DUI Blood Test: Do They Need A Warrant?

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DUI Attorneys in Orange County

It’s Friday night. You meet some friends after work for some food, drinks and relaxation. At the end of the night you drive home. But all the sudden, traffic slows to a crawl. Wouldn’t you know it, the Orange County Sheriff’s Department is running a DUI checkpoint. Oh oh! You run a count in your head of how many drinks you had and when you had them. “I should be ok” you think. “I’m sure I’m not driving drunk” you think.

The cop has you roll your window down and when he smells the alcohol on your breath he asks you to do some field sobriety tests at the side of the road. You are sure you passed with flying colors—so why is the cop putting handcuffs on you and arresting you for DUI. He asks which test you want to take; blood or breath? “Get a warrant” you say. “And I want to talk to my DUIdefense lawyer”, you add. “Surely you cannot conduct a highly invasive search of my blood or breath without a warrant”, you say. But you are wrong. The United States Supreme Court ruled long ago that the police CAN search your blood WITHOUT A WARRANT!

In the case of Schmerber v. California (1966) 384 U.S. 757, the Supreme Court made an EXCEPTION to the warrant requirement in DUI cases. The Court held that because the blood evidence of the crime of DUI is so fleeting and because the time to preserve the evidence (by extracting it from you) is so short, that the police CAN take your blood even against your consent and even without a warrant. However, the Court also held that if the police do take your blood without a warrant, the burden is on the government to show that the test was performed in a reasonable manner, that the blood was taken by medical personnel in a hospital environment according to accepted medical practices.

The Schmerber case is the foundation of the doctrine of IMPLIED CONSENT, which is codified in the California Vehicle Code Section 23612. This law states that anyone who drives on the roadway has given their “implied consent” to a breath or blood test if arrested for DUI by a police officer. However, if you are arrested for a DUI and your blood is taken as evidence of drunk driving, with or without your consent, your DUI attorney in Orange County can challenge this evidence. The District Attorney still must show that the test was performed in a reasonable manner by medical personnel according to accepted medical practices. If the DA fails to make this showing, either at trial or at a suppression motion before trial, then the blood evidence cannot be used against you. This often leads to a complete dismissal of the case against you.

For learn more about DUI defense call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County DUI attorney or go to our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Orange County DUILawyer
DUI Attorneys in Orange County

How Much Does A DUI Cost In Orange County?

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

This article addresses the financial costs or a DUI arrestin Orange County and the list of costs is not exhaustive. California Vehicle Code Sections 23152(a) and 23152(b) are the controlling sections for a driving under the influence of drugs or alcohol when there is no injury. Sections 23153(a) and (b) control when there is injury. If you are convicted of a DUI under any of these DUI statutes, the law will require a whole bunch of minimum monetary fines and fees. To make matters worse, a “penalty assessment” will be placed on any court fine. A penalty assessment is essentially a tax—a tax of about 200%.

Court Fines And Fees

For a typical DUI conviction in Orange County, you can expect to pay the minimum fines and fees, including penalty assessment, totaling about $2,100.00. If there are aggravating circumstances in your case you can expect to pay up to $3,500.00. But this is just the beginning.

Restitution

If you were in an accident or caused any type of property damage or injury, you will be ordered by the court to pay for it. If you don’t have the money to pay all at once the court will put you on a payment plan.

Legal Representation

In Orange County you can hire a DUI lawyer to handle a first-offense DUI for between $1,500.00 and $4,000.00. This is a “pretrial” fee and does not include a trial if one should be necessary. (Usually necessary only in about one out of ten cases) A trial fee, (including expert witness fee), can run between $4,000.00 and $8,000.00. The cost for an Orange County DUI attorney to handle a second-offense DUI usually runs between $2,000.00 and $5,000.00 pretrial

Alcohol Program

If you are convicted of drunk driving in Orange County you MUST enroll in an alcohol program in order to get your license back. A first-offender program typically costs around $450.00 for the three-month class and $800.00 for the six month class. For a first-offense DUI the higher your blood-alcohol on the blood test or breath test, the longer the class you must take. A second-offense DUI in Orange County will require you to attend an 18-month alcohol program with a cost of around $2,000.00.

Proof Of Insurance

A DUI conviction will also mean that the DMV will require you to keep an SR-22 (proof of insurance) on file for three years. This is something that your insurance company must electronically provide to the DMV. It typically costs around $25-$50 a month.

Bail

If you have a prior DUI within 10 years of being arrested for this one, you will also have to post bail in order to get out of jail while your Orange County DUI lawyer fights your case. The bail for a second-offense DUI is typically $10,000.00 which means you can hire bail bondsman to post it for you at a cost to you of about $800.00.

Ignition Interlock Device

If you have a prior DUI you may also want to install an Ignition Interlock Device in your car in order to get your driver’s license back early. You can usually can get a restricted license after three months for a second offense (instead of a full year suspension) if you have one of these installed. It costs around $500 a year.

To learn more about the consequences of a DUI or DUI defenses call the Law Offices of EJ Stopyro at (949) 559-5500 today or visit us at www.EJEsquire.com. We provide a free and confidential telephonic consultation with an experienced Orange County DUI attorney.

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The Illegal “Pat-Down” Search; Your Ticket To A Dismissal

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Orange County CriminalDefense Attorney
Drug Defense Lawyers in Orange County

You see it on just about every episode of Cops. And, if you are unlucky enough to be confronted by the police, you may have undergone the emasculating ordeal yourself. I’m talking about the “pat-down” search where the cop says “do you have anything on you” while he puts his hands on you and pats and grabs your clothing. Not only is this search demeaning and humiliating—this government agent is treating you and talking to you like you are a child and he or she is your irritated parent checking to see if you are bad. It is almost always ILLEGAL.

The fourth Amendment to the United States Constitution guarantees us all the right to be free from unreasonable search and seizure. This means that the cops cannot detain you and certainly cannot search unless they have probable cause that you have committed a crime or they have a warrant. Over the years, exceptions to the warrant requirement have emerged. For example, in a landmark case called Terry v. Ohio, the United States Supreme Court held that a police officer may conduct a limited search of a persons outer clothing by patting it down if the police have 1) reasonable suspicion; 2) based on articulable facts 3) that the person is armed and dangerous. Thus, this case gave birth to the “pat-down” search or “Terry” stop.

But the Supreme Court was careful to emphasize that a pat-down search is the exception to the general rule requiring probable cause or a warrant. If a cop pats you down, he must be able to list facts that made him believe that you were “armed and dangerous”. If the cop cannot list such facts, then the search was illegal and your Orange County Criminal Defense lawyer should file a motion to suppress any evidence found as a result of the search so that it cannot be used against you.

These days, however, cops routinely pat down people they come into contact with. When police respond to an assault or domestic violence call, a petty theft call, a disturbing the peace call or just about any other call it is common for the cops to automatically pat down the people they come into contact with. Even when they are not responding to a call they will often approach anyone they think looks peculiar and pat them down while they ask who they are and what they are doing. Most times the pat down is illegal and should be contested by your Orange Countydomestic violence attorney. But nobody ever complains about it because it has become so common that the public assume it is OK. Often, the pat-down search will lead to the police finding small quantities of drugs or drug paraphernalia. Or they will find a weapon or some other evidence of a crime. In these cases your drug defense lawyer in Orange County can get your case dismissed if he skillfully briefs and argues the issue.

To learn more about possible defenses in your case call the Law Offices of EJ Stopyro at (949) 559-5500 today or visit us at www.EJEsquire.com. We provide a free and confidential telephonic consultation with an experienced Orange County defense attorney.

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DUI And The Diabetic

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DUI Lawyers in Orange County

Insulin, which is produced in the body, is used to break food down to nutrients which are then absorbed into the blood stream. If the body does not produce sufficient insulin, (as happens with a diabetic), the body will basically begin to starve. In that case, the body will burn its stores of fat. When fat is burned, ketones and acetone are produced.

If a diabetic driver’s blood sugar rises above normal levels, their body may not produce sufficient insulin for digestion. In that case the diabetic may enter ketoacidosis. When this happens, their body can’t break down carbohydrates and they will begin to burn fat and produce ketones. When the diabetic is in the state of ketoacidosis, symptoms of this will slowly appear. These symptoms include drowsiness, lethargy, lack of appetite, red face, lack of coordination, disorientation, and even slurred speech. Moreover, ketones and acetone will produce an odor on the diabetic’s breath which is easily mistaken as an odor of alcohol.

So if a diabetic who is in ketoacidosis is stopped by the police, and the officer performs a DUI investigation, the diabetic’s outward appearance may easily be confused with alcohol impairment. Since coordination and balance can be impaired by ketoacidosis, the ability to perform field sobriety tests can also be impaired. But it gets worse. The ketones and acetone on the diabetic’s breath will actually register as ethyl alcohol on breath-testing machines that use nonspecific infrared analysis. (Which includes breath testing machines used in Orange County). Thus, a breath test may give a false reading on the breath testing device. (Studies have produced false readings as high as .06%)

That’s why an experienced Orange County DUI Lawyer will always determine whether their client has diabetes. Because the symptoms of ketoacidosis can easily be confused with alcohol impairment and because a breath test can register a false high reading ethyl alcohol, it is important for your DUI lawyer to know whether you are a diabetic.

To learn more about DUI defenses call the Law Offices of EJ Stopyro at (949) 559-5500 today or visit us at www.EJEsquire.com. We provide a free and confidential telephonic consultation with an experienced OrangeCounty drunk driving attorney.

Law Offices of EJ Stopyro

Orange County DUILawyers
DUI Attorney in Orange County

Probation Violation Hearing: Everything Is Admissible

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Criminal Defense Lawyers in Orange County
Orange County Domestic Violence Attorney

If you are on probation, whether formal or informal, for any crime including domestic violence, DUI, drug possession, drug sales, assault, burglary, theft, or fraud, then you are in a particularly vulnerable position. Being on probation means that you have got jail time “hanging over your head.”  Violating the terms of probation, including committing any new law violation, could land you in the slammer.

If you are accused of violation your probation, you are entitled to a “probation violation hearing”. At such a hearing it is very important to be represented by a skilled Orange County domestic violence lawyer. A single judge sits in judgment, not a jury of 12 ordinary citizens. Moreover, this single judge’s decision doesn’t have to be based on evidence beyond a reasonable doubt. There only has to be a “preponderance of evidence” that you violated probation. To find a fact by a preponderance of evidence means that the evidence shows the fact is more likely than not to be true. This low evidentiary standard is the usual evidential burden in civil cases. So it’s important to be represented by a seasoned drug defense lawyer in Orange County.

 But wait, it gets worse. Not only are probationers not entitled to a jury or protected by the evidential burden of proof beyond a reasonable doubt, they also are not afforded the protection of the 4^th and 5^th Amendments prohibition against unreasonable searches and mandate of Miranda warnings, respectively. So you will need the help of an experienced criminal defense lawyer in Orange County. In the recent case of People v. Lazlo out of the 1^st District Court of Appeal, the defendant, who was on probation, was illegally searched. Police found a forged driver’s license in her purse and she was charged with possession of a forged license AND a probation violation.

The search was challenged by defendant’s criminal defenseattorney and was found to be illegal and the charge of possessing a forged license was dropped. However, even though the search was illegal, the evidence was still admissible at the probation violation hearing. Federal courts have held that illegally obtained evidence is allowed at probation violation hearings UNLESS the police conduct is so bad that it “shocks the consciousness” of the court. Almost no evidence is excluded under this standard. Moreover, in People v. Racklin (2011) 195 Cal.App.4^th 872, the court held that statements made by a defendant who was not given Miranda warnings may also be used at probation violation hearings.

If you have been charged with a probation violation call the Law Offices of EJ Stopyro today at (949) 559-5500. Talk to an experienced Orange County criminal defense lawyer about your case—the consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Domestic Violence lawyers in Orange County
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Beating a DUI Breath Test in Court: The Partition Ratio

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DUI Lawyer in Orange County

You get pulled over after you’ve had two or three drinks with friends. You felt fine when you started driving and didn’t see a problem with driving home. But the cop smells alcohol on your breath and asks you to do some field sobriety tests. You do the tests and the cop doesn’t see any real problems. The cop then asks you to take a roadside breath test. Believing that you are not over the limit, you oblige and blow into the small handheld machine. Beeeep! Says the machine. And it’s off to jail you go with a 0.08% result on your breath test and a charge of DUI.. “How can this be” you think to yourself, as you sit handcuffed in the back of a police car. “I read that card the DMV gave me when I renewed my registration and according to the card I should be UNDER the limit,” you think. How can I be arrested for DUI.

The fact is, you may very well be below the legal limit and still produce a reading on a breath-testing device that is at or over the limit and result in a DUI arrest. Why? Because the breath-testing device has made an assumption about your physiology that may just be flat wrong. A skilled Orange County DUI attorney will tell you that a breath test does not directly measure the amount of alcohol in your blood. It only measures the alcohol in your breath. A breath testing device is programmed to ASSUME that the ratio between the alcohol vapor deep in your lungs (alveolar air) and the alcohol in your blood is fixed at 1:2100. This ratio is called a partition ratio.

In other words, the machine is programmed to assume that every 2.1 liters of your deep lung air contains the same amount of alcohol as 1 cubic centimeter of your blood. The machine measures the amount of alcohol in the air you expel and computes a result based on the assumption that YOUR partition ratio is 1:2100. But YOUR partition ratio may very well be something other than 1:2100. In fact, partition ratios vary from person to person from 1:1100 to 1:3000. So, for example, if your actual partition ration is 1:1500 and your actual blood-alcohol is .07%, the breath test will give a reading of .10% and falsely identify YOU as being over the legal limit and get you arrested for drunk driving or DUI.

Not only that, but YOUR partition ratio also varies from time to time—it’s not fixed. For example, when your body is absorbing alcohol—moving it from your stomach to your blood—your partition ratio will be higher. This will result in a breath test result that is higher than your actual blood alcohol.

For more information on partition ratios or any aspect of 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 DUI Lawyer
DUI Attorneys in Orange County