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.

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.

After his arrest this week, Roman Polanski is expected to fight extradition from Switzerland to the United States where he pled guilty to unlawful sex with a 13 year old girl in 1977.

Many seem to be puzzled why, after so many years, has the LA County District Attorney’s office bothered with this now?  The answer seems to be pretty clear: Polanski, through his lawyers, red-flagged himself when he petitioned an appeals court to dismiss his case earlier this year. By doing so, even though instances of judicial misconduct were noted, he put himself back on the radar map.

But Polanksi’s dilemma is not so much of whether his conviction can be set-aside or his plea withdrawn. The judicial misconduct at the time appears present and he deserves to have this opportunity.  Rather,  it lies in the fact that he willfully fled and became a fugitive.  Courts’ do not like when their orders are disobeyed and when one fails to appear for proceedings.  So if he is extradited, Mr. Polanski’s problem is not so much whether he can get a new trial, or withdraw his previous plea…but in explaining why he shouldn’t be punished (as most defendants are) for going awol for the better part of 30 years.

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

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.<-->

Learning that a celebrity engaged in dumb or illegal conduct is not much news these days.  The recent story about super athlete Michael Phelps is no exception.

For those who aren’t in the know, Phelps was photographed at party taking a hit of what appears to be a “bong” –allegedly containing marijuana. Phelps didn’t help himself by making statements that can be used against him. But the mere fact that the Richland County (S.C) Sheriff is contemplating filing charges against Phelps raises a host of questions in and of itself.

Now, lets set aside issues of proof. Lets even set aside the issue of resources and the wisdom of investigating Mr. Phelps. Would the same sheriff consider investigating the case if your average citizen walked in with a similar photo of another average Joe.  Not a difficult one to answer…the police would laugh him out of the station.

Whether this type of prosecution is merely a publicity stunt by local law enforcement and prosecutors, or whether they truly believe they are making a statement, it demonstrates that contrary to popular belief, celebrities are sometimes treated unfairly by the legal system compared to your average person.

Not too long ago, Paris Hilton found herself in a similar position. In a case where an average person would have served a few days of jail at best, she served forty days based on nothing more than being a high profile celebrity.  In her case, the judge actually ordered her back to jail after the sherriff released her pursuant to guidelines governing all other inmates. If Phelps is actually charged, it will be another example of such treatment. Something we should consider before saying  how easily celebrities “beat the system” with their fame, money and power.