It’s December and we’re anticipating a large spike in holiday DUI and Car Accidents. I bet that 70% of the new DUI’s will have told the police “But Officer, I Only Had 2 Beers”. This is easily the most common thing that a motor cop hears. Fortunately most of my clients tell me the truth or close to the truth when asked how much they had to drink. The reality is that it is NOT THE NUMBER OF DRINKS BUT THE AMOUNT OF ALCOHOL IN THE DRINKS that matters.
A young man and his mom retained me for his high reading DUI. He swore he only had 1 drink. I said it was impossible to be under the influence with 1 regular drink unless he took a red Costco 16 oz cup and filled it to the first line with Vodka and topped it off with OJ? I told him the first line on the cup is 12 oz which equaled 12 drinks.
I explained it is NOT the NUMBER OF DRINKS but rather the TOTAL amount of alcohol in the drinks… with 1 drink being 1 oz. of alcohol, 12 oz. of beer or 4 oz. of wine. Thus a lawyer should look at the number of drinks; the total amount of alcohol; the weight of the driver; how long since the last drink; whether the driver had eaten and when and how much was protein.
A DUI doesn’t require you be drunk, but rather Under the Influence or Impaired. The Preliminary Alcohol Screening Breath (PAS) Test at the scene, or the breath or blood test at the station determines the reading.
You are under the influence if your ability to drive is impaired, and that takes place at a .08 or higher. Then the burden of proof almost reverts back to you, to show that you weren’t under the influence and/or your blood alcohol was not .08.
The DMV and Court prosecute you and DMV, being an administrative agency, doesn’t follow the Rules of Evidence. The DMV Hearing Officer, who does not have any legal training, is both the presiding judge and the prosecutor and rules on all objections.
The statutory DMV hearing is conducted like a miniature trial, without a jury, and with somewhat different rules of evidence. Defenses are more “technical” than in court, with procedure and bureaucratic errors often the grounds for a “set-aside” of the suspension. Both sides can testify, although the hearing officer usually only produces documents, such as police reports, lab reports and the officers sworn affidavit.
There is no right against self-incrimination so we don’t want our client present. If there, the client could be called by the hearing officer as a witness, and what is said and taped can be used by the DA at trial.
Historically DMV suspends your license for four months on a first offense DUI. If you ask for a restricted license, the suspension is for 5 months instead of 4 months. You can request a restricted license 30 days after the DMV suspension. This restricted license allows the driver to drive to and from work and a DUI program.
Whatever you do please hire a LOCAL lawyer and do not attempt to handle a DUI yourself, or better yet…
“Though I am sometimes referred to as a criminal DUI defense lawyer, I choose to not view my clients as “criminals”. I prefer to view them, and more importantly to treat them as good, honest people that have found themselves in a scary and unfortunate situation.”
Suggestions for future columns contact Dale Gribow at (760) 837-7500 or firstname.lastname@example.org.
“TOP LAWYER” – California’s Prestige Magazine, Palm Springs Life (PI/DUI) 2011-19
“TOP LAWYER” – Inland Empire Magazine 2016- 2019
PERFECT 10.0 AVVO Peer Rating
“DON’T DRINK AND DRIVE OR TEXT AND GET A DUI OR ACCIDENT… CALL A TAXI, LYFT OR UBER….THEY ARE A LOT CHEAPER THAN CALLING ME”