ARTICLES

Article 01. Dealing with a DUI

Published on LawLink
by Angela Berry, Attorney at Law
October 8, 2009

Don't be fooled when you hear "It's just a DUI, you can handle it yourself."

The charge of 'driving under the influence' is defined in the California Vehicle Code instead of the California Penal Code. However, it is a criminal charge that carries potential jail time for a 1st offense and mandatory incarceration for subsequent offenses.

The Department of Motor Vehicles can also suspend your driving privileges. And should you get caught driving while your license is suspended for a DUI, jail time is mandated. When pulled over for suspected driving under the influence, the officer will gather evidence to establish the probable cause necessary to arrest you for the crime. This will most likely include some testing. Balance and coordination tests commonly called field sobriety tests, and a 'preliminary alcohol screening' (PAS) test will most likely be requested by the officer. Although it is generally a good idea to comply with the officer's request, many times motorists confronted with this situation are made to believe they 'must' comply. Actually, you are not obligated to do so.
Among the field sobriety tests the officer may ask you to perform are those considered “standardized”.

There are three Standardized Field Sobriety Tests (SST) the National Highway and Traffic Safety Administration (NHTSA) recognizes as scientific indicators of alcohol impairment.

      1.    Standing on one foot and balancing;
      2.       The walk the line and turn test: 
      3.        The Horizontal Gaze Nystagmus test (the officer is watching for
              involuntary jerking of the eyes, when the eyes slowly track an
              object).

Each of these “standardized” tests must be explained and administered by the arresting officer accurately in order for the tests' results to be properly indicative of substance impairment. 

A competent criminal defense/DUI lawyer must know the proper administration of these tests for proper assessment of the strength of the case against you and for effective cross-examination of the officer should the matter proceed to trial or a DMV administrative hearing.

A skilled defense attorney, who is most likely NHTSA qualified, can sometimes determine just from the face of the police report that the officer is not NHTSA qualified based on the recitation of his/her administration of the tests.  Only an experienced defense attorney would notice this.

Upon an arrest for DUI, you are obligated to take either a blood or breath test (urine if suspected of driving under the influence of drugs).   Further,  you  will  most  likely  be  jailed  at  least to “sleep it off”.   Your vehicle may also be impounded.

The arresting officer will also take your license and issue you a temporary paper license, which is valid only for 30 days unless you take action to contest the DMV’s suspension of your driving privileges.

The DMV action for suspension is independent of the criminal case and is triggered simply by the arresting officer’s declaration that he/she had probable cause to arrest you for driving with a blood alcohol level of 0.08% or greater. It is possible to get your DUI criminal matter dismissed or even achieve a “no filing” decision by the prosecuting agency, but still suffer the suspension from DMV.   It is therefore imperative to simultaneously defend both the criminal and administrative actions.

During the litigation of both your criminal and administrative cases there are many items of discovery a skilled criminal defense lawyer knows to obtain.  These attorneys also know what any given DUI arrest is worth based on the specific facts of the particular case.  Plus, they know how to successfully contest the DMV’s suspension of your driving privileges.

‘I encourage you not to ‘go it alone.’  It is important to have a competent defense lawyer guarding your rights; one who specifically knows DUI law and the pitfalls.  Angela Berry-Jacoby has been practicing criminal law exclusively, including the defense of DUI/DWI’s, for her entire career.   She is NHTSA qualified, having completed the 36-hour course.  Angela continues to successfully defend DUI’s in court and through the administrative process.

 
   Published Articles:
  01. Dealing with a DUI
  02. Tips for Car Dealers