One of the biggest concerns our clients have with their Los Angeles DUI Case, is whether they will have to serve a jail sentence. The answer will depend on several different factors and the argument presented by your Los Angeles DUI Attorney.
Two of the biggest factors the court will consider is the facts of your specific case, and any offenses you may have been convicted of in the past. The best way to understand these is through some examples.
Facts of the case:
DUI’s are common charges that people all over Southern California face. It is a growing concern, and not all drivers are stopped lawfully, or legitimately. Torrance, being an active, and lively area, there is a consistent concern for DUIs. If you have been arrested for suspicion of driving under the influence in Torrance, it is a good idea to consult with a Los Angeles DUI attorney as soon as possible.
If this is your first time contacting an attorney, this post will help guide you through the basic steps of the process.
Consultation:
Our clients lead busy lives and with work, school, and social obligations. It is difficult for them to clear up the day they are required to appear before the Criminal Judge. Fortunately, once they have retained us as counsel, we can make all appearances on behalf of our clients as long as their case meets certain requirements.
If their case is a misdemeanor we are able to appear on their behalf without them having to be present. If the case is a felony, the criminal system requires that the person being charged must always appear.
For example, David has been charged with driving under the influence of alcohol. He was stopped on a routine DUI, with nothing out of the ordinary. He did not hit a person or an object, he did not damage any personal property and it was his first DUI. Due to the facts of his case David’s case will be a misdemeanor and a San Diego DUI Attorney will be able to make the appearances on his behalf.
When someone has been charged with a DUI, they have to make the decision of whether they want an attorney to represent them in the case. A DUI is a serious charge, and one that can affect your career, education and other goals. Hiring an attorney is often a good idea so that you know your options, available defenses and are able to argue your case efficiently and strongly with the help of a knowledgeable legal professional.
Once the decision is made to hire someone, how do you know who the best attorney is? Chances are you received a lot of mailers and flyers once you were arrested. This is because there are many companies that provide your arrest record information to law firms. Once a person has been arrested, the law firms are notified and they send out their letters to potential clients. Just because these attorneys are readily searching, does not mean they are the best attorney for the job.
One of the biggest concern when looking for an attorney should be the attorney’s experience. The criminal justice system is based on a lot of negotiations and settlement offers. Contrary to popular belief, very few cases go to trial. The majority of cases get settled prior to trial once the person charged feels that a good offer is made. When the attorney has experience they are not only familiar with the prosecutors, Judges and staff, they can assess whether the deal being offered is a good one, or one that should be turned down.
When a person is stopped on suspicion of driving under the influence in Southern California, they will be required to appear before the Criminal judge on a given date to plead their case. If a Los Angeles DUI attorney has been hired, the attorney may appear on behalf of the client as long as it is a misdemeanor DUI.
The first court appearance is called an Arraignment. During the arraignment, the Judge will ask the person being charged if they wish to enter a plea regarding the allegation of driving under the influence. There are three potential pleas that may be entered; guilty, not guilty and no contest.
Anytime a person chooses to enter a plea of guilty or no contest a DUI Advisement of Rights, Waiver and Plea form will be read to them and ultimately signed. On the form there is a section of Constitutional Rights which you must initial as having understood and waiving any of the rights listed.
When you have been arrested for suspicion of driving under the influence, you will be given a court date to appear before a Criminal Judge. The law presumes that you are innocent until you are proven guilty beyond a reasonable doubt and it will be the Prosecutor’s job to prove that you were intoxicated while driving.
The first appearance made before the Criminal Judge is called an Arraignment. During the arraignment the Judge will read you the charges and will ask if you would like to plead guilty, not guilty, or no contest. If you plead guilty or no contest, you will be read a DUI Advisement of Rights, Waiver and Plea form. You must read this form carefully and initial each statement.
In the form, there is an explanation as to your Right to an attorney. It explains that you have a right to an attorney to represent you throughout the proceedings. This is a right granted to you by the Sixth Amendment of the United States Constitution. This right ensures that each person is protected and properly represented before the Judge when they are being tried for criminal charges. It helps avoid any wrongful judgments being entered because the person being tried improperly handled their case or proceedings.
It is each person’s right to be heard by a court of law, and be given a fair trial before they are found guilty of a criminal charge. In interest of these rights, when a person is arrested and charged with a potential DUI, they are ordered to appear before a criminal judge. They will not be found guilty of any criminal charge unless prosecutors can prove that there is guilty beyond a reasonable doubt.
The first appearance is called an Arraignment. During the arraignment the Judge will read the charges and ask if the person being tried would like to enter a plea. You can plead guilty, not guilty or no contest. If you plead guilty or no contest, you will be given a DUI Advisement of Rights, Waiver and Plea form. You will be asked to read over each provision carefully and initial by each statement.
The advisement assures that you are aware of the rights you will be relinquishing when you plead guilty or no contest. It also confirms that you have been advised of the potential consequences you may face as someone who has been found guilty or have not contested driving under the influence charges against you.
In a San Diego driving under the influence charge the Prosecutor has the burden of proving that the driver was intoxicated at the time of the arrest. To prove their case the Prosecutor will use several different types of evidence and must show proof beyond a reasonable doubt.
If the driver took a blood alcohol content test, the reading will be a part of the evidence presented by the government. A blood alcohol test is administered at the station following the arrest and may be a blood or breath test. If a person is unable to take one of the tests, they must take the other. For example, if a person has severe asthma and cannot take a breath test, they must take a blood test. If the person is unable to take either test, it will be considered a refusal by law. A refusal, regardless of the reasons for not taking either test, there may result in further penalties in addition to those of a DUI.
The final BAC reading will be entered into evidence as an exhibit whether it is over a .08 or not. California Vehicle Code § 23152 and 23153 does not state that the intoxication level for a DUI must only be .08 or higher. The code section also states that anybody found driving under the influence of alcohol and/or drugs may be found guilty of a DUI, whether it is at a .08 or not.
If a person is charged with a DUI, and they refused to take a breath or blood test at the time of the arrest, they may face additional consequences if convicted. When a driver is issued a California license, they give implied consent to submit for a blood alcohol test if asked to do so by officers. When a person refuses to do so, they are violating this previously given consent, and the penalties are taken seriously by the DMV and the government.
Many of our clients do not explicitly refuse to take a blood or breath test, but are unable to do so for various reasons. For example, many people who are overwhelmed and stressed out find it difficult to calmly breathe into a breathalyzer to get an accurate result. Some have asthma and are unable to properly breathe into the machine. Those that are unable to take the breath test and provide usable results, must take the blood test as an alternative. But many times, the officials administering the blood test are unable to find a vein or collect a sample large enough. The driver may also have a fear of needles and cannot submit to the blood these. As a result, the person is unable to take the blood test or the breath test, but have cooperated and provided legitimate attempts to do so.
For example, say Sally is stopped for a DUI and is asked to take a BAC test. She has asthma and does not have her inhaler with her. She, nevertheless, tries to breathe into the machine in order to provide a sample but officers tell her that none of the attempts were valid. She is then asked to take a blood test since the breath test was not valid. They try to take her blood but cannot find a vein and after several attempts, fail at gathering a sample. Sally followed directions and tried to aid the officers in gathering a sample to the best of her ability, but because of uncontrollable factors she was unable to do so.
When a person is stopped and asked to take a Blood Alcohol Test, a refusal to do so, may lead to serious consequences. When a person is granted the privileges of driving in California, along with the obligations and duties is implied consent to cooperate if a driver is questioned by officers regarding a possible DUI. By holding a valid driver’s license, you are agreeing that if you are stopped by officers, you will comply with requests to take a breathalyzer or blood test in order to test your blood alcohol content (BAC). Refusing to take the BAC test will have serious consequences because you are going against your previously given consent.
During a DUI arrest, officers will administer BAC tests at two separate occasions. You will be given a field sobriety test at the scene of the stop when the officer initially questions the driver. The initial sobriety test is not required by law and will not have severe consequences for refusal. However, the breath or blood test you are asked to take after being taken into custody at the police station is required by law. You do have the right to refuse, but will face additional consequences if convicted of a DUI.
If you refuse to take the breath or blood test that is required, officers must admonish you of the consequences. They must read it verbatim from a form and have you sign it acknowledging that you understand the additional penalties you may face for having refused. If this form is not read and signed, there is a strong argument for any additional penalties incurred as a result of the refusal to be dismissed.
Los Angeles DUI Lawyer Blog