Los Angeles DUI Lawyer Blog

A lot of clients ask me if it was "legal" for the law enforcement officer(s) to perform a pre-arrest breath test with a Preliminary Alcohol Screening Test Device aka "PAS" machine.

The answer is yes according to the California Vehicle Code. CVC Section 23612(h) allows for a law enforcement officer to use a "preliminary alcohol screening test" as an additional Field Sobriety Test and investigatory tool to use in a DUI investigation. The law enforcement officers are specifically allowed to use this when the suspect that a person was driving a motor vehicle while they were in violation of California Vehicle Code sections 23140 (a person under 21 driving under the influence of alcohol), 23152 (the common misdemeanor criminal violation for DUI for person over age 21) or 23153 (driving under the influence of alcohol or drugs causing injury). This test is used to show the "presence of concentration of alcohol" as determined by a sample of a suspect's captured breath.

Another follow up question to this is why this tool is even necessary if law enforcement has the other FST tests and they observed "bad driving" or an accident. Basically it is a "further investigative tool," and helps the law enforcement officer to form reasonable casue to believe that an individual has been operating a motor vehicle under the influence of alcohol or drugs. A PAS test is not always given to a suspect in a DUI investigation due to a refusal to submit to this pre-arrest breath test, conditions that don't allow for its use or the officer's decision not to perform this test. Because it is an additional tool, it is not required to be given to everyone suspected of a DUI offense.

Let's examine a hypothetical situation whereby a driver gets pulled over on the 405 freeway by the California Highway Patrol for speeding. Upon walking up to the vehicle and greeting the driver, the officer smells an "odor of an alcoholic beverage" coming from the open window. At this point, the CHP officer beings his DUI investigation and asks the routine questions about how much the driver has had to drink, when she last ate, etc. After about 30 minutes of FST tests and a pre-arrest breath test, the driver is arrested and taken to the station for booking and further chemical testing.

The "Implied Consent" law (which even applies to the dead) kicks in after a driving under the influence of alcohol arrest has been made and the CHP officer legally has to offer the DUI suspect a choice of a blood or breath test. At this point many people, including the suspect in this hypothetical may feel that they have a legal right to have an attorney present for the test or that there exists a right for them to consult with a lawyer at this point of the investigation. Unfortunately, this is not the case.

If a DUI suspect refuses to take a chemical test unless they have an attorney present, the law looks upon this as a refusal. The Fifth Amendment to the United States Constitution provides a privilege against self-incrimination. Unfortunately, under the case of 1971 case of Goodman v. Orr, the California Appellate Court ruled that collecting a sample for chemical testing of a DUI suspect is legal in order to determine if that person is under the influence of alcohol or drugs, and does not violate this privilege against self-incrimination. The Goodman v. Orr decision is reflected in the language of California Vehicle Code section 23612(a)(4), which to paraphrase, states that the officer shall inform the suspect that she does not have the right to an attorney before she decides which test to submit to.

So remember that if you arrested for DUI in Los Angeles,even though it may seem like you have the right to a lawyer before you decide which chemical test to take, you actually do not have the right to an attorney at this stage, according to the Goodman v. Orr case and CVC section 23612(a)(4). The Fifth Amendment privilege against self-incrimination or an invoked "imagined right" to an attorney at this stage of the CHP's investigation affords no defense to a subsequent chemical test refusal charge by the DMV and the prosecutor.

I was surprised to hear that R&B Singer Faith Evans was arrested in Venice last night at an LAPD checkpoint. The checkpoint was located on the westside of Los Angeles, in Venice, just south of Santa Monica. For those of you familiar with the area, the specific location was Washington Boulevard between Stanford Avenue and Lincoln Boulevard and the dui checkpoint ran from 8 p.m. to 2 a.m. Initial reports indicate that the Los Angeles Police Department impounded her vehicle and detained her until the following morning. Details haven't surfaced yet as to her blood alcohol level from any preliminary alcohol screening test that she may or may not have taken at the scene of the checkpoint.

For those of you that haven't had the pleasure of going through a DUI checkpoint, the LAPD has a video that shows how a checkpoint functions from their perspective. Under the law, in order for a DUI checkpoint to be legal, it must past the criteria established in the 1987 California case of Ingersoll v. Palmer. Those criteria to determine the reasonableness of a checkpoint are:

(1) Decision making being at a supervisory level;
(2) Specific Limits on the discretion of field officers;
(3) Maintenance of safety conditions;
(4) Reasonable Location;
(5) Time and duration;
(6) Indicia of official nature of roadblock;
(7) Length and nature of roadblock; and
(8) advanced publicity

If charges are filed by the prosecuting agency, they will need to make sure that the LAPD followed these eight factors in order to have a legally sufficient checkpoint. If any of these factors are not fulfilled, then this will present problems for the prosecution team and will aid her defense attorney in fighting any potential DUI charges against Faith.

On a lighter note, here's her video of "Never Let You Go" from one of her better songs off her album "Keep the Faith," a track written with help by 90's R&B producer extraordinaire Kenny Edmonds aka "Babyface"

If there is a fatal car crash in Los Angeles that results in a subsequent law enforcement DUI investigation, can the victim's dead body be tested for alcohol or drugs under the "implied consent law" as provided for by California Vehicle Code 23612(a)(1)(A)? Furthermore, has that person's death caused their "implied consent" to have been withdrawn?

The issue here is how the "implied consent law" applies when an individual does not have the capacity to refuse a chemical test for alcohol or drugs. The law provides that a dead person's body can be tested for alcohol. Obviously in this case it would have to be a blood sample (unless the police develop a creative use of cpr to capture breath samples) but what is really surprising is that under CVC section 23612(a)(5), death does not cause a driver's inability to refuse a test to extinguish the implied consent law and law enforcement can still order the administration of a chemical test.

Also an individual who is in a physical condition whereby they cannot express refusal or is in a state of unconsciousness, is also not ruled to have withdrawn consent for chemical testing. The "implied consent law" created by operating a motor vehicle means that refusal to submit to a test will bring about a revocation or suspension of one's California driving privilege. The result: an unconscious person and those incapable of refusing are still deemed to have consented and the test can go ahead, even if they are not instructed as to the license consequence of a failure to submit.

So what should you conclude from the above? Basically CVC section 23612(a)(1)(A) is a strict rule as it applies to both the dead, unconscious and people who are in a physical state prohibiting them from refusing a chemical test. If you are driving a vehicle in Los Angeles or anywhere in the state of California, you have given your "implied consent" to chemical testing in the event of an arrest for DUI, even if you are dead by the time the test is performed.

I can tell from experience that yes, it definitely does matter what you wear to court. The judge, jury and everyone else in the courtroom will take notice of how you choose to present yourself to the court. You want to show that (a) your respect the courtroom and (b) that you are taking the matter seriously. Whether it is as simple as a contested traffic ticket or a DUI, it is important to dress appropriately for court.

That doesn't mean that you have to wear a suit and tie, but there is definitely a difference between a pair of slacks with a button up shirt compared to flip flops, shorts and tank tops. You want to present the best image you can to the court and this will help your lawyer, be it a private criminal defense attorney or public defender, in their representation on your behalf. This isn't only pertinent advice for Los Angeles Superior Court defendants, USA today reported that this inappropriate dress code trend is occurring in courts all across the country.

Taken into custody this past Sunday morning was Oregon State Football Alum and the NFL Cleveland Brown's defensive back Gerard Lawson. By way of review, Lawson has been playing professional football for three years, since his days as an Oregon Beaver star defensive back. He was arrested Sunday in Cleveland's Warehouse District for DUI after allegedly fleeing the scene. His next scheduled court date stemming from this arrest is in Municipal Court on August 17th, when he will most likely be arraigned on DUI charges. It is alleged that he was leaving the location of a vehicle collision and was stopped in close proximity to the scene by law enforcement officers.

After all this, Lawson still found the energy to engage in practice at the Brown's training camp on Monday afternoon. Let's hope this is the only NFL player to get arrested for DUI during the 2010 NFL training camp and preseason. While a DUI arrest is only an allegation of a crime, the legal proceedings which follow have got to be a huge distraction to Lawson and other NFL players arrested for DUI. Hopefully Lawson can return to his collegiate form back when he was playing at Oregon State. During his four years there he had one of the longest kickoff returns in the school's history, 68 tackles, one touchdown and two interceptions.

Here are some of his highlights:

Early reports yesterday morning indicated that Lindsay Lohan was leaving jail to go to Morningside Recovery in Orange County. It turns out that her treatment plan has changed and now she will be completing her rehab at the widely-respected rehab facility operated by UCLA Medical Center here in Los Angeles. This facility should be able to give Lindsay Lohan the amount of security and privacy that she needs to focus on her recovery.

I've also learned that actor Kris Klein is continuing to work on his own recovery by extending his stay at the Cirque Lodge rehab facility in Utah. This shows a lot of dedication on his part and a real commitment to getting back to good health. I wrote a blog back in June about his second DUI arrest, hopefully Mr. Klein is dealing with the issues that caused him such problems back on that night. Here's hoping that his Los Angeles DUI case reaches a good resolution and that he can stay on track in his recovery, getting back to his craft on the screen. Addiction issues can affect all members of society and while celebrities get a huge amount of press when they hit rock bottom, all non-violent drug offenders and addicts alike can benefit from treatment. Whether it is Prop 36 or an in patient rehab program, it takes a tremendous amount of courage to tackle our challenges and work towards building a better life. While many people are quick to attack the weaknesses of others, we should also focus on supporting those who recognize their issues and bravely work to address them.

Linsday Lohan was released from the Lynwood detention facility this morning (along with a police escort to UCLA Medical Center) after serving just 13 days of her 90 day jail sentence for violating the terms of her DUI probation. This was due to jail overcrowding and also good behavior on her part. Her next step in the process after being released from jail is to begin her long term rehabilitation program at Morningside Recovery, a rehab program in Orange County that specializes in detoxification and treating addiction. Hopefully Lindsay will be able to find the help she needs there to get her career back on track and avoid any future DUI probation violations. Once she has fulfilled the terms of her DUI probation, she would be able to follow the lead of Mel Gibson and have her conviction expunged from her criminal record.

This is a common question. There are several factors that come into play with a conviction for a first time DUI In Los Angeles. Many first time DUI offenders serve no additional jail time in their sentence on a first time DUI charge if they accept court probation. The main components are separate from any DMV Administrative action and include court probation, monetary fine and a court ordered alcohol program. (1) Court probation: this probation term amounts to thirty six months of court probation, during which the defendant must submit to alcohol/drug testing during this period of court probation. Also during this period, the defendant/probationer cannot drive a motor vehicle with any amount of alcohol in their body (2) Monetary fine: the standard fine in Los Angeles is $390 to $1000, with additional court and penalty fees included in the final total. (3) Alcohol program: the court will order enrollment within 21 days in a 3 month or 9 month state approved alcohol program. The type of alcohol program depends upon the defendant's blood alcohol level. It is also important to note that upon receiving notification from the court, the DMV will suspend the first time DUI driver's license for 6 months. Because Los Angeles is a part of the DMV's new ignition interlock device pilot program pursuant to the new AB 91 law, the licensee must install this device on their vehicle in order to obtain a restricted license from the DMV.

CHP was engaged in another "Maximum Enforcement Period" during this past 4th of July weekend and their office recently reported that California highway patrol officers made 1,438 DUI arrests. This number is a significant increase from last year's fourth of July weekend with its total of 1,239 arrests made by the CHP. 2010's CHP DUI arrest numbers have 2009's arrest total amount beat by almost 200 DUI arrests. However, on this past 2010 Memorial Day weekend, the CHP made even more DUI arrests when they arrested 1,541 drivers on suspicion of driving under the influence.

One of these fourth of July weekend DUI arrests was NFL running back Quinton Ganther, who was arrested early Saturday morning in Sacramento on suspicion of DUI by the CHP. He was recently signed by the Seattle Seahawks this offseason after playing last year for the Washington Redskins. Ganther played his first two seasons with the Tennessee Titans. While these statewide numbers for CHP DUI arrests are out, I have yet to read if there was an increase in Los Angeles County DUI arrests from last year's amount of 213.

DMV requirements have changed for first time offenders who suffer a DUI conviction in Los Angeles after July 1 of this year. California's new law, AB 91, applies additional restrictions to a licensee's ability to get a restricted license from the Department of Motor Vehicles. By way of background, once you have been convicted of DUI or entered a plea to a charge of DUI in Los Angeles Superior Court, the DMV will receive an abstract of judgment from the court and suspend your license for 6 months based upon this record. In the past, if a defendant had their DMV APS civil action set aside (or if the 30 day hard suspension had passed) then they would be eligible to go to the DMV and apply for a restricted license immediately after receiving notice of the suspension from DMV. That has changed, as AB 91 has imposed an additional restriction on those convicted of first time DUI charges in Los Angeles: now they must get an IID (Ignition Interlock Device) installed on their vehicle in order to receive a restricted license from the DMV. The licensee will also only be allowed to drive a vehicle that has an IID installed. The DMV will accept proof of installation in the form of a "verification of installation" and will also require (big surprise) an additional fee to be paid to DMV.

AB 91 applies in the "pilot program" counties of Los Angeles, Sacramento and Tulare. This new law doesn't apply in San Diego County or non-pilot program counties. An additional requirement is that licensee must keep the IID installed on the vehicles they own for five months or for a period of twelve months if the DUI offense involved injury. The DMV will also apply a sliding fee schedule to be used by certified IID installers, who will be required to charge set fees to customers based upon income when compared to the federal poverty level. IID's are not currently available for motorcycles, so motorcyclists who are convicted of a first time DUI cannot legally ride a motorcycle while the IID restriction is in place.

Another exception to the IID installation requirement exists for those who don't own a vehicle or don't have access to a vehicle at their residence. It is important that they certify this to the DMV within 30 days, as the new AB 91 law requires. Once a person with non-access or non-ownership to a vehicle acquires a vehicle, they will be subject to the requirements of this new IID law. As previously mentioned, Los Angeles is one of the three pilot programs in the state of California, so someone convicted of a first time DUI in Los Angeles will have a tougher DMV penalty than someone in Orange County. I believe that this is the start of a push for requiring IID's in all California counties after the pilot program has ended and the statistics are reported to the Legislature on or before 01/01/14. We will have to wait and see what impact this has on repeat DUI offenders in Los Angeles, Sacramento and Tulare Counties. (AB 91 is the second new IID related DUI law change from July 1st, the other law is SB 598, which I wrote a quick guide for last week)

I discussed this briefly in my blog yesterday on Chris Klein, but this new DUI law (SB 598) deserves more discussion this week. Many people are confused by California's new law, SB 598, that went into effect yesterday on July 1. SB 598 is a change in the existing law relating to the ability of repeat DUI offenders to obtain a restricted license from the Department of Motor Vehicles. For example, under the old law, a person with a second DUI conviction within ten years would face a two year license suspension and only become eligible for a restricted license after waiting through a one year "hard" suspension. This means that they would have to wait a full 12 months before being able to even apply for a restricted license at the DMV (The DMV describes this new law here). Under SB 598, this person can now apply for a restricted license in the much shorter timeframe of 90 days if they have placed an ignition interlock device on their vehicle and are attending their DUI alcohol program. By way of background, an ignition interlock device functions by taking a sample of a person's breath to test for the presence of alcohol before it will allow the car's ignition to function. The car's engine is not able to start the device detects a blood alcohol amount between .02 to .04% alcohol. This new law means that people convicted of second time DUI offenses in Los Angeles will be able to obtain a restricted license in a much shorter amount of time if they are willing to install the IID device. Criminal defense lawyers and the courts are working together to deal with the changes in the law, as even the court's plea forms have been changed as of July 1, 2010.

I just read an article on actor Chris Klein's DUI arrest and subsequent charges filed by the Los Angeles City Attorney. I've already written about his Los Angeles DUI arrest in a blog from two weeks ago, however I need to point out an error in the E online article, as they claim that he will have to "bust out" of the Cirque Lodge rehab facility he's currently attending in Utah. That isn't necessarily the case, as he can hire private counsel to appear pursuant to section 977 of the California Penal Code. This is one of the many benefits of hiring private counsel for those in the public eye or clients who don't want (or cannot) take time off from work to attend their scheduled court hearings. On a misdemeanor dui charge such as this, it is common place for a private defense attorney to appear for his or her clients. This allows their clients to focus on their work or in Chris Klein's case, his apparent efforts at recovery. Frankly it would make no sense for him to interrupt his treatment plan to return to Los Angeles, when a local criminal defense attorney can represent him without his presence in court. If Klein is convicted and wants to obtain a restricted license, the new IID (ignition interlock device) laws affecting Los Angeles county would require an IID on his vehicle after serving a 90 day "hard" license suspension. This is due to the new law (SB 598) which went into effect today and allows second time DUI offenders to obtain a restricted license after 90 days from the date of their conviction, provided they provide proof of IID installation to the DMV.

Congrats to the L.A. Lakers in pulling through to win in what was a really close series and game 7. The Lakers' defense and enthusiastic fans really helped them win. As for the aftermath, early television reports on abc channel 7 show a taxi being set on fire and roaming groups of people shaking cars. The police have been given the go ahead to use rubber bullets to disperse these crowds, let's just hope that it calms down. Other reports stated that 12 people have been arrested outside the staples center and 1 officer injured with a broken nose.

Several of those arrested are reported to be arrested for 647(f) "drunk in public" and no doubt there will be some penal code 415 arrests for disturbing the peace. I'm curious if there will be a rise in CHP Los Angeles DUI arrests tonight as a result of increased police presence and celebrating Lakers fans. The whole city of L.A. is proud of our team, so let's hope we match their championship on court performance with a responsible celebration.

Here in Los Angeles County, the CHP arrested Chris Klein for DUI early this morning on June 16th. The story is still developing, however the California Highway Patrol has also reported in a news release that officers initially observed him weaving between lanes on the Hollywood Freeway in Sherman Oaks. TMZ's related stories shed more light on Klein's arrest, as their sources claim that he had a blood alcohol level in excess of .20. This DUI arrest comes on the heels of his Los Angeles DUI charges from 2004. Klein is famous for his roles in the films "American Pie" and "Election." While he has fallen out of the spotlight the last few years, his more recent parodies involving leaked auditions on Funny or Die have put him back in the news cycle.