It can take several months for the District Attorney to file the charges against you, especially in cases involving a blood test. In alcohol-related cases it’s really important that you or your attorney contact DMV Safety within ten (10) days of the arrest to request an APS hearing, discovery and a “Stay” (putting off) the suspension pending a hearing. In some cases, the arresting officer fails to issue a temporary license in alcohol-related cases, which contains the required notice of a right to an Administrative Per Se (APS) hearing. However, I’ve seen cases where the officer checks the box on the form he mails to DMV indicating he or she have issued the license, even when they failed to do so. In my experience, this is a bad idea and is only an attempt to earn your business by putting their name on a case before they’re retained and the attorney of record. It creates problems later because instead mailing the evidence to you, or the attorney you chose to retain, DMV will mail everything to an attorney who is not yet the attorney of record. Again, setting your own hearing is easy so if you’re waiting to make a decision about which attorney to retain, just give me a call and I’ll explain where to call and what to say.
- Alcohol-related vs. Drug-related DUI’s
- Who Has The Burden Of Proof In DUI Cases?
- How Important Are Field Sobriety Tests?
- Drug-Related DUI’s
- Injury-Related DUI’s (VC§23153)
- No Charges Filed (Ncf) Vs. Rejected Cases
In some cases, I recommend forensic and/or investigative services. For instance, a full forensic expert review of all of the evidence or retesting a blood sample may reveal defenses to the charges against you and change the outcome in court, and at the DMV Hearing. In drug-related DUI cases, including prescription drug cases, forensic services can really make a difference in the outcome. The DA’s have the entire burden of proof in non-alcohol related cases (no presumption of guilt) so unless they have proof beyond a reasonable doubt that a defendant had sufficient quantities of a drug capable of causing impaired driving in their system at the time of driving, and have recorded observations and/or testimony in support of those observations of impairment clues that are consistent with the particular drug or drugs involved, they may not be able to prevail. In my experience, communicating a winning argument to the DA’s office that includes a comprehensive forensic review greatly improves the chances of getting the charges reduced or dismissed without first committing significant time, energy and legal fees toward preparing for a jury trial. I do everything I can in defensible cases to convince the DA’s Office to dismiss the case before setting cases for trial.
Investigation can also be the vital in some cases. The investigator I’ve been working with the past couple of years is not only good at his job, he’s an excellent witness in court, helping many of my clients avoid a conviction in court and a DMV Per Se license suspension. If there are any witnesses involved, it’s important you do not talk with them about the facts of the case, whether you know them or not. This will protect you from any argument from a prosecutor that you “got your story straight” or somehow collaborated with the witness to your benefit. However, it is important to obtain contact information if possible – law enforcement may or may not get that information and record it in the arrest and/or collision report. Time can affect memory and witnesses may move away or it may be more difficult to locate later on. If a particular witness is potentially helpful to the defense, I will likely recommend having my investigator take a statement and write a report that may or may not be submitted to the DA’s office. The investigator is a third-party witness at that point and could be called to testify in the event a witness or witnesses change their story later after the investigator has taken and recorded their statements. But, unless there is a danger the witness may not be available later on, I usually wait until after I’ve had a chance to review the report before taking their statements, because questions may come to mind after I read the arrest report and I get a better understanding of the case.
Over the years, I’ve heard clients say things like, “All DUI cases are cut and dried,” or “I know I don’t have a case.” Details matter, but common sense matters too. Yes, if your BAC is .08% or more, and in traffic stop cases, the stop may look legal and justified, the case may not be defensible. Still, I’ve gotten DUI cases dismissed over the years that initially seemed provable. After reviewing the evidence and investigating the scene and/or taking statements from witnesses, a viable defense may emerge. So, don’t sell yourself short. Your attorney should take the time to listen and consider your side of the story, or any theory or idea you might have that would make the case more defensible. It may take time to determine whether you have a defensible case, or whether there are sufficient mitigating factors to argue for a reduction of the charges against you. But, by the same token, at some point a decision has to be made about how to proceed in your case. Investing more of your hard earned money to file motions and set a case for jury trial may not be the best choice, either. Having a good grasp of the evidence and understanding your options and chances of success are key to making that final decision whether to negotiate and accept a plea bargain, or to reject the offer from the DA and set your case for trial. It all depends on the evidence in your case. My job is to work the case until I can give you the best advice possible so you can make an informed decision.
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The 1% Solution
Some people have all the money in the world and feel comfortable spending thousands of dollars upfront on their cases, regardless of the likelihood it will change the outcome. There are plenty of DUI attorneys who will be happy to sell you, and sell you early before they have seen the evidence in your case, that they can “win” your case. I talk with prospective clients every week who have spoken to other attorneys on the phone and were told things like, “I can get you a Wet Reckless,” or “I can get your case dismissed.” Be sure to talk with as many attorneys as time allows until you feel a comfort level before scheduling a face to face meeting.
First of all, it’s a violation of the Code of Ethics to make any promises in criminal matters. Secondly, this is nothing more than a sales tactic, and I always wonder what the attorneys say later when they can’t deliver on their promises. Defending DUI’s is a process. Retain an attorney you trust and give him or her time to obtain the evidence necessary to make recommendations or lay out a strategy.
Some attorneys sell what I call the “1% solution.” They charge a higher upfront fee and promise to do everything possible to win your case, including filing litigated motions that may or may not be warranted by the evidence that will eventually be discovered to the defense. Those same attorneys go to court and accept plea bargains on a regular basis. For those you have unlimited funds, this may be the best option? But, wouldn’t you prefer to have someone review the evidence before spending an extra $1,000 litigating the traffic stop? Or, even worse, if you pay a premium up front fee, your attorney may not even take the time to file any motions at all.
I prefer to work the case first, review the evidence, talk with my client, and then making recommendations about spending more money on things like, investigation, forensic testing or forensic reviews, filing suppression motions. If your attorney determines the evidence warrants spending more time, emotional energy and money, that is the time he or she should give you the options and weigh the benefits and risks of moving forward. I use common sense and apply it to each individual case before pushing my clients to litigate further. As I wrote before, I haven’t lost a jury trial the last fifteen times I set a case for trial.
Also keep in mind the fact that negotiations usually end when you begin litigating a case – when you reject the DA’s offer after your attorney negotiates a plea bargain. It may not be proper, but it happens. So, it’s important to be careful to first understand what you’re doing before, what the strategy is, and your chances for success before you decide how to proceed. I make sure my clients are fully advised and have the information necessary to make informed choices.
Illegal/Unwarranted Traffic Stops
If it appears the stop may have been unwarranted or illegal, I’ll first recommend investigative services to obtain more information. Your case may come down to your word vs. the officer, or officers involved. Or, it could be a legal issue only where the officer cited reasons for the stop that are not justified under the law (see Avoiding a Checkpoint case on the “War Stories” page).
The recent addition of In Car Cameras (ICC’s) in so many law enforcement vehicles, including most CHP vehicles, has given DUI Defense attorneys another tool to help get some cases thrown out of court. Suppression Motions (PC§1538.4) are pretrial motions that are like mini-trials heard by a judge, with testimony from law enforcement and any other witnesses deemed relevant to the case. The DA’s Office and the Defense file written legal motions prior to a scheduled hearing, before coming to court to have the motion heard. If the Defense prevails, the judge will exclude the evidence and the case will be dismissed.
I’ve won the majority of motions I’ve filed in the past decade or so, and I’ve won every case I’ve set for jury trial in the past 13 years, including cases that were dismissed on the first trial date. But, I careful to avoid recommend my clients invest money and time into litigating these issues until I’ve reached the conclusion we have a reasonable or good chance to prevail. Ultimately, the decision about how to proceed in your case is yours, and yours alone.
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