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DUI Lawyer California
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DUI Lawyer California
Gordon M. Fauth

1801 Clement Ave., Suite 101
Alameda CA 94501
(510) 238-9610

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Fax: (510) 337-1431


Criminal / DUI Lawyer California

Call: (510) 238-9610


I look forward to discussing your situation with you.  The attorneys of DUI Lawyer California will help you beat your DUI charge.  We provide personal, effective representation.  We offer a free consultation.

If you've been arrested for suspected DUI, you've come to the right place. Call or email today to discuss your case, in confidence and without obligation.

We know California DUI law and procedure and how to utilize both to protect our clients' rights.  We enjoy challenges and work hard to insure the best possible outcome in our cases.  With us, you are in good hands.

DUI – Guilty Until Proven Innocent?

No, but it can seem that way.  DUI, also called "driving while intoxicated" (DWI) or simply "drunk driving," is a serious charge in California.  With constant enhancements by lawmakers, it has become a complex and confusing area of law. It's also an area in which due process and the right against self-incrimination have been seriously eroded. For example, upon stopping the suspected DUI driver, the police officer typically asks the driver to step out of the vehicle and perform various physical sobriety tests.  The "results" of these tests will be used as evidence against the driver; yet, the officer does not reveal that, if the driver is 21 or older, these roadside tests are voluntary and can be declined.  Once arrested, the motorist suspected of DUI is forced by law to submit to a potentially incriminating chemical test – a blood, breath or urine test.  Further, the arresting officer is allowed to seize the suspect's license, replacing it with a 30-day temporary license.  Unless the accused requests a DMV hearing within 10 days, the accused's license will be automatically suspended, without any consideration of the evidence.  And, that's just the beginning.  

We Will Protect Your License and Your Freedom 

Fortunately, you still have rights.  But, you need an aggressive lawyer to protect and assert your rights.  For example, we will examine whether the prosecution's evidence was lawfully collected.  Under the Constitution and California law, the record must show that the police officer had a "reasonable suspicion" that a traffic violation was committed before making the traffic stop.  Then, following the roadside investigation, there must have been "probable cause" for the arrest of the driver on suspicion of impaired driving.  We look for ways to challenge reasonable suspicion and probable cause and, where we find them, move to have the evidence suppressed and the case dismissed.  We also examine whether the tests for alcohol or drug intoxication were carried out according to the required protocols, with a proper chain of custody shown for all physical evidence. 

We Look For –  and Find – Defects in the Prosecution's Case 

In preparing a defense, we scrutinize each relevant factor carefully.  We demand and obtain the prosecution's evidence against the accused driver.  We examine the record and evidence for technical defects in the case.  If a breathalyzer test was used, we determine whether the procedure was correct and the machine properly calibrated.  Where the chemical test was a blood test, we order an independent analysis of the stored sample.  Where appropriate, we investigate medical and other conditions that may have caused a false blood alcohol reading.  We seek to have all tainted evidence suppressed.  We use any technical defects we find to build a strong defense, in preparation for settlement or trial.  

Call or email today to discuss your case, without charge and without obligation.

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Call: (510) 238-9610

The Lawyers

Gordon M. Fauth, Jr. directs DUI Lawyer California and the Litigation Law Group, with main offices in Alameda, California.  Mr. Fauth is a graduate of Harvard University and the University of California at Berkeley, and comes from a leading edge background in complex litigation.  He now puts his skills and expertise to work defending California drivers accused of drunk driving and other offenses.  Other associated attorneys include a former DA and other attorneys with extensive experience in DUI defense.  For clients who are not in the Bay Area, we have relationships with firms in other parts of California.  We offer superior representation, with personalized, vigorous advocacy by skilled attorneys, at affordable rates. If you engage us to represent you, you will be in good hands.

 

Gordon M. Fauth, Jr.

 

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Gordon M. Fauth, Jr.
Most of Mr. Fauth's legal career has been at the forefront of complex litigation, including constitutional rights and class-action litigation. From 1997 to 2001, Mr. Fauth was an associate at the law firm of Girard & Green, LLP., specializing in class actions and complex litigation.  From 2001 to 2002, Mr. Fauth was a partner in the law firm of Green Fauth & Jigarjian, LLP. Today, he directs the Litigation Law Group as well as being active in  professional and public interest organizations.  Mr. Fauth received his undergraduate degree in Government from Harvard University in 1993. Mr. Fauth received his law degree from Boalt Hall, University of California at Berkeley in 1997. 

 

Mr. Fauth is admitted to practice before California and Federal courts, including all California trial courts; the California Court of Appeals; the California Supreme Court; the United State District Courts for the Northern, Eastern, and Central Districts of California; the United States Courts of Appeals for the Fifth and Ninth Circuits; and the United States Supreme Court. Mr. Fauth is a recognized member of  professional organizations including the California Bar Association, the Alameda County Bar Association, the San Francisco Trial Lawyers Association, and the California DUI Lawyers Association.  He is a member of IEEE, the world's leading professional association for the advancement of technology. He is a member of the Alameda County Court Appointed Attorney Program (criminal defense).  He is President of the American Legal Rights Foundation. He is on the Advisory Panel of the American Bar Association. He is AVVO-rated "superb," the highest rating for an attorney.

 

Tuan A. Lam

 

Tuan A. Lam graduated from the University of California at Berkeley, Boalt Hall School of Law in 1997, where he served on the Moot Court Board. During his tenure on the Board, his duties included advising, evaluating and judging first and second year law students in Moot Court, Appellate Advocacy, legal research, writing and oral argument.

ImageA member of the California Bar since 1997, Mr. Lam has worked at one of the largest and most prestigious law firms in the State and then as a Deputy District Attorney. Wanting to have greater control over the management and direction of client files and to develop more personal relationships with his clients, Mr. Lam established Lam, Thompson & Park in 2001.

Mr. Lam has personally and successfully defended multi-million dollar litigations against corporate giants such as Stanford University Hospital in Palo Alto and Portal Software in Silicon Valley, California. Mr. Lam's international clientele include individuals and corporations from Asia and Europe. He serves as general counsel for Progene and several other prestigious corporate clients.  In his personal injury practice, Mr. Lam vigorously represents victims who have been hurt in a variety of accidents. In his criminal law practice, Mr. Lam successfully defends persons accused of DUI and other crimes.

As part of his community outreach efforts, Mr. Lam has worked with abused and neglected children living in a group home environment at Olive Crest Treatment Centers. He has taught continuation high school in inner city Oakland, California. Currently, he is a volunteer teacher and serves as general counsel to a non-profit Vietnamese foreign language school in Orange County, California. 

 

Malcolm Bowen Feied


Malcolm B. Feied practices civil litigation and criminal defense.  He attended the San Francisco State University, where he was a staff writer for the San Francisco State Journal of International Relations (1988-1989), and from which he graduated magna cum laude with a B.A. in International Relations, in 1989.  He then worked for years as a California-licensed real estate agent.  He next attended the John F. Kennedy University School of Law, where he was on the Dean's List all terms and where he was awarded the Witkin Award in Constitutional Law.  He graduated from the JFK Law School with the Juris Doctor degree in 2005. 

Mr. Feied was admitted to the California Bar in 2005.  He then worked as an associate at the Law Offices of Andrew Shalaby, in El Cerrito, California, before establishing his present practice in 2007.  Mr. Feied is fluent in both English and Spanish.  He is a member of legal organizations including the California Bar Association, the Alameda County Bar Association and the California DUI Lawyers Association.  He successfully represents clients in courts throughout the greater San Francisco Bay Area.

DUI in California

 

ImageIn America, more people are arrested for driving under the influence (DUI), also called driving while intoxicated (DWI), than for any other crime.  According to the Center for Disease Control, each year an estimated 120 million episodes of alcohol-impaired driving occur in the United States.  Each year, approximately 1.5 million drivers are stopped and arrested for DUI.  Approximately one-third of DUI offenders are repeat offenders.

 

It would be a mistake to assume that DUI is just another traffic offense.  With constant additions by legislators, DUI law has become a very technical area of law, where the accused has fewer due process and other rights than with almost any other crime.  California's DUI laws are among the most complex in the nation.  You definitely need the help of an experienced lawyer in fighting a DUI charge.

 

What is DUI?


In California and most other states, there are actually two main DUI offenses:

  • (1) driving a vehicle while impaired by alcohol and/or drugs; and/or
  • (2) driving a vehicle with a blood alcohol concentration (BAC) greater than allowed by law.  In California, an adult driver is considered DUI with a BAC of .08% or greater.  (For a driver under 21 years of age, California sets the DUI threshold at a BAC of .05%.  For drivers of commercial vehicles, the DUI threshold is .04%.)

(Vehicle Code §§ 23152, 23140.)

 

Defenses

 

Potential defenses are many and can become quite technical, as explained elsewhere; but, they generally fall into three interrelated areas: (1) the traffic stop; (2) the arrest; and (3) the collection of evidence.  The police must have had a "reasonable suspicion" of a violation before stopping the driver; they cannot just stop a driver capriciously.  Then, in the course of interviewing and observing the stopped driver, the police must acquire "probable cause" for an arrest.  If either the stop or arrest is flawed, then subsequently-gathered evidence may be suppressed.  The peace officers must also observe protocols in the collection of evidence, particularly when giving the chemical tests; otherwise, the evidence can be challenged.  Your attorney will examine the record, conduct discovery, and carefully look for defects in the prosecution's case.

 

Penalties

 

The penalties for a DUI conviction vary from state to state, but over the years the trend has been toward tougher laws in all states.  California's DUI laws are among the most strict.  In California, driving DUI can result in vehicle impoundment or confiscation, license suspension, jail time, probation, fines, and DUI school.  The penalties are enhanced for factors including prior DUI offenses (within 10 years), speeding, having children under 14 in the car, and causing injury.

 

In California, a first DUI offense (where there are no injury or other enhancement factors present) is punishable by:

  • up to six months in jail

  • restitution and fines of between $1,700 and $2,000

  • DUI school

  • probation of up to 5 years

  • license suspension of 6 months 

Note that these penalties are just the maximum allowed by law.  Even on conviction at trial, for a simple DUI, the sentence will often be far below the maximum.  Usually, it is possible to negotiate a plea bargain before trial involving lesser charges/penalties.  The degree to which the DA is willing to bargain will be determined by your record and by the strength of the evidence against you.  The Court can often be persuaded to convert jail time to a weekend work program, available in many California counties.  Please choose the "DUI Penalties" menu item for more information on penalties.

Your Rights When Stopped

ImageIt is important to know your rights when stopped for suspected DUI.  It is particularly important to know those rights--and their limits--because a motorist suspected of DUI does not enjoy the same rights against self-incrimination present in other situations.  Without reading the motorist any statement of Miranda rights, the officer will typically ask the motorist if he has been drinking, and will then instruct the motorist to engage in tests of physical agility—all designed to elicit incriminating evidence to be used against the driver.

 

The Officer is Not Entitled to a Confession

The officer is allowed to elicit biographical information such as your name, address, birthday, etc.  However, if the officer asks whether you've been drinking, or how much you've been drinking, you should politely and courteously decline to answer the question.  You can tell the officer that you have been told never to answer questions like that without a lawyer present.  Remember, the officer is asking questions only to elicit information that can be used against you.  You should not make admissions that will give the officer "cause" for further investigation of whether you are intoxicated.

 

Video Recording of Stop

Many patrol cars today are equipped with video cameras mounted in the dash and used to record traffic stops, police interractions with suspects outside their vehicles, etc.  If you discover the police officer has stopped you on suspicion of DUI, but you are not intoxicated, such a recording will usually help, by showing that your demeanor and speech were not those of a "drunk" person.  While you do not have a "right" to have the proceedings recorded, it does not hurt to ask the officer if his patrol car has a video camera and if it is turned on.  You can ask him to turn it on, and tell him that you would like to have the stop recorded.  Aside from preserving evidence, this will signal that you are not afraid to have your mannerisms evaluated by a judge and jury on the basis of an actual recording.  If the officer has a video camera equipped car but refuses to turn the camera on, your lawyer can later point that out to a jury, if it comes to that.

 

If Over 21, You Can Refuse Roadside Sobriety Tests

When an officer stops a motorist suspected of driving under the influence, the officer will typically ask the motorist to engage in one or more so-called field sobriety tests.  These are a dozen or more physical tests that supposedly determine whether the taker is inebriated by measuring coordination, balance, eye movement and/or language/memory skills.  The officer who stops a motorist for suspected DUI will often ask the motorist to take several of these tests alongside the road.  You must step out of your car, if told to do so.  But, what the officer does not reveal is that, unless under 21, the motorist is free to refuse to do the field sobriety tests without consequence (except, perhaps, that of irritating the officer). 

 

Should an adult driver refuse the field sobriety tests?  Probably.  First, most of the tests are of little value in determining sobriety.  Studies commissioned by the National Highway Traffic Safety Administration have shown that, of the many tests used, only three—the one-leg-stand, nystagmus (eye tracking), and walk-and-turn—are effective in determining sobriety.  Yet, California law enforcement officers often continue to use other tests, now known to be of little use.  Second, even sober persons can have trouble "passing" field sobriety tests.  This is particularly the case when the person is nervous (who wouldn't be, when stopped by the police and asked to take tests?) or suffers from physical problems or disabilities.  Third, the tests are administered roadside under less than controlled conditions by a police officer whose subjective opinion alone determines whether the motorist has "passed" or "failed."

 

If you refuse the roadside sobriety tests, be sure to do so politely and courteously.  There is nothing to be gained from being combatitive or abusive to the officer.  If you give a reason, you can simply state that you have read that one should not take the roadside sobriety tests because they are not accurate. 

 

If Over 21, You Can Decline The Roadside PAS Test

Sometimes the law enforcement officer will ask the stopped motorist to take a "Preliminary Alcohol Screening" or PAS test.  This test is administered roadside using a handheld breathalyzer device, and will supposedly reveal the taker's blood alcohol content (BAC).  As with all roadside tests, the adult DUI suspect can refuse to take this test.  Should you refuse to take the PAS test?  Probably, unless you you are confident the test will not reveal any alcohol at all.  The results of this roadside test can be highly inaccurate.  The PAS is not the same breathalyzer test given after arrest, at the station, which uses a larger, more reliable machine.

 

After Arrest, You Must Submit To A Chemical Test

Under California's implied consent law, refusal to submit to a chemical test after you are taken into custody will result in suspension of your driver's license and enhanced penalties.  California law even allows a DUI suspect who is in custody to be forceably given a chemical test, if the suspect refuses. What the arresting officer may not tell you is that you have the right to choose the test from among those tests available.  There are three chemical tests used—urine, breath, and blood.  Not all tests may be available at the testing center; and you must choose from among those tests actually available.  (The urine test is generally no longer provided for suspected DUI unless the other tests are unavailable.)

 

The blood test is the most accurate, and should be chosen where the motorist knows his or her BAC is below the limit.  However, if concerned about substances other than alcohol being found in your blood, it's probably better not to choose the blood or urine test.  Instead, you may ask for the breathalyzer test, which tests only for alcohol.  Of course, if the officer strongly believes you were acting impaired and a breathalyzer tests does not detect alcohol, the officer may then insist that you also take a blood or urine test.

 

If you opt for a breathalyzer test, after it is conducted, you should ask that a blood sample also be taken and preserved, so that your attorney can later have it independently tested.  Of course, if you are concerned about the presence of substances other than alcohol being found in your blood, you should not make this request. 

 

No Right To Have A Lawyer Present For Tests

If you are taken into custody on suspicion of DUI, the officer will inform you of your "Miranda rights"  You do have the right remain silent, and to have a lawyer present during any questioning.  But, in a departure from the usual right against self-incrimination, you will be asked to take a chemical BAC test before you are allowed to talk to a lawyer.  During this process you are on your own, even though potentially incriminating information is being elicited from you in through the breathalyzer, blood or urine test.  You must make the best decision you can in choosing among the tests available.  But, remember to exercise your remaining rights;  and do not provide any additional information without first consulting with a lawyer.

Drunk Driving FAQ

California "Drunk Driving" FAQ

Does it matter where in California I am arrested for DUI?

The laws against drunk driving are the same throughout California.  The principal statutes relating to drunk driving are found in the California Vehicle Code.  However, there are procedural and practical variations in how DUI cases are handled in different counties and even between different superior courts in the same county.  For example, the caseload and calendar of an individual court and judge will affect the time between events in your case.  That is, upon arraignment in Fremont, the first pre-trial conference might be set for 4 months out, while in Oakland, it might be set for only 3-4 weeks out.  Some prosecutors and some judges are more lenient in plea bargains and/or sentencing than others.  And, where a sentence involves jail time, in some counties a county-work or diversion-program alternative may be available which does not exist in another county.  In representing our clients, we take these venue differences into account, to provide the most effective representation possible under the circumstances.

 

Do I have the right to refuse the intoxication tests?

Yes and no.  If you are 21 or over, you may refuse the roadside sobriety tests and the roadside breathalyzer test (also called a PAS, or "preliminary alcohol screening" test).  However, if you are under 21, you may not refuse the roadside tests legally.

 

Once you are arrested, regardless of age, by law you must submit to a chemical test. However, you have the right to choose between those tests made available by the arresting officers, i.e., blood test, breathalyzer or urine test.  Not all of these tests are available in all districts, and you may not refuse to be tested (without consequences, that is) just because the test you would prefer is not available.  The blood alcohol test is considered the most accurate of the three tests, and the urine test the least accurate (for alcohol). 

 

In California, the urine test is generally no longer used when only alcohol-related DUI is suspected (if other drugs are suspected, the police will probably insist on a urine or blood test).

 

Why was I charged with two offenses?

California and most other states have enlarged the original DUI ("Driving Under the Influence") offense into two separate offenses:  (1) driving while impaired by alcohol and/or other drugs (Vehicle Code §23152(a); OR (2) driving with a blood alcohol concentration (BAC) greater than .08% (Vehicle Code §23152(b).  That is, In California, an adult is "per se" DUI if his or her BAC is .08% or greater, regardless of whether the person exhibits any sign of impaired driving ability.

 

These two separate offenses are usually charged in a DUI case.  You may be convicted of both; but, in most circumstances, you will be sentenced for only one.  So, generally, the main effect is just to give the prosecution two chances at conviction.

 

Does Age Matter?

Yes, it does.  If the driver is under 21 years of age, the driver is considered per se DUI if his/her BAC is .05% or greater.  A driver under 21 is not allowed to refuse the roadside sobriety tests, including the inaccurate handheld PAS breathalyzer test.  Furthermore, if you are under 21, the DMV will suspend your license if you had a blood alcohol concentration of only .01%.  DUI drivers under 21 may also face other enhanced hurdles, which they should discuss with their attorney.

 

Should I Request the DMV Hearing?

Yes.  The result of the DMV hearing will not affect the outcome of the charges against you in Court, but it will determine whether your license to drive remains suspended pending the outcome at Court.  If you fail to request a DMV hearing within 10 days of the notice of suspension given you when your license was confiscated,  the DMV will automatically suspend your license for the time set by law--regardless of the outcome of your DUI court case.  As a bonus for requesting the DMV hearing, if the DMV sets the hearing for a date after the expirantion of the 30-day temporary driving permit given you by the officer who confiscated your drivers license, in most cases your attorney will be able to get the permit extended until the date of the hearing.

 

Can I be found guilty of DUI if I was taking drugs prescribed by my doctor?

Yes, if the medication affected your ability to drive.  It is the driver's responsibility to make sure that he or she is able to drive safely.  For purposes of California's DUI laws, "drugs" include over-the-counter and prescription drugs, including medications for colds and allergies.  It is also no defense that the drug rendering the driver impaired was prescribed by a doctor for a medical condition.  However, if the driver experienced an unexpected and/or unusual reaction to medication that a reasonable person would not have anticipated, that may in some circumstances furnish a defense--consult with your attorney. 

 

However, on a slightly different topic, many ingested substances that do not affect your ability to drive will affect the results of a breath test, causing it falsely to indicate that you are above the legal BAC limit.  The same is true of certain medical conditions.  Be sure to discuss these possibilities with your attorney.

 

Do the DUI laws only apply to driving an automobile on a public highway?

Driving while under the influence is generally prohibited whenever you drive any kind of vehicle.  For purposes of the principal DUI statutes,  a "vehicle" is defined as:  "A device by which any person or property may be propelled, or drawn upon a highway, except a device moved exclusively by human power or used exclusively upon stationary rails or tracks."  Vehicle Code § 670.  That would include all motorized vehicles.  Does that mean you are safe driving a human-powered bicycle while intoxicated?  Not in California.   Vehicle Code section 21200 specifically states it is unlawful to ride a bike under the influence.  Furthermore, California courts have interpreted the DUI laws to apply even when the driver is driving on a private road instead of a highway.

 

What about drinking while operating a boat?

Different statutes apply, but the offense is essentially the same.  The California Harbors and Navigation Code section 655 provides:

 

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

 

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

 

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

 

The penalties for boating under the influence are similar to those for vehicular DUI.  A conviction for DUI boating also counts as a prior convinction for purposes of subsequent vehicular DUI.

 

If I was stopped for DUI while driving a commercial vehicle, do the same laws apply?

Additional laws setting higher standards apply to drivers of commercial vehicles.  For example, a driver of a commercial vehicle is considered DUI if found to have a blood alcohol concentration of only .04 percent. If you were charged for DUI while driving a commercial vehicle, be sure to discuss the ramifications with your attorney as soon as possible.

 

What if I need to drive to work or school, but my license was suspended? 

If you need to drive to work or school, you may be able to obtain a restricted driving license, if certain conditions are met.  Consult your attorney regarding your particular circumstances. 

 

Should I take a Plea Bargain or go to Trial?

 That will depend on the evidence against you weighed against the deal that the DA's office is willing to offer.  After investigating the evidence, we will always press the DA's office for an offer of the best plea bargain possible, advise you of your chances at trial, and let you make the decision. 

 

If the DA's office sees that you are represented by counsel who are scrutinizing the evidence for procedural and other defects, who are willing to take the case to trial, it is likely at some point to offer you a fairly attractive deal (compared to the possible sentence that you could receive) to avoid the risk of an outright acquittal at trial.  Conversely, if we think the evidence against you is weak, or if we find serious technical defects in the prosecution's case, we may advise you to reject all offers and go to trial.  In all cases, it will be your informed decision.  

 

Can I Beat a DUI Charge?

You can beat a DUI charge.  Often even a prosecutor's apparently overwhelming case has problems that would not be apparent to a layperson.  It is important that your attorney investigate the case against you for weaknessses and technical defects as soon as possible.

12-Step Guide to DUI

 

1.  The Traffic Stop
2. 
The Roadside Sobriety Tests
3. 
The Arrest
4.  The In-Custody BAC Tests
5. 
Jail/Bail
6. 
DMV Hearing
7. 
The Arraignment – Your First Day in Court
8. 
Plea Bargaining
9. 
Investigation / Discovery/Investigation
10.
Pretrial Hearing
11.
Trial
12.
Sentence/Penalties

 

 

1.  The Traffic Stop

 

A DUI case typically begins when a law enforcement officer stops a driver on  a public roadway.  The officer may have observed the person driving in an erratic or unusual manner and may suspect intoxication.  Or, the officer may stop the driver for reasons unrelated to drunk driving, such as speeding or driving with a broken tail light, and become suspicious only after talking to the driver or smelling alcohol on the driver's breath.  Your lawyer will carefully scrutinize the police report because, unless the officer had an objective "reasonable suspicion" of a violation to justify the traffic stop, the court will have to quash all subsequently-gathered evidence of DUI.

 

2.  The Roadside Sobriety Tests

 

After the officer stops a DUI suspect, the officer will engage the driver in conversation, asking whether he or she has been drinking (do not make incriminating statements!), and then will typically ask the driver to take one or more so-called field sobriety tests.  These tests supposedly determine whether the suspect is inebriated by measuring coordination, balance, eye movement and/or language/memory skills.  The law enforcement officer may also ask the suspect to take a Preliminary Alcohol Screening (PAS) test, which is administered roadside using a handheld breathalyzer device designed to measure the taker's blood alcohol content (BAC). What the officer does not tell the suspect is that, unless under 21, the suspect may refuse to take the field sobriety tests, including the PAS, without consequence (except, perhaps, that of irritating the officer).

 

It is the roadside interview with the suspect, observation of the suspect as he/she performs sobriety tests, and the PAS test results that typically furnish the officer with "probably cause" to justify an arrest for suspected DUI.  Again, your attorney will scrutinize the officer's report carefully and will also demand from the highway patrol or police agency any recordings made of the roadside encounter, so that, if possible, probably cause can be challenged.

 

3.  The Arrest

 

When the law enforcement officers decide to arrest you, they will typically ask you to turn around and place handcuffs on you.  While they’re doing this, they will probably tell you three things.  First, they will inform you that you’re being arrested.  Second, they’ll tell you why you’re being arrested (e.g., for suspected DUI); and third, they’ll read you your Miranda warnings.  After the arrest, you’ll either be transported to a jail facility or to a hospital for blood tests.

 

4.  The In-Custody BAC Tests


Once the driver has been placed under arrest, under California's implied consent law, the driver must submit to a chemical blood alcohol concentration (BAC) test, carried out at the station, a testing center or a nearby hospital, even before the suspect has been allowed to talk to a lawyer  Refusal to submit to a chemical test after arrest will result in suspension of the suspect's driver's license and enhanced penalties.  California law even allows a DUI suspect in custody to be forceably given a chemical test, although this probably won't happen. What the arresting officer may not tell the driver is that the suspect has the right to choose from among those tests available locally.

There are three chemical tests used: (1) a breathalyzer test similar to the PAS test but utilizing a larger and more accurate machine, (2) a blood test, and (3) a urine test.  Not all tests are available in all districts.  (The urine test is generally no longer given for suspected DUI unless the other two tests are unavailable.) The suspect must choose from among those tests actually available.  The blood test is the most accurate, and should generally be chosen where the suspect knows his or her BAC is below the legal limit.  (You might not want to choose the blood test if you are concerned about drugs other than alcohol in your blood--then, the breathalyzer test might be least likely to find incriminating evidence.)

 

5.  Jail/Bail

 

After having been tested for the presence of drugs or alcohol, the arrested driver will be taken to the nearest county jail facility.  Once there, the driver will have booking photographs and fingerprints taken, will undergo an inventory search wherein his or her personal possessions will be confiscated, and will be locked either into a “trunk tank” or a regular short-term cell.

While the driver is being held in jail, a Judge or Magistrate will review the arresting officer’s report to determine whether the driver should be released on his or her own recognizance and promise to come to court, whether bail should be set, or whether there are any holds that preclude the possibility of release.  Most first-time offenders are released on their own recognizance and promise to appear, without having to post bail.

If bail is set, however, the driver will be afforded an opportunity to contact a bail bond company or have a relative arrange bail.  When seeking to arrange bail, be sure to have the Name, Date of Birth, Current Location, and PFN (Person File Number) of the driver.
 

6.  DMV Hearing


Upon the driver's arrest for DUI, the law enforcement officer will confiscate the driver's license and issue a 30-day temporary permit.  Unless the suspect then requests WITHIN TEN DAYS a DMV Administrative Per Se (APS) hearing to contest the matter, the Department of Motor Vehicles will automatically suspend the suspect's driver's license for four months for a first offense and one year for a second offense.  That suspension will go into effect even though you have not yet had your trial in court.


DMV hearings may be conducted via telephone or in person.  The suspect's lawyer should generally request an in-person hearing.  The DMV hearing provides an opportunity to examine and object to the evidence, including the police report, chain of custody of any blood samples taken, reports of lab technician, etc.  However, to take full advantage of this opportunity, the attorney must request in advance of the hearing all pertinent documents in the DMV's possession or control.  In addition, the attorney should consider serving subpoenas duces tecum to compel the appearance of appropriate persons with documents and evidence that the DMV will not have, such as video recordings of the traffic stop and roadside interview, if such recordings exist; police notes, logs and transport records; any video or audio recordings made at the police station; and any usage logs, maintenance and repair reports, and downloaded data for any machine used to test the breath.

 

Even in cases where the client's BAC was high, our attorneys have been successful in getting the DMV license suspension set aside because of technical defects in the evidence. If the suspect is represented by counsel, the suspect does not need to attend the APS hearing.  We typically prefer our clients not to attend, as hearing officers are often skilled in eliciting damaging admissions from drivers.

 

An adverse ruling by the hearing officer can be appealed to court through a writ process.  Remember, though, the outcome of the DMV APS hearing does not affect the parallel criminal proceedings in court. 

 

7.  The Arraignment – Your First Day in Court

 

(Note: it is usually not necessary for our clients to appear personally in court.  We can usually appear and speak for them.) 

 

The Arraignment is the formal process whereby a Judge informs the suspect of the charges that the district attorney’s office has filed and asks how the accused pleads.  Each judge and courtroom handles it somewhat differently.  Typically, your attorney will obtain the complaint from the clerk and ask the prosecuting attorney whether there is a discovery packet.  When your case is called, you and your attorney move to the podium in front of the judge, and your attorney customarily introduces himself and says that he is representing you.  The Judge might say to you, “The people of the state of California have charged you with one count of violating California Vehicle Code section 23152(a) – driving under the influence of alcohol or a drug; and with one count of violating Vehicle Code section 23152(b) – driving with a blood-alcohol content of .08% or greater.  These are misdemeanors carrying a maximum punishment of six months imprisonment.  How do you plead?”  Or, the judge may ask your attorney if you waive formal arraignment, which the attorney usually does, and let your attorney take the initiative and state your plea. 

 

You have three options for pleading: guilty, no contest, and not guilty.  If you don’t enter a plea, the judge will enter a “not guilty” plea on your behalf.  Unless your attorney has secured a favorable plea bargain at this early stage, the proper plea at your Arraignment is usually, “Not Guilty.”  It is important to note that your Not Guilty plea will not increase the penalties you might receive, so if you do not yet have an attorney, you should not hesitate to say, “Not Guilty, Your Honor” when asked how you plead.  Also, unless there is something to be gained from a early trial, your attorney will typically tell the judge that you "waive time."

 

After your Not Guilty plea, the Judge will generally set a date for your first Pretrial Hearing, which will usually be approximately 30-90 days from the arraignment, depending on the Court's calendar (some courts's calendars are more congested than others, even within the same county).  This will allow your attorney time to obtain the evidence against you and to negotiate with the district attorney working the case, if that seems indicated.

 

The Arraignment will be your first opportunity to see the “Complaint” — the formal document the District Attorney’s office files in court when it accuses someone of violating the law. It is usually a single sheet of paper.  Among other things, the Complaint lists the violations of law with which the suspect is charged.  There will probably be at least two violations charged in even the simplest DUI case: (1) for, "driving under the influence," and (2) for "driving with a blood alcohol concentration of .08% or higher," in violation of Vehicle Code section 23152 subsections (a) and (b), respectively.  There are also many other DUI-related crimes which may be charged, depending on the circumstances.  Also included on the Complaint will be any enhancements (e.g., blood alcohol of .15 or higher) or other violations of law that might have been committed (e.g., reckless driving, driving with a suspended license, etc.).  The suspect driver will not receive the Complaint until his/ or her arraignment in court, where it generally must be expressly requested.  It is critical that the suspect's attorney obtain a copy of the Complaint as soon as possible in order to check its legal sufficiency and to determine what crimes are charged.

  

 

8.    Plea Bargaining


Plea bargaining can happen at any point in the DUI process after you are charged.  The Plea Bargain is an offer by the district attorney prosecuting the case whereby the suspect pleads "no contest," possibly to lesser charges, in return for a more lenient sentence than would have applied originally.  The prosecutor makes the offer to the defense attorney, who will assess that offer in light of the available information.

If the defense attorney knows that there is damaging information buried in the file that the district attorney hasn’t yet noticed because of time pressures in court, the defense attorney may recommend that the offer be accepted right there without delay.  Alternatively, if the defense attorney discovers that there are problems with the prosecution's case, but a conviction seems likely, the defense attorney can point out to the district attorney those deficiencies in the case against you and make a counter-offer.

There are no hard or fast rules regarding plea negotiations.  Instead, the success of plea bargaining depends on the interplay of numerous factors, such as the strength of the case against you, the advocacy of your attorney, and your prior criminal history, if any.

If you enter into a plea bargain, you’ll be changing your plea from Not Guilty to No Contest, which means that, although you do not admit to the charges, you’ll permit a conviction on the terms that your attorney has negotiated for you. 


However, not every case is amenable to plea bargaining. Some cases should be investigated further and possibly taken to trial.  The only way to determine this is for an attorney to review all of the information available and weigh the costs and risks of trial or further investigation against any plea offers available.
 

9.  Investigation / Discovery


“Investigation” is the process whereby both sides (the defense and the prosecution) attempt to bolster their cases by gathering information that might be useful at trial but doesn’t already exist in the police reports, files, etc.  Your investigation might require the use of a licensed private investigator, a forensic chemical expert, or toxicology laboratory for blood or urine retests, among other things.

“Discovery” is the process whereby existing information and evidence are exchanged between the prosecution and the defense.  You have a right to know what information the prosecution has in its possession.  Your attorneys will know which information must be disclosed to the district attorney and which can properly be withheld.  Your attorneys will also know which information in the possession of the district attorney should be turned over to you in return.  Typically, at the arraignment, the district attorney provides the defense attorney with a discovery packet which includes the police report and other pertinent documents.  Later, the defense attorney will probably serve an "informal" discovery demand on the district attorney's office, seeking other documents and later uncovered information in the prosecution's control.  If that discovery demand is not answered within 15 days, the defense attorney can then bring a "formal" discovery motion in court to compel the production.

 

10.  Pretrial Hearing


Depending on factors including the Court's calendar, the Pretrial Hearing will be scheduled for approximately 30-90 days after your arraignment.  This allows time for investigation and discovery to occur.  If investigation and discovery are not yet complete, the Pretrial Hearing can be rescheduled for a later date.

At the Pretrial Hearing, your defense attorney will discuss the case with prosecutors from the district attorney's office, to determine what must be done before trial and whether any plea bargaining should occur.  If more time is needed, the attorneys may agree to come back in two or four weeks for another Pretrial Hearing.  If a plea bargain has been reached, it may be entered before the Judge at the Pretrial Hearing. 

 

If the Complaint against you seeks enhancements because of prior convictions, or if your attorney has discovered defects in parts of the evidence against you, your attorney may ask the Court to set a date for hearing motions to strike the priors or supress the evidence. 

 

Finally, if both sides are ready for trial, they will ask the Judge to set a date for the trial and inform the Judge of any issues they believe might arise that will require special attention.
 

11.   Trial


Most DUI trials last between one and three days.  You have a right to have a jury decide whether you are guilty or not guilty; and most suspects choose a jury trial.  (The alternative is to have the judge hear the evidence and make the decision.)  At the trial, the prosecutor will attempt to prove to a jury that you committed the crimes charge; and your defense attorneys will vigorously challenge the prosecutor's evidence and theories, and will attempt to create at least a reasonable doubt as to whether you committed the crimes charged.

Trial begins with an opening statement by the prosecutor.  That statement tells the jury about the case, about the evidence the jury may expect to hear against you, and what the prosecutor hopes to accomplish.  That opening statement is followed by the opening statement of your defense attorneys, who will explain why the evidence they’re about to present will either disprove the prosecutors case or will, at a minimum, raise a reasonable doubt as to whether you really did commit the crimes charged.

After both sides have made their opening statements, the prosecutor will present his or her “case in chief,” which consists of all of the evidence gathered against you.  Your defense attorneys will have an opportunity to cross-examine each prosecution witness.  Then, your attorney presents your case, challenging each item of evidence presented by the prosecution.

When all evidence has been presented and challenged, both sides will give closing arguments to the jury explaining what the evidence means – or doesn’t mean – and will ask the jurors to vote for their side.  The Judge then instructs the jury on what the law is, how to conduct their deliberations, and that all twelve jurors must unanimously agree on the verdict.  The jury is then released into the jury deliberation room, where they will discuss the case and evidence presented and decide whether the prosecutor has proven beyond a reasonable doubt that you committed the crimes charged.  This process may take as little as a few hours or as long as a few days.  Once the jury has reached a verdict, they will inform the judge of the verdict, and the judge will pronounce the sentence accordingly.

 

12.  Sentence/Penalties


If you are found "not guilty," the Judge will immediately inform you of your acquittal, and the case will be closed.

 

If you are found guilty of a DUI misdemeanor, either through a plea bargain or a jury trial, you will have the right to be sentenced six to forty-eight hours thereafter.  Most defendants waive this right and ask to be sentenced immediately.  The most basic DUI case carries a maximum sentence of six months in jail, and this can be extended to one year or more based on additional charges or enhancements, which are discussed elsewhere on this site.  Even where clients are found guilty, we can usually obtain sentences of considerably less than the maximum.  It is also often possible to get jail time converted to service in a county work program.

How Much Will It Cost?

How Much Will It Cost?

Our lawyers' fees for representing clients accused of DUI offenses are affordable and very competitive.  They deal directly with clients and do not inflict expensive referral fees or advertising costs on clients. 

 

Generally, you will be offered an attractive flat attorney fee for dealing with both the DMV and Court proceedings.  However, as different cases present different problems and challenges, it is necessary that you talk to one of our attorneys to get an actual price quote, based on your individual situation and needs.  (You should be skeptical of DUI web sites that offer a laundry list of prices before you have even talked to a lawyer.)

 

Clients can generally pay the attorney fee by check, in one or more payments, or by using any major credit card. 

 

Accordingly, we offer you a free initial consultation with an experienced attorney, who will discuss your situation with you in confidence, present you with the best options for your case, and answer any questions you may have.  There is no obligation. 

 

Contact us today for a free consultation with an experienced DUI attorney, in confidence, without obligation.  

FAQs

California "Drunk Driving" FAQ

Does it matter where in California I am arrested for DUI?

The laws against drunk driving are the same throughout California.  The principal statutes relating to drunk driving are found in the California Vehicle Code.  However, there are procedural and practical variations in how DUI cases are handled in different counties and even between different superior courts in the same county.  For example, the caseload and calendar of an individual court and judge will affect the time between events in your case.  That is, upon arraignment in Fremont, the first pre-trial conference might be set for 4 months out, while in Oakland, it might be set for only 3-4 weeks out.  Some prosecutors and some judges are more lenient in plea bargains and/or sentencing than others.  And, where a sentence involves jail time, in some counties a county-work or diversion-program alternative may be available which does not exist in another county.  In representing our clients, we take these venue differences into account, to provide the most effective representation possible under the circumstances.

 

Do I have the right to refuse the intoxication tests?

Yes and no.  If you are 21 or over, you may refuse the roadside sobriety tests and the roadside breathalyzer test (also called a PAS, or "preliminary alcohol screening" test).  However, if you are under 21, you may not refuse the roadside tests legally.

 

Once you are arrested, regardless of age, by law you must submit to a chemical test. However, you have the right to choose between those tests made available by the arresting officers, i.e., blood test, breathalyzer or urine test.  Not all of these tests are available in all districts, and you may not refuse to be tested (without consequences, that is) just because the test you would prefer is not available.  The blood alcohol test is considered the most accurate of the three tests, and the urine test the least accurate (for alcohol). 

 

In California, the urine test is generally no longer used when only alcohol-related DUI is suspected (if other drugs are suspected, the police will probably insist on a urine or blood test).

 

Why was I charged with two offenses?

California and most other states have enlarged the original DUI ("Driving Under the Influence") offense into two separate offenses:  (1) driving while impaired by alcohol and/or other drugs (Vehicle Code §23152(a); OR (2) driving with a blood alcohol concentration (BAC) greater than .08% (Vehicle Code §23152(b).  That is, In California, an adult is "per se" DUI if his or her BAC is .08% or greater, regardless of whether the person exhibits any sign of impaired driving ability.

 

These two separate offenses are usually charged in a DUI case.  You may be convicted of both; but, in most circumstances, you will be sentenced for only one.  So, generally, the main effect is just to give the prosecution two chances at conviction.

 

Does Age Matter?

Yes, it does.  If the driver is under 21 years of age, the driver is considered per se DUI if his/her BAC is .05% or greater.  A driver under 21 is not allowed to refuse the roadside sobriety tests, including the inaccurate handheld PAS breathalyzer test.  Furthermore, if you are under 21, the DMV will suspend your license if you had a blood alcohol concentration of only .01%.  DUI drivers under 21 may also face other enhanced hurdles, which they should discuss with their attorney.

 

Should I Request the DMV Hearing?

Yes.  The result of the DMV hearing will not affect the outcome of the charges against you in Court, but it will determine whether your license to drive remains suspended pending the outcome at Court.  If you fail to request a DMV hearing within 10 days of the notice of suspension given you when your license was confiscated,  the DMV will automatically suspend your license for the time set by law--regardless of the outcome of your DUI court case.  As a bonus for requesting the DMV hearing, if the DMV sets the hearing for a date after the expirantion of the 30-day temporary driving permit given you by the officer who confiscated your drivers license, in most cases your attorney will be able to get the permit extended until the date of the hearing.

 

Can I be found guilty of DUI if I was taking drugs prescribed by my doctor?

Yes, if the medication affected your ability to drive.  It is the driver's responsibility to make sure that he or she is able to drive safely.  For purposes of California's DUI laws, "drugs" include over-the-counter and prescription drugs, including medications for colds and allergies.  It is also no defense that the drug rendering the driver impaired was prescribed by a doctor for a medical condition.  However, if the driver experienced an unexpected and/or unusual reaction to medication that a reasonable person would not have anticipated, that may in some circumstances furnish a defense--consult with your attorney. 

 

However, on a slightly different topic, many ingested substances that do not affect your ability to drive will affect the results of a breath test, causing it falsely to indicate that you are above the legal BAC limit.  The same is true of certain medical conditions.  Be sure to discuss these possibilities with your attorney.

 

Do the DUI laws only apply to driving an automobile on a public highway?

Driving while under the influence is generally prohibited whenever you drive any kind of vehicle.  For purposes of the principal DUI statutes,  a "vehicle" is defined as:  "A device by which any person or property may be propelled, or drawn upon a highway, except a device moved exclusively by human power or used exclusively upon stationary rails or tracks."  Vehicle Code § 670.  That would include all motorized vehicles.  Does that mean you are safe driving a human-powered bicycle while intoxicated?  Not in California.   Vehicle Code section 21200 specifically states it is unlawful to ride a bike under the influence.  Furthermore, California courts have interpreted the DUI laws to apply even when the driver is driving on a private road instead of a highway.

 

What about drinking while operating a boat?

Different statutes apply, but the offense is essentially the same.  The California Harbors and Navigation Code section 655 provides:

 

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

 

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

 

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

 

The penalties for boating under the influence are similar to those for vehicular DUI.  A conviction for DUI boating also counts as a prior convinction for purposes of subsequent vehicular DUI.

 

If I was stopped for DUI while driving a commercial vehicle, do the same laws apply?

Additional laws setting higher standards apply to drivers of commercial vehicles.  For example, a driver of a commercial vehicle is considered DUI if found to have a blood alcohol concentration of only .04 percent. If you were charged for DUI while driving a commercial vehicle, be sure to discuss the ramifications with your attorney as soon as possible.

 

What if I need to drive to work or school, but my license was suspended? 

If you need to drive to work or school, you may be able to obtain a restricted driving license, if certain conditions are met.  Consult your attorney regarding your particular circumstances. 

 

Should I take a Plea Bargain or go to Trial?

 That will depend on the evidence against you weighed against the deal that the DA's office is willing to offer.  After investigating the evidence, we will always press the DA's office for an offer of the best plea bargain possible, advise you of your chances at trial, and let you make the decision. 

 

If the DA's office sees that you are represented by counsel who are scrutinizing the evidence for procedural and other defects, who are willing to take the case to trial, it is likely at some point to offer you a fairly attractive deal (compared to the possible sentence that you could receive) to avoid the risk of an outright acquittal at trial.  Conversely, if we think the evidence against you is weak, or if we find serious technical defects in the prosecution's case, we may advise you to reject all offers and go to trial.  In all cases, it will be your informed decision.  

 

Can I Beat a DUI Charge?

You can beat a DUI charge.  Often even a prosecutor's apparently overwhelming case has problems that would not be apparent to a layperson.  It is important that your attorney investigate the case against you for weaknessses and technical defects as soon as possible.

 


Alameda CA Criminal Defense Attorney

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