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30 Years of Daily Courtroom Experience
Los Angeles DUI Lawyer Blog
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In the previous blog, there was discussion on possible defenses for DUI. While an arrest is stressful and often traumatic, it does not necessarily have to lead to a conviction if the right defenses are available. The strength of each available defense will depend on the specific facts of your case. A thorough discussion of the each available defense with an experienced Los Angeles DUI Lawyer will help you determine what your options are and if any of the defenses will work in your favor.
In Part 1, two defenses were discussed; No driving, and Inaccuracy of test results. There are additional defenses available, with one of the strongest being a good lawyer who is aggressive and familiar with not only the law and procedure, but also the Judges and Prosecutors themselves.
Fourth Amendment Rights
Under the Constitution, we are afforded certain rights to be free from unreasonable search and seizure. When you have been stopped for suspicion of any criminal violation, not just DUI, officers do not have the right to search your property or your person without reasonable cause. For example, officers may not draw blood from you for sobriety tests, without your consent and permission. You must give explicit consent. Officers may not pull you over, unless they have a reason to do so, and they may not ask you to submit to an alcohol test or sobriety test unless they have reason to do so. There may be a reason if you admit to having been drinking, or if officers observe that you have visible signs of being intoxicated. This can include, the smell of alcohol, watery eyes, and slurred speech.
If it is found that officers have not  followed procedure and have gathered evidence against your Fourth Amendment rights, then  with the right motions and argument, the Judge may throw out each of those pieces of evidence, and Prosecutors may not use it to present their case. This will definitely weaken their  case, giving you stronger changes or prevailing.
Rising Alcohol Defense
Your blood alcohol must be high enough to indicate intoxication at the time you are operating a vehicle. To fully understand this defense, it is important to consider an example. Don has volunteered to drive to the neighborhood bar. His plan is that he can leave his car there after and everyone can take a cab back to his apartment. Right before Don leaves his apartment, he takes two shots of Rum, gets in the car and drives his friends to the bar, about 5 minutes away. At the time Don got into the car, his blood alcohol level was low because the shots had not yet taken effect, and had not entered his bloodstream. So, in argument, Don was not intoxicated at the time he was driving his vehicle.
This is a difficult defense, but one that can prove to be extremely successful. To determine if your case has the right facts to support such a defense would be the job of a legal professional who deals with DUIs everyday.

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If you have been arrested for a DUI, this does not mean that you are automatically found guilty and will be sentenced. This means that officers believed there was a reasonable suspicion that you were under the influence while operating a vehicle. Prosecutors must first review your case, and determine if there is enough evidence or argument for you to be charged. If they feel that there is, then they will bring charges against you. This, again, does not mean you are guilty. It simply means that Prosecutors believe that there is reason for you to be guilty.
If prosecutors bring charges, then they must also prove beyond a reasonable doubt, in Court, that you are guilty of being intoxicated, and driving while you were intoxicated. Each case is different, and each case has its own unique set of facts. However, there are certain defenses available to each person that has been charged. The strength and the weakness of each defense will depend upon the specific facts of your case and can be discussed in detail with a knowledgeable Los Angeles DUI Lawyer.
No Driving
For Prosecutors to get a successful conviction, they must show that beyond a reasonable doubt you were intoxicated by the influence alcohol and/or drugs, and that beyond a reasonable doubt you were driving. They must have both elements to be successful in getting a conviction. If you were not driving at the time officers stopped you, they have not automatically met their burden, and must use facts and circumstance to prove their case. This means that officers will testify to things like, you were pulled over at the side of the freeway, which indicates that you must have driven there. You may counter and say that you were sober, and then pulled over and had something to drink, so at no point were you actually driving while intoxicated. Most cases are simple to prove driving because people are pulled over. However, if you were not driving at the time, there is a weakness in the prosecutors case and you will have room for strong argument.
Inaccuracy of test results
When you are stopped for suspicion of a DUI, officers will ask you to participate in certain field sobriety tests. These tests are taken at the scene and include certain walking tests, and also include taking a breathalyzer. What many people do not know is that the breathalyzer test at the scene is not mandatory, and there are no negative consequences for refusing to take it. When and if, you are taken to the station, and submit to a sobriety test, whether breath or blood, that is mandatory. Failure to take the test at the scene, can result in additional sentencing or consequences. However, the tests that are used for breath must be maintained properly so that they are consistently taking accurate tests. If you feel that the test results are completely inaccurate, there are ways to gather evidence as to the routine calibration and maintenance of the machines used. If the machines, are in fact, not being kept up to code, then there may be grounds to throw out the test results and the Prosecutor must build his or her case without that piece of evidence.

Inaccuracy of test results
When you are stopped for suspicion of a DUI, officers will ask you to participate in certain field sobriety tests. These tests are taken at the scene and include certain walking tests, and also include taking a breathalyzer. What many people do not know is that the breathalyzer test at the scene is not mandatory, and there are no negative consequences for refusing to take it. When and if, you are taken to the station, and submit to a sobriety test, whether breath or blood, that is mandatory. Failure to take the test at the scene, can result in additional sentencing or consequences. However, the tests that are used for breath must be maintained properly so that they are consistently taking accurate tests. If you feel that the test results are completely inaccurate, there are ways to gather evidence as to the routine calibration and maintenance of the machines used. If the machines, are in fact, not being kept up to code, then there may be grounds to throw out the test results and the Prosecutor must build his or her case without that piece of evidence.

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If you have been arrested for a DUI, you have not yet been charged or convicted. Officers will sent their report over to the Prosecutor’s office, and then prosecutors will determine if the State will take action and bring criminal charges against you. IF charges have been brought against you, the criminal courts must make a finding that you are guilty beyond a reasonable doubt before you can be convicted. Simply being arrested is, in no way, a guarantee that you will be found guilty of driving under the influence.
Due to the fact that an arrest does not necessarily lead to a conviction, you can take steps to ensure the best possible chance of never reaching a conviction. One of the first and best decisions you can make after a DUI arrest, is to hire an experienced Los Angeles DUI lawyer. I do not mean a lawyer who has just passed the bar exam, or a lawyer who just set up shop in Los Angeles, or the lawyer who is willing to offer you the best deal. Choosing a lawyer is important, and you must make sure all the requisite details are met.
A knowledgeable lawyer can be one that has been practicing for over thirty years IN Los Angeles. If an attorney has been practicing for over thirty years they will not only be well versed in the law and the procedure, but also in the Judges they are appearing before, and the Prosecutors they are appearing against. It will ensure that they know which defenses and arguments will work with which Judge.
Hiring a lawyer will also give you the legal professional advice that you need. A legal professional can tell you what you don’t know and when it is a good idea to accept a deal from the Prosecutor, or when to push the case. It will also help explain how the legal criminal process works. You, on your own, would not know what an Arraignment is, or what Pre-Trial means. You will not understand if it is a good idea to proceed to trial, or if you are risking a harsher sentence by doing so.
In many cases, you do not need to appear in Court. If you have an attorney representing you, the attorney will appear on your behalf. When choosing an attorney it is important to choose an attorney you trust, and one you believe will fight for you. Court can be a scary and intimidating place, and a place most people do not wish to visit. That is why, having an attorney you trust can be a huge asset, and will eliminate the additional stress and hassle in your life.
One of the best things you can do for your own well being and peace of mind, as well as your Los Angeles DUI case, is hire an experienced, knowledgeable Los Angeles DUI lawyer. This will give your case the best possible odds of being beat!

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The criminal court system can be complicated and confusing. There is an entire process and hurdles that must be met at each stage before you move to the next step. Furthermore, there is a decision to be made before moving towards trial. These decisions must be made with careful thought and decision before heading towards trail. There are lots of things to consider, and many of these decisions require legal knowledge and background. That is why it is a good idea to consult with a Los Angeles Criminal Defense Lawyer on whether or not it is a good idea to take your DUI case to trial. There are some very important things to consider.
Costs:
Going to trial is expensive. There are many things an attorney needs to do before trial even starts. They must gather evidence, through interviewing witnesses, looking at potential exhibits, and reviewing countless documents. They must look into surveillance videos, and calibration of different tests that were taken. They must also prepare witnesses, testimony and the presentation of their case. Additionally, they must do research on the law, cases, and file any motions that are necessary. Going to trial is not always necessary,  and based on the evidence and the prosecutor’s arguments, it may not be worthwhile.
Prior to going to trial, you should discuss in detail the strengths and weaknesses of your case with a legal professional. There should be a details discussion of each argument and each defense and the likely outcome of each. Going to trial can cost you a good plea bargain from Prosecutors and you risk getting sentenced the highest possible sentence.
Lets consider an example to understand why trial is not always the best option for everyone. Danny has been charged with a DUI. Danny was driving home from a get together where he had a couple of beers. As he was driving home, Danny ran a red light, giving officers probable cause to pull him over. Once he pulled him over, the officer smelled alcohol on Danny’s breath. The officer asked Danny if he had been drinking and Danny admitted that he had a few beers. The officer than asked Danny to submit to a field sobriety test, which Danny did voluntarily. The blood alcohol level was about .12. This is well over the legal limit.
Danny’s case is not a good one to take to trial ,and if Danny opted to, it might cost him a lot more with a worse outcome. The officers had probable cause to stop Danny in the first place. They then had reasonable suspicion to ask him to submit to an alcohol test. They have Danny’s admission that he had been drinking, and a reading on the blood alcohol test. These are strong arguments against Danny. This does not mean that Danny has no options. An experienced DUI lawyer can still negotiate with Prosecutors for a plea bargain for minimal sentencing or reduced charges. There is always a way, and consulting a legal professional is the first step towards the best case scenario!

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When you have been stopped for suspicion of a DUI, it is a scary and stressful experience. What most people do not know is that officers have to follow a certain protocol before they are allowed to arrest someone for the suspicion of a DUI. If they do not follow the protocol, they do not have grounds to take someone into custody. Saying certain things, even though it may seem like you are cooperating with officers, may give officers the reasonable cause they are looking for. Understanding the process and the legal obstacles officers must jump over, may give some clarification on the issue of what statements you should not make to officers if you find yourself being stopped.

Probable Cause

For an officer to ask you to pull over they need a probable cause. Probable cause will arise from a traffic violation, or for some violation in driving. This will give officers the authority to ask you to pull over. Such violations can be speeding, running a red light, or weaving.

Officers can also assist in a situation where you are pulled over at the side of the road. They can come and see if anything is wrong or if you need assistance. This also gives them probable cause.

Reasonable Suspicion

Once an officer has a valid reason to pull you over, they may ask you to submit to a breath test if they have reasonable suspicion that you are intoxicated. The intoxication may be from alcohol or drugs. One of the ways an officer can obtain reasonable suspicion is if they observe signs that show you are intoxicated. This can be red eyes, the smell of alcohol, slurring, or incoherent. The other, more common way, for officers to get reasonable suspicion is through admissions. When you are stopped, officers will ask if you have been drinking, or if you have had an alcohol that evening. Most people, wanting to be cooperative will admit to having been drinking. This is an admission and all the reasonable suspicion an officer needs to ask you to submit to a breath test or other field sobriety test.

A person cannot be charged and found guilty, if officers do not follow proper protocol in gathering evidence. If they did not follow protocol and you have been charged, there is a good chance your case may be dismissed or reduced. Admitting to having been drinking only solidifies the officer’s case. It is not advisable to lie to officers, however, the fifth amendment protects your right to not have to say anything incriminating about yourself. You do not need to say yes or no, you can simply say that you do not wish to answer.

If you find yourself in this situation, do not hesitate to contact a Los Angeles DUI lawyer as soon as possible. They can walk you through the facts of your case and assess its strengths and weaknesses.

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Many of our clients that come into our office are worried about having to serve a jail sentence when they have been charged with a DUI. Their ultimate goal in hiring a legal professional is to ensure that they do not have to serve any jail time.

First off, just because a person has been arrested for a DUI, does not mean they have been convicted, or will be sentenced at all. An arrest simply means that an officer had probable cause to believe that the person who was arrested could have been driving under the influence of alcohol and/or drugs. It is just a suspicion, or a belief so to speak. A person cannot be convicted for a DUI until they have been found guilty of a DUI.

In order for a person, to be found guilty of a DUI, they have to enter a plea of guilty. The plea must be entered voluntarily, and freely. The person may also be found guilty through trial. However, for a person to be found guilty it must be found by a Jury or a Judge that it was beyond a reasonable doubt that the person was found driving, and it was beyond a reasonable doubt that the person was intoxicated while driving.

It is only after a person has been found guilty, or has pled guilty that the court will consider possible sentences. The sentence will depend on several factors, including the criminal background of the client being charged, and the facts of the case. If the facts of the case are egregious, or aggravated, by lets say an exceptionally high blood alcohol level then the court may consider jail time. Additionally, if it is a second or third offense, or even higher, then the court may want to consider jail time.

In any case, sentencing is done on a sliding scale. There is a range specified by the Penal Code and the Judge will take all factors into consideration before issuing a sentence. This is why it is extremely important to seek the help of a Los Angeles DUI Lawyer. They have experience in making effective argument and presented strong defenses. They also have the experience and knowledge to ensure that your sentence is kept at the minimum end of the scale, this includes avoiding any jail time.

In the event that a Judge wants to issue jail time, an attorney can present a case that an alternative to jail time will be a better option. This includes private weekend jail, house arrest, or even restricted vehicle access. If you find yourself in this situation, it is a good idea to consult with a legal professional as soon as possible.

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An officer must meet certain criteria before they are able to pull someone over for suspicion of driving under the influence, and before they are able to administer and alcohol tests. To better understand the process, lets outline an analyze an example.

David is driving home from a friend’s birthday party. At the party he has had two beers. He feels fine to drive and believes he has no alcohol in his blood. When David is driving home, he thinks he can catch the yellow light, but instead, when he crosses the crosswalk, the light is red. Officers immediately follow him and ask him to pull over.

Officers need a reason to stop David, referred to as probable cause. They cannot arbitrarily pull someone over. The driver must have a traffic violation, or be missing a headlight, or even have an expired license plate. Additionally, officers can pull over and question someone as part of a Samaritan stop. This is a stop where someone is pulled over at the side of the road, and officers stop to see if everything is ok.

In the above example, David ran a red light. This is a traffic violation and gives officers the authority to pull him over.

Officers pull David over. As officers approach David they notice that his breath smells like beer. They also notice that his eyes are slightly watery. They ask David if he has been drinking, and David responds that he has had just one beer and is not under the influence at all.

Officers need reasonable suspicion that is a driver has had alcohol, or is under the influence before they can ask them to step outside of their vehicle and submit to an alcohol test. The reasonable suspicion can be obtained in several different ways. It can be through observations the officers make; this includes alcohol smell, red and watery eyes, slow gaze, slow reflexes, and other signs of being under the influence of alcohol or drugs.

Reasonable suspicion can also be obtained through admission. More often than not people want to be honest and truthful so they will tell the officer what they have had to drink. However, this is an admission and stating that you have had some alcohol, in any amount, gives the officer the reasonable suspicion to administer an alcohol test.

If any of these procedures are not followed, then it may be grounds to throw out evidence that has been gathered. If there is no evidence, it weakens Prosecution’s case and can result in a dismissal or a reduction. If you believe these procedures were not followed, your Constitutional Rights may have been violated. Consult with a Los Angeles DUI lawyer as soon as possible so that you can learn about all possible defenses and arguments available to you!

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California Vehicle Code outlines unlawful behavior that can lead to a DUI conviction in California. California Vehicle Code §23152 makes it unlawful for a person to be under the influence of any alcoholic beverage, drug, or both, and operate a vehicle.

California Vehicle Code §23153 makes it unlawful for a person to drive a vehicle, while under the influence of alcoholic beverages, drugs, or both, and concurrently do any act forbidden by law, or neglect any duty imposed by the law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

Essentially both statutes outline the same unlawful act, but the felony has several additional elements. Let’s consider a breakdown of the elements to fully understand the difference between the two.

Misdemeanor DUI under California Vehicle Code §23152:

  1. Person must be under the influence of alcohol, drugs, or both; and
  2. Operating a vehicle.

To be found guilty of a misdemeanor DUI, the Prosecutors must prove both of the elements above beyond a reasonable doubt. A person who is just driving but not under the influence of alcohol, drugs or both, cannot be found guilty of a DUI. A person who is just under the influence of alcohol, drugs, or both, but is not operating a vehicle, cannot be found guilty of a DUI. BOTH elements must be present.

Felony DUI under California Vehicle Code §23153:

  1. Person must be under the influence of alcohol, drugs or both; and
  2. Operating a vehicle; and
  3. Any one of the following:
    1. Driver is engaged in any act that is forbidden by law which proximately causes bodily injury to any person other than the driver
    2. Driver has neglected any duty imposed by the law in driving a vehicle which proximately causes bodily injury to any person other than the driver

In order for a DUI to be charged as a felony, there has to be some bodily injury to a person other than the driver. And that injury must have been caused by an act or neglect on behalf of the driver. If there is no bodily injury, the driver will still likely be charged with a DUI, but it will be a misdemeanor.

With proper arguments and negotiations, a felony DUI may be reduced to a misdemeanor. However, it takes a lot of skillful strategy, experience and proper preparation. A felony DUI faces mandatory jail time, it remains on your record, and may have harsher consequences with educational facilities and employers. If you find yourself facing a DUI, it is a good idea to consult with a Los Angeles DUI lawyer as soon as possible.

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The legislature amended the California Vehicle Code §23152 pertaining to misdemeanor DUIs to specifically include language stating that it is unlawful for a person to be operating a vehicle while under the influence of drugs.

A person who is driving can be charged with a DUI if they are under the influence of drugs, alcohol or both. However, if alcohol is involved, it will be an easier case for prosecution to prove. Some examples will help understand the difference and why it may be easier.

David is driving home from a party. He has had a few beers and feels fine. He is stopped by officers for running a red light. The officers approach his vehicle and smell beer on his breath. They also notice that he is slurring his words and is having a hard time focusing on what the officer is saying. Suspecting that he has consumed alcohol, officers ask him to submit to a breath test, which David agrees to. David takes the test and gets a reading of .12.

Don is driving home from hanging out with his friends. While with his friends, Don has taken some prescription drugs. The prescription drugs specifically state on the container that the person who takes them is not to operate a vehicle, as it may distort their ability to respond quickly. Don, not caring about the label has taken a few more than the recommended dosage because he likes the way it makes him feel. He has not had any alcohol to drink. Officers pull him over for running a red light. When they approach him, he is talking slowly, and his reflexes are slower. Officers suspect that he may be under the influence of alcohol so they ask him to submit to a breath test. Don agrees, and the test reads .00. Officers, not having grounds to take him into custody, do not take him into custody, but give him a citation for a DUI.

Both parties consult with an experienced Los Angeles DUI attorney. In Don’s case there is no real evidence officers have to prove that Don was under the influence of something, other than the officer’s observations. The test read .00, and he did not do anything or admit anything. In David’s case there is a reading indicating alcohol in his system and coupled with the officer’s observations, it will be a harder case to overcome.

Both cases, however, have defense available, and arguments to get the case reduced, if not dismissed. To learn about each of those options, it is highly recommended that you consult with a professional who has significant experience handling DUIs.

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In January 2014, the legislature changed the language in California Vehicle Code §23152 and 23153. California Vehicle Code §23152 is the code section that pertains to misdemeanor DUI charges. The new code section reads as follows:

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

(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.

(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.

(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 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.

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

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

The code section now specifically has its own section that specifies that any driver that is under the influence of drugs can be found guilty of a DUI. Being under the influence of drugs is a harder case for prosecutors to prove, and could be a strong argument for a defense attorney.

It is highly recommended that if you find yourself in this situation that you consult a Los Angeles Drug DUI lawyer to assess the different points of your case and to strategize the best possible defense available.