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The first thing that needs to be done after a DUI arrest is the setting of the Administrative Per Se DMV hearing. A hearing must be set within 10 days of the arrest. If this is not done, the DMV will attempt, and normally with success, to take your driver’s license 30 days from the arrest date. If a hearing is set, your privilege to drive will remain through the outcome of the hearing. We can also request the police report and other evidence through the DMV. If this is not done, it is very possible that the first time we get a look at the police report will be on the court date. In my experience, the more preparation the better.
There are a number of issues that are involved in any DUI defense case whether, it be a 1st Offense or a multiple offender situation.
The first place to look when defending any DUI case is the driving, or more specifically, what exactly was the basis for the stop? The police need a valid reason to pull an individual over, it is the job an attorney to show that reason did not exist. How is this done? For starters, the police normally will put the reason for the stop in the police report. A copy of the report needs to be obtained immediately to determine their reasoning. But it does not end there. Regardless of what the police report states, if the police had a patrol car video in the vehicle, that needs to be subpoenaed and analyzed. But generally before this is all done, or at a minimum alongside these actions, the scene of the stop needs to be investigated to determine if there are any private surveillance cameras that might have captured the incident, including the driving. In today’s day and age, cameras are everywhere. Part of being an effective Sacramento DUI Lawyer is a good offense. We cannot merely wait on the evidence to be provided to us, we have to go out and obtain our own evidence.
If after viewing the evidence, we determine there was no legal reason for the stop, a motion to suppress needs to be filed. A Motion to Suppress is in essence a motion filed with the court to hold a hearing to contest the basis for the stop. It can also be used to contest probable cause for the arrest, and to exclude individual pieces of evidence from being used in the case. This is where a strong defense starts, and this is one of the main ways to obtain a dismissal in a DUI case. This option should never be overlooked.
Other issues that may arise include, but are not limited to:
Rising Blood Alcohol – alcohol does not automatically enter your bloodstream after consumption. It takes a significant amount of time; therefore, if you were pulled over right after drinking, there is a good chance that your blood alcohol level is in the rising stage. Basically, your breathalyzer/blood test result taken 30 minutes after you were pulled over does not necessarily reflect what your blood alcohol level was at the time driving.
Miranda Rights: The police have a legal duty to provide Miranda warnings. This protects you from making incriminating statements and the police are required to read them. Period.
Did the police inform you that you had a choice to take either a breathalyzer or a blood test, or did they just tell you what to do?
Were the field sobriety tests conducted properly? Was the breathalyzer administered properly? Was the blood handled and stored properly?
Was the breathalyzer calibrated properly?
If this is a 2nd, 3rd or more DUI charge, have your prior convictions been analyzed to see if they are valid, or do we need to file a Motion to Strike the Prior Conviction, showing that the priors are not valid.
If you were stopped at a sobriety checkpoint, was it valid? The United States Supreme Court has designated specific factors that the police need to abide in order to conduct a sobriety checkpoint. If these factors are not followed, then the sobriety checkpoint is illegal in and of itself, and that makes the stop and the arrest illegal as well.
This list is not inclusive. There are many issues in every case, and every case is different. But this is a good starting point for a successful defense.
More DUI Information:
(1) Commercial Drivers:
Commercial drivers are held to a higher standard on the road and the law reflects that fact.
–The legal BAC limit for a commercial driver, while driving a commercial vehicle, is 0.04.
–A commercial driver driving a non-commercial vehicle is subject to the normal 0.08 legal limit.
Either way, the penalty in regards to the commercial driver’s license is the same. A first offense conviction leads to a one year driver’s license suspension. No restricted license is available. A second conviction for a commercial driver leads to a lifetime commercial driver’s license suspended. In essence, after a second DUI, that individual will no longer be a commercial driver. In my experience, even after a first offense DUI conviction, due to the economy and the competitive nature of the position, it can be almost impossible for a commercial driver with even one DUI on their record to find employment. Generally, in these cases, a helmandollar is of utmost importance to obtain.
(2) High Blood Alcohol— the Court and the District Attorney’s office will take into consideration whether or not the individual had a high blood alcohol level (HBA). Basically HBA starts at a .15 or higher. In Sacramento County, if an individual has a .15 or higher they will potentially be subjected to more time (work project/home detention) and a longer DUI program. If the individual has a ,20 or higher, the penalties get even harsher. It is important to remember when dealing with HBA that blood alcohol level is not easy to prove. Just because a blood test result has come back at a certain level that does not mean that level is set in stone. There are plenty of defenses that can show the blood alcohol level was rising, or that the blood was stored in a faulty manner. The same goes with breathalyzer results, the level could have easily been rising or the machine could not have been calibrated properly. Basically, even if the chemical test shows you had a HBA, it does not necessarily mean that you will be penalized for it in court, which is where the job of an attorney comes into play.
In Sacramento County presently, any blood alcohol level between a .15 and a.19 will see an increase to the 6 month DUI program, as opposed to the normal 3 month program. A blood alcohol level of a .20 or higher will lead to the nine month program. In Yolo or Placer County, if the BAC is below a .20, it normally will be a 3 month program.
Sacramento DUI Defense Attorney Michael Rehm provides representation for all DUI related matters in Sacramento County, Yolo County(Davis & Woodland), Placer County (Roseville), EL Dorado County (Placerville & South Lake Tahoe) and Colusa County,