How to Win Your DMV Hearing in a DUI

How to Win Your DMV Hearing in a DUI

Were you arrested for a DUI?  If you were, you probably had your driver’s license taken away and were given a temporary license, that’s only good for 30 days.

What happens now?  You must request a hearing with the DMV’s office of driver safety within 10 days. (For Orange County DUI Arrests, that is the Office of Driver Safety in Orange, California).
Part of the request involves a stay on suspension – in other words, your temporary license will continue to be good beyond the

Part of the request involves a stay on suspension – in other words, your temporary license will continue to be good beyond the 30-day expiration date so that you can keep driving with a full license. You must also request the evidence to be used against you.

The DMV, on their end, will then schedule an in person, or telephonic, hearing.  They will send you confirmation of the date of the hearing through the mail, along with your new temporary license, and with a complete copy of all of the evidence that will be used against you at the hearing.  That usually includes the following documents, which are sent in a large envelope from the DMV hearing office:

  • The DMV’s DS-367 form, which includes the probable cause statement
  • The police report;
  • Any traffic collision reports;
  • The blood test results, or breath testing results; and
  • Your complete driving record.

The hearing, in most cases, is scheduled about 45 days away, although it’s not unusual for DMV hearings to be continued, for a number of reasons.

What happens at the hearing?

If you were arrested for an Orange County DUI or arrested anywhere in California for a DUI, your hearing will be conducted by a DMV hearing officer.  That officer is not a judge and is not even a lawyer.  They preside over the entire hearing, making decisions on evidence, and making a final decision on the case.

The hearing officer has to find out if there is sufficient evidence as to the three issues with a hearing, which are as follows:

  1. Did the officer have probable cause to pull over the driver or investigate?
  2. Did the officer follow all of the procedures to place the driver under lawful arrest?
  3. Is it proven that the driver was operating a motor vehicle, and also above a .08% alcohol level at the time of driving, not just at a later test?

(If you were on probation for DUI, or under 21, or is alleged to have refused a test, there are additional issues to prove each of those situations.

What Wins a DMV hearing:

Being aggressive about objections is helpful to kick out evidence that could otherwise be used against you.  The evidence code discourages hearsay or any documents that lack foundation, or that require specific expert opinions.  Officers will often put in the evidence of the report that is a legal conclusion, rather than proven.  Even mistakes like the wrong date, or omitting a signature, can win the entire hearing.

The evidence must also meet the state’s testing code, Title 17 of the administrative code.  That requires a test within three hours of driving, and for breath testing, that the two breath tests required being taken two minutes apart, and agree within a .02% of each other.

Most cases are won on the probable cause issue.  Some are won on the “proper arrest” issue.  However, if a case can’t be proven by way of driving or as to the alcohol level, or compliance with the alcohol testing requirements, then the evidence is not admissible to prove the DMV case, and you win your license back.

If you have questions for our Orange County DUI lawyers, please contact our firm.  We are happy to help you.

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Police Officers Banking on New Legislation to Nab Drivers Driving Under the Influence of Marijuana

Police Officers Banking on New Legislation to Nab Drivers Driving Under the Influence of MarijuanaCalifornia is one state in the US that is infamous for the liberal and unbridled use of ‘medical marijuana’-imbibing of cannabis that has been recommended by the physician. In fact, California was the first US state to legalize the stimulant’s medical use as a prophylactic drug in 1996. Now measures are afoot to sanction its recreational use as well and lawmakers’ proposal to get the bill (statute) passed in the state legislature has met with stiff opposition from advocates or supporters of ‘medical pot’.

In another surprising development that was much-awaited, Californian legislators on 5th April convened to discuss allowing the use of an advanced screening technique that’d enable police officers to nab drivers and motorists driving under the influence of marijuana. Law enforcement officers are heavily banking on the proposal that’ll allow them to run oral swab investigations on errant drivers who’ve come a cropper on sobriety field exams once the same becomes a statute. Republican Senator Bob Huff who drafted the bill said that a portable electronic device would be used to conduct a DUI test that’ll confirm presence of amphetamines, methadone, cocaine, marijuana or any other stimulant or opiate in the blood by taking an oral swab.

The senator lamented on the fact that the electorate in California were either ignorant or indifferent to the hazards posed to sober drivers by motorists who smoked cannabis, cocaine, and meth. California Narcotics Officers Association and California Police Chiefs Association are fully endorsing the proposal that is yet to become a law. If a report issued by the National Highway Traffic Safety Association is to be believed, the total number of arrests and detentions for drugged driving has increased by 22% in the eight years from 2007 to 2014.

On the other hand, deaths of drivers in California resulting from drug abuse surged by over 40% in the period 2009-2013. A similar proposal approving the use of this novel DUI testing mechanism was checkmated last year by staunch promoters of medicated marijuana. The director of the National Organization for the Reform of Marijuana Laws, Dale Gieringer was strongly of the opinion that the effectiveness of the technique of oral swab investigation was yet to be proven substantially. The accurateness of the test was not thoroughly established in published reports of monitored, scientific trials.

The swab test using the handheld device could not ascertain a direct correlation between impaired driving and intake of marijuana. Highway patrol officers are eagerly expecting the legislators to ratify the bill which they feel will lead to increased DUI convictions once the swab testing device is used extensively. Mike Gatto, a Democratic legislator has also put his full weight behind the bill as he strongly feels that motorists driving vehicles under the impact of illegal drugs is a serious issue that is threatening the entire state. In 2015, the Legislature in California gave assent to a bill that’ll allow big business to commercially deal in marijuana as well as tax who trade in medical marijuana.

Image credit: Karen Roach

DUI in the Florida

DUI in the FloridaThe United States in general over the past 10-15 years has arguably made serendipitous efforts to maximize law enforcement, penalties, and litigation of individuals caught driving under the influence (DUI) (intoxication) of alcohol, as well as any other illicit, or non-prescribed medications that cause a direct threat to the safety of other drivers and one’s self.

The state of Florida in particular, in the past 3-5 years has been peddling state lawmakers, law enforcement officials, and influencing jurors with new jurisdiction-oriented laws and expectations to more heavily hold accountable individuals that drive under the influence of alcohol—a 0.08 (breathalyzer) blood alcohol intoxication level or more. The chemical intoxication of alcohol, as well as other recreational and illicit drugs is becoming more and more common while operating a motor vehicle in today’s modern world, and in turn must face more aggressive sanctions, penalties, and legal reprimand in order to promote more realistic possibilities of recidivism.

The state of Florida in particular, since 2008, approximately every 3 years has continued to demonstrate an ability to lower its drivers caught driving under the influence (DUI) by up to 10-15% each year alone. That is, as heavy penalties and a nearly permanent record (75 years for sealing or expungement eligibility) serve as deterrents to discourage individuals to drive while under the influence—DUI.

On the other hand, looking at the United States in general, it’s evident that the continued advancement of technology such as Ignition Interlock serves to be more and more effective at preventing intoxicated drivers from turning on or operating their vehicles, as well as capturing those that attempt to circumvent such legal-enforced technology and mandatory equipment in offenders vehicles—such as having picture-capturing technology in-built into devices now.

Statistics and Deaths.

The realities of DUI/DWI related vehicle accidents and deaths on not only an annual, but daily basis are quite concerning. In fact, according to the CDC, at least one person dies from a drunk-driving incident less than every hour–of any given 24-hour day.

While many states continue to struggle to find the most effective measures to promote recidivism of such a nature of offense, the state of Florida appears to have discovered and been most effective at such as it engages the problem from nearly every angle; including fines, administrative, repossession, public-record publishing, technology-demanding, lawyer based fees, bail, fines, jail-time, suspension of license, and more—often easily totaling $8,000-$10,000 or more.

While our country is arguably consistent of ‘one society’, or perhaps even “one culture”—an “American culture”–this is not to exclude the reality that plenty of people in the United States live many different ways, come from various different cultures, or simply have no desire to conform to our cultural norms, expectations, and laws—regardless of one’s country or state of origin.
It is probable and likely to infer that with state-wide cohesion of heavier DUI penalties, laws, and incarceration-related offenses that the total offense rates will decrease, while total enforcement rates and recidivism should continue to increase over time.

Why a DUI Will Cost You MORE

Why a DUI Will Cost You MORENearly 50,000 drivers are pulled over annually in the state of Florida and are believed to be, and in turn are accused by law enforcement officials for driving while under the influence—also known as DUI. Given this statistic, the successful prosecution rate for such offenders and instances nearly topples 43,000 out of the 50,000 aforementioned annually. Sadly, these are very concerning statistics, especially when taking into consideration the mortality rate of DUI involved vehicular accidents—or for prosecutions sake manslaughter-related offenses.

Recently, Sen. David Simmons, R-Altamonte Springs has made it a point to present a bill in which would offer and secure a heavier penalty for those believed to be, or whom are accused of driving under the influence (DUI) and refuse breathalyzer tests—which is surprisingly within the rights of any American citizen to do at any time. Said proposed bill is known as SB 1244, and effectively would create much heavier fines and penalties for anyone whom refuses a breathalyzer test when suspected by law enforcement officials for driving under the influence.

To date, the most atypical scenario that plays out in a scenario is one in which a citizen can refuse a breathalyzer test upon suspicion of drunk-driving, however, and only face the default penalty of up to a year’s suspension of said individuals driver’s license. Given the current penalty(s) for such, this leads prosecutors, law enforcers, and other government researchers to believe that the current laws pertaining to DUI breathalyzer refusals are “too lax”, in turn promoting if not otherwise stimulating any sort of recidivism of drunk-drivers. In essence, the implementation of such a bill would ideally serve as a stronger deterrent for those considering or driving while under the influence—DUI. Although other evidence is taken into consideration in such instances, such as police dash-cam video and testimony, the stronger the case and resources a law enforcement official has at his or her disposal, the more likely prosecution might be successful for such offenders.

Under the new proposed Florida Bill, SB 1244, offenders whom refuse breathalyzers upon being suspected of DUI, will face up to $1,000 in fines for the first offense and 6 months’ probation, while second time offenders may face up to a year in prison as well as additional heavier fines and penalties—such as 4 points on ones drivers record. Additionally, the installation of a breathalyzer device inside ones vehicle would also be required (at the owners expense) for second time offenders or otherwise DUI breathalyzer refusals.

Although in instances involving severe injuries or fatalities (alcohol) blood tests can be mandatory and forced (or coaxed) onto a suspect, great grey areas exist regarding such circumstances and make it difficult for prosecution to hold and pursue a strong case in such instances as the argument of a violation of rights will often be made when such circumstances are prevalent.

Given the current statistics pertaining to the seemingly increasing rates of drunk drivers in the state of Florida, one might argue that the application of such a Bill will be successful, and serve as a credible measure of promoting recidivism of drunk drivers and accidents to fatalities stemming from such to begin to take effect.

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Marijuana DUI laws debated to arrive at a conclusion

marijuana-dui- Karen Roach-34445373_sA research study recently concluded that motor driving after marijuana consumption increases the vulnerability of accident to two fold. People opposing the legalization of this drug marks it a reason for keeping the drug illegitimate. Prior to bigger uproar for implementing stringent DUI laws on marijuana, the risk associated should be discussed in detail to ensure the penalty suits the crime. Although the frail DUI laws compromise on public safety, harsh rules and strict penalties may risk the career of drivers that aren’t impaired.

Something which heightens the vulnerability of accident needs to be avoided. There is hardly anyone that would advocate driving after the consumption of marijuana. NORML is making the smoker aware of this thing by writing in ”Principles of Responsible Cannabis Use”. It says that a responsible consumer of cannabis doesn’t operate motor vehicles or similar machinery after being impaired with cannabis or similar substance like alcohol.

However, marijuana doesn’t impact driving performance in the same intensity as alcohol. Driving under marijuana’s influence heightens the risk of accident to two fold. Comparatively, a somewhat illegal .08 BAC increase the risk factor to eleven fold. However, the penalties remain the same. Post the legalization of cannabis for the use of adults, the legislature also voted for criminalization of driving under marijuana influence. The drivers discovered to be impacted by marijuana were charged with similar crime as the drunk drivers. It made almost impossible to analyze the entire data and applying similar punishments to the two behaviors by varying levels of danger.

Comparatively, the studies reveal how texting also doubles the car crash risk. Making phone calls also increases it by as much as triple fold. Such high-risk behaviors are treated with legal actions. For example, in 2009 Colorado had banned texting while car driving. Initially, offences were punished with as much as $50 ticket but the next series of offences jumped to $100. Later on, the state legislature had rejected a bill pitched to expand the scope by inclusion of phone calls.

Penalties for marijuana DUI are increasingly harsh. Apart from a burden of criminal record, maiden marijuana DUI lands a Colorado convict into jail for five days. A fine of $60 is also imposed along with 48 hours community service. It may also reach one year of imprisonment, 96 hours community service and up to $1,000 fine.

As a section of its campaigns on education, the Colorado state touts the probable cost involved in DUI. It considers rising insurance premiums, legal fees, and similar related expenses. First offence may cost as much as $10,270 which is more than 200 times the price of firs texting offence while driving.  There is hardly an evidence to support such a gaping difference. Law was seemingly more of the legislature’s knee jerk reply compared to any reasoned deliberation. Ultimately, the laws on driving under influence needs to consider the main risk associated instead of political expediency. Impaired driving remains a massive problem and there is an unfortunate rise in texting related and drunk driving cases.

Image credit:  Karen Roach

2% American adults admit to driving under intoxication

2% American adults admit to driving under intoxicationAccording to new findings of a study, at least two percent of Americans have confessed to driving under the influence (DUI) over a month long period. This study was conducted based on 2012 data collected and analyzed by Centre for Disease Control, US (CDC). It outlines the habitual drunk drivers and young male adults with drinking history. CDC researchers believe that countless lives can be saved by curbing this problem. In the last two decades, DUI has been a prime reason for crashes leading to one third of total crash deaths in US.

An expert agreed to rampant increase in binge drinking among adults. According to Dr Krakower, individuals shouldn’t think twice prior and seek help immediately to cure their drinking problems. The alcohol abuse specialist points out that one should not drive any motor vehicle after drinking. There is no gain in putting the lives of innocent people at risk.

A new research study was conducted where Amy Jewett, a CDC investigator monitored data of 2012 collected from a survey of federal government. It revealed that approximately 4.2 million American adults reported a DUI episode once in their last 30 days. In total, it led to almost 121 million impaired driving episodes annually. Rates fluctuated state-wise depending upon specific laws about drunk driving, pointed out CDC. Worst results were recorded in Midwest which didn’t come as a surprise for the research team. People dwelling in these areas have continuously reported high DUI rates compared to people residing in other areas.

Profile of a drunk driver is not something which would surprise anyone and it’s the same in case of young binge drinkers. Based on study findings, men aged between 21-34 years comprised of one third percentage in drunken driving episodes. In total, men comprised of 80% in impaired drivers category. After further analysis, 4% of adults were noted in binge drinker’s category. It accounts for men consuming five or extra drinks during a single occasion.  Women having at least four or more drinks occasion-wise also fall under this category. Combining these statistics reveal 4% American adults are responsible for two third of total drunk driving accidents, as observed by CDC researchers.

Dr Scott notes that binge drinking incidents are frequent among college goers and young adults. It has led to an unfortunate rise in DUI incidents. He is reportedly serving as assistant unit head of psychiatry department at New York’s Zucker Hillside Hospital. In the year 2013, almost 40% of college goers reported usual binge drinking episodes during the last month.  Further research revealed that underage drinking habits can progress to turn into an acute alcohol problem with adults. With efforts and precaution, it is possible to prevent these numbers from going up. Jewett’s team believes that drunken driving deaths may go down provided the states act tougher with this issue. Increasing tax rates on booze, coming hard on underage drinking and strict enforcement of alcohol breathing laws could be helpful. According to Krawkower, problematic drinking habits leading to DUI later may begin at a tender age.

Image credit: Todd Arena

Are passengers allowed to consume alcohol inside a car?

Are passengers allowed to consume alcohol inside a car?Driving license holders should be aware that motorists aren’t allowed to drive under alcoholic influence or DUI. However, confusion still lurks whether a passenger has the legal permission of drinking alcohol or similar impairing drugs inside a car or not. There are bright chances of ‘no’ but the laws may differ from state to state.

Laws on open container use

Majority of states follow DUI laws abolishing the use of open cans, unsealed containers, and bottles with alcoholic beverages inside. It is applicable on streets, nooks, corners, sidewalks and even inside the vehicles. In such a scenario, an individual consuming alcoholic beverage is likely to be in possession of a container. There are certain states allowing unsealed alcoholic containers in limited locations. It may include a trunk or even locked glove compartment.

There are 43 states with laws on open container in full fledged operation. Out of this, there are 40 states complying with federal standards which are marked in TEA-21, an act. It is the Transportation Equity Act which is mandating such laws and various traffic security measures. For open container breach, a driver may be booked provided the person has container within reach. However, the passenger with possession of such container may be summoned along with driver for law violation. Blood alcohol concentration or BAC of the offending passenger is simply irrelevant.

Some exceptions

There are seven states with no such laws on open containers or bottles. It includes Arkansas, Connecticut, Delaware, Missouri, Mississippi, Virginia, and West Virginia. However, some of these states have ordinances in place prohibiting such containers with alcohol inside.  Some states including Louisiana, Tennessee and Alaska have DUI laws on open containers which are not completely complying with federal Transportation Equity Act standards. However, there are still clouds over a passenger allowed to consume alcohol inside a vehicle or not. This is particularly in absence of DUI laws banning the use of open containers.

The answer, ‘Yes” would come as a relief for many. States with no legal authoritative order prohibiting open containers use inside vehicles, passengers are allowed to drink alcohol within a moving automobile. Mississippi is most lenient where drivers have permission to drink up to legitimate BAC limit.

There are certain municipalities which have etched out laws and mandates on open containers. It is an effort towards boosting the tourism sector like New Orleans’s French Quarter. However, most of these ordinances hardly permit open containers inside vehicles. They might be limited to just sidewalks and streets. French Quarter gives permission to passengers and drivers to use open containers inside vehicles. However, it is applicable as long as the driver isn’t drunk.

There would be a need for legal advice and consultation for those booked under DUI. An experienced lawyer with specialization of defending such cases can analyze the evidences on offer. It includes the processes and outcomes of chemical and standard field sobriety tests. It is done to ensure legal rights of the so called offender are well protected. The best way to approach would be speaking to an attorney accustomed to laws in relevant jurisdictions.

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Why the new DUI laws for Colorado?

Why the new DUI laws for Colorado?

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Recently, Democratic Colorado Governor John Hickenlooper signed and proposed a bill that would directly impact and implement a felon-strike system in which DUI/DWI offenders would face felony conviction and charges through a fourth, approved, DUI/DWI charge and case.

Believe it or not, it’s currently impossible to get a felony conviction for multiple DUI convictions in the state of Colorado. In fact, Colorado is only one of four remaining states that don’t have such a preventative system in place to-date.

If this new law passes majority votes, and no citizens or government officials reject or challenge it, it will become effective purportedly by August 2015. Interestingly enough, and arguably subjective in purpose, strikes for DUI/DWI charges from other states would count towards the four strike rule and DUI law already in place. While it would not be required by judges to utilize as a legal repercussion against offenders, it would become an option.

Many advocates, and individuals opposing this bill believe that this funding and allocation of resources and services would be better served going into rehabilitative programs and other legal support personnel and resources to promote recidivism of drunk driving and drunk driving accidents. Adversely, however, individuals argue that it’s better to confine, punish, or otherwise completely remove the driving-rights of said individuals than face the casualties of innocent otherwise law-abiding citizens due to said offenders negligence or lack of care.

According to research, it will cost state prisons added fees of up to $2.6 million just in the first year of hypothetically implementing said law. By the third year, it’s projected that prison systems will face up to $10 million in costs due to such a proposed DUI law. While a small portion of costs will be offset by citations and financial penalties, they are mostly minimal in comparison. While different people have different perspectives, this is a very sensitive bill, and has been long awaited for by many. Specifically, individuals related to DUI victims and their families who are looking for justice and more credible measures to prevent drunk driving and promote recidivism. While there’s still much work to be done, in comparison to other states, most feel that such a DUI law would be very practical and productive. That is, in taking to consideration current DUI fatalities or injuries, it’s history in the United States, and (increase) in the state of Colorado to-date.

Citizens and lawmakers have until 5-August to veto the DUI law and challenge it completely or request modifications. Many are concerned about a lack of a ‘safety clause’, and a lack of this element within many state laws that can lead to other legal problems and danger for its citizens.

Image credit: Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Impact of DUI on auto insurance quotation

Impact of DUI on auto insurance quotationA person caught while driving under influence (DUI) worries mostly about matters such as jail term, losing driver’s license, fines and reaction of family members. Similarly, DUI can also impact the auto insurance quotation of the vehicle owner. During a review of twenty cities throughout US, it was found how car insurance payments went up by 75.3% on average, as per reports. It happened after a DUI, and the amount was almost $857.53 per year, say reports. Similarly, it may also vary based on the area of living.

Research outcomes showed rates going high at San Francisco. Average increase stands at 149.2%, revealed the research. Along the minimalist end, the rise came to 30.4% in average that took place at St Paul, Minnesota. Based on the real change in currency, rate went up the highest at New York and minimum at Cincinnati. DUI impact can be felt on receiving policy renewal details by mail. The same insurer may consider this vehicle owner as a risky proportion and not willing to do business again. It is important to shop around with even a mark on record. Keep Reading →

Drivers should investing in breathalyzers

Drivers are not investing in breathalyzersThere is a fall in driving fatalities through the last decade but almost 12,000 Americans die yearly in crashes including an alcoholic driver, as per estimates of NHTSA. United States is far from solving its drunken driving problem and holidays may surface more drunk drivers which can make the roads a dangerous place to drive. According to Sai Gohel, classical procedures aimed at DUI prevention aren’t working well enough. The San Francisco defense lawyer throughout his 21 year old career had to deal with many DUI cases. Common scare strategies used by many organizations for fighting this nuisance are not connecting well enough with drivers, says Gohel.

Keith Nothacker is the founder president of BACtrack, a personal breathalyzer firm. He aims to stop this epidemic of drinking and driving in America. Fourteen years ago, he started this company to help people in testing their own blood alcohol concentration. Presently, these unique devices are available in over 15,000 outlets and fit into pockets or keychain. Several of these devices have relevant smart phone applications. Keep Reading →