Perhaps the most common question I receive about DUI’s is what to do if your stopped? Many believe there are magic bullets that will prevent them from being charged. Clearly, short of drinking and driving in the first place, the best way I can respond to such questions is to inform people of the rights and responsibilities in such situations. Most people have no idea of what their rights are and therefore they do not properly exercise them.

Since DUI in California is one of the most technical areas of the law, I will try to address the procedures, rights and issues from when one is stopped through the arrest itself. It goes without saying that this is just a cursory review and does not encompass all of the rights, details and issues that may arise.

The Stop

Although drivers are sometimes stopped for “erratic” driving or “straddling lanes,” often one is pulled over for a minor traffic infraction. This usually involves an improper lane change, speeding, red light or some other traffic violation. The officer needs probable cause prior to initiating the stop.

Everyone is aware that the officer will ask for license and registration and that one must present that to the officer.  But depending on the time of day, the location and facts, the officer may believe the driver was drinking and proceed to ask questions like: “where are you going?” “where were you coming from” and “did you have anything drink?"  It is at this point that people are not aware of what they are or are not required to do.

In California, you are not required to make any statements to the police. Short of presenting your license and vehicle information, you are not required to answer any of the above questions or make any other statements. Often, police are waiting for incriminating statements from the driver in order to justify the administration of field sobriety tests (“FST’s”). For example, if a driver responds by saying “yes officer, I had a few beers” then there is cause already to have the driver exit the vehicle and request the FST’s. On the other hand, if a driver politely refuses to make any statements the officer will have to justify cause from his observations (e.g. odor of alcohol, bloodshot eyes, erratic driving etc..) and other facts as to the suspicion of drinking. All of which are considerably less reliable and accurate than incriminating statements made by the driver himself. In short, one is well within their rights to politely refuse answering any questions and let the officer proceed without any such information.

Field Sobriety/Preliminary Alcohol Screening Tests 

If an officer has established cause to detain for suspicion of DUI, he will generally ask the driver to exit the vehicle and perform a variety of FST’s. These range from the “one-leg stand” ; the “walk and turn” test;  the horizontal gaze nystagmus (following the finger with your eyes).

The first and most important issue to realize here is that there is no statutory requirement to submit to FST’s in California. Simply put, you are not required to submit to such tests and you may politely refuse. There are no enhanced penalties for refusing the FST’s and although case law is unsettled in this area, defense counsel will generally be successful in suppressing the prosecutions evidence of a refusal to submit to such FST’s should the matter proceed to trial.

The officer may also ask for the driver to blow into a Preliminary Alcohol Screening device (“PAS”). This is a small pocket size device generally administered at the scene of the stop to determine if there is alcohol in the breath.  There is no statutory authority requiring a driver to submit to a PAS test if he/she is not on probation for a prior DUI and is 21 years of age or older (drivers under the age of 21 are required to submit to the PAS test or lose their license for a year if they refuse. The various legal issues facing these under age drivers will not be addressed herein). In fact, the law specifically states the officer will  advise the driver that such a test is not required and that one does not have to take it.  Of course, if a driver does submit to a PAS test and it reads .08 or above, the officer will have cause to believe you were driving under the influence and will take you to the station for further chemical testing.

So what does this all mean? That one doesn’t have to submit to any tests at all and wont be charged with a DUI? No!…in Part II, we will look at what happens from this point on. What chemical tests will be required at the police station; the consequences of refusing those tests; as well as the procedures and penalties for a DUI in court as well as with the Department of Motor Vehicles.

While it doesn’t seem that any criminal charges are forthcoming anytime soon, an interesting legal issue with respect to the Goldman case (and financial disclosure in general) will be for the SEC to prove that any misrepresentations made by Goldman were "material" in nature so that their investors would not otherwise have purchased these mortgage backed securities had they known the true facts.  In other words, if investors knew of the conflict (or potential conflict) with Goldman client John Paulson betting against them or selecting some of Goldman’s investments to begin with, would the investors have purchased from Goldman? 

Goldman’s investors were not your average run of the mill mom and pop investors. In fact, German state banks were the main investors. So it will be crucial for the SEC to establish that said misrepresentations were material or that the Goldman investors involved were unsophisticated and/or tricked and defrauded.

Police often manufacture "reasonable suspicion" or "probable cause" when they believe  (but cant prove or establish) that some sort of crime may have been committed. Take Driving Under the Influence, for example. Officers routinely create reports with buzz words such as “weaving” or “straddling” lanes of the highway to justify a stop and then question the driver for DUI. Often, there is no violation at all but those words and observations are good enough to stand up in court as a legitimate stop and, ultimately, a DUI charge.

Similarly, the Arizona bill creates bogus conduct and so called "reasonable suspicion" for police who merely want to check someone’s legal status. This will be based on trivial violations such as loitering or jaywalking as a basis to stop and detain the individuals law enforcement ultimately want.

Attorneys are often unable to give detailed answers prior to discussing the facts of a case and reviewing the evidence. All too often, potential clients want answers to questions that I can’t yet answer. That said, below are common criminal law questions I receive and corresponding answers:

Q. Should I Make a Statement to the Police?

A. No!!! If you are under investigation or are arrested, do not make any statements to the police. Although you may feel like you can present your side of the story, often anything you say will be used against you. Do not volunteer information or discuss the facts of the case with anyone other than your attorney.

Q. What is a Search Warrant?

A. A search warrant is a court order authorizing the search of a specific place for certain items and to seize them if found. Your Fourth Amendment rights guarantee that a search warrant may only be issued on oath or affirmation that a crime was probably committed. Evidence obtained without the proper search warrant, may be excluded by the court upon motion and hearing filed by a defendant.

Q. What is Bail?

A. Bail refers to a defendants release from jail upon the proper deposit of money or property securing his future appearance in court. Its purpose is to ensure that the defendant appears in court and does not flee from the jurisdiction. The amount of bail required to secure a defendants release depends on the nature of the offense and is governed by various California Penal Code statutes.

Q. What is an Arraignment?

A. This generally refers to a defendant’s first appearance before a judge wherein he is informed of the charges and is afforded the opportunity to enter a plea. The time of the Arraignment often depends on the nature of the charges against a defendant and whether he is in our out of custody. The Arraignment is a crucial step because defendant’s counsel will usually only then be provided with documents, police reports and other evidence of the charges against his client.

Q. What is a Preliminary Hearing?

A. When a felony case is brought against a defendant, he is entitled a hearing with the ability to confront witnesses and conduct cross-examination. The purpose of this hearing is to determine if there is enough evidence to proceed further with the case against the defendant. Although the prosecution’s burden to move beyond the preliminary hearing stage is quite low, the hearing serves an important function by weeding out groundless or unsubstantiated charges against the defendant. Since the preliminary hearing provides the opportunity to determine the facts and evidence, it is important to have counsel effectively question witnesses and ascertain the evidence against his client.

Q. What is a Pre-Trial Conference?

A. At a pre-trail conference your attorney has the opportunity to continue negotiations with the prosecutor in an attempt to reach a favorable disposition. It is at this stage that your attorney may be able to work out the best plea bargain for you.

Q. What is an Expungment?

A. An Expungment refers to the cleansing or removal of one’s criminal record. This often doesn’t have the results the some may think, but may be worthwhile especially for employment purposes. Many but not all misdemeanors and felonies maybe expunged.

Q. What are My Chances?

A. A case depends on many factors which require a thorough and detailed evaluation. Although an experienced and capable attorney can discuss various aspects of a case in detail, often a complete analysis cannot be achieved until the attorney has access to all relevant documents and witnesses. If an attorney guarantees you a certain result or outcome, or fails to conduct a full investigation, seek the assistance of another attorney immediately.

Now Tiger Woods may have his share of family and PR headaches to deal with in the coming weeks, but one thing that he wont have is much of  a legal headache.

As had been reported, Tiger will not face criminal charges stemming from the accident and disturbance at his home. The reason? He kept his mouth shut, plain and simple. Woods refused to speak to police about the incident (as is his right to do) and in the process eliminated the possibility of making any incriminating statements.  No one knows what exactly happened, but the story given doesn’t quite add up. However, this is not the point. If the police want to take a statement or conduct an interview in such a situation there is usually one reason: “they don’t have enough evidence to charge a crime and/or they want to extract a confession.”  Given this, nothing that Mr. Woods  said would have helped him, only hurt.

The inclination to make any statement to police or officials is often misguided. I see this not only with clients that come to me but also in high profile cases (Martha Stewart, Scooter Libby to name a few) where individuals are already represented by counsel.

In this instance, Mr. Woods likely received some good and prompt advice… and he made the right choice.

I have posted ad nauseum about the often incorrect perception that celebrities “get off” easy when accused of criminal wrongdoing. It is rather funny to be an advocate for a group that is quite capable of taking care of their own interests. However, more and more we are seeing a blatant double standard applied to celebrity wrong doing then that of the average citizen.  The bottom line is that the law should be blind to issues of race, gender, religion, status, and yes…celebrity.

More often than not, the public’s first introduction to a particular crime occurs when a celebrity is accused of improper conduct. Hearing of the violation and the maximum penalty for such an offense, the public cries foul if a celebrity is given probation or community service. The perception is: “wow…only a celebrity with money and fame could get off like that!”  For those of us that represent people daily for such violations, however, these supposedly lenient sentences are common and even likely for an average person.

Take Plaxico Burress.  He carries a handgun into a nightclub (inside his waistband and without a holster) and accidentally proceeds to shoot himself in the foot (no pun intended).  His gun is unregistered and his Florida concealed weapons permit has expired (not that it would make much difference).  Sentence: 2 years in prison. If one was an average person with no criminal record, no history of violence and no specific intent to do harm,  do you think they would face a two year prison term? Doubtful…

First, the fact the New York City passed an arcane gun law which provides a mandatory minimum 3 1/2 year prison term for an unregistered firearm is in and of itself absurd. Mind you, these are not otherwise illegal weapons. So the statute makes otherwise law abiding citizens automatic criminals if they forget, are unaware or  fail to register a firearm in New York.

Second, yes Burress did illegally carry a concealed weapon. But when was the last time you heard the Mayor of NYC sound off that the book must be thrown at an average person for such a criminal violation? Well, since a celebrity is involved Michael Bloomberg did just that. Besides, what business is it of the Mayor to advise or comment on criminal prosecutions? He isn’t the District Attorney, nor is he a judge. What he managed to do, however,  is send a message to the DA and the Judge as to what is expected. Hardly proper or fair.

The stupidity of Burress’ conduct is clear. His negligence is even clearer.  However, there is no intent (either alleged or offered) that his conduct was anything but accidental. In California for instance, carrying a concealed firearm is generally a misdemeanor. Someone who has no criminal record would likely receive probation and community service. Given similar facts as with the Burress case, perhaps a jail term….maybe.  But two years of Prison? No way.  Moreover,  what purpose does it serve to have Burress in prison for two years? Wouldn’t say a 6 month Jail sentence and hundreds of hours of community service better fit the crime?

Although it is crucial that our legal system protects the “little guy,” it is just as important to note when there is a severe swing of unfair, politically motivated and biased handling of cases related to any group. Burress is another example of a justice system,  that far to often… is anything but blind.

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

In California, other than providing your ID and vehicle registration you are not obligated to make any statements to the police if stopped. You are not required to answer where you were going or what you were doing. You are also not obligated to take any field sobriety tests (e.g. walk the straight line); nor are you required to take the Preliminary Alcohol Screening test “PAS” if you are over the age of 21 (a small breathalyzer machine administered at the scene of the stop). You are, however, statutorily obligated to take the actual blood or breath test at a regulated facility (usually a police station) if you are detained on suspicion of DUI.

With the nasty wildfire spreading throughout the Los Angeles area, the search into its origin has now turned into homicide investigation.

California has a relatively complex set of laws relating to arson, with serious penalties that depend on many factors. Among them are:

* whether the crime was against property or a person;

* whether a structure was inhabited;

* whether great bodily harm resulted;

* whether the perpetrator willfully and maliciously set the fire;

* extent of the damage caused.

As the article above states, fire destroys evidence but also preserves it. Arson investigators can often pinpoint the origin of such a blaze and determine its cause.

Someone who intentionally sets such a forest fire will at the very least face a charge of Aggravated Arson (willfully setting a fire of any residence, structure or forest likely to cause injury or causing damage in excess of a specified amount Cal. Penal Code § 451.5(a)). In and of itself, this charge carries a prison term of 10 years to life. Now that there has been loss of life, however, even greater charges and penalties are assured.

I have posted several times on domestic violence (“DV”) and the Chris Brown/Rihanna saga. Now that Mr. Brown has been sentenced, a few thoughts are warranted.

I commented before that this matter may be resolved rather quickly or can take on a circus like atmosphere. Clearly, Mr. Brown and his legal team believed that contesting the charges was an up-hill battle or otherwise problematic. Brown was sentenced to 5 years formal probation, 180 days Cal. Trans (i.e. labor intensive community service), a one year domestic violence program, a stay away order from Rihanna (despite Rihanna’s request that such a stay away order not be in effect), as well as other conditions. While avoiding jail may sound like a great deal, such plea deal’s are common and defendants often avoid jail time when they have limited or no criminal history. The severity of the victims injuries is a key factor, to be sure. However, even though Rihanna’s injuries appear quite significant, they also are consistent with many similar (yet much less profile) DV cases.

The point is not to minimize the severity of this incident, or to portray Mr. Brown as the victim. But contrary to popular belief, celebrities often receive harsher treatment and sentences than the “average joe.” Although certain things (such as the DV program) are mandatory under California Law, it is quite conceivable that the “average joe” would have received less community service time, perhaps less probation and likely no “stay away” order where the victim herself is against it.

Mr. Brown’s sentence will not be easy. The media glare will be bright and many will look for any conduct justifying a violation of his probation. There are allegations already that Brown violated the terms of his probation by patronizing a night club in Los Angeles where alcohol is served. If Brown is charged with violating his probation, it may be revoked altogether. If that occurs, he can expect no leniency from the judge and will likely serve his sentence in prison. One must only recall the sentence and surrounding circumstances wherein Paris Hilton served in excess of 40 days in jail for a minor misdemeanor probation violation. The average person would likely have served only a few days, if any at all.

So justice in our system can be relative. But one must also remember that those with certain privilege and notoriety don’t always get a just sentence or fair treatment…despite the fact that they are often no less deserving of it.<-->