If The Police Did Not Read Me My Rights Can I Still Be Charged With DUI?

I get asked this question all the time.  People say the police never read me my Miranda Rights and therefore, I want to get the charges dismissed against me.  Unfortunately, it’s more complicated than this.  Usually when it comes to a DUI, some technicality is not going to get a person off unless the technicality relates to a very important or integral part of the prosecutor’s and police’s case in a DUI.

The reality is that the police do not need to read you your Miranda Rights even when it comes to a DUI.  Where the issue comes in is if they don’t read you your Miranda Rights and then they later attempt to get a statement against you in order to prove that you’re guilty of the DUI.  That’s where the defense attorney can argue – wait a minute, you didn’t read the person their Miranda Rights, you had him in custody, you were asking him direct questions which could incriminate him – therefore, you’re not going to be able to get that statement in and then the judge would make the final ruling.  If that statement was a crucial or necessary part of the prosecution’s case, then obviously that could be significant for getting your DUI dismissed.

However, the reality is usually the evidence that the police and prosecutors are using in a DUI in Los Angeles, centers around your breath reading, how you did on the field sobriety test, how you did on the PAZ exam, which is the preliminary alcohol screening device out in the field, and they’re really looking at what your driving was like, how you were talking or how you were walking to determine whether or not you were impaired to the point where you can not safely operate a motor vehicle.  So, your statements aren’t usually as significant as these other factors that I’m mentioning.  However, what the police will try to do is, they’ll ask you when you drank, how much you drank, what type of alcohol you drank, and they’ll try to really help their expert out with an eye towards a future trial.  A lot of the questions that they’re asking during the booking process and when they pull you over are targeted on trying to incriminate you and trying to block a later defense that you might try to raise at the potential trial.

The police are specifically trained to check off a lot of these boxes and talk to prosecutors and other authorities in order to make sure that they can prevent you from asserting certain defenses in a future trial related to your case.

Contact a Los Angeles DUI Lawyer

So, if you have a DUI matter and you were not read your Miranda Rights and you believe that you gave some statements that are now being used against you to incriminate you, obviously your best strategy is to sit down with a seasoned criminal defense attorney and let them assist you in developing a strategy and seeing if the fact that your Miranda Rights weren’t read to you really is important in your case.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436
(213) 542-0963

Can I Be Charged as a Passenger for a DUI?

As far as DUI’s go in passengers of vehicles, obviously you’re not going to be able to be charged with a DUI if it can be shown that you’re simply a passenger in the vehicle.  Even if a passenger is very drunk and couldn’t operate a vehicle, then that person still can’t be charged with a DUI. It’s possible that the person could be charged with being drunk in public, but that seems highly unlikely if they’re simply a passenger in a vehicle attempting to get home.  Where a problem could develop is if they got outside the vehicle and were too drunk to care for themselves, then instead of being charged with a DUI, they could be charged with being drunk in public and have to be sent into court.

Having done these DUI cases for the past twenty-five years though, I have seen situations where people are claiming to be passengers in a vehicle, and they were really the driver of the vehicle, and the issue becomes – is somebody going to be able to identify them as a driver – or from the circumstances of the case, are they going to be determined to be a driver.  I’ve seen cases where people who have got in accidents have been DUI and they’ve switched places with the passenger and then there are witnesses claiming that the passenger was actually the driver of the vehicle, and now the police are left to sort things out.

I’ve also seen situations where the police come upon a vehicle and there’s only one person in the car – they may be in the passenger seat and the police attempt to claim that they were the driver of the vehicle.  Of course, you’re going to have to look at the surrounding circumstances of the case to determine whether this person is the actual driver for purposes of a DUI or simply a passenger.  If someone’s out in the middle of a freeway and there’s a bunch of traffic and they’re the only ones in a car, then there’s a pretty good argument that they’re the ones that drove that car back, and therefore, instead of being a passenger they are actually the driver of the vehicle.

Really, when it comes to determining whether someone is a passenger for purposes of a DUI versus a driver, it’s going to depend on the surrounding circumstances of the case and whether there are any witnesses and what evidence the police can bring to bear in order to attempt to prove that the person is guilty of a DUI.

Contact a Los Angeles DUI Lawyer

So, if you find yourself, in a situation where you are being charged with a DUI and you were actually a passenger in the car,  obviously you want to get in front of a criminal defense attorney who does DUI’s for a living and can argue the facts for you and can prove that you were not the driver of the car – that you were, in fact, the passenger and you shouldn’t be charged with a DUI.  Sometimes these cases have to be taken to trial and fought in front of a jury and the jury has to be the final arbiter as to whether you were the driver or a passenger for purposes of a DUI.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436
(213) 542-0963

How do I get my Car Back after Being Arrested for a DUI in Los Angeles County?

It’s not uncommon that when people get arrested for a DUI in LA, that the police take their car away and impound it.  There’s various reasons why the police can impound somebody’s car.  Depending on the reason, that will dictate the solution as far as how you get your car back.  If your car has been taken away from you because you’re driving on a suspended license, then the law says they must keep the car for thirty days.  The only way that I’ve seen people get around this thirty-day impoundment is if the person who actually owns the car had nothing to do with the driver who was driving on a suspended license.  That person can come and show that it’s their car, they need it and they weren’t the one who caused it to be impounded.  Usually, if this is handled in a polite and professional manner, the police will release the hold on the car and the person can get their car back, so they can move on with their life.  If, on the other hand, the person who has a suspended license owns that car and drives that car, then they’re going to have to wait the thirty days while it’s being impounded because they’re impounding it by law and they’re also going to have to pay the fees associated with the suspended license related to the case.

Other reasons that can cause a car to be held is if the police arrest you, they’re entitled to impound your car, search it, and then once you get out of custody, you should be able to get the car back by going to the police station and following their prompts as far as what you have to do.  You’re probably going to have to pay some fees in order to get the vehicle out.  If the vehicle’s being held as property, that’s a different story.  I’ve had a lot of situations where people’s cars are held, and the police will not let the car out because either they were involved in some sort of a hit and run and they need to investigate and take pictures of the case, or sadly, the police will keep it to make sure that the person turns himself in related to a hit and run case.

Another scenario has to do with the car being held for evidence  If you’re involved in some sort of an accident, then the police need to photograph it and see what’s inside of it in order to possibly use information in the car, then they can put a hold on it  And unfortunately, they’re pretty lazy when it comes to this and they take their time as far as releasing the car.  What I usually have to do in this scenario is contact the prosecutor, get the prosecutor to acknowledge that the police have had enough time to look at the car, take pictures, search it, etc., and then the prosecutors will typically call the police up and say hey, let the car go.

So, if your car is in custody, so to speak, and you want to try to get it out, your best solution is to hire an attorney to assist you with whatever criminal case you caused the car to get impounded in the first place and then tangential to that representation, your attorney can speak to the powers that be and figure out how to get your car out.  Without an attorney, sometimes it is very difficult to get your car out and storage fees can mount, and you can be put in a position where the car is held for so long, depending on its value, it’s not even worth it to get it out.

So, if you have a situation where you’re charged with a crime and your car has been impounded and you’re trying to get that vehicle out in Los Angeles county, let your attorney do the work for you.  Let your attorney advise you.  Sometimes I advise people exactly how to get their car out and let them take care of the physical activity of doing it.  They just really needed from me a strategy on how to get the vehicle out.  But for an attorney to just tell you over the phone – not knowing anything about your situation – they’re probably not going to be able to give you as much detail as you need to successfully get the vehicle out.  So, sometimes it takes vigilance to get the vehicle out – you have to put some time in and go to the right places – other times it takes patience because the police need to do whatever they need to do related to your vehicle, and eventually they’re going to let it go.  Sometimes it takes a little bit of both of these.  But if you really want to get the strategy on how to get that vehicle out, in related to a DUI case, then you’re going to need to talk to an attorney and let them properly advise you.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436
(213) 542-0963

What if you Pick up a Second Time DUI While You’re on Probation for the First DUI in Los Angeles?

As you probably already guessed from having a first time DUI, the legislature, the police, the prosecutors and judges take DUI’s very seriously.  These are political crimes that demand punishment by the public and the powers that be because of the potential ramifications of somebody driving while intoxicated on the road and hurting another person.  If you’re on probation for a DUI and you pick up another one, the first thing the judge and the prosecutors are going to think is that you have a problem with alcohol that needs to be addressed, and if you don’t address it, they’re going to address it by placing you in custody as long as they possibly can to try to impress upon you how dangerous it is to drink and drive and to make it a deterrence so that you will not do it again.  However, technically and procedurally, if you drink and drive while you’re on a first probation then you’ll violate that first time probation and if it’s a first offense, then you’ll be looking at up to six months in custody for the probation violation alone.  That on top of looking at up to a year for the new second time DUI and other potential ramifications that can come along with that.

The open case is obviously going to be treated more harshly than a regular second time DUI because you’re still on probation and you’re continuing to drink and drive despite the fact that you’ve pled guilty to a crime and you’ve been ordered not to drink and drive with any measurable amount of alcohol in your system and you pretty much ignored the court’s order  So, you’re going to be looking at being treated harshly by the judge who has that probation violation and the judge who has the open case.  Typically, in LA County what they do is they will combine the two cases and your lawyer will have to deal with both of those cases at the same time in trying to resolve the case.  If there’s a jury trial in the case, then they will wait and see whether you’re found guilty or innocent on the new case before they do anything with the probation violation, and for the probation violation, even if you were technically found innocent, you can still be violated on your probation if they can prove that you drank with any measurable amount of alcohol in your system.

Punishments for Second Time DUI’s While On Probation for a First Time DUI in Los Angeles

A lot of times if people are continuing to drink and drive while they’re on probation, the prosecutors and judges perceive that they have a bad alcohol problem.  This could either cause them to think the person needs to go to jail for a long time or be taken out of the community in a residential live-in alcohol program, where not only can the public be protected from them because they’re in custody in a residential live-in program, but also the person can get help for the root problem which is obviously, from their perspective, alcohol abuse.  So, that’s certainly one potential punishment if a person wants to avoid jail time.  Also, they will make you do an 18-month alcohol program – this is mandated by the legislature – and it will also be mandated by the department of motor vehicles in order for you to ever be able to get your driver’s license back.  There’s typically a fine of approximately $390 plus penalty assessment which usually works its way out from somewhere between $2,000 to $3,000 once that fine is tacked on along with all the various fees that the courts collect in order to sustain themselves.  Other potential penalties can include AA meetings, they can also make you do Caltrans, which is roadwork on the side of the freeway, community service.  They can make you visit the hospital and morgue to see what happens when people drink and drive.  They can make you do a one-day seminar put on by Mothers Against Drunk Driving, which basically shows you the ramifications of a DUI.  There’s a myriad of other punishments that can be exacted against somebody who’s charged with a DUI depending on exactly what they did and what type of behavior they were engaged in.

In order to get the best possible resolution and avoid some of the harsh penalties that can come along with a DUI case, obviously you’re going to want to find an attorney who has handled probation violations, second time DUI’s in the courthouse where your case is pending.  That attorney will be able to get a better feel for what you’re looking at and exactly what you can do to help the attorney achieve the best possible resolution for your second time DUI case.

Defense Plan if You’re Charged with a Second Time DUI And You’ve Violated your First Time DUI’s Probation

What I have people do is come into the office, sit down with me.   We go over all of the specifics of their case, and really what we’re angled at is why are you back in this position again?  Why have you gotten another DUI while you’re on probation?  Because these are the types of questions the prosecutor and judge are going to ask.  Once we get to the why then we’re going to get to, okay, what can be done to make sure this is never going to happen again?  What can we come up with to assure the court that you’re not going to drink and drive anymore and that you’re not going to put the public at risk, because when you think about this, what the courts and prosecutors are concerned about when they do these DUI cases – second offense, third offense, fourth offense – they’re concerned that you’re going to kill somebody out on the road and then whoever gets that case is going to be looking back and say – hey, how come the judge or prosecutor didn’t do anything about this person?  The writing was on the wall and they didn’t figure out how to stop this person from killing somebody.

So, if you look at things from that perspective, then when we start to build a case and either the defense or we build a strategy to get you the best resolution by way of plea bargaining with the judge and prosecutor, then you can see that we’re going to have to show them that this was an aberration and that it’s not going to happen again and that you’ve got a specific plan to show them how you’re going to deal with this problem.  How they can trust that you will not back in this situation again and they can trust that the public is going to be safe.  This takes time, it takes character letters from people who know you from your job, and it takes showing the judge getting a little personal – giving your version of events about what happened and why you find yourself in this position, and that you really weren’t given that much of a chance on probation and they should give you one more chance because you will show that you can be a productive member of society and not get yourself in this position again.

Contact a Los Angeles DUI Lawyer

So, sitting down with your attorney, giving them an honest account of why this happened, what you can do so it won’t happen again is a good strategy.  Also, your attorney needs to tell you what you can do to help him or her achieve the best result for you and give you some peace of mind as to what can be done to actually help you.  Because you have two problems.  One, you have to deal with the prosecutors on the new case – they’re typically going to weigh-in heavily on what happens to you, and two, you’re going to have to deal with the judge on the probation violation because judges control probation violations in DUI cases in LA county.  So, there’s two different entities that have to be dealt with so it’s crucial that you get an attorney that can deal with both of these entities effectively in your DUI probation violation case.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436
(213) 542-0963

How Does Probation Work in a DUI Case in Los Angeles County?

Typically, when somebody is put on probation for a DUI case, it can range from anywhere from three years to five years.  Most of the time when I handle DUI cases in LA County, my clients are put on a minimum of three years of probation.  The probation and how it works, also depends on whether they are put on formal or informal probation.  Informal probation usually has to do with misdemeanor cases and that does not require the person to report to a probation officer, but instead will just have to do whatever they’re supposed to and a lot of times the judges will have them come back and forth to court to make sure they do things like their alcohol program, pay their fine and various other terms and conditions that the judge places upon them.  Formal probation is obviously more stringent, and you typically have to report to a probation officer and they’re going to keep much tighter guidelines on you.  A lot of times in DUI cases you can be put on formal probation and be ordered not to drink any alcohol, do an alcohol program.  You can be ordered to be tested by the probation department to make sure you’re not using any illegal substances.  There’s a whole host of things that the judge can make you do if you’re placed on formal probation.  In the end, when it comes right down to it – whether you’re placed on formal or informal probation – has to do with a lot of different factors.  One of the biggest ones is how your attorney is able to negotiate for you and get you the best possible resolution for your case.

A lot of things that people are concerned about is if they violate their probation what can happen to them.  Probation violations are pretty much controlled by the judge that you’re on probation to.  When you end up taking your plea in your case, the judge is going to tell you, okay you’re now on probation.  Part of the terms and conditions of your probation are obey all laws.  So, that means if you break a law then you can violate your probation and then you’d be looking at up to the maximum of whatever charges you pled to carry.  The judge will also give you certain terms and conditions and will tell you if you don’t do what the judge tells you to do or you omit to do something you were told to do, then you will violate your probation and will be looking at potential jail time and other punishments that the judge is able to give you.  Usually, the judges are pretty reasonable and will give you some flexibility if you need more time to complete your alcohol program or if you need some more time to pay money that’s owed to the court, they will give you that time and they will be reasonable.  It’s when they see that you’re not doing anything on the case and you’re basically just ignoring the court’s orders and making a bunch of excuses up that they will punish you for that, violate your probation and then make it more difficult in the end to get your case dismissed if that’s something that you’re interested in.

Can my DUI Probation be Terminated Early?

The answer to that question is that technically yes, your DUI probation in Los Angeles County can be terminated early.  Ultimately, it will be up to the judge who you are on probation to, whether your probation is terminated early.  Obviously, before you have any chance to get it terminated early, you would have to have no violations and have done everything that the court ordered you to do.  The biggest roadblock that I see in trying to get a DUI probation terminated early, is that the prosecutors will argue two things.  One, that the benefit of the bargain was that you were supposed to be on probation for three years, and so why should you be able to somehow get your probation earlier if that’s the deal that was made between the defense attorney and the prosecutor.  The other argument is that the legislature has mandated that if you’re convicted of a DUI, a first offense for example, then you must do three years of probation.  So, the judge is basically violating what the legislative intent was if they terminate your probation early.  So, a lot of judges will listen to these arguments and so, yeah, the prosecutor’s right and I’m not terminating your probation early.

The few times that I actually see probation terminated early in a DUI case is when you have a really good reason to do it.  An example might be you want to go into the military and you can’t be on probation when you’re in the military.  You’ve already served two years and some change of a three-year probation and you can make a powerful argument that I want to joint the military.  Look, the recruiter is saying I’m accepted, I’ve done everything, I want to go serve my country.  Please let me off this probation.  That would be a good example.  There’s other examples related to jobs and family and different things that people want to do in their life, and also this is all centered around reasonableness and whether or not a judge is going to give you a break and go against the prosecutors.,  And even sometimes prosecutors can be convinced to terminate the probation early if you have a strong enough argument.

What Happens at the end of Probation in a DUI Case in Los Angeles

After probation is over, if you’ve completed everything you’re supposed to, then you’re no longer on probation and you don’t have to worry about any type of probation violation.  If, on the other hand, the probation is coming to an end and you haven’t finished what you’re supposed to do or you violate in some way, then the judge can punish you and give you more things to do, put you in jail and even extend your probation, so you obviously want to do everything you can to complete what the judge ordered you to do.  After the probation is over, if you’ve done everything you’re supposed to, your attorney can file a motion for expungement, which basically has the effect if it’s granted of dismissing your case.  There’s no such thing as a true expungement in California as I write this blog, so you can’t completely get your conviction wiped off, but you can make it look to the public as though basically your case was dismissed, again which is the best you can do.  So as long as you’ve fulfilled the terms and conditions of your probation, you have a strong argument that you can get your case dismissed.

Contact a Los Angles DUI Attorney

When you have problems as if you have an internal or external violation of your probation, this can cause you big trouble in a DUI case.  Internal violations typically have to do with not doing something that the judge ordered you to do.  External violations typically have to do with you picking up a new case outside of your case, the judge finding out about it, and getting you for that obey all laws term and condition of your probation, and then trying to add some extra punishment on you.  If you’ve got some DUI issues, you’ve got to get attorney that’s been down this road before, had success and can help you get out of the system as fast as possible.

Hedding Law Firm
16000 Ventura Blvd #1208 Encino, CA 91436
(213) 542-0963

Can you Appeal a DUI Conviction in Los Angeles?

Having done DUI cases in LA for the past twenty-five years, I get asked all the time by people who are not happy with the outcome of their DUI case, whether they can appeal it.  You can certainly appeal your case as long as you’re within the appropriate time-frames of the appeal and you’ve followed all of the rules.  This is obviously something you’re going to want to consult an attorney about to see if you’ve already waived any potential appellate rights or you didn’t act fast enough.  But the key thing when it comes to deciding whether or not you can appeal your case is whether there’s an appealable issue.  In other words, is there something that went wrong during your case that affected your rights in such a way that you actually legally have grounds for an appeal.  Because if you don’t have any grounds for an appeal in a DUI case, you’re simply wasting your time and your money.  So, if you think you’ve got a good issue on appeal, you should seek out the advice of a good DUI appellate lawyer who has handled cases similar to yours.  Give them all of the details, let them talk to your attorney and let them then decide whether or not it’s worth your time, money and aggravation to appeal your case.

Some of the types of grounds for an appeal relate to how you actually ended up with the conviction.  In other words, did you go to a jury trial and you were found guilty by jury?  If that’s the case, then some of the areas you could attack is that you weren’t permitted to present some of your evidence during the DUI trial, or the prosecutor was permitted to show certain evidence that they shouldn’t have been able to show that influenced the jury in the wrong way.  There’s a myriad of grounds for appeal action, but obviously you’re going to want to get somebody that’s gone down this road before and knows exactly how to deal with an appeal related to a DUI in Los Angeles County.  Another way that you can end up with a conviction is if you actually enter into a plea bargain and work out a deal with the prosecutor and then the judge puts his or her blessing on it and you end up pleading guilty or no contest and going through the terms of the deal that you worked out yourself.  In this scenario it’s much more difficult to appeal because the Appellate Judge is going to say, well wait a minute, you’re the one who worked this deal out.  Why did you plead guilty or no contest if you weren’t guilty of the crime?  So, in this circumstance, you’re really going to have to show something.  Usually, this has to do with you claiming that your lawyer was ineffective in some way, didn’t advise you properly or did something wrong during the course of the trial or plea negotiation, didn’t do the proper investigation that is necessary for your case- so there’s a number of ways that you can try to argue that even though you entered a plea, your plea wasn’t voluntary in some way or that your attorney messed the case up.  Of course, this is a tough road to hoe, not an easy standard and not easy to prove.  So, before you go down this road, again you’re going to want to consult with an appellate lawyer who’s done these cases before, been down this path, had success and knows what it takes to be successful in an appeal.

Before you Appeal a Case, You Should Do the Case Right the First Time

This is obviously information that should be apparent to most people that you don’t even want to get yourself in a position to have to appeal your DUI conviction.  Get the best attorney you possibly can.  Make sure that all of the evidence related to your case is given to that attorney.  Make sure obviously that all of the investigation is done on the case and do everything that you can possibly do to help your attorney.  If you’ve chosen the right attorney, you’ve given him all the information and you still end up having to negotiate a plea bargain in a DUI or go to jury and you lose, then that’s probably the end of it.  To go back and try to cry over spilled milk is usually never, in my experience, a good idea.  It just continues to aggravate you, make you angry and bring up bad feelings.  Instead, if you really think there’s a good appellate issue, let a lawyer look into it.  Tell him to be honest with you about it and not waste your money and your time, and if they tell you no, I don’t see anything here then move on with your life.  Then at that point you can attempt to expunge the matter.  In California there’s no such thing as a true expungement, so you won’t be completely wiping the conviction off your record, but you will be able to get a dismissal of the case if you’re successful in the expungement on your DUI case.  Then if anybody is able to find it, then they’re going to see that the case was dismissed, and that’s the best you can do in California when it comes to DUI convictions or any conviction for that matter.

Contact a Los Angeles DUI Attorney

So, if you feel like you have a DUI case that needs to be appealed, you should sit down with a qualified appellate lawyer, let them go over all of the facts of your case – be honest with them, don’t put some giant spin on things – tell them what really happen – and then let them guide you through as to whether or not it’s worth your time to try to appeal your DUI case.

Hedding Law Firm
16000 Ventura Blvd #1208 Encino, CA 91436
(213) 542-0963

Getting Your License Reinstated After a DUI in Los Angeles

Having defended DUI’s over the course of the last twenty-five years, I’m familiar with what it takes in order to get your license back if you’ve been charged and convicted with a DUI.  First, if it’s a first offense, then after the police arrest you and let you go, will typically give you a pink piece of paper that serves as your temporary license during a thirty-day period of time after your arrest.  The police will take your regular license away and send it to the DMV and also send other paperwork to the DMV in order to alert them to the fact that you’ve received a DUI, so they can start suspension proceedings.

What I do as an attorney once I get retained on a DUI matter, is I will contact the DMV on your behalf and let them know that I represent you and I’ll also send them a letter to that effect, so things are documented and there’s no uncertainty about whether or not we made the deadline.  There’s ten days from the day of your arrest that you have to get a call in to the DMV and let them know that you want a DMV hearing related to any suspension and you want a stay on any suspension until you get the hearing.  As long as that call is made within the ten days and done in the proper manner and is documented so the DMV can’t claim they didn’t get the notice, you shouldn’t have any problem getting the hearing and being able to defend your rights.  So, the first step in my opinion is to hire an attorney who’s been done this road before and has done DUI cases and been successful in getting people’s licenses back for them and allow that attorney to operate within the DMV system to get your license back for you as fast as possible.

DMV Hearing

Once we set the hearing, we then get the discovery in the case.  The discovery is either provided through the court related to the criminal case, or it’s provided by the DMV in preparation for the upcoming hearing.  If your hearing is set more than thirty days away from your arrest, then the temporary pink license will be extended out and you will be able to drive past that thirty days until your attorney does your DMV hearing for you.  It’s important that you get the new temporary license so that if you’re pulled over during that time frame between the arrest and doing your DMV hearing, they’re able to show the police that you’re lawfully driving, and they don’t issue you a suspended license ticket.

At the hearing, the three basic things that the DMV must prove is that you were lawfully stopped or that the police lawfully came in contact with you.  Number two, that the police lawfully arrested you, and number three, that your blood alcohol level was a .08 or greater or that you refused to take the test.  If they can prove all three of these things and they’re going to take your license away on a first offense for a real thirty days, after that you will be able to get it back on a restricted basis to drive to and from work, to and from school, as long as you install an ignition interlock device and enroll in a first offender alcohol program.  Whenever you’re dealing with this issue with the DMV, it’s crucial that you call the DMV yourself and make sure that you have all of the requirements that they’re going to need in order for you to drive lawfully, get a restricted license and eventually get your regular driver’s license back.

In determining whether or not the police came in contact with you lawfully, the DMV hearing officer is going to see whether you committed some sort of a traffic violation to permit the police to pull you over and talk to you and decide whether or not you’ve been drinking or driving.  There’s other ways the police can come in contact with you.  Sometimes people either become involved in an accident or are on the side of the freeway or the side of the road.  Other times, the police are present when something happens related to your vehicle.  Maybe you have become incapacitated or you fall asleep and the police come upon you.  So, there’s a myriad of different ways that the police can come upon you.  The key for purposes of a DUI in a justified stop, is that they have to be able to show that they lawfully came in contact with you or that they lawfully stopped you.

As far as determining whether or not it is a lawful arrest, the police have to believe that you are so intoxicated that you cannot safely operate a motor vehicle.  That’s why they do the field sobriety test because those tests are supposed to be designed to determine whether you can safely operate a car.  Of course, these are subjective tests and they are not always 100% accurate.  That’s why a lot of times trying to get video evidence of you doing a test and other indications that you were driving safely is crucial to your defense.  Also, they can look at how you were walking, how you were talking, if they saw how you were driving the car – these are all factors that can go into determining whether you can be arrested for a DUI.

Finally, in order to be able to take someone’s driver’s license away, the police are going to have to be able to show that you blood alcohol level was a .08 or greater or that you refused to take the test.  The two main tests that are used in Los Angeles county to determine whether someone is a DUI, is the breath test that can be done by way of a small PAS device that they have out in the field or the big machine back at the station.  The big machine at the station is the official test, and really the only one that the courts and prosecutors will zero in on when deciding whether or not they’ve got a good case against you.  They could also take your blood which is probably the most accurate of the tests and see if that’s over a .08, and then lastly, if you refuse to take the test then it’s automatically presumed that you are a DUI.  The reason they have this law set up is because if they didn’t, then everybody would just refuse to take the test and they wouldn’t be able to get anybody for a DUI.

The bottom line is, in order to get your license back, you either need to go through all the processes that the DMV indicates, and/or you need to sit down with a qualified DUI defense attorney and allow them to guide you through the system and help you get your license back as fast as possible.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436


Should You Take a Plea Deal in a Los Angeles DUI Case?


One of the most important decisions that can be made in a dui case is whether to fight the case in a jury trial or instruct your attorney to seek a plea deal on your behalf.  This decision can not be taken lightly and must be considered with the benefit of all of the facts related to the case and a full run down from your attorney regarding the strengths and weaknesses of your cases and the tendencies of the judge and prosecutor in the court where your case is pending.

When you meet with you attorney, making the decision as to whether to work out a deal or not should be one of the crucial questions that is discussed and hopefully decided.  This will give your attorney direction as to the moves that will be made next to best represent your interests.  There is no reason to waste time doing certain investigative things if those things are not done towards your ultimate goal.

If you have not decided what the goal will be in a dui case, then the attorney will be left in a position of not knowing what the best path to take will be for you and your situation.  When I meet with clients in dui cases, I make certain that when we leave the meeting, everyone is on the same page as to exactly what our strategy will be moving forward.  This way we can all work in concert to achieve the goal that is right for you.


There are a number of factors that must be considered in deciding whether to take a plea deal versus filing a motion to dismiss or setting the dui case for jury trial.  The first consideration is whether or not you can win the case or not.  If you can not win the case or win the motion to dismiss, then you have the answer you need.  There is no reason to waste time and energy on things that are not going to help you.

Further, if your attorney files worthless motions and tries to fight a case that should not be fought, then this will make the prosecutor and judge angry and they will likely take it out on you.  This is why I am always shocked when clients tell me that they met with an attorney who quoted them a fee to do the trial in their case before seeing any of the evidence.  This makes no sense and is a situation ripe for problems.  Defending a dui cases and deciding whether a plea bargain is the right thing to do is a step by step process that must be approached with common sense and experience in what it take to win a dui case.


If the decision is made to take a deal, then the next consideration is what the target crime will be to try and convince the prosecutor and / or judge to give you.  The target crime will be based on what you did and the seriousness level of your case as related to other dui cases that are dealt with in the courthouse your case is pending.  Having defended thousands of dui cases over the course of the last 25 years, I can tell you that the biggest concern for judges and prosecutors is how dangerous you were out on the road and what they need to do to you to prevent you from hurting anyone in the future.

Whether an attorney tries to get the prosecutors to drop the case to a “wet reckless”, a speed contest or even a moving violation depends on a number of factors and is something that will be largely dictated by the facts of your case and your attorney’s abilities in the courthouse where you cases is pending.  The less dangerous your actions were to society, the better chance your attorney will have to negotiate a plea deal for you that you can live with.

Another consideration is where your dui falls on the sliding scale related to dui cases in the particular courthouse where your case is pending.  On the high end of the spectrum are those cases that the defendant blew a very high blood alcohol level and engaged in seriously dangerous behavior to society.  On the other end of the sliding scale are those defendants that did not blow a very high level and did not engage in particularly dangerous behavior.  Then, of course, there are those that fall in the middle of these two extremes.  This is where the best dui defense attorneys earn their money and are able to achieve the best possible resolution for their clients in the plea bargaining situation.

It is my goal in these dui plea bargaining situations to flush out all of the positive arguments for my client in the beginning and then use the arguments in the most effective way with the prosecutor and the judge to convince them to give you the lowest common denominator on your dui case and get you out of the system as quick as humanly possible.


California Implied Consent DUI Law


When evaluating the issues surrounding the implied consent law, the first thing that you must know is that in California, the legislature sees driving as a privilege, not a right.  Therefore in order to enjoy the privilege of driving on the roads in our state, each driver must agree to certain things related to their rights to drive.  One important thing is that if the police pull you over and ask you to consent to an alcohol test, because they believe that you are under the influence of alcohol, then you must comply.  This gives the police a lot of power because many times it is very subjective as to whether or not someone is under the influence of alcohol.

If you do not comply then it will be automatically assumed that you are driving under the influence of alcohol and the Department of Motor Vehicles will suspended your drivers license for one year with no restricted privileges during the suspension period.  The reason for this is because if this rule where not in place, then authorities would not have the ability to catch anyone for a dui because everyone would just refuse to cooperate and the police would have no way to prove their case in court.

This result of losing your drivers license for a year is a very harsh one and devastating to most people who live in the Los Angeles area.  Because it is so hard to get around in Los Angeles, the loss of your drivers license can cost you in many different ways.  If you are pulled over, then you are best served to cooperate with the police, because even if you are over the legal limit, the DMV will only suspend your drivers license for a real 30 days (for your first offense, with a five month restricted license after that) versus the year suspension for refusing to take the blood or breath test when asked to do so by law enforcement.


As you might guess, the implied consent law does have it limits.  It does not make it necessary to take the field sobriety tests that the police usually try and administer related to their dui investigation.  Further, you are not required to take the preliminary alcohol screening device (PAS device) test out at the scene of your arrest.  Of course if you have not been drinking any alcohol when the police pull you over, then you may want to take it, just so they will let you go and not take you back to the station and ruin the rest of your night.

If the police do suspect that you are under the influence of alcohol, then you will be required to take either a blood or breath test at the station.  The blood test is typically done at the hospital, however there are some stations (like Van Nuys) that have the capability to take people’s blood for dui purposes.  Most of the time the breath test is usually done at the police station in Los Angeles County.  However, beware that many counties like Ventura and Orange are actually making people take the official breath test out in the field.  Again, when you do not cooperate with the police during a dui investigation, you run the risk that they will try and cheat you and write their report in an unfavorable manner.

Another thing that you do not have to do as part of the implied consent law is to give the police any type of statement.  For example, if they ask how many drinks you had or any other questions designed to illicit an incriminating response, you can simply refuse to answer.  The police usually try and sneak in incriminating questions during the booking process in order to seal up any loose ends related to their dui investigation.  The bottom line to remember when it comes to implied consent is that you must take the blood or breath test, but not completely give them all of the other information they need to bury related to their dui investigation.


Just because someone made the bad move of refusing to submit to a chemical test when asked to do so by a law enforcement officer related to a dui investigation does not necessarily mean that they lose all ability to challenged their dui case.  There are certain rules that the police must comply with in order to convict you for a dui.  If they illegally stop you, for example, then everything they find after that would be thrown out, based on the illegal stop.  That would include any argument that you refused to take the blood or breath test.

Another way to fight you dui refusal case centers around the requirements that the police must conform to if they want to utilize the refusal / implied consent law to convict you of a dui.  They must explain to you what will happened to you if you refuse to take a chemical test and then record what your response was after they asked you to comply.  Further, they must explain to you that you have a choice of giving a blood or breath sample in order to meet their requirements.  I see a lot that the police just tell a person that they must take a breath test or they will lose their license.  This is not sufficient for purposes of a refusal, because they also have to offer them the blood test and let them know that they have a choice between the two tests.  Just because the police are too lazy to go to the hospital and perform the blood test, will not let them off the hook for failing to comply with the refusal requirements.

DUI and Child Endangerment


If a person is pulled over and arrested for a dui in Los Angeles and they have a child in the car, then many times the police will cite them and the prosecutors will charge child endangerment.  When it comes to dui defense, it is bad enough if the person is driving dangerously with alcohol in their system, if you add a child in the car, the prosecutors and judges are extremely difficult to deal with and the defense definitely has their work cut out for them.

One of the ways around a child endangerment charge is to show the prosecutor that the defendant was not driving recklessly and that they should not suffer the consequences of having a child endangerment on their criminal record.  This charge can prevent a person from coaching their child in sports in the future and can cause a number of other issues for them that must be avoid if possible.  Another angle that is used to avoid this type of conviction is to show that the person’s conduct is an aberration that has not happened before and will not happen again.

We encourage our clients to get character letters from friends and family that know the good person you are.  And, to have your family indicate in the letters what a huge blow it would be to them if you were limited by having to admit a child endangerment charge.  Over the course of the past 25 years, I have seen that most of these arguments are common sense, but the criminal defense attorney must know who to talk to and how to convey things to them, based on what happened in the case and how the client is situated in their life.


One of the big jobs the judge and prosecutors believe that they have is to protect victims of crime.  If the victim is a child, then they will go out of their way to help and protect them.  Therefore if they see that you are drinking alcohol and risking your child’s life, they will come down particularly hard on you and make sure that you get the help and punishment they feel you need in order to not engage in this type of behavior again.  In other words, when the court system feels you are not responsible enough to protect your own child, you will see that you then lose control over how the problem will be fixed.

In the situation where a parent puts their child in harms way, in addition to the criminal court punishing the parent and putting roadblocks in their way so they can never engage in this behavior again, they will also get child services involved and use everything at their disposal to protect your child.  In order to have the best chance of success and avoid some of the harsh penalties that come along with a child endangerment / dui charge, you must find an attorney who is familiar with these type of cases and has had success in the courthouse where your case is pending.


My goal in child endangerment / dui related cases is to do everything I can to make sure that the client does not suffer a conviction for child endangerment, because I know how costly this can be to a parent’s future.  Of course if you are innocent of a dui then you will usually have a strong argument that child endangerment does not apply, unless you where driving in a reckless manner.

However, if the prosecutors will be able to show that you were driving under the influence of alcohol (DUI) and could not safely operate a motor vehicle, then having a child in the car at the same time is a huge problem that will take some hard work and strategy to deal with.  The solution to the problem will depend on a number of different factors that should be handled by an attorney who knows and has negotiated with the prosecutors in the court and the judge on the case.  This attorney will know what can and can not be accomplished.  And, most important, they will know the different avenues that work in terms of getting the job done.

Whenever you are assessing how a child endangerment, in conjunction with a dui case, should be handled you should do so from a frame of reference that takes into account the fact that the judge and prosecutor are looking at what they can do to protect your children and society from your behavior.  Taking it a step further, they are looking at making sure that you never come back to haunt them.  In other words they do not want to be in the position of giving you a break and then months or even years later you come back with a serious situation where you have hurt someone on the road.

If you look at things from the above framework, then you will understand why the judges and prosecutors seem to be so harsh on child endangerment cases.  It is a situation where they do not want to be perceived by anyone as being weak in a case that all of society would say you should punish a parent who puts their own child in danger.  Hence, we have to really do some hard work to convince the judge and prosecutor that you are a good parent who made a mistake that will not happen again.

This requires us to go to sources of information that know you and can vouch for you as a good person and good parent.  Then the prosecutor and judge can be more confident that you will not let them down and your children down.  Also, they will have something to point to if anyone where to ever question why they gave you a break and did not throw the book at you.