Criminal Defense

/Criminal Defense
Criminal Defense 2017-09-19T18:37:59+00:00

DUI Common Questions

Criminal Defense

If you have any questions after taking a look at our frequently asked questions, call to schedule your free consultation!

I was just read my rights, should I talk to the police?

No. You should absolutely not talk to any police officer who has just read you your rights without first talking to an attorney. Police officers are required to give you your Miranda warnings when they are questioning you because it is so overwhelmingly against your best interests for you to be talking to them. You have the right to remain silent, anything you say can and will be used against you. You have the right to an attorney, if you cannot afford an attorney, one will be appointed for you. Those are your Miranda Rights, and if you hear those words, the only response out of your mouth should be “I want an attorney”. This could be the most important decision of your life. Police are allowed to lie to you in order to get a statement, and they will use what you tell them to send you to prison. Even if you think making a statement is the right move, there is no harm in talking to an attorney first. This is important because you do not want your words misinterpreted, or taken out of context. You do not want to say the wrong thing when you do not know what facts the police think they have. Waiving your rights and talking to the police is the worst thing you could do for your case. If you have made a statement to the police, talk to a lawyer immediately to see if or how the damage can be undone.

I was not read my rights, but the police asked me to talk to them

Be careful, its a trap! The police only have to read you your rights if you are in custody. A very common police tactic is to invite you to come down to the station and talk. If you walk into the police station on your own, then you are free to leave at any time, so they can get a confession out of you without ever making you aware of your rights. They can lie to your face in order for you to try to get the best deal you can before it is too late. Do not fall for it, the police do not have the power to make deals. If you really want to talk, show up to the station with your attorney. If the police suspect you of a crime, they are not your friends, and they are not there to help you, only your attorney is.

What do I do when I get stopped by the police?

Any one of us can be suspected of wrongdoing at any time. So knowing what your rights are is important for everyone. There are times when a police officer can briefly stop you to determine if you are involved in a crime or not. They have to be able to point to specific facts that tie you to criminal activity in order to do so. One way they get around this is to ask your consent to talk to them, or to search your person or belongings. There is no reason to give up your rights and consent to a search. Once you consent to a search, the police can do almost anything they want. Are you willing to bet your future that your roommate or friend did not leave something illegal in your car? Are you willing to bet your life that someone didn’t borrow your jacket and leave something illegal inside? You are under no obligation to consent to any search, and once you do, you have waived your rights. Whenever a police officer asks for your consent, you should ask him or her if you are free to leave. If the answer is yes, then leave. If the answer is no, ask to speak to a lawyer. Always be polite and respectful, but there is never a good reason to consent to a search. Once you do, you could be powerless to stop an invasive search of you, your car, or your home.

What if I get stopped and I have something illegal on me?

If you are caught by police and you have drugs on you, do not make any statement other than “I want my lawyer”.  There is a decent chance that you are being recorded, and the last thing you want is to volunteer information or try some theory on the police officer about how the drugs got into your jacket before all the facts are in.  Do not guess, ask for a lawyer.  Be polite and respectful, the police officer is just doing their job, but do not help them put you in jail by consenting to a search or by saying anything.

What if I get caught drinking and driving?

I have handled hundreds if not thousands of DUI cases.  Two constant truths have been present throughout my career.  1) It can happen to anyone; 2) There is a powerful system in place to catch and convict you.  Without the right legal representation, you can get swallowed by the drinking and driving machinery.  I am not advocating drinking and driving, but since it can happen to any of us, you should know what your rights are and know about the system designed to convict you.

The System

DUIs are big business in America. long gone are the days when a police officer would find you behind the wheel with too much to drink and simply escort you home with a scolding. This system has its roots in political pressure, when in the 1980’s, congress was lobbied to change our drinking laws. The initial focus was to raise the drinking age to 21. Congress could not force states to do this, but they could hold Federal highway funds hostage unless states complied. One by one, every state eventually folded to the pressure of raising the drinking age in order to get money for crucial infrastructure. That was the first in a long line of demands. Now, states are dependant upon federal grant money to function. Federal grants are available to fund DUI checkpoints and saturation patrols. Federal grants are available to fund alcohol counselors, prosecutors, and advertising. The more states depend on these Federal grants, the more states succumb to the extremely successful lobbying efforts of interest groups aimed at perpetuating this system.

We have all seen a DUI checkpoint. What you may not know is they are advertised ahead of time. If you frequent bars more than walking distance away, setting a Google Alert for DUI checkpoint in your city is not a bad idea. It is no guarantee you won’t be surprised, but advance notice never hurts to help you make smart decisions. A saturation patrol is different though. A saturation patrol is when the police department gets grant money to pay a police officer overtime to look only for evidence of DUIs. This means there is at least one police officer on the road who is only looking to find people drinking and driving. What are they looking for? Did you come to a complete stop at that stop sign? Did you maintain your speed at a constant rate? Is your taillight out? Is your license plate fully illuminated? All he or she needs is any valid reason to pull you over to find out if you have any alcohol in your system. A great way to get pulled over or have an accident is to be distracted. Changing the radio, talking on the phone, doing anything other than focusing on the road is a recipe for disaster. Telling signs are often failing to maintain speed and failing to stay in your lane. I am not advocating drinking and driving, but putting on the cruise control and focusing only on your driving will go a long way towards staying safe.

The DUI Stop

Once you have been pulled over, the first step of the DUI stop is for the police officer to detect preliminary signs of drinking. He or she will often ask if you have been drinking. It’s a trap! Regardless of whether you are under the legal limit, you can get what is called a wet and reckless when you are driving a vehicle in a reckless manner and you are under the influence of alcohol. How can you be reckless? By driving distracted, by failing to completely stop at a stop sign. Any of us can be accused of driving recklessly at one point in our driving careers. Do not think you can talk yourself out of going to jail if you are honest about how much you had to drink and feel fine to drive. Also, I cannot count how many DUI reports I have read where the driver claimed to have had two beers or two drinks. Even if that is the truth, you will look like a liar and that will warrant further investigation. The police officer will also be leaning in close to see if there is the odor of alcohol on your breath. I have seldom read a DUI report where the officer did not detect a strong odor of alcohol, and that includes cases where there was zero alcohol in the drivers system. The officer is looking for evidence to take the next step, do not volunteer information to help the officer administer a field sobriety test. There is a lot of Federal Grant money at stake, and nothing gets more grant money like showing arrests and convictions.

If you are ordered out of the car, the National Transportation and Safety Administration (NTSA) has a standard field sobriety test to be administered. That test is composed of the walk and turn, the one legged stand, and the horizontal gaze nystagmus test. Reciting the alphabet backwards is not part of the field sobriety test, but it is a great way to get you to say something like “I couldn’t do that if I was sober!”. Remember you are being recorded as you take this test.

The walk and turn test consists of you walking a straight line, turning around, and walking back. What the officer is looking for is whether you take the correct amount of steps, whether you maintain heel to toe, whether you use your arms for balance. Some of us have poor balance. Some of us are nervous when interacting with police, so while it may not seem like a big deal if we took 9 or 11 steps instead of 10, the officer will view is as evidence of intoxication. If the road surface is uneven, it could impact your balance. If you have concerns about the location of the test, voice those concerns, but be polite and respectful while you are doing so.

The one legged stand requires you to balance on one leg and count to 30 as you do it. The police officer is looking for evidence like swaying, putting your other leg down, failing to perform the test for the required time (either too short or too long), or using your arms to steady yourself. If you have injury or improper footwear, this test could be hard for you. If you are asked to perform this test on an uneven surface, it could be a challenge. Do not be shy about asking the police officer to allow you to change your footwear, or find a flat surface. But be polite and respectful, you are being recorded.

The horizontal gaze nystagmus test is designed to detect involuntary movements in your eyes. The officer will hold a stimulus, like a pen or pencil, six inches away from your eyes. Moving at a two second pace, the officer will watch as your eyes track the stimulus. When your eyes are looking 45 degrees away, towards your peripheral vision, if you are intoxicated your eyes should involuntarily twitch. However, if the stimulus is too far away from you face, or if the stimulus moves too fast, it can invalidate the test. If you are asked to perform the test while facing the police car’s flashing lights, that can cause eye twitching that has nothing to do with alcohol. If you have a lazy eye or medical condition that affects your eyes, that could also impact your ability to pass this test.

The Breathalyzer Test

You will be asked to submit to a breathalyzer test when the FSTs are completed. If you do not consent, you will lose your drivers license. Certainly, your attorney can and will fight for your right to drive, but driving is considered a privilege and not a right. When deciding whether or not to blow, consider this. If you are convicted of a DUI, there is a good chance you will lose your right to drive. If you refuse to blow, there is a good chance you could lose your right to drive, but maybe you do not get convicted of an alcohol offense. If you refuse to blow, the police must seek a warrant to take blood from you. Understand, this is not a difficult thing for them to do to get a warrant at 2:00 in the morning, but it is one more thing you can do to protect your rights by not consenting. It is important to remember that your entire case does not come down to your blood alcohol content. That is certainly important evidence, but it is typically icing on the cake. The crucial evidence if you on video doing stupid human tricks on the side of the road and possibly acting belligerent to a police officer. Always assert your rights, but be polite and respectful. Understand that if you refuse to submit to chemical testing, you face stiffer penalties by the DMV and the court. It is a question of whether you want to limit the damage, or try to avoid all charges. That is something every person must decide for themselves. Either way, I will back you whatever you decide.

DUI in California

It is important to know in California that the .08 legal limit means very little. The effective drinking limit in California is .00. If you have alcohol in your system, and you are driving recklessly, you can be charged and convicted of a “wet and reckless”. This will also have an adverse impact on your driving record and carries serious fines and penalties. So this means if you propose to your significant other and have a glass of champagne when they say yes, you can be arrested and charged. If you had a drink four hours ago and feel perfectly fine, you can be arrested and charged. Be careful because there is a system in place after decades of successful lobbying by interest groups, and that system is not designed to give you the benefit of the doubt. You need a lawyer who will fight for your rights in an environment where you can even be convicted of a DUI when you are asleep in a parked car.

Wait, what? I can be convicted of a DUI when I am not driving?

Yes you can. If your plan is to sleep it off in your car, you need a new plan. If you believe you are too intoxicated to drive and decide to sleep it off in your car, you can be arrested, charged, and convicted of a DUI. How is this possible? The DUI laws are written in such a way that you do not need to be driving your car, you need to be in control of your car. If you are in the front seat with your keys in your pocket, you are in control of your car while under the influence of alcohol. So plan ahead, and do not rely on your vehicle as safe refuge. Also, remember if you decide to walk home instead of drive, they can also get you for public intoxication, so have a plan to get home and execute it.

What is going to happen to my license?

Driving an automobile is a privilege and not a right. And when you get arrested for a suspected DUI, your privilege to drive is in jeopardy. You have the right to request an administrative hearing with the DMV before you lose your license, but no attorney can or should guarantee a result at that hearing. What you need to know right away, is that the clock is running and the odds are often against you. Time is of the essence as soon as you are arrested. Keep in mind, there is a system in place that does not favor a positive outcome in your case, so it is important to find representation very early in the process. The system favors convictions and suspensions, there are jobs and financial grants at stake if the system does not show results!

What is the deadline? – As soon as you are arrested, the ten day clock starts running on your license. Law enforcement is required to confiscate your license and issue you a notice of suspension or revocation at the time of your arrest. If they did not confiscate your license, do not assume you are ok. The DMV will conduct a review of the police report, the suspension order, and any test results. When your administrative review has been completed, you have the right to request a hearing to contest that decision. The clock started running when you were arrested and given notice of the suspension or revocation. Even if you were arrested at 11:00 PM, that one hour will count as a full day, so do not wait to contact an attorney. We can help you request a hearing so you can fight for your drivers license.

What happens at this hearing? – The hearing is an opportunity to point out legal issues with your arrest. This is not a chance to argue that you really need your license to get around, or that a suspension will be hard on you. Although those things are true, the DMV only cares if there is a legal basis to do so. If there is, your license will be suspended or revoked. Issues we can fight include: 1) Did the officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153?; 2) Were you placed under lawful arrest?; 3) Were you driving a motor vehicle when you had .08% or more by weight of alcohol in your blood?; 4) Were you administered a test within 3 hours of driving?; 5) Did the officer continuously observe you for 15 minutes before administering your breath test in compliance with proper procedures?; 6) Was the officer properly trained and qualified to administer a breath test? 7) Was the police report properly sworn and filled out?; 8) Is there evidence to indicate the officer was not properly performing his duties?

What are my chances at the hearing? – It depends on what legal issues are in your case. But the deck is often stacked against you. However, you lose 100% of the hearings you do not request. Please keep in mind, the court always has the power to suspend your license completely independent of the DMV.

What happens if I lose my hearing? – First Time DUI – Your suspension will be for a minimum of 30 days. After that, you can request a restricted license that will allow you to drive to and from work for the next 4-5 months or until the court says otherwise. In order to apply for a restricted license, you will need to enroll in alcohol classes, provide proof of insurance, and pay a DMV reissue fee of $125.
Second Time DUI – You cannot obtain a restricted license, and your license will be suspended for one year.
Third Time DUI – The court and the DMV will attempt to revoke your privilege to drive for 3 years. After you complete an 18 month program and install an ignition interlock device, you might be eligible for a restricted license.

What happens if I refused to provide a blood or breath sample? – Anyone pulled over for a DUI has a difficult choice to make. You can assist the police in obtaining evidence against you, or if you refuse you will face stiffer penalties. The DMV and the court will treat you more harshly if you refuse to provide a sample. This holds true even if you tried but failed to provide a sample. For a chemical refusal, the DMV will institute a one year suspension, which could be longer if it is not your first DUI. If you consent to a chemical test, and win your court case, then you will get your license back. However, when you received your license, you agreed to consent to chemical testing. That means that even if you win your court case, if you refuse to provide a sample, you still face a one year suspension.

What do you charge?

A lawyers fee is calculated not only by an estimate of the Attorney time and labor necessary to dispose of the case, but also according to the following factors: the novelty and complexity of the issues involved and the skill level needed to resolve them; the customary fee charged in such cases; any time limitations imposed by the circumstances of the case or the Client; the experience, reputation, and ability of the Attorney; and that engagement of Attorney for his immediate availability and readiness to represent Client necessarily precludes him from accepting other employment once he is hired on Client’s case.

I provide transparent pricing so that you always know what to expect. Initial consultations are always free. In order for me to make an appearance in your case, you will need to pay a non-refundable retainer fee. That fee is based upon what you are charged with. That provides a floor, so you know the minimum of what your legal expense will be. Depending on the complexity of your case, in most cases, we can work on a ceiling so you have a guarantee that your legal expenses will not exceed a certain amount. There could be other expenses to consider, like if there is travel involved, if we need to hire an expert, or other similar expenses, but you will be notified of those expenses before they are incurred.

Misdemeanor case: $1,500 per misdemeanor charge – this includes arraignment, negotiation, a guilty plea and sentencing.

Misdemeanor trial: Minimum retainer of $1,500 per misdemeanor charge. This entitles you to eight (8) hours of work, and after the eight hours of work, time is billed out at $250.00 an hour with a maximum cap of $15,000.

Felony case: $3,000 per felony charge – this includes arraignment, negotiation, a guilty plea, and sentencing.

Felony trial: Minimum retainer of $3,000 per felony charge. This entitles you to eight (8) hours of work, and after the eight hours of work, time is billed out at $250.00 an hour with a maximum cap of $50,000.

First time DUI – $2,500 – this includes arraignment, negotiation, a guilty plea, sentencing, and DMV hearing.

First time DUI trial – minimum retainer of $2,500 plus retainers for any associated misdemeanor of felony charges. This entitles you to eight (8) hours of work, and after the eight hours of work, time is billed out at $250.00 an hour with a maximum cap of $35,000.

Second DUI – $4,000 plus any other misdemeanor or felony expenses for a retainer – this includes arraignment, negotiation, a guilty plea, and sentencing.

Second time DUI trial – minimum retainer of $4,000 plus retainers for any associated misdemeanor of felony charges. This entitles you to eight (8) hours of work, and after the eight hours of work, time is billed out at $250.00 an hour with a maximum cap of $50,000.

Third time or more DUI – $5,000 plus any other misdemeanor or felony expenses for a retainer – this includes arraignment, negotiation, a guilty plea, and sentencing.

Third time or more DUI trial – minimum retainer of $5,000 plus retainers for any associated misdemeanor of felony charges. This entitles you to eight (8) hours of work, and after the eight hours of work, time is billed out at $250.00 an hour with a maximum cap of $60,000.

Expungement – $500 retainer.

I reserve the right to decline any case. While I am providing these prices to give you a sense of certainty of what your legal expenses could be, understand that these prices reflect the majority of cases. Your individual case could be more complex that anticipated under this pricing scheme, and that could increase the cost of the retainer or fee cap. You will be notified of the precise cost of your case before expenses are incurred and before we enter into an attorney client relationship. In the event your case deviates from these listed prices, you will receive an explanation why in writing so you can decide whether to retain me or not.

Can I get my case expunged?

Under California Penal Code § 1203.4, you can get a conviction expunged from your record. In order to be eligible, you must have completed all the conditions of your probation or had your probation discharged before termination. You cannot be serving a sentence or probation for any other sentence. When you apply, what will effectively happen is the Judge can set aside your conviction, allow you to plead not guilty, and then dismiss your case.

Of course, this will not work in every case. For example, if your conviction limits your ability to own firearms, the expungement will not allow you to own firearms again. If you are prosecuted again, your prior conviction can be used against you regardless of whether it was expunged. The expungement will have no impact on your driving record, so if your employer also obtains your driving record, your employer will still learn of your arrest. Once a conviction is expunged, your record will show that you were arrested, you were convicted, and your conviction was set aside. Under California Labor Code 432.7, an employer may not ask you to disclose information about an arrest or detention that did not result in a conviction. When an employer sees that you were arrested but not convicted of a crime, the employer may not discriminate against you for being arrested alone. However, if your arrest did lead to a conviction, then the employer may disqualify you on the basis of your conviction. Therefore, it is important to have your criminal background expunged since it can help prevent an employer from discriminating against you because of your criminal conviction.

Not all convictions are eligible for expungement. Some convictions are specifically excluded, such as § 42002.1 and 42001 of the California vehicle code. What this means is if you fail to stop for police, or fail to submit to chemical testing, you might not be able to get your conviction expunged. Other convictions excluded are: § 286 – sodomy, § 288 lewd acts with a child; § 289 – sexual assault; § 261.5 – unlawful sex with a minor; or § 12810 of the California vehicle code which involves drivers license point suspensions.

Expungement is a valuable relief that you can get under California law. Contact us today to discuss how you can get your record expunged.

Spoiler title

The failed war on drugs has taken a serious toll on families and communities all across our country. California has recently passed Proposition 47 which re-classifies several felony drug offenses as misdemeanors. People with felony drug convictions could be able to have their convictions reduced to misdemeanors within three years of this proposition passing. Despite this progress, anyone involved with drugs or drug culture can quickly find themselves at odds with the criminal justice system.

Throughout my career, I have successfully prosecuted and defended hundreds if not thousands of drug cases. Despite how your case looks to you right now, there is seldom such a thing as an open and shut case. Drug cases in particular tend to be associated with thorny legal issues and having a lawyer familiar with the legal landscape can make all the difference in the world.

My case looks hopeless

There are some cases where the police have gathered all of the information they need to convict you. What may appear to be overwhelming evidence however may not be legally admissible. Throughout my career, I have had several clients who believed suicide was the only option, there is always hope. First, I would tell you to wait and see what happens, do not make a decision based upon what you think is going to happen, lets talk about what you can expect, there is always a path forward in life. Come in and talk to me, and I will try to give you a realistic outlook of what you can expect. Second, I would tell you that I have never met anyone who has never made a mistake. No matter what you are facing, it is something you can bounce back from. I can help you by putting you in the best legal position possible, and talk to you about what your life is like when your case is over. No situation is ever truly hopeless. If you are feeling the pressure or the stress, come and talk to me or someone, but do not hold it inside.

My case was not mentioned here in the FAQ's

I made the specific choice to include a lot of content on this website. Obviously, we cannot write about every type of case or else this would be a book rather than a frequently asked questions page. If you have been accused of a crime, it is in your best interests to speak to an attorney as soon as possible. The Taylor Defense Firm is committed to putting you in the best position possible. No lawyer can guarantee a result, but I can promise you that if I represent you, I will fight hard for you.

I have experience trying a wide range of criminal cases, and if I cannot help you I will at least try to point you in the right direction. The most common cases I handle include:

  • Driving Under the Influence (DUI)
  • Public Intoxication
  • Driving without a license
  • Reckless driving
  • Traffic tickets
  • Drug related offenses (possession, distribution, trafficking)
  • White collar crimes
  • Fraud
  • Bad Checks
  • Parental Nonsupport
  • Burglary
  • Theft
  • Auto theft
  • Student offenses
  • Welfare fraud
  • Assault

Even if you are not facing one of these crimes, give me a call at (805) 538-0455, and I will discuss your case with you at no cost.