The “Rising Defense” in DUI Cases

Law Offices of EJ Stopyro Orange County DUI Attorney
DUI Attorneys in Orange County

After an evening of dinner and drinks with friends you pull onto the roadway for the short trip home. You no sooner leave the restaurant or bar when you see the flashing red and blue lights in your mirror. You pull over and the cop comes to your window and smells alcohol on your breath. After some quick field sobriety tests you are arrested for drunk driving.

The officer takes you to the station for a test of your blood or breath. After all, it’s not illegal to drink and drive—it’s only illegal to drive if your blood-alcohol is OVER a 0.08% or you are too impaired to drive safely. But by the time you get to the station and actually take a test, almost two hours have gone by. So, as any DUI Attorney in Orange County will tell you, the test you take at the station cannot tell us what your blood alcohol was when you were driving, it only tells us what your blood-alcohol level was long AFTER driving.

This is a problem for the prosecutor because they must prove that your blood-alcohol level was over the legal limit AT THE TIME OF DRIVING. But blood-alcohol CHANGES over time. So, in our example above, when you left the restaurant, much of the alcohol you drank may still have been in your stomach, AND NOT IN YOUR BLOOD, when you were driving. But by the time you get to the police station, all of that alcohol will probably be in your blood. So if, for example, your blood test at the station was a 0.10%, it is probable that your blood-alcohol at the time of driving was below the legal limit of 0.08%

Educating a jury on this process is known as the “rising defense” and it is a staple defense used by the Law Offices of EJ Stopyro. This defense is very effective where the driver’s measured blood-alcohol level is close to the legal limit and the driver consumed alcohol close to the time of driving. So if you are arrested and charged with a DUI, you may have a solid defense even if your measured blood-alcohol level was over the legal limit. If you would like to speak to an experienced Orange County DUI lawyer call us today at (949) 559-5500. The consultation is free and completely confidential.

Law Offices of EJ Stopyro

www.EJEsquire.com

DUI Attorneys in Orange County
Orange County DUI Lawyer

DUI Breath Test: 15-Minute Observation Period Required

Law Offices of EJ Stopyro
Orange County DUILawyer
DUI Attorneys in Orange County

So, you’re driving home from after having a couple drinks with friends when you see the cop behind you activate his emergency lights. He pulls you over, asks for your license, asks how much you’ve had to drink tonight, and the next thing you know you are doing field sobriety tests at the side of the road.

You’re sure you’ve passed all the field sobriety tests but the cop arrests you for drunk driving anyway. He gives you the option of breath or blood and you choose breath. The cop either produces a small breath-testing device at the roadside or drives you to the station. Finally, you blow two times. Unfortunately, the results exceed the legal limit of 0.08%. You’re busted, right? Not so fast.

Title 17, California Code of Regulations is a body of law that mandates how a breath test MUST be conducted for the results to be valid. That law says “the breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample.” The reason for this observation period is to make sure that the person being tested doesn’t belch or burp. A burp, even a small one, may transport microscopic amounts of alcohol from your stomach to your mouth. This mouth alcohol, although tiny, is more than enough to produce a false reading on the breath test.

But most cops count the time they spend driving you to the police station or jail as part of the fifteen minute observation period. If you perform the breath test at the side of the road, they count the time you were doing field sobriety tests as part of the fifteen minute observation period. Yet during this time the cop is usually filling out the report regarding the field sobriety tests and isn’t really paying any attention to whether you burp or belch. As a precaution, the cop is also required to ask you before you take the breath test whether you have burped or belched in the last fifteen minutes. But can you really be expected to KNOW whether you’ve belched within the past fifteen minutes?

Because trace amounts of alcohol can easily compromise a breath test, a proper observation period is essential for an accurate test. Since it’s up to a jury to decide whether the cop performed the observation period properly, it’s important for your Orange County DUI lawyer to educate the jury on the importance of the observation period and expose the police officer’s lack of attention during the observation period. If it’s reasonably possible that you belched, however subtly, during the fifteen minutes before a breath test, then there is reasonable doubt as to the results of that test and you may be entitled to a NOT GUILTY verdict.

For more information on DUI defense call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation or go to our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Orange County DUILawyer
DUI Attorneys in Orange County

Prop 36 Drug Diversion: Who Gets It And What Is It?

Law Offices of EJ Stopyro
Orange County Drug Defense Lawyers
DUI Attorney in Orange County

If you’ve been arrested for possessing or being under the influence of drugs, you may be eligible for drug treatment (also called diversion) instead of jail time. Orange County has two diversion programs available: PC 1000 and Prop 36. If you have ANY prior drug offense on your record, you will NOT be eligible for PC 1000. This leaves only Prop 36.

Prop 36 (Section 1210 of the California Penal Code) is rather intensive drug treatment for 12 months and can be extended up to 18 months. If you successfully complete Prop 36 you will be eligible to have the case dismissed. But not everyone is eligible for Prop 36. Prop 36 eligibility is restricted to those who are charged with ONLY non-violent drug offenses: either being under the influence of drugs OR simple possession of drugs. If you are charged with manufacturing drugs, selling drugs, or possessing drugs with the intent to sell them, then you are NOT eligible for Prop 36.

Moreover, if you are also charged with a non-drug offense, such as DUI, then you are NOT eligible for Prop 36. (If you are charged with DUI and a drug offense it is imperative that you contact an Orange County DUI attorney) Another group of people who are excluded from Prop 36 are those who have a serious or violent felony (strike) on their record and that strike occurred within 5 years of the drug case. Other disqualifying factors include being armed with a firearm at the time of arrest and already having participated in two prior Prop 36 programs.

If you are eligible for Prop 36 and accept it, you will plead guilty to the charge, be put on formal probation, and assigned to the drug court. You will be required to make regular court appearances in drug court for progress reviews. You will be evaluated by and regularly visit mental health professionals. You will be required to attend drug counseling and meet with your probation officer on a routine basis. You will also be required to submit to random drug testing at any time of the day or night. 

Typically, if you violate your probation by testing dirty for drugs, you will be given several chances. If you test dirty, the judge will usually require you to attend more intensive drug treatment and be tested more often. If you continue to test dirty (usually given up to five chances unless you are found not to be amenable to drug treatment), you will be kicked out of the program and sentenced up to three years in jail or prison. If you successfully complete the program, the charges will be dismissed. However, this does not relieve you of any seven-year obligation to register as a drug offender in whatever city or county you reside.

If you are charged with a drug offense, it is important to consult with an experienced Orange County drug defense lawyer. Call the Law Offices of EJ Stopyro at (949) 559-5500 today to speak to an experienced drug defense attorney in Orange County. We’ll explain the charges against you and what your options are. The consultation is free and confidential. For more information on Prop 36 go to http://www.prop36.org/.

Law Offices of EJ Stopyro

Orange County DUI Lawyers
Drug Defense Attorney in Orange County

DUI Checkpoints: Challenging Your DUI Arrest

Law Offices of EJ Stopyro Orange County DUI Lawyers
DUI Attorney in Orange County

DUI checkpoints have been legally operated in California since the California Supreme Courts decision in the 1987 case of Ingersoll v. Palmer 43 Cal.3d 1321. The Ingersoll court held that as long as certain criteria are met, DUI checkpoints are not prohibited by the 4^th Amendment. These criteria have come to be known by DUI attorneys as the Ingersol guidelines. They are as follows:

1)                  The decision-making about how, where and for how long a checkpoint is run must be made at a supervisory level. These decisions cannot be made by the officers at the checkpoint.

2)                  There must be limits on the discretion of the field officers working at these DUI checkpoints on which vehicles to stop.

3)                  The checkpoint must be set up in a safe location and the location must be conducive to safely run checkpoint.

4)                  The location chosen for the checkpoint must be “reasonable”. (Usually accomplished by showing a high incidence of DUI arrests in that area)

5)                  The time of operation of the DUI checkpoint and the duration of the checkpoint must also be reasonable.

6)                  The roadblock cannot be disguised or hidden; there must be indicia of the official natureof the roadblock.

7)                  The amount of time a driver is detained at a DUI checkpoint, as well as the way that the driver is detained must be reasonable.

8)                  The time and location of the checkpoint must be publicized in advance.

One of the most successful challenges to a DUI checkpoint arrest is that the cops working the checkpoint exercised too much discretion. In order for a DUI checkpoint to be legal, there must be a neutral formula for which vehicles to stop. For example, it must be decided in advance that every third vehicle will be stopped. Once this formula is established, a cop working the DUI checkpoint cannot vary from it.

For example, the cop cannot decide to stop a car just because it looks like it is full of young people who might be coming from a club. The cop has to stick with the neutral formula set in advance. If he doesn’t, the arrest is unlawful. You will probably not know if the cop stuck to the neutral formula until your DUI lawyer subpoenas the records for the checkpoint which can include a video of the checkpoint.

Also, you have the right to avoid the DUI checkpoint if you want to. Since a checkpoint must display indicia of the official nature of the DUI checkpoint, it will be obvious from a distance that a DUI checkpoint is in progress. It is your right to avoid this DUI checkpoint. However, most police agencies post a police officer near the approach to the checkpoint to watch for those who avoid it. It is ILLEGAL for the officer to stop someone for merely avoiding a checkpoint. However, if the police officer sees someone avoiding a checkpoint, the officer will follow that motorist and look for a legal reason to make a stop. (a broken tail light or an illegal U-turn)

For more information about DUI checkpoints or any aspect of DUI law call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County DUIattorney. Or go to our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Orange County DUILawyers
DUI Attorney in Orange County