Tag Archives: DUI attorney

Medical Conditions that can affect your Blood Alcohol Concentration

A breathalyzer, or breath test, is used to determine the BAC (blood alcohol concentration) of a driver who has been stopped because they are suspected of driving under the influence of alcohol.

The breath test is usually performed after field sobriety tests are administered. Frequently, a breath test gives inaccurate and high results due to medical conditions of the driver or his physical circumstances.

A breath machine must test ’deep lung air’ to achieve an accurate reading. To get this air, the driver must blow continuously for five seconds or more. For some people with asthma, bronchitis or emphysema this could be an impossible task because they don’t have the capacity to blow enough air to give an adequate sample.

Asthma Inhalers

Anyone who uses an asthma inhaler should think twice before they agree to submit to a breath test. Inhalers work by emitting a mist containing a significant amount of alcohol into the lungs. On average, about one-third of the mist is alcohol.

This alcohol does not get absorbed into the blood, but stays in the lining of the lungs. From there, it gets exhaled into a breath machine and the result is an artificially high reading.

According to how breath machines work, a small amount of alcohol from an inhaler that is present in the lungs is multiplied many times over. In other words, a very small amount of inhaler alcohol present in the lungs may cause an unusually high reading from the breathalyzer.

Acid Reflux and Belching

As stated previously, the breath machine is designed to measure the amount of alcohol in a driver’s lung tissue.

Acid reflux, caused by several medical conditions, occurs when the valve that separates the stomach from the esophagus fails to completely close. When the driver belches, this defective valve allows liquids and gases to rise up from the stomach and into the throat and mouth where they are swallowed again.

Since these liquids and gasses may contain alcohol, when they are mixed with the driver’s breath and then blown into the Breathalyzer, the result can be disproportionately high.

Diabetes

A diabetic often experiences high and low blood sugar. Hypoglycemia, low blood sugar, causes the diabetic to exhibit certain symptoms such as drowsiness, slurred speech, poor motor control and disorientation. These are all symptoms that could be mistaken for drunkenness.

Hyperglycemia, elevated blood sugar, can cause Diabetic Ketoacidosis. This condition produces acetones which are present in the breath. The breath machine reads the acetones as alcohol and gives a high reading, even if you had not been drinking at all.

You probably have medical records that can back up your defense to a bogus breath test result. If you are able to show an outside influence affected the reliability of the breath test results, the State will have to rely on other types of evidence to prove that you were intoxicated which weakens their DUI case. This information can be critical to helping your DUI lawyer fight your DUI charge.

What Happens to My License After My DUI Arrest in California?

When you are arrested and charged with DUI in California, the police officer will take your license and give you a Form DS-367 (also referred to a ‘pink slip’). This paper serves several purposes: it is a notice of an immediate driver’s license suspension, it also functions as a 30-day temporary license for you as well as an explanation of the law and the DMV procedures that you must follow.

From the day of your DUI arrest, you or your DUI attorney have 10 days to contest the suspension of your license with the Driver Safety Office at the Department of Motor Vehicles (DMV).

You are not required to have a California DMV hearing, but if you do not request one, you will probably have your license automatically suspended for 4 months, 30 days from the day of your arrest. However, if you refused a chemical test, the suspension will be 1 year. Most (if not all) DUI attorneys will recommend that you request a DMV suspension hearing. You could win and have the suspension thrown out, or if you lose, your hearing you could have same suspension but you bought yourself another 30 days of driving.

Due to the work overload at the DMV, they may not be able to grant you a hearing within the 30 day window. If that happens, you or your DUI attorney should ask for (and will receive) an extension of your temporary license. You will be able to keep the temporary license until you have your hearing and the decision is handed down.

What to expect at the California Administrative License Suspension Hearing

Your DMV hearing, also called an ALS, or Administrative License Suspension hearing, will take place in front of a DMV officer who acts as the judge and Prosecutor. This officer is an employee of the DMV and will conduct the hearing like a mini-trial with no jury and different rules of evidence.

Because the hearing is not a criminal proceeding, you cannot request a public defender. You can, however, hire a DUI attorney to represent you. This hearing looks into the intricate procedures involved in your DUI case, so it is very important to have an experienced DUI attorney by your side to look for any procedural errors made by police. Many times a bureaucratic error could allow you win your case.

Both sides can present testimony, but usually the DMV officer only reads from police reports, lab results and/or the officer’s sworn statement.

What will the DMV officer want to know?

The hearing officer will want the following questions answered:

* Did you take the chemical test, or refuse?
* Did the police officer have probable cause to arrest you?
* Was the arrest lawful?
* What was your BAC?
* How did the officer handle the chemical test?
* Did the officer tell you that if you failed or refused the chemical test, your license would be suspended?

There is no Fifth Amendment protection, so your attorney may ask you not to be there to avoid you having to be called as a witness. The biggest advantage you gain is to hear the strength of the evidence that the Prosecution has and will use against you in the criminal DUI case. This is reason enough to request the DMV hearing.

You can expect the ruling within two weeks. If the DMV officer rules against you, you can appeal his decision to the DMV in Sacramento.

DUI Arrests and Miranda Rights

There are many misconceptions and false information about when the police are required to read you your Miranda Rights during a DUI stop.

What if police did not Mirandize me when they arrested me? Can I get my DUI charge thrown out? When are police required to read me my Miranda Rights? The truth is: the police are NOT required, by law, to Mirandize you during your DUI arrest.

What are Miranda Rights in the DUI framework?

In 1966, the Supreme Court ruled in Miranda v. Arizona that police officers are required to read you your rights before they interrogate you. The function of the Miranda Warnings is to make sure that you are aware of your rights under the Constitution. There are two parts:

Miranda Warnings after a DUI Arreset

• You have the right to remain silent (You don’t have to answer any of the officer’s questions).
• Anything you say or do can be used against you in court.
• You have the right to consult with an attorney.
• You have the right to have your attorney present during questioning (from this point on).
• If you cannot afford an attorney, one will be provided for you (court-appointed)
• If you choose to answer questions without an attorney present, you still have the right to stop answering questions at any time.

Confirmation of your Miranda Rights

• Do you understand each of these rights as I have explained them to you?
• After hearing your rights, are you ready to answer questions without an attorney present?

Once you have been made aware of your Miranda Rights, you can choose to answer questions from the police or remain silent and request an attorney.

The point of Miranda Warnings is to give you the right to protect yourself against self-incrimination under the following conditions: you are under arrest and the police officer conducts a custodial interrogation (meaning you are in police custody). If these two conditions are not met, then the officer is not required to advise you of your rights.

The difference between ‘investigation’ and ‘interrogation’

This is the main area of confusion for people who have been charged with a DUI and not Mirandized. If a police officer legally pulls you over, he is well within his authority to ask you things like:

• Have you been drinking?
• How much have you had to drink tonight?
• What were you drinking?
• What time did you start/finish drinking?

These questions are part of the investigation that the officer is conducting. He is trying to determine if you are impaired and need to be arrested. Most people do not realize that they are not required to answer these questions.

Once you are taken into custody and arrested for DUI, if the police want to question you about the circumstances surrounding your DUI with the hopes of getting answers that incriminate you, they must read you your Miranda Rights first.

If the police fail to Mirandize you at this point and police gain incriminating responses from you, your DUI attorney will probably win a motion to get those responses excluded from evidence.

It is important to note that if your Miranda Rights were violated, then only responses made after taken into custody will be thrown out. The police can still use field sobriety tests, BAC results, and other earlier evidence gathered against you. If you believe your rights were violated in your DUI arrest, contact a qualified DUI attorney in your area.

California Law and DUI Expungements

Depending upon which state you live in, once you are convicted of a DUI, you could be ‘out of luck’ when it comes to clearing your driving record of your DUI charge. Many states do not allow a DUI conviction to be expunged. However, California does offer you a chance to clear your record through a process known as post-conviction relief.

California Law and DUI Expungements

The California legislature has passed new laws that adjust the way DUI expungements are handled in the court system. In the past, you could get a DUI conviction expunged by completing sentence requirements and then petitioning the court. Now, you must undergo a formal hearing to resolve whether or not your DUI conviction can be expunged. It is up to the judge to decide if you will be able to have your record cleared of the DUI conviction.

Am I Eligible for Post-Conviction Relief?

California criminal offenses are classified as a felony, misdemeanor or a ‘wobbler’, which are offenses that can be brought to court as either a misdemeanor or a felony. Your eligibility to receive post-conviction relief rests on your DUI charge and the sentence you received.

You are not likely to achieve post-conviction relief if you are still on probation. However, a California DUI attorney could file a formal request to the same court you were convicted in to terminate your probation early to make you eligible.

In making its decision, the court will look at your conduct since your DUI conviction. Have you held consistent employment? Have you completed all DUI sentence requirements? Did you pay all DUI fines and/or restitution? Would justice be served by an early termination of your DUI probation?

Reduction of DWI Charges

The only felonies that are eligible for diminution are “wobblers.” Once your probation is over, your DUI attorney can file a petition with the court to reduce your felony to a misdemeanor. If the court grants the petition, your DUI felony conviction becomes a misdemeanor unless you are charged with a similar crime in the future. If you are found guilty, it will be as if the first felony was never reduced and your punishment will be greater. Also, your rights to own firearms are restricted.

DUI Expungement

Expungement of your DUI is another alternative that is available in California. You can expunge both misdemeanors and felonies, but only certain convictions are eligible. Was the initial crime committed by an adult or a juvenile? Was the conviction for a felony or a misdemeanor? Was probation offered? Was a stretch in state prison part of the sentence?

There are several benefits to having a DUI conviction expunged from your record. It can open doors to new employment, remove barriers to acquiring professional licenses and housing, not to mention give you peace of mind.

If you are seeking post-conviction relief for a DUI in California, you should consult with a attorney who has familiarity with the process. He can review your case and determine whether a DUI expungement or reduction of charges is possible and should be pursued.

Can I Get My DUI Reduced to a Lesser Charge?

You have been arrested for DUI. At first, you just wanted to put the experience behind you as quickly as possible. Pleading guilty to a DUI to get the DUI arrest and conviction behind you sounds appealing, but is it the best choice?

Every DUI arrest and surrounding elements are unique. Your individual situation may qualify you to have your DUI reduced to Reckless Driving, but the outcome is not guaranteed.

Advantages of Getting DUI Reduced to Reckless Driving

* A DUI conviction, in some states, could stay on your record for life. A Reckless Driving conviction does not carry the same social stigma as a DUI.

* A Reckless Driving conviction probably carries lower fines, but similar penalties as a DUI.

* Your insurance company may cancel your coverage if you get a DUI. One thing is certain: your rates will skyrocket with a DUI on your driving record.

* If your job requires you to drive, a DUI conviction may cause your employer to terminate you.

* A future employer may view you as a liability risk if they see the DUI on your record.

* If you were to get your current DUI reduced, and you were arrested again for a DUI in the future, then you would be treated as a first-time DUI offender.

Why Would the Prosecutor Reduce my DUI?

It is a common misconception that the judge is the one who has the power to reduce a DUI charge. In reality, only the prosecutor has the ability to modify the DUI charge.

If you are successful in getting your DUI reduced, your fines may be less, but you will face many of the same penalties. In other words, you may still be required to go to DUI School, take part in an alcohol evaluation program, and/or complete community service.

The prosecutor benefits from the deal because he averts an acquittal if the weak DUI case had gone on to trial. So, you avoid the DUI conviction, but you still get the valuable lessons on the dangers of drinking and driving and help with potential addiction issues, and the prosecutor can close the DUI case.

Can my DUI charge be reduced?

Every DUI arrest is unique. Contact a DUI attorney to review your DUI case.

* Did the police stop you because your driving indicated that you were impaired?

* Was the traffic stop lawful?

* Were any open containers of alcohol found in your automobile?

* Were you involved in an accident with injuries?

* They will request the police video of your field sobriety tests. Did you appear impaired?

* How did the police administer the breath, blood, or urine test?

* Did you refuse the chemical test?

* What was your BAC (blood alcohol concentration)?

* How much time elapsed between the DUI stop and the administration of the BAC test?

* Did you conduct yourself appropriately with law enforcement?

Many factors play a part in deciding if your DUI case is a good candidate for reduction. The only way to know for sure is to consult with a DUI attorney in your area.

How can I fight a DUI Charge?

Almost two million people are arrested for DUI every year and the majority of these people want to put it behind them as quickly as they can. They could plead guilty and accept the DUI penalties handed down by the judge. While each case is different and some are more winnable than others, many people who are faced with a DUI have the opportunity to argue the DUI charge and possibly end up with a reduced DUI charge and greatly diminished DUI penalties.

Fighting a DUI Charge

Most people who are arrested and charged with DUI are not aware that certain procedures must be followed by police officers when they are making a DUI arrest. You can always choose to represent yourself in court, but hiring an experienced DUI attorney will dramatically increase your chances of winning your DUI case.

* For you to be convicted of a DUI the law enforcement officer may have to prove that you were physically operating the vehicle, but in some states you can be convicted of a DUI if you had the intent to “operate” the motor vehicle.

* The police officer must also show that he had a viable reason to pull you over. The officer must provide this proof or the charges against you should be dropped because your constitutional rights that shield you from ‘unreasonable search’ have been violated.

* Police officers and the State must establish that there was probable cause in your DUI arrest. Attorneys for the prosecution must show that your driving ability was sufficiently impaired due to alcohol and/or drugs you had ingested. Most police officers use field sobriety tests to satisfy this burden. There are huge problems with these tests that even a novice DUI attorney may be able to prove.

* Finally, police will test either your breath, blood or urine for the presence of drugs or alcohol. These chemical tests also present problems. They must prove a ‘chain of custody’ with your sample and any missing link in that chain could greatly help your DUI case. There are other weaknesses in these BAC tests that your DUI attorney could point out to a jury.

Hiring a DUI Lawyer

Most people believe that conviction following their DUI charge is inevitable. As the information above points out, there are many possible areas of weakness that you and your DUI attorney can examine as it relates to your specific situation. With the help of a skilled DUI lawyer, you may be able to get your DUI charges reduced and/or DUI penalties decreased to community service or an alcohol education course.

It is also possible to plea bargain for a different way to deal with the charge such as mandated alcohol treatment programs or time at a sober house. An experienced DUI attorney will be able to work with you to bring about the best possible result for you so you can put this DUI arrest behind you and move on with your life.

How can I avoid jail time after a DUI arrest?

Alternative to Jail

If you have been convicted of DUI, there is a wide range of DUI penalties that you could face, including jail time. Is it possible to avoid jail time after a DUI arrest? Possible options that could serve as an alternative to spending a lengthy amount of time in jail are listed below.

Work Release

Work release allows you to work at a job site approved by the Probation Department during the day. After you complete the required hours, you will be allowed to go to your home at night.

Work Furlough

Work furlough permits you to keep your own job, but upon completion of the work day, you will go to a dormitory-style building to sleep at night. You will then be released the next morning to return to work.

Drug and /Or Alcohol Rehabilitation

In some cases, the DUI is a symptom of a drug or alcohol abuse problem. The judge may decide to send the DUI offender to a qualified substance abuse program. Talk to your DUI attorney about exploring this alternative to jail.

House Arrest

House arrest requires you to wear an electronic monitoring device, usually around the ankle. This ankle bracelet monitors the movements of the DUI offender through GPS so that authorities are alerted if they move out of an approved area. The DUI offender may be allowed to go to work, but must return home at the prearranged time.

Sober Living

This may be the best option for someone with multiple DUI convictions. The DUI offender moves in to a house with other residents who have a history of substance abuse problems. They are required to attend 12-step meetings every day, participate in household functions, and be responsible for chores that are assigned to them.

A New Law in Texas

State Representative Todd Smith along with Tarrant County Assistant D.A. Richard Alpert have drafted a new bill that, if it becomes law, would allow prosecutors to offer first-time DUI offenders mandatory counseling and probation in place of jail time. The Assistant D.A. says that alcohol-related arrests are all too common today and most of them do not involve injury or property damage. This is a way to move the more minor cases through the justice system without clogging up the courts.

Surprisingly, MADD has lent their support to this bill. MADD spokeswoman Mary Kardell said, “We want mandatory ignition interlocks for every DWI offender and that is in this bill.”

This deal does not mean that DUI charges are dropped. If the DUI offender gets arrested for a DUI again, he is charged as a repeat DUI offender.

Supporters of this bill say that it will help to clear out the courts of minor crimes so the judge can focus on more serious DUI offenders.

How do you fire your DUI Attorney?

Firing Your DUI Lawyer

If you have been arrested for a DUI or another crime, either you have been assigned a public defender by the court or you have decided to use your own money and hire a private DUI attorney.

For various reasons, you may decide that your DUI lawyer is not doing his best to represent you and you feel like you need to make a change. Whether you want to switch from a public defender to private DUI attorney, or change one private DUI attorney for another, there are steps to follow in each situation.

Public DUI Lawyer

First, you need to decide whether your disagreements with your DUI lawyer are because of his insufficient abilities or if he is giving you unpleasant, but correct advice. Public defenders are proficient in criminal law and may give a candid breakdown of their client’s situation. If this sounds like your DUI attorney, don’t mistake his blunt advice for not caring about your DUI case.

If you decide that you have legitimate concerns with your public DUI defender, make a list outlining the problems. Meet with your DUI attorney and go over your list with him to come to a resolution before you proceed in firing him.

If you still cannot work it out and you wish to get a new DUI attorney, inform the DUI court in writing to fire your public DUI defender.

What should be included in this letter? List your reasons, but be careful not to reveal any information that could help the prosecution build a DUI case against you.

The court will schedule a hearing where you must state your reasons for wanting to change DUI lawyers and answer any DUI questions the judge may have. It is important to be professional and not argue with your DUI attorney.

The judge will announce his decision either at the conclusion of the hearing or shortly afterward to limit delays in the DUI case. Be ready to tell the court if you want another public DUI defender appointed by the court, if you want to hire a private DUI attorney, or if you want to represent yourself.

Hiring a Private DUI Attorney

It is a little easier to fire your private DUI attorney. If he has not appeared in court on your behalf, you can just tell him that he is fired. If he has appeared in court for you, then the DUI lawyer has to get the judge’s permission to withdraw.

If you hire another private DUI attorney, then the lawyers will handle the paperwork and inform the judge who the new DUI lawyer will be.

Your DUI case will probably be delayed while the new DUI lawyer gets “up to speed” on your situation.

If you fire your private DUI attorney, don’t expect to get any money back. Most retainer contracts state that the fee is non-refundable.

If you decide to move in a different direction concerning your DUI attorney, it is good to convey your needs to your DUI lawyer and keep the lines of communication open so you both can stay on the same page and work together for your benefit.

DUI Penalties and Consequences

The consequences of a DUI can impact your life greatly in the short-term and the long-term. Tougher DUI laws in many states have reflected the public’s outrage at the irresponsibility of some drivers who repeatedly endanger innocent citizens.

History of DUI Laws

Over the past twenty-five years, the states have passed numerous DUI laws to try and reverse the disproportionate number of alcohol-related deaths. The legal age for drinking is now 21 in every state, and each state has also made .08 the standardized blood alcohol concentration limit.

Groups like Mothers Against Drunk Drivers (MADD) have lobbied legislatures to toughen their DUI laws. They have been successful in getting hundreds of new, harsher DUI laws passed since the early 1980s.

Two-thirds of the states have passed DUI laws that give the arresting police officer the authority to seize the license of a driver who fails or declines to take a breath test. All states have passed some sort of Zero Tolerance law that makes it illegal for any driver under the age of 21 to have any measurable amount of alcohol in their blood.

Additionally, many state legislatures have gotten much tougher on repeat DUI offenders requiring mandatory jail for a driver with multiple DUI convictions. Fines associated with a DUI arrest and the length of time of a DUI license suspension has also increased. Hardship licenses to allow DUI offenders to get back and forth from work have become harder to obtain.

Repeat DUI Offenders

Although DUI laws differ by state, repeat DUI offenders can expect certain outcomes. In most cases, the DUI penalties the judge hands down are mandated by state law. Even some first-time DWI offenders may face extended DUI license suspensions and jail time.

Many states have passed Habitual Violator laws which allow for harsher DUI penalties for someone convicted of three or more DUIs. These DUI offenders may lose their right to vote or to carry and own a gun. Some may lose their driver’s license for an extended period of time or even permanently.

States are requiring repeat DUI offenders to complete an education and DUI evaluation program. This class is more than just sitting and listening to someone lecture them on the evils of drinking and driving. The offender must first sit down with a professional counselor and go through an evaluation interview to determine what steps the driver must complete to get their license back. Then, they are asked a series of questions to establish the extent of their drinking problem.

Many states give certified counselor the power to require that the offender attend AA meetings or a medical treatment or counseling program. The DUI offender will not get their license back until they satisfy all the conditions detailed by the counselor. When they get their license back they may be required to carry SR22 insurance which costs more than regular insurance.

In addition to the DUI fines and legal fees associated with a DUI conviction, the justice system can hold drunk drivers legally responsible for hurting or killing other drivers.

When you choose to drink and drive, others are put at risk. Having a BAC of just .10 puts you at a seven times higher risk of causing a DUI accident that kills someone. This reality is not worth the risk; find a sober driver and save your finances, time, conscience and possibly someone’s life.

Should I Hire A DUI Attorney?

Some legal issues can be handled without legal representation. A DUI arrest is not one of them. The average DUI attorney handles 300 cases per year and uses the experience from these case to help you minimize the consequences of your DUI arrest.

Can I Represent Myself after a DUI Arrest?

The decision to hire or not to hire a DUI attorney has nothing to do with your level of intelligence; it is simply a matter of experience and expertise. A lawyer goes to school for a number of years and chooses a specific field of law. Their knowledge of law is then coupled with experience once they begin representing clients.

DUI lawyers understand how a courtroom operates, the documents needed and how to maneuver through the court processes as quickly as possible. Your DUI lawyer is your representative and works for you.

Things You May Not Know About Your DUI Arrest

DUI penalties can be serious and long-lasting. An experienced DUI attorney will take a look at your DUI arrest and the way the police handled the evidence. Were the field sobriety tests and breathalyzer administered properly? Was your blood alcohol concentration determined correctly? A good DUI attorney can take advantage of mistakes made by police to have your DUI charges reduced or dropped.

Things to Consider before hiring a DUI Lawyer

Multiple DUI arrests

You should definitely hire a DUI attorney if you have multiple DUI convictions; if your DUI accident injured or killed another person; if you are a professional driver who must keep your license for your job; or if you are facing time in jail or a large fine.

Second DUI Arrest

You should take a hard look at hiring a DUI attorney if this is your second arrest for DUI or if your BAC was double your state’s legal limit.

First DUI Arrest

You should hire a DUI lawyer if you are unsure of your rights, unaware of your state’s laws, or uncertain of how to proceed after a DUI arrest. Drivers who could lose their professional license from a DUI conviction should also talk to a DUI lawyer.

Keep in mind that a qualified DUI attorney can help you sort out the specifics of your DUI case. Your DUI attorney can take you step by step through the court process and help you get the best possible outcome. DUI lawyers generally offer a free consultation to review your DUI case.