As straight forwards as Driving Under the Influence cases may seem, they are complicated and messy but can be defended in various ways. CA Vehicle Code 23152-23229 states that a person is guilty of Driving Under the Influence (DUI) if they are found driving with a Blood Alcohol Content (BAC) of .08% or higher or if they were driving while under the influence of alcohol or drugs. Many of the arrests occur during traffic stops or checkpoints, but in both instances the officer must adhere to certain procedures in order to have a valid arrest for a DUI. These criminal cases should not be confused with DMV hearings, which is an entirely different issue unto itself.
There are two elements for a DUI as stated in VC 23152:
1. The person must have been driving.
The officer must see the person driving in order to establish a reasonable suspicion or probable cause that the driver is under the influence. If the car is parked with keys in the ignition, and the driver is intoxicated, the officer may infer that the person was driving under the influence, which could lead to an arrest and subsequent charge for a DUI offense.
2. The BAC must be .08% or higher or the driver was under the influence of alcohol or drugs.
Before an officer stops a driver, the officer must have objective probable cause gathered through his or her own personal knowledge and sensory perception that a crime is being committed by observing and gathering evidence through the facts and circumstances of the situation. Here, the police officer must observe and make a judgment on whether the driver was above the BAC limit allowed.
Defenses to DUIs:
A good DUI defense attorney is going to know what evidence and procedure that the prosecutor needs in order to convict.
1. The officer did not follow the regulated procedures in testing for a DUI by not calibrating the breathalyzer or following typical police protocol.
The defense lawyer should be asking for the testing equipment maintenance records and calibration history that was used on the defendant during the stop, in order to see if all the equipment was up to date. If the equipment was not up to day then there is a defense that the equipment used was malfunctioning.
2. The high BAC level could be attributed to medical conditions, such as GERD (acid reflux) or heartburn, which can trick the breathalyzer to showing a higher BAC level.
If the defendant actually has GERD, acid reflux, a physician’s note is required to acknowledge the medical condition. According to WedMD, http://www.webmd.com/heartburn-gerd/guide/what-is-acid-reflux-disease, acid reflux is a backward flow of the stomach’s acid into the throat thereby creating “mouth alcohol,” which shows as a higher BAC level on the breathalyzer.
3. The officer lacked objective probable cause.
As stated before, the police officer must base probable cause on their own sensory knowledge and have personally observed the person driving while under the influence for a sufficient amount of time in order to gain enough evidence for the traffic stop. An officer must write down all his observations for probable cause in a police report, and if there is any discrepancy a good defense attorney will point the flaw out.
4. Field Sobriety Tests (FST) are unreliable in determining a person’s alcohol level.
These tests are hard for a sober person and can be attributed to a person being clumsy or just having a lack of balance due to some physical condition. It must be noted that FST’s are a factor in determining whether the driver was under the influence not the deciding element.
If you have been arrested, cited, or detained for DUI it is imperative that you receive competent legal advice immediately. After being arrested, cited, or detained call The Law Offices of Bryan R. Kazarian at (714) 336-5303 today to set up a free consultation with an attorney who can give you clear and concise information about your rights.
DMV hearings are a different monster than trial court hearings. The DMV is a department in and unto itself that hears its own cases and renders its own decisions and outcomes. Yet, there is general ignorance and lack of awareness consuming the general public on the DMV procedures of a DUI arrest or charge. For instance a fact that is relatively unknown is, as stated in the California DMV website: http://www.dmv.ca.gov/dl/driversafety/, after an arrest the person charged with a DUI may not only have to appear in court but also has the option of scheduling a hearing with the DMV within ten days after the arrest. The DMV hearing is then heard by an administrator, referred to as a “Hearing Officer,” who makes a decision on whether to suspend or revoke the driver’s license. Due to the general lack of public awareness, this article’s purpose is to inform the public the differences between the DMV and trial court hearings, what the DMV looks for in determining whether to suspend or revoke your license, and the DMV procedures after an arrest.
There are two major differences between DMV and trial court hearings:
1. The DMV is its own state agency and is not obligated to follow court rulings or rules. What this means is that despite any court ruling, i.e. a acquittal or dismissal, the DMV is not obligated to follow the court’s verdict. The DMV can still suspend and/or revoke your license depending on its own investigation no matter the trial court’s outcome.
2. The DMV Hearing Officer who hears the case does not have the same legal expertise as a trial judge. What this means is that a DMV Hearing Officer is not likely to have adequate knowledge of the law and its defenses like a trial judge. The Hearing Officer’s main priority is to see if the driver was over the .08 limit when driving and if the police officer had probable cause to arrest or detain. The DMV Hearing Officer may not be receptive to some legal reasoning or defenses, but can give weight to exceptional circumstances, such as medication with a doctor’s note or other medical or physical condition, when determining whether your license should be suspended or revoked.
According to the California DMV website, http://www.dmv.ca.gov/dl/driversafety/dsadminvscriminal.htm#diff: “The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act.” The DMV Hearing Officer is concerned with whether the driver took a breath, blood, or urine test, the police officer had probable cause to lawfully arrest the driver or not, and if the driver was driving the vehicle and if the BAC levels for the driver were above .08. In other words, the major difference between trial court hearings and DMV hearings is the DMV is primarily concerned on whether or not to take away your license, not whether the driver is found guilty or innocent.
After a DUI arrest, according to the DMV website, the DMV has procedures that a person should follow:
1. After being arrested, the person has ten days to set up a DMV hearing for either an in person or telephonic hearing. If the person chooses not to have a hearing, their license is automatically suspended depending on which number and the severity of the offense, i.e. first, second, or third offense. Attorneys are able to represent you at the DMV hearings, in which a good defense attorney will know the differences between the trial court and DMV procedures.
2. Depending on the offense, a person may apply for a restricted license if the DMV Hearing Officer ruled to suspend the driver’s license. The restricted license only allows the driver from driving to and from work, and to and from DUI treatment classes, i.e. AA, NA or alcohol school. However, the DMV will only allow this with proof of SR-22 form, adequate insurance, and proof of DUI treatment classes.
Because of the various differences and nuances between a DMV Hearing and a court trial, it is important that you arm yourself with knowledge, and most importantly, an experienced criminal defense lawyer. If you have been arrested, cited, or detained for DUI it is imperative that you receive competent legal advice immediately. After being arrested, cited, or detained call The Law Offices of Bryan R. Kazarian at (714) 336-5303 today to set up a free consultation with an attorney who can give you clear and concise information about your rights.
When answering questions by a police officer, be sure to give a definitive such as a yes or no answer. Otherwise, responses such as "I guess" or "maybe" can be viewed as "yes" under a given circumstance, such as a police officer asking you to exit a vehicle to gain consent to search you, your vehicle, or any containers therein. Be sure your “no” is “no” if asked by a police officer to search your person, container in your possession or vehicle. If you have been arrested, cited, or detained for a crime it is imperative that you receive competent legal advice immediately. After being arrested, cited, or detained call The Law Offices of Bryan R. Kazarian at (714) 336-5303 today to set up a free consultation.
Since the 1990’s, Orange County has instituted courts for the express purpose of providing meaningful drug treatment to repeat drug offenders. Recognizing that repeated DUI occurrences are usually an indication of an alcohol abuse problem, the courts have established a means by which offenders can avail themselves of the aid which they truly require instead of facing potentially lengthy stays in the Orange County Jail system.
In 2007, the DUI Courts, which began only in Harbor Justice Center in Newport Beach added offices beginning with Fullerton and expanding to Santa Ana (2008) and Westminster (2009). The program has a 75% retention rate and a recidivism rate below 3% (at the time of this writing). The DUI Court Program is reserved exclusively for multiple offenders. That is, in order to qualify for DUI Court you must have previously been charged with a DUI and currently be facing a DUI charge.
In order to qualify for the DUI court program in orange county you must also agree a plea of guilty to the charge of vehicle code 23152 (A or B depending on how you were charged by the arresting officer). What this means is that even upon completion of the program, The DUI will remain upon your record for the purposes of any further violations of vehicle code 23152, as well as any other subsequent legal charges.
There are numerous fees, some more technical requirements, and other necessary programs which are required in order to complete the DUI court program, so contact a qualified attorney like Bryan R. Kazarian and find out if the Orange County DUI Court might just be the best answer to your pending DUI charge.