DUI Defender

A bill awaiting Governor Schwarzenegger’s will significantly alter the landscape of DUI convictions and, I predict lead to more jury trials. AB 645 will change the penal code regarding “expungement” from providing for a mandatory record clearance at the successful completion of probation, to making it discretionary. This dramtically changes the options available to a person facing a DUI or a “wet” reckless, as they are not entitled to an expungement after successful completion of of their probation.

In the past, a person, upon pleading guilty, no contest or being found guilty by a jury had the option of petitioning the sentencing court for an expungement. An expungement was a legal fiction that essentially allowed the court to change the conviction to a finding of not guilty. While it didn’t remove the prior conviction from the person’s criminal record (it could still be used as a prior conviction for enhancement purposes) it allowed a person to state, lawfully, that they had not been convicted of a crime in certain situations. A person who received an expungement still had to admit the conviction when applying for any government issued license or permit if the application specifically stated that expunged or sealed records must be admitted, but for the most part it allowed a person in private business to deny any criminal past. This was an approach that many younger people took, they could admit their wrong doing, successfully complete probation, suffer through three years of bad jobs, no raises or promotions, or any other punitive measure an employer might choose for an employee convicted of DUI or a “wet” reckless, then petition for an expungement, quit their job and move on to a normal, productive life. This essentially prevents that option, I anticipate that more people who might have “sucked it up” will now take their chances at trial since it is a winner take all forum.

This represents yet another action by the State of California to change the plea “bargain” agreements it enters into with citizen’s in the criminal justice system. A few years ago it changed the “look back” period from 7 years to 10, this resulted in many persons who thought that they had moved on past the 7 year period to be charged with prior convictions despite the agreement with the State that the prior would only count for 7 years. I know of at least one person who’s insurance rates were raised when the law changed and the DUI appeared on his record, again.

The simple fact is that if you can’t count on the State honoring its agreements, you have to go to trial.

We’ve been having a lot of fun using Yahoo Answers to communicate with people about their DUI issues.

You can see the full Kapsack and Bair profile.

Here’s one of our recent answers. We are pretty sure it was the best, but it was not chosen for some reason. Oh well, you can lead a horse to water …

Question
I was pulled over a couple weeks ago at a dui checkpoint in Orange County and took the blood test and got the results that were .08 BAC. I am not proud of this, and am willing to pay the consequences for my actions. I am wondering what that is going to entail. Here is the thing with my case. I am moving to New York on August 1st. My job is transferring me to our firm out in the city and its already all in the pipeline. My court date is august 10th, so I think I am just going to move my start date back because I don’t know if I can go to court earlier. I called a lawyer’s office and they charge 4000 to fight the case, so I think I am just going to go in there alone. I need info on probation, costs, classes, etc. Especially in regards to how that works since I’m moving (I currently live in Cali). Thanks so much in advance for any advice. I really appreciate. Please don’t preach to me, I already feel bad.

Our Answer (from Bruce)
DON’T MAKE ANOTHER MISTAKE. First, roadside checkpoints are generally not constitutional. In order to pass muster, they must have publicity, proper notice, a way to avoid the stop and almost a dozen other REQUIRED criteria. It is unusual for the police to conduct these stops correctly. If the judge decides the police acted improperly in a checkpoint, then the resulting cases are dismissed.

Second, ALL chemical tests have a margin of error of AT LEAST .01. This means you may be below the legal limit, and under the presumption of innocence we all share, this benefit of the doubt goes to you.

Next, most courts will reduce these borderline case to less than a DUI. In fact, given the court you are in, and the facts you presented, the DA is likely to reduce the charges to non alcohol allegations because of the weaknesses I just pointed out.

While four thousand dollars may seem like a lot, you will make it up in saved fines (about ten thousand dollars for a DUI), school costs (about three hundred), license suspension (six months) and jail time. Add in to this the insurance cost for DUI insurance (about $3500 per year for 5 years) and you see why it is cheaper to fight than not.

Of course, you must also remember a DUI is a criminal conviction which may effect the rest of your life.

Driving under the influence was a mistake, not fighting a case like this would be worse.

I recently came across an article written by an Illinois DUI defense attorney, Donald J. Ramsell, discussing the ramifications for an Illinois licensed driver when they are convicted of a DUi in another State. In the 10 years that our firm has been practicing DUI defense we have always been aware that handling a Illinois licensed driver is a difficult proposition. The main difficulty arises because the Illinois licensing agency treat a DUI as a more serious offfense, even a first offense will trigger a one year revocation. If you have an Illinois drivers license, I strongly encourage you to visit this article to see how your DUI charges may effect your driving privileges in Illinois. The effects of a DUI conviction may drive your decision to fight your DUI or look for a new home state.

Last year the State changed the “look-back” period from 7 years to 10 years,thereby increasing the length of time a DUI convict can be charged with a “prior” conviction and subject to additional penalties. The State made this change to the contractual relationship it had with every DUI defendant without offering any sort of “consideration.” Consideration is required when a party chooses change a term of a contract to which they are a party.

Whenever a person is convicted of DUI they are informed that it is a “priorable” offense meaning that the offense they are currently being convicted of can be used to increase the penalty should they engage in the same conduct at some future time. The look-back period was limited to 5 years in the late ’80′s and has been 7 years until a year ago when the Legislature changed the look back period to 10 years. What this change has meant over the years is that a person who was arrested for a DUI with a prior conviction within the statutory period could be prosecuted for a more serious crime with significantly more draconian punishment.

Many persons opt to resolve their cases and enter a contract with the State that states the terms and conditions under which they will cease the defense of their case, the terms and conditions often include the look back period. Had the person been aware of a 10 year look back would they have resolved their case? Probably so but, to unilaterally change the length of time the State can look back alters a material term of the agreement.

Our firm continues to challenge the State on this issue under numerous theories including the contract theory discussed above. While we are having limited success, it is important that when you are charged with a DUI and a prior conviction, you meet and discuss the facts of both the prior conviction and the current offense with a lawyer who can advise you of possible challenges to both the current case and the prior conviction. A prior conviction may not be re-litigated but there may be problems with the way the plea was taken by the court, or the court you are in may one of the court’s we have had success preventing our client’s from being charged with a prior conviction outside of the originally agreed upon look back period. A qualified lawyer can help you navigate the laws and provide you the best chance to avoid the penalties associated with a second, third or fourth offense DUI.

A few months ago I wrote about a topic covered by Time Magazine relating to distractions caused by cell phone use. In that article the author equated the distraction level as being that of a person driving with a .08 blood alcohol concentration. I recently came across a web site declaring war on cell phone using drivers. The discussion addresses many associated with use of cellular telephones including the DUI analysis made by Time magazine in December. The article includes statistics relating to the difference between hands free cellular phone use and hand held cellular use.

The article concludes there is no difference as the content of the conversation and not the use (or lack there of) of hands is the problem. The author continues on to analyze the effectiveness of laws directed at cellular phone use and the efficacy of additional laws to prevent cellular phone use in cars, period. While the use of phones continues to pose a risk similar to that of drunk driving, it continues on in a widespread fashion, there are no political action groups despite growing statistics demonstrating the risk and preventability of these accidents.

From time to time we encounter persons charged with driving under the influence who are licensed by the FAA to fly aircraft. Often these persons are as concerned (sometimes more concerned) with the FAA’s action toward their pilot’s license than the State’s action against their driving privilege. The rules are somewhat convoluted and an attorney can definitely help sort out the impact of a DUI arrest on a pilot’s license. I found an excellent site that discusses the effect a DUI can have on a pilots license.

The simple explanation is that a person with a pilot’s license need not self report until either an administrative action has been taken against their driving privilege, or they have been convicted of an alcohol related driving crime (DUI, OWI, DWI, etc.). If one of these events occurs (either a driving privilege suspension or restriction or criminal conviction for an alcohol related driving crime) the pilot has 60 calendar days to report the action and incident to the FAA. The pilot must report each action despite having arisen from the same event. This means that a pilot must notify the FAA if there is an action against their driving privilege and send a second notice if they are convicted of an alcohol related offense. The FAA has an online resource for questions relating to this particular aspect of their licensing rules and regulations.

A study recently funded by the Robert Wood Johnson Foundation, an organization whose goals are to improve the health and health care of all Americans, recently concluded that increased penalties for DUI do not deter DUI. Researchers looked at the changes in law and policies from 1976 to 2002 and dui arrest and accident fatality data for the same period. The study was conducted at the University of Florida and concluded that despite an increase in penalties the number of DUI’s committed were not reduced. The researchers concluded that the increased penalties had no deterrent effect on DUI.

There has been a lot of discussion recently regarding diet and alcohol. Some in the medical community have documented the fact that diabetics can enter a state of ketosis wherein their breath will test positive for alcohol on many types of breath analyzers that have specificity issues (devices that are not alcohol specific). In a recent Swedish study researchers found that low calorie diets can result in false positives that prevent ignition interlock devices from allowing cars to start. If the devices can’t tell the difference between ethyl alcohol, ketones and isopropyl alcohol, how can we trust the results of blood alcohol measurements made by similar machines used in law enforcement?

In February of this year legislation was introduced to require an Ignition Interlock Device on any car owned by a person convicted of Driving Under the Influence.  Earlier this month I wrote about why I thought this was a bad idea.  In an on-line post “The Spitzer Report” an article regarding the legislation was quoted.  The article cites statistics to support the effectiveness of IID in preventing future DUI’s.  The statistics misrepresent reality.

1)  Spitzer is quoted as saying “California Highway Patrol statistics that show from 2005 to 2006 there was a 14 percent increase in the number of people convicted of driving under the influence with a suspended license for a prior DUI.”  If these driver’s don’t regard the suspended status of their license, why on earth, would they install an ignition interlock device on their vehicle?  The fact of the matter is a certain number of persons will drive with complete and total disregard to the legal status of their driver’s license or sobriety.  I’m not certain why this particular statistic supports the legislation, nor am I sure why this statistic is relevant to deterring future DUI.

2)  “In 2005, there were 23,500 convictions, compared with 26,900 in 2006.”  This statistic again misrepresents the truth.  In 2006 the “lookback” period for prior DUI’s was changed from seven (7) years to ten (10) years. 

The “lookback” period is the amount of time a prosecutor can look back in time to determine if a particular defendant has a prior conviction for DUI.  In 2005, the “lookback” period was seven (7) years meaning that a person who was convicted of DUI in 1998 could be charged with a prior however a person convicted of a DUI in 1997 could not.  In 2006, the lookback period was changed to ten (10) years, meaning that while a person convicted of DUI in 1997 could not be charged with a prior conviction in 2005, they could be charged with a prior conviction in 2006.  This increased the number of driver’s who could potentially be charged with a prior offense rather dramatically as it added every person convicted of DUI between 1996 and 1999 liable for a prior conviction.  This change in the law would easily make up the increase in repeat offenders.

Finally, the article which Spitzer cites in his on-line post concedes, “However, the [DMV] study also found that the device is not effective in reducing DUI convictions or incidents for first-time DUI offenders.”  Which leaves me scratching my head since the ignition interlock is already required for second offenders who wish to be licensed following a one year suspension.  The legislation just seems unduly punitive with no statistical support for the goals it intends on supporting.

A bill is currently working its way through the California State Legislature (Senate Bill 177) that will require every person found guilty of DUI to install an ignition interlock device on their car.

Ignition Interlock Device-

An ignition interlock device is a machine that is installed in a car between the key and the starter.  The driver must blow into the device prior to the car starting.  If the machine determines that the driver is not “sober” it will not start.  These devices also require periodic testing of the driver, meaning that while the car is on the road the driver must blow into the device.  In the event that the vehicle detects alcohol, it initiates an alarm, the lights and horn will sound until the vehicle is shut off, it does not shut off the engine immediately.

Why this is bad-

The number one reason cited by MADD and the proponents of this change in the law is the increased rate of repeat DUI’s.  The statistic most recently cited by the proponents of this law (who include the lobby group for the manufacturer’s of these devices) includes all of the new repeat offenders added to the statistic since the “look back” period was changed from seven years to ten thereby increasing (by at least a third) the number of persons subject to inclusion in any repeat offender statistics.  The statistics in New Mexico, the only State to have a mandatory IID requirement for first offenders have been seriously manipulated to create the illusion of effectiveness.

This law will unfairly effect the working poor more significantly than the rich.  The Ignition Interlock Device must be purchased or leased from a provider.  The device must be brought in to a licensed provider every so often to have data downloaded and have its calibration verified, this too costs money.  What will the people who can not afford these devices do?  They will either sell their existing car (and purchase another car in someone else’s name), or transfer ownership to another person.  Once the title is no longer associated with the convicted driver, the Ignition Interlock is no longer required.  It doesn’t matter who’s driving the car, only to whom the car is registered.  While this will not satisfy the requirement that a device be on any car driven by the convicted driver, it is only possible to verify that any car owned by the driver has an ignition interlock installed.

The law will adversely impact the lease car industry.  The IID is hard wired into a car meaning that it must be bolted to the car, the damage caused by the installation violates the terms and conditions of most automobile leases.

The device is non-specific for alcohol.  I have had client’s who could not start their car shortly after smoking a cigarette or using mouth wash.  Many of the defenses we use to challenge criminal cases are applicable to these machines as there are no safeguards.  Some gums and other breath fresheners will cause positive measurements; again the car will not start.  The lack of specificity could result in sober people not being able to start their car to drive to work or appointments.