Wednesday, December 16, 2015

Holiday DUI tips and strategies

1    Q: If I am detained and arrested by police for DUI, what are my rights? 

A: DUIs are rigorously enforced and prosecuted. While the case is being filed in court, the DMV gets the information of your arrest, and you should consult a lawyer immediately to protect your rights at the administrative hearing for your license suspension. It is only a myth that you cannot beat your DUI, no matter what the facts are.  

DUI criminal prosecution is based mainly on the arresting officers’ subjective opinion and impressions as to your perceived level of intoxication and the pseudo-scientific evidence of the breath/blood based on the testimony of the biased criminalist on payroll with the law enforcement agency. Both can be effectively countered and discredited depending on who is your lawyer. 

First, when you are detained by a police officer for some alleged traffic violation or at a sobriety checkpoint, you should not answer any questions regarding your drinking. Any statements you make regarding your drinking pattern or where you were coming from will be used as evidence against you in court. The police are not obligated to read Miranda rights before those questions, because the Supreme Court has decided that those are merely investigatory questions. However, you have a right to tell them politely that you do not want to volunteer that information. Second, when they confront you with their suspicion you might have been drinking or that you smell alcohol, don’t fall into the trap. They are using psychological tricks on your mind, by implanting fear in your brain to gather information to use in court against you. Third, don’t agree to field sobriety tests by telling them you are not physically fit or have physical impairment to be able to do those tests right at that moment. An average sober person fails those tests anyway due to various reasons. They are still being used as law enforcement tools to detect possibility of impairment and to solidify their suspicion. Why give them additional bogus ammunition to use in court against you. Fourth, you do not have any obligation to agree to blow into the small testing device that the police ordinarily carry with them. This is called a PAS machine that is highly inaccurate and detects mouth alcohol, or stomach acid, which will then alert them to alcohol presence in your body and further investigation. 

Fifth, if you do all of the above, but still are arrested and taken to the station, you will be told you have to submit to a blood/breath test there. By California law they have to admonish you that if you refuse this test, your license will be suspended. It is true. However, you should be advised that once you provide blood/breath (depending on your choice), you will provide legally admissible evidence of presence of alcohol in your system. Therefore, you should weigh seriously whether suspension of your license is as important to you as getting a criminal conviction in your record. By balancing the two, you should either refuse the test or submit to it. Certainly, if you had only insignificant amount of alcohol several hours before driving, you should submit to the test, preferably blood test, to discredit the officer's subjective impressions. If you refuse, your refusal can still be used against you in court as consciousness of guilt. However, the government will not have any hard evidence of alcohol in your system, except for subjective impressions of police. Remember, the government can not forcefully draw the blood without a warrant, with very limited and notable exceptions.

If you decide to submit to the test, it is still not the end of your case. Both blood and breath tests are extremely inaccurate for a number of reasons. First, the breathalyzer that is used to obtain breath sample is subject to numerous errors and its scientific validity is still questioned. Second, the effects of alcohol on the human body are a subject of fierce scholarly debate. Your lawyer qualified in this field will be able to counter the prosecution so-called expert, the criminalist, who works for the county with a real expert, who will come to court and discredit the entire prosecution theory. This is done every day in court and the most difficult DUI cases with the most impossible facts can be won as I have done in the past rigorously defending my clients.   

 Happy and safe Holidays!

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