How Do I Choose the Right California DUI Attorney?

Posted by Jon Ibanez on April 20th, 2017

It goes without saying that the day a person is arrested on suspicion of a California DUI is very often the worst day of that person’s life. As the handcuffs are being slapped around the wrists, thoughts flood the mind of the person who has just been arrested for a California DUI: How long will I be under arrest? What will happen in court? What am I facing?

Fortunately, people don’t have to do it on their own. The legal system is complex to say the least and should never be tackled by the person facing the charges. Most lawyers have spent at least four years at an undergraduate university then three years at law school. Then, lawyers must pass the scrutiny of the bar exam, which in California is the most difficult in the country, before they can actually practice law.

Ok, so lawyers have a lot of education under their belt. How does a person tell if a lawyer is qualified and right for their case?

The first step is research. You don’t buy the first car you see at the dealership. With so much at stake, why would you hire the first attorney you talk to? Ask family and friends if they know a lawyer. You’d be hard pressed to not find anyone who hasn’t used a lawyer in the past. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. Lastly, check the California Bar Association’s website at Calbar.org to check if a lawyer has had any disciplinary action taken against them for misconduct.

After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law, but this does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly even criminal defense, which may include DUI law. While the law, in general, is complicated, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend a DUI case every couple of months.

Although many of don’t like to say it, but we, by the nature of our profession, are also salespeople. We need to convince people to hire us to represent them. Unfortunately, the reputation of salespeople runs true with many attorneys as well. Some lawyers will tell you what you want to hear to make the sale. They might claim that they can help because the case is a “slam dunk.” I have been practicing DUI defense for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them for representation in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.

It’s no surprise that lawyers can be expensive. But remind yourself that you’re paying for someone with the experience to help you make it through one of the most difficult times of your life. Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers range from $1000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often, the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for.

I can’t say it enough. Hiring a lawyer is an extremely important decision and one that can have lasting effects on your life. Do your research and find the right California DUI attorney.

The DMV and License Suspension After a California DUI

Posted by Jon Ibanez on April 13th, 2017

When a person is arrested on suspicion of driving under the influence of alcohol, their license is usually taken and the officers give the driver a “pink slip.” The pink slip is a temporary license which will allow them to drive…at least for 10 days.

The officer should inform the driver that they have 10 days to contact the DMV to schedule a hearing to try and save their driving privileges. However, in the confusion and anxiety of the DUI arrest, many people forget or ignore the instruction. The 10 days lapse and, much to the surprise of many of my clients, their license is suspended even though their court case hasn’t concluded or in some instances, hasn’t even begun.

A DUI of alcohol triggers two separate actions; a California DMV “administrative per se” (APS) action and a criminal court case.

After 10 days from the date of arrest, the DMV will automatically suspend a person’s license for four months unless the person or their attorney schedules a hearing with the DMV. If a hearing is scheduled within 10 days, the DMV will “stay” or postpone the suspension pending the outcome of the hearing.

The DMV hearing is to determine 1.) whether the officer had reasonable cause to believe the driver was driving under the influence, 2.) whether the driver was lawfully arrested, and 3.) whether the driver had a blood alcohol content of 0.08 percent or higher.

Once again, this process is separate and distinct from what happens in court.

If the driver or their attorney schedules a hearing with the DMV within the 10 days, and the suspension is “stayed,” the hearing itself presents an uphill battle. By “uphill,” I mean completely stacked against the driver.

Since the DMV is not a court, the standard of proof needed to suspend a person’s license is much lower than what is needed to convict a person or a crime. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. The DMV hearing officer, who is a DMV employee, conducts the hearing. The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. And they almost always do.

Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

The DMV hearing officer, who, like a judge, determines the outcome of the DMV hearing is merely a DMV employee with no background in law. In fact, according to the DMV’s employment eligibility requirements, a hearing officer does not even need to have a college degree.

Although unlikely, if the DMV hearing is won by the driver, they save their license from a four-month suspension, but they still face the criminal case in court.

I won’t go into what can happen in court for a California DUI case. Just read one of many previous posts on what to expect out of the court case.

If the driver pleads to a DUI or is convicted after a trial, the court will notify the DMV of the conviction triggering yet another suspension called a “mandatory action.” The mandatory action suspension is a six-month suspension, but the driver gets credit for any time spent on the four-month DMV-triggered suspension. In other words, the driver should serve no more than six months of a suspension.

This information is only the tip of the proverbial iceberg. It only applies to a first-time DUI without aggravating circumstances such as a chemical test refusal. Clearly, the complexity of not just the court case, but the DMV action as well, is yet another reason to let an experienced DUI defense attorney do the heavy lifting.

Is Distracted Driving as Dangerous as Drunk Driving?

Posted by Jon Ibanez on April 6th, 2017

I’ll be the first one to say that drunk driving is extremely dangerous, not just to the person driving under the influence, but also for the public as a whole. And it is that last part that has led to the hypervigilance in condemning drunk driving and demonizing people who make the mistake of driving under the influence.

What I find perplexing is the absence of the same hypervigilance and condemnation for other actions while driving which are similar in nature to drunk driving, namely distracted driving. Not speaking about DUI incidences which actually cause injury, the public’s distain toward drunk driving stems from the drivers’ disregard that their actions are putting the public in danger. Couldn’t the same be said for texting while driving, eating while driving, or even driving while tired? These actions are similar in nature to driving under the influence; a person doing something while driving which they know can harm themselves or others.

So what makes drunk driving so much worse? Nearly every person who holds the belief that drunk driving is worse, at least with whom I’ve talked to, believe that diving after drinking is more dangerous that distracted driving.

Well a new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, suggests that distracted driving is as dangerous as drunk driving.

Cambridge Mobile Telematics’s web apps measured driving behaviors for hundreds of thousands of drivers in six categories; phone use while driving, excessive speed, braking, acceleration, cornering and time of driving.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

“Distracted driving due to smartphone use is intuitively blamed for the increase in road crashes and claims,” said Hari Balakrishnan, Chief Technology Officer of Cambridge Mobile Telematics. “What’s less intuitive is that smartphones hold the solution to the problem they created. Drivers now have access to tools that analyze their driving and achieve real behavioral change through immediate and ongoing feedback.”

According to the Center for Disease Control and Prevention, alcohol impaired driving crashes account for nearly one third of all traffic-related deaths in the United States. Drugs other than alcohol, both legal and illegal, are involved in about 16 percent of motor vehicle crashes.

“This data makes it clear that distracted driving is one of the most urgent public safety problems facing our communities today,” said Balakrishnan. “With April being Distracted Driving Awareness Month, it’s important to take a critical look at how we can most effectively reduce the danger that drivers face. By harnessing the very technology that threatens driver safety, and using it to help drivers understand and improve their behavior, we’re making the world safer by the day.”

In California it is Actually Illegal to Drive While Addicted

Posted by Jon Ibanez on March 30th, 2017

Most people know that in California, a person cannot drive with a blood alcohol content of 0.08 percent or more. Some know that, additionally, a person can be charged separately with “driving under the influence” if the officer observed facts that would lead a prosecutor to believe that the person couldn’t drive like a sober person regardless of their blood alcohol content. But few people, however, are aware of California’s least known DUI law.

It is actually illegal in California to drive a vehicle while addicted to a drug.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

When I first learned that this law existed, I asked myself the same questions that you’re probably asking yourself right now: If an addict is not under the influence at the time of driving, how can still be prosecuted for a DUI? Shouldn’t the law only punish those who actually pose a risk to the roads because of current intoxication?

In 1965, the California Supreme Court justified the law in the case of People v. O’Neil.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

Although it’s a stretch, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. So if that’s the case, can a person who is an addict, but not going through withdrawals, still be arrested, charged, and convicted? According to the California Supreme Court, yes.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

Although this section of the vehicle code is rarely enforced, California technically can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

Apparently some parts of the California Vehicle Code like this section doesn’t exist to protect the public from unsafe drivers, but rather punish people with arbitrary labels who can and do drive safe.

 

 

San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

Posted by Jon Ibanez on March 23rd, 2017

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.