Los Angeles DUI Lawyer Blog

Articles Posted in Criminal Defense

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Many of our clients claim that they were never given the opportunity to have a lawyer present during their DUI stop and therefore had their constitutional rights violated. Unfortunately, previous case law carves out an exception for those stopped for a DUI, and in many situations a person does not have the right to have an attorney present.

Right to an attorney before deciding whether to take the Blood or Breath test

The Constitution does not require that you have the right to consult an attorney before choosing which test to take. This is a decision that you must make on your own.

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It is the officer’s job to gather evidence for a DUI case from the moment a person is stopped on the suspicion of being under the influence. They administer Blood Alcohol screening tests and prepare a report outlining observations that led to the belief of intoxication. The blood or breath test is entered into evidence, as is the officer’s report. The officer’s report is circumstantial evidence. Circumstantial evidence means that it is evidence gathered through observation, questioning and the general educated analysis of the officer. It is evidence, that when combined together, leads to a conclusion.

Officer’s write many reports a day, and tend to overlap a lot of information. An experienced California DUI attorney reads thousands of reports and can explain to a client the terms that are routinely included in all driving under the influence reports, and discuss if they pertain if at all to the specific case.

Certain boilerplate terms such as, red watery eyes, slurred speech, smell of alcohol emanating from the driver and the car, fumbling or having trouble presenting license are included in all police reports. These terms are a stereotype of drivers who are impaired and are included in every police report to strengthen the government’s case against a person.

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When the Officer’s report is presented as evidence in court, it is generally weighed with greater credibility than that of the driver in a DUI case. There are several different factors that lead the Judge and Prosecution to believe that the officer’s account of the arrest holds higher validity than that of the driver.

1. General notion that the driver is intoxicated

The driver has consumed alcohol and is presumed to have been intoxicated, otherwise there wouldn’t be a DUI charge. When a person has been drinking they are said to not have full use of all senses. They may perceive things slowly, not be able to respond quickly, as well as have blurred vision. These effects of drinking create the perception that the driver was not in a state of complete awareness, and therefore may have a misconceived notion of the facts.

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Many of our clients inform us that the police did not read them their Miranda Rights when stopped for a DUI. Unfortunately, when stopped on the suspicion of a DUI, the arresting officer is not required to read you your rights. This procedure is only specific to DUI cases, and does not apply to other criminal arrests.

Miranda rights only apply to criminal cases and should be given when a person is submitted to custodial interrogation. Custodial interrogation is when you are taken into mandatory custody, and are interrogated by officers. If you are voluntarily there, and are choosing to answer any questions officers have, Miranda Rights do not have to be read.

For example, let’s say you go into a police station to talk to Officers about something you have seen.sThe officers ask you to answer a few questions in the waiting area and you agree. Even if later you are accused of being a suspect in the crime, the questions you answered may be used as evidence. Miranda Rights were not necessary because there was no custodial interrogation. You were not taken into custody against your will, and you were not questioned by officers while in custody. When officers ask you questions that you voluntarily answer, it is considered to be investigative. Officers have a duty to gather facts and investigate, and when they ask you questions to learn information, it is considered to be investigative, not an interrogation.

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When many of our clients are arrested for a DUI, they are not given a specific reason for being stopped. When a cop pulls you over, he must have a valid reason for doing so. Furthermore, if an alcohol screening test is administered, he must have probable cause.

When a cop initially indicates that you pull over, he must have a valid reason. This reason can be as simple as a broken taillight, or something as serious as swerving in and out of lanes. An officer cannot make assumptions that you may be intoxicated and they cannot pull you over if there is no reason for them to do so. For example, if you are driving and you run a red light, the officer has a reason to stop you. Similarly, if you do not signal, or make an illegal U-turn, the officer has a valid reason to pull you over.

Once the officer pulls you over, he may ask you to complete a preliminary alcohol screening test only if he has reasonable suspicion. Reasonable suspicion is facts or circumstances that lead the officer to believe that you may under the influence. For example, if you are slurring, the officer has reasonable suspicion to question you regarding your impairment. If you exhibit no behavior that could indicate intoxication, the officer does not have the authority to ask you to take an alcohol screening test.

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California Health and Safety Code §11350 makes it unlawful for any person to be in possession of a controlled substance. Controlled substances are those listed under California Health and Safety Code §§ 11054 and 11055. These sections include the majority of common recreational or “street” drugs like heroin, cocaine, methamphetamines, certain hallucinogenic drugs and antidepressants. These sections, however, do not include marijuana. Marijuana is covered by California Health and Safety Code § 11357.

Drug possession cases in California are generally charged as a felony, and are not taken as serious offenses by the courts. However, an experienced Los Angeles Criminal Defense attorney knows that there much leniency for Drug Possession charges. With a powerful argument and the skill of a good lawyer, charges may be reduced from a felony to a misdemeanor, or in many cases, dismissed altogether.

If the drug allegedly found in your possession is certain types of depressants, the law may be read as a wobbler by the Judge. A wobbler is a law under which a charge may be filed as a misdemeanor or a felony, depending on the facts of the case. Prosecutors and Judges will consider the criminal history, if any, and the specific facts surrounding the case to arrive at a determination.

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California Vehicle Code §23152(a) regulates Driving under the Influence of drugs (DUID). This same section also makes it unlawful to be driving under the influence of alcohol. Despite being charged under the same section, both types of cases invoke different arguments and defenses.

Someone is considered to be intoxicated for purposes of a DUI if their Blood Alcohol Level is .08% of higher. This is a objective test and a reading is obtained through the use of simple blood, breath and urine tests. In contrast, there is no objective test for a DUID.

When stopped under the suspicion of a DUID an officer will check for several different subjective signs to include in their report and support their allegation that a person was under the influence of drugs. They will observe your general behavior, and check your pulse and heart rate.

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California Health and Safety Code §11359 makes it unlawful to “possess for sale, any marijuana, except as otherwise provided by law”. The section is exclusively for possession for sale of marijuana, all other controlled substances and narcotics are regulated by California Health and Safety Code § 11351.

There is no set numerical value or test to show a person is guilty of Possession for Sale. Instead, a subjective test is used to prove that the person had intent to sell the drugs in their possession. To prove intent, Prosecution uses the Totality of Circumstances Method. The Totality of Circumstances method uses the specific facts and circumstances surrounding a case to make an argument.

If a person is found with a bag containing 20 baggies of carefully weighed out marijuana inside and a handful of cash in high bills, Prosecution will argue that they had carefully measured baggies to sell to customers, and the cash was from the sales they had already made. However, an experienced San Diego Criminal Defense Attorney can prepare a powerful defense that will present the facts in your favor.

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A possession of drugs for sale charge is regulated by California Health and Safety Code §11351. The section makes it unlawful for anyone to possess for sale, or purchase for sale any type of controlled substance or narcotic. These include the popular PCP, Cocaine, Heroin, Methamphetaminessand certain depressants and opiates. Possession for marijuana sales is regulated by California Health and Safety Code §11359.

To find someone guilty of possession of drugs for sale, Prosecution must prove that there was an intent to sell. An intent is generally proven through the Totality of Circumstances method.sIn a Totality of Circumstances test, facts and circumstances of a specific case are used to show that a person had the intent to sell any drugs in their possession.

For example, let’s say that a person is caught with a small bag of heroin in his pocket and nothing else. There are not enough facts to prove that there was any intention to sell the heroin. The person will probably only be charged with Possession of Drugs.s

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Plea Bargaining is a useful tool in many different criminal cases. A plea bargain is essentially an offer made by prosecution. If you agree to plead guilty prosecution will agree to give you a lesser charge and consequently a lesser penalty.

In drug possession cases, plea bargaining can have beneficial results and with the help of an experienced Los Angeles Criminal Defense attorney may be dismissed. An attorney will prepare a powerful argument convincing the Judge to allow you to enroll in a Drug Diversion Program. Many drug possession cases allow for rehabilitation and education classes that, if completed, lead to a dismissal of your case.sThis leaves your permanent record clean, and you would not be required to report it when asked.

For example, if a first time offender has been charged with a sizeable quantity of cocaine they could face possibly felony charges. However, a knowledgeable Los Angeles Criminal Defense Attorney would prepare a defense presenting the client in a positive light. The Judge would consider the strong argument presented in court and may grant the option to enroll in a Drug Diversion program, or in the very least reduce the charges. If a Drug Diversion program is completed, the charges will be dismissed. This is not only greatly beneficial to your future, but also helps you with future employment of educational institutions.

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