ORANGE COUNTY DUI FREQUENTLY ASKED QUESTIONS

1. Should I get a lawyer? Why can't I represent myself?

Answer:  You have an absolute right to represent yourself in any Orange County DUI case. However, I would warn you of an old saying that goes, "He who represents himself has a fool for a client." The truth is that adequately defending yourself in an Orange County DUI case is about as impossible as performing triple bypass surgery on yourself. A DUI charge requires an DUI attorney. It really is that elementary.  A Orange County DUI charge requires an expert Orange County DUI lawyer because only an expert Orange County DUI attorney is familiar with the analysis methods, evidentiary and constitutional issues that will be faced in most every Orange County DUI case. The truth is that in order for an attorney to adequately represent you in your Orange County DUI case, he must be not just knowledge in DUI law, but actually be an expert himself in the field of DUI law. A general “jack of all trades” attorney is not much better than no attorney at all.  That is because Orange County DUI cases are extremely complex. Orange County attorneys who have the required expertise are few and far between. The best way to find out if an attorney is qualified to successfully handle your Orange Count DUI is to ask him questions to find out if he is has the qualifications. A competent Orange County DUI Lawyer should be able to easily answer the following questions: What is the average hourly burn off rate?  What is the percentage amount of preservative that should be in a blood sample? What are the three Standardized field sobriety tests recommended by the NHTSA? What does NHTSA stand for? When does a person reach their peak absorption level?  If your attorney can’t answer these “simple” questions, he probably doesn’t have the required expertise to adequately defend you in your Orange County DUI case. Call Orange County DUI Lawyer Randall T. Longwith today for a Free Consultation at (714) 879-7007.  He has the expertise and proven results to successfully represent your Orange County DUI case.

2.  Why shouldn’t I just hire the cheapest attorney?

Answer:  Why? Because you get what you pay for. That is just the truth. Just as I mentioned above, a huge difference exists between jack of all trade or “dump truck” attorneys and a specialized Orange County DUI attorney with expertise in the area of drunk driving law.  Many attorneys charge a cheap price because 1) they know what their work is worth and 2) because they know they are not going to work hard on your case. These types of attorneys take your case and try and “plead you out” as soon as possible so they can get on to the next one. They make their money in volume. At the Orange County DUI law office of Randall T. Longwith we focus on quality, not quantity.  We approach every case with the goal of resolving your case as successfully as possible.  We visit the scene of the traffic stop, takes photos, investigates the history of DUI officer, identify everything our client does consistent with sobriety, we recognize key police mistakes, we uncover the maintenance history of the equipment used. We do what needs to be done.  Even with an expert Orange County DUI Attorney, you may not win your case. But you will dramatically increase your chances of winning. And you will know that you did everything possible to prevent the DUI conviction. Call Orange County DUI Attorney Randall T. Longwith today for a Free Consultation at (714) 879-7007.  He has the expertise and proven results to successfully represent your Orange County DUI case

3.  What if the police didn't read me my rights before they arrested me for DUI?

Answer:  Many people are under the mistaken belief, a mistaken belief, that the police must always read people their Miranda rights any time they make a DUI arrest. Unfortunately, however, there is no automatic requirement that the DUI officer read you your rights as part of every Orange County DUI arrest. The Miranda rights are only required when both (1) you’ve been placed under arrest for an Orange County DUI and (2) the DUI officer continues to interrogate you.  “Under arrest,” for DUI purposes, usually means the DUI officer has placed you in handcuffs and literally puts you into custody. “Interrogation” means the officer continues to ask questions designed to elicit an incriminating response—questions such as “How many drinks did you have? What were you drinking? Do you feel intoxicated?” Once you have been placed “in custody,” if the DUI officer wishes to interrogate you further, then he must first read you your Miranda rights. If he fails to do so, an expert Orange County Drunk Driving lawyer, such as Randall T. Longwith, can argue to get excluded from evidence anything you say after being taken into custody and before the DUI officer reads you your rights.

4.  I was driving, I got arrested, and the test showed that I had been drinking. Can a Orange County DUI attorney do anything to help?

Answer:  The short answer is YES!!! In many cases, the reason behind the stop of your car and reliability of the test results can be attacked by an expert DUI attorney both in and out of court. Police officers write hundreds of reports a week and often fail to include details which, when properly investigated through the skillfully eye of an expert Orange County DUI Attorney can provided a legal defense for the stop and possible the administration of Field Sobriety Tests and Chemical Tests.  Further, even if we cannot show there was a problem with the machine, it is often possible to show the results are not reliable and that errors and/or mistakes can be made, and therefore a reasonable doubt may exist as to the accuracy of the test result in a particular case.  Don’t assume you have to plead guilty. You do have alternatives. Call Orange County’s Premier DUI Defense Attorney Randall T. Longwith today for a FREE CONSULTATION. (714) 879-7007.

5.  What if I know the test results showed that my alcohol level was over the .08%? Shouldn’t I just plead guilty?

Answer:  Experienced Orange County DUI attorneys like Orange County’s Premier DUI Defense Attorney Randall T. Longwith help prevent DUI convictions all the time--even in cases where the BAC breath machine says the blood alcohol content is over the legal limit of .08%. There are several reasons. First, the DUI breath machines such as the one commonly used in most Orange County DUI cases, The ALCO SENSOR IV, are prone to error. Sometimes the DUI breath machines suffer from technical problems, are improperly maintained, haven’t been calibrated, or are not administered correctly by the DUI officer. Even if there are no obvious problems such as these, the breath alcohol machines also suffer from an inherent range of error.  Second, there are often biological factors and medical conditions that cause people to generate falsely high readings on the DUI breath machines. These include, among other things, GERD, acid reflux, heartburn, stomach ailments, fever, illness, braces, cavities, gingivitis, and Adkins-style low-carb diets. Any of these have the potential to cause false and exaggerated BAC results in the DUI breath machines. Third, a person’s BAC is often higher when he takes the test at the police station than it was earlier when he was actually behind the wheel. This occurs because it can take several hours for the alcohol, once consumed, to absorb fully into the DUI suspect’s bloodstream. For example, a DUI suspect’s BAC may be a .06 at the time he gets pulled over, then rise to a .11 an hour later when the breath test is administered.  This presents a serious challenge for DUI prosecutors. California DUI laws are based on one’s BAC level at the time of driving, not at the time of the test. The subsequent DUI breath test results merely provide an inference as to what your BAC may have been at the time of driving. “Guest-imating” backwards from the time of the breath test to assign a BAC level at the time of driving involves assumptions, speculation and uncertainty. A conclusive inference can rarely be drawn. And remember: The prosecutor, not citizen accused of DUI, bears the burden of proof in a DUI trial. You don’t have to prove that you were below the limit at the time of driving. Rather, the DUI prosecutor must prove that your BAC was at or higher than the legal limit of .08 at the time of driving. And this proof, always, must be demonstrated beyond all reasonable doubt. The point is this: DUI cases are rarely open and shut. A knowledgeable Orange County DUI lawyer can win many cases even though the client’s BAC level is measured to be well over the legal limit. Call Orange County DUI Attorney Randall T. Longwith today for a Free Consultation at (714) 879-7007.  He has the expertise and proven results to successfully represent your Orange County DUI case

6.  Do I have the constitutional right to speak to a DUI attorney before I have to take a field sobriety test or FSTs?

Answer:  Unfortunately the answer is probably “no.” This is because your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in custody. However, if at any time during the officer's stop, you believe you need an attorney, you should respectfully ask for an attorney. Listen to what the officer says in response to your request for an attorney. This response could be very important if he misrepresents what the law is to you. This information could go to reflect upon the officer's credibility and could be used to impeach the officer at trial. If you have been arrested for a DUI in Orange County, call Orange County’s Premier DUI Defense Attorney Randall T. Longwith today for a Free Consultation at (714) 879-7007. 

7.  What about before a breath or blood test? Don’t I have a right to speak to an Orange County DUI lawyer before deciding whether to take the BAC breath or blood test?

Answer:  Again, the answer seems to be “no.” Upon arrest for an Orange County DUI, the officer gives you the choice of a blood or breath test (unless he suspects you are under the influence of drugs, in which case he can require that you provide a blood sample). Under California DUI law, you do not have the right to consult a DUI attorney before deciding which BAC test to take, or whether to take the blood or breath tests at all.

8.  If the police officer asks me if I have been drinking, how should I respond?

Answer:  If the officer asks you if you have been drinking, your answer will play a significant factor in the officer's decision to arrest you, and in the prosecution's case against you. I believe such questions are accusatory in nature and you should respectfully decline to respond in a polite and courteous manner. I would suggest you respond, "I would like to speak with an attorney before I answer any questions." Remember, the officer does have a right to certain information which the courts consider routine questions. For example, you should give him your name, your address and your date of birth. When the officer inquires, however, about drinking ask for an attorney as described above. The officer will then probably say you do not have a right to an attorney and ask you to answer the question. At this point, I think your best course of action would be to respectfully decline to answer. An experienced Orange County drunk driving attorney such as Randall T. Longwith will give the jury good reason for declining to answer the question.

9.  The paperwork I received for my DUI says I am being charged with two crimes? Why?

Answer:  California law defines the crime of DUI two different ways: Vehicle Code or VC 23152(a) is driving while under the influence of alcohol or drugs or both; VC 23152(b) is driving with a blood alcohol level of .08 or higher. California law considers these to constitute two separate misdemeanor offenses. Orange County DUI suspects routinely get charged with both counts. How does this play out in court? If you plead guilty to both or go to trial and are found guilty of both you would really only be sentenced and punished as to one of them. Keep in mind the distinction between the two charges. In theory, someone could be guilty of VC 23152(a)—driving under the influence—and not guilty of VC 23152(b), driving with a BAC .08 or greater. This is the case because different people become “under the influence” at different BAC levels. Someone could be a .06 BAC, well within the legal limit, but because of his/her sensitivity to alcohol, nevertheless be under the influence. On the flip side, someone could be guilty of VC 23152(b), but not VC 23152(a). For example, someone with a higher tolerance could be driving at a .09 BAC, above the legal limit, but still not be under the influence. This person is less sensitive to alcohol. Therefore, he or she can sustain a higher blood alcohol level without suffering the mental and physical impairment that compromises his ability to drive a car safely. Different experts hold different opinions as to the BAC level at which everyone in the population becomes under the influence, regardless of individual tolerance levels.

10.  What is a sentence "enhancement"?

Answer:  A sentence enhancement in an Orange County DUI offense is a factor during the offense that the court can use to increase the punishment. Enhancements include prior DUI’s, children, reckless driving and speeding, blood-alcohol concentration was over .15%, refusal to submit to a chemical test, an accident, arrestee under 21, and personal injury or death to another caused by drunk driving. Call Orange County DUI Attorney Randall T. Longwith today for a Free Consultation at (714) 879-7007.  He has the expertise and proven results to successfully represent your Orange County DUI case

11.  Are the California DUI penalties greater for higher BAC levels?

Answer:  California DUI laws provide for an enhancement (or increased penalty) when the person’s BAC measures .15 or higher. Prior to changes to California DUI law in 2006, the enhancement had been triggered by a .20 BAC. The only mandatory consequence of the .15 BAC enhancement is a 6-month alcohol program rather than a 3-month alcohol program. However, in practice many prosecutors will seek—and many judges will impose—tougher DUI sentences the higher the person’s BAC level. These increased DUI penalties range from jail time, CalTrans, work sentence and steeper fines to mandatory AA meetings. All of these consequences, including the .15 BAC enhancement itself, are negotiable between the prosecutor, judge and DUI defense attorney. Among DUI judges, DUI prosecutors and legislators, there is a widely held belief that DUI defendants with high BAC levels have an alcohol addiction problem (as opposed to merely poor judgment about the choice of whether to drive while intoxicated). Therefore, it is believed that higher BAC defendants need a stronger intervention in order to address the alcohol problem and stop them from continuing to pose a danger to the community. This is particularly true if the person has prior DUI convictions.

12.  If I am convicted of DUI, what will it ultimately cost me financially?

Answer:  A California DUI conviction imposes both direct and indirect financial costs. The direct financial costs of a DUI are relatively inexpensive. The fines rarely amount to more than about $1600.00. The mandatory DUI alcohol classes—such as the 4 month AB541 or the 18 month SB38—may add another $1000.00. Also, one must factor in the costs of a temporary drivers license suspension. The indirect financial costs of a California DUI conviction are potentially much more significant. Car insurance premiums may rise considerably if the DUI is sustained, and remain high for many years. Over the course of this period, it is not uncommon to pay more than $20,000.00 in escalated auto insurance rates. But for many people, the heaviest financial cost of a California DUI is the burden of having a criminal record. The DUI conviction is likely to surface any time a potential employer, state licensing agency, insurance company or professional organization does a background check. How this impacts you depends on the type of work and activities you engage in.  For some professionals, such as doctors, dentists, nurses and attorneys, a California DUI conviction may bring negative consequences with their licensing boards. Some prospective employers may shy away from an applicant previously convicted of DUI, for fear that the person may have alcohol issues or may be irresponsible. In any case, it would behoove you to avoid a California DUI conviction if it all possible. Considering the long-term financial costs of a DUI conviction, an expert Orange COunty DUI Attorney, if he can help you win the case, is a great investment.

13.  If I hire a California DUI attorney, do I still have to go to court?.

Answer:  Generally not. If your DUI charge is a misdemeanor (rather than a felony), then usually your California DUI attorney can go to court on your behalf. This is allowed under California Penal Code Section 977. Penal Code 977 allows DUI attorneys to appear without their clients in California misdemeanor cases. There may ultimately be a “plea bargain” in which you plead guilty (or no contest) to DUI or to some lesser charge. In that case, the DUI attorney can have you fill out the necessary documents (called a Thal waiver) in his/her office, have them notarized, and bring the documents to court. This process allows you to avoid having to go to court.However, the DUI judge can “deny Penal Code 977” and order the defendant to appear at certain court proceedings. For example, some judges require the defendants to be present at DUI sentencing…so they can hear directly the terms of probation. And most judges require defendants to be present at DUI jury trials. Whether you will have to attend any of the DUI court proceedings depends on the discretion of the judge to whom your case is assigned.

14.  How can I get a copy of the DUI Officer’s Police Report?

Answer:  There is a widespread belief that criminal police reports are public records…that you can simply go down to the police station and demand a copy. But this really isn’t the case.Sometimes you can obtain the DUI police report simply by going to the police department and requesting a copy. Sometimes the police agency will provide it to you.Most often, however, the police will only provide the DUI police report to the district attorney and to the DMV. They refuse to release it directly to the person who got arrested or even to the person’s California DUI attorney.In this case, there are two avenues for getting a copy of the DUI police report. First is from the DMV. When you request a DMV hearing to contest the drivers license suspension, tell the DMV you want a copy of the “discovery.” The DMV will then send you and your California DUI attorney a packet of materials. Included in these materials will be the police report and BAC lab reports. The DUI attorney can then subpoena further documents and information from the DMV, the arresting agency and the crime lab.The second way to obtain the DUI police report is at court. At your arraignment, the prosecutor must provide the police report, lab reports and any other documents relevant to the DUI case. Usually, the prosecutor only provides these at the first court date—the date indicated on your citation. But in San Bernardino County DUI cases, the DUI defense attorney can do a “counter arraignment” at the court clerk’s office—and get the police reports—even before the first scheduled court date. Most people understandably feel a great deal of anxiety following a DUI arrest. You want to read the police report right away. You want to see what the officer is saying. Unfortunately, however, it can take up to a few weeks before you or your California DUI attorney can obtain the DUI police report…either from the DMV or from the prosecutor. Meanwhile, there are still other tactics the DUI attorney can use to begin preparing the defense.

15.  What is Law Enforcement Looking for as I am driving?

Answer:  Police officers look for anything they could use to arguably justify a stop of your vehicle. However, The National Highway Traffic Safety Administration (NHTSA), part of the Department of Transportation), has produced a guide for detecting drunk drivers at night. These are the 20 signs NHTSA has published as cues officers look for when determining whether to detain a vehicle for a DUI investigation. They are looking for: Turning with wide radius;  Straddling center of lane marker; Appearing to be drunk (based upon posture, gestures, etc.); Almost striking object or vehicle; Weaving; Driving on other than designated roadway; Swerving; Speed (more than 10 miles below legal limit); Stopping without cause in traffic lane; Following too closely; Drifting; Tires on center or lane marker; Braking erratically; Driving into opposing or crossing traffic; Signaling inconsistent with driving actions; Slow response to traffic signals; Stopping inappropriately (other than in a lane); Turning abruptly or illegally; Accelerating or decelerating rapidly; Headlights off at night.

16.  What is the officer looking for during the initial detention at the scene?

Answer:  The traditional symptoms of intoxication taught at the police academies are: Flushed face; Red, watery, glassy and/or bloodshot eyes; Odor of alcohol on breath; Slurred speech; Fumbling with wallet trying to get license; Failure to comprehend the officer's questions; Staggering when exiting vehicle; Swaying/instability on feet; Combative, argumentative, jovial or other "inappropriate" attitude; Soiled, rumpled, disorderly clothing; Disorientation as to time and place; Inability to follow directions

17.  Do I have a choice of chemical tests? Which should I choose?

Answer:  In California, only blood or breath are offered, unless neither is available in which case a urine test is possible. Analysis of a blood sample is potentially the most accurate, while breath machines are susceptible to a number of problems rendering them inherently unreliable. Therefore, if you are confident that you are sober, a blood sample is the wise choice.

18. Which chemical test should I choose?

In the State of California, as in many states, the police officer will offer you a choice of breath, blood or urine tests. In some areas, urinalysis may not be an option and you must choose between tests that are available. You do not have a right to choose urinalysis and then try to argue it's their problem that they didn't have it available. You will lose that argument. The officer will in all likelihood treat you as having refused to submit to testing, and all of the adverse consequences associated with a refusal will occur.  If you choose a breath test, at the completion of the test ask the officer for a second test of either blood or urine so that your defense attorney can run an independent test to compare the results against the breath test. It is important to remember, that if you are concerned that there may be any substance in your body, other than alcohol, then by all means select only breath and do not take a second test of blood or urine.

The most accurate test is a blood test. The next most accurate test is breath and the least accurate is urinalysis. If you are sure of your sobriety, then choose blood. If you are concerned about your state of sobriety, I would choose a urine test when available.

19.  Should I consent to a chemical test to determine my blood alcohol concentration?

Answer  YES!!! California's Implied Consent Law requires all drivers to submit to a chemical test if the officer believes you are under the influence of alcohol, drugs or both. The consequences of refusing to submit to a chemical test will result in a minimum one year suspension of your license and may cause greater penalties in the criminal case.Further, the mere fact of refusal may be introduced as evidence during trial to establish "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.Thus, it is always required to submit to a chemical test and the decision, if any, is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

20.  What if I refused a chemical test?

Answer:   Refusal of a chemical test MAY result in a One year suspension of your drivers license and cause the imposition of higher fines and/or other penalties in the court case, if you are convicted and this may be a big if. However, if there is no chemical test to offer as evidence, the Government is limited in their case and can usually only proceed on the allegation of impairment as supported by the officers observations and the results, if any, of the Field Sobriety Tests (LINK), both of which can be the subject of challenge.

21.  Should I refuse to submit to the field sobriety test?