Why Do I Need to Hire an Attorney If I Have Been Arrested for DUI?
Driving under the influence charges are some of the most frequent charges filed by the District Attorney’s office in California. In this state alone nearly 600 people are arrested every day for D.U.I. I am frequently asked by my clients and prospective clients, do I need an attorney? And how can I fight these charges? Some cases seem hopeless to the layperson such as an incident involving an accident with a blood alcohol level of three times the limit. Other cases seem promising like a sobriety checkpoint stop with marginal signs of impairment and a breath test result of .07 and .08. No two cases have identical facts but all DUI cases have one thing in common: hiring an experienced legal practitioner in the area of DUI defense in the majority of cases will make a difference.
Let’s start with the effects of a DUI arrest on the driver’s license. If the chemical test measures above a .08 blood alcohol level, the arresting officer will take away the license of the driver on scene. This is called an administrative per se suspension and the license will be revoked for a period of time, the length of which is dependant on how many prior convictions in 10 years the arrestee has. Suspensions can range from six months to three years. The most important thing to be aware of is that it is imperative to CALL THE DMV WITHIN 10 CALENDER DAYS to set up a hearing. Why is this so important? If you don’t call the DMV to request a hearing your license will automatically go into revoked status on the 30th day from the arrest and you will not be able to get your license back until you have completed the corresponding alcohol program which can range from a three month to an eighteen month program. By requesting a formal hearing which everyone is entitled to, you are guaranteed that your license will continue to be valid until you have had your “day in court” or in this case, “DMV hearing”. That may and often does take place two to six months after requesting the hearing.
What happens at the DMV hearing? If you hire an attorney to represent you, he or she will determine what witnesses will be necessary to testify at your hearing. In addition to the California Evidence Code, the DMV is also subject to following all of the rules and procedures of title 17 of the California Administrative Code. In addition, both California and U.S. Federal law must be complied with. If any of these laws or statutes are not properly complied with, you are entitled by law to have your license suspension set aside and have your drivers license promptly returned to you. Only an experienced attorney can determine what type of evidence will be necessary at the hearing. It could be that all you need is a friend to testify that you were not the person driving the vehicle. In a situation where the arresting officer did not witness the driving, this can be a very effective defense at the DMV hearing. I have won quite a few DMV hearings with the no driving defense. Always remember, even though the hearing is not a criminal matter, the DMV has the burden to show that you were driving over the .08 alcohol limit on a public road. The burden is not on you to prove you weren’t.
In other situations, the strategy for a DMV hearing may be to enlist the help of an expert to testify on your behalf. It’s very possible that even though you tested over the limit with a breath or blood test, in fact, you were under the limit at the time you were pulled over by the officer. How is that possible? Because any forensic expert (a person who testifies at legal hearings) will testify that blood alcohol reaches a peak level over a period of time after consumption. In other words, when you drink a given amount of alcohol in a given amount of time, the alcohol will be absorbed into the blood over a certain period of time depending on many factors. Example: you drink three drinks from 11:00 to midnight and leave the bar at 12:05. You get pulled over at 12:15. You take a breath test at 12:40 with a result of .12. It is not only you take a breath test at 12:40 with a result of .12. It is not only possible, it is probable that in fact, you were under .08 at the time the officer stopped you because your blood alcohol level was still rising between the time you were pulled over and the time you took the chemical test. It is the level of blood alcohol at the time of DRIVING NOT THE TEST that is the most important. I have been successful with the rising blood alcohol defense many times with the help of a forensic expert.
Another strategy at the DMV hearing may be to show the hearing officer that the California Administrative code was not complied with. If for example a chemical test was not administered within three hours of driving, then the test is invalid and cannot be used to justify a suspension of the license. This frequently happens when there is an accident and the exact time of the driving can not be determined. There are many other procedures that must be complied with per Title 17 of the California Administrative Code. Another common one is when the officer does not continually observe the driver for 15 minutes after the stop to determine that he did not drink, eat, smoke, regurgitate or burp during those 15 minutes. This is such an important factor for the DMV that there is a special box on the DS-367 form (the form all police officers are required to fill out pursuant to DUI arrests) that requires the arresting officer to attest to compliance with this requirement. When in the case of negligence or incompetence it is not complied with, my experience has always been an automatic win for the client.
I know how important your driver’s license is especially here in California where alternative transportation is limited. I will fight hard for you to make sure you keep your license. Please contact the Law Office of Richard McGuire.