1. What are the types of driving police officers look for when they are patrolling the roads?

The initial things that may alert a police officer to your vehicle are:

a) going back and forth over the bots dots
b) speeding
c) Erratic braking
d) Near accidents
e) Slow response to traffic lights and signs
f) Turning abruptly
g) running red lights
h) Swerving
i) failing to stop at stop signs
j) Following too closely
k) Driving off the designated road
l) Looking intoxicated
m) Using the wrong turn signal
n) Drifting
o) Weaving

2. What should I say to the police officer that stops me and asks me if I have been drinking?

You do not have to respond to the police officer’s questions regarding drinking. As soon as the police have stopped you they are gathering evidence against you. Other than requesting your license, registration and insurance information, the police cannot force you to answer any questions.

3. Do you have the right to speak to an attorney before submitting to a field sobriety test?

No, in California, you do not have the right to consult an attorney before deciding whether to submit to a field sobriety test. However, the police can ask you questions concerning your drinking without an attorney present but you do not have to answer.

4. Should I agree to perform field sobriety tests (FSTs)?

No. You are not legally required to perform any of these tests. Field sobriety tests can include a variety of physical tests including: heel-to-toe, finger-to-nose, one leg stand, counting numbers, alphabet recitations, fingers to thumb among others. Whether you pass or not is a very subjective determination and the officer may deem you to have failed even if you felt you did very well. This evidence can then be used to help convict you of DUI. It is often a good idea to politely decline these tests.

5. Should I submit to a Preliminary Alcohol Screening test?
No. This is a test commonly known as the PAS test. It is a hand held portable device that can measure your blood alcohol. The police will tell you that this is not required.

6. Should I submit to a standard chemical test? Can I refuse?

The police officer cannot force you to submit to a chemical test. However, by California law you are required to submit to a chemical or risk the loss of your license. If it is found that you refused the test, your California Driver’s License will be suspended for a one-year period by the Department of Motor Vehicles no matter what the outcome of the court case is. You have the right to a hearing to contest this suspension and must request this hearing within ten (10) days from the date of you arrest.

7. What type of chemical test should I take?

You are often given a choice of Blood or Breath tests. Blood tests are the most accurate of the tests. If you give a blood sample, the sample must be preserved according to specific rules so that it is available to your attorney for independent testing and analysis later. Breath tests are fairly reliable, but the results can be unreliable for a variety of reasons. No breath sample can be preserved for later analysis

8. Should my case be dismissed if the officer never read me my Miranda Rights?

It depends on when and if the officer asks you questions. If he asks questions about your drinking and driving after he has you in custody then he is supposed give you a warning about your 5th Amendment rights, failure to do so usually does not merit a dismissal. However, if an officer fails to inform you of these rights, the prosecution is not allowed to use your answers to their post arrest questions as evidence of your DUI.

9. Why do I have two (2) charges against me?

You are being charged with two separate crimes. In most DUI situations you are charged with [1] driving with a blood alcohol content of .08% or higher, and [2] driving while under the influence of alcohol. You can be convicted of either one or both, but you are only punished once.

10. Why was my driver’s license not returned to me when I was released?

Your license was taken away by the police and you were issued a notice of suspension. This form is your temporary driver’s license for 30 days following your arrest. After those 30 days, your California Driver’s License is suspended unless you request a hearing disputing this suspension with the DMV. WARNING: YOU HAVE ONLY 10 DAYS FROM THE DATE OF YOUR ARREST TO CONTACT THE DMV AND REQUEST THIS HEARING. Michael D. Heller, APLC attorney will be able to contact the DMV for you and represent you at this hearing.

11. What can be done to reinstate my driving privilege if I lost or failed to request a DMV hearing?

After 30 days of actual suspension, Michael D. Heller, APLC can contact the DMV for you and request a restricted license allowing you to drive to and from work and any classes you may be attending.

12. It is my first DUI; can’t I just represent myself?

You have right to represent yourself. But would you perform surgery on yourself if you needed your appendix out? You are likely to get a much more favorable result if you retain a knowledgeable DUI attorney to represent you. In many cases hiring Michael D. Heller, APLC can result in the charges being reduced or dismissed. In addition, the need for jail time can often be eliminated. In most cases you will not have to appear in court.

Michael D. Heller, APLC will review your case and the police reports. He will also analyze the results of the chemical tests, compel discovery of the pertinent maintenance records and arrange for blood samples to be tested by an independent lab. There are Motions that can be filed on your behalf with the court and attempt to negotiate a favorable conclusion with the District Attorney.

13. How much will it cost to hire a lawyer?

Attorney’s fees vary depending on the complexity of the case.
A highly qualified DUI attorney will normally charge between $1,500 to $7,500 to handle the case up to trial. Fees for a jury trial often range from $1,000 to $2,500 per day. Representation at the DMV hearing to try to save your driving privilege can range from $500 to $1,500.

Michael D. Heller, APLC fees are very reasonable. Call for a free consultation which will include a fee quote.

14. What is the “rising blood alcohol defense”?

This is a defense technique that may be available to you depending on the amount of time that has elapsed between the time you consumed alcohol and the time of your chemical test. Alcohol that you drink is not absorbed into your blood stream immediately. It can take as little as 30 minutes to as long as several hours for alcohol that you consume to enter into your blood stream.

During the time that elapses while your are stopped, transported to the station, and waiting for your chemical test you may still be absorbing the alcohol in your stomach. In other words, your BAC is higher at the time of the test is higher than it was when you were actually driving.

15. Are there any defenses available in a DUI case?

While there is no limit to the types of defenses that may be available depending on the facts of any particular case, the following defenses are common in the field of DUI defense.

-Lack of probable cause. If the officer did not have probable cause to stop, detain, test or arrest you, evidence against you may be excluded.

-Lack of proof you were driving the vehicle. In addition to proving you were under the influence of alcohol, the prosecution must also prove that the defendant was driving the vehicle. If there are no witnesses, this may difficult.

-Lack of warnings. If the officer failed to give you Miranda warnings at the required time, incriminating statements made by the defendant may be excluded. Additionally, if you refused to submit to a chemical test and the officer did not appropriately advise you of the consequences of a refusal, evidence of the refusal may be excluded.

-Lack of reliable chemical test results. The reliability of the results of your chemical test may be impeached if the machine was not properly maintained, calibrated and operated.

-Lack of properly preserved blood sample. If you submitted to a blood test, your blood sample must be preserved and available to you and your lawyer for independent testing.

-Lack of reliable observations by the officer. The officer’s observations that a defendant “appeared” to be under the influence or that he/she “failed” a field sobriety test can sometimes be impeached. Your attorney can expose the officer’s bias or use witness to contradict his observations.

16. Will I miss much time from work because I have to appear in court on my DUI matter?

A DUI is usually classified as a misdemeanor, The use a Penal Code 977, which is a Waiver of Personal Presence may be invoked thereby allowing Michael D. Heller, APLC to appear in court on your behalf without you having to be present. Therefore you will not have to miss work or sometimes more importantly embarrassingly be recognized in court.