State legislature’s and law enforcements zeal to stop as many suspected drivers for DUI has resulted in a gradual erosion of basic constitutional rights and protections.  Many client’s come to me surprised to hear that certain rights they always heard about do not apply in DUI cases. For example, when you are arrested on suspicion of DUI, handcuffed in the police car and on your away to the station for a breath or blood test you are not entitled to:

– have Miranda rights read to you;

– an attorney prior to submitting to the tests;

– refuse a blood or breath test without consequences (a.k.a. offering potentially incriminating evidence against yourself).

And there are others. As much as these rights are a staple of our criminal justice system they do not apply in a DUI arrest.

Pretty bad, you say? Well things get much worse. Some states are now training their police officers in the use of syringes to effectuate forced blood draws to those who refuse to submit to a breath test. Consider the following:

BOISE, Idaho (AP) Sept 13 — When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said. It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

So if the thought of a cop with a flashlight scares you, wait till your approached with a needle.  Cant get much worse you may think? Well then consider this gem of police conduct…how about  forced catheterization for a urine sample:

LAWRENCEBURG, Ind. Sept. 3– An Indiana man has filed a lawsuit claiming that police forcibly withdrew blood and urine from his body during a drunken driving arrest, WLWT-TV reported.

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will. (Read the full article here).

Hardly an isolated case …see this

Sobriety checkpoints are becoming all to common and are frequently used before major holidays and sporting events. I am frequently asked about the legality of these checkpoints.

In California,  police departments use sobriety checkpoints at various times and to varying degrees. While some confusion exists over their legality, checkpoints are lawful if properly conducted and follow certain procedures and guidelines.

Whether or not a checkpoint is lawful depends on many factors, some of which are:

• whether it is in a reasonable location;
• whether the police department provided advanced notice of its location;
• the reasonableness of the time and duration of said checkpoint;
• whether it is safe to motorists.

To be sure, there are many other factors too — and no one single factor is determinative of whether a checkpoint is valid or not. The court will generally look to the totality of the circumstances  to determine its validity. Moreover, some factors are more important than others. Suffice it to say, however, that anyone arrested for DUI at a checkpoint should have an experienced attorney review all the information relating not only to the arrest, but to the circumstances and validity surrounding the sobriety checkpoint itself.

Can one legally avoid a checkpoint?  Provided that he does so in a safe and legal manner (a legal turn onto another street, or a legal u-turn – prior to entering the checkpoint, etc…)  the answer is generally “yes.” If your in the “chute,” however, and/or are already waiting at the checkpoint–then you cannot legally turn off or avoid it.

An Austin American Statesman article recently addressed the issue of blood alcohol test refusal. According to the article, in Texas, politicians, prosecutors and judges refused blood alcohol tests 100% of the time when stopped for suspicion of DUI. The average Texan refused to take a test only 50% of the time.

As in Texas, California has its own implied consent law governing the issuance of licenses within the state. A California Licensee agrees to submit to a blood alcohol test as a condition of being issued the license. If he or she refuses, their license is suspended automatically for year–even if the DUI case is dropped or dismissed. In California, certain procedures by the police must be followed before a “refusal” is legitimate.  With competent representation, a license suspension for refusal can often be challenged. However, if the driver refused and the proper procedures were followed, it is likely that they will lose their license for a year–a significant burden in cities like Los Angeles where people are married to their automobiles.

Of course such a license suspension should be weighed against the consequences of taking a blood alcohol test, especially in light of inaccuracies and issues with breathalyzer machines discussed here.  Without such a test, the prosecution usually has no physical evidence of impairment, and is required to rely on the testimony of the officer–significantly weakening the prosecution’s case and raising the issue of reasonable doubt.

The Statesman’s article demonstrates that politicians, prosecutors and judges are aware of DUI laws and procedures, and are therefore able to make informed decisions tailored to their individual circumstances. By contrast, the average citizen is usually unaware that they have two problems to deal with: 1. the criminal case; and 2. the DMV administrative action against their driver’s license; to say nothing of the complex web of other laws and procedures that are inherit in a DUI charge.

Perhaps articles like the ones above will inform and educate the public of their rights and options, so the privileged few are not the only ones “in the know.”

The holiday season is filled with celebration, good times…and of course, plenty of alcohol. It is no wonder that this time of year experiences some of the highest arrest rates for driving under the influence (DUI). Police agencies often set up check points during this time of year to catch potential violators. One should never drink and drive. But if you or a loved are arrested, understanding the complex legal system related to this area of law is crucial.

Women should be aware of the differences between themselves and men with respect to alcohol consumption and DUI. The difference is not in the law, or how it’s applied, but rather in the fact that women absorb alcohol faster than men because they generally weigh less. A two-hundred pound man, for example, may not be over the legal limit after 2 drinks, whereas a 120 pound woman may very well be. This is not to say that a heavier woman has a free pass to consume more alcohol. There are other important factors such as food intake, metabolism, and duration between drinks, among others, that also play a crucial role in determining blood alcohol level.

In California, fines and penalties for DUI have steadily increased. The California legislature has determined that a DUI violation is a serious violation of the law and has established a complex legal framework for handling these violations. An arrest for DUI can potentially result in severe fines, community service, alcohol programs and jail.

A mistaken belief that there is only a criminal case pending against one arrested for DUI is common. Many do not realize that they now have a battle on two fronts: 1. the criminal case itself; and 2. the Department of Motor Vehicles (DMV) – with respect to the suspension of their driver’s license

When one is arrested for DUI in California, the police confiscate their driver’s license and issue a temporary license for a thirty (30) period. One MUST then contact the DMV within ten (10) days of the arrest to request a “stay” of the license suspension and a DMV hearing to contest the DUI arrest. If one fails to request the “stay” and hearing within ten (10) days, their temporary driver’s license will expire after thirty (30) days, and they are unable to legally drive a motor vehicle.

California Vehicle Code Sections 23152 and 23153, state in part:

• It is criminal violation to operate a motor vehicle on a public roadway with a blood alcohol level of .08 percent or higher.

• It is a criminal violation to operate a motor vehicle with a blood alcohol level of over .01, if you are under the age of 21.

• It is a criminal violation to have an opened container of alcohol in a vehicle upon a roadway, unless the container is kept out of the immediate control of its occupants.

• Anyone arrested for driving under the influence must submit to a chemical test (blood or breath) to determine the alcohol content of the blood. Failure to complete or refusal to take the test will result in suspension of the driver’s license for one year.

The consequences and potential harm one can cause by drinking and driving can last a lifetime. This holiday season, be safe and designate a driver.