Q: Will My DUI Case Go To Trial?
In assessing whether your DUI case should go to trial you want to make sure that you have reviewed all available evidence and discussed that evidence with a seasoned DUI defense attorney.
No attorney should be telling a client that they should go to trial unless and until they know what the government has in order to prove their case. It is only fair that the attorney and the client know the strengths and weaknesses of the case before they make the decision to go to trial.
Cost of a Trial in California
A DUI trial is costly and a person can be subject to serious long lasting consequences. With this in mind, it does not make sense to quote a client a fee to do a trial unless all available information has been flushed out.
Once the evidence has been laid out then the client and attorney can weigh the chances of success in a trial versus negotiating a favorable disposition.
Once the client is fully informed then it is time to decide which course the case will be directed. Who controls whether your DUI cases goes to trial in Los Angeles?
It is always amazing to me when clients say to me that they do not want to go to trial as though I control whether the case goes to trial or not.
The truth is that the client always controls whether a case or any criminal case goes to trial. A client has an absolute right to a trial and no one can make them go to trial. This decision is not one to be made lightly, but it is the client who has the final say so in the end.
Where some confusion can come in is when the client does not want to take the deal the prosecutor is offering to settle the case and also says they do not want to go to trial. If a case is filed against you a number of things can occur.
First, if the defense attorney can file a motion to suppress the evidence against you, then the case can be won by way of dismissal.
These type of motions can take the form of illegal stops, illegal searches and the police illegally taking your blood or breath.
Sometimes the key evidence is a statement you make and the police fail to read you your Miranda rights. This can lead to a dismissal if there is not other evidence available to convict you.
Negotiating a Resolution
If the case can not be won by way of a motion that leads to a dismissal and the prosecutors are not willing to dismiss the case on their own, then the case must either be negotiated to a resolution or tried in front of a jury. There is not halfway in between.
The prosecutor or judge will make an offer to settle the case and the defendant, through his or her attorney, can accept the offer, reject it or counter it with another offer.
Eventually the judge and prosecutor will say to the defense attorney that they have made the best offer they are going to make and the client should either take the offer or set the case for trial.
When this ultimatum is given to a DUI defendant in a criminal case, it is time to fish or cut bait.
In other words the defendant either takes the deal or goes to trial. It is not the attorney who makes this decision for the client. It is the client who must decide whether they will take the deal or not.
This is because it is the client who must suffer the consequences of a particular plea and follow through with whatever punishment is doled out by the judge.
It is the defense attorney's job to negotiate the best deal possible or try the case with all available evidence in favor of the client.
Once the defense attorney educates the client on the law and what they are up against, it is then up to the client to make the final decision. This is how the system works and it is one of the best systems in the world.
In my opinion, with the above in mind, you want to hire an attorney who is a straight shooter and who you feel comfortable with.
The attorney you choose will be the one championing your position to the judge and prosecutor and if you feel comfortable with them, so will the judge and prosecutor.
Q: Will I Lose My Driver's License?
When it comes to driving under the influence (DUI) in Los Angeles County and the loss of your drivers license, your best strategy is to consult a seasoned attorney right away. There are many different factors that go into what will happen with your driver's license as it relates to a DUI.
I always try and get the client into my office immediately so we can lay everything out on the table and see what they are up against and what they can do to defend themselves.
DMV Hearing in Los Angeles
In Los Angeles, the Department of Motor Vehicles (DMV) controls what happens to a person's drivers license when they are arrested for a DUI related offense.
Each person is entitled to a DMV hearing related to their license, as long as they contact the DMV or have their attorney do so within ten days of their arrest.
When we call the DMV for our clients and ask for a hearing related to the suspension, we always make sure to send a letter to confirm the request and confirm the fact that we called within the appropriate time frame. This of course is to guard against the DMV trying to claim they never received the request.
Once the DMV is contacted, the person whose license was taken away from them is entitled to a hearing either in person or over the phone.
The DMV will then send a copy of the evidence they are going to use against the person in order to prove their case.
The person whose license is subject to being suspended can also present evidence at the hearing and ultimately a DMV hearing officer will decide if they met their burden for purposes of suspended the person's drivers license.
If a person wants to present evidence or witnesses to defend against their license being suspended, they must turn it over to the DMV prior to the hearing so they have a chance to try and refute it if they can.
Also, both the Department of Motor Vehicles and the client have the right to subpoena witnesses to testify at the DMV hearing if they so choose.
Finally the defendant can testify at the hearing if they chose, but can not be forced to do so by the DMV. However, if they testify, then the DMV hearing officer is given the opportunity to ask questions as well.
Blood Alcohol Level
The DMV must show that the subject person was lawfully pulled over, lawfully arrested, and that their blood alcohol level was a .08 or greater at the time of driving. If they can show all three of these requirements, then they will suspend the person's drivers license.
The length of the suspension depends on the person's criminal / driving record, how many prior they have and whether they refused to take the a blood or alcohol test when asked to do so by the police.
If, on the other hand, the DMV hearing officer is unable to prove one of the above three requirements, then they are unable to suspend the license administratively.
Unfortunately, going against the DMV is an uphill battle for many reasons. First, they have the police as their main witnesses and evidence. California law permits them to submit the police report in order to form the basis for their case against the person subject to suspension.
As you can guess, this creates a situation which is very difficult to defend against. The Department submits the police report as evidence, the defense objects and the objection is overruled and the police report is typically always admitted into evidence.
This procedure makes it very difficult to win a DMV hearing. Of course the defense can subpoena the arrested police officer under the appropriate circumstances and ask as many relevant questions as they deem appropriate to try and undermine the case against them.
Q: Will I Go To Jail for a California DUI?
The question as to whether a person will go to jail related to a DUI arrest is certainly one on most people's minds.
This is especially true if you spent anytime in one of the local jails following your arrest. No one likes there freedom taken away and the local jails are no fun to say the least!
The good news is that in Los Angeles Courthouses most first time defendants do not receive any jail time for their punishment.
Like most things in life, there are exceptions to this rule. Most of the exceptions to the no jail time relates to those individuals who are a danger to the community.
Factors That May Lead to Jail Time
The types of activities that can cause you to be sentenced to jail include but are not limited to, excessive speed, extreme reckless driving, causing an accident, very high blood alcohol level and just about any activity that can be characterized as dangerous to human life.
The prosecutors and judges in Los Angeles are laser focused on protecting the public. If they feel you are a danger, they will use all punishments and deterrents available to them to stop you.
And, this includes jail time. It is up to your attorney to paint and entirely different picture of you in order to achieve the best possible result for your DUI case.
Multiple DUI Offenses
If you are charged with a DUI and have one or more within ten years, then your likelihood of going to jail increases significantly.
If you are charged with and convicted of a second time DUI in any of the LA courthouses then you will face a minimum of 96 hours in jail up to a maximum of one year.
If you are on probation when you pick up your second DUI, you will face additional time for the probation violation and new case together.
There are ways around the mandatory jail, but these angles should be discussed with a seasoned attorney.
One angle is for your attorney to convince the prosecutor to permit you to plead to a lessor charge.
For example, if you plead to a wet reckless then there is no mandatory jail time. When it comes to a third time DUI, the punishment significantly increases.
The minimum jail sentence for a third time DUI in Los Angeles County is 120 days in jail. And, the likelihood of convincing the prosecutors and judge to give you a break under these circumstances is significantly less than for a third offense.
Again, the prosecutor and judge are primarily focused on protecting the public from unsafe / dangerous drivers.
Hence, if you continue to drink alcohol and drive they will eventually come down on you with the full weight of the law. For a fourth DUI offense within ten years you are facing prison time and a felony on your record.
Once you start to get into to this realm, you will be shown no mercy by the judge and prosecutor and will be considered a menace to society and they will do everything in there power to stop you from drinking and driving.
I see a lot of judges ordering defendants not to drink alcohol and even having them wear the SCRAM Bracelet on their ankle which detects if you have consumed alcohol and will alert the court if you violate their order not to drink.
I'm sure as you read the above you realize that the legislature, police, prosecutors and judges are particularly keen on protecting the public / community from those people who drink alcohol and drive a motor vehicle.
There is a significant amount of political pressure that has been placed on the authorities by groups like MADD to enact and enforce tough DUI laws.
Every single person who pleads to a DUI is warned that if they drink alcohol and drive that it is dangerous to human life.
Further, they are told that if they drink alcohol, drive a car and someone is killed as a result of their unsafe driving, they can and will be charged with second degree murder and will be facing fifteen years to life in prison.
California's Strict Drunk Driving Laws
Suffice to say California is one of the toughest states in the nation when it comes to DUI law.
Your best bet, if you are charged with a DUI, is to find an attorney who has helped people in your situation in the courthouse where your case is pending.
Let that attorney be your guide and help you make the right decisions related to your case.
When I meet with clients I make it a point to have them lay out everything on the table in the first meeting and let them know what they are realistically facing and what they can do to help me best defend them.
Q: When Is A DUI A Felony In California?
There are a number of scenarios that can cause a person to be charged with a felony DUI in California.
One of the most common is when the person who is drinking alcohol and driving becomes involved in an accident and someone in their car or another car sustains a "serious injury."
What qualifies as a serious injury, for purposes of a felony can sometimes be a murky subject. Even when you review the jury instructions on this subject it is hard to come away with any clearly defined rules.
Accident With Injuries
Certainly any broken bones will qualify a person for a serious injury. Further, if there is any scarring to the injured person or permanent injury, this would qualify the defendant for the punishments that are associated with a felony case.
Of course, as with anything in life there are grey areas where the prosecutors are trying to jam a certain injury into the felony category and it is going to take a top level DUI defense attorney to block them from doing it.
Over the course of the past twenty five years of battling for my clients in these circumstances I have had much success in stopping prosecutors from forcing my client to plead to a felony DUI in the wrong circumstance.
If an alleged victim acquires a soft tissue injury during a car accident this will usually not qualify for purposes of a felony case. .
Multiple Drunk Driving Offenses
Another area where you can be expected to be charged with a felony is when you have three prior DUI's within a ten year time frame and pick up a fourth.
The prosecutors will surely charge you with a fourth time DUI and will likely want prison time as well. It will take a major effort on the part of your DUI attorney to avoid prison for you and the ramifications that come with a felony charge.
Your best served to get into consultation with the best lawyer you can find and begin the process of getting assistance for your drinking problem and moving your case in the right direction.
When I do these cases I realize that they are not all the same and the strategy will be dependent upon where the client is in their life and what the best course of action is moving forward.
The final area I see people charged with a felony is when they have been convicted of a prior felony DUI and are then arrested again for driving under the influence.
This gives the prosecutors another opportunity to charge you with a felony and they will likely attempt to put you in prison for as long as possible.
It has been my experience that prosecutors and judges in Los Angeles show very little sympathy or compassion for those who drink and drive and put other community members lives in jeopardy.
Legal Penalties For a Felony DUI Conviction
As you can see from some of the descriptions above, anyone who is convicted of a felony DUI in California is facing prison time and it will take a herculean effort on the part of your attorney to avoid this type of punishment.
When I meet with clients I try and find out what the underlying issue is and devise a plan to show the prosecutor and judge that we are prepared to effectively address this problem and make sure that this does not happen again.
Sometimes that means the client needs to spend some time in rehab in order to be taken off the streets for a period of time to show the judge that you can remain sober and are truly no longer a threat to society and get need help for an alcohol problem.
Once we can show that you are no longer a threat, we are then in a position to resolve the case. When the judge and prosecutor feel that you are a threat to the community they will try and take precautions to stop you from being able to drive.
They figure that since driving is a privilege and not a right, that the person who drinks alcohol and drives is someone they need to protect the public from. Another ramification of a felony DUI is that you will have that on your criminal record.
This means that you can not vote, hold public office or own, use or possess a gun or ammunition.
Under the right circumstances there are ways to get felony DUI convictions reduced to a misdemeanor, once you show the court that you are on the right path and will not longer drink and drive.
Q: What Is The Penalty For Refusing A Breathalyzer Test?
If you refuse to take a blood or breath test in California related to a DUI pull over, when asked to do so by law enforcement, you will lose your drivers license for one year (with no restricted license) and you will be charged with an extra enhancement in criminal court associated with your case.
This extra enhancement could lead to jail time and extra penalties in your criminal case.
California takes drunk driving cases very seriously and there is a lot of political pressure on the police, prosecutors and judges to make sure people are punished to the full extent of the law when they are perceived to be jeopardizing other innocent citizens lives on California streets.
In my opinion, the reason that the legislature has been so harsh when it comes to a DUI refusal is because without these policies in place, then everyone who is pulled over for would simply refuse to take the test and could therefore not be prosecuted.
The way they have justified being able to do this is because they have indicated that driving a car in California is a privilege and not a right.
Hence, when you get your drivers license you are specifically informed that if law enforcement asks you to take a blood or alcohol test, because they believe you are sufficiently impaired as to be unsafe, you must cooperate with them or face severe consequences.
Breath Test Refusal in California
What do the prosecutors need to prove in order for there to be a valid DUI refusal? One of the major things that the police must do procedurally for purposes of a refusal is to give you a choice between the blood or breath test.
I find many clients telling me that they were not given the blood option. This seems to be because it is more of a hassle for the police to draw someone's blood than it is to have them blow into a breath machine.
The problem with successfully utilizing this defense is that it typically ends up being the police officer's word against the person who was arrested.
Another requirement that is sometimes overlooked or ignored by the police is to properly advise the person they arrested that if they do not take one of the tests, then they will lose their driver's license for one year.
Once the police advise you of this, they will usually indicated in the report exactly what your response was. The point here is to make sure that people know the ramifications of their actions in not taking the test.
Bottom line, it is almost always best to take the test, so you have a fighting chance in your case and you can avoid some of the harsh penalties both at the criminal court level and with the DMV.
Not Completing the Breath Test
Other issues that I have seen pop up is when a person chooses to do one of the tests and then does not complete that test.
For example, the police drive all the way to the hospital because the person choose blood and then the person changes their mind and says they are afraid of needles.
Many times the police put this down as a refusal DUI. Another common issue crops up when the person chooses the breath test and then is not blowing hard enough for the machine to register.
Sometimes this is because the person is doing it in order to avoid what they believe will be a bad result and there are certainly occasions when there are issues with the breath machine as well.
These subjective issues are at least ripe to argue with the prosecutor that the police did not follow proper procedures.
It has been my experience from talking to many clients over twenty five years of practicing drunk driving defense that when the police perceive that you are messing around with the tests, they lose patience with you and lock you up and put you down for a refusal.
Remember, they have the last say in their police report and can put in there what they want. In my opinion, in order to combat this rush to judgment, you must hire a local attorney who has been down this road before and had success.
Someone who is respected by judges and prosecutors and can get your story across in an effective manner.
I make it a point to get clients in my office and make sure that when they leave we have a plan in place of exactly how we are going to best defend them and what they can do to assist.
With clarity comes peace of mind. It is a goal to handled your matter professional and discreetly with the least amount of pain an embarrassment possible.
Q: What Is The Ignition Interlock Device?
An Ignition Interlock Device is a device that most people do not know about unless they have been arrested for a DUI in California.
The L.A. area is part of a test pilot program that requires first time offenders to install one of these devices in their car in order to comply with their probation and the law in California.
It is basically a device that registers whether you have any alcohol in your system before you are able to start your car. The device itself is fairly easy to use and is reasonably priced.
It must be installed by a certified company and it is monitored so it can not be tampered with by the owner of the car.
If a person, who is on probation, is caught unlawfully tampering with their ignition interlock device or having someone else blow in it in order to avoid alcohol detection, they will be subject to a probation violation and six months to a year in jail, depending on how many convictions they have on their record.
The device is part of California's all out push to stop people from drinking alcohol and driving, which has truly become one of the toughest states in the nation as it relates to DUI deterrence and enforcement.
Avoiding the Embarrassment of an IID in your Car
In defending DUI cases over the the past twenty five years, I have fought hard to keep my client's out of jail and from suffering some of the more severe consequences it carries.
Believe it or not, embarrassment and shame are some of the biggest concerns people have related to their DUI case. Fortunately, the ignition interlock devices, as they have been modernized, have become smaller and much less conspicuous than they once were.
The companies that make them realize that the consumer does not want to be seen with one of these devices on their car and has therefore done everything they can to make the device as inconspicuous as possible.
The main way to avoid putting one of these devices on your car is to beat the DMV at the administrative hearing and win your case in court.
If we can do this, then you do not have to put the device on your car and suffer some of the other harsh penalties that come along with a DUI.
If this is not possible, then we do everything we can to minimize and downgrade the charges and the impact can have on your driving and criminal record.
Monitoring the Ignition Interlock Device
Who controls and monitors whether the ignition interlock device is placed on your car in California?
The criminal courts do not get involved in monitoring whether you actually put an ignition interlock device on your car and the ins and outs of whether you have violated your probation as it relates to the use of this device.
The courts leave all of this up to the DMV. However, if you find yourself in court for violating the use of your ignition interlock device, the court will certainly be more than happy to punish you for it.
Typically the court will tell you, as part of your probation, that you are not to drive with any measurable amount of alcohol in your system and that you are to comply with placing an ignition interlock device on your car through the Department of Motor Vehicles.
Hence, they put the DMV in charge of dealing with this cumbersome issue. It took the DMV quite sometime to even figure out how to implement the dictates of the legislature as it relates to the IID.
At first, the DMV was not enforcing the law because they had no systems or mechanism in place to monitor and run the ignition interlock device component of the legislature's requirement.
They have finally figured it out and are pretty efficient related to monitoring and enforcing the IID requirement. They have also been assisted by the many companies that are making money from the installation and monitoring.
Q: What is the Court Arraignment?
In short, an arraignment is the initial appearance that a person makes in a criminal case. This is where you are given the charges in your case, you enter a plea of guilty, not guilty or no contest, and (in appropriate cases) your bail is set.
In some of the courts, I will go in and continue the arraignment in order to review the discovery with my client and determine what our best strategy will be moving forward.
Hence, your arraignment in California is a critical stage in the proceedings and you should have your lawyer by your side or at least there in you stead.
Negotiating With the Prosecutor
Many times the prosecutors are available to negotiate with your defense attorney at the arraignment and can be convinced to give the client a release on their own recognizance, meaning no bail will have to be posted in order to remain free from custody.
In some DUI courts, the judges are ordering the defendants to attend Alcoholics Anonymous meetings in order to be released on their own recognizance.
This usually occurs when the person has a high blood alcohol reading, has priors or got in an accident.
Depending on the circumstances surrounding the case, I will not have my clients come to court unless it is absolutely necessary.
This gives me the chance to meet with the prosecutor one on one and see exactly how they feel about the case and what they are willing to do to settle it.
This gives the client an opportunity to work and not waste time and money and the prosecutors and judge do not hold it against them, because they know the person hired a private attorney to handle their matter and are taking the case seriously.
Early Intervention By An Experienced Lawyer
Some clients foolishly wait until after their arraignment to hire their attorney, under the mistaken belief that the arraignment is not a very important part of the case.
In my opinion, you want your lawyer on the case as soon as possible in order to start your case moving in the right direction.
I have seen many situations where clients lose valuable rights and have charges added to their case because they did not have an attorney who knows about them and their situation right from the beginning of the case.
It makes no sense to me that people would take chances with their driving record, criminal record, reputation and freedom on the line.
Hence it should be clear to you now that the arraignment is the beginning of your case and it should be handled with care and professionalism.
The best DUI defense attorneys use the arraignment as an opportunity to let the prosecutor know their client's side of the story and start shaping the case in a light most favorable to their client and their client's interests.
Arraignment Within 72 Hours of Arrest
How soon is the arraignment after a person is arrested for a DUI in California?
When someone is arrested in LA county they must be brought to court within seventy two hours of their arrest. If for some reason this is not possible or if the court does not file the case fast enough, then the authorities must let them go.
This time can be extended if they are arrested on a weekend or holiday. Further, once they post bail in the case, then they will be released and their appearance in court will usually be set approximately thirty days away, depending on how busy the courthouse is that has their case.
Once the person is in court, then the police must give the arrest report and all available evidence to the prosecutors for them to file the case.
If the prosecutors do not receive the necessary paperwork to file the case, then the case can be continued for further investigation while the police try and get their act together.
Sometimes, the prosecutors do not believe that there is enough evidence to file a case against a particular defendant and will end up rejecting the case.
If this happens them the person will be free from any action on the part of the courts. However, they will still have the arrest record that will remain.
Defending a DUI case can be tricky and should be treated in a serious manner by an attorney who has been down the road you are about to travel. I always tell my clients who have been unlucky enough to have been arrested to do it once, do it right and never do it again!
Q: What Is California's Zero Tolerance Law?
The law in California regarding underage, someone less than the age of twenty one, individuals, is that they are not permitted to drink any alcohol and therefore they can not drive a motor vehicle with alcohol in their system.
This law, know as the "Zero Tolerance Law" is designed to deter and punish under age drivers who drink alcohol and drive, because they are typically the most dangerous drivers and are involved in the most accidents.
Young people who are caught drinking alcohol and driving will lose their driving privileges for one year and are also subject to criminal charges.
Many of the cases that I have defended, I see the police pulling someone over who is under the age of 21 and once they determine that they have drank some alcohol, they take their driver's license and car away from them and make them walk home.
The license is then sent to the DMV with a report that shows the person was drinking an driving.
It is up to the police officer whether they actually give the person a ticket and make them appear in court or arrest them or hold them for a period of time and then cite them out to the court in the jurisdiction where they were arrested.
DMV Administrative Hearing
Once the person's drivers license is taken away from them and sent to the DMV, then they are entitled to an administrative hearing, where it will be determined if they violated the law and will lose their license for a year.
You are entitled to an attorney and the attorney can fight to try and save your driver's license.
This is typically not an easy proposition because if you had any alcohol in your system, were under the age of 21 and the police saw you driving a car, then the DMV will have a strong case to suspend your drivers license.
Measuring Under 21 Blood Alcohol
How is a person under 21 blood alcohol measured? California permits law enforcement to use the Preliminary Alcohol Screening Device (PAS) in order to measure the blood alcohol level of a person who is under the age of 21, which is a small hand held device that most police units carry with them.
Even though the PAS is not one of the most accurate tools to measure a person's blood alcohol, for purposes of seeing whether a person who is under 21 has any alcohol in their system, it is permissible.
The underage "Zero Tolerance Law" is an interesting concept because it does not necessarily require that a young person is so intoxicated that they can not safely drive a motor vehicle, which is required in adult DUI cases.
It simply requires that someone under 21 be driving a car with any alcohol level in them when they are pulled over by the police. This makes it fairly easy for the police to detect whether someone under the age of 21 has violated the law.
Of course this issue can be complicated when someone under 21 has a very small about of mouth alcohol that was not caused by drinking an alcohol drink.
There are a number of substances that can cause a person to register on the PAS device who has not intentionally drank alcohol.
As with anything in criminal defense, when your freedom is on the line, you should definitely consult with and hire a skilled defense attorney to help you.
Q: What Is A Plea Bargain?
A plea bargain, as it relates to a DUI case, means that you and your attorney agree to settle the case with the prosecutor or judge, in order to take advantage of a deal that has been offered to you.
Usually when the prosecutors offer to settle a DUI case, they tell the attorney that if the client agrees to plead guilty or no contest to a particular charge or charges, they will recommend to the judge that a particular sentence is appropriate.
In most circumstances if the two sides agree to a certain resolution, then the judge will go along with it and sentence the defendant accordingly.
If the judge does not agree to the proposed resolution, then the defendant would be entitled to withdraw their guilty or no contest plea.
Sentences in DUI cases usually include a fine, alcohol program and a probationary period. There are other penalties like jail, community service, Cal Trans, alcohol anonymous classes and a host of other punishments that apply to particular cases.
Even though DUI cases are typically not very complicated, they do carry consequences that can be life altering.
This is why I always suggest that if a person is charged with drunk driving, they get into to see a savvy defense lawyer who has handled cases like theirs's in the court where it is pending and let them guide you through the process.
Going with an inexperience attorney is usually not a good idea and can lead to severe unnecessary consequences.
Because the prosecutors are people and subject to emotional reactions to cases, it is always best to make sure that your counsel is familiar with the system you find yourself in, so they can navigate you through any pitfalls that may come up along the way.
Can Judges Offer a Plea Bargain?
In most courts in California, it is the prosecutor who offers the deals to settle DUI cases. The judge will deal with any violations of probation after the deal is done.
However, if a lawyer feels that the offer the prosecutor is offering his or her client is not fair, they can ask the judge what they will offer if the client agrees to plead guilty or no contest.
The judge can agree to make an offer or can defer to the prosecutor and refuse to make an offer less then they are offering. This is something that is up to the particular judge and is not something that is always cut and dry. In my experience, many judges will under cut the prosecutors and offer better deals.
This depends on the court and the particular judges disposition. One downside to this strategy is that the judge can only control the punishment, not the actual charges.
Therefore, if a client does not want the particular charge on their record, then the negotiation will have to take place with the prosecuting agency.
In a scenario where a particular prosecutor will not budge, the next step would be to go up the chain of command and talk to one of their superiors.
Of course this strategy should only be employed if the attorney knows the system and is familiar with the potential ramifications of making such a move. Long story short, if you find yourself facing a DUI then you should hire a solid experienced attorney.
The main goals that I have at the first meeting with the client is to give them peace of mind and help them take some control of the situation back.
We talk about what they are facing and what they can do on their end to assist me in achieving a result for them that they can live with.
No one wants to have to deal with a DUI case, but if you do have to, then you should do it once, do it right and never do it again!
Q: What Is A PAS Test And Can I Refuse One?
The Preliminary Alcohol Screening Device (PAS) is a mini breath machine that is used by some law enforcement officers out in the field in order to determine if a person they suspect of being under the influence of alcohol is over the legal limit.
Typically, if the police smell alcohol on your breath and you show the objective signs of being under the influence of alcohol, then they can have you blow in the PAS device and see what your reading is before wasting a trip to the police station if you are under the legal limit.
The police definitely are not interested in wasting their time and being embarrassed back at the station if you blood alcohol level is under the legal limit.
This is why the PAS device is such a convenient and helpful tool for them.
Common DUI Tool for Police
The PAS test has been around for many years and its usefulness to law enforcement as a tool to arrest people and prosecute them for a DUI has grown / evolved over the years.
In the past, the police / prosecutors could use the PAS results to show that you had alcohol in your system versus actually trying to use the result itself to convict you.
Now the prosecutors are relying on case law in order to actually use the reading against the person who is arrested for a DUI offense.
This is a double edged sword for them because the machine itself is subject to attack by experts and its result can sometimes be unraveled at trial by an effective cross examination. .
Challenging PAS Test Results
As indicated above, fortunately, the test itself is fraught with issues and the machine simply does not produce an accurate result.
The defense will always be able to get experts to attack the PAS result and even the prosecutors own expert will typically acknowledge that the test is not very accurate.
I can not tell you how many times I have seen a huge disparity between the PAS result and the breath test back at the station or the blood test.
Hence, the defense will always have a strong argument with the prosecutor and judge that their client's PAS result is not accurate.
Of course there are some occasions where the PAS result is actually helpful to the client and the defense is arguing for its admission and accuracy. It is all in what position you sit that determines how you will view certain evidence.
Can You Refuse To Take a PAS Device Test?
Drivers in California can refuse to blow into the PAS device. They can also refuse to take the field sobriety tests. If you do this, you will make the police angry and they will figure out whatever they can possibly do to arrest you and make it stick.
Further, if a person suspected of driving under the influence is asked to take a breath test at the police station, they must take it or risk a refusal.
I always advise my clients to take the test because I am concerned that they will end up with a refusal and a years license suspension if they do not.
In counties like Ventura the police are actually driving around with the breath test you must take in side their police units.
So even though you can technically refuse to take the PAS test, beware that the police are not your friend and can sometimes take that refusal in a negative way and try and hit you with a refusal.
Hence, this is a dangerous proposition and I always advise to error on taking the test, so you do not end up losing your license for a year.
When it comes to DUI defense, I always like to get the client into the office from the beginning and lay out all of the details related to their case and figure out a game plan that works for them and their scenario.
Once you know what you are facing and what you can do to help your situation, I have noticed that you regain a sense of control and peace of mind back and it just make the process that much easier.
Last, I have a goal of making sure that the client understands what they are up against and trying to make the process as smooth and painless as possible.
I believe if you have a DUI you should do it once, do it right and never do it again!