Defending DUI/ DWI Charges: Explained By Pasadena DUI Attorney

Arrested and Charged for a DUI? Pasadena DUI Attorney Explains What You Need to Know:

For most people, one of the most terrifying experiences a person can have is to be arrested for the first time and charged with a crime.  The arrest and criminal filing for charges such as driving under the influence (“DUI” / “DWI”) have affected those in all sections of our community.  Those arrested by police for a DUI can be rich or poor, educated or lacking in any formal education, a person with a high position in a company or in a sector of the government, or an hourly employee at a small shop.  Police themselves have been arrested for driving under the influence of alcohol or drugs, or a combination of both.  The seemingly unfettered power of the U.S. government coming down like a hammer upon the head of a single everyday citizen can seem like an insurmountable or hopeless challenge at first. But it is not! The law and the United States Constitution restrict the government’s power, and while we know that justice is always an outcome our society strives to achieve in every situation, and we oftentimes fall short, a passionate and experienced defense attorney can drastically increase the chances that an accused finds justice.

Most people arrested for DUIs-driving under the influence of alcohol or drugs are not “criminals”; they are not “bad” or dangerous people—they are every-day, average citizens who either exercised poor judgement or were wrongfully accused. Finding a defense and presenting it to a jury, or negotiating a resolution with the prosecutor can result in an accused not being convicted of the DUI charge for which he or she was arrested.

Since DUIs have been politically demonized and prioritized with respect to the number of police officers and CHP units assigned to patrol the most popular areas of the city, the number of those arrested for suspicion of DUI is quite high (about 150,000 people in a year), although due to Uber and Lyft the actual arrest numbers have gone down slightly over the past few years[1]

Innocent drivers have therefore been caught up in the “net”.  Many officers, especially from smaller police departments, are not well trained in the procedure for conducting and interpreting FSTs (field sobriety tests), and some departments fail to properly calibrate their breath machines resulting in inaccurate and unreliable readings.

The consequences of being arrested and found by the DMV of having violated one or more of the driving under the influence statutes in California is very serious. Even if an accused is not convicted in court of a DUI, a finding by the Department of Motor Vehicles that the driver was under the influence or in violation of a specific DUI-related statute, can result in a license suspension, a requirement to attend a DUI class, points on your driving record that increases insurance premiums and fines.  A conviction in the criminal court can result in additional consequences such as jail time, probation, DUI classes, community labor, installation of an Ignition Interlock Device (“IID”), restitution, and court fines

First Steps After Being Arrested for A DUI in Los Angeles County:

While it is normal to be anxious, scared and desirous of blocking out the whole unpleasant experience, there are certain steps that MUST be taken within 10 days (calendar days, not work days!) of your arrest or you will be waiving important due process rights you have. 

The first thing you should do is, of course, consult with an experienced Dui lawyer local to the court in which your case will be heard.  Although your traffic ticket or bail paperwork will have a court date which may be set a couple months in the future, your right to a DMV hearing is totally separate and must be requested within 10 calendar days of your arrest. If you hire an attorney within that period (best option), the attorney will (or should) be the one to contact the DMV on your behalf to schedule an in-person Administrative Per Se (“APS”) hearing. 

Along with requesting a DMV hearing when contacting the Department of Motor Vehicles, an attorney will ask for all the evidence the DMV will be using, such as the police report and chemical test results, as well as a “stay” on the suspension and a temporary license.  A stay on the suspension means that instead of your driver’s license being suspended in thirty days after the arrest (such as on a first offense non-injury DUI), the DMV will not issue any suspension unless your are found in violation of Vehicle Code Section 23152(b) or other related DUI statute after a hearing.  I always request the APS hearing to be in person. Once the attorney receives the initial DS367, police report, accident report, and chemical test results, the attorney should subpoena any additional evidence that may exist, such as calibration, accuracy and usage logs of the breath machine or preliminary alcohol screening test (“PAS”), blood packet from the Los Angeles County Sheriff’ Crime Lab, and any video or audio that may exist.

It should be noted that as of January 1, 2019, the laws regarding the suspension period a DUI driver may face and the requirements of installing an IID have changed!  The new law applies to all drivers in the state of California, so hiring a criminal defense attorney who is intimately familiar and experienced with DUI law and DUI defense is important.

So, in summary, the first thing to do if you are arrested for a DUI is contact a good DUI defense lawyer.  If you can’t afford to hire an attorney within the first ten days from the date of your arrest, at least contact the DMV yourself and ask for an “APS” hearing. That way, if you end up hiring an attorney later, your attorney will still be able to represent you with the DMV and fight to protect your drivers license.

As a dedicated DUI defense lawyer, I strive to help all my clients arrested and charged for driving under the influence obtain the best possible outcome in their case. Avoiding a DUI conviction in court and a driver’s license suspension can save a person’s job, career, professional license, reputation and sometimes even their freedom.

DUI Classes: View a Complete List of Alcohol and Drug Programs in Los Angeles and CA

DUI Arrests in Pasadena: How Do I Protect My Drivers License?

If you are arrested in Pasadena or anywhere else in California for a DUI, the arresting officer will usually take away your drivers license and will end up sending it to the DMV to be shredded. Terrible! In place of your nice, hard copy, drivers license which you have been using as a photo ID, the officer will give you a temporary license (sometimes it is composed on a pink carbon-copy paper), which will act as your license until the DMV makes a final decision as to whether to suspend or “set aside” the suspension on your license.

The police typically don’t tell you what your rights are or what is in your best interest to do after your arrest.  As mentioned earlier, calling and meeting with a knowledgeable DUI defense attorney is the smartest thing to do, especially early in the situation where all your rights are intact and you have not inadvertently waived any of them! Contacting the DMV within 10 calendar days and requesting a hearing and an extended temporary license is also one of the first things you want to do after being arrested for a DUI.  Keep in mind that if you were arrested for being under the influence of drugs only, and not for being under the influence of alcohol or a combination of alcohol and drugs, then the DMV will not interfere with your drivers license at this stage of the game.  Unless you are later convicted in court or found to have too many points on your record resulting in an allegation of being a “negligent operator”, or suffering from a medical issue (substance abuse) that results in you being an unsafe driver, DMV will not automatically proceed with a suspension. In drug only DUI cases, the arrest will not trigger the APS hearing process.  However, since the DMV is so strict about contacting the DMV within 10 days on an alcohol related DUI arrest, it is always prudent to talk to a DUI lawyer before deciding to not call the DMV. 

Be aware the representatives at the DMV field offices are oftentimes woefully ignorant and terrible at their jobs. I have had many clients who were diligent and contacted the DMV on their own before retaining my services, only to be told that they don’t need a hearing and that the DMV will send out a letter with instructions.  In such cases, these clients called the DMV within the ten-day window but failed to set up a hearing request, thus missing the 10 day period in which to request a hearing!  However, so far, in almost all cases for which I was able to provide some evidence to the DMV driver safety office, such as phone records, showing the client did contact the DMV within the statutory period, my clients were approved for a “late hearing,” resulting in the case going forward with all the Client’s legal rights intact.   A knowledgeable DUI attorney would want to provide an explanation and a declaration describing the wrong advice or incorrect information that client received from the DMV.  

Therefore, even if you missed the deadline or were told by a DMV representative that you don’t need a DMV hearing for your DUI case, that does not always mean that you are out of luck.  If an attorney can present a good reason why you missed the ten-day deadline to request a hearing, then the supervisor at the applicable DMV Driver Safety Office can grant a late hearing request and impose a stay on any potential suspension.

The only way to protect your driving privileges once you have been arrested for a DUI and your license confiscated by the police, is to request a hearing during which you can present a defense in front of a DMV hearing officer.  The hearing officers are not attorneys or the same as a judge in a criminal court.  These hearing officers are “administrative judges”.  They have a huge amount of power to change a person life by suspending or revoking a person’s privilege to drive.  Especially in Los Angeles, it is almost impossible to travel efficiently for employment if you cannot drive.  Many people have to drive for an hour or more each way to work, so losing one’s license can be devastating to a person and his or her family. Fighting to protect a DUI accused’s driving privilege is of paramount importance. 

While the DMV hearing usually is tackled first or at least the process is started prior to the case in criminal court, the law creates a separate suspension on a DUI/ DWI driver’s license that is imposed if convicted of a DUI or other related charge, such as driving with a .01 BAC while on probation for a previous DUI or being under 21 years of age. 

This means a good attorney specifically trained in DUI defense law will need to fight a DUI on two fronts—the DMV side as well as on the court side.  Avoiding a DUI conviction in Court as well as a DMV initiated suspension is the ultimate goal.  The facts of your case, the way the officers handled the evidence and followed the law (or violated the law such as by detaining a driver with no reasonable suspicion or arresting a driver without probable cause), will all have a role in determining the strategy a DUI lawyer will take in defending you and the likelihood of a particular outcome. 

At the Law Office of Ann Gottesman, I do my best to protect my client’s driving privileges so that they and their family do not have to suffer the consequences of a driver’s license suspension or revocation.

How Do I Defend Myself in the Face of DUI Charges?

DUI defense is at times a technical area of law, because some of the legal defenses require knowledge of chemistry, biology and how chemical test instruments operate.

Too often, I hear people say that there is no reason to fight a DUI charge or even hire an attorney because the officer said that the driver’s blood alcohol level (“BAC”) was over the legal limit of a .08 percent.  If a breath machine or blood test ultimately shows a BAC level of .08 or higher, many people assume they have no hope of avoiding a DUI conviction or suspension on their drivers license. This could not be further from the truth!

Many DUI defendants who had test results of a .08 percent or more later found that their DUI charges were dismissed, or reduced to a lesser offense, such as a wet reckless, “dry” reckless, exhibition of speed charge, public intoxication or a minor infraction.  Such results can be achieved when a good attorney does the work to explore all possible avenues of defense.  Of course not ALL DUI cases will end up in a dismissal or be reduced to a lesser charge, but a knowledgeable DUI lawyer can sometimes find problems or holes in the prosecution’s case, leading to a better outcome for the client. Such potential issues a good DUI attorney will recognize may include problems with the officer’s arrest and detention procedure, the way the chemical test was administrated, or the way the machine was maintained and calibrated before and after the period of time during which the machine was used to analyze the defendant’s blood or breath. There are other legal and forensic issues that a dedicated DUI defense attorney should explore.

There are many kinds of DUI defenses that apply in a variety of circumstances. For example, a “rising blood” defense is when an accused claims that his or her blood alcohol level at the time of driving was under the legal limit, but due to absorption, the alcohol level rose in the person’s blood, reaching a higher level by the time the officer had the driver take the chemical breath or blood test.  In other words, if there is a certain drinking pattern established, it may be further shown that the driver’s alcohol level at the time of the driving (i.e., time of the police pull over or time of collision) was less than the legal limit even if the evidence clearly proves the alcohol level of the driver was over the legal limit at the time of the chemical test.  Since the California DUI statute VC 23152(b) requires the prosecutor to prove beyond a reasonable doubt that the driver was a .08 or higher at the time of driving, a rising BAC defense can destroy the prosecutor’s ability to prove that element of the offense, thus resulting in a not-guilty verdict by the jury.  However, sometimes evidence of a rising BAC can be used to reason with the prosecutor so that the accused does not have to spend the additional expense for a jury trial and an expert witness such as a toxicologist.  In some DUI and alcohol or drug related cases, a reasonable prosecutor and a hard working defense attorney can work out a resolution that would lead to a favorable result without the risk and expense of a jury trial.

Unreliable Test Results:

Even if the test results appear to be damaging to the defense, it is important to remember that the number that pops out of a chemical test machine is only as reliable and trustworthy as the machine that calculated it.  If a chemical breath test machine such as the EC /IR, Datamaster or the Alco-sensor IV PAS device is not properly maintained, checked for accuracy and calibrated when it is supposed to be, then an experienced and knowledgeable DUI lawyer may be able to show a violation of Title 17 in the California Code of Regulations. 

The Legislature set forth a system of strict procedures that must be followed by any agency (including police agencies, labs, hospitals, etc..) during the collection, storing and analyzing of a blood, breath (or on rare occasion urine) sample. 

The Code of Regulation Title 17, section 1219, lays out the way a forensic analyst must collect and test blood, how a machine used to test blood or breath in a subject must be calibrated and maintained and reading accurately within a specified acceptable range.  The law insists that the prosecution only present chemical test results that were obtained in a way that ensures their reliability and accuracy.  If a Title 17 requirement is not met, a DUI defense lawyer may be able to show a judge that the sample used by the DA to try to convict the accused should be found inadmissible, and that it should not be shown to the jury.

There are many unique defenses that are applicable to DUI cases.  Only a few are discussed here in this article.  If you are interested in learning more about what defenses may apply to your case, contact attorney Ann Gottesman for a free consultation.

Unconstitutional Detentions and Arrests:

If an officer has no reasonable suspicion to believe that a motorist has violated the law or in violation of the law, then the police officer does not have constitutional authority to detain you (usually by pulling you over). Even if an officer has an initial legal reason to pull you over, he must also have probable cause to believe you are in violation of the law or had just violated the law in order to actually arrest you.  Typically, an officer will pull over a motorist for committing a minor traffic violation. Once the officer makes contact with the driver, the officer will usually claim that he or she detects the odor of alcohol coming from the accused’s person or from within the car, and that objective symptoms of impairment were noticed by the officer. 

When determining whether there is a constitutional violation in a DUI case, a good DUI defense lawyer will need to carefully inspect all the facts of the case. In addition to analyzing the initial detention and arrest, a DUI attorney will need to determine whether a chemical test, such as a blood or breath test was obtained in violation of the client’s constitutional rights.  A blood and breath test are considered “searches” in the constitutional definition, so all aspects of the case must be looked at to see what legal arguments may exist.  If a real argument can be made that evidence was obtained or seized in violation of the driver’s constitutional rights, a suppression motion under Penal Code 1538.5 can be presented by the DUI defense attorney. If a suppression motion is granted to the defense, in some cases, the entire criminal case is dismissed.

DUI Cases Can Be Fought and Won:

Pasadena DUI defense lawyer Ann Gottesman has helped save many people from suffering the consequences of a DUI conviction and drivers license suspension. Even if a DUI charge is not fully dismissed, Ann has been successful at minimizing the consequences and pain associated with a criminal DUI conviction.  

Ann is known in Pasadena and Los Angeles County as a caring and dedicated defense lawyer to her DUI and criminal defense clients.   As a sole practitioner, Ann has a level of personal communication with her clients that is difficult for other lawyers to match. 

If you or a person you care about is facing DUI charges in Pasadena or the surrounding Los Angeles County area, don’t feel like you have to take this journey alone. Call attorney Ann Gottesman; an experienced, compassionate and dedicated DUI lawyer for a free consultation!
 
(626) 710-4021 
(877) 3-LAW-NOW
(877) 352-9669

 

[1] https://www.dmv.ca.gov/portal/wcm/connect/848b335c-1360-4473-a35d-4da3345c666a/S5-257.pdf?MOD=AJPERES&CVID=