weaker and weaker evidence. All of this leads to the inescapable conclusion that DUI is different from any other crime. I have endeavored to present what I believe to be the most useful information about DUI defense and I hope that this will assist you in making decisions about how to proceed in your DUI case.

1. How can a DUI Lawyer help defend me if I have been arrested and charged with DUI?

Potential defenses in any given DUI , DWI or Drunk Driving case are abundant when represented by a lawyer experienced in driving under the influence defense. Whether the arrest be for alcohol, drugs or a marijuana DUI , the following are some of the more fruitful areas of attack:

· Constitutional and Statutory Rights Violations. Evidence will be suppressed (made inadmissible in Court) if the police did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks, stops due to "made up" reasons, inexperienced officers, officers following clients from bars, etc., present good issues for the DUI attorney to use to potentially get your case thrown out. This area of defense creates significant advantages in that should the stop, for example, be shown to be unlawful all the evidence acquired after the stop, (the field sobriety tests, observations of intoxication, the breath or blood test, etc.) would be inadmissible in Court. In many cases our lawyer has been successful in getting cases dismissed completely by showing the officer did not have probable cause to stop our clients in the first place.

Recently, our attorney convinced a judge to dismiss a DUI case on Constitutional grounds even though the client had a .18% blood alcohol level when stopped!

· Insufficient Evidence of DUI. Proof of Intoxication is not enough, the prosecution must also prove that the defendant was driving at the time he was impaired or when his/her blood alcohol level was above the legal limit (which in California is .08%). This may be difficult if, as in the case of some accidents, there are no witnesses to him/her being the driver of the vehicle. In addition, even if driving can be shown, a variety of defenses relating to the time of drinking can come in to play to defeat the prosecution's case.

· Miranda Rule or 5th Amendment Violations. Incriminating statements may be suppressed if required warnings were not given prior to questioning after a DUI stop. A DUI lawyer can present this argument to the Court on your behalf.

· Implied consent warning violations. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample. This area of defense has been used by our lawyers many times to "throw out" the refusal charge and get reinstatement of our client's driver license.

· Insufficient Evidence of being "Under the influence". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Our lawyer has been successful in many cases by showing our clients do not meet the legal definition of being "under the influence". This is often done through the use of experts, the cop's own training manual, witnesses to testify that you appeared to be sober, etc....

· Blood-alcohol concentration (BAC). There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.

· Breath Testing during the "absorptive phase". The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes anywhere from 30 minutes to three hours to complete absorption of alcoholic beverages; this can be delayed if food is present in the stomach). Thus, a quick guzzle prior to leaving the bar can cause inaccurate test results. Our lawyer has obtained countless dismissals using this innovative strategy to defeat the state's case

· Rising Blood Alcohol or Absorption Phase Defense. This defense involves the requirement that the BAC be "related back" in time from the test to the driving. A number of complex physiological problems are involved here. The basics of the defense are that the law requires that the state prove the defendant's blood alcohol exceeded the legal limit at the time of driving. If it can be shown that the person's blood alcohol level rose after the arrest, the defense can be successful.

· Failure to follow California State regulations of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc. Blood collection and preservation is also an area of attack. For example, if the records show the procedures of collection were not followed it may result in getting the blood alcohol result thrown out. Recently, our office recently obtained a dismissal of a case at the DMV involving a blood alcohol level that was three and a half times the legal limit ! by showing the regulations were not followed

· Driver License/ DMV suspension hearings. A number of issues can be raised in the context of an administrative hearing before the California department of motor vehicles. These issues involve complex rules and will require the help of an Attorney.

2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

You are not required to answer the police officer's incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath following a DUI stop. The best advice is to say very little but be cooperative

3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

The law on this varies from state to state. In California, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested for DUI or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

4. What is the officer looking for during the initial detention on the side of the road?

The traditional symptoms of intoxication taught at the police academies are:

· Flushed face

· Red, watery, glassy and/or bloodshot eyes

· Odor of alcohol on breath

· Slurred speech

· Fumbling with wallet trying to get license

· Failure to comprehend the officer's questions

· Staggering when exiting vehicle

· Swaying/instability on feet

· Leaning on car for support

· Combative, argumentative, jovial or other "inappropriate" attitude

· Soiled, rumpled, disorderly clothing

· Stumbling while walking

· Disorientation as to time and place

· Inability to follow directions

All of these symptoms, however, are often exaggerated by the arresting officer and can be explained away by a competent attorney experienced in the defense of DUI cases.

5. What should I do if I'm asked to take field sobriety tests?

There are a wide range of field sobriety tests (FST's), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, in California you are not legally required to take any FST's. The reality is that officers have usually made up their minds to arrest when they give the FST's; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.

As experienced DUI attorneys , we have years of experience attacking the reliability of FST's and can often neutralize the officer's conclusions of these so called tests.

6. Why did the officer make me follow his finger, pen or light with my eyes to the left and right?

This is the "horizontal gaze nystagmus" test, a so-called test purported to show impairment in a DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.

7. Should I agree to take a chemical test *? What happens if I don't?

The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results:

· In California your driver's license will be suspended for 1,2,or 3 years. This may be true even if you are found not guilty of the DUI charge; in California, the suspension for a refusal on a first offense is one year.

· In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense (in California, 48 hours).

· The fact of refusal may be introduced into evidence as "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.

A refusal case is very serious and therefore it is highly advised an attorney be consulted immediately. Over the years we have been able to get the refusal dismissed for clients to avoid the mandatory consequences.

*By chemical test we mean the breath or blood given after the arrest, it is important to understand this differs from the preliminary alcohol screening test (PAS). The PAS test is voluntary (unless you are under 21) and generally not a good idea to take.

8. Does the Law give me a choice of chemical tests? Which should I choose?

In most states, you have a choice -- of breath, blood or urine (most states including California, however, do not offer urinalysis). If you choose breath, many jurisdictions permit you to have a second test of blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense. In California, only blood or breath are offered, unless neither are available in which case urinalysis is possible; a blood sample will be taken if requested after a breath test is given.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.

9. The officer never gave me a "Miranda" warning: Can I get my case dismissed?

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. 
Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

10. Why am I being charged with TWO crimes?

The traditional offense is "driving under the influence of alcohol" ( DUI ), or in some states, "operating while intoxicated" (OWI), or "driving while intoxicated" (DWI). In recent years, however, 49 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% -- as in California -- or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one. If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged. Drug intoxication such as marijuana falls under the DUI, DWI, and OWI laws.

11. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?

The law in California adopts the "per se" statute (see question #10) and provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit). It is important to discuss your case with a lawyer after getting the order of suspension(The pink piece of paper the officer gave you).

Warning: Be aware of the 10-day deadline for calling the California DMV to request a hearing on the suspension and to get an extension of the temporary license.

12. Can I represent myself ? What can a lawyer do for me?

You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc. You very likely will need the services of an experienced DUI attorney.

13. How can I find a qualified drunk driving lawyer?

The best way to find a good DUI / DWI lawyer is by reputation. When you meet with the attorney, make sure of three things:

· He has extensive experience in DUI / DWI litigation;

· He has a reputation for going to trial in appropriate cases, rather than just "copping out" his clients; and

· The financial terms of representation are clear.

Caution: Beware of lawyers claiming to be "experts" in the field who simply refer you to other "top DUI lawyers" and then receive a referral fee from those lawyers.

14. What will it cost to get a lawyer?

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

· The range of fees vary. The fee may vary by such factors as:

· Is the offense a misdemeanor or felony?

· If prior convictions are alleged, the procedures for attacking them may add to the cost.

· The fee may or may not include trial or appeals.

· Administrative license suspension procedures may also be extra.

· The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance -- to be applied against hourly charges.

· Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

Whatever the fee quoted, you should ask for a written agreement. And make sure you understand all the terms.

15. What is the punishment for drunk driving if you are convicted?

Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, a conviction for a first offense may involve a high fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices, AA meetings, and/or impounding of the vehicle.

An attorney can help to avoid these punishments.

16. What is a sentence "enhancement"?

California increases the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

· A child was in the car at the time.

· The defendant was traveling 20 or 30 miles over the speed limit at the time.

· The blood-alcohol concentration was over .20%.

· The defendant refused to submit to a chemical test.

· There was property damage or injury.

· The defendant was under 21 ("zero tolerance" laws require a much lower blood - alcohol level, and impose longer license suspensions).

In California, the existence of significant personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states (including California), murder charges.

17. What is a rising blood alcohol defense?

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.

18. What is the "mouth alcohol" defense when a breath test is performed?

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings. Our office has consistently been able to get DUI charges dismissed due to the mouth alcohol defense.

19. What is "Drunk Boating"?

California drunk boating carries serious penalties similar to those for drunk driving or DUI, including possible jail time, DUI fines, DUI programs and driver's license record problems. Drunk boating is prior able as a drunk driving prior. If you have a prior drunk driving conviction, it can be used to enhance punishment. Jet skiers, power boaters, sailors, fishermen and pleasure seekers on a craft should know it is just as illegal to operate a boat or watercraft under the influence as it is to drive under the influence. However, it is okay for adult boaters to legally drink or simply have open containers in their vessels. Turning your craft too fast or aggressively, inoperable navigation lights, acting out of control, equipment violations, speeding (e.g. in a 5 mph zone) around a marina or at a bridge under crossing, lack of current registration or safety equipment are some reasons a patrol boat may stop or contact you to try and determine if you are impaired or DUI. DUI boating defenses and drunk boating strategies include attacking the chemical test, poor DUI investigation, failure to properly administer a number of field sobriety tests, lack of proficiency in DUI enforcement or testifying, failure to prove actual operation while impaired, etc.

20. Why am I being asked to take a portable breath test (PAS) at the scene?

Many police departments, including the California Highway Patrol (CHP) use a device called a preliminary alcohol screening test or PAS. This test is optional unless you are under 21 and you should be told this by the cop. However, most police officers will not tell you this. In most cases it is not a good idea to submit to the PAS test, it only gives the prosecution more to work with when you get to Court. In addition some scientific studies have shown that there is a chance of getting false high BAC levels if you suffer from gastric regurgitation or gastric bypass surgery.

21. How long does a DUI conviction stay on your record in California?

A conviction for DUI, DWI or Drunk Driving will stay on your California DMV record for at least 10 years. California shares this information with other states. The CA Department of Motor Vehicles will make the conviction available to any employer, insurance company or any other person requesting to see your driving record. However, if the DUI is reduced to a lesser offense with the help of an attorney the conviction will fall off the driver's record much sooner.

22. Is a person treated any different if they are under age 21 and arrested for a DUI?

Yes, Under Age DUI Laws in California provide for longer license suspensions and greater punishment for a drunk driving conviction.

I have some questions about my DUI case. Where can I go for answers?

An experienced California Drunk Driving Defense Lawyer is the best source, call Mr. Ruff toll free 1-877 213-4453 for an immediate free consultation with an experienced DUI attorney.