DO I NEED AN ATTORNEY FOR A DUI ARREST?
Being arrested for driving under the influence is a traumatic event that can change your life.
When I’m asked by prospective clients if they need an attorney I often respond by asking them if when they get seriously ill, do they need a doctor. I guess it depends on your perspective in life. If you are risk adverse, it is absolutely in your best interest to always consult an expert. Why not seek the advice of someone who has specialized knowledge in an area that most are unfamiliar with? While an attorney can never guarantee an outcome any more than a doctor can guarantee a full recovery, there are tried and true methods for minimizing the damage of being arrested for a DUI.
When I take on a new DUI case, the first thing I tell my clients we need to do is call the Department of Motor Vehicles and request a stay on, and contest the suspension of, the client’s drivers license. By requesting a hearing with the DMV, we are entitled to receive all the reports prepared by law enforcement related to the incident. When looking at the reports, and consulting with my client, we determine how we are going to proceed not only at the DMV hearing but also in court when the case is filed by the District Attorney.
After reading the reports I look to see if there are any pretrial motions that would be appropriate to file. For example: Was the case filed within one year of the incident? If not that would warrant a motion for dismissal based on the untimely filing of the complaint. Or perhaps the case is a very old case. Maybe the District Attorney filed the case five years ago but my client wasn’t aware of such filing. In that instance, it is quite possible that there are grounds for a
dismissal with the proper paperwork being filed with the court.
The next thing I look for is why did the officer stop my client? Perhaps the police report says that he saw my client walk out of a bar at 1:00 in the morning and get in her car and drive away. Is that in and of itself probable cause for a detention of my client? Not according to the law. The law states that the officer must witness some violation of the law to make an enforcement stop as required by the 4th amendment of the United States Constitution. Walking out of a bar at 1:00 a.m. and getting in a car and driving away is not illegal and therefore without further indicia of intoxication, there is no probable cause for a stop. As a result of an arrest based on these facts, and a subsequent criminal complaint filing by the D.A., I would file a motion with the court asking the judge to dismiss based on an illegal arrest. Another example of illegally obtained evidence would be in the case of an officer drawing blood from your arm or any other part of your body without your permission. If the blood is taken without your permission, and no warrant is obtained in advance, then it is considered a
warrantless search and as such it is subject to a motion to suppress and a motion to dismiss the case.
In addition to pre-trial motions, sometimes the evidence doesn’t stack up to meet the strict standard of proof beyond a reasonable doubt.
Remember, you don’t have to prove you are innocent of the charges. The burden is on the prosecution to prove the allegations of impaired driving beyond a reasonable doubt. If this is not done and even one juror is not convinced, there is no conviction. How can reasonable doubt be created in the minds of the jurors? That is where skillful litigation and use of expert testimony can make the difference.
Perhaps the blood WAS taken legally and IS over .08. What then? It all depends on the time of drinking and the time of the observed driving by the officer. If a person consumes alcohol within a known time period and the amount of alcohol is also known, then calculations of actual blood alcohol levels can be determined at different time periods after the drinking stops. Even though at some later time you submit to a chemical test, that result may not be an accurate measure of the alcohol level at the time of driving. A simple example would be someone who drinks at the bar from 10:00 p.m. to 11:00 p.m. and consumes two beers.
Lets say that same person gets stopped by an officer for weaving at 11:15 p.m. The suspect submits to and takes a few sobriety balance tests and then the officer has the suspect blow into a contraption known as a preliminary alcohol screening device at 11:27 p.m. This device will perhaps show a blood alcohol level of say .08 and will probably result in an arrest. At this point, the arrested person will be taken back to the substation and will be requested to take another test, often another test on a more reliable and accurate machine. Perhaps this time at 11:50 p.m. the individual blows a .09. Doesn’t sound very good at first blush but don’t give up. There may be a viable defense to this case. It’s called rising blood alcohol. An expert would probably testify in court that the driver was in fact under .08 maybe even closer to a .06 at the time of the stop. By the time the officer administered the breath tests, the alcohol had risen to over the legal limit but at the time of the stop, it was still on its way up and still under .08. That is a credible defense and has lead to many not guilty verdicts for my clients.
If you would like to speak with an experienced attorney who has handled many DUI cases in Southern California, please contact The Law Offices of
Richard McGuire.
