Think Like a Lawyer:  DUI Defenses

If you’ve been charged with a DUI, don’t give up on a powerful defense. This article will explain key DUI defenses that you can discuss with your lawyer to plan an attack against the prosecution’s evidence:

Reasonable Suspicion for the Stop. Examine the reason for the stop.  Did the officer observe a violation of the law?  Or did he pull you over because of a guess or a prejudice?  The officer must have reasonable suspicion that the driver or passenger have committed, is committing or will commit a crime.  Reasonable suspicion is more than a hunch and has to be based on specific facts.  If the officer can’t justify the stop, then your attorney can file a Motion to Suppress the evidence.  If the motion is successful, the prosecution will typically not have the evidence available to convict you.

Don’t Assume the Blood Alcohol Tests Are Irrefutable. A test is intimidating evidence, but there are still ways to undermine the reliability of this evidence against you:

  • Undermine the reliability of the testing procedures.
    • Did the administrator of the test have the proper training?
    • Were the testing procedures followed with exactness?
    • Was the device functioning properly?
    • Were there results that were inconsistent with each other?
    • Did they observe you prior to the DUI?
    • Were you smoking, eating, drinking, burping, vomiting, etc. prior to or during the test?
  • Rising Blood Alcohol. The relevant point in time for blood alcohol level is at the moment you are driving.  If your blood alcohol level goes up after you are arrested because the alcohol is absorbing into the blood stream, then you have an argument that the test is not accurate to the level while you were driving.
    • The amount of food that is consumed, the gender of the driver, and other factors may play into whether the blood alcohol defense can be credibly asserted
  • Medical Problem Defense. The key point here is whether you have a medical problem that would render the results inaccurate.
    • Do you have a medical condition such as asthma or emphysema that affects your lung capacity and ability to blow into a machine?

Fight the Officer’s Observations and Field Sobriety Tests.

  • The key here is to undermine the validity of the tests. Do you have a medical condition?  Were there weather conditions?  Did the officer explain and administer the tests properly?
  • tests, or if correct instructions were not given, then you can question the reliability of the conclusions drawn from the tests.

Don’t give up.  There are many possible defenses in your case, so consult with your attorney.




5 Steps For Successfully Handling First DUI in California

Did you just get a DUI in California, and you don’t know what to do?  This article will walk you through important information you need to know to navigate the system successfully.

Don’t forget about the Driver’s License Suspension or Revocation

  • After you are arrested for DUI, the officer will forward a copy of the form and your confiscated driver’s license to the DMV. You have just 10 days from your receipt of a suspension or revocation order to request a hearing with the DMV, otherwise your license will be automatically suspended or revoked. It is wise to retain an attorney immediately after a DUI arrest to assist you with fighting your driver’s license suspension or revocation.

Evaluate your finances.

  • Take time to evaluate your finances immediately. You may qualify for a public defender.  If not, you may want to retain private counsel.  Understanding your financial position and seeking help from family or friends if necessary can be advantageous to you in preparing a strong defense.  Additionally, if you decide to accept a plea or are found guilty, you can anticipate paying fines, costs of counseling, future costs of an interlock device and SR-22 insurance when you get your license back.

Look for holes in the case against you.

  • This is extremely broad but of the utmost importance. An attorney can look at each aspect of your situation and see possible defenses. Don’t just assume that your case is lost before really analyzing every piece of what happened.
    • Driving – Is there a question of whether you were the driver? What is the evidence of driving?
    • Stop – What was the basis for the stop?
    • Tests – Were the tests administered properly? Were there environmental, health or other factors at play that could have impacted the results?
    • Time – Is the evidence linked in time to the driving, or were the tests performed significantly after the driving occurred?

Get an idea of whether you want to fight or enter a plea.

  • After you have consulted with an attorney about the viability of your defense, a good idea is to consider what you think your best course of action would be. Consider your employment situation. Look at a calendar. Make a thoughtful analysis to decide how you want to proceed. Some defendants turn over all the decision making power to their attorney, but it is important for you to realize that you are the client and the person in charge.

Never give up and do not look back.

  • Many defendants focus on what they could have done or should have done better in the past to prevent a criminal charge. This is good for helping you avoid criminal charges in the future, but otherwise focusing on the past is not productive. Look to the future. Talk to your attorney about the long term plans and expungement in the future. Plan to comply successfully with all the terms of your probation. Prepare to put the DUI behind you and know that you can have a bright future.



DUI With Injury Basics

If you are convicted of a DUI with injury, you face increased penalties, and you will want to consult with an attorney as soon as possible to discover if there are defenses that can be argued in your case.  This article will educate you on some of the basics, but you will benefit from assistance with the specific facts of your case.

What are the elements of 23153 “DUI with injury”?

  • You were driving under the influence
  • You committed an illegal act or neglected to perform a legal duty
  • Another person was injured as a result

Does my blood content have to be a certain alcohol level?  

No, if as a result of drinking an alcoholic beverage or taking a drug, your mental or physical abilities are so impaired that you are no longer able to drive a vehicle with the caution that a sober person exercising ordinary care would have, then you can still be convicted of a DUI even without a blood alcohol measurement of over .08%.  So your blood content CAN be the basis of the charge, but it’s not the ONLY way you can be charged with DUI.

Is DUI with injury a misdemeanor or a felony?

Prosecutors may charge it as either a misdemeanor or felony depending on the circumstances of the case.

What if I don’t think the injury was my fault?

There are many defenses to show that another person was not injured as a result.  For example, if you were stopped at a light and the other driver rear-ended you, then you could argue that even though you were driving under the influence, the injury wasn’t your fault.

Is there any chance I won’t be convicted?  

Yes, there are many defenses to a DUI with injury.  The prosecutor has the job to prove each element of the crime (see #1 above) beyond reasonable doubt.  An experienced defense attorney can take you through each step of what happened to you and look at ways to suppress the evidence or undermine it.  From the reason for the stop to the tests that were performed to the correlation with the injury that was caused, etc. your case can be examined to discover how to defend your case.


Top 10 Ways to Protect Yourself Financially in a Divorce

Regardless of whether your divorce process is adversarial or cordial, it is a wise move to protect your assets.  This article will highlight ten tips on how to protect yourself financially in a divorce.

  1. Evaluate Your Contributions.  Look at your contributions to health savings accounts, retirement, individual trading accounts, etc. Talk to your attorney to seek advice about whether to continue to contribute to these accounts.
  1. Consider Your Estate Planning. Is your ex the beneficiary to any assets?  Do they have the power to determine your health under a living will?  Do they have power of attorney?  These are important issues that can be inadvertently put on the backburner.
  1. Separate Assets. Do you have separate assets? For example, is there a bank account or property that you acquired before the marriage?  If so, keep separate assets separate.  Don’t comingle them during the divorce process as it might muddy the water.
  1. Get information about the tax consequences of alimony, capital gains on the sale of a home, etc.
  1. Change Your Passwords, Protect Your Privacy. If your ex has the passwords to any separate bank accounts, credit card, telephone accounts, etc., change the passwords immediately to protect your privacy. Also look to social media such as Twitter, Facebook, etc.
  1. Build Your Credit. Consult with your attorney about the advantages of taking out a credit card in your name only and starting a separate bank account. 
  1. Consider Moving Out. The decision of whether to stay or go involves many factors including your time with children, finances, etc., so there is no one right answer on this one, but seek advice as to whether moving out is a good idea.
  1. Live frugally. Divorce can cause a financial strain on both parties, so attempting to live a little smaller than usual may help you in the long run.  Try to cut spending where you can.
  1. Get organized. One of the best ways to protect yourself financially is to educate yourself on what you have and document it. Look in all checking, investment, and savings accounts to see what is there now and take screen shots to document. Get information and documentation on each party’s salary and other income. Find out how much debt you owe.  The more you know about your money, the better off you will be in fighting for it. 
  1. Keep records. If you aren’t one to keep financial records and receipts, now is the time to start this habit. Having records will help you verify facts and figures and will help protect your financial future.

5 Amazing DUI Defenses

Think your DUI is hopeless?  Think again! This article will explore five major categories of defense tactics that you can discuss with your public defender or private attorney.

  • Asserting your Fourth Amendment Right in relation to the Stop.  

The Fourth Amendment to the Constitution protects you from unreasonable search and seizure. With a DUI, this often comes into play when the officer pulls you over for a traffic stop. The officer needs to have reasonable suspicion that you are committing a crime (a traffic offense counts as a crime for this purpose). The officer must have probable cause to arrest you.  A defense based on the stop or the arrest is one of the most common and effective ways to fight a DUI, and an attorney can help you apply the law to the specific facts of your case.

  • Attacking the Accuracy of the Field Sobriety Tests.

The officer likely performed the field sobriety tests near the street where he pulled you over, and the conditions may have interfered with the accuracy of the testing processes.  Was there heavy traffic that distracted you or made the tests unsafe? Were weather conditions in play that may have impacted your abilities? Was the lighting poor or in your eyes? Was the ground uneven or dangerous? Were there other environmental hazards or distractions that may have impacted your ability to perform on the field sobriety tests? Aside from the environmental factors, the officer’s explanation and execution of the field sobriety tests can also be used to challenge the results.  Did he explain the tests fully and accurately, and were they administered as they were supposed to be? Attacking the accuracy of the field sobriety tests is a very common, but can be a useful way to defend you.

  • Undermining the equipment and methods used in testing.

In any test involving equipment, the equipment must be functioning properly and used properly in order to achieve a reliable result.  For example, if a breath test was administered, you can question whether the equipment was in good, working condition and whether the officer was properly trained to use it. If you can undermine the fact-finder’s confidence in the testing, then you can draw into question whether the results can be relied upon. Along those same lines, you can question the method of the testing.  For example, when did the testing take place? Was it contemporaneous to the driving or much later? The method of testing is as important as the reliability of the equipment itself.

  • Chain of Custody.

Any evidence used in a criminal case has to pass muster when it comes to the chain of custody, which means the prosecution has to be able to trace where the evidence has been from the time it was taken into custody. For example, when police officers take a blood sample in a DUI case or seize evidence of drugs, the evidence will be packaged with a form and each person who comes in contact with the evidence should be noted on the form. If there has been a break down in that procedure, then you can claim that the evidence has been contaminated or tampered with and therefore the evidence is unreliable.

  • Necessity, Duress, Entrapment, Involuntary Intoxication.

The affirmative defenses are not as commonly used because they require circumstances that are somewhat unusual.  If your case falls into this “oddball” group of categories, the affirmative defenses may well suit you. The necessity defense is where you drove under the influence for a greater good – for example, to race someone to the hospital to save a life. Duress is when you are forced to drive under the influence under threat of your life of safety, such as if you drove while intoxicated because someone threatened to kill you if you didn’t.  Entrapment very rarely arises or if it does, it would be difficult to prove, but an example would be where the police officer requests that the person drive while intoxicated to “set the trap” to arrest that person Involuntary would be where someone was given drugs or alcohol without their knowledge or consent.


Wet Reckless and DUI in California

Have you heard about friends or family getting a DUI charge reduced to a Wet Reckless?  This will tell you what it means, when it’s done, and how it can help you.

What is a “Wet Reckless”?

A “wet reckless” is a nickname for a charge of reckless driving involving alcohol or drugs.  It is a common reduced charged from a plea bargain.

Will the prosecutor agree to a Wet Reckless?

There are no hard and fast rules as to when a prosecutor will agree to a Wet Reckless plea bargain, but your chances are higher depending on your BAC and whether there are evidence problems in the prosecution’s case against you.

What are the advantages of a Wet Reckless plea bargain?

    • Shorter max penalty:  The maximum jail time is shorter, so if you violate probation then you face a shorter max jail penalty.
  • Shorter minimum penalty: If this is your second or third DUI within a ten year period, then certain mandatory jail sentences will apply. If you enter a plea to wet reckless instead of DUI, then the conviction only requires five days in jail regardless of your prior history.
  • Shorter probation period.  Wet reckless often has a shorter probation period than a typical DUI.
  • DUI School:  You’ll likely have a shorter DUI school with wet reckless than DUI.  
  • Fines:  Penalty assessments that are lower for Wet Reckless than DUI may make the total cost of a Wet Reckless less expensive than a DUI.
  • License advantages:  A wet reckless plea may help out on the license suspension from the court, but there is also the DMV license suspension – so it may or may not impact your driver’s license.

Don’t get too excited about a Wet Reckless because it still packs a punch in many ways:

    • Insurance Company: The insurance company will likely still ding your record with the Wet Reckless.
    • Repeat Offender:  If you get another DUI within ten years after your Wet Reckless, you’ll still be considered a repeat offender, even though Wet Reckless is different than a DUI.
  • License Suspension: The DMV can still take your license.  



Unusual DUI Defenses

Do not give up just because you have been charged with a DUI.  There may be a myriad of defenses that you can use to inspire reasonable doubt as to the elements that the prosecution must prove to convict you. In a previous article, we discussed some of the Best Common Defenses and Arguments for a DUI.  Here we examine a few ideas to get you thinking outside the box if your case has rare or unusual circumstances. An attorney will be able to evaluate your individual circumstances to spot any defenses that might be successful.

Were you actually “driving”?

In some cases, the police officer didn’t see you driving, so a defense to the DUI may lie in rebutting the circumstantial evidence that you were driving.

  • Did you deny driving?
  • Were there other people in the car?
  • Was the car discovered when it was legally parked?

Watch out here, though, because if the officer observed even a slight movement of the vehicle, then that counts as driving.  Also, watch for circumstantial evidence that that prosecution may use to show that you were driving – i.e. your car was warm, the keys were in the ignition, or close proximity to an accident.

Were you under the influence when driving?

In some instances, such as a hit and run collision or single vehicle collision, the police officer may not have caught up to you at the time of the incident.  If you were drinking right after the alleged incident, then this can call into question whether you were actually under the influence at the time you were driving.  Along similar lines, if your BAC was under the legal limit, but rose to a higher value after you were no longer driving, then this could be another point of defense that you were not under the influence when actually driving.

Do you have any special medical or physical conditions that may have impacted the testing?

Think about any challenges that apply to you specifically.  Do you have a condition that may have affected the blood or breath testing?  Do you have a physical condition that would have impaired your ability on the field sobriety testing?  Was there anything usual about the environmental conditions where the tests were administered?

Police conduct?

In some cases, police misconduct can provide a valuable defense in a case.  Were statements made to indicate racial profiling for the stop? Did the police act improperly in the way that the tests were conducted? Was there anything amiss in the way evidence was handled?

Extenuating circumstances?

Were you forced to drive by some emergency?  Were you given the alcohol or drugs without your consent or awareness?  Although extenuating circumstances may or may not provide a defense to the charge, they can be important argument points in making the case for a plea bargain with the prosecutor.


Best DUI Arguments and Defenses

Although each case varies, this article will cover some of the best DUI arguments and defenses to consider when analyzing your DUI charge

Motion to Suppress Evidence

If your attorney files a Motion to Suppress Evidence and it is granted, then that evidence can’t be used against you by the prosecutor.  This is often used in the context of the traffic stop, where the motion argues that the officer didn’t have reasonable suspicion to stop you.  If successful, this can be a powerful arrow in your DUI defense arsenal.

Legitimate Reasons for the Signs of Intoxication

Are there legitimate reasons for the signs that the officer observed, which are circumstantial evidence against you?  For example, do you have dry eyes that cause redness? Do you have a speech impediment that causes slurred speech? Could your symptoms be explained by fatigue?  Plausible explanations for the symptoms can be a good argument to oppose the evidence of intoxication.

Field Sobriety Tests

There are many ways to attack the field sobriety test evidence:  Do you have a physical limitation or are you taking medications that inhibit your ability to successfully complete?  Were they adequately explained and administered by the officer? Were there environmental factors such as weather, traffic, or the surface where the tests were performed that could impact the testing?

Faulty Testing

Here again, there are many ways to attack the reliability of blood or breath testing.  Was the device working? Were there medications or medical conditions that could have impacted the testing? Was the testing done properly? Was the evidence placed in a proper chain of custody?

* Acid Reflux Defense – this is a subset argument that alleges that acid reflux (a medical condition) can cause the BAC reading to be falsely higher

* Rising BAC level – a valuable subset argument to testing is the rising BAC defense, which alleges that the BAC rose between the time the defendant was driving and when the test was administered.  

    This is not an exhaustive list of DUI defenses, as the possibilities are as individual and unique as the particular facts of your case.  This list explains some of the commonly utilized defenses to help you and your attorney begin building a proper defense strategy.


4 Potential Consequences of Your Second DUI

If you are facing your second DUI, you are probably somewhat familiar with the process and the punishments. Don’t give up on your case, as you may have defenses and arguments that can get the charges dismissed or reduced. This article is to give you an idea of what consequences you are facing if your defenses are not successful to help you understand the worst case scenario, and it assumes you are 21 or over.  

Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license for a year on a second DUI. You could have your licenses suspended for up to 2 years. The court suspension is two years, which can be run concurrently with the DMV suspension. It’s possible to apply for a restricted license after three months of DMV suspension.  
    • You need to request a hearing with the DMV within 10 days if you want to dispute the DMV suspension.
  • Interlock Device:  The judge can order you to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

Court Ordered Counseling and Probation

  • 18 Month Programs:  If this is your second conviction in 10 years, you will likely be ordered to complete an 18 month program.  For a third offense, you would typically be looking at a 30 month program. You may also be ordered to attend AA, or Mother’s Against Drunk Driving (MADD) or other programs.
  • Probation: Probation is typically 3-5 years.

Jail Time – Max is 1 year

  • Jail Time:  Minimum of 96 hours in county jail, and maximum of one year jail time.

Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $1800- $2700. Additionally, you will likely incur costs of defense attorney, costs for counseling, interlock device, and SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.


4 Potential Consequences of Your First DUI

Whether you have just been arrested for DUI or whether you are further down the road in the process, you need to be prepared for what is ahead. You likely have many potential defenses to fight the charge, which are discussed in other articles. For this article we will assume you are 21 or older and entered a guilty plea or conviction of a first DUI and give you a look at “worst case” scenario.

1. Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license if you had a blood alcohol concentration of .08% or more for four months.  The DMV will suspend your license for a year if you refuse the test. You’ll need to pay a $125 fee to get your license reinstated at the end of the DMV suspension. The court can also suspend your license, which is typically run concurrent to the DMV suspension, meaning that both suspensions are in effect at the same time.  A driver may be able to get a restricted license, to drive only to certain places like place of employment.
      • If you want to fight the DMV suspension, you need to request a hearing within 10 days.  
  • Interlock Device:  You may be ordered to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

2. Court Ordered Counseling and Probation

  • 3-9 Month Programs:  You will likely be ordered to complete one of three programs, with the program usually determined by your blood alcohol content (BAC) measurement from the DUI:  3 month (30 hour), 6 month (44 hour) or 9 month (60 hour program). Additional hours may also be required based on county requirements. Each program requires drug and alcohol education, hours of group counseling, and certain hours of individual counseling.
  • Probation: Probation is typically 3-5 years.

3. Jail Time – Max is 6 months

  • Jail Time:  Crimes come with a maximum punishment, but this does not mean the judge will impose the maximum jail time.  The maximum for a first offense is up to six months in jail.

4. Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $390- $1000. Additionally, you will likely incur costs of defense attorney, costs for counseling, money for the interlock device if ordered and the cost of SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.