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THE CRIMINAL CHARGES INVOLVING DUI
In California DUI involves a violation of Vehicle Code Section 23152(a), the first count, Driving Under the Influence (This offense does not require a .08 blood alcohol level in order to convict and it is sometimes charged without the second count.) DUI also includes a second count involving a violation of Vehicle Code Section 23152(b), Driving Under the Influence of Alcohol with a blood alcohol level of .08 or more. These charges can include enhancements if you have a blood alcohol level of .15 or above; another enhancement may occur if you have a child in the vehicle; if you were driving reckless. You can be charged with Felony DUI a violation of Vehicle Code Section 23153(a) or (b) if someone is injured besides yourself or you have four convictions or more within 10 years. A prior conviction within 10 years usually involves jail time depending on the county of offense. If you are a minor or under 21 years of age, you can be suspended by DMV for one year or more. If you refuse a chemical test then you can be suspended for one year. No restricted license shall be allowed for those convicted under 21 years of age and for those individuals suspended for refusing a chemical test. All offenders with two or more convictions must win their DMV Suspension case and avoid a DUI conviction or they will lose their license for 1, 2, or 3 years. If you lose a DMV case there is no restricted license unless it is your first offense.
Officers arresting you for DUI have only one intention which is to make you look as guilty as possible. A government’s currency is it’s ability to tell the truth. Officers who lie about the facts of your arrest are criminals themselves. You should realize the Officers investigating your DUI are not there to be your friend or listen to a sob story about why you consumed alcohol. The officers are there to convict you of the charges.
Many clients have asked me what about my Miranda Rights? When the police pull you over to investigate a DUI, they usually will ask you a number of questions and they are very successful at getting you to admit the entire crime before your arrest. Miranda only takes effect once you have been arrested or detained. If a driver asked the officer, “may I leave or am I under arrest,” then Miranda applies but most people stopped for what they believe is a traffic violation generally will make statements to the arresting officer.
However, making statements about you consuming alcohol doesn’t mean you are DUI. In the many trials I have done, I always remind the jury that it is not illegal to consume alcohol and then drive a motor vehicle. It is only illegal if you drive and you are under the influence.
There are two breath machines used in the Bay Area. Most of the counties have used the Dreger Alco Test 7110 with the exception of San Francisco which uses the Intoxilyzer 5000. All of the officers use a preliminary alcohol screening test or PAS Test, which is the breath test administered in the field. A Intoximeter Alco Senser 4 breath machine, a small hand held device, is usually administered before you are formally arrested. We challenge all of these breath tests under the California Administive Code, Title 17 which are the regulations the police and their laboratories must follow when administering a breath or blood test. We use a forensic toxicologist to attack the results of the test based on violations of laboratory procedures an Title 17. This is effective in both court and the DMV Suspension hearing.
Officer must give you a choice of a blood test or a breath test. A blood test requires the blood be drawn by a person who has proper training and it must be taken in a “medically approved manner.” The chain of custody must be established to prove the blood taken is really your blood. For example, one of the issues in the Simpson case watched by millions, was the issue involving blood discovered at the crime scene and the chain of custody as to the samples. Every person who takes possession of that blood must sign for it on an evidence envelope containing your blood sample. The blood containers themselves must initial or signed. If this cannot be established the prosecutor’s case is weak. The blood sample must not be contaminated or it is no good. It must be refrigerated from the time it is taken through transportation up until and after analysis. There are records which record how your blood was handled and you have a right to request them and have an expert review them.
These tests prove nothing because many people cannot perform them even in a sober state. Field Sobriety Test or FSTS are used by officers to determine whether you are under the influence. However, many officer use them to convict the person they arrest. I always laugh when the officer writes that the subject cannot complete the finger count or walk a straight line and he only is found to have a .08 or .09 blood alcohol level or BAC. Usually the officer will have this person driving all over the road weaving in and out of lanes doing things which only a person with a .15 blood alcohol level would do when driving a vehicle. Many of my clients can’t believe what the officer wrote and sometimes claim the officer indicated he passed the field test or had done well on the field sobriety test. This is why you need an attorney to help you who is familiar with these tactics.
THE POSSIBILITY OF JAIL
Generally no one is given a mandatory jail sentence for a first time conviction. However, there are other consequences which may result. Once convicted the record will be sent to the DMV and a few weeks later your license will be suspended for six months. This suspension is separate from the automatic DMV Suspension, In effect you will receive the DMV suspension of 4 months if you fail to request a hearing within 10 days and a six month suspension once you are convicted of DUI once DMV gets the conviction record form the court. Depending on your blood alcohol level BAC at the time of driving or how many prior convictions you have, you can spend between 30 days and 180 days in jail. If your case is charged as a felony you can go to State Prison for a minimum of 16 months and up to 3 years. YOU MUST FIGHT EVERY DUI CASE EVEN IF IT IS YOUR FIRST BECAUSE DESPITE WHAT YOU SAY OR BELIEVE IT CAN HAPPEN AGAIN.
THE MINIMUM YOU MUST HAVE TO WIN YOUR CASE
1.A toxicologist to destroy the chemical test used to determine your blood alcohol level BAC
a.Good facts to support your defense or establish that you were not under the influence of alcohol when you drove. This means witnesses who saw you prior to getting in the vehicle who can testify as to whether you were under the influence or not.
b.An experience attorney who knows DUI including the courts and DMV. We practice regularly in all nine Bay Area counties and know what type of punishments will be offered in those counties for DUI. We are familiar with the Judges who work in each of the courts in the Bay Area and many of the deputy district attorneys that are assigned to your case.
c.The will and the money to fight your case wherever it may take you. You decide how far you will go in court. We will either go all the way or enter plea but many of those who use this office obtain a lesser plea like reckless driving with or without the use of alcohol. These offenses involve lower fines, no jail and DMV will not suspend your license if you are convicted of an lesser offense that is not a DUI. Remember in order to avoid a suspension entirely you must also win your DMV Suspension Hearing. In some instances you will not have to attend court and we can appear on your behalf.
If you have been charged with DUI or any Criminal Charge relating to Driving, "DUI", "DWI" in the Bay Area or anywhere in California call us. We also offer help with charges such as,driving on a suspended License, reckless Driving, Hit and Run, just call us toll free 1-877-250-7521 and talk with Tim Gomes the #1 DUI lawyer in California. We offer DUI help in all of Northern California. Representing our clients in both DMV hearings and Court Criminal Proceedings
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With over 47 years combined experience in DUI, Hit and Run, and all criminal cases in California call us today WE CAN HELP! FREE CONSULATION:
This is a site written for anyone accused of being under the influence of driving a motor vehicle after consuming alchohol or drugs.
1. The first thing you need to do is make sure you have contacted DMV that has the authority to suspend your license.
2.Upon Arrest most police officers will not inform you that you are legally required to request a DMV APS suspension hearing
3.This hearing must be within 10 days of your arrest.
SEE OUR "DMV HEARING REQUEST PAGE" FOR A FREE FORM FOR YOU TO SEND TO DMV
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Don't loose your license by forgetting to apply for your license hearing with our hearing request form. We can and will do all of that for you with a notice of attorney representation if you contact and hire us through this site: (877)250-7521.
For Drunk Driving cases in the Bay Area including all of Northern California please call us so that you can get your case fairly resolved, meaning a reduced charge or a dismissal. WE CAN HELP!
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