Top Myths and Misconceptions Regarding DUI Charges in California

Rectification: Sometimes, people will refuse to submit their chemical test, the breath test or a blood test, thinking that there won’t be any evidence that can be used against them. However, the law enforcement officers are trained to conduct a complete and thorough investigation that begins with the officer observing or watching the person drive. So, the lack of a chemical test can play a big factor, but it doesn’t mean there’s no evidence. The officers can watch how a car drives, how the car responds to emergency lights, how a car responds to a siren, how a car pulls to the side of the road.

The officers are also trained to continue their investigation when they walk up to the car and start talking to the driver. They will look for clues like the odor of alcohol, and they’ll also look to see the condition of the person’s clothing as well as their eyes. They will build a case and develop evidence with what they’re able to see, hear and smell and then, they will also ask a person to get out of the car. They will use how the person gets out of the car as evidence of whether the person is or is not impaired and they will ask a series of questions to determine whether or not the person understands and answers the questions like a sober person or like somebody who may be impaired for the purposes of driving.

Of course, there are field sobriety tests, both standardized and non-standardized field sobriety tests, which the officers will often have somebody do.  Field sobriety tests will assist the officer in preparing a case and compiling evidence to prove that someone is or is not impaired for the purposes of driving. So, the lack of a chemical test, although very important for a couple of different reasons, does not mean that the prosecution will not have any evidence. One of the biggest arguments that a prosecutor can make is that somebody refused to submit to a breath or a blood test and the reason that they refused is because they knew that they were impaired for the purposes of driving.

This is a consciousness of guilt argument and there’s actually a jury instruction of law, meaning a judge will instruct the jury that they can take into consideration the fact that somebody refused to complete a test. It gets more complicated if it’s not a straight refusal but perhaps an inability to complete a test instead, which may also be used against somebody. So, not having a breath or a blood test is less evidence for the prosecution, but it does not mean they have no evidence.

Rectification: A lot of times people will do very well on field sobriety tests and a lot of times people will not know how they did. Field sobriety tests can be performed very well, particularly if somebody is young and in good shape and very well-coordinated. But a lot of times, the person taking the field sobriety tests does not know what the officer is really looking for. The best example on the standardized field sobriety test of this is the Horizontal Gaze Nystagmus or the HGN test. This is where an officer will test somebody’s eyes. Most of the time people think that they have done the test correctly if they followed the instructions and they did what the officer says and follow the officer’s finger or pen or whatever the officer is using as a stimulus.

The truth is half of the test may be a physical test; the other half is observation of the eyes. The person who’s having the test performed on them will not know what their eyes are doing as far as small jerking movements within the eye. It does not affect the vision, and there are people that have this condition, nystagmus, naturally. A lot of different factors including alcohol can trigger nystagmus, which is what the officers are looking for. So, somebody may follow all of the officer’s instructions during the HGN test: stand with feet together, arms at their side, head forward and not moving, and eyes (and only the eyes) following the stimulus.  People do all of this and think that they have successfully completed the test. But in reality, the officer is looking for what the eyes are doing, at what angle the eyes are doing the jumping or nystagmus, and the person who is getting the test done will not know what the officer’s observations are. Unless it’s videotaped with a videotape rolling on the eyes of the person being tested, we are left to the officer’s opinion and the officer’s report to know whether there was or was not nystagmus and to what degree.

Rectification: If somebody chooses not to do any standardized field sobriety tests as long as you’re not on probation, they have the right to do that. Not doing the field sobriety tests does go a long way to limit the prosecution’s evidence that can be used against them. The election not to do a chemical test has its own consequences, some negative consequences and some positive consequences. If a prosecutor looks at a DUI report and they don’t have any field sobriety test and they don’t have any chemical test, it becomes an easier case to defend except for the consciousness of guilt that somebody knew that they would not do well on the test and, therefore, they chose not to do them.

The prosecution will likely still have observations of the officer as far as the driving pattern, how the car was driving, how the car stopped and whether there are observations of symptoms that could be consistent with alcohol impairment such as red, watery eye or slurred speech. Those observations are things the prosecution may still be able to get from an officer. I would not say it’s “home free,” but people definitely have a more defensible case with the least amount of evidence given to the prosecution.

Rectification: Miranda is a very important case and it has a very limited scope with driving under the influence cases. Everybody knows Miranda and what it stands for. However, people usually don’t know that there are only very specific circumstances which would give rise to a Miranda argument and that would be mainly that somebody must be in custody, they must be arrested and they must be interrogated, which is being questioned by the officer about what’s going on. That is a situation both in custody and interrogation which would trigger the Miranda requirements.

Many people will waive their Miranda rights whether they are explicitly read to them or not. However, when we’re looking at a driving under the influence case, there is an exception to the Miranda rules because the person is not technically in custody, they have not been arrested when most, if not all, of the DUI investigation is taking place. When the person is first pulled over, they’re not arrested, so Miranda doesn’t apply and the officer gets to ask whatever questions he or she wants. When the person is asked to get out of the car and do the field sobriety tests, it’s usually voluntary and people usually agree to do it and the person is not arrested; therefore, Miranda does not apply.

Once somebody is arrested, then Miranda would apply if there was going to be an interrogation and more questioning. However, most police officers have completed their investigation except for a breath or a blood test. They had completed the investigation by the time that person had gotten arrested and there are no more questions. All of the questions about where the person was coming from or going to and what the person had to eat or drink have all been asked and answered before the arrest and before Miranda would apply. Once the person is arrested, the only thing left for the officers to do is to get a chemical test, either by breath or blood or sometimes urine, and the person is obligated in most situations to give a chemical test or they’ll suffer consequences at the Department of Motor Vehicles as well as possible consequences in court.

There may be some exceptions where a warrant may be required, but most of the time, people are going to be required to submit to a chemical test after arrest and Miranda would not apply because there is no interrogation being done. It’s simply a sample of the person’s blood or breath. So although Miranda is very important and it can come into play in some DUI situations, most of the time it is not going to be a significant factor and officers do not have to read Miranda in most DUI cases.

Rectification: More and more, police departments are using video and audio recording equipment and an officer’s personality and performance in conducting a DUI investigation can be taken into consideration. However, not all police departments use video and audio equipment, and oftentimes video or audio equipment may malfunction and not work correctly to record the event.

Additionally, when we have police departments that do have video equipment, most of the time that’s located in the car facing forward and when the DUI investigation is conducted, the subjects of the test are usually taken off to the side for safety and it is not recorded on the car’s video camera.

Many police officers are now carrying personal digital recorders, either audio or video. However, it often proves to be difficult to locate and obtain these electronic recordings. Although they are required to be turned over by the prosecution, many times the prosecutors themselves don’t even know that they exist. So, an officer’s behavior can be very important in defending a DUI case. However, what is ultimately available to the defense is going to be dependent on the law enforcement agency, whether it’s a California Highway Patrol or Los Angeles Police Department or perhaps the Beverly Hills Police Department. Each agency will have different equipment and that equipment may vary from location to location even within one particular police department and then, police officers themselves or sheriff’s deputies themselves may have their own personal equipment. However, it is often very limited in what we’re able to get and use in court.

Rectification: Many times, an investigating officer in a DUI case will make it seem that a DUI charge or a DUI case is not that big of a deal and that if they get an attorney, it will be very easy for them to get a reduction to a lesser charge. Police officers will, from time to time, give incorrect information about the investigation itself. Police officers are looking to have an easy experience with someone who is stopped, detained and arrested for a DUI. They don’t want somebody getting excited or agitated, they don’t want to get into a physical altercation or a fight with anybody and they will tell them things that may or may not be true.

There are no real downsides to a police officer giving misinformation to somebody who they are arresting for a DUI. The police officer may give a false chemical test result, telling somebody that they’re a borderline case like a 0.08 when in reality they’re much higher just so the person goes along with the program. They may tell someone that if they go to court and fight it, they’ll be able to get a reduction very easily when in reality, that’s not true and a police officer doesn’t have any real say as far as what charges are brought or how the charges may possibly be reduced. Police officers are interested in shortening the amount of time they have to spend in conducting an investigation getting the information they need, and officers are trained to become very friendly very quickly with a potential suspect or people that may be arrested for a DUI because it makes their job easier and safer.

Rectification: DUIs can happen to anybody. Some people who are stopped and arrested for DUI may have an alcohol problem but most do not. Most are just in an unfortunate situation where they had one too many and got stopped; if they were not stopped for speeding or whatever they were stopped for, they would have made it home just fine. However, DUI cases are very political and even first time DUIs are treated very, very seriously by the judges and prosecutors who handle these cases on a regular basis. There are concerns by judges and prosecutors and defense attorneys that someone may get a DUI and then re-offend or do it again. Even if it’s never happened and it’s the first time that anybody has ever gotten into trouble, there’s always a fear that this type of thing can happen again and that it may come back and look bad on a judge or on a prosecutor if they go leniently on somebody.

So, even if somebody does not have a substance abuse problem and they’re not an alcoholic or a drug user, a DUI case has certain mandatory penalties, certain minimum penalties and maximum penalties that the court system takes very, very seriously. The court system is often watched by other organizations like Mothers Against Drunk Driving who keep an eye on the judges, the prosecutors and the entire system to make sure that DUI offenders are prosecuted, and every single case is taken seriously.

Rectification: Everybody who drinks alcohol has a different response to it. Some people are experienced drinkers and they can develop a tolerance, a physical tolerance to alcohol and do very well on field sobriety tests; other people do not have a tolerance to alcohol and can do very poorly on field sobriety tests even with relatively low levels of alcohol. Field sobriety tests themselves are not exactly scientific experiments that can be conducted on different people and get consistent results. Field sobriety tests are set up to compromise people’s divided attention and balance. They’re designed to create difficult situations that many people will be unable to successfully complete regardless of alcohol in the system. So, if somebody is tolerant and can do well with alcohol in their system, that does not mean that they’re going to do well on field sobriety tests. They may do well, but it doesn’t necessarily correlate.

Field sobriety tests have been studied and there have been studies done that show that people who are completely alcohol free, with no alcohol in their system at all, can fail field sobriety tests and people who have very high levels of alcohol in their system but are very tolerant can do well on field sobriety tests. There have also been studies to show that police officers are very poor judges of field sobriety tests not being able to accurately distinguish or tell the difference between people who are impaired by alcohol and people who are not impaired by alcohol. So, with such a variety of possible outcomes, the best thing to do is elect not to do field sobriety tests because if you do enough field sobriety tests and you do them long enough, you’re not going to be successful. There will be errors, there will be problems and with enough testing and enough time, the officers will be able to develop so-called evidence that somebody is impaired.

Rectification: Many times, DUI cases are politically motivated and they’re also motivated by money. Police officers get paid not only their salary for handling their regular duties, but police officers also can get overtime for attending Department of Motor Vehicles hearings as well as court hearings. Officers also receive awards and certificates for the number of DUI investigations or arrests that they make. It is not a simple black and white issue; there is bias that comes into it. Many officers are very good and honest but many officers are looking to make as many DUI arrests as they possibly can.

And if somebody had three drinks, the officer will smell the odor of alcohol and the officer may or may not believe the person is telling the truth when he/she sas, “Yes, I had three drinks over a couple of hours.” That should put somebody below the legal limit. However, officers will still go forward conducting an investigation to determine whether the person is impaired. The person may be on medication or drugs, and that can affect an officer’s decision. But most of the time, an officer is not going to believe somebody when they say, “I only had two or three drinks”; they’re going to think that person had more. And depending on what type of testing is done, there can be false positives showing that the person actually has more alcohol in their system than they do. So, one must be very careful with how much they had to drink and what they are willing to tell an officer. And you also need to be careful when telling an officer what you had to drink because if you give them information that is determined to be false, you could find yourself in more hot water.

Rectification: There are separate employment consequences for different types of occupations. So, if somebody is licensed as a doctor or a lawyer or a real estate agent or if they are in the health field or in education, there are different governing bodies that will look at DUIs and they can take their own separate action. As far as a court system, as far as a prosecutor looking at somebody who is in education or in the health field, they may or may not take that into consideration and they may view it as a mitigating factor, something that should be taken into consideration, to make a lighter sentence or it may be an aggravating factor: the person should have known or they work with children and it’s more important that they abstain from alcohol altogether.

It’s going to depend on the prosecutor and the relationship that the defense attorney has with the prosecutor in working out a case. Sometimes, it can work to someone’s benefit but many times, it will work to their detriment where things will get worst because the person has experience with alcohol or drugs or works with children and a prosecutor may want to send a message out. Every DUI case is different and unique. Everybody’s employment situation is different and it’s important that a defense attorney take into consideration all of the factors surrounding a DUI case in handling that case. For some cases, the best possible outcome is a settlement; in other cases, it may be appropriate to go to trial.

Rectification: Many times, there are collateral consequences or collateral factors that need to be taken into consideration by a prosecutor, a judge and a defense attorney in how to handle the case. Many times, we’ll have a single parent, a single mother or a single father, who works and is the primary caregiver for the child, and that may be a factor that can be taken into consideration when negotiating a DUI case. For the most part, however, the court and the prosecutor don’t really want to get involved with those types of analysis.

They don’t want to consider whether somebody is a single parent or not. They’re looking at the DUI: they’re looking at the driving, the field sobriety tests, the chemical test results and they’re looking at the statutory or state law requirements that if there is a DUI and the person is convicted, there are certain mandatory minimum penalties and maximum penalties if it’s a first time DUI or second time DUI. It’s very important for a defense attorney to be able to bring in arguments and information about a person to help the prosecutor understand that there is more going on than just a standard first time DUI or standard second time DUI. So, the fact that somebody is a single parent is important and needs to be used when appropriate but it is not a given rule that they’re going to get an easier time or a harder time when they go into court on a DUI.

Rectification: DUI charges can be DUI alcohol; they can also be DUI drugs. They can be prescription medication or illegal medication. There are different code sections in California for different types of DUI. So, if somebody is driving under the influence of alcohol, they may be charged under Vehicle Code 23152(a), and they could be charged with driving above the legal limit, Vehicle Code 23152(b). But we have a new code section where a lot of cases are being charged, 23152(e), which is driving under the influence of drugs and the law does not distinguish between legal or illegal drugs.

If a person is impaired to the point where they cannot operate a motor vehicle the same way or a similar way as a sober person would, they can be found to be DUI or impaired for the purposes of driving. We see that with prescription medication and we see it with illegal medication and we also see driving under the combined influence of alcohol and drugs, which is another code section where prosecutors have latitude to charge a DUI. It is more difficult for a prosecutor when a case is properly defended to prove that somebody is impaired from medication or drugs, whether that’s legal or illegal. There are not the same presumptive levels like there are with alcohol of 0.08. With alcohol, the law basically states that if someone is at 0.08 or above, they are impaired for the purposes of driving. That’s not scientific; that’s legal, but that’s the state of the law.

Whereas with medication or drugs, there are therapeutic doses and there are time periods (half-lives) where drugs may affect and may not affect one’s driving, but it is much more a case by case and individual by individual basis to have a case properly analyzed. So, it is much better for the defense or much easier for the defense to defend a case where it is a drug case than it is a straight alcohol case. That is the situation if the defense attorney is properly trained and experienced in analyzing DUI drug cases.

Rectification: DUI laws are not the same for all states; there are different legal requirements state to state. It is nationwide that if somebody is a 0.08 or above, they are DUI; however, what is required to get to a DUI will vary from state to state. California requires that a person drive while under the influence; this differs when compared to another state like Nevada which one may be in possession of a motor vehicle. So, if you’re sitting in your driveway at home in California and the car’s parked, you’re not DUI because the car is not moving. Being in control of the car is not the same as being DUI.

This would not be the situation if you’re in Nevada where being in possession of the car while under the influence (i.e. sitting in your driveway and you’re impaired behind the wheel), you could be charged with a DUI. There are also additional distinctions from state to state on what makes a regular DUI versus a so-called aggravated DUI. There are different charges and different blood alcohol levels from state to state. And what is required as far as submitting to field sobriety testing or chemical testing is going to vary from state to state as well. So, if you’re going to be driving in California, you need to be aware of what are the laws, the rules and the regulations for California to make sure that you comply with all the appropriate laws.

Rectification: If someone blows under 0.08, they should be fine. However, that’s not the current state of the prosecution. There are many prosecutors and many courthouses throughout Los Angeles and throughout California that will charge people for driving under the influence when their chemical test, be it a test of breath or blood, is below the legal limit.

The prosecutors will argue that the person is still impaired for the purposes of driving even if they’re 0.07. They may be impaired by a combination of alcohol or drugs but even just straight alcohol impairments. We see more and more prosecutors charging them at lower and lower levels. Someone may blow a 0.08 in the field and then blow a 0.07 at the station and the prosecutor charges them with a full-blown DUI and says, “At the time they were driving, they were 0.09.” So, each case is different and many prosecutors will prosecute at or below the legal limit going forward with other theories of the case.

Rectification: The days of police officers and prosecutors letting a DUI slide by are gone. The watchdogs like Mothers Against Drunk Driving keep too close an eye on cases, and the financial incentive for the law enforcement agency, the officer and the prosecutor and the court system to charge these DUI cases is just too high. There was a time where if someone was stopped for driving under the influence, an officer could pour out the beer and send the guy home. That just doesn’t happen anymore. The cars are often towed and people are arrested. They may be released very quickly but they still are stopped, detained and arrested for driving under the influence.

Rectification: It should be an easy case, but it’s not. Many, many times I’ve seen people do the right things and pull to the side of the road and park in order to sleep off intoxication to make sure that they are safe to drive. Police officers will investigate, detain and arrest people for driving under the influence when these people were not driving under the influence when the officer’s contacted them. Police officers will try to extrapolate and estimate when the person drove and where they drove, and they’ll do this by questioning the person as well as investigating the situation. They may place their hands on the hood of the car to find out if the hood is warm, indicating if the car was recently moved. The location of the car may come into play if the person parked on the side of the freeway or they parked on the side of the road or they’re blocking traffic. They may have parked legally; they may have parked illegally.  Many times, officers will err on the side of caution and arrest someone for driving under the influence.

I’ve seen it in all different situations where someone’s stopped on the freeway, maybe they ran out of gas, and they’re prosecuted for DUI. Other cases, they’re stopped -parked legally on the side of the road – and they’re charged with the DUI. I had one case where the person was parked in Hollywood outside of a restaurant on a side street, legally parked, and he was arrested and charged with the DUI. Nobody saw him move the car, he never admitted to moving the car, and he was arrested and charged with the DUI.

Rectification: Social media sites are something that can be accessed by law enforcement as well as prosecutors. And what people post on social media sites can be viewed and used against somebody. You will see where prosecutors, usually in more serious cases, will go into somebody’s Facebook account or Instagram account and look at what pictures are being posted and what comments are being made and prosecutors can find incriminating photographs or incriminating statements that are made.

So, it’s very important that if somebody is charged with driving under the influence, especially with a DUI causing injury, that they contact a good defense attorney very early on and take steps to make sure that they don’t have any inflammatory or incriminating statements or evidence posted on the web. More and more, technology plays a role in DUI cases and prosecutors are out there looking for additional information and make no mistake, the prosecutors will Google search people who are charged with the DUI to get as much information as they can about them.

Rectification: Many people feel that DUI charges are one-sided and that there’s no real need to fight them because you’re going to lose. That’s simply not the truth. We would have a much more honest and a much better system if more people would stand up and defend themselves and defend their good names in court regarding DUI charges. DUIs are very legally significant; they’re very factually specific and very scientific. When a DUI case is analyzed and broken down by a good DUI defense attorney, they will be able to find holes in a case and they will be able to show those holes to a prosecutor and to a jury and fight to get the very best possible outcome or an acquittal in court. These cases can be fought and they can be won but it doesn’t mean every case needs to go to trial; many cases need to settle but what the case should settle for is going to be dependent on the particular facts of that case. DUI cases can be won with legal arguments, they can be won with factual arguments and they can be won on scientific grounds.

Just because somebody is stopped and arrested for a DUI doesn’t mean the case is over. That’s where the case begins. When we look into what the prosecutors and the police officers are trying to use as evidence, many times we will see that that is just flawed and untrustworthy and juries understand that the prosecution has the burden of proving not only that the person drank and drove (because that is legal) but that they were so impaired that they could not drive the same as a sober person and that the chemical tests were administered in accordance with state law and scientific principles. And when the prosecution can’t do that, juries acquit.

Rectification: If somebody smokes marijuana and then drives, they can be looking at consequences both in court as well as at the Department of Motor Vehicles. It becomes more difficult to determine whether somebody is impaired at the time they’re driving from marijuana compared to alcohol. Marijuana stays in the system for much longer than alcohol does. So, depending on what type of investigation was done (whether there was a drug recognition evaluator, whether there was urine testing or blood testing) can affect what type of charges are brought. Somebody can smoke marijuana, get stopped for driving under the influence even if they were not driving under the influence, submit to a urine test or a blood test and that test can come back positive for cannabis, THC or metabolites. Someone could be prosecuted for driving under the influence of marijuana even if they had not smoked any marijuana for days.

Rectification: Handling a DUI case on your own is such a bad idea that a judge won’t even let someone do it. A judge would require a person to review a multi-page form, initial and sign indicating that with so many downsides to representing yourself, you just shouldn’t do it. People do it and legally, technically you could but it’s such a bad idea that most judges won’t let you do it. If they do let you do it, they’ll make you fill out a multi-page waiver form telling you how bad an idea it is.

People can do all sorts of things themselves but it’s just not a good idea in this situation. People can cut their own hair, but when you look at the result of someone who cuts their own hair, it’s not the same as having someone who has gone to school and has a license to cut hair. People could, in theory, do their own dental work; it’s not a good idea. The best chance for the best outcome is to have a private defense attorney who knows how to handle DUI cases represent a person. If you can’t afford a private attorney, then you need to apply for services of the public defender because it’s better to have a public defender than to try doing it on your own.

Rectification: Well, any attorney licensed on the state of California could help you handle a DUI case. The question is will their help be as beneficial as the help from a DUI attorney who has dedicated their entire practice to handling DUI cases. General practitioners may have covered some information in law school, but that may have been 10 years ago and they may not know what’s going on in the courts today. When you’re sick and you go to a doctor, you go to a specialist for your particular situation. If you have back pain, you go to a back doctor, or if you have neck pain, you go to a neck doctor.  A family doctor, like a general practitioner of law, has not specialized in one area.

It’s the same type of thing with attorneys. If you have a family law question, you go to a family law attorney; if you have a criminal question, you go to a criminal defense attorney; and if you have a DUI, you go to a DUI defense attorney. That’s the way you get the best possible outcome. Your attorney needs to know the judges, needs to know the prosecutors, needs to know the police officers and needs to know the procedures for each particular police department to know what to look for, what’s there and what’s missing.

A general practitioner won’t know what they don’t know. They won’t even know what to ask for or what to look for and they won’t be able to properly analyze a case. When you’re looking for an attorney to help represent you, you could go to a family member but it’s penny-wise and pound-foolish. You’re going to end up trying to save a couple of dollars by going to someone who’s a general practitioner.  This choice is going to end up costing you more in the long run. For the best possible result, you want someone who handles these types of cases all day everyday.

Rectification: Any lawyer that guarantees success needs to put that in writing and explain to you what they mean by success. Attorneys cannot guarantee an outcome in a particular case, whether it’s a personal injury case, criminal law case or DUI case. Each case is different and what is ultimately going to happen will depend on the facts of that case as well as the people that are involved in it. If an attorney is guaranteeing an outcome, they’re potentially violating ethical rules and leading you down a bad path. If somebody is going to guarantee an outcome, you probably need to keep looking for another attorney.

Rectification: Not all lawyers are the same and you shouldn’t shop around for the best deal; instead, you should shop around for the best attorney for your particular case. Shopping around for the best deal or trying to get the best price is not going to get you the best attorney and it’s not going to get you the best outcome in the case. Attorneys are not like other commodities.  An attorney is not a Toyota Camry where you can go to a Toyota dealership in Culver City or in the Valley and basically buy the same car. It’s not like that with attorneys. You’re going to get different results, you’re going to get different qualities and attorneys have different niches and different specialties. You want to find the best attorney for you, so that’s going to be a local attorney who specializes in your particular type of case. Whether your case is a DUI or a divorce, you want an attorney who handles those types of cases in that location because they’re going to know more and have more experience with situations like yours than anybody else will have.

Shopping by price alone is not going to get you the best possible outcome. It’s not a Wal-Mart or a Costco situation. To find a good attorney, that attorney is going to have to have experience. That attorney is going to have to spend time doing extensive training above and beyond what is required by the state bar. And in order to get that training and to become an excellent DUI defense attorney, it’s going to cost that attorney time and money to do it. They’re going to pass that cost along to their clients because their clients know that they’re getting a better value even if they have to pay a couple of dollars more.