DUI and BUI Law
Question & Answer Forum on DUI (Driving Under the Influence) and BUI (Boating Under the Influence)
DMV Administrative Per Se Proceedings:
First things first...schedule your DMV Administrative Per Se hearing within ten (10) calendar days of receiving your DUI citation and the Notice of Suspension (the pink piece of paper which serves as a temporary license) from the law enforcement officer.
If you do not do this in a timely manner, you will forfeit your right to a hearing and your driving privileges will be suspended! The best way to avoid a license suspension or to obtain a restricted license for work is to consult with a competent attorney right away.
The DMV and the Superior Court proceedings are two completely separate legal processes.
We can assist you in scheduling the DMV hearing. Do not hesitate to contact our office at (702) 817-4661 - Our consultations are always free of charge!
Q: Can DUI / BUI charges be successfully challenged in Court?
A: Absolutely! We personally know of over two dozen (24) different defenses which may lead to a complete dismissal of your alleged offense. The following are just a few examples of DUI defense strategies that might be deployed:
1) An officer must have probable cause (PC) to stop, detain, or arrest you for DUI. More specifically, the US Supreme Court (Terry v. Ohio, 392 U.S. 1 (1968)) ruled that an officer must have a reasonable suspicion or reasonable belief that you are violating the law. It isn't necessary that the officer initially suspects that the driver is, for example, guilty of DUI, but only that the driver has committed a traffic violation or infraction.
To stop a vehicle or detain the occupants, an officer needs a reasonable suspicion that the driver is committing, has committed, or will commit a crime - a criminal offense in California can be as straightforward as a traffic infraction violation. Reasonable suspicion must be more than "a guess" or "a hunch."
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 evidence is suppressed, 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.
2) California field sobriety tests ("FSTs") aren't accurate indicators of alcohol and/or drug impairment. Studies have shown that FSTs are only between 65-75% accurate at detecting impairment - assuming they are precisely administered.
FSTs can also be negatively impacted by factors such as intimidation by officers, uneven surfaces, weather conditions, and the type of footwear you had on at the time.
3) California DUI breath tests are susceptible to a wide variety of errors, including malfunctioning of the breathalyzer device, a person's physiological conditions (i.e. acid reflux or heartburn), improper handling of the testing procedure by law enforcement, equipment calibration, and operator certification.
4) "Rising Blood Alcohol" means your blood alcohol concentration (BAC) was much higher by the time you were actually administered the chemical test (e.g. breathalyzer machine test at the police station, or a blood draw at a local medical facility), than it was an hour or two hours earlier, when you were driving your vehicle.
Alcohol takes a certain amount of time, typically between one (1) hour and three (3) hours, to fully absorb into your system. The important thing to remember is what your BAC was at the time you were driving! In many cases, it was much lower than it was by the time the law enforcement officer got around to finally testing you - via a Breathalyzer machine at the patrol station, or a Blood Draw at a medical facility.
5) Your BAC doesn't reflect your level of impairment. If you exhibited no objective signs or symptoms of impairment (i.e. you drove very safely prior to your stop; passed all the FSTs,
etc.), but your BAC level was bordering on exceeding the "legal limit" (i.e. .06 or .07), your BAC doesn't necessarily accurately reflect your alleged level of impairment.
We handled a case many years ago where our client's BAC was high. The jury ultimately found him NOT GUILTY because all of his actions leading up to the arrest (i.e. he avoided hitting a young child that ran out into the roadway in front of his car just prior to being pulled over by law enforcement) indicated that despite his BAC level, he could not be considered impaired under the law.
6) The DUI laws state that you must be driving under the influence. If you were not driving by the time law enforcement made contact with you, the District Attorney (DA) will have a much tougher time proving their case against you.
If, for example, you were at the scene of an accident and no one saw you driving the car, or the police found you when you were in a parked car taking a nap, the DA will have their work cut out for them, and it will be more difficult for them, to prove one of the key elements of a DUI: that you actually drove the subject vehicle.
You cannot be convicted of a California DUI if the DA cannot prove beyond a reasonable doubt that you were impaired, while you were operating a motor vehicle!!
7) Last but not least, your Miranda Rights! They are required when...
(a) you have been arrested, and
(b) the officer is conducting a custodial interrogation.
When an officer asks questions that are designed to solicit incriminating responses from you after you have been arrested, then a "custodial interrogation" takes place. These two conditions are what "trigger" law enforcement's requirements to read you your Miranda Rights. If they do not, then valuable evidence may be excluded, which could ultimately result in the dismissal of your DUI charges!
Q: If a person is stopped by a law enforcement officer for a suspected DUI violation, what is the most important thing he/she must do, first?
A: Don't fail the attitude test. Be polite and cooperative. Present their license, registration and insurance information promptly. Unless an individual already has their license in hand, they should tell the officer that they are going to retrieve the driver's license (i.e. - from a wallet or purse).
Also, the officer should be informed as to where the registration, insurance, and log book (for commercial operators) is kept. If a driver starts reaching here and there without informing the officer, he/she may feel threatened and might reach for his firearm!
Keep in mind; officers are always concerned about their safety, first and foremost.
Q: Should someone try to explain away their driving during a DUI stop?
A: No - they should exercise their Right to Remain Silent! Let the officer do all the talking. This is no time to plead a case - that is why a court of law exists. Say nothing directly or indirectly about your driving. Listen attentively to what the officer has to say.
You and your attorney will have an opportunity to obtain a copy of a DUI police or incident report, as well as a copy of any DUI chemical testing that was performed. This is your opportunity to get ready to win your case in court - or mitigate (lessen) the impact of the charges. By the way, NEVER mention to the officer that you are planning to fight your DUI citation in court. Remember, forewarned is forearmed!
Q: Can a defendant's own notes be used in a Court or Jury Trial involving a DUI traffic stop?
A: Yes, that is why an individual needs to write down as many facts as they recall, immediately following the receipt of the DUI citation. One's memory will be the best at that time. By law, a person is allowed to use their own notes to refresh their memory and assist their attorney in court. You would normally ask the presiding judge for permission to do so.
Important, you should not write down or submit anything into evidence that you do not want the officer or the District Attorney to read. The judge may order you to share those notes! The more factual and detailed the better. If you hire an attorney to represent you, then you should make sure your attorney is given a copy of all notes and evidence you have gathered.
Q: What types of general defense strategies are used during a Court or Jury Trial involving a DUI traffic stop?
A: There are many constitutional and evidentiary defenses that can be raised at a trial proceeding. A good defense attorney will ask a citing officer questions during the trial, which are designed to test his/her knowledge and memory of the events surrounding a DUI traffic stop.
For example, an officer may be asked what led him or her in the first place to pull your vehicle over to the side of the road. Focusing on as many minor and major details surrounding the traffic stop can be a sound approach. Asking about relevant areas such as locations, distances, conversations, unusual weather conditions, and the officer's own actions during the traffic stop (especially if they were out of the ordinary) can be effective.
Testing the officer's memory and credibility can lead to raising reasonable doubt. Proof beyond a reasonable doubt is the standard of proof that the prosecution must meet in order to have any chance of a conviction.
Q: By law, does one have to prove their innocence once they are charged with a DUI?
A: No! A person is presumed innocent, unless and until, they are proven guilty. The District Attorney (and/or law enforcement officer) has the burden of proof. Therefore, one should be prepared to knit pick, toward creating as much reasonable doubt as possible. Photos, videos and diagrams are also evidentiary options that can be utilized.
When a person receives their DUI citation, they should review it and then sign. It is not advisable to start commenting about or questioning the contents or the charges cited by the officer - save that for the courtroom. By the way, thank the officer, but do not say "See you in Court."
Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent DUI attorney to determine your best course of action. Our office has expertise in this area of the law, and we encourage you to reach out for a FREE consultation.
"Q: Can DUI / DWI / BUI charges be successfully challenged in Court?
A: Absolutely! We personally know of over two dozen (24) different defenses which may lead to a complete dismissal of your alleged offense."
- Felicia Woods-Yates, Attorney at Law
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