2009 November Archive

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Because it can sometimes take between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is administered on the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC at the time of driving was below.

However, if a person is intoxicated while driving and is stopped, and is no longer absorbing alcohol, as time elapses his blood alcohol level would begin to fall, which means that any results from a blood, urine or breath test may be less than what the actual BAC was at the time the suspect was driving.

The rate of absorption of the alcohol, or timing of absorption, will vary greatly from person to person. This is due to many personal factors, including how much food a person had in his or her stomach at the time of the drinking, how much alcohol the person drank, and even the shape of the person’s stomach (which affects how quickly and efficiently food and liquids leave the stomach). This is why officers always ask exactly how many drinks were consumed, and most importantly, WHEN.

The prosecution can rely on a piece legislation that creates a presumption that the BAC level found at the time of testing was the same as when driving, as long as the test is done within 3 hours. This puts the burden on the Defendant to prove that the BAC was rising.

If you or a loved one is being charged with a DUI, you need an attorney who knows the law and who will fight for you in your criminal matter, but who is also aware of the consequences that may arise in regards to your driving privilege. The experienced California DUI defense attorneys at Wallin & Klarich will fight on your behalf to work toward the best possible outcome in your case. Call us at 1-888-764-2615 and visit us at www.wklawdui.com for more information.

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In California, a person caught driving with more than .08 percent blood alcohol will have their license suspended. Typically the Department of Motor Vehicles will issue a suspension of four months on a first time offense. In addition to a license suspension, most offenders can expect to be placed on probation.

As of 2009, California law creates new authority for the Department of Motor Vehicles to suspend driving privileges if the driver is on probation for a DUI offense, and found with any level of alcohol in their system. Under previous law, a suspension would only occur if the person was convicted of a second DUI. This new law means that a person’s blood alcohol content can be as low as 0.01% and you can still lose your license. This penalty also applies if the probationer refuses to submit to a breath test.

Hiring an experienced criminal defense law firm can greatly increase your chances of keeping your license. The attorneys at Wallin & Klarich have been helping people keep their license for over 30 years.

Please feel free to contact the skilled California DUI defense attorneys at Wallin & Klarich to discuss your case. You can reach us 24 hours a day, 7 days a week at 888-764-2615 or go to our website at wklaw.com for more information.

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If you are convicted of a second time DUI in California, your sentence will include 4 days of jail. For this offense, the law requires judges to sentence you to a mandatory minimum of 96 hours in custody. The DUI will count as your second if you had one other previous DUI conviction within the last ten (10) years. This is true whether your first DUI occurred in California or in another state. If you have two previous DUI convictions, but one of them is from more than 10 years ago, then the prosecutors will only count the prior DUI conviction from less than 10 years ago, making your new DUI conviction only your “second” for purposes of your sentence.

Even though the law requires a minimum of 96 hours in custody on a second DUI, that does not necessarily mean you will go to jail for 96 hours. For example, in Riverside County, even if you are sentenced to “jail,” it is typically understood that you will actually be picking trash up on the side of the road or doing other dirty work, in lieu of spending your time in jail. In Orange County, the typical sentence for a second time DUI ranges from 30 days to 90 days in jail, with the most common sentences being 60 days and 45 days in jail. In other words, if you are convicted of a second DUI in Orange County, you could expect to get 20 times the minimum mandatory jail sentence. In San Diego County, judges frequently only impose the mandatory minimum sentence of 96 hours for a second time DUI.

As you can see, judges in different counties treat a second time DUI very differently. This shows how important it is to make sure you hire a lawyer who is very familiar with the court and the judge that your case is in. At Wallin & Klarich, each of our lawyers handles second time DUI’s in only one county. If you would like to learn more about our DUI defense lawyers, please go to our website at www.wklawdui.com.

If you or someone you love is facing a DUI where you have a prior conviction for DUI, please contact Wallin & Klarich today via phone at 1-888-764-2615 or fill out our online consultation form for an evaluation of your criminal case.

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We help many people who are accused of driving under the influence of alcohol. Many of those people wonder, “What am I supposed to do when I’m pulled over and the police officer starts asking me questions about whether I’ve been drinking?” Here’s the answer.

You should always make sure that you keep you driver license, proof of car insurance, and proof of registration in an extremely accessible location within your vehicle. Make sure you know where they are at all times. When you are pulled over, those are the first 3 documents that a police officer will ask for. If you spend some time rummaging through your glove box and your wallet or purse trying to find these three documents, the officer will write that in his report. Cops frequently write that DUI suspects “fumble” with the paperwork when trying to locate and hand over these three documents. Cops refer to it as “fumbling” because the word suggests lack of coordination, which is evidence that you are intoxicated.

Also, when you are pulled over, do not wait for the officer to approach you and ask for the documents. Get these documents out before the cop has time to approach your door. You do not want him watching you retrieve these documents. You already know he is going to ask you for them, so you would be smart to have them in an accessible location and have them in your hand and ready to give to the cop when he asks for them.

From that point on, the officer will be looking for evidence that you are intoxicated. Such evidence will include whether your eyes are red and watery or droopy, whether your words are slurred when you speak, and whether your breath, your person, or the inside of your vehicle smells like an alcoholic beverage.

You give the cop an opportunity to obtain this evidence when:

1. you look at him so that he can see your eyes,
2. you speak,
3. and you roll down your window.

To avoid giving the officer this evidence against you, do not look directly at the officer’s face or eyes, do not speak in his direction (in fact, do not speak at all if you don’t have to), and do not roll your window all the way down. The only thing you are required to do is provide the officer with those initial 3 documents. If he asks you questions, you have the right to keep your mouth shut, literally, and not answer any of his questions, except for your name and where you live.

If you have been pulled over for a DUI and you have questions about how you should proceed now, please contact the skilled Southern California DUI attorneys at Wallin & Klarich today via phone at 1-888-764-2615 or fill out our consultation form for an evaluation of your DUI or other criminal case.

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In our final discussion of how you do not have to be drunk to be arrested for driving under the influence, we conclude by stating that in any DUI prosecution, the concentration of alcohol in your blood or breath will be considered. Depending on your blood alcohol concentration (BAC), the judge and jury may be permitted to infer that you were “under the influence at the time of driving.” This is accomplished by the testimony of the state’s expert witness of concentration of alcohol in the blood.

However, this scientific evidence of your BAC is not absolutely necessary to convict you. Individuals who have refused to submit to any chemical blood or breath test for alcohol concentration have been convicted of DUI solely on the basis of the testimony of police officers as to the defendant’s erratic or unlawful driving behavior.

To successfully defend against DUI charges you must hire an experienced California DUI defense attorney who understands your rights in the context of California DUI Laws.

If you or someone you love has been accused of a driving under the influence in California, it is important to promptly contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-764-2615 or www.wklawdui.com for a consultation of your case. We can help you.

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As the second post in our discussion of how you do not have to be drunk to be arrested for DUI, we start by providing a brief summary and timeline of the DUI arrest and investigation process:

First, the arresting officer will allege that something about your driving pattern or vehicle condition led him to lawfully stop your car. An actual vehicle code violation is most commonly cited, but NOT required to justify a stop. The legal standard required for a lawful stop is “reasonable suspicion.”

Next, the arresting officer will go on to further allege that you displayed the common “objective symptoms” of intoxication (odor of alcohol, slurred speech, red eyes, flushed face, etc). These objective symptoms can later be used at trial to help establish intoxication versus sobriety.

Finally, the officer will detail in his police report whether you passed or failed the roadside coordination tests (field sobriety tests).

DUI arrests and prosecutions involve complex legal and constitutional issues. If you or someone you love has been arrested for DUI in California, it is important to promptly contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-764-2615 or www.wklawdui.com for a consultation of your case. We can help you.

Read the concluding discussion of this blog subject in Part 3 of our series in the next posting.

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In our three-part series discussing how you do not have to be drunk to be arrested for DUI, we begin by stating that in a sense, the phrase “drunk driving” is a misnomer. You do not have to be “drunk” to be deemed “under the influence” or “impaired” for purposes of a DUI arrest, prosecution and conviction.

The relevant inquiry is whether your ability to drive was “impaired” such that you were not as cautious or alert as a non-drinking person would have been in similar circumstances. Proving and disproving this requires a thorough analysis of the facts and circumstances surrounding the stop of your vehicle and subsequent DUI investigation.

If you or someone you love has been accused of a driving under the influence in California, it is important to promptly contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-764-2615 or www.wklawdui.com for a consultation of your case. We can help you.

Read part 2 on this topic in the next blog posting.

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A new ruling by the United States Supreme Court is expected to impact the prosecution of DUI (Driving Under the Influence) cases in California and across the U.S. The Supreme Court ruled that when crime lab or breathalyzer reports are used to establish that a defendant was under the influence of a high level of alcohol or illegal drugs, the prosecutor must make a laboratory technician available during court to testify in person. In its decision, the Supreme Court equated such lab reports to witnesses for the prosecution. Justice Scalia wrote, that under the Sixth Amendment a defendant has the right to “be confronted with the witnesses against him.” In DUI cases (drug or alcohol), and other cases in which lab reports play an important role in the prosecution’s case, Scalia wrote that defendants were “entitled to be confronted with the analysts at trial.”

Prosecutors have expressed concern about the cost and potential availability of lab technicians for courtroom appearances. However, in his successful arguments before the U.S. Supreme Court, Stanford University law professor Jeffrey Fisher noted that presenting crime experts at trials is already common practice in some states, including California. While prosecutors down played the impact of the Supreme Court ruling, criminal defense attorneys applauded the opportunity to challenge lab reports in court, noting that crime labs sometimes make mistakes that result in the conviction of innocent people.

California prosecutes DUI cases aggressively. A DUI charge results in two proceedings against a defendant: a criminal court case and a Department of Motor Vehicle hearing. Legal proceedings can be complex, and a conviction can have serious consequences (including the loss of your license, and jail time). A DUI charge demands immediate attention and aggressive action from an experienced California DUI defense firm like Wallin & Klarich. If you, or a loved one, are facing a DUI charge, please call our firm at 1-888-764-2615 for an initial consultation. We will be available 24/7.

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California’s Prop. 36 allows nonviolent drug offenders to participate in treatment programs rather than go to jail. Eligible defendants plead guilty to the underlying drug charge, and are then placed on probation and ordered to complete an outpatient program. If they do so, and comply with the terms of probation, the drug case is ultimately dismissed. But eligibility for Prop. 36 is laced with restrictions, one of which pertains to DUI charges. A person charged in the same complaint with both a nonviolent drug offense and a DUI offense does not qualify.

The restriction stems from language in Prop. 36 itself that excludes “any defendant convicted, in the same case, of any misdemeanor not related to drugs or any other felony that is not a nonviolent drug possession offense.” The California Supreme Court has found “misdemeanor not related to drugs” charges to include DUI charges.

Suppose, for example, that a potential defendant gets pulled over for weaving (a typical reason for a DUI stop) and the cop finds a small amount of cocaine in his car. Normally, he would qualify for Prop. 36, but if he’s also charged with DUI he will not qualify for Prop. 36. This will be the case unless the prosecuting attorney drops the DUI, or the defendant goes to trial and wins on the DUI charge.

This “DUI exclusion” is unfortunate. DUI suspects, who also possess or are under the influence of drugs, probably need treatment as much as anyone, if not more so. Denying them the benefit of Prop. 36 defeats the policy goals and ultimately hurts everyone.

If you, or a loved one, are charged with a DUI, or a DUI and possession of drugs, it is important that you contact an experienced California DUI defense attorney who can provide assistance in protecting your rights. The experienced attorneys at Wallin & Klarich can provide such assistance in your time of need. Please call us at 1-888-764-2615 or visit us online at wklawdui.com.  We can help you.

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California makes it illegal to drive under the influence of a drug, or under the combined influence of alcohol and a drug. Being under the influence of an illegal drug is not required to be convicted of DUI drugs (California Vehicle Code 23152(a)).

You can be arrested and convicted for DUI when under the influence of legally prescribed medication or lawfully purchased non-prescription/over-the-counter drugs. The relevant inquiry is whether the legal or illegal “drug” has adversely affected your ability to operate a motor vehicle. It can be difficult for the prosecution to meet its burden of proof here.

If you or someone you know is facing DUI criminal charges in California, call Wallin & Klarich. Wallin & Klarich has over 30 years of criminal defense experience. Call 1-888-764-2615 to speak to one of Wallin & Klarich’s aggressive and experienced criminal defense attorneys in California today. Also visit us on the web at www.wklaw.com.

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