Tuesday, August 27, 2013

What to do if you are pulled over on suspicion of drunk driving

August 27, 2013: I get asked this question all the time after people realize I am an Orange County DUI Lawyer, "hey Attorney Patel, what do I do if the cops pull me over after I've been drinking?" Well, as a preliminary matter, let's set two things straight. It is not illegal to "drink and drive" in California. It is illegal to drive while "under the influence" of alcohol and/or drugs or drive with a blood alcohol concentration of 0.08% or more. Having said that, the wisest move is to simply not drive while you're impaired by alcohol by designating a driver or finding some other safe alternative (taxi, motel).

Now, just say you have been drinking beers, say for a couple of hours, perhaps a quick shot in there too for good measure, and decide to drive home. You're subsequently pulled over for speeding and the police officer smells alcohol on your breath. What do you do now? Here are my top 5 suggestions if you are pulled over by the police after you've been drinking and she suspects you may be DUI.

  1. Be cooperative and respectful with the police officer(s)!!! I cannot emphasize this enough. Your level of cooperation, disruptive behavior, etc., will all likely be noted in the "Officer's Narrative", which in turn gets forwarded to the District Attorney's Office if you are to be charged. Depending on a host of factors, the DA might be willing to reduce the charge or even dismiss it.
  2. Now being cooperative with police does not entail that you should comply with all his "requests". You have no legal obligation whatsoever to take the Field Sobriety Tests or FSTs. These tests are designed to "fail" you and have shaky scientific foundations at best. Remember, you DO NOT need to take the Field Sobriety Tests, but decline so respectfully.
  3. Now, other than basic facts like your name, politely decline to answer questions about what you had to drink, when you were last drinking. Your answers will come back to haunt you.
  4. Refuse to take the Preliminary Alcohol Screening Device (PAS) test. This is the hand-held device the police officer will use by the roadside. You DO NOT need to submit to this test. However, keep in mind, when taken to the police station (or hospital in some cases), YOU MUST take either a blood, breath, or urine test pursuant to implied consent laws of California. You refuse the police station chemical tests, you will not only automatically lose your license for one year, you will also still be charged with DUI pursuant to VC 23152(a).
  5. Last, but most certainly not least, if charged with a DUI, strongly consider hiring an Orange County DUI Lawyer. Not only will an experienced DUI lawyer be in the best position to assess your case, he will be able to perhaps negotiate a reduced charge, reduced sentencing terms (i.e. no jail time) if you plead guilty, or perhaps even secure a dismissal or not guilty plea should your case go to trial. There are a myriad of defense strategies available and only an Orange County DUI Defense Attorney will know what strategy to employ and what defenses might be available given the facts and circumstances of your case.
If you or a loved one has been arrested on suspicion of Driving Under the Influence, don't wait too long to speak to a lawyer, you only have 10 days to request a DMV hearing (which can be used quite advantageously) which is the only way to prevent your license from automatic suspension. If you need to speak to a DUI lawyer, call 949-440-3240 or visit www.patelduilaw.com.

Tuesday, August 13, 2013

The Importance of a DMV Hearing after a DUI Arrest

When you are arrested for an Orange County DUI, it is critically important that you (or hopefully your Orange County DUI Lawyer) request an Administrative Per Se or APS hearing within 10 days of your arrest. At an APS hearing, the DMV will decide whether or not to suspend your driving privileges based on evidence received from the arresting agency. After the 10 days have passed, in almost all instances, you forgo your right to a DMV hearing. It is also important to note that a DMV hearing is independent of a court trial or proceeding, thus a Public Defender (assuming you qualify) will be of little help if you value your driving privileges since they will not appear on your behalf at the DMV hearing.

So what happens at an APS hearing and what's so important about it. At an APS hearing, a DMV employee will decide whether the department has enough evidence to suspend or revoke a persons driving privileges. Specifically, the DMV will determine the following:

1) Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 (DUI under 21 years age with BAC > 0.05%), 23152 (regular DUI), or 23153 (DUI with injury)?
2) Were you placed under lawful arrest?
3) Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

If the evidence proves all of the elements above, then the DMV will suspend the persons license for 4 months, assuming the individual has no prior DUI violations within a 10 year period. After serving a "hard suspension" of 30 days, an individual is eligible to receive a "restricted" license, enabling the person to drive to/from home and work and an approved alcohol program.

There are several important reasons to schedule an APS hearing. First, the driver or his attorney can access to "discovery" (evidence against you), much earlier than when the district attorney will provide it (in most instances). This allows an DUI attorney to fully examine the evidence prior to your arraignment at the criminal phase of the proceedings (which has several advantages in addition to early access). Second, your DUI Lawyer will be able to subpoena the arresting officer to the hearing. For a fee generally hovering around $250, the police officer will be required to attend the APS hearing and will go on the record concerning the events surrounding your arrest. This is important chiefly because if you decide to take your matter to trial, then your attorney will be able to "impeach" or discredit the officer's testimony at trial by comparing his statements he made at the APS hearing to those on the witness stand at trial. Third, and most obviously, you want to do all you can to preserve your privilege to operate a motor vehicle. If you do not request an APS hearing, then the DMV will automatically suspend your license after 30 days (when you're arrested on suspicion of DUI, the officer will hand you a "temporary license" good for 30 days). Last, by requesting the APS hearing, the DMV will "stay the suspension" of your driver's license following the results of your APS hearing. Depending on which Driver Safety Branch has jurisdiction over your matter, your APS hearing might not occur for 2-3 months, giving you valuable time to sort out your affairs before a potential license suspension.

If you have been arrested on suspicion of driving under the influence of alcohol and/or drugs, time is critical as has been shown above. Contact an Orange County DUI Lawyer at 949-440-3240 to see how he can help you avoid the serious consequences of a DUI.