Choosing the Right California DUI Attorney

Thursday, May 3rd, 2018

The day that a person is arrested on suspicion of driving under the influence is very often the worst day of their life. The legal process to come, for many, is not much better than the arrest itself. This is precisely why it would be difficult to understate the importance of choosing the right DUI attorney to fight your California DUI charges.

Many of my prior posts talk about the complexities and intricacies of the criminal law process. Other posts I’ve written about talk about the potential consequences of driving under the influence which can include probation, thousands of dollars in fines and fees, a license suspension, drug and alcohol programs, an ignition interlock device, a permanent criminal record, and even jail. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? You certainly wouldn’t want an unqualified doctor performing a surgery on you, or worse, attempt the surgery yourself.

So how does someone who has been arrested on suspicion of a California DUI choose the right attorney for them?

Like many things, the first step is research. Reach out to several attorneys. Many offer free consultations. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. 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. Ask family and friends for referrals.  If someone you know has used an attorney in the past and were happy with the services the attorney provided, that attorney might be a good option.

However, just because an attorney came recommended from a family member or a friend on one matter might not necessarily mean that they’re a good fit for someone else’s DUI case. After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law. This, however, 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 one DUI case every couple of months.

Attorneys, like other service providers, rely on people hiring them to survive as a business. As such, many attorneys are salespeople. 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.

Lastly, it shouldn’t come as a shock to anyone that lawyers can cost a lot of money. However, having said 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 can range from $1,000 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.

Suffice it to say, it’s not an easy process to find the right California DUI attorney, but one that incredibly important nonetheless. Do your homework, make sure that the attorney is qualified, and make sure that you are comfortable with them.

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LAPD Officer Charged with DUI Murder

Tuesday, April 24th, 2018

A Los Angeles Police Department officer was arrested last week on suspicion of three counts of murder as the result of a suspected DUI-related collision in Whittier last fall.

On September 26, 2017, Edgar Verduzco, 27, was allegedly speeding in the carpool lane under the influence of alcohol on the 605 freeway in Whittier, California, when his Chevy Camaro collided into the rear of a Nissan. The Nissan burst into flames and Verduzco’s vehicle went on to hit a second vehicle.

A family of three – Mario Davila, 60, Maribel Davila, 52, and their son, Oscar Davila, 19 – were the occupants of the Nissan and all three died as a result of the collision. The occupant of the second vehicle suffered minor injuries. Verduzco suffered a broken nose.

Before the collision, Verduzco posted a video on Instagram from a bar and included the hastag #Dontdrinkanddrive. The video depicted a male in a police uniform with a badge with the name “Verduzco.” The video also showed an animated person sitting in a car which appeared to be sitting on the bar counter with beers.

Although the LAPD could not verify the authenticity of the post or the account’s owner, KTLA reported that other videos on the account show a Chevy Camaro and a police officer which appears to be Verduzco in an LAPD patrol car.

For anybody else, officers responding to a collision where drunk driving was suspected would have whipped out their breathalyzers quicker than a gunslinger in the old west. Suspiciously, however, the officers who responded to the collision did not give Verduzco a breathalyzer to determine his BAC at the scene even though, according to California Highway Patrol, he showed signs of intoxication. Instead, a blood test was later conducted and Verduzco was subsequently released on bail pending the outcome of the blood test.

Although it is unclear whether the blood result is in, Verduzco was re-arrested at a friend’s house in Long Beach last week and was booked on three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated and drunk driving causing injury.

Last Friday, Verduzco continued his arraignment to May 16th. However, it was not before Judge Deborah S. Brazil set his bail at $6.1 million.

It is unclear why Verduzco is being charged with murder in addition to the “lesser-included” vehicular manslaughter. If you’ve read my numerous posts on a DUI-murder charge (also known as “Watson murder”), you’ll know that to charge murder, prosecutors need to prove that the driver was expressly aware of the dangers of driving drunk, yet they did so anyways. This is usually proven when the driver suffered a prior DUI conviction and is admonished on the dangers of driving drunk. Since there is no indication that Verduzco suffered a prior DUI conviction, my guess would be that his position as a law enforcement officer, whose job it is to arrest people on suspicion of DUI, makes him expressly aware of the dangers of driving drunk.

Verduzco is an Army veteran who joined the LAPD in 2015 after returning from a tour of duty in Afghanistan.

“There’s never an excuse for driving under the influence, and if Officer Verduzco is found guilty of whatever he is accused of, then he should suffer the consequences for his reckless actions,'’ said the Los Angeles Police Protective League in a statement issued shortly after the collision.

“My heart goes out to the victims and families so tragically impacted by Verduzco’s criminal actions,” said police Chief Charlie Beck. “Police officers have a moral and legal obligation to abide by the laws that they enforce. [The] arrest demonstrates how seriously we take that obligation.

Stay tuned for updates.

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Should California Have a Legal Limit for DUI of Marijuana?

Friday, March 23rd, 2018

Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.

To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.

This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.

Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.

The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.

Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.

Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.

“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.

The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.

It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.

To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.

Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.

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Drivers Under 21 Could Lose License for a Year for Marijuana DUI

Monday, February 26th, 2018

A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.

State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.

California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.

“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.

It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.

Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.

Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.

“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.

“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”

Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.

Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.

 

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Virginia May Soon Allow Drunk Driving on Private Property

Thursday, February 22nd, 2018

A Virginia bill, if passed, would allow drunk driving on private property within that state.

The bill, introduced by Virginia Republican Senator Richard Stuart, would change Virginia’s current DUI law to decriminalize drunk driving on private property. Current Virginia law does not differentiate between private and public property when a person is driving under the influence. If passed, the legislation would include in Virginia’s DUI law the language, “This section shall not apply to any person driving or operating a motor vehicle on his own residential property or the curtilage thereof.”

The bill has already passed the State Senate by a vote of 37-3. The bill will now go to the House of Delegates for consideration.

To supporters of the bill, it’s more about being able to do what you want on your own property more than it is about being able to drive drunk.

“I really don’t think it has to do with whether or not people want to be able to drink and drive. They just don’t want to be interfered with on their private property,” said Dana Schrad with the Virginia Association of Chiefs of Polices. “From a law enforcement perspective, we’re very much concerned that we’re sending the wrong message to young people that there would be an acceptable time to drink and drive, that it’s okay, and how do you let them know that that doesn’t translate to public roadways?”

Unsurprisingly, not everyone is on board.

“Is a driver with a .14 BAC (blood alcohol content) operating a motor vehicle across Kings Dominion’s parking lot any less of a threat than if he or she were similarly doing so on a neighboring roadway?” asked Kurt Erickson, president and CEO of the nonprofit Washington Regional Alcohol Program. “Inasmuch, the bill throws Virginia down the slippery slope of bifurcating the state’s DUI laws, effectively communicating that it’s okay to drive drunk here, but not there – a dangerous precedent.”

In California, as it is with most states, drunk driving remains illegal on both private and public property.

The California Vehicle Code states that laws including a California DUI “apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

In 1992 Ronald Dean Arnold Malvitz was arrested for a California DUI while in a privately locked storage facility and sought to challenge California’s law arguing that it didn’t apply to him since he was on private property.

The California Court of Appeals ruled against Malvitz by looking at the legislative history of California’s DUI law.

Prior to 1982, the California Vehicle Code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

In addition to the Malvitz ruling, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

While drunk driving on private property may soon be allowed in Virginia, I don’t think California will follow suit any time soon.

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