On DUI- An attorney’s view

By George Miller

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With the Labor Day weekend coming up, we are reminded that more Americans are killed or injured because of impaired driving accidents than from wars. Legislators, law enforcement, courts and civil libertarians have struggled over what to do about this for a long time. What has evolved, for better or worse, is a system of prevention/enforcement based upon public education, undercover work, informers, police patrols and DUI (Driving Under the Influence) “checkpoints.”  For more on the latter, read our feature article on DUI Checkpoints. Although the programs have succeeded in reducing the incidence of DUI’s, some efforts have also infringed upon constitutional rights, specifically the Fourth Amendment right to be free from unreasonable search and seizure with requirement for probable cause. Government overreach has stretched the Fourth to its breaking point and we now have a situation where courts permit law enforcement behavior never intended by the Framers, in return for greater public safety, a Faustian bargain, some think.

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Christina Oleson, ESQ, criminal defense attorney

Christina Oleson, Esq. of Oleson Law [email protected] (760) 787-0609, a criminal defense (including DUI defense) attorney and member of the National College for DUI Defense, weighed in on the issues for Citizensjournal.us. She has focused on DUI defense for the last few years, originally wanting to be a prosecutor and formerly a law clerk for the United States Justice Foundation (USJF), a constitutional non-profit in Ramona, CA. While growing up in a small town, she noted all the criminal activity, including drugs, drinking, and DUI’s, then rounded out her law school education with subsequent seminars and training on DUI defense. In addition to her JD at Thomas Jefferson School of Law, she has this further education:

– California Public Defenders Association DUI Defense Practice Institute, Summer 2014

– National College for DUI Defense, Winter Session, 2014

– California Public Defenders Association Summer Trial Skills Institute, 2013

– Certification Qualified DUI/DWI Detection & Standardized Field Sobriety Testing Administration, 2013 (same DUI training police officers receive in the police academy)

 Opposed to “Checkpoints”

Oleson feels that DUI “checkpoints” are unreasonable, questionable, and often lead to citations and charges that have nothing to do with driving under the influence, and in her opinion seem to be contrary to  the Fourth Amendment protection against unreasonable search and seizure. However, California courts have ruled them “constitutional,” but at least placed some limits on them, which helps contain their scope and reach, providing some legal defense opportunities.

She further opines that “the argument to justify these is always public safety, but there are too many exceptions to constitutional rights.  Americans should be free from unreasonable search and seizure.”

Ms. Oleson favors less intrusive methods of law enforcement and believes that patrols and stopping for probable cause are the best DUI approach. She agreed that public education seems to have had some positive effects as well.

Advice to the Public

Although Ms. Oleson is always busy defending her clients, we were able to persuade her to part with a few gems of wisdom. She warns that if you get into a DUI situation where law enforcement stops you on DUI-related matters and attempts to collect information from you, proceed very cautiously.

– Her best advice is “Don’t drink and drive. EVER.”

– Upon being stopped, offer driver’s license, vehicle registration and insurance card when requested,  if you have them. If not, that’s a whole other situation.

– Politely refuse to answer other questions. Always be very polite.

– Neither admit nor deny anything about drinking or otherwise imbibing any substances nor admit nor deny any behaviors.

– Politely decline any field sobriety tests and  preliminary alcohol screening “PAS” breath test, if offered (unless you are on probation or under 21, in which case it is required by law). Field sobriety tests are much too subjective. Both the field sobriety tests and “PAS” results are a form of evidence collection, which will be weighed by the police officer in his or her determination to arrest you and both will ultimately be used against you to prosecute your case

– If you are arrested for a DUI offense, you will be asked to complete a blood, breath. or urine test, which is different from the preliminary alcohol screening “PAS”  breath test. If you refuse the test at the police station, your driving privileges will be suspended for one year

After contact with law enforcement, her advice is to immediately contact a competent attorney to handle such a case. This is not something you want to handle alone or even with a friend or relative without the qualifications to address it. You are up against the state and all its resources.  The attorney is already well-versed in what to do, knows who to contact, where to go, what to say and how to mitigate the trouble you might or might not be in. It would be good to know of an attorney before you ever need one. The National College for DUI Defense www.ncdd.com is a good resource as all attorneys that are members are highly skilled, trained, and dedicated specifically to DUI defense.

– The attorney will develop the case facts, with your help and through investigation, knowledge of the law, organizations and people.  It is important to do this very quickly because:

– Memories of the situation will still be fresh in peoples’ minds and evidence will not have had a chance to wander away.

– There will be an upcoming arraignment which an attorney may be able to head off with the District Attorney (DA), if a case can be made to do so and there is sufficient time to build such a case. Typical reasons to avoid the filing of criminal charges by the DA’s office are failure by law enforcement to setup a checkpoint or traffic stop legally, or some flaw(s) with the arrest, testing or other matters.

– CA law requires a DMV (Dept. of Motor Vehicles) hearing request within  ten days. If you do not request the DMV hearing within 10 days, you will lose your opportunity to request a hearing later and your driving privileges will likely be automatically suspended. Oleson told us that Ventura County requires a minimum of two days in jail for DUI arrests, a sobering realization.

– Ms. Oleson strongly urges her clients to become involved in AA (Alcoholics Anonymous) meetings/”12 step” process, as these can help troubled people and are also regarded as evidence of good faith for admission of a problem and self-improvement.

Specific criteria for a DUI checkpoint

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– Ms. Oleson told us that DUI checkpoints are illegal in 12 states, but unfortunately, California is not one of them. The Ingersoll v Palmer CA ruling in 1987 was the landmark case anchoring the current DUI checkpoint ground rules. Other cases help define more DUI law.

– General operations decisions must be made by supervising officers.

– There must be preset neutral criteria for selecting people for stops/testing.

– People may only be detained a minimal amount of time, long enough to observe symptoms of intoxication, slurred speech, erratic movements, glassy/bloodshot eyes, smell of liquor on breath, etc.

– Checkpoints must be well-marked by signs, flashing lights.

– Checkpoint locations must be reasonable- in areas of high DUI probability.

– Proper safety precautions must be in place.

– Roadblocks must be publicly advertised, but no longer the specific location, since a 1993 ruling eliminated that requirement.

A competent attorney will examine the police report, talk to officers and other witnesses, as well as investigators. Criminal charges may be avoided, under the right circumstances. Sometimes, a bail hearing may be required, with arrangements to post bail, if appropriate. During the bail hearing, it will likely have to be established that the defendant is not a danger to the community. Then there is the DMV hearing, which is a separate matter, which may influence suspension/revocation of your driver’s license, which can also affect driving privileges in other states due to the interstate driver license compact, by the way.

 Specific criteria for a typical DUI traffic stop outside of a DUI checkpoint

In CA, reasonable suspicion is required to stop and question a motorist, which could consist of erratic driving, behavior, disheveled appearance, obvious defects of vehicle, or tips. In order to make a DUI arrest following a traffic stop, there has to be probable cause, which is based on a couple of phases that the officer has to follow:

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– Initial observation of subject in motion and observation of the stop

– Face-to-face interview and observation of the exit

– Field sobriety tests and preliminary alcohol screening “PAS” breath test

What drives DUI enforcement?

Public sentiment has demanded stronger measures to deal with the epidemic of DUI abuse and the accidents, death and destruction resulting from it. Government has responded, in its often heavy-handed manner. Laws have been passed and money appropriated to help deal with it. Federal highway funds may be withheld if higher levels of government controlling the purse strings don’t believe that DUI enforcement is being pursued zealously enough.  They even attempt to evaluate/quantify efforts and results. Tough laws for DUI enforcement, conviction and punishment define the legal landscape.

The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) awards grants to law enforcement organizations to help implement DUI enforcement activities in the form of patrols and the favored DUI checkpoints. So, law enforcement departments not only get “greased,” with additional funding, but cities receive fine revenue and in some cases fees and courts costs. Law enforcement officers frequently get overtime pay for participating in “checkpoint” events, which you can see from press releases in this publication happen regularly and frequently.

The penalties for DUIJail

CA state law subjects DUI offenders to an escalating series of penalties, including probation, jail (up to 6 months for a misdemeanor first offense), fines (potentially exceeding $1000 depending on the county-misdemeanor 1st offense), license restrictions (up to 10 months-misdemeanor 1st offense) and mandatory DUI schooling (up to 9 months- misdemeanor 1st offense). It only gets worse for subsequent offenses or if there is bodily injury, property damage, or a high blood alcohol content, but repeat offenders already know that.  So, you can see that the stakes are high. A good attorney may help to mitigate penalties.

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Ventura County DUI penalties- chart provided by Toothacre & Assoc APC

 

A good legal summary from SHouse law (888-327-4652): http://www.shouselaw.com/drunk-driving-penalties.html

Previous CJ article on DUIs’: https://citizensjournal.us/dui-checkpoints-triumph-for-public-safety-or-war-on-the-u-s-constitution/

Key relevant U.S. Supreme Court rulings http://www.duicentral.com/lawrence-taylors-top-10-us-supreme-court-dui-cases/

Christina Oleson, Esq. of OlesonLaw [email protected] (760) 787-0609,  713 D Street, Suite D Ramona, CA 92065

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George Miller is Publisher of Citizensjournal.us and a “retired” operations management consultant, active in civic affairs, living in Oxnard.

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4 Responses to On DUI- An attorney’s view

  1. Ronald Kirk August 27, 2014 at 6:36 pm

    Excellent!

    Checkpoints are yet another form of coercive regulation—as with all regulation you are guilty until proven innocent.

    Education and public persuasion with peer pressure are the best, most effective and longest lasting, means of mainstreaming ideas. The marketplace of ideas is powerful. Then, when relationship breaks down, the Law, with due process, is for the lawless.

    Thanks for this.

    Yours,
    Ron

    Reply

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