The California State Legislature has proposed a law that would institute harsher penalties for people who have been convicted for driving under the influence multiple times within a 10-year period. The law would create a mandatory felony conviction for certain repeat offenders, instead of giving the courts the option of a misdemeanor conviction. The law would also extend the length of time that a convicted offender’s vehicle could be impounded. If the law passes, these penalties would make DUI defense even more critical for those being charged.

Felony Charges

Under the current law, four or more DUI convictions within 10 years can be a misdemeanor or felony offense. The proposed law states that:

• Five or more DUI convictions within 10 years would be a felony offense; and
• For a person previously convicted for a felony DUI, a subsequent DUI conviction within 10 years must be a felony, instead of choosing between a misdemeanor and a felony.

The main difference between a misdemeanor and a felony conviction is the possible jail time. A court cannot sentence a person convicted for misdemeanor DUI for longer than a year in jail. A jail sentence for a felony DUI can be as long as three years. A felony conviction can also affect an offender’s ability to obtain employment, loans, housing, and professional licenses.

The implied consent law in California gives a police officer permission to perform a blood alcohol test on you after you have been arrested on suspicion of driving under the influence of alcohol or drugs. Refusing the test will result in an automatic suspension of your driver’s license and enhanced penalties if you are convicted. A police officer will offer you two ways to take the test: a breath sample or a blood sample. The officer cannot force you to give a blood sample without a warrant.

Opting for the Blood Test

A DUI attorney will advise you not to submit to any chemical tests, but many people fear the consequences of not complying. When given options, most people choose the breath test over the blood test because it is less invasive. There are situations in which the police will insist on a blood sample:

• The officer will want a blood sample if he or she suspects you of being under the influence of drugs;
• The officer may not have the equipment available to take a breath sample; or
• Your respiratory problems may prevent you from providing an adequate breath sample.

Even with the implied consent law, California requires a police officer to obtain a warrant if he or she wants to force you to submit to a blood test. However, there are exceptions to the law, such as if you are unconscious and receiving medical attention. An officer may claim that he or she could not receive a warrant in a timely manner and needed an immediate blood sample to be able to measure your blood alcohol concentration at the time of the incident.

California will enact a statewide ignition interlock device program for all driving under the influence convictions starting at the beginning of 2019. The state has been running a pilot IID program since 2010 in Alameda, Los Angeles, Sacramento, and Tulare counties. Courts in the rest of the state have issued IIDs as part of DUI sentencing on a case-by-case basis. The new law will make IIDs mandatory for most convictions. IIDs are costly and sometimes troublesome for users but may be preferable to having a restricted or suspended driver’s license.

What is an IID?

An ignition interlock device is an alcohol breath tester that is installed inside your vehicle. You are responsible for at least part of the cost of having the device installed and maintenance fees. With the device, you must provide an alcohol-free breath sample in order to start the vehicle and will be required to provide additional breath samples:

• 10 to 15 minutes after you start driving; and
• Every 45 minutes after that.

You will have about six minutes to provide a breath sample when you receive an alert while driving. The device will not shut down your vehicle if you fail a breath test while driving, but it will notify the court of the failed test. Failing a test, attempting to tamper with the device, or having someone take the test for you can result in the suspension of your driving privileges.

The California Highway Patrol encourages civilians to report drivers that they suspect may be under the influence of alcohol or drugs. For instance, police recently arrested a Petaluma man for suspicion of DUI based on a tip from a civilian who saw the man allegedly swerving all over the road before stopping at a restaurant to have an alcoholic drink. The tip gave police cause to question the man and conduct sobriety tests, which allegedly showed that the man had a blood alcohol concentration that was three times the legal limit. DUI defense attorneys debate prosecutors about when a civilian tip creates enough reasonable suspicion to conduct a DUI stop.

Anonymous Tips

A DUI arrest may have been unlawful if police stopped a driver based solely on a tip from an unreliable source. Citizens who identify themselves to the police are more likely to be reliable because police assume that a person who has given his or her name is unlikely to make false accusations. Courts have ruled that anonymous tips can also create reasonable suspicion for a DUI stop. The California Supreme Court established a four-part test to determine whether an anonymous tip can justify a DUI stop:

• The caller must have witnessed the alleged crime;
• The caller must be able to describe the dangerous driving behavior and the appearance of the vehicle;
• The anonymous caller must sound reasonably credible; and
• The police officer must reasonably conclude that he or she is stopping the same vehicle that the caller described.

Defense Strategies

A police officer did not have reasonable suspicion to stop you for DUI if the caller was not credible and the officer did not witness any suspicious behavior. You can directly question the credibility of the caller if you know his or her name. If the tip was anonymous, you may still be able to identify the caller if the 911 call center had caller ID. You should also obtain a recording of the call to determine whether the information given was accurate and detailed enough to create reasonable suspicion. Evidence of your alleged DUI is inadmissible in court if the officer was not justified in stopping you.

Driving under the influence by itself has potentially serious penalties if you are convicted. Having a child with you in your vehicle at the time of your alleged DUI incident will aggravate the charge and the penalty. You are liable for the safety of any passengers, but prosecutors may charge you with child endangerment if they believe that you put a child at risk by driving impaired. Because it was likely your child in the vehicle, you have both your freedom and your parental rights at stake during your case.

DUI with Child

California law defines a child in a DUI case as someone who is younger than 14. The child passenger did not need to be in danger for prosecutors to charge you with DUI with a child. If the court rules that you were guilty of DUI, the child’s presence in the vehicle is enough to prove the aggravated DUI charge. A DUI with a child conviction includes mandatory jail time. How long you must stay in jail depends on whether you have any previous DUI convictions on your record. You would be sentenced to:

• 48 hours in jail if it is your first DUI;
• 10 days in jail if it is your second DUI in 10 years;
• 30 days in jail if it is your third DUI in 10 years; and
• 90 days in jail if it is your fourth DUI in 10 years.

Two days in jail is less than the maximum jail sentence you can receive for a first-time DUI conviction without any aggravating factors. However, first-time DUI offenders can receive probation instead of jail time, while DUI with a child guarantees you time in jail.

The driving under the influence of drugs evaluation process is increasingly important in California because of the recent legalization of recreational marijuana. Most California Highway Patrol officers have received training to identify signs of drug-related impairment, but fewer officers are certified to recognize which drug may be impairing the driver. Being accused of using an illegal drug may have different consequences than being accused of using marijuana. Many law enforcement organizations follow a 12-step drug recognition process that the International Association of Chiefs of Police endorses:

1. Breath Alcohol Test: The arresting officer must first determine whether the suspect is under the influence of alcohol. The officer can request a drug recognition evaluation if the breath test is negative but the officer believes the suspect is impaired.
2. Interviewing the Arresting Officer: A drug recognition expert (DRE) starts his or her evaluation process by asking the arresting officer about the subject’s appearance and behavior.
3. Preliminary Examination: The DRE examines the suspect to determine whether factors other than drugs could be affecting the suspect’s condition and if the suspect needs immediate medical attention.
4. Eye Test: The DRE administers the horizontal gaze nystagmus and vertical gaze nystagmus tests.
5. Divided Attention Tests: The DRE conducts several field tests to evaluate the suspect's balance and ability to follow multiple directions at once.
6. Vital Signs: The DRE checks the suspect’s blood pressure, temperature, and pulse.
7. Dark Room Examinations: The DRE uses various lighting conditions to determine whether the suspect’s pupils are dilated or constricted.
8. Muscle Tone Check: The DRE checks the suspect’s muscles to see if they have become rigid or flaccid.
9. Check for Injection Sites: The DRE looks for any marks on the suspect’s body that may indicate the injection of a drug.
10. Suspect Interview: The DRE asks the suspect whether he or she has used drugs and details regarding the drug use.
11. Conclusion: The DRE decides whether the evidence suggests that the suspect was impaired by drugs and attempts to identify the drug that is responsible.
12. Toxicology: Chemical test results will later confirm whether the DRE’s evaluation was accurate.

Responding to Drug Evaluation

Most of the steps in the drug recognition evaluation process are subjective tests. Factors other than drug use can explain the symptoms that the DRE is looking for. Even the presence of a drug in your body does not prove that you were impaired. Refusing a drug recognition evaluation is in your best interest, though it may result in further penalties. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can protect you against DUI charges related to drugs or alcohol. To schedule a free consultation, call 415-729-7300.

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The name “field sobriety test” makes these exercises sound more official and clinical than they actually are. FSTs help police officers guess whether a driver may be impaired by using subjective exercises, such as the horizontal gaze nystagmus, walk-and-turn exercise, and one-leg stand. An experienced criminal defense attorney has many ways to refute the results of an FST if the prosecution tries to use them as evidence in a driving under the influence case. The defenses center around the many flaws with FSTs:

1. FSTs Are Naturally Subjective: The accuracy of a test depends on a consistent application of the test and measurable results. Officers use FSTs as suggested exercises to help make judgments. They have discretion in the ways they administer FSTs and can draw different conclusions from the same results, depending on their experience and training. FSTs are not meant to provide empirical evidence of a person’s intoxication.
2. The Subject Does Not Have a Baseline Result for the FST: An officer conducting an FST is looking for universal symptoms that suggest impairment. However, the officer is assuming how the subject would perform on the test under normal circumstances. A person’s normal physical condition will affect his or her ability to walk straight or maintain his or her balance.
3. Many Factors Can Affect an FST: Subjects do not perform an FST in a controlled environment that allows for unbiased results. The levelness of the ground and the time of the day can both affect how someone performs. A subject may have more difficulty maintaining his or her balance on a sloped surface or seeing where he or she is walking when it is dark. The subject is also likely to be tired because most DUI stops occur at night.
4. The Subject Is Feeling Stressed: An officer may misinterpret confusion or mistakes during an FST as signs of impairment by the driver. The subject is likely nervous because of the traffic stop, even if he or she is not under the influence of an intoxicating substance. Stress distracts people when they are listening to instructions and can cause them to make mistakes that they normally would not make.

Dealing with FST Results

You should not agree to take an FST, and police cannot require you submit to one. You would risk providing evidence for a DUI case against you. An officer may choose to arrest you on suspicion of DUI if you refuse an FST, but the prosecution must provide other evidence of the offense. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can contest your DUI charges when the prosecution lacks credible evidence. Schedule a free consultation by calling 415-729-7300.

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A new California law went into effect on July 1 that has lowered the threshold to charge ride-share drivers with driving under the influence of alcohol. The law sets the blood alcohol concentration limit for these drivers at 0.04, as opposed to the 0.08 limit for most other drivers. The change is meant to treat ride-share drivers more like commercial drivers in terms of DUI enforcement. Ride-share drivers risk losing their jobs and receiving criminal penalties if they are convicted for a DUI charge.

About the Law

The law added a section to California's vehicle code that states that it is unlawful for a driver to have a BAC of 0.04 or more while also having a passenger for hire in the vehicle. Commercial vehicle drivers, such as taxi drivers, have the same BAC limit. While drivers for companies such as Uber and Lyft are considered to be providing the same service as taxi drivers, the same DUI law did not apply to them because:

Since states first started legalizing recreational marijuana use a couple of years ago, there has been a debate as to whether the new laws have caused an increased number of impaired driving incidents in those states. Those who believe it has caused an increase will cite arrest statistics for driving under the influence charges in which the suspects had THC in their systems. Skeptics argue that the testing procedures do not definitively prove when marijuana use is responsible for impaired driving. With the recency of California’s legalization, it may take years to determine how the new law has affected DUI incidents and arrests.

Bay Area Data

The California Highway Patrol suspects that a San Jose man was under the influence of marijuana when he allegedly caused a fatal crash in Fremont in May. The CHP’s Golden Gate Division released statistics of DUI arrests involving marijuana in 2017, which was before the new marijuana law was enacted. According to the statistics:

A recent study by the University of California at Davis and a research firm discovered that arrests for driving under the influence of alcohol or drugs have decreased in many major California cities. Researchers found that DUI arrests decreased during a two-year period by:

• 14 percent in the San Francisco-Oakland area;
• 14 percent in Los Angeles;
• 26 percent in Sacramento;
• 28 percent in San Jose; and
• 32 percent in San Diego.

Researchers hypothesized that increased use of ride-sharing services may be part of the reason for the decrease, a claim that companies such as Uber have touted for years. The time period of the study corresponded with the introduction of ride-sharing services in some of the cities. However, there is not a clear causation between the use of ride-sharing services and DUI arrest statistics.

How Ride-Sharing Helps

Second-degree murder is the most serious charge you can face after an alleged driving under the influence incident. DUI murder charges in California are commonly called Watson murders because the policy stems from the 1980s case of People v. Watson, in which the California Supreme Court ruled that a DUI offender can be charged with murder. A DUI murder conviction can result in a prison sentence of 15 years to life and a fine of as much as $10,000.

Murder vs. Manslaughter

When someone dies as a result of an alleged DUI incident, prosecutors can charge the defendant with negligent vehicular manslaughter, gross vehicular manslaughter, or second-degree murder. Manslaughter is a serious charge but does not have as severe of penalties as murder. Manslaughter is a more common charge than second-degree murder because prosecutors need to prove the intent behind the incident:

The number of driving under the influence arrests in the U.S. has steadily decreased in the past decades. At the same time, there has been an unsettling increase in DUI arrests among women. To be clear, men still make up 75 percent of all DUI arrests. However, women were only 18 percent of the arrests as recent as 2003. An FBI study estimated that the number of female DUI arrests increased by 20 percent from 2003 to 2012. The most recent gender data in 2015 showed that the number has decreased slightly, though still nowhere near the 2003 arrest levels. Trying to understand the trend, researchers have largely hypothesized that women’s changing societal role has led to the increase in DUI arrests.

Work-Related Drinking

People in the workforce may partake in drinking as a social activity with co-workers or a means of relieving stress. The trend of an increased number of women in the workforce started long before the more recent increase in DUI arrests. However, women’s statuses in workplaces have seen more recent improvements. Women are more likely to hold positions that are the equal of men and thus may be invited to more social outings at restaurants and bars. DUI arrests often follow a night of drinking with friends or co-workers.

The legalization of recreational marijuana in California has led to increased police attention towards driving under the influence of marijuana. DUI of marijuana has long been a crime, with the same penalties as DUI of alcohol. Police officers are looking for the same signs of driver impairment that accompany both DUI of alcohol and drugs. Even physical symptoms can be similar for alcohol and marijuana users, such as blood-shot eyes and slow reactions. However, California’s DUI laws have not caught up to legalized recreational marijuana. Police officers and prosecutors have less experience handling cases of DUI of marijuana than they do with DUI of alcohol. Yet, California law forces them to be more subjective in determining when to arrest and charge someone with DUI of marijuana. There are several problems with DUI of marijuana laws that affect all states where recreational marijuana use is legal:

1. No Objective Definition of Being High: With DUI of alcohol charges, the results of blood alcohol concentration tests are legally accepted to help determine when someone is impaired by alcohol. California does not yet have an equivalent test to determine when someone is legally impaired by marijuana. Other states that have legalized recreational marijuana use THC levels as an indicator of impairment. However, states do not agree on what the THC limit should be. There is also continued debate on whether THC levels accurately reflect a driver’s impairment.
2. More Difficult to Test for THC: There is not a breath test that can determine the level of THC in a driver’s system. Blood and urine tests are considered the only reliable ways to detect the presence and level of drugs in a person’s body. Police officers are not qualified to perform such tests in the field. The suspect will likely be transported to a police station or medical facility for the testing. Thus, the police officer will have come to the subjective conclusion that someone should be arrested for DUI of marijuana before the tests are administered.
3. Misleading Test Results: Traces of drugs such as marijuana stay in a person’s body longer than alcohol. It can take weeks for all traces of THC to dissolve in a person. A blood or urine test may show levels of THC when a driver is no longer impaired by the substance.

Contesting DUI Charges

Arrests and charges for DUI of marijuana mostly rely on subjective observations of whether a driver seemed high. However, more objective laws could be problematic for drivers if they do not accurately measure whether a driver is impaired. With the uncertainty surrounding DUI of marijuana laws, you need an experienced attorney to represent you. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can identify ways to contest your DUI charge. To schedule a free consultation, call 415-729-7300.

Attorneys have an ethical duty to not mislead the public with false or misleading claims about their experience and qualifications.

Unfortunately, many lawyers accept solicitations from for-profit entities selling certificates, website badges, and trophies accompanied with superlatives like "Top 100 Lawyer" "Superior Lawyer" and "Premier Lawyer" with little or no transparency revealing the true basis for such recognition. These pay-to-play enterprises do not administer a legitimate examination of the purchaser’s trial skills and legal knowledge, and consumers seeking a qualified attorney are victimized by these misleading claims.

Another new year is upon us and I sincerely hope you did not start it off with a DUI arrest. Spending four or more hours in a drunk tank is one of the most demoralizing experiences one can have, but now that you're out let's try to minimize the consequences.

Depending on whether you submitted to a chemical test of your breath or blood, or refused to do so without a warrant, you are most likely looking at a license suspension ranging from 4 months to one year.

Originally published in the November 2015 issue of Marin Magazine, veteran San Francisco and San Rafael DUI attorney Paul Burglin was asked:

 - What really happens after you see the bluelights in the rearview mirror?
 - What can you do to minimize the damage a DUI charge wreaks on your life?

Allow me to share with you some insight about on-line reviews and website claims in the field of DUI and DMV defense.

Inexperienced attorneys are more tech savvy than veteran lawyers - the latter got their degrees and began practicing law before computers and I-Pads were in existence. Young attorneys learned how to use these things in grade school, and then got training in College on how to utilize these tools for marketing purposes. Because the business of a new lawyer is slow owing to lack of experience, reputation and referrals, they also have the time it takes to get family and friends to write favorable reviews and load their websites with the words and links that boost their organic ranking on search engines.

Let's start with AVVO. When you see an attorney with 40, 80, or 100-plus client reviews on AVVO, understand that the attorney has undoubtedly solicited reviews. I have represented more than 4000 clients in my career, but I do not solicit reviews because I believe it is unseemly to ask clients to talk about confidential matters unless they want to.

Those leaving AT&T Park this evening may find themselves getting stopped by the California Highway Patrol or the San Francisco Police Department for any number of reasons. The safest way to avoid it is to not drink and drive, but drinking and driving remains legal in California and it alone is not a basis to stop a motorist unless the he or she is observed drinking and driving at the same time!

If you get stopped and are ultimately arrested on suspicion of driving under the influence, you may be able to get the evidence suppressed and the charges dropped if the police lacked sufficient probable cause to initially detain you.

911 reports – Sometimes police officers are notified by their dispatcher that somebody reported your vehicle as being driven by a drunk driver. That alone is not always enough to justify an enforcement stop, unless the police independently observe something wrong with your driving or the reporting party gives sufficient details about you, your vehicle, and the manner of driving.

Loss of Pilot and Medical Certificates By FAA For Failure To Disclose Prior DUI Arrest
Taylor v. Huerta , ___ F.3d ___, (D.C. Cir. 2013) – Docket No. 12-1140
WL 3762896

Taylor submitted an application for a medical certificate using the FAA's online system, MedXPress. One of the questions asked him about any prior arrests and he answered “no" despite a previous DUI arrest in California (which, ironically, did not even result in a conviction). The FAA discovered the prior arrest on a background check and opened an investigation as to why it was not disclosed. He said he did not read the question carefully, was unaware that prior arrests were now being asked instead of just prior convictions, and that he had just hit a button that put a “no" answer to a number of questions all at once. The answers were submitted under penalty of perjury.

The Court rejected the contention that the omission was inadvertent, holding that “[a] defense of deliberate inattention fails where the applicant is attesting to events about which he has actual knowledge." [cite]. It then slapped him with this rebuke:

People v. Vangelder (2013)
___ Cal.4 ^th ___ (Calif. Supreme Court – Docket No. S195423)

Expert testimony that properly working and approved breath-alcohol instruments do not sample breath samples as they are designed to, and thus do not produce reliable results, is irrelevant and inadmissible on the per se charge. The exclusion extends to physiological variability such as body and breath temperature, hematocrit level, gender, and breathing patterns.

The Court characterized expert witness Michael Hlastala’s proffered testimony as a “regulation-based argument" that improperly seeks to trump legislative determinations concerning alcohol limits in deep lung breath. It specifically declined to address whether the limitation applies to the impairment count (it would appear not to).