In Preparing A Defense For My DUI Case, What Is Important Information? What Are Details To Share With My Attorney Every Time We Speak Especially In The Beginning Of My Case?
As time goes on in your case, you and your attorney will talk about different things. In the beginning, it is important to help your attorney understand what happened. Remember, your attorney was not there. Therefore, you need to give your attorney details about the people who were there during the incident, such as passengers in your car and/or passengers in another car if there was an accident. Was an object hit? Did people come out or stop to help? What happened when the police arrived and arrested you? These are details that the attorney will need.
If the case is going to a hearing or trial, it’s important for the attorney to go to the scene and see what things look like, where things are, and discern angles at different times of day or night. Most DUIs happen at night, so it’s important for the attorney to see the scene at night. But, you need help the attorney from the beginning. You need to help him or her try to picture what occurred. This information should go back to what you were doing earlier in the day. In most cases, before the police officer has you do sobriety tests or arrests you for a DUI, they’re going to ask you about what you ate, when you slept, if you are on any medication, when you started and stopped drinking, and where you were coming from. Your attorney needs to know this information, and many attorneys will ask a lot of questions.
Sometimes, jotting down notes after an incident happens to help refresh your mind is a good idea, and the more you talk to your attorney about this stuff, the more you may remember. Sometimes, you remember some things the next day, days, or weeks later. When you do, jot it down and tell your attorney about what you remember the next time you talk to them. I wouldn’t get on the phone to tell them what you remembered righty away unless it’s some critical point. Give your attorney time to be able to have a conversation with you because they may be in the middle of court, driving, a meeting, or dinner. Attorneys are usually a lot more responsive when you give them a heads up about setting up a time to talk with them.
Details that your attorney is going to want to know include drinking patterns. They’ll want to know when you started drinking, what you were drinking, how much, over what period of time, alcohol percentages, and the type of beer or wine. If you know the alcohol, we can look that up ourselves and get the information we need. We also will need to know whether you were drinking on an empty or a full stomach. Those are important questions. Other pertinent information, such as medication is also important. Your attorney will want to know the type of medication, when you took it, and how long you’ve been taking it. It is vital to remember that some medications cannot be mixed with alcohol. Medications that cannot be mixed with alcohol can have a big impact on a case and the attorney needs to know those specifics.
Furthermore, there are a lot of things to discuss about the arrest in the beginning. There will be things that the attorney may not know until they see some paperwork. At that point, they’ll see who the arresting agency is. They’ll see if it occurred in Marin County, and whether the arresting agency was the CHP, sheriff, or police department. A number of different agencies could be involved. Sometimes, you get agencies from different counties. Those things are going to be important because that can help an experienced DUI attorney. For instance, in Marin County experienced DUI attorneys know which agencies have which cameras. I was recently informed that they’re going to start having body cameras for all of their officers in Sausalito, which is in Marin County. It is south of Mill Valley, and they work together with the Mill Valley Police Department. So now, there will be body cameras on Sausalito officers, which most of the officers didn’t have before.
Finding a lawyer that understands the county that you were arrested in is important because they will know a lot of details since they deal with so many DUIs within the different agencies. You can call an attorney the second you get out of jail, but what I essentially recommend is to first hydrate and get some rest. Then, you can talk to an attorney. That is a lot more productive.
Do You Advise Your Clients, Guilty Or Not, To Start Any Sort Of Counseling, Such As Alcohol Or Drug Programs Or Meetings While Their DUI Case Is Ongoing? Could That Help My Defense?
Advising a defendant to attend an alcohol or drug program or meeting while their case is ongoing will depend on the case. Typically, if someone has prior DUIs, convictions, or run-ins with the law that involved alcohol and drugs, those are situations in which counseling is a good idea. In first offense cases or perhaps in cases where someone didn’t have a high alcohol level, an alcohol or drug program may not be necessary. However, if there was an accident, especially if an injury was caused, or if someone’s driving is horrible, and it’s going to be something that the DA is going to bring out, then an alcohol or drug counseling program may be a good idea. Group counseling, outpatient programs, inpatient programs, AA meetings a number of times a week, can be very important to a case and to one’s future.
Over the years, I’ve helped many clients who only ever got charged once for one DUI, and that was it. They became much more careful and never did something that would result in another DUI. There are plenty of people who don’t need to do programs or meetings while their cases are proceeding. And, I don’t advise everybody to do it. Certain people, in certain situations, may need to, and it may be important in negotiating your case. A lot of times, the courts will order programs or meetings when a high alcohol level is involved, or if there was an accident, injury, or multiple offenses. Usually, at minimum, the court will order AA classes or an ankle monitor on second and third offenses. I’ve had cases involving ankle monitors that will register if you’re drinking, and the defendant gets thrown in jail while their case is going on.
I’ve also had cases in which a judge would have probably required an ankle monitor, but showing the judge that my client had been doing counseling or AA meetings before the first court date was enough to keep them from having a device wrapped around their ankle while I fight the case for the next few months. Therefore, counseling, in a lot of cases, can be a very good thing. But, it’s not required in every case. To determine that, you should talk to an experienced DUI lawyer who works in the county where you were arrested. The lawyer you hire should be someone who’s been around for a long time, understands the law, knows the judges, knows the Das, knows how to defend DUI cases, and knows how to properly advise people. Your attorney should also be someone that you feel comfortable to work with and trust, and who has your best interest at the top of the stack. It’s very important to work with someone who cares about you as a person, who cares about your criminal case, and who treats you with respect. Additionally, your attorney should be very honest from the beginning about what you’re facing and what can be done to help out.
Recently, I was speaking to someone who I felt needed to be in a program if I was going to work with them. This was someone who had a very serious alcohol problem, and I could tell that they didn’t want to do the level of program and treatment that I was recommending. I let that person know what I thought they needed, and they didn’t like to hear that. But, I’m more concerned with telling someone what can help them, and not just their court case, but for their health, life, family, job, and for the safety of everyone out there. I want to help people. I want to help society. My first job is to help those I’m representing. But, if I’m telling you things you don’t want to hear, or you don’t want to do the things I advise, then perhaps I’m not the right lawyer for you. But, I will tell you straight. I am not going to sugarcoat it, and you’re going to get an honest opinion from me, whether or not you like what you hear.
At What Point In My Case Will I Have To Enter A Plea Of Guilty Or Not Guilty? Will My DUI Attorney Have All Of The Discovery Or Evidence Before We Have To Make That Decision?
We enter a plea of not guilty in almost every case. We usually do not have all of the discovery before we make the plea decision. Entering a not guilty plea at the beginning allows us time to do our investigation and determine what our defenses are. At that point, we’re going to try to find a way to win the case, whether we bring a motion, whether the case goes to jury trial, or whether we negotiate with the district attorney on the case. For example, if the arraignment, which is the defendant’s first court date, is in Marin County, I go to the court in San Rafael a few days ahead of time if the case was filed early and enter a not guilty plea. I complete a lot of paperwork at the court clerk’s office, and then, I usually get the police report from the district attorney’s office. Once I enter a plea of not guilty, I look over the discovery and the reports and determine what other discovery I need. The discovery can be records for breath machines, blood testing records, chromatograms, and chain of custody on blood testing. Every once in a while, we may want to retest the blood. I want to get all that information before deciding on whether to do a blood retest, which is something that I talk to the client about before making a decision.
As we continue the investigation, there may be witnesses to talk to and videos to review. Reviewing the videos helps clarity whether the officer had a reasonable cause to pull you over. We can determine if the arrest was good or not. We decide a lot of different things once we do our investigation and evaluation and get all the discovery.
Once we have all the discovery, and I’ve done all of my investigation, then we’re going to do one of a number of things. We’re either going to do a suppression motion, set the case for trial, or enter a guilty plea or no contest plea depending on the county. If you’re in Marin County, they require a guilty plea. In other counties, we can usually do a no contest plea, which is the same as a guilty plea for most situations. The hope is that once we come to a conclusion, once we’ve taken the case as far as we can and talked to our clients about where we’re at and what defenses would work, we’ll decide on the best option. If the decision is to take a deal, we’ll continue to negotiate the best deal that we can get. We’ll try to get the charges reduced. If the charges can’t be reduced, we’ll try to get different parts of the sentence reduced. For instance, we’ll try to get the number of days in jail reduced, which can usually be done on a work program. We’re going to try to get that number as close to zero as possible.
There are other things that we can try to negotiate, but it depends on the case, the severity of the case, the county we’re in, and a lot of other different factors. It is important to have an experienced DUI lawyer who works in the county where you’ve been arrested. It is essential that he or she is familiar with that county and knows the players involved in the court, such as the DAs, judges, and in some cases the probation officers. It’s very important to have them advocate for you to attain the best possible results. Most cases do end in a negotiated disposition. In a place like Marin County, most cases result in a guilty plea in the end.
We help walk you through the process every step of the way. It’s a long process. It takes many months, but we will keep you informed as to what’s going on. If I’m representing you, you’re welcome to call, email, or text me anytime. I get back to my clients as quick as I can because it’s very important for my clients to know what’s happening with their case and where things are at. Therefore, if you have any questions, feel free to check in with me. I will always bring you up to speed as quickly as I can.
After I Enter A Plea Of Not Guilty In My DUI Case, What Are The Next Steps As We Prepare My Defense?
As your attorney, I will enter the plea for you and take care of most if not all of the court appearances. From there, I’ll obtain the police report. If the client wants to go with me, it’s important for the client to see the reports and go over them with me because they were present at the scene. The client can see things in a report that may or may not have happened and bring those to my attention, which can help with my investigation. My investigation also includes going to the scene. Sometimes there are things at the scene that we can look at, sometimes there isn’t. If there was an accident, we can look at the different areas, the damage, and the cause. Most of the time, I go to the scene in a DUI case to look at the surface. I assess whether it’s a level surface or if there’s gravel in the area where you performed the field sobriety tests. So, was the surface gravelly? Was it a hill? If it’s an uneven or unsmooth surface, that can make the test that much harder to do. It’s also important to tell your attorney what the conditions were like. Was it cold? Was it rainy? Was it foggy? In Marin County, especially southern Marin, a lot of arrests are made when people are coming back from the city late at night or early in the morning. There can be a lot of fog and it can be cold. People don’t always have a jacket, and so, they could have been shivering at the time. Can you imagine doing these balancing tests while you’re shivering? It’s already almost impossible to do these, and yet, when you make the conditions that much tougher, people aren’t going to perform them perfectly.
When I represent someone after a not guilty plea, I collect discovery, police reports, accident reports, breath logs, and accuracy checks for the breath testing. There are usually two different machines. There is a preliminary alcohol screening called the PAS test in which you blow into after you’ve done the balancing test. You don’t have to blow into that one, but you do have to blow into the other one or do a blood test after you’ve been arrested for DUI. If you don’t or refuse the second breath or blood test, you can face a refusal charge. A refusal charge could mean a year or more of no driving depending on your specific case.
In terms of blood testing and the machines, there is a chromatograph that is used to test the blood sample. We get records on chain of custody to see where the blood went. In Marin County, a sample will be drawn from someone who gets arrested and given to an officer. The officer will tape up the box and send it to Santa Rosa. So, if your case is in Marin County, Sonoma County, or Napa County, these blood samples get sent to Santa Rosa to the Department of Justice lab.
Now, when the blood is taken and put into a mailbox, it sits there for a while. And, while there is usually a preservative in there, mailboxes get pretty hot. If it’s in the 80s, 90s, or higher in temperature, that blood is cooking. It’s almost boiling in there because it’s so hot. That is a condition that is not right. A blood sample should be refrigerated, and unfortunately, that’s not happening. So, we’re looking for that in our investigation. Procedurally, it’s something that is a big problem. But, it is something that we can use to help get a better result or to potentially win a DUI case. A lot of things that we can do after the not guilty plea is made through the investigation. Investigation is huge in this field. It’s the only way to know whether or not we can win a case or get charges reduced. Through investigation, we get to know the strength and weaknesses of our cases and determine our defense strategies. Thus, we work a lot of work on our cases and leave no stone unturned.
In addition to blood tests, I look into the calibration tests and repair logs on the breath machines because all sorts of things can happen to them. Machines are not perfect. They have margins of errors and all sorts of things can go wrong with the testing. Currently, with the COVID-19 situation, a lot of police officers are not being as careful as they should with the way these machines are working. For example, in a preliminary alcohol screening test an officer will typically put a mouthpiece in and have the persons blow into it until it clicks. But, they’re standing way over on the other side because they want to be as far away from the other person’s breath even though they have a mask on. They want to be as far away from exhale, and we don’t blame them for that. But, are you able to observe someone as well when you’re standing at a distance while trying to keep the breath away from you? Probably not.
As a result, when we see the video, we can see what happened and what didn’t happen. We can look at reports and point out, “Wait a minute! That’s in the report, but it’s not on the video,” or, “It’s not on the report, but it is on the video.” So, there are a lot of things in our investigation that we can find out. Now, if the California Highway Patrol was involved, part of the discovery is requesting the MVARS. The MVARS is the dash camera that usually records what’s happening. The MVARS can go back a minute before the patrol turns on their overheads to pull you over, and it’ll keep recording. If the officers do things right, they will keep it on your car because they usually park behind your car and do the field sobriety tests in front of their car. However, I’d say about 80% to 90% of the time, they’ll pull you over to the side of their car to do the field sobriety tests. You will do them somewhere near the police car’s passenger doors. Those cameras can be moved and should be moved. This is something that we look for in the video. The officers do not move them most of the time, and I believe that they’ve been instructed not to move them because almost none of them do.
So, what we’re given is a lack of evidence. I consider this destruction of evidence. If they do not show us the field sobriety tests, we might get some audio, but if you’re sitting on a jury, don’t you want to see how someone’s doing? Don’t you want to see how they’re following directions? How they’re doing with their balance? You want to see it with your own eyes. You want to know what’s going on. These officers have the nerve to keep what is happening out of sight by not moving the camera or by not putting the person in front of the camera. That’s just outrageous. But, it’s something that a good DUI lawyer will point out to the jury. A good DUI lawyer will help the jury understand that they were denied this evidence, and that it’s a huge part of the case. And since it’s a huge part of the case, everyone should be able to see everything. If they don’t show us what’s on camera, especially with what’s going on in our world today, these cops will continue to cover up evidence. That is not right, and something needs to be done.
I’ve spoken to local politicians about this situation, and I’ve asked them to get the individuals in-charge of these things to change their policies. Nothing’s happened yet, but I will continue to talk to those that have more influence to see if we can get some changes made because it’s really important to have that evidence. Most local cops, PDs, and sheriffs will often have body cameras. If they all have body cameras, we’re able to see a lot of the field sobriety tests. But, the problem is that a lot of those officers don’t have the mobile cameras in their cars, so we can’t see their driving. What should be happening and what would be the right way for the government to enforce DUI law, is to enforce DUI pull-overs, stops, and investigations to have the dash camera and body camera on so that every bit of an investigation can be covered. At the very least, if the CHP is not going to have body cameras, they should have the dash camera turned to wherever they decided to put someone when doing the field sobriety tests.
What Are Some Possible Defense Strategies To DUI Charges?
There are a lot of different types of defense strategies for DUI charges. The first thing to understand is what we are battling. What are we dealing with? What are we up against? In a DUI, there are typically two charges. There is an impairment charge and a per se charge. The impairment charge is given when the driver was not driving with the care and caution of a sober person. And so, they’re looking at the person’s driving, field sobriety tests, demeanor, and the conversation with the officer. The per se charge deals with whether a person was at or over a 0.08% BAC at the time of driving.
On those charges, you will often see vehicle code sections on the citation that they give you. For DUI, the charges are usually Vehicle Code Section 23152(a), which is the impairment charge, and Vehicle Code Section 23152(B), which is the per se charge. These charges require two elements. One, they need to be able to show that you were driving, and two, they need to show that when you were driving, you were either impaired or over 0.08% BAC. My job, as an attorney, when someone comes to me after being arrested for a DUI, is to find a way to show that one of these elements is not present.
The DA’s office, the prosecution, gets two bites of the apple. If they can show that you were driving impaired or were at or over a 0.08% BAC, you’re in trouble because they just need to prove one of those two charges. It doesn’t seem fair, but that’s the way the law is written. That’s what we’re dealing with. That’s why these cases are hard to defend, and that’s why you need someone who really knows what they’re doing to defend these charges. In DUI cases, the best defense that a DUI lawyer could have is if there was no driving. The reason for that is because that’s one of the two elements. The other element won’t even matter if they cannot prove that you were behind the wheel. For instance, when the officers arrive at the scene, if they cannot establish who the driver was or it’s confusing due to an accident or other situation, and the prosecution cannot determine who the driver was, that’s reasonable doubt. That is the best defense an attorney can have for these types of cases. We don’t get a lot of those, but those are the ones that have the best chance of winning.
Another defense could be reasonable suspicion when they pull you over and do a DUI investigation. For example, if someone is legally parked in a supermarket and they are just sitting in their car for a while doing nothing wrong, and an officer goes over to check things out, smells some alcohol, and does a DUI investigation, that’s lacking. It’s lacking because the officer did not see any driving, and thus, had no reason to approach this person. A more likely scenario is if an officer pulled someone over for touching one or two lane lines while driving on the freeway. That may not be enough to pull someone over because if they didn’t go all the way over the lane line with their tire, that is not a vehicle code violation. There is case law that says that if someone drives on one line for 10 seconds and drives on the other line for 10 seconds, that is not enough for an officer to pull them over and do a DUI investigation. But, for some judges, that is enough even though the case law says that it’s not enough.
If someone is weaving for a long period of time within the lanes without going over the lane lines, there’s case law that says that it is enough for an officer to pull them over. A lot of other defense strategies exist once a person gets pulled over and an officer starts a DUI investigation. The questioning that happens usually leads to asking the person to get out of the car and do field sobriety testing. Field sobriety testing, which usually goes with the impairment charge, is not always done properly. There are manuals and rules that are supposed to be followed, but many officers do not follow those rules properly. The CHP officers are usually more informed and practiced with the standardized field sobriety testing. They do a lot more training, and their job involves pulling over more people in comparison to police officer for a local police department who mostly deal with other matters, such as burglaries and domestic violence. Local police officers are more likely to have less experience giving and interpreting field sobriety tests. In those cases, we may have a better chance of showing that those tests were not done correctly.
Once someone has done their field sobriety tests, there are other defenses that exist. There is a preliminary alcohol screening device, which is usually given after the balancing test. This one is called an Alco-Sensor IV. This is used by a lot of police officers in Marin County and all over the state of California. There is a fuel cell in the Alco-Sensor IV, and we can check to make sure that the test was properly administered. We can also look at video to see if the test was performed correctly. We can see if the officer is properly trained to give the test. We can also look at the machine itself to see if it was tested, we can check when it was last calibrated, and we can verify how it did with the accuracy test. Moreover, we can look at the gas or solution that is used to show whether or not it’s working. There are a lot of things that we can look into with that machine, and if we can find something there, it may help us win a case or get a better result.
There are other tests that are done after someone has been arrested for a DUI. After someone has been arrested, they’re supposed to be given a choice of a breath test or blood test. At the moment, people are not getting these choices during these times because of COVID-19. Officers may not want to do a breath test. There’s nothing that says that they can take away your choice of test. As a result, we may be getting more motions and defenses saying that this officer violated someone’s rights, and that procedure was not followed. In some of these cases, that can lead to a dismissal or a reduced charge.
There are admonishments that the officers are required to make once they’ve arrested someone. If officers do not admonish someone properly, in some cases, we can get those charges dismissed with court and DMV. We’ll also be able to save your license, turn what would be a one-year of no driving into a regular restricted license so that you can still get to work and back, or get an interlock installed so that you could drive anywhere anytime. On the other hand, if you’re accused of refusing to do a chemical test, you could be looking at one-year of no driving, no restricted license, or no interlock device. However, there are lots of different defenses in these cases that can be used, and I could talk about them all day.
But mostly, what we’re usually looking at is the driving, the interaction with the officer and client, the field sobriety testing, the breath testing, the blood testing, admonishments, and other different factors. There is a lot of work to do for an experienced DUI lawyer in the San Francisco Bay area and Marin County area. In order to have the best chance of winning or to get the best result, it is important to enlist an experienced DUI lawyer who knows what they’re doing, who has handled thousands of these cases in the Marin County Superior Court and at the DMV. If you’re in Sonoma County or Napa County, those hearings are heard at the Santa Rosa DMV. Being familiar with how these cases work, the people involved, and what the defenses are, is critical to getting the best result for your case. That’s why you hire an expert lawyer – to get the best result.
For more information on DUI Defense, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.