Los Angeles Criminal Lawyer Blog

We are Americans living in a free society. DO NOT believe the hype that "buzzed driving is drunk driving" or that if you've had anything to drink you cannot drive. DUI laws are getting more strict and oppressive because DUI cases result in big money and return on investment for budget-constrained county governments. Do not allow this to infringe upon your right to drink responsibly and drive to and from your house or another location.

Thus, in wishing everyone a safe and happy new year, we also offer this quick-reference guide for what to do if you get pulled over under suspicion of driving under the influence.

THE NUMBER ONE RULE: DO NOT TALK TO THE POLICE. The police are NOT there to help you and they are NOT going to let you go if you seem reasonable. You are obligated to show them identification and your vehicle's registration and that is ALL. Honesty is NOT the best policy; SILENCE is the best policy. NEVER tell the police that you have consumed alcoholic beverages, NEVER tell them that you understand why you were pulled over, NEVER answer any of their questions at all. NO ONE, EXCEPT ANOTHER COP, HAS EVER TALKED THEIR WAY OUT OF A DUI. This is because the police are incentivized to make a DUI arrest and get a DUI conviction. EVERYTHING you say can and will be twisted, misquoted and then used against you in court. Beyond that, if you are talking, the cop will copy/paste the following line into his police report: "Mr/Ms ____'s speech was audibly slurred and when s/he spoke I detected a strong odor which, based on my training and experience, I determined to be an alcoholic beverage."

If you feel uncomfortable just being silent with the police, you may say the following, or, better yet, hand them the following written statement: "Officer, I am not driving under the influence, but I know my rights and I have been advised to not make any statements or take any tests unless I am arrested."

. . . which leads us to the next important area:

UNLESS YOU ARE ARRESTED, YOU DO NOT HAVE TO TAKE ANY TESTS AT ALL. This means neither a breath test or a filed sobriety test (aka "stupid human tricks").

Moreover, a police officer needs probable cause to arrest you. Your statements, your breath sample, and your filed sobriety tests are all ways for the officer to formulate probable cause. If you give them NONE of these, then it is much more likely that you will not be arrested at all. If you are arrested anyway, then it is much more likely that your attorney will be able to get your case dismissed based on a lack of probable cause.

The only exceptions to this are if you are currently on active DUI probation, in which case you are not permitted to refuse any tests or if you are under 21, in which case you must give a breath sample on a preliminary alcohol screening device. For everyone else, DO NOT TAKE ANY TESTS PRE-ARREST.

IF YOU ARE ARRESTED, all of the above rules apply except for one: under CA's "implied consent" law, you are obligated to provide a breath or blood sample if you are arrested for DUI. Failure to provide this will result in the revocation of your driving privilege for one year. Thus, in most situations, it is better to go ahead and give them the sample than to refuse. (There are extreme exceptions to this rule, such as if you have just been in a serious DUI-related accident wherein someone has been injured or killed, or already have multiple DUI convictions in the last 10 years, but in that case you should have already been advised by an attorney on what to do given various scenarios).

After you are released from custody, your best move is to then contact an experienced California DUI attorney, who, if you have followed the rules above, will give you a great chance at beating your DUI case. Do not forget about the 10 DAY RULE, which is that you have 10 days to contact DMV (or retain an attorney who will contact DMV for you) to fight the mandatory license suspension that accompanies a DUI arrest.

In the past week, two separate DUI-suspected drivers have rear-ended law enforcement vehicles in the Southern California area. First, in Bakersfield, a 23 year-old woman struck a CHP cruiser that was completing a traffic stop on another vehicle. The impact sent the CHP car into the car it had stopped.

Then, two nights later in Pacific Palisades, the two LA county Sheriff deputies were injured when a 44 year old man driving a BMW struck their car and sent it rolling down a 25 foot hill and into the ocean.

Although both drivers had the bad fortune to strike police vehicles, as with any DUI case, it's not as "open and shut" as they may appear.

In the Bakersfield incident, the driver was charged with both DUI and being under the influence of a controlled substance. Why both? Because the "substance" being alleged is not alcohol. This means that prosecutors will not be able to charge her with the "per se" DUI charge that is used in alcohol cases, i.e., driving with a blood alcohol count of .08 or higher. Instead she can only be charged with driving while impaired by an intoxicating substance.

Although it has not been revealed what substance the driver is being charged with, given the age, gender and location of this person, it is most likely methamphetamine. Specifically, she'll be charged with driving while "impaired," which is defined as "driving without the caution characteristic of a sober person." To fight this count, a good attorney will first point out that amphetamines are stimulants, meaning they might not "impair" someone for the purposes of driving at all. In fact, amphetamines were commonly given to American fighter pilots up to improve their ability to fly a plane, and are still in limited use today for that purpose.

Additionally, just because there was methamphetamine in her system, does not mean that the substance caused the accident. If prosecutors want to convict her of DUI with an accident/injuries, they must show that it was the substance that caused the driver to make the error that resulted in the collision. This might be defended by digging into the details of the accident investigation, and figuring out if the officers contributed to the accident in any way by parking in an area that was difficult to see, or slightly over the freeway fog line. The defense should also offer an alternative reasonable explanation about how the accident happened, such as that their client was texting and simply had a moment of inattention, as can happen to any driver regardless of intoxication.

In the Malibu case, similar defenses should be used. There, it appears that the driver tested above the legal limit for alcohol, but that does not necessarily make the driver guilty of causing the accident/injuries by being under the influence. Defense attorneys must take a meticulous approach to presenting the details of the accident reconstruction to assert this defense, as many jurors would be closed off to the fine-line distinctions that must be drawn to be successful with the "causation" defense, given the overall circumstances of a driver knocking a sheriff's car off of PCH and onto the beach, injuring officers in the process.

The defense attorney is always starting from a difficult position in court, and clients don't help their situations by crashing into police cars. But the bottom line in every criminal case is that the burden to prove the charges beyond a reasonable doubt is the prosecutor's burden, and therein lies opportunity for a motivated and creative defense attorney.

Many people don't realize that in America the police cannot simply block the road for the purpose of stopping and checking the sobriety of drivers. Believe it or not, this would be considered a constitutional rights violation, as some rights still rest in the hands of the people. Although in many ways we are progressively becoming more of a police state as we "voluntarily" give up small portions of our rights, little by little, we are not to the point where the government can barricade the roads on a whim for the purposes of law enforcement.

This doesn't mean the police have not TRIED to accomplish this. In fact they have, but the courts have restrained them, at the urging of good defense attorneys who have fought to protect the rights of both their clients and the general public. One such case was in a California Supreme Court case known as Ingersoll v. Palmer, in which the court ruled that DUI checkpoints are legal, but only if the police follow very strict guidelines. These guidelines include:

1) Decisions must be made at a Supervisory Level: As opposed to the whims of the officers in the field, only supervisory law enforcement personnel may make the decision to establish a sobriety checkpoint and select the site. This requirement is important to reduce the potential for arbitrary and random enforcement.

2) Limits on the Discretion of Field Officers: A neutral mathematical formula, such as every driver, or every third, fifth, or tenth driver should be used in determining who to stop at the roadblock. Again, this is an attempt to spare the general public from the whims of any individual officer attempting to stop whomever he/she feels like, under color of authority.

3) Maintenance of Safety Conditions: Primary consideration must be given to maintaining safety for motorists and officers. Things like adequate lighting, warning signs and signals and clearly identifiable official vehicles are required.

4) Reasonable Location: Again, our California Supreme Court was understandably concerned about giving too much discretion to officers in the field, and, instead, ruled that legal checkpoints must be planned in advance under policies set forth by supervisory personnel. To be legal, the sites chosen should be those which will be most effective in actually stopping drunk drivers, such as roads which have a high incidence of alcohol-related accidents and arrests.

5) Time and Duration: While there are no specific rules regarding time and duration of the roadblock, law enforcement officials are expected to exercise reasonable judgment in setting times and durations, with an eye to effectiveness of the operation and with the safety of motorists in mind.

6) Indications of Official Nature of Roadblock: The roadblock must be highly visible, with warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. This assures approaching motorists that the roadblock is authorized and legal.

7) Length and Nature of Detention of Motorists: Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication. If the driver does not display signs of impairment, he/she must be permitted to drive on without further delay. If the officer does observe signs of impairment, the driver may be directed to a separate area for a roadside sobriety test.

8) Advance Publicity: Advance publicity is important to the maintenance of a constitutional checkpoint. The Court's reasoning here is that advance notice limits intrusion upon the public's personal dignity and security because those stopped would anticipate and understand what was happening.

The CA Supreme Court also stated that motorists who want to avoid the checkpoint may not be stopped and detained merely because they attempted to avoid the roadblock. Of course, if the motorist commits a vehicle code violation or displays obvious signs of intoxication, then there is adequate reasonable suspicion to pull over that motorist, and of course officers will be watching those motorists carefully for any violations.

So thankfully, we still have the choice to avoid a government roadblock, be it in advance when planning our route or when we first notice that the road is being blocked ahead. In rulings such as the Ingersoll case and cases like it, required that advanced public disclosure of roadblocks is necessary for the roadblocks to be legal.

Thus, before you venture out for a night of social drinking, you should always remember a few things: 1. Use your common sense about whether your intoxication level is such that it's preventing you from safely driving (as a rule of thumb, use a BAC calculator and maintain the mental presence to keep track of what you're drinking); 2. Check internet resources such as the local police website or this blog for the latest information on time/location of checkpoints.

Here is a list of times/locations in Los Angeles to avoid this weekend and over the Labor Day holiday:

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Manchester Avenue and Broadway in Southeast Area;

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Figueroa Street and 9th Street in Central Area;

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Sunset Boulevard and Hoover Street in Northeast Area;

• Saturday, August 27, 2011 - DUI Saturation Patrol from 6 p.m. to 2 a.m. in West Los Angeles Area.

• Friday, September 2, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Venice Boulevard and Fairfax Avenue in Wilshire Area;

• Friday, September 2, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Topanga Boulevard and Califa Street in Topanga Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Venice Boulevard and Lincoln Boulevard in Pacific Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Western Avenue and Slauson Avenue in 77th Street Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Figueroa Street and 9th Street in Central Area; and,

• Sunday, September 4, 2011 - Sobriety Checkpoint from 3 p.m. to 9 p.m. at Harbor Boulevard and 1st Street in Harbor Area.

Enjoy your weekends, but stay safe, and if you or your friends need experienced legal representation to fight a DUI case, be sure to give us a call. When one of our clients is caught in a checkpoint, we use the Ingersoll case to put the checkpoint under the microscope and examine its legality with the goal of undercutting the State's case.