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Los Angeles DUI Lawyer Blog
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There are certain legal hurdles a prosecutor must cross in order to successfully prosecute a case. They must prove, beyond a reasonable doubt, using evidence, testimony and other exhibits that a person was:

1)      Driving

2)      Intoxicated at the time.

Many of our clients wonder how a DUI can be defended if a prosecutor has ample evidence against them, such as a field sobriety test, or breath test that has a high reading. Let’s consider an example that will help us demonstrate on how a DUI can successfully be defended.

Dorian is leaving a party and heading home. At the party he had only a beer because he was not feeling well. He had taken some cold medicine earlier in the day and he did not want to get more sick. When he was leaving the party, he stopped at a drug store on his way home to buy some more medicine. He had accidentally left his headlights on when he had parked because he was in such a hurry. When he came out of the drug store, officers were by his care and questioned him about his ability to drive. Eventually, feeling that they had adequate evidence to suspect that Dorian was under the influence, they asked him to take a field sobriety test. Dorian wanted to comply, since he had not really been drinking, so he took the test. The reading came out as a .12. Dorian was arrested and taken into custody. He was later charged with a DUI.

The most efficient defense in this situation is that Dorian was not driving at the time officers found him. However, officers will argue that he had to have driven there, and he had to have driven to leave. So even if he was not driving at that moment, he would have been if they were not there.

Secondly, the facts do not add up. Dorian had only had one beer. This, although, would administer a reading on a field sobriety test, it would not be as high as a blood alcohol reading of .12. One of the factors that could have had an impact would be the fact that Dorian had been taking cold medicine that day, and cold medicine sometimes has some alcohol in it. However, it would not be to the amount that was registered in his system. The second explanation could be that the machine had a defect or some problem with it.

It would be highly recommended in this case that a Los Angeles DUI Lawyer asked for calibration and maintenance records for the machine that was used in the matter. Upon an independent evaluation or analysis from a third party lab, I would not be surprised to find that the machine was not administering accurate readings. If this is the case, the prosecutor will have to state his case without the reading from the machine.

Because Dorian was not slurring, and was not actually drunk, chance are that the Prosecutor will not be able to prove his case and the case will be dismissed. If you find yourself in a situation where defenses are available to you, be sure to consult with a legal professional as soon as possible!

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When a person has been charged with Driving under the Influence in Los Angeles, it is highly recommended that they seek the help of a Los Angeles DUI Attorney to prepare their arguments and the possible defenses available to them. These strategies and defenses may be factual or legal.

Legal Strategies and Defenses

In order for a person to be convicted of a DUI, they must have been driving at the time of the arrest, and must have been intoxicated while driving. A legal professional will strategically asses the type of instrument used, the method in which the evidence against the client was obtained, and the accuracy of the date collected. These are legal defenses or strategies that are available to the client. Let’s consider an example that covers a few of these strategies.

David is driving home from a party when he is stopped for suspicion of driving under the influence. He only had a sip of a couple glasses of wine. He is no way under the influence, especially not enough to impair his ability to drive. David is stopped by officers for not having come to a complete stop at a red light, before making a right turn. David was in fact completely stopped prior to turning. Officers pull him over and start talking to David. They ask David questions as to where he is going ,and where he has been. They ask him if he has been drinking and David responds no he has not. Because he was not in fact drinking. David has perfect speech, is not slurring, does not smell of alcohol, nor does he appear to have any physical symptoms of a person who is under the influence. Officers ask him to step out of the car and administer an alcohol screening test and the test reads .10. This is nearly impossible.

There can be many legal strategies employed by a DUI professional in this case. First off, officers had no right to pull David over in the first place. He had not violated any traffic laws.

Secondly, officers did not have reasonable suspicion that David was drinking to ask him to submit to an alcohol test. He had no physical symptoms of being intoxicated, he did not smell of alcohol, and when he was asked if he had been drinking, he had said no.

Thirdly, the machine reading is clearly in error. There is no way that David’s blood alcohol was at a .1 when he had a few sips of wine. The machine would need to be analyzed be an independent company, and checked for accuracy and maintenance.

Legal strategies in a Los Angeles DUI are important. They can be the difference between a reduced or dismissed case and can be employed in your case if you seek the proper help and advice. If you are faced with this situation be sure to talk to a DUI expert as soon as possible!

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Does it make a difference if you have been convicted of a DUI in California and are then subsequently charged with a DUI in another state? There are several issues and potential concerns regarding this situation.

In California, the California Penal Code defines potential sentences for a person who has been charged and convicted of drinking under the influence. It further outlines what the consequences are if it is your first DUI, your second, or more. As the number of convictions increase, the sentence does as well. For example, a second DUI will include mandatory jail time.

So what happens if the second conviction is in a different state. Does the second state have to charge it as a second DUI , or a first DUI? This is obviously a very important concern because it make a big difference in the length of probation, as well as mandatory jail time.

If you have been charged with a DUI in a state other than California, and you have a previous DUI conviction in California, the other state may deal with it as they see appropriate. They may choose to take into account the previous DUI, or they may not even know it exists.

It is very likely that the other state will not be aware of the previous conviction for several reasons.

  1. Each state is dealing with an overload of cases. They generally do not have the time to review each and every person’s potential criminal history in each state. They do not have the resources nor the time. They will generally just do a criminal background check in that state and base their charges upon that.

 

  1. The statute and code section varies from state to state. For example, a driving under the influence charge in California is California Penal Code §23152. This is not the same code section, in let’s say, Alabama. Therefore, prosecutors will not know to look for that code section or what it is when it shows up on a background check.

 

  1. The standards and procedures for DUI convictions in different states vary. California states that a person is intoxicated when their blood alcohol level is over .08. The percentage may vary in different states. Therefore, whereas a person may be convicted in one state for driving under the influence, they may not be in another state.

 

A prior DUI in California is generally not considered when it comes to a conviction in a different state. However, if it is, then there can be potential jail time, or otherwise since it would be considered other than a first time offense. It is important to have a Los Angeles DUI Attorney represent your interests and speak to prosecutors in the different state to argue as to why the first DU should not be considered.

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What happens if you are a Los Angeles resident and are out of town when you get arrested and charged with drinking under the influence? Does the case transfer to Los Angeles? What about your license? Is it suspended in Los Angeles, or in the state where you are arrested?

There are all excellent questions and are of importance for any California resident that travels a lot. Driving under the influence laws are specific to each state. California defines its own requirements and standards for a DUI, as well as potential consequences under the California Penal Code. The California Penal Code is specific to arrests arising out of California incidents and does not apply to its residents when they are traveling.

Let’s consider an example. Dora is a salesperson and travels a lot for her job. As a part of her job, she has to entertain clients with dinner and shows. Dora is a resident of Los Angeles but is traveling to Chicago for work. She takes some clients out to dinner and as she is driving back to her hotel, she is stopped by officers for potentially being under the influence. She is arrested and charged with suspicion of driving under the influence.

Dora’s case will not be transferred to Los Angeles court to be heard by a California Judge. If she was driving in Illinois at the time, she will be subject to the laws of Illinois, despite the fact that her license is California and she is a resident of California. This is important because your Los Angeles Criminal Defense attorney cannot represent you in an out of state case. What they can do, is guide you through the process of completing requisite programs or sentences in California.

Dora should hire a Criminal Defense attorney in Illinois. She should also consult with a legal professional in Los Angeles because she will need to take some proactive steps to help reduce or dismiss her case. She will want to start enrolling in alcohol education classes, she may also want to start looking at different options for community service, if it is ordered. It does not make any sense for her to have to complete classes or community service in Illinois. That is why she will have to find something compatible in Los Angeles.

Dora will also not need to appear in Court if she is back in Los Angeles. In California courts, a person does not need to appear if they are represented by counsel and it is a misdemeanor case. If the Judge requires that the person being charged appear, then they may also allow the option of telephonic appearance for out of state clients. If that is the case it is worth discussing with both a Los Angeles attorney and the out of state attorney to save you a lot of money in flights and otherwise.

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Under Family Code §23152 and 23153, a drive can be charged with driving under the influence of alcohol, drugs or both. There are certain elements to a DUI case and those elements must be proven beyond a reasonable doubt for a person to have been found guilty of a DUI.

It is possible to get a DUI even if you are parked, and intoxicated, if officers believe that you had driven to that location. If you are charged, you will be administered the same tests and field sobriety tests, as if you were pulled over while driving. The only difference is that officers will have to prove that you were in fact driving while you were intoxicated. This is difficult to prove if you weren’t actually pulled over by the cops. Prosecutors will have to use circumstantial evidence to present their argument.

Hypothetical Comparisons:

Let’s consider two different examples to understand the available defenses in a DUI when you were not driving at the time an officer stopped you.

Example 1: Dana is parked in a parking lot and is intoxicated. She is in the parking lot of a bar, and she is in the back seat with the keys in her pocket. She is laid out with her jacket as a blanket and is completely asleep with officers knock on her window. The car engine is off and all the doors and windows are locked. Officers get her out of her car and give her a field sobriety test. Seeing that her blood alcohol level is .12, they arrest her and take her into custody, charging her with a DUI.

Example 2: David is parking in a parking lot of a Vons grocery store. There are no other places around. He is sitting up and asleep in the driver’s seat with the key in the ignition. His windows are open and the music is on. His headlights are also on. Officers arrive and find him in the drivers seat and get him out of the car. David is asked to take a field sobriety test and his blood alcohol level is .12. He is taken into custody, and arrested. He is also charged with a DUI.

The facts in Dana’s case makes it appear like Dana was at a bar and could not drive home, so she slept in the backseat until she was presumably ok to drive. This would be the argument that Dana’s Los Angeles DUI Lawyer would make. On the other hand, David appears to have been driving, and figuring out that he is too intoxicated pulls over and immediately passes out, without even turning his car off.

Whether your case is more like Dana or David, there is plenty of room for subjective argument. Consulting with an experience legal professional can make all the difference in your case. Do not take a chance on arguing it yourself, especially when there is a strong argument to be made in your defense.

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What is alcohol monitoring?

Alcohol monitoring looks like a small bracelet that you wear on your ankle. It monitors your alcohol use and transmits reports to either the court, or to you directly. It is referred to as transdermal monitoring because it gathers information transdermally, through your skin.

What is the purpose of transdermal monitoring?

The monitor does not necessary provide an accurate reading of the exact level of alcohol in your system, it just indicates whether there has been alcohol in your system or not. This is not a good option for first time offenders, or those that have been charged with their first DUI. This is because first time offenders are not restricted from consuming alcohol, it is the repeat offenders that need help with rehabilitation, and the monitoring bracelet can help with that.

When can I get transdermal monitoring?

As stated previously, it is not for first time offenders, it is for those who have a high rate of recidivism. The overall goal of the monitoring is to help curb alcohol addiction, and to help those with issues with alcohol help make some changes for good.

You can get transdermal monitoring voluntarily, or mandated by the court. If it is voluntary any reports the monitoring produces goes directly to you, or your attorney. It does not get forwarded to the court. The purpose of voluntarily submitting to being monitored is to proactively show the court that you are serious about your offense and are voluntarily making amends to resolve the issue. You can provide reports to the court as evidence of your cooperation, however, it is not mandatory that the court see these reports.

If the court orders the monitoring, it will likely be ordered after a second or third DUI offense. If the monitoring is court ordered, the reports will automatically get sent to the court for an update. This allows courts to enforce orders, without having to continuously monitor.

Whether alcohol monitoring is a good idea in your case, or whether it is not necessary is a question for an experienced Los Angeles DUI lawyer. The lawyer can review all the facts of your case, and your criminal history. Knowledge of the Judge and prosecutors will also prove to be useful when assessing the situation. Oftentimes, proactive measures can keep your charges low and help avoid jail time, especially when it is not a first time offense.

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When a person has been charged with drinking under the influence under California Vehicle code §23152, or §23153, a second case will also be initiated with the California DMV. When a person is arrested, they will be given a court date, in which they must appear before a California Criminal Judge. In the criminal court, their case will be tried and they will either be found guilty, or the case dismissed.

Within ten days of the arrest, the person must also call the California DMV and set up a hearing regarding their driving privileges. If they do not do so within ten days, they give up their right to be heard. As a result, their license will automatically be suspended. This case before the California DMV is completely independent of the one before the Criminal Judge. The outcome of one will not affect the outcome of the other. In fact, even if the case before the Criminal Judge is dismissed, it does not mean that the DMV will also dismiss the case pending before them.

Let’s consider an example. Danny is found driving under the influence of alcohol and he is arrested. He declines the field sobriety tests, but agrees to take the breath test at the station. His results are a .07. Although they are not over the specified .08, a careful analysis of the DUI code section will show that blood test results of .08 or higher are not necessary to be charged with a DUI. Danny is still charged. And as procedure goes, a case is also initiated with the DMV.

Danny hires a Los Angeles DUI attorney who goes to court on his behalf and argues his case. Eventually, Danny’s case with the Criminal Court system is dismissed and it is as if he has no charge against him at all. However, much to Danny’s dismay, the DMV case is not dropped simply due to the Criminal Case’s dismissal. Danny’s Los Angeles Lawyer continues to argue his case before the DMV.

Do not make the mistake of believing you do not need an attorney for the Los Angeles DMV Hearing. It is important that you protect your rights during this hearing as well. Although it is not as formal as the court case, it is certainly a very important hearing. Your attorney will have the right to present evidence, testimony, just as would be done in Court.

There are also available defenses during a Los Angeles DMV hearing. These defenses are better employed and discussed with a legal professional who has the knowledge and experience to make strong arguments. If you find yourself in this situation, discuss the facts of the case immediately with an attorney. There are certain steps to be taken with your DMV hearing that need to be taken immediately! Time is of the essence!

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In recent times, the legislature has revised the statute pertaining to the use of drugs while operating a vehicle. The statute used to be very simple and simply included that it was unlawful to operate a vehicle while under the influence of alcohol or drugs. However, since January 1, 2014, they legislature added specific sections referring to drugs alone. In their revision they made a very significant and important change. The revised law requires an in depth discussion to understand how it can affect you or your case if you have recently been arrested for suspicion of a DUI.

California Vehicle Code Subsection (c ) reads as follows:

(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

This is incredibly important, as nothing pertaining to this section used to exist prior to January 1, 2014. This makes it unlawful for any addict to drive a vehicle. The DMV has full reign to suspend or revoke a license indefinitely, just by merely proving that a person is an addict. As noted, it does not include those that are participating in a program as part of a sentence or rehabilitation.

As discussed earlier, drugs and alcohol used to be combined but now it stands separated. California Vehicle Code §23152 (e) reads as follows:

(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.

The statute does not specify any guideline measurements that would define as being under the influence of a drug. This is because it is difficult to ascertain exactly when a person is under the influence.

And for good measure, the legislature includes as it did previously the catch all provision as follows:

(f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.

If you have been arrested for the suspicion of a DUI while you were under the influence of drugs, it can be a difficult case to argue. However, in some instances it can be easier than a case in which a person has been stopped for consuming alcoholic beverages while driving. This is due to the fact that it is harder to prove that a person has been under the influence of drugs, than it is to prove alcohol. Due to this fact, you could have a strong case in which your charge may be reduced or dismissed. Speak to a Los Angeles DUI Lawyer today to learn the difference strengths and weaknesses of your case!

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There is a reason that the layperson refers to legal language as legalese. Legalese is only understandable to lawyers and attorneys. Unfortunately, most of the law and statutes that concern everyone are written in legalese. This could cause a significant problem when you are arrested on suspicion of a Los Angeles DUI and need to understand the strength and weakness of your case. It is also important to understand the defenses and arguments available to you.

The DUI statute, especially after recent changes, embodies a very specific legal concept written right into its statute. California Vehicle Code §23152 (b) reads as follows:

(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

Upon first read, a driver who has been charged would not be able to understand what the language means. In fact, it is not only recommended that they seek the help of a Los Angeles DUI attorney, it is necessary.

The first part of the section defines how blood alcohol content will be measured. It gives a standard upon which it will be based.

The second part of the section gives us what is called a rebuttable presumption. The law will presume that a person who take a chemical test within three hours of driving, and has a result of .08 or higher, has, in fact, been unlawfully driving.

The reason it is called a rebuttable presumption, is because this presumption can be rebutted. This means that it can be proven otherwise through testimony and evidence, that this was not in fact the case. However, the burden is on the person who is trying to prove that they did not have a BAC of .08 or more to prove that.

If you find yourself facing this rebuttable presumption, it is a heavy burden to prove. It is imperative that you, in the very least, consult with a Los Angeles DUI lawyer for all available defenses.

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California Vehicle Code §23152 makes it unlawful for a driver to be operating a vehicle while under the influence of any alcohol or drugs. The code section used to only include subsections (a) and (b) but as of January 1, 2014, the code section has been revised and additional sections have been added.

Due to recent revisions, it is important that a person who has been charged with a DUI understand the language in the law.

The first part of the Code Section , subdivision(a), reads as follows:

It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

The first section addresses operating a vehicle while under the influence of alcohol. Note that there is no reference to drugs in this part of the statute. The law originally stated that it was either alcohol or drugs, but that is no longer the case.

Furthermore, note that in order for it to be unlawful, there needs to be two elements present: 1) under the influence of any alcoholic beverage, and 2) drive a vehicle. If a person is just driving a vehicle, they cannot be found guilty of a DUI, and if a person is just under the influence and not driving, they cannot be found guilty of a DUI. In order for a person to be convicted, they must meet both elements.

The second part of the statute, subdivision (b) reads as follows:

(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle

The law further specifies what will constitute being “under the influence”. If a person’s blood alcohol level is at .08 or more, then it will be unlawful.

It is important to understand that the statute does not state that you have to be over .08 to be charged with a DUI, it only specifies that someone who is found to be over .08 will be unlawfully driving a car. It does not state that a person who is found to be lower than .08 will not be charged.

Subsection (a) states that it is unlawful to drive a vehicle under the influence of alcohol. If a person is under .08, they can still be charged under subsection (a) which does not require any set blood alcohol.

It is important to understand the nuances of the law, as it could make a significant difference in your case. Accordingly, if you have been arrested for suspicion of DUI, take the charges very seriously and speak to a Los Angeles DUI Lawyer immediately!