Southern California Drunk Driving Frequently Asked Questions

The following information includes frequently asked drunk driving questions. The answers stated are general in nature and are not intended to apply to every DUI defense situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. By contacting Laguna Beach, California drunk driving lawyer Barry T. Simons, you can receive a personal consultation regarding your specific criminal defense case.

What Will Happen To My Driver’s License?
The DMV will suspend your driver's license from four months to four years depending on priors and other aggravating facts unless you take immediate action.

The Temporary License that you got at the time of your release from jail in place of your Real Driver's License has a hidden time bomb: YOU MUST CONTACT THE DMV WITHIN 10 DAYS OF YOUR ARREST TO REQUEST A HEARING TO CONTEST THE SUSPENSION OF YOUR DRIVER'S LICENSE. If you make a timely request for an administrative hearing, the suspension of your license will be stayed pending the final determination of your case by the DMV. You also have the RIGHT TO APPEAL a DMV Hearing Officer’s decision against you to a real judge.

If you are going to hire an attorney, do so prior to contacting DMV. Your attorney will be able to push your hearing date back to ensure that you are fully prepared for your DMV case. Furthermore, your attorney will need to coordinate your hearing date with your defense in Court. If you are approaching the 10-day limit, call the DMV immediately to request an in-person hearing and advise them that your attorney will be contacting them to set up a date. REQUEST A STAY and take note of the person with whom you spoke. You must request a hearing through a driver safety office in the County of your arrest— DO NOT CALL A DMV FIELD OFFICE. Do not let the DMV talk you out of requesting a Hearing and getting a Stay on your Suspension!

DMV CASES CAN BE WON. Many people think that if their blood or breath test resulted in a reading of 0.08% or more they will automatically loose their license. THIS IS NOT TRUE. There are many technical/scientific and legal defenses including the failure to strictly comply with the California Code of Regulations, which can and do result in suspensions being set aside. The Law Office of Barry T. Simons has focused on finding systematic failures of government agencies to follow the rules set forth in Title 17 of the California Code of Regulations, which have resulted in successful challenges to DMV suspensions in a majority of our cases over the last ten years.

THE DMV NOW SUSPENDS FOR CONVICTIONS.As of Sept. 20, 2005, the DMV has taken over jurisdiction of all suspensions and restrictions of Driver’s Licenses. (The Court, however, retains the power to exclude a Restriction upon a proper showing) A 1st Offense DUI conviction carries a 6-month suspension. Restrictions are still available, but new regulations make it much more difficult to avoid a suspension and require a well thought out strategy by an experienced DUI Attorney. A 2nd Offense DUI conviction within 10 years of a prior offense carries a 2-year suspension that cannot be converted into a restriction for at least a year unless you are successful at both the DMV Hearing and the Court case. Winning in Court, or having your 2nd Offense DUI reduced after winning at the DMV Hearing, is critical to avoid a minimum 1-year suspension.

Now, more than ever, a multiple offender needs an attorney dedicated to DUI defense! An Attorney who specializes in DUI Defense can guide you through the legal process in ways that could substantially reduce any suspension imposed by 50-100%, even if your case cannot be won outright. Please contact the Law Office of Barry T. Simons today to learn more.

Is A DUI Conviction A Felony?
A first-time DUI conviction is normally charged as a misdemeanor, not a felony. However, if someone was injured as a result of the drunk driving, the charges can be elevated to a felony. If the injuries are serious enough, a special sentencing enhancement allegation can be filed making the DUI with injury a “Serious and Violent Felony.” If anyone dies as a result of drunk driving, one can be charged with Vehicular Manslaughter While Intoxicated or Gross Vehicular Manslaughter While Intoxicated.

If someone dies as a result of drunk driving, and the driver has a prior conviction for DUI, it is likely that he/she will be charged under an Implied Malice theory. Further, a DUI conviction will likely be raised to a felony if it is the driver's fourth DUI offense or the driver has had a prior felony DUI offense within 10-years of the new charge. Whether a DUI conviction ends up as a misdemeanor or a felony depends heavily upon the type and length of the punishment for the crime. For example, misdemeanors carry the possibility of incarceration in the county or local jail for one year or less; felonies usually require a state prison term for more than a year.

What Criminal Penalties Follow A DUI Conviction?
A DUI conviction may affix criminal penalties such as fines, jail, probation, and/or community service. There are mandatory minimum penalties for first-time offenses and increased penalties for each additional offense thereafter. Drivers with prior DUI convictions should be aware that minimums are just that! Conservative Judges and zealous Prosecutors will seek lengthy jail sentences for multiple offenders—especially for those who are still on probation for a prior offense. It is therefore critical to have an experienced DUI Attorney who is familiar with the Court you are assigned and how to avoid harsh jail sentences.

The look-back period for multiple offenses has been increased from 7 years to 10 years. Drivers with prior convictions for offenses, which were more than 7 years from the date of their prior offense, may have a constitutional challenge to the retroactive increase and should contact an Attorney who specializes in DUI Defense. The severity of criminal penalties will vary according to the circumstances of the offense that include, but are not limited to: whether the driver has a history of DUI violations, whether the driver was operating a commercial vehicle at the time of the DUI, whether the DUI violation occurred while there was a child in the vehicle, whether the DUI violation occurred simultaneously with another dangerous moving violation; i.e. reckless driving, whether the DUI violation involved a car accident in which property damage occurred, whether the DUI violation involved a car accident in which another person was injured or killed, and whether the driver was under the legal drinking age at the time of the DUI violation.

What If I Refused To Take A Chemical Test?
If you refused a chemical test or failed to complete a chemical test, you face a one-to-three year suspension from the DMV. If you are convicted of DUI and the allegation that you willfully refused to take a test is found to be true, there is a mandatory jail sentence and you will be required to attend a six-month alcohol program. You may be further compelled to have an ignition interlock device installed on your vehicle. Some Police Departments will actually force you to take a blood test even if you refuse and then use the results against you in Court. This is the worst of all possible scenarios since you will be subject to penalties for refusals and the results of the blood test still comes in at your trial.

There are many successful ways to defend a Refusal Case. The officer is required to properly advise you of the consequences if you refuse and many officers fail to give the required admonition correctly or they may confuse a driver. Officers will also improperly deny a driver the right to take and complete a breath test. The Law Office of Barry T. Simons established that a driver has the Constitutional Right to take a breath test and not be compelled to take a blood test in the landmark case of Nelson v Irvine.

Do I Need A Lawyer?
If you fall within any of the following categories you should consult an Attorney who specializes in DUI defense.

• DUI Drivers Who Injure Or Kill Others
• DUI Drivers Who Were Involved In An Accident
• DUI Drivers With Prior Convictions
• DUI Drivers Who Have Refusals Alleged
• DUI Drivers Who Have Levels Of 0.15% or Greater
• DUI Drivers Who Hit And Run
• DUI Drivers On Probation
• DUI Drivers Under The Age Of 21
• DUI Drivers Who Were Speeding In Excess Of 30-Mph Of The Posted Speed Limit
• DUI Drivers Who Have Children Under 14-Years Old In The Vehicle
• DUI Drivers With Medical Conditions That Could Affect Field Sobriety Testing
• DUI Drivers With Medical Conditions That Could Affect Chemical Testing
• DUI Drivers Who Were Stopped By Police Within 1 Hour Of Last Drink
• DUI Drivers Who Were Stopped At Checkpoints
• DUI Drivers Who Were Stopped By Police Without Cause or Reasonable Suspicion
• DUI Drivers Who Feel That They Were Not Impaired By Alcohol Or Drugs
• DUI Drivers Arrested For Driving Under The Influence Of Prescription Medication
• DUI Drivers Who Have A Low BAC (0.10% Or Lower)
• DUI Drivers Who Risk Job Loss If Drivers License Is Suspended Or If Convicted Of DUI
• DUI Drivers Who Hold Commercial Licenses

Judges in many Southern California Courts will treat some of these drivers differently, from their initial appearance in Court to the final sentence that is imposed. Some of these differences are required by law, such as mandatory minimum jail sentences for certain offenses or for multiple convictions; others are at the discretion of the individual judge. Many judges will set additional bail for multiple offenders and remand them into custody until a bond is posted. Drivers who are currently on probation will have their probation revoked and a probation violation hearing will be set. A probation violation for a prior offense could lead to additional jail time. Drivers with high levels may be required to attend Alcoholics Anonymous Meetings (1-7 Meetings per Week) as a condition of release until the case is over.

Can Field Sobriety Tests Be Challenged?
The gymnastics that you were asked to perform on the side of the road under abnormal conditions were not designed to objectively determine whether you were in fact impaired by alcohol. Police and prosecutors use them to collect evidence against you. They cannot be passed. They are judged by negative scoring; thus, you get no credit for doing things correctly. You can do a test perfectly and still fail the test because the Officer thought you performed in a "slow deliberate manner."

Police in Southern California routinely use field exercises that were rejected after exhaustive studies under expensive federal grants. These include the following: THE ALPHABET TEST; THE FINGER COUNT TEST; COUNTING BACKWARDS; TOUCHING FINGER TO NOSE TEST; MODIFIED BALANCE TEST—ESTIMATE 30 SECONDS WITH EYE CLOSED AND HEAD TILTED BACK.

These Field Sobriety Tests are not scientific or reliable. In almost every case in California, these tests are conducted by police officers in a manner which is not approved by the National Highway Traffic Safety Administration.

Proper cross-examination of the arresting officer can demonstrate that these exercises do not predict impairment for the purposes of driving a motor vehicle. The scientist hired by the National Highway Traffic Safety Administration, Marceline Burns, has admitted that the field tests do not measure impairment. She has also admitted that they are unreliable unless administered in strict compliance with standardized testing procedures.

A recent published scientific study evaluated 100 videotapes of police conducting the follow the pen eye test and found that each and every officer performed the test wrong. Cross-examination of police officers with their very own training manuals routinely demonstrates their lack of knowledge and skill.

The experienced California DUI Trial Lawyers of the Law Office of Barry T. Simons will file Pre-Trial Motions challenging the use of this unreliable and prejudicial evidence and limiting the ability of the Prosecutor to create an "Aura of Science" or even call them "Tests."

10 Ways to Discredit Field Sobriety Tests:

1. Field Sobriety Tests Are Not Scientific
2. The Officer Was Not Properly Trained
3. The Officer Did Not Use Standardized NHTSA Tests
4. The Officer Did Not Properly Instruct You On How To Perform Tests
5. The Officer Did Not Use Objective Standardized Scoring Criteria
6. The Officer Had You Perform The Tests Under Improper Conditions
7. Your Age Or Weight Make You An Improper Candidate For Tests
8. You Have A Physical Disability That Makes You An Improper Candidate For Tests
9. You Have A Psychological Condition That Makes You An Improper Subject For Tests
10. The Officer Lied About Your Performance On The Tests

Can I Challenge The Results Of A Breath Test?
The Validity Of Breath Testing Rests Upon A Vast Array Of Assumptions That Can Be Attacked By An Experienced DUI Attorney In A Wide Variety Of Cases.

COMMON ASSUMPTIONS:

1. The machine is in proper working order and has been properly calibrated.

Even if everything is in proper working condition, there can be an acceptable variation of +/- 0.02%. If your result is a 0.10%, that's a 20% error factor. How would you feel if the altimeter of an airplane was 20% off?

2. The sample was properly obtained.

The law requires that you be under continuous observation for 15 minutes prior to your breath test to prevent "MOUTH ALCOHOL."If the operator of the breath device did not have you under continuous observation for 15 minutes prior to testing, your test may be invalid. Even if you were observed, you may still have medical conditions that may make you an improper candidate for breath testing. These conditions include common ailments such as heartburn and gum disease.

3. The sample was obtained after defendant absorbed all the alcohol.

Breath testing assumes that the subject is post absorptive. This is important because the machine is calibrated to multiply the breath result by 2100 to calculate your blood alcohol level. If you were still absorbing alcohol, this would tend to significantly over report your true blood levels.

4. The temperature of the defendant’s breath was 34 degrees centigrade.

This is an assumption that is made in every breath test in Orange County. State of the art breath testing equipment actually measures the temperature of your breath and will subtract any false high result due to elevated breath temperature. Studies done with breath testing equipment establish that the real average breath temperature for arrestees in DUI cases is closer to 35.5 with readings actually over 37. This alone would cause a false high of between 10-to-20%.

10 COMMON CHALLENGES TO BREATH TESTS:

1. The Machine Was Not Properly Operated
2. The Machine Was Not Properly Maintained
3. The Machine Was Not Properly Calibrated
4. The Machine Was Affected By Radio Frequency Interference (Police Radio etc.)
5. The Machine Has An "Acceptable" Range Of +/- .02%
6. Your Body Temperature Was Greater Than 98.6
7. You Were Tested Within 2 Hours From Your Last Drink
8. You Have Medical Or Dental Problems That Make You An Improper Candidate For Breath Testing
9. The Officer Did Not Have You Under Continuous Observation For 15 Minutes Prior To Giving You The Breath Test
10. Your Symptoms And Drinking Pattern Are Inconsistent With The Test Result

Do My Medical Conditions Effect DUI Testing?
The defense of a DUI case requires specialized knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. Chemical testing for blood alcohol levels assumes that the subject is a normal, healthy average person. There are countless medical conditions, which can affect the accuracy of chemical testing and the appropriateness of field sobriety exercises. The following are examples of medical conditions that could effect DUI testing:

• Periodontal (Gum) Disease
• Dentures
• Faulty Bridge Work
• Gastric Reflux Disease (Heartburn)
• Flu
• Fever
• Pre-Menstrual/Menstrual
• Diseases of the Lungs
• Heart Disease
• Accidents With Air Bags
• Diabetes
• Inner Ear Conditions
• Attention Deficit Disorder
• Pre-Existing Injuries to Back, Legs, Etc.

If you or someone you know in Laguna Beach, California, or anywhere within the state of California needs the assistance or legal counsel of an experienced DUI lawyer, contact Attorney Barry T. Simons of the Law Office of Barry T. Simons today at 866-682-1504, or use the contact form provided on this site to schedule a free consultation with an expert Orange County DUI defense lawyer.

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