Anthony Lowenstein

Attorney at Law
Criminal Defense

500 Airport Blvd., Suite 100 • Burlingame, CA 94010
Telephone (650) 579-6680 • Facsimile (650) 745-1010

Internet: www.LowensteinLaw.com
Email: Anthony&LowensteinLaw.com

CRIMINAL DEFENSE FOCUS ® A Lowenstein Publication © 2003

D.U.I.
Driving Under the Influence

I just got arrested and charged with “DUI”. What should I do? If you have been arrested for Driving Under the Influence of Alcohol or Drugs, there are many factors to con­sider. It is important that you receive accurate information from a qualified attorney right away. A DUI defense requires immediate attention. An attorney should fully help you understand and exercise your constitutional rights that are involved with every DUI offense.

There are two separate and distinct battles to fight, one with the Court and one with the DMV.

The D.M.V.
Department of Motor Vehicles (DMV) (also know as: the Dept. of Morons & Villains)
If you have a California driver’s license, the Police snatched your license and gave you a Pink Slip that is your temporary license for 30 days. Ok, so you can drive for 30 more days. However, if you read the fine print on the back, you will read one of the most important government notices about your license:
Your license will be suspended in one month, and
YOU HAVE 10 DAYS TO REQUEST A STAY OF SUSPENSION AND AN ADMINISTRATIVE REVIEW of your DUI.

Thus, you or your attorney need to properly notify the DMV that you wish to exercise your rights and have a DMV Review of your case within 10 days of the date of your arrest. If you do not ask for this Stay and Review within the 10 days after your arrest, you forfeit your right to the Stay and Review regardless of how meritorious your case. Of course, the Police and DMV don’t advise you of this little tidbit of information. This is one of many reasons you need a good lawyer to protect you.

At the DMV hearing, your attorney may or may not need you to attend. The DMV hearing is presided over by a “DMV Hearing Officer”, who plays the role of Prosecutor and Judge, in that they hear defense arguments, and then make their findings and rule on the evidence.

The DMV hearing is solely to determine 3 issues:

1. Did the Officer have probably cause to believe that you were driving under the influence? (i.e. – Did the Police have a valid reason to stop your car?–Speeding, run a red light, etc.)

There are constitutional requirements for the stop, detention, search, and/or arrest. Regardless of how drunk you were, if the Police did not have a legally valid reason to stop you, then all the evidence obtained is inadmissible and you win.

1. Was your arrest lawful?

As above, there are constitutional requirements for a valid arrest, which if not met, avert a finding of DUI.

1. Were you driving with a blood alcohol concentration greater than 0.08 ?

This is usually the big question. Because DUI is such a technical crime, the DMV reviews the case with methodical legal precision. Title §17 of the Administrative Code sets stringent standards of evidentiary requirements for DUI measurements. In any event, a chemical test (breath test or blood test) must be conducted within 3 hours of the time you were observed or admitted driving. For a breath or blood test, there are many technicalities where the results are not considered reliable and are thus inadmissible for the DMV hearing. Examples include:

1. For a Breath Test, if the Intoxilyzer was not calibrated correctly. The machine may be broken, not set right, or the solution may be stale giving statistically unreliable results. Your attorney should check the Intoxilyzer Maintenance and Accuracy Records, provided to all defense attorneys by law by the county crime lab. If the Intoxilyzer was not recalibrated every 10 users or 100 hours, or if the Officer who administered the test was not trained on the machine in the last 5 years, the results are inadmissible. It is not unusual that the crime lab issues a notice that a certain Intoxilyzer was not functioning properly during a certain period – and all results for all subjects tested are unreliable! Furthermore, the results are not admissible if the Officer cannot confirm that you were breath-tested within 3 hours of the observed driving. The results are also not admissible if the Officer does not watch you for period of 15 minutes prior to the test to ensure that you do not eat, smoke, chew gum, belch or otherwise taint your breath sample.

1. For a Blood Test, the toxicologist must follow Title 17 procedure and use a different preservative in the test tube than the one normally used by hospitals. If those procedures were not used, the results are not admissible.

Often, evidence can be shown and an Expert Toxicologist can testify that given your drinking pattern, your blood-alcohol concentration was likely below 0.08 at the time of driving. Expert Toxicologist study the absorption and oxidization rate of alcohol. After telling your attorney your exact drinking pattern, s/he can tell you if it raises certain technical defenses to the DUI charge.

License Suspensions / Restrictions
Once your attorney files your request to the DMV for a Stay of Suspension and Administrative Hearing (within 10 days), , you may continue to drive with your Pink Slip until your attorney or the DMV tells you otherwise. The DMV Hearing is usually about 1-2 months after the arrest, and after the DMV Hearing, the DMV Officers renders an opinion usually in 2-4 weeks.
If the DMV Officer finds in your favor for any of above 3 issues, you win and the DMV sends you back your license and an apology.

If you lose your DMV hearing, or (don’t ask for one within 10 days), then your license will be suspended for 1 month, where you may not drive at all. After this 1 month “hard” suspension, you have a choice. Either you can wait another 3 months of not driving at all (for a total of 4 months) and then get your license back, or you can immediately apply for a Restricted License. This Restricted License allows you to drive to and from and in the course of your employment and to an Alcohol First Offender Program (FOP) (described below). This is preferable for most people who need to drive to make a living, or otherwise transport themselves or others. As a side note, if you drive on a Restricted License, as long as you have a remotely realistic claim that your driving has something to do with work, you can pretty much drive wherever you want. Just don’t be caught at the beach with a surfboard in your backseat (unless you’re a professional surfer and surfing is part of your job).

After 5 months, you can go the DMV and have the restriction removed so you have your full license back.
In order to get your license, either full or restricted, you need to bring 3 things to the DMV:
(1) Proof of Insurance (SR-22 form); (2) Proof of Enrollment / Completion of a an Alcohol First Offender Program (FOP); and (3) $100.00 reissue fee.

THE COURT

In addition to the D.M.V. consequences of DUI, in California, DUI is considered a misdemeanor crime and is thus prosecuted like any other misdemeanor crime (like petty theft etc.). Thus DUI goes through the same criminal procedure as any other case. There is an Arraignment where you must plead Not Guilty and a Pre-trial conference where your attorney meets with the District Attorney and Judge and attempts to negotiate a plea bargain, and if one is not reached, then you are entitled to a trial by jury.
For DUI, why are there two (2) charges?
When suspected of DUI, the court charges you with a violation of:

1. Vehicle Code §23152(A)

This is the “Driving Under the Influence Charge”. Regardless of your proven Blood-Alcohol content (BAC), the court can find you guilty of DUI, if convinced that you were impaired while driving. This can be proved by the presence of some alcohol and the Police Officer’s observations of your driving and your performance on the Field Sobriety Tests (FSTs). Your lawyer can defend this charge by showing that your BAC was low (if it was) and that your driving was consistent with normal driving and that you performed well on your FSTs.

1. Vehicle Code §23152(B)

This is the Blood-Alcohol Content (BAC) charge. Here the court is specifically charging that you were driving a vehicle while your BAC was ≥ 0.08. The proof for this is very technical and can be defended in similar ways to defending a DMV Hearing, as described above.

What if I plead guilty or am convicted of DUI?
If convicted of DUI, the court imposes the following penalties:

1. 2-10 Days County Jail

Note that this time does not necessarily have to be spent behind bars. Most defendants can work on a Sheriff’s Work Program (SWAP) instead of Jail. The Sheriff’s work program usually has you perform token unskilled work like picking up garbage or raking leaves from 9-5. Then you can go home and each day counts as one day in Jail. Often SWAP can be done on weekends, so you don’t miss work, family, or other obligations. Thus most people prefer SWAP if eligible.

1. Fines of $1500.
2. 3 Years Court / Informal Probation. This does not mean that you have to meet with a Probation Officer. It just means that for 3 years, you must obey all laws (which you need to do anyway) and also not drive with any measurable amount of alcohol in your blood. That is zero tolerance for 3 years. If you drink, don’t drive; and if you drive, don’t drink.
3. Attend an Alcohol First Offender Program (FOP). This is a 3 month program where you attend a 2 hour class once a week. No you can’t do it over one weekend. You must take it over 3 weeks. It’s actually not so bad. Most people while inconvenienced that they must take this class, once there, find it helpful to learn about DUI, and re-evaluate their relationship with alcohol in their lives. But either way, the FOP is necessary because as stated above the DMV will not give you back your license (ever) until you take the FOP. Thus you are killing two birds with one stone. Enroll in the FOP.
4. A court Driver’s License Restriction for 90 days, concurrent with the DMV suspension/restriction. This restriction allows you to drive to and from and in the course of your employment and to the FOP, above. The key is to get any court imposed restriction to perfectly overlap with any DMV suspension/restriction so there you spend no more time prohibited from driving than is necessary.

Summary
DUI charges can be very traumatic and financially burdensome. Each case is unique and requires a thorough investigation and aggressive representation for a successful defense in all DUI cases. There are steps that can be taken so charges are dismissed, reduced, or plead to on adequate terms. The results of a DUI action depend on the facts of each individual case and your strategy in reaching a conclusion. A good attorney can assist you in each of the critical stages involved in a DUI matter and give you the information necessary for you to make informed decisions about your case. If your license, your record and your time are important to you, it’s well worth it to hire an attorney to take care of your case for you.

Driving Under the Influence of DRUGS
Note that DUI almost always is for driving under the influence of alcohol. DUI actions for driving under the influence of drugs are rare. Driving under the influence of marijuana, for example, is seldom prosecuted because the active chemical THC stays in blood for so long, it is hard for toxicologists to determine whether the subject was high while driving or high two weeks ago before driving. Moreover a Police study conducted 5 years ago intending to show that drivers on marijuana were dangerous, actually showed that drivers on marijuana drove significantly better than sober drivers. Of course, this study was not widely published. Therefore most drivers suspected of driving while high are not convicted of D.U.I. However, being high or in possession of hard drugs while in a vehicle carries severe consequences of its own. First, you could be charged with possession of narcotics, being under the influence of narcotics, or possession of drug paraphernalia. Additionally, if convicted, you will lose you license for one year. Enough said. Just say No.

The Lowenstein Law Office
If you are charged with DUI in the San Francisco Bay Area call the Lowenstein Law Office at 650-245-5654 for a CONSULTATION. Having defended hundreds of DUIs, I have gained tremendous experience that can work for you. I provide total commitment to clients by providing the best legal services and Aggressive Defense at an Affordable LOW COST. This includes defending your criminal record, protecting your constitutional rights, your reputation and I take care of all aspects of your case, including the DMV Hearing and all Court Appearances.