This is because experienced California DUI defense attorneys know that if the officers do not follow strict rules and regulations with respect to these checkpoints, any arrests that they make will be considered unlawful.  And if an arrest is unlawful, the subsequent charges will most likely be dismissed.

The Rules and Regulations that Govern Sobriety Checkpoints

1. Supervising officers must be in charge

Supervising officers (as opposed to field officers) must determine where, how, and when California sobriety checkpoints will operate.  Supervising officers usually determine where these checkpoints will be held based on what areas have the highest concentration of DUI-related accidents and/or arrests.

This regulation also includes establishing the criteria for how cars will be stopped.  For example, the supervising officers must determine ahead of time whether field officers will stop every car, every third car, every fifth car, etc.

2. The sobriety checkpoint must be reasonably located

The location of the DUI roadblock must be reasonable.  This means that the sobriety checkpoint must be in a location where there is a high incidence of DUI-related accidents or arrests.  It also means that the supervising officers must consider everyone’s safety when choosing where to set up a sobriety checkpoint.

3. DUI roadblocks must be publicly advertised 

California sobriety checkpoints must be publicly advertised prior to the date of the roadblock and clearly visible to approaching drivers.  With respect to advertising, law enforcement websites, local newspapers, and news stations often report the upcoming checkpoint about a week prior to its operation.

With respect to visibility,

•   warning signs,
•   flashing lights,
•  adequate lighting,
•  marked police cars, and
•  the presence of uniformed police officers

typically satisfy this requirement.

4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

Perhaps one of the most interesting requirements is that you must have the opportunity to drive away from the checkpoint if you don’t wish to stop.  If you choose to exercise this right, you cannot legally be stopped for doing so unless you (1) commit a traffic violation, or (2) display signs of obvious intoxication.

When I have a client who is arrested at a California DUI checkpoint, I not only investigate the charge that he/she was driving under the influence…by exploring all the ‘typical’ California DUI defenses…but I also critically examine the sobriety checkpoint itself to see if all of the legal requirements that relate to these DUI traps are satisfied.  When they are not, I may be able to use these fatal flaws to get the drunk driving case dismissed. Call my office today at (619) 238-1905 for a free consultation.

The Fourth Amendment to the U.S. Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The search and seizure provisions of the Fourth Amendment are all about privacy. The Fourth Amendment applies to a search if, and only if, a person has a valid “expectation of privacy” in the place or thing being searched. In order for there to be a legitimate expectation of privacy, any reasonable person would have to also expect privacy given the same circumstances. If you do not have a reasonable expectation of privacy in the place searched or in the items seized, there is no Fourth Amendment violation.

On the other end,  the Fourth Amendment does permit searches and seizures that are considered reasonable. This means that the police may conduct a search, regardless of your privacy concerns, if:

• they have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or;
• the particular circumstances of your case justifies the search without a warrant.

A search warrant permits California police to search you, your home, your car and any other specified area that they suspect has evidence of illegal activity. The search warrant allows them to seize that evidence if they find it. It is up to the defendant to prove that the search was illegal. They can do this by:

• proving that the officer who requested the search warrant purposely misled the judge about the facts justifying the warrant;
• proving that the warrant was not specific enough with regards to the place to be searched or the things to be seized;
• and/or proving that the judge who issued the warrant made a bias decision and did not contain a neutral role.

However, police are permitted to conduct searches without a warrant, in the following situations:

1. “Exigent circumstances.” These are circumstances that would cause a reasonable person to believe that entry (or other relevant action) is necessary to prevent physical harm to the officers or other people, the destruction of relevant evidence, the escape of the suspect, orsome other consequence.
2. When a person freely and voluntarily consents to a search.
3. Inspections: security searches, border searches, health inspections, and California DUI sobriety checkpoints/ driver’s license checkpoints (part of the “automobile exception” to warrant-less searches).
4. The “automobile exception”. For the most part, the automobile exception provides that warrant-less searches of automobiles are permitted when the police reasonably believe a vehicle holds evidence of a crime. It is based on the fact that drivers have a reduced expectation of privacy in a car and that cars are mobile, allowing the chance for evidence to be easily moved and destroyed.
5. The “plain view” doctrine. Once the police have the authority to search an otherwise “protected” area, the police are permitted to seize any items that are in “plain view” where there is probable cause to believe that the item is evidence.
6. There is no reasonable expectation of privacy. If one does not have a reasonable expectation of privacy in the place searched or items seized, there is no Fourth Amendment protection.
7. Immediately following an arrest. At that time an officer is allowed to search the arrested individual and the area “within the individual’s immediate control” in order to seize any weapons or evidence.

So what happens if a police officer conducted a search illegally and violated your fourth amendment rights? If a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This is known as the “exclusionary rule.”

The “fruit of the poisonous tree” doctrine stems from the “exclusionary rule.”  It states that any evidence obtained during an illegal search, cannot be used to obtain other evidence. The “tree” would be the evidence that was illegal seized first, and the “fruit” would be any evidence seized because of the “tree.” For example, if the police unlawfully searched a home and found a key to a gym locker (tree), and then later found drugs in the locker (fruit), both would be inadmissable at trial.

Although the evidence is inadmissable, some defendants believe that if they can show that a search was illegal, the case must also be dismissed. Unfortunately, this is not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. If the case does continue, the judge can later use the evidence when deciding sentencing. It can also be used against you in civil and deportation.

                                     

There is no such thing as an open and shut California DUI case…there just isn’t.  The prosecution could charge you with

• driving with a BAC of .20%,
• causing an accident, and
• being so drunk that you could barely stand, let alone drive a car.

And yet even assuming these facts are true…which they typically aren’t…there are still a number of DUI defenses that could result in reduced or even dismissed DUI charges.  This is why is it always critical to consult with an experienced California DUI defense attorney before making the decision to plead guilty.

As top San Diego DUI defense Lawyer William Daley explains, “I’ve seen people plead guilty to DUI because they felt the evidence against them was insurmountable.  Let me tell you, that’s rarely the case.  Even if they don’t know it, people can be falsely arrested for and wrongfully accused of DUI.  It’s my job to evaluate the evidence to see how I can help beat the DUI charge.”

In this article, a San Diego Criminal Defense lawyer will summarize 20 defenses that can help you beat your California DUI charges.   If you have additional questions or would like to speak with a California DUI defense attorney, we invite you to contact us.

20 Ways to Beat Your California DUI Charges

1. California DUI breath testing is subject to a wide variety of errors

California DUI breath tests are subject to a wide range of errors.  These include (but are not limited to)

• instrument malfunction,
• improper handling by the police,
• your physiological conditions (such as GERD or your diet, both of which are discussed below), and even
• outside environmental factors (such as radio frequency interference, which is also described below).

While DUI breath testing is the most common way to measure one’s BAC, it’s not always an accurate one.  This is because of the fact that a DUI breath test doesn’t directly measure the amount of alcohol in your blood.  It measures the amount of alcohol present in your breath and then converts that amount to determine the amount of alcohol in your blood.  As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading.

2. Mouth alcohol can alter the accuracy of your California DUI breath test

DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue (otherwise known as “alveolar air”).  When residual alcohol lingers in the mouth…either because

• dental work trapped small amounts of alcohol-soaked food in your teeth,
• you burped or regurgitated, or
• you suffer from GERD, acid reflux or heartburn (discussed below)…

the breath test instrument captures “mouth alcohol” rather than simply aveolar air.  As a result, mouth alcohol can trigger a falsely high BAC reading on a California DUI breath test.

3. Medical conditions such as GERD, acid reflux, and/or heartburn can contaminate your DUI breath test results

• Gastroesophageal Reflux Disease (more commonly referred to as “GERD”),
• acid reflux, and
• heartburn

are all recognized medical conditions that create possible mouth alcohol situations.  This is because these conditions produce a flow of acid that travels from the stomach into the mouth.

When this occurs just prior to or during a DUI breath test, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure.  As a result, GERD, acid reflux, and/or heartburn can cause a falsely high BAC on a California DUI breath test.

4. A low-carbohydrate, high-protein Atkins-style diet or conditions such as diabetes or hypoglycemia can trick a DUI breath test and result in a false high BAC

Self-imposed conditions such as Atkins-style diets and medical conditions such as diabetes and hypoglycemia are actually capable of self-producing isopropyl alcohol.  This is because bodies that are deprived of carbohydrates turn to stored fat for energy.  This process produces ketones.  Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol.

The problem…with respect to DUI breath testing…is that most California DUI breath testing instruments aren’t sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink).  As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC.

5.  “Rising Blood Alcohol” can mean your BAC was higher when you took the test than when you were actually driving

Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system.  If, for example, you had just recently finished drinking…and were investigated for DUI shortly thereafter…your alcohol may not have reached its peak absorption rate.  When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result.

This is because your BAC at the time of your blood or breath test is irrelevant…what is relevant is what your BAC is at the time of driving.  Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that’s what your BAC was at the time of driving…particularly if you were “on the rise”.

Prosecutors like to assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing.  We know, however, that this isn’t always the case and that rising blood alcohol is a very legitimate DUI defense.  This “on the rise” defense applies to both DUI blood testing and DUI breath testing.

6. California DUI blood testing does not necessarily offer accurate readings

There are a variety of factors that could taint the results of your DUI blood test results:

• Blood fermentation,
• improper storage of your blood sample, and
• blood contamination

are just a few of the reasons why your blood tests results might not be accurate.  This is why we say that California DUI blood testing certainly isn’t foolproof.

Depending on the circumstances surrounding the collection and storage of your DUI blood test, your California DUI defense lawyer may be able to have your BAC results excluded from evidence.  If your BAC is suppressed, your charge under Vehicle Code 23152b driving with a BAC of at least 0.08% must be dismissed.

7. Violations of Title 17 of the California Code of Regulations can compromise your BAC results

Title 17 of the California Code of Regulations sets forth the requirements for

• collecting,
• storing, and
• analyzing

DUI chemical tests.  These regulations are very specific, and any violation of California’s Title 17 can compromise your DUI BAC results.

This means that if, for example,

• it’s not a trained technician who draws your DUI blood sample, or
• if the DUI breath testing instrument that you use hasn’t been calibrated according to code,

your BAC could be excluded from evidence…or at the very least, its accuracy will be called into question.

8. If the officer didn’t have probable cause to stop, detain, or arrest you for DUI, the evidence–and the case–may get thrown out of court

Before the police can

• stop your car,
• detain you to conduct a DUI investigation, or
• arrest you for a California DUI,

they must have a reasonable suspicion or reasonable belief that you are engaged in criminal activity.  This reasonable belief is a legal standard known as probable cause.

If an officer doesn’t have the probable cause necessary before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed.  When a judge suppresses evidence, it means that the prosecution cannot use it against you.  As a result, evidence obtained without probable cause usually results in reduced or dismissed California DUI charges.

9. The officer didn’t advise you of your Miranda rights

Despite common misperception, Miranda rights aren’t always required in a California DUI arrest.  They are, however required when (1) you have been arrested, and (2) the officer is conducting a custodial interrogation.  A “custodial interrogation” takes place when an officer asks you questions designed to solicit incriminating responses after you have been arrested.

If these conditions have both been satisfied, the officer must advise you of your Miranda rights or risk having any subsequent statements excluded from evidence.  Depending on the significance of those statements, their exclusion could result in reduced or dismissed DUI charges.

10. There are innocent explanations for physical signs and symptoms of DUI

Most likely, the officer will claim that you exhibited

• red/watery eyes,
• a flushed face,
• slurred speech,
• an unsteady gait, and
• had the odor of an alcoholic beverage on your breath.

Whether or not this description is accurate, the fact is that none of these signs or symptoms necessarily means that you are DUI.

And even if you were drinking, these characteristics don’t in and of themselves indicate that you were under the influence of alcohol and/or drugs.  Additionally, innocent explanations such as

• fatigue,
• allergies,
• the sun,
• physical injury,
• illness…

can explain the physical signs and symptoms that are commonly associated with DUI.

11. California field sobriety tests (“FSTs”) aren’t accurate indicators of alcohol and/or drug impairment

Even the most reliable California field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment.  The three tests that have actual data to support their trustworthiness are only between 65-77% accurate at detecting impairment…and that’s only if they are precisely administered and scored (which is rarely the case).

And just like the innocent explanations that can account for physical signs of impairment, these same explanations can explain poor performance on FSTs.  Additionally, factors such as

• officer-induced intimidation,
• bad weather conditions,
• poor lighting,
• uneven surface conditions, and
• awkward footwear, such as boots, dress shoes or high heels

that have nothing to do with alcohol and/or drugs can cause an individual to “fail” his/her field sobriety tests.

12. DUI isn’t the only explanation for bad driving

While the police like to think that all bad drivers must be DUI, we know this isn’t the case.

• Weaving,
• speeding, and even
• erratic driving

are often a result of inattention or distraction.  Maybe you were

• eating,
• trying to play a CD, or
• trying to pick up something that dropped, or
• distracted by your passengers.

The bottom line is that DUI isn’t the only explanation for bad driving. The reality is that sober people exhibit moments of bad driving just as impaired drivers.

13. Just because your blood alcohol concentration (BAC) was over the legal limit doesn’t mean you were necessarily DUI

Blood alcohol concentration (BAC) is affected by many different factors, not just the actual amount of alcohol in one’s body.  These factors include (but are not limited to):

• errors in California DUI chemical testing equipment,
• errors in obtaining your DUI blood, breath, or (when appropriate) urine sample,
• your medical conditions, and
• when you finished drinking alcohol.

Each of these factors can independently affect the accuracy of your BAC results, so don’t let the number fool you…an illegal BAC doesn’t necessarily mean you are guilty of DUI.

14. There are inherent error rates with California DUI chemical testing

Even assuming that all testing conditions are perfect…

• the testing equipment has been properly maintained and calibrated, and
• there aren’t any physiological conditions that could adversely affect the test…

there is still an inherent error rate with California DUI chemical testing.

Experts agree that California DUI chemical testing has a +/- error rate of between 0.005-0.02%.  As a result, a California DUI defense attorney can challenge BAC results that are between 0.08-0.10%, since they could be lower than the minimum 0.08% required by Vehicle Code 23152b driving with a BAC of at least 0.08%.

15. California DUI sobriety checkpoints must adhere to specific legal requirements

If you were arrested at a DUI roadblock, there are a variety of issues that a California criminal defense attorney will investigate. California DUI sobriety checkpoints must adhere to very strict legal requirements…if they don’t, you could be falsely arrested for DUI.

These legal requirements relate to the operation of the DUI checkpoint.  Some examples include (but are not limited to):

• having supervising officers organize and oversee the checkpoint,
• making sure that the field officers follow a predetermined formula for stopping cars, and
• publicly advertising the DUI roadblock.

If/when these requirements aren’t satisfied, a California DUI defense attorney can effectively challenge your DUI arrest and subsequent charges.

16. Radio Frequency Interference (RFI) can contribute to a falsely high BAC result

Radio frequency interference (“RFI”) can cause a California DUI chemical blood or breath test to produce an erroneously high BAC.  This is because almost all electronic devices…such as those used to analyze DUI blood and breath samples…are susceptible to RFI or EFI (electromagnetic interference).

The electronic components in these instruments can be affected by nearby radio waves.  Radio transmission from

• patrol cars,
• the automatic door-unlocking devices found in crime labs,
• cell phones,
• microwaves,
• fluorescent lights, etc…

these are just a few examples of the types of equipment that are capable of interfering with DUI blood and breath testing results.

17. If you’re not exhibiting signs of mental impairment, chances are you aren’t DUI

With respect to alcohol and/or drugs, there are two types of impairment:  mental impairment and physical impairment.  Most of the impairment that officers claim people exhibit during California DUI investigations is physical.  Officers routinely testify that those arrested for drunk driving exhibit

• an unsteady gait,
• poor coordination,
• red/watery eyes, and
• slurred speech.

However, experts agree that alcohol and/or drug-related impairment always presents itself in the form of mental impairment first.  This means that if an officer testifies that you displayed physical but not mental impairment, your alleged impairment was unrelated to alcohol and/or drug use.  As a result, if you weren’t exhibiting signs of mental impairment, you probably weren’t DUI.

18. Your DUI BAC doesn’t accurately reflect your level of impairment

If a significant discrepancy exists between your BAC and your alleged level of impairment, something is wrong.  This may be the case where you either (1) reportedly exhibited no impairment, or (2) exhibited even slight impairment, but your BAC was high…by even as much as two or three times the legal limit.

When this type of situation occurs (sometimes referred to as a “disconnect” case), and your DUI BAC doesn’t accurately reflect your alleged level of impairment, the evidence can’t be trusted…something just doesn’t add up.

19. You weren’t driving

It isn’t enough for the police to prove you were under the influence…the crime is driving under the influence.  If, for example,

• you were involved in an accident and no one saw you driving the car, or
• if the police found you when you were in your parked car,

it will be more difficult for the prosecution to prove one of the key elements of a DUI: that you drove.  If the D.A. can’t prove that you were driving, you can’t be convicted of a California DUI.  And finally…

20. Even if you were DUI, police misconduct may absolve you of your DUI charges

If you can demonstrate police misconduct, then your DUI charges may have to be dismissed…even if you were actually guilty of DUI.  This is because proper police procedures must be followed.  For example,

• DUI police reports must be accurate,
• Title 17 procedures must be complied with, and
• courtroom testimony must be truthful.

If these (or any other) conditions are purposely manipulated, evidence that was illegally obtained or fabricated will be suppressed.  Depending on how severely this impacts the prosecutor’s case, he/she may choose to reduce or even dismiss your charges.

If you have additional questions about these or any other California DUI defenses, or would like to speak to one of our California DUI defense attorneys, please don’t hesitate to contact us.

California DUI checkpoints are also commonly referred to as

• DUI / driver’s license checkpoints,
• sobriety checkpoints,
• drunk driving sobriety checkpoints, and
• DUI roadblocks.

California DUI checkpoints have become more and more common as the state cracks down on drunk driving. Drivers stopped at checkpoints and found to be impaired are generally charged with Vehicle Code 23152a VC driving under the influence and Vehicle Code 23152b driving with a BAC .08 or greater.

That said, when a driver is arrested for DUI at a checkpoint, it is often possible to fight the charges successfully. For one thing, police at checkpoints typically don’t observe any “bad driving” (such as weaving). Therefore they can’t prove that the person’s driving ability was really impaired.

Second, a savvy DUI defense lawyer can sometimes challenge the validity of the checkpoint itself. If this challenge succeeds, it typically means the whole case gets dismissed.

Fighting a DUI case stemming from a checkpoint

If the California DUI checkpoint does not adhere to very specific legal requirements, your charge may be dismissed.  Some of the most common California legal defenses that apply to sobriety checkpoints include:

• supervising officers were not present or in charge of the roadblock,
• there was no adequate warning of the upcoming checkpoint,
• there was no available route for a driver to drive away from the sobriety checkpoint, and
• the multitude of additional California DUI defenses  that are available to fight your California DUI charge because if you successfully fight the underlying DUI charge, the fact that the stop was at a checkpoint becomes irrelevant.

Penalties

The penalties for a California DUI conviction are virtually the same whether your arrest originates at a DUI / driver’s license checkpoint or somewhere else.  It’s the impaired driving that is being punished, not the manner in which you are caught.

That said, there is one difference.  If you are arrested at a checkpoint for driving without a license, your car will be impounded for 30 days, regardless of whether or not you were impaired.  This is the one penalty that distinguishes checkpoint arrests…and one that has generated quite a bit of controversy (discussed below in Section 3.1. The financial incentive behind driver’s license checkpoints).

In this article we explain the laws that regulate California sobriety checkpoints by addressing the following:

1. What is a California DUI Checkpoint?

2. The Rules and Regulations that Govern Sobriety Checkpoints

2.1. Supervising officers must be in charge

2.2. The sobriety checkpoint must be reasonably located

2.3. DUI roadblocks must be publically advertised

2.4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

3. California DUI / Driver’s License Checkpoints in the News

3.1. The financial incentive behind driver’s license checkpoints

3.2. Checkpoint publicity

If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.

1. What is a California DUI Checkpoint?

A California DUI checkpoint provides officers with a scheduled opportunity to screen drivers to determine whether or not they are under the influence.  This is one of the exceptions to the rule that an officer must have probable cause  to initiate a California DUI investigation. And while the politically correct “stated” purpose of a DUI checkpoint is to deter drunk drivers , we know better…it’s to arrest drunk drivers.

The law enforcement agency that is operating the checkpoint will section off a portion of the road so that drivers ultimately merge into one or two lanes before coming to a stop.  The officer asks the driver to roll down his/her window so that they can engage in a brief discussion.  This dialogue allows the officer to evaluate whether he/she believes the driver may be driving under the influence.

Specifically, the officer is looking to see whether or not the driver fumbles when asked for his/her license and registration, and whether the officer

• smells alcohol,
• observes any alcoholic beverages, drugs or drug paraphernalia in the vehicle, or
• observes slurred speech, red-watery eyes or any other signs of physical impairment.

If the officer believes that the driver is impaired, he/she will direct the suspect to an area to perform California DUI field sobriety tests “FSTs”  At that point, a typical drunk driving investigation will ensue.  At the conclusion of the investigation, the officer will immediately arrest the driver if he/she believes that the driver is driving under the influence of alcohol or driving under the influence of drugs “DUID” in violation of California law.

And not only is the officer looking to see if the driver fumbles when looking for his/her driver’s license, the officer is also checking to see if the driver has a driver’s license.  Drivers who are driving without a license in California or who are driving on a suspended or revoked California driver’s license may also be arrested.  This topic is further addressed in Section 3.1. The financial incentive behind driver’s license checkpoints.

But just because a driver is arrested at a DUI sobriety checkpoint…even if he/she actually was driving under the influence…does not mean that he/she will necessarily be convicted of the offense.

This is because experienced California DUI defense attorneys know that if the officers do not follow strict rules and regulations with respect to these checkpoints, any arrests that they make will be considered unlawful.  And if an arrest is unlawful, the subsequent charges will most likely be dismissed.

2. The Rules and Regulations that Govern Sobriety Checkpoints

In Ingersoll v. Palmer…the landmark DUI checkpoint case…the California Supreme Court ruled that sobriety checkpoints must adhere to specific requirements in order to be constitutionally recognized.

If they do not, your California DUI defense attorney may be able to have your DUI charges reduced or even dismissed.  These requirements relate to:

• who makes decisions with respect to the operation of California sobriety checkpoints,
• when and how DUI roadblocks are operated, and
• the intrusiveness to those stopped at a DUI checkpoint.

2.1. Supervising officers must be in charge

Supervising officers (as opposed to field officers) must determine where, how, and when California sobriety checkpoints will operate.  Supervising officers usually determine where these checkpoints will be held based on what areas have the highest concentration of DUI-related accidents and/or arrests.

This regulation also includes establishing the criteria for how cars will be stopped.  For example, the supervising officers must determine ahead of time whether field officers will stop every car, every third car, every fifth car, etc.

2.2. The sobriety checkpoint must be reasonably located

The location of the DUI roadblock must be reasonable.  This means that the sobriety checkpoint must be in a location where there is a high incidence of DUI-related accidents or arrests.  It also means that the supervising officers must consider everyone’s safety when choosing where to set up a sobriety checkpoint.

2.3. DUI roadblocks must be publically advertised

California sobriety checkpoints must be publically advertised prior to the date of the roadblock and clearly visible to approaching drivers.  With respect to advertising, law enforcement websites, local newspapers, and news stations often report the upcoming checkpoint about a week prior to its operation.

With respect to visibility,

• warning signs,
• flashing lights,
• adequate lighting,
• marked police cars, and
• the presence of uniformed police officers

typically satisfy this requirement.

2.4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

Perhaps one of the most interesting requirements is that you must have the opportunity to drive away from the checkpoint if you don’t wish to stop.  If you choose to exercise this right, you cannot legally be stopped for doing so unless you (1) commit a traffic violation, or (2) display signs of obvious intoxication.⁸

When I have a client who is arrested at a California DUI checkpoint, I not only investigate the charge that he/she was driving under the influence…by exploring all the ‘typical’ California DUI defenses…but I also critically examine the sobriety checkpoint itself to see if all of the legal requirements that relate to these DUI traps are satisfied.  When they are not, I may be able to use these fatal flaws to get the drunk driving case dismissed.

3. California DUI / Driver’s License Checkpoints in the News

DUI / driver’s license checkpoints are very controversial.  Proponents claim that they act as a scare tactic and reduce the number of drunk drivers on the road.  Opponents typically claim that they

• are a waste of money,
• inconvenience too many innocent people,
• don’t yield enough results, and
• that cops shouldn’t be able to bypass the probable cause that is otherwise necessary to conduct a criminal investigation.

Because this topic generates so much buzz, there always seems to be some issue relating to checkpoints in the news.  Here are a couple of the most recent.

3.1. Rules and restrictions

3.1. The financial incentive behind driver’s license checkpoints

Earlier this year, the University of California, Berkeley reported that in 2009, DUI / driver’s license checkpoints generated approximately $40 million in revenue that was split between local law enforcement agencies and their local towing companies.

Every time an individual is arrested at a California DUI / driver’s license checkpoint for driving without a license or for driving with a suspended license, the officers conducting the checkpoint immediately impound the driver’s car for 30 days.  It then costs, on average, between $1,000 and $4,000 to have the car returned.  The tow company splits this income with the city.

In 2009, about 24,000 cars were seized at checkpoints.  That was up from 18,000 in 2008 and 16,000 in 2007.

Opponents argue that these seizures unfairly target undocumented Hispanic immigrants who are not permitted to obtain driver’s licenses but who need cars for work.

Challengers also argue that these checkpoints are illegal and unconstitutional.  This is based on a 2005 Ninth Circuit Court of Appeal decision which held that it is an “unreasonable seizure under the Fourth Amendment to impound a vehicle if the only justification is that the driver is unlicensed”.

Yet in the five years since that decision, the number of cars seized at these checkpoints has doubled.¹¹  And opponents state that the reason why is obvious – money.

3.2. Checkpoint publicity

It bears repeating that California DUI law dictates that sobriety / driver’s license checkpoints must be publically advertised prior to their operation.  As a result of this requirement, many people, law firms, businesses, etc. share this information once it becomes available…it gives a “heads up” to those who are not “in the know”.

Oftentimes, this information is disseminated via the Internet, primarily on blog sites.  Most recently, it is being offered in a “Smartphone” application.  Some lawmakers were outraged and called attention to the issue, asking the creators of the “app” to take it off the market.  As a result of the media attention, sales went through the roof!

The fact remains that the public is entitled to this information, so unless the legislature intends to repeal this requirement, it should not matter how or where checkpoints are advertised.  That said, checkpoint publicity is sure to remain a hot topic.

                                                  

DRIVING UNDER THE INFLUENCE / DUI / DWI – What You Need to Know Now:

When you are arrested on suspicion of DUI, both the Department of Motor Vehicles (DMV) and the Court will take separate action.

You are given several documents when you are released from jail, two of which are very important: 1) the Notice to Appear, which tells you when and where to appear at Court; and 2) the Suspension/Revocation Order and Temporary License (referred to as the “DS-367″ by the DMV – we refer to it as the “pink temporary license”).

Because of our great Constitution, you are automatically given the right to challenge the criminal charge of driving under the influence through the Court process. However, because driving is a privilege and not a right, the DMV does not automatically give you the right the challenge the DUI charge against yourlicense. You must contact the DMV Driver Safety Branch to set up a hearing to dispute the charge within 10 days of your arrest. Failure to do so will result in a suspension without the opportunity to dispute or challenge any evidence relating to the arrest and charges of DUI against your license.

1. What is a DMV DUI Hearing?

1.1 What are my rights at a DMV hearing?

1.2. How do I schedule my DUI DMV hearing?

2. Ten Ways to Win a DMV DUI Hearing

2.1. Presenting evidence

3. The Relationship between a DMV Driving Under the Influence Hearing and a DUITrial

4. What Happens if I Win My DMV Hearing?

5. What Happens if I Lose My DMV DUI Hearing?

5.1. Penalties for first-offense DUI

5.2. Second-offense

5.3. Third-offense

5.4 Fourth and subsequent DUIs

5.5. Underage DUIs

5.6. Out-of-state DUIs

5.7. Appealing your DMV DUI hearing decision

1. What is a DMV DUI Hearing?

If you are arrested in this state for drunk driving, the arresting officer will confiscate your driver’s license and provide you with a pink “Notice of Suspension”. This notice acts as a temporary license for 30 days. More importantly, this document also gives you notice that you are entitled to a DMV hearing to prevent this suspension but only if you request it within ten (10) days of the arrest. If you do not contact the DMV within this ten day window, you will forever lose the right to be heard.

If you do not request a hearing, your license will automatically be suspended at the end of the 30 days. At a certain point you will be eligible to reinstate your license once you

1. enroll in California DUI school,
2. submit a SR-22 insurance form,
3. pay a $125 reinstatement fee, and, in some counties,
4. in  some cases, install an ignition interlock device in your car.

It bears repeating that in order to try to avoid the suspension, you have the right to request a DMV hearing which is formally known as a Driver Safety Administrative Per Se “APS” Hearing. You only have 10 days from the date of arrest to request this hearing. If you do not request your hearing within that timeframe, you lose your right to do so.

It is important to note that you aren’t required to request this hearing. But if you do not, the DMV will almost certainly suspend your license once the 30 days expire.

If you do request the hearing, your suspension/revocation will be delayed pending the outcome of the hearing. And if you win the hearing, it may be prevented altogether.

1.1. What are my rights at a DMV hearing?

DMV hearings are much more relaxed than court trials. One clear example lies in the fact that a DMV hearing officer…who often has no formal legal training…presides over the case instead of a judge. Another is that the “burden of proof”…that is, the amount of evidence that is required to prove guilt…is more easily satisfied in a DMV hearing than in a criminal proceeding. A third is that the hearing takes place in an office…and sometimes even over the phone…instead of in a courtroom.

Yet despite these differences in formality, you still maintain certain rights during a DMV hearing.

You have the right to be represented by an attorney at your own expense. This means that, unlike a California criminal court proceeding, the DMV will not appoint an attorney for you in the event you are unable to afford your own.

At the hearing, you are entitled to

• review  and challenge evidence,
• subpoena  and present witnesses (including the arresting officer),
• cross-examine witnesses, and
• testify on your own behalf.

If you lose your hearing, you also have the right to appeal the DMV’s decision (which is discussed in Section 5. What Happens if I Lose My DMV Hearing?).

1.2. How do I schedule my DUI DMV hearing?

In order to schedule your DUI DMV hearing, you must contact your local
DMV driver safety branch office which is where your hearing will be held. These offices are different from the “traditional” DMV field offices where you go to obtain a license, renewal, vehicle registration services, etc. And remember, you must contact the office within 10 calendar days of your arrest. Your failure to do so forfeits your right to this hearing.

If you hire a private DUI defense attorney to represent you in your court case, he/she will likely request and schedule your DMV hearing for you, provided that you retain his/her services within that 10-day timeframe. He/she may also appear on your behalf, in which case you do not need to attend. And, on a similar note, many times the hearing is conducted over the phone with no personal appearances.

2. Ten Ways to Win a DMV DUI Hearing

The scope of a DUI DMV hearing is quite broad. There are a handful of issues that the hearing officer will consider:

1. Did the arresting officer have probable cause to believe you were driving under the influence,
2. did the officer place you under a lawful arrest, and
3. were you driving with a blood alcohol concentration “BAC” of 0.08% or greater?

∗It must be noted that driving with a BAC of 0.08% or greater is a separate offense from driving under the influence. The first is prohibited under Vehicle Code 23152b whereas the latter is the more general offense prohibited under Vehicle Code 23152a.

If you allegedly refused to submit to a chemical DUI blood or breath test, the last question becomes a moot point. Instead, the final questions to answer are

1. Did the officer tell you that if you refused to submit to a blood or breath test that your driving privilege would be suspended for one year or revoked for two or three years, and
2. did you, in fact, willfully refuse to submit to a chemical blood or breath test after the officer asked you to provide a sample?

2.1. Presenting evidence

After considering these issues, the DMV hearing officer will either

1. sustain the action (which means that he/she will enforce the      suspension/revocation), or
2. set  aside the action (which means that he/she will reverse the suspension/revocation). If the judge sets aside the action, it is equivalent to receiving a not guilty verdict.

The hearing officer should set aside the action and allow you to retain your driving privilege if you successfully refute at least one of the issues raised above or successfully prevent incriminating evidence from being admitted at the hearing. The facts of your specific case will determine how you or your attorney will proceed.

The following are ten examples of common DUI defenses that your savvy DUI DMV defense attorney may present on your behalf:

1. You weren’t driving –

If the officer didn’t personally observe you driving, and

a) the DMV doesn’t subpoena any witnesses who did, or

b) there is no other evidence that could reasonably establish you were driving,

the hearing officer should set aside the action against your license. Let’s say that, for example, you were out drinking and that when you went back to your car, you realized you shouldn’t be driving. You decided to “sleep it off”, so you reclined your seat and closed your eyes. A cop approaches you to see if you are okay, smells the alcohol on your breath, conducts an investigation and arrests you for DUI. This would be an unlawful arrest, since you did not drive under the influence.

2. You were arrested at an illegal DUI / driver’s license checkpoint –

Similarly, if you are arrested at a California DUI sobriety checkpoint that doesn’t conform to the strict legal requirements set forth under California DUI law, the arrest is illegal. This means that even if you were technically driving under the influence, the unlawful arrest would override that fact…and you should win the hearing.

3. The officer didn’t have probable cause to pull you over –

If the officer didn’t have probable cause to detain you for driving under the influence, the DMV must set aside the action. Your California DUI defense lawyer could argue any number of reasons why the officer lacked probable cause to arrest you. Perhaps you were

• obeying all traffic laws and were truly only pulled over because you were the      victim of racial profiling (∗racial profiling is the practice of initiating a stop based on someone’s race, ethnicity or nationality), or
• involved in an accident but didn’t begin drinking until after you returned home (which is when the officers came to interview you).

There are almost an infinite number of ways to argue that the officer lacked probable cause at the time he/she stopped you.

4. The officer didn’t conduct a proper 15-minute observation period

Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed. If the officer doesn’t strictly adhere to California’s Title 17 regulations, the arrest is subject to scrutiny.

One of these regulations is that an officer must observe the suspect for at least 15 minutes immediately prior to conducting a breath test. This is to ensure that the suspect doesn’t vomit, eat, drink, smoke, regurgitate or do anything else that may compromise the results of the test.

The failure to conduct this observation jeopardizes the results and may mean that the arrestee’s blood alcohol concentration “BAC” wasn’t a 0.08% or above at the time of driving…a fact which could result in a “win” at the DMV DUI hearing.

5. The breath testing instrument wasn’t calibrated or wasn’t working

Title 17 also regulates the maintenance and operation of breath testing instruments. Current law provides that these instruments must undergo an accuracy check every ten days or 150 “blows”. If you provided your samples on instruments that failed to adhere to these standards, your BAC may be inaccurate.

Similarly, if the instrument was malfunctioning, that, too, could produce false high breath test results. This was recently the case in Ventura County when 125 breath testing instruments were removed from the field because of suspected errors that were occurring with faulty parts and mouth pieces. The Ventura County District Attorney must now review hundreds of arrests to see if any of the convictions that were based on breath test results taken on those instruments should be overturned.

6. There were physiological explanations for your false high “BAC” level

There are a variety of reasons why you could produce a BAC of 0.08% or greater that are unrelated to the amount of alcohol that you consumed.

• High-protein, low carbohydrate diets can trigger false high BAC results,
• medical defenses like GERD, acid reflux and heartburn can produce inaccurately high BAC results, and
• residual “mouth alcohol” can act as a DUI defense may have caused a falsely high reading.

If you suffered from any of these conditions at the time you provided your breath sample, you may not have truly been driving with a BAC of 0.08% or greater, despite the results of your breath test.

7. The officer didn’t properly advise you of the consequences for refusing to submit to a chemical blood or breath test

If you refuse to submit to a DUI chemical blood or breath test, the officer must advise you that your driver’s license will automatically be suspended for one year. This admonition is in writing and the officer is supposed to read it verbatim (that is, word for word). If he/she fails to do this, you could win your DMV hearing.

Because many officers make numerous drunk driving arrests, oftentimes, they simply “go through the motions”. If the officer

• forgets to give this admonition,
• deliberately chooses not to give it, or
• recites his/her own interpretation of the admonition instead of reading it…and      confuses you to the point that you don’t know what is expected of you…or
• tells you that your refusal could result in a mandatory suspension, instead of telling you that your refusal will result in a suspension,

the action against your license could be set aside.

8. You didn’t refuse to submit to a chemical test

Perhaps you didn’t actually refuse to submit to a chemical test. Maybe you tried to “blow” but your breath samples weren’t sufficient. Maybe you weren’t offered a blood draw as an alternative. Maybe you were simply asking questions about the procedure and the officer misinterpreted your inquiries as hostility and assumed you were refusing.

If you didn’t refuse, this allegation should be dismissed. If there’s no refusal…and no BAC results…the DMV hearing officer can’t sustain the action.

9. There were fatal flaws with the officer’s paperwork

When an officer makes a DUI arrest, he/she must fill out certain mandatory reports and paperwork. If the officer forgets to sign the paperwork, writes the wrong dates on the documents, fails to report the BAC results, or records the wrong BAC results and cannot independently recall the facts of your arrest to correct these mistakes, these errors could prove fatal to the case against you.

10. You were arrested for violating the “under 21zero tolerance law” and the officer didn’t lay the proper foundation for your BAC results

Drivers who are under 21 are forbidden from driving with any measurable amount of alcohol in their bodies. This is known as California’s “zero tolerance” law. Most of the time, officers administer preliminary alcohol screening “PAS” tests to these drivers.

PAS devices are not regulated by Title 17. This means that if an officer is going to testify about the BAC level in an under 21 DUI case, he/she would need to lay the proper foundation as to why the PAS is a reliable breath testing instrument.

In other words, the officer must supply the proof as to why the PAS results should be used as evidence against the driver. Despite the fact that the officer may be able to do this, many times he/she will not know how to do this.

And…depending on the circumstances…you or your attorney may want to call witnesses to support these defenses. This may include the arresting officer, a forensic alcohol expert and/or you.

3. The Relationship between a DMV DUI Hearing and a DUI Trial

It bears repeating that…unlike your DUI court proceedings…the DMV DUI hearing is not concerned with whether or not you committed a criminal act. The hearing officer focuses exclusively on your driving privilege and on the circumstances surrounding your arrest.

That said, the two proceedings are inextricably intertwined. Favorable testimony obtained during the DMV hearing could persuade the prosecutor to dismiss your charge(s) or to offer a reduced charge as part of DUI plea bargain negotiations.

If, during a bench or jury trial, you receive a not guilty verdict on Vehicle Code 23152b…California’s law against driving with a blood alcohol concentration of 0.08% or greater…that verdict forces the DMV to reissue your driving privilege. However, a court dismissal or pleading guilty or no contest to a reduced charge does not have any bearing on your DMV license suspension/revocation.

A major difference between the DMV hearing and the DUI trial is that a trial is much more comprehensive. The attorneys have more leeway to explore a wider variety of legal defenses in an effort to fight your DUI charge.

And perhaps the most significant difference between the two is that the DMV hearing is governed by a DMV hearing officer…an employee of the DMV! A DUI jury trial is governed by a panel of impartial jurors…12 people who must unanimously agree that you are guilty before you can be convicted of drunk driving.

This is why it is so critical to have a California DUI defense attorney who has experience with DMV hearings and DUI trials. Because these proceedings are conducted in different manners…and follow different protocols…it is essential to have a lawyer who understands the differences between the two systems.

Because I have relationships and experience with so many different DMV hearing officers, I can offer my clients unsurpassed service. I understand the types of evidence and arguments that win favor with these officers. And this same service extends into the courtroom. As a DUI Guy, my relationships and experience with local prosecutors, judges and customs allow me to secure the best deals for my clients.”

4. What Happens if I Win My DMV Hearing?

If you win your DMV hearing…and the hearing officer sets aside the action…it means that your driving privilege will remain intact. It also means that this fact can be used to help obtain a better “deal” with the prosecution during DUI plea bargain negotiations. If the hearing revealed significant flaws in the state’s case, it may even convince the prosecutor to dismiss your DUI charges altogether.

But because the DMV hearing and DUI court process are nevertheless considered completely separate proceedings, a “win” at the DMV hearing does not automatically carry over to the court proceedings. For whatever reason, the prosecutor may still believe he/she has strong enough evidence to proceed to trial.

And if you are ultimately convicted of the offense in court, the judge retains the power to revoke or suspend your license. This is why it is critical to have a California DUI defense attorney who knows how to win cases at the DMV and in court.

5. What Happens if I Lose My DMV DUI Hearing?

Even if you lose your DMV hearing, your DUI attorney may nevertheless have elicited information during the proceeding that could still encourage the prosecutor to offer you a reduced plea. Certain plea bargains or a win at trial could cause the DMV to set aside the suspension even after it went into effect.

But as far as your driving privilege is concerned, the suspension/revocation will go into effect. The length and circumstances of the restriction will depend on whether it is your first, second or subsequent offense.

5.1 First-offense DUI

If this is your first DUI arrest, your privilege will be suspended for six-to-ten months. After the first month, you may be able to have the suspension converted into a restricted license that allows you to drive to and from

1. work, and
2. your California DUI school .

These are the only exceptions. And your privilege will only be converted to a restricted one once you

1. enroll in California DUI school,
2. submit an SR-22 insurance form, and
3. pay a $125 reinstatement fee.

If the DUI caused injuryto another person, the DMV may suspend your license for one year.

If you refused to submit to a chemical blood or breath test , the privilege will be suspended for one year.

∗If the DMV hearing officer finds you caused a first-offense DUI with injury or refused to submit to a chemical test, you will not have the opportunity to convert your license suspension to a restriction. This will also be the case if you were driving with a BAC of 0.01% or higher while you were already on DUI probation at the time of your arrest.

5.2. Second-offense DUI

If this is your second DUI within a ten-year period, the DMV will suspend your license for two years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.

And if your DUI only involved alcohol…as opposed to drugs or even a combination of alcohol and drugs…and there were no additional aggravating factors, such as a particularly high BAC or a traffic accident, you may be eligible to obtain a restricted license after 90 days if you

1. adhere to the conditions set forth above, and
2. submit proof of enrollment in an 18-month or 30-month California DUI school, and
3. submit proof that you have installed an ignition interlock device.

If the DUI caused another person to suffer an injury, the suspension is for three years. This, too, may be converted to a restriction after the first year, provided you comply with the procedures above.

If you refused to submit to a chemical blood or breath test, the DMV will suspend your license for a period of two years. This is because your license gets suspended one year for the refusal and an additional year for each prior DUI.

5.3. Third-offense DUI

If this is your third DUI within a ten-year period, the DMV will suspend your license for three years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.

If the DUI caused injury…and it is your third or subsequent DUI offense within the ten-year period…the suspension is for five years. This, too, may be converted to a restriction after the first year, provided you comply with the procedures above.

If you refused to submit to a chemical blood or breath test…and it is your third or subsequent DUI offense within the ten-year period, the DMV will suspend your license for a period of three years.

5.4. Fourth and subsequent DUIs

If this is your fourth or subsequent DUI within a ten-year period…which elevates it to a felony DUI…the DMV will suspend your license for four years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.

∗These penalties will all vary quite a bit for drivers who hold commercial driver’s licenses.

5.5. Underage DUIs

If you are under 21 and drive with even a 0.01% BAC, you violate California’s zero tolerance law. This type of underage DUI offense is civil in nature. The hearing officer can sustain the action upon a finding that you drove with any measurable amount of alcohol in your system.

If you lose your DMV hearing, your license will be suspended for a period of one year. If you do not yet have a driver’s license, your privilege to obtain a driver’s license will be postponed for one year.

And if you refused to submit to a chemical blood or breath test as an underage drinker, your license may be suspended for a period of one to three years, depending on how many prior violations you have for this or any other DUI-related offense. ¹⁷

5.6. Out-of-state drivers

If you were arrested for DUI in California, but you do not live in this state, you would follow the same protocol discussed above in Section 1.2. How do I schedule my DUI DMV hearing? You can have a California DUI attorney appear in person or telephonically on your behalf.

In the event that you are an out-of-state driver arrested for a California DUI, and you lose this hearing, your privilege to drive in this state will be suspended just as if you were a permanent resident.

But the fact that your driving privilege in California has been suspended will most likely affect your driver’s license in your home state as well. This is because all but five states (Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin) belong to the Interstate Drivers License Compact (IDLC).

The IDLC revolves around the concept that every driver in the country has a single driver’s license and a single driving record. States belonging to the Interstate Drivers License Compact report driving arrests (including DUIs) to each other. As a result, your home state will likely take its own action against your driver’s license if you suffer a California DUI arrest.

This is another reason why it is so important to hire a California DUI defense attorney who knows the most effective ways to convince the DMV hearing officer that your driving privilege should not be suspended or revoked.

5.7. Appealing your DMV DUI hearing decision

If you should have prevailed at your DMV hearing…and that the hearing officer simply “got it wrong”…you have the right to appeal the decision. You can ask the DMV itself to conduct a departmental review or file an appeal directly with the
California Superior Court.

Instructions and the time frame for appealing the DMV’s ruling will be found on the written form notifying you of the department’s decision. There is a $120 fee for the DMV review.

If you appeal directly to the court, you do so through a Writ of Mandate, which is a request for the court to review and reverse the final decision of the DMV. Filing a Writ on this issue generally costs between $2,500 and $3,500. If you are not satisfied with that decision, you can appeal to the California Court of Appeals.

Both procedures involve specific timeframes and deadlines and operate under a set of strict rules. As a result, it is important to hire an experienced California appeals attorney should you decide to appeal your decision.

KNOW YOUR RIGHTS!  Contact our office today for a FREE CONSULTATION.