by Robert Louis Miller
Were you arrested for DUI, or was someone close to you arrested on a DUI offense?
First off, we need to talk about your feelings for a second.
If you have been arrested for DUI, you are probably embarrassed or ashamed, maybe a little mad, but most of all, you want to know what to do, what can be done, what you are facing, and if you even have a chance of fighting a DUI case. It is my hope to bust a few myths about DUI defense, and also let you know what can and cannot be done with a DUI case.
Can you fight a DUI?
DUI Defenses generally fall into categories of types of defenses. The best results follow when you leave no stone unturned in coming up with defenses for a DUI case. It is generally not a good idea to "pick one" defense, and aggressively go for that one defense. The better tactic in defending DUI cases comes when you carefully review all of the evidence, line by line, and come up with a strategy.
1. Forcing the DA to prove you were driving. Intoxication is not enough: the prosecution must also prove that you were driving. This may be difficult if, as in the case of some accidents, the police arrive after the scene, and there is no witnessing actual driving.
2. Forcing the DA to prove Probable Cause. Evidence can be, and will be suppressed, if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. DUI checkpoints and sobriety roadblocks in particular present many defenses to a DUI, but often the police will stop someone for a non-driving violation, and then use that as a pretext to *fill in the blanks* for probable cause. Case law could not be more clear in many cases -- this is not allowed and not proper.
3. Failure to give Miranda warnings. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
4. Implied consent warning defenses. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
5. Forcing the DA to prove that you were *Under the influence*. The officers 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*. Witnesses, including bartenders or waitresses, can also testify that you appeared to be sober.
6. Breath alcohol testing defenses. There exists a wide range of potential problems with breath testing. Most breath machines will register many chemical compounds found on the human breath as alcohol. Temperature and even the pattern of blowing can wildly cause the breath reading to fluctuate from normal. 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 by obtaining the maintenance and calibration records of the machine, or in cross-examination of the state's expert witness and/or the defense can hire its own forensic chemist.
7. Blood alcohol testing defenses. There exists a wide range of problems with blood testing, also, including the requirement in California that alcohol swabs not be used, that the person drawing blood be a licensed phlebotomist (not just a police officer), that the blood vial have a certain percentage of preservatives and anti-coagulants, that the blood be available for re-testing, that the blood not be exposed to bacteria (in the air or otherwise), that the blood testing machine be maintained and calibrated, that the blood be homogenized, that the vial follow a chain of custody, and that the blood be taken within three hours of driving.
8. Medical issues: Being a diabetic, on Atkins related diets, a person with acid reflux, with eye, knee, neurological or other physical defects, or on medication, can often create a false positive conclusion that someone was under the influence.
9. 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 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause wildly inaccurate test results.
10. Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. A number of complex physiological assumptions are made with retrograde extrapolation, and in general, it involves bad science.
11. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc., and often, it is discovered that a machine had mechanical problems, or tests *off*, making the test excludable and sometimes dismissing the entire case.
12. License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the states department of motor vehicles, including mistakes by the officer.
The thing is, most of your friends do not even know all about the scientific issues involved. They usually just urge you to plead guilty. Even most attorneys are unaware of the complex issues and defenses involved in a DUI case.
A qualified DUI 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, and handle a DUI trial with the greatest odds of success.
A good DUI attorney can also help you by handling the Department of Motor Vehicles hearing, which you must request within 10 days of your arrest, saving your license, and can minimize the impact on you from a DUI. In almost all cases, we can appear for you in court, without you ever having to take time off and experience the embarrassment of the court process. We can ask the court to minimize the fees and other punishment in your case, even if your case is not dismissed or reduced.
A DUI can stay on your driving record for life, and also leaves a criminal record (depending on how it was filed, a DUI is either a misdemeanor or a felony). It can expose you to jail time, hefty fines with the court, expensive and inconvenient alcohol schools, and a huge insurance increase that lasts for years, so in almost all cases it is worth it to fight the charges, to avoid a potential conviction (which stays on your record for life in California), and so that you never have to wonder *what if* years later.
Robert Miller is an Orange County DUI Lawyer at Robert Miller and Associates, A Law Corporation. You can reach him through his DUI information websites:
http://www.orangecountyduilawyer.com/
http://www.ocduiblog.com/
Society's way of punishing drunk drivers is to simply throw them in jail, but as we've witnessed over the years, this type of punishment doesn't stop people from drinking and driving...
People who have been repeatedly arrested for drunk driving are alcoholics who shouldn't just be thrown in jail. It should be mandatory that they get help. In California people arrested for drunk driving are required to attend DUI classes, but oftentimes that just isn't enough.
Repeat DUI offenders need one-on-one counseling to get to the root of their drinking problem. Of course, all of this counseling would require money and the government really isn't willing to fork over the money to back this type of initiative. Instead they keep throwing people in jail which ends up costing more money in the long run.
Is it time to change DUI penalties? As we can see, the current DUI laws aren't doing anything to deter people from drinking and driving. If you keep doing the same things, you're going to keep getting the same results, right?
If you are a repeat DUI offender, talk to your Orange County DUI defense attorney to help you find a good counselor or therapist.
- Do not fail to request a DMV hearing. In the state of California you have 10 calender days to request a hearing.
- Do not make assumptions. Just because you were registered at having a BAC over 0.08 doesn't mean you've lost your case. Let your Orange County DUI attorney investigate to make sure that the reading was accurate.
- Do not fail to write down everything you can remember about the incident.
- Do not fail to gather witnesses who can attest to your level of sobriety.
- Do not hire an experienced DUI attorney based on the amount of the fee alone.
- Do not fail to appear in Court.
- Do not fail to educate yourself about the dangers of a DUI.
I read an article recently that talked about how North Carolina has a high percentage of drunk drivers that are Hispanic. William Gheen, the president of Americans for Legal Immigration said this in a statement:
“It’s clear across the country – there’s a direct connection between drinking and driving deaths and the illegal alien community. (We need to) crack down on illegal aliens in this state and do everything we can to prevent these preventable deaths.”
Southern California is a big melting pot that consists of people from many countries - a large portion being of Hispanic origin. No doubt that many of these people are illegal aliens. I have yet to come across any evidence citing a "direct connection" between DUIs and the illegal alien community. The news articles I read about drunk driving hardly ever mention a DUI offender being an illegal alien.
What's interesting to note, though, is that illegal immigrants who are caught drinking and driving will not get deported.
Regardless of who's driving drunk, the bottom line is that there is a big issue here. Pointing fingers is not going to solve the problem. I think that even if the U.S. were to get rid of all the illegal aliens, drunk driving would still be an issue.
Get help with your DUI case. Contact an experienced Orange County DUI attorney.
One of the issues we currently face about drunk driving is the overall attitude that people have about the seriousness of a DUI. This is especially true for young people who have just turned 21 and are able to legally drink for the first time. People who drink and drive on a regular basis for some reason believe that they are fully capable of driving at any given moment even when it's obvious that they are not. Many people are fully aware of the consequences of drunk driving, however, it doesn't seem to be enough to stop people from doing it.
Many people think that in order to resolve this issue, lawmakers need to create harsher penalties for drunk driving. They believe that this will be enough to prevent drunk driving. However, this is not necessarily the end-all solution.
Even before kids turn 21, parents should take the opportunity to sit down with their teenagers and drill into their heads about the dangers of drunk driving. Some kids will learn the lesson the hard way by being involved in an alochol-related accident, but hopefully it doesn't have to go that far. We can prevent these accidents - and it starts with every parent.
If you happen to be arrested for your first DUI in Orange County, make sure to get help from an experienced Orange County DUI defense lawyer.
"Real Housewives of Orange County" Star Arrested For DUI
Posted by Admin Labels: Orange County DUI News
Read more: http://www.tmz.com/2009/09/19/real-husband-charged-with-felony-dui/#ixzz0Si3HVBQ7
I find it interesting that people wish they could live like people they see on TV, but isn't this proof enough that living the OC lifestyle and having all that money doesn't necessarily mean "happily ever after"? If you've ever watched The Real Housewives of Orange County, you know that white people with money do have drama and issues too. Granted, some of the drama can be petty, but it's drama nonetheless.
Anyhow, nobody is immune from getting a DUI. Reality TV star or not, you're still responsible for your actions. In Matt Keough's case, he's facing three years in prison if convicted.
If you're arrested for a DUI in Orange County, make sure to hire a professional and experienced attorney who specializes in drunk driving cases.
