Frequently Asked Questions About DUI Defense
DUI is a very complex and complicated area of the law because of the scientific principles behind the evidence they use to prosecute someone for DUI, which would usually be a breath test, a blood test, or a urine test. There would have to be a proper analysis of those fluids to make sure the evidence was valid and correct, which is why trying to represent oneself on a DUI would be very foolish because of those factors and also because the consequences resulting from a DUI conviction could last 10 years or longer.
A lot of things can change in someone’s life over that 10-year timeframe. A young individual might be going through school, getting close to graduating from college and then applying for jobs, but the DUI conviction would stay with them so a potential employer would see it. It might be the graduate’s perfect job or their dream job where they might be going up against a competitor applicant who had no convictions and nothing on his record. The DUI on the first individual’s record might be the one thing that causes him to lose that position.
Not hiring an attorney could ultimately be the biggest mistake of a person’s life because they would have to face the long term consequences if they ended up with a DUI conviction.
The law states that the judge would have to impose a certain fine and they would have to impose a certain amount of jail time. Keeping this in mind, a lot of judges advise people about their right to counsel which they have to do, and they try to encourage the defendant to get an attorney. In my experience, judges would actually prefer for the defendant to have an attorney because of the complicated nature of the law, the long term ramifications of a DUI conviction and the license suspension.
There are two parts of a DUI, the criminal part and the driver’s license civil part. A public defender cannot represent their client or the driver at the driver’s license hearing with the Driver’s License Division, which would be one of the critical parts for most clients because they would be trying to save their driver’s license. A public defender would not be able to do that.
I use the civil part and the hearings with the Driver License Division to build my defense and get information from the police officer that I can then take and use during the criminal defense portion of it. This is one of the first reasons someone should try and get a private attorney for their DUI because public defenders are in fact very busy, although a lot of them are really good attorneys, but they just tend to have a high caseload so they would not be able to help with the civil portion of the DUI defense.
A lot of people think it would be hard for the police officer to get a warrant and they think it might take them a couple of hours or they might be able to get it by the next day so they could come and take a blood sample if the person did not blow, but that is not the case anymore. People should know there are now judges who are on call just like doctors or some other professionals. These judges are on call in most of the cities and counties in the State of Utah so the officer would simply have to find out which judge was on call, get his email, type up the affidavit for the warrant and send him the warrant.
I have often seen these warrants come back in under half an hour, although it usually takes less than an hour, so in most cases the officer would be able to get the warrant and they would be able to get their evidence, so someone who refused would be subject to the enhanced license suspension by the Driver License Division.
Under Utah law, this is something called the implied consent law, which means that anyone who was issued the license would have consented in advance to submitting to a chemical test so if they refused, they would be suspended for 18 months instead of 120 days or four months if it was a first offense, and for a second offense, they could be suspended for three years instead of two years, which is why I advise that the person should blow into the machine because they would have to do it anyway in 99% of the cases.
Giving and submitting to field sobriety tests like the walk-and-turn, the one-leg stand, or the eye test, also known as the horizontal gaze nystagmus test, would help the officer develop his probable cause for the arrest. The tests are very subjective. A lot of times they are conducted late at night or on the side of the road where it would usually be cold for the majority of the year.
My advice would be for the person to simply decline doing the field sobriety tests, although they should always submit to the chemical test. I clarify with my clients that they do not have to submit to anything before being arrested. They do not need to admit they were drinking if they were, they have a right to remain silent at that point, and they do not have to submit to any kind of field sobriety tests.
Before the arrest, the person should not submit to any tests and they should never admit to anything, whereas after the arrest, they should submit to the chemical test, the breath test, the blood test, or the urine test.
People usually get arrested because of the way they were talking or acting anyway if the officer believed they were under the influence. Police officers believe they would have nothing to lose if they could get someone down and have them blow into the machine or get the blood, because the case would usually be dismissed if it came back under the limit, but they would have a good shot at a DUI conviction if it was over the limit.
However, admitting this would give the officer the opportunity to further investigate so they would ask the driver to step out of the vehicle and submit to the standard field sobriety tests where, once again, the officer would be developing the probable cause for his arrest. It would not be a problem if the person said they had only had a couple of beers and were then subsequently arrested for DUI, because a trained DUI attorney like myself would be able to help them maneuver around issues like that.
They might have admitted they had some drinks and then submitted to the field sobriety tests or done something like that, although the biggest mistake after a DUI arrest would be for someone to think they would be able to represent themselves or they would be able to go and speak with the prosecutor themselves or that they would be able to go to the driver’s license hearing by themselves.
People believe that just because they are a nice person, they have no prior record and no prior convictions of anything, that the court and the system would treat them nicely or fairly, which would really not be the case. There are minimum mandatory sentencing requirements for a DUI conviction so the judge would not have any other option if someone pleaded guilty to the DUI.
Getting hold of an attorney after the person was arrested or got out of jail would be the best thing someone could do to help themselves on a DUI case. It would be a mistake to not call an attorney who specialized in DUI, so that they could try to talk to the prosecutor on their own and try to negotiate with the Driver’s License Division on their own to try and get the license back.
Someone who was arrested for theft or assault would not have to go to the Driver License Division to try and save their license. A lot of other types of criminal cases would not involve analysis of bodily fluids, so they would not analyze a sample of the person’s breath, their blood or their urine, which would actually be the main evidence that would be used against someone by the prosecutor in a DUI case, although in a criminal case that would not really happen most of the time.
A DUI would often not have witnesses other than the arresting officer whereas for an assault case, there might be people who witnessed the assault or in the case of a theft or a shoplifting case, the security personnel may have witnessed the theft and would come to court and testify, whereas DUI cases would mainly involve simply the officer or whoever was responsible for analyzing the bodily fluids.
Another thing that people do not know would help their case is that they have only 10 days to request a hearing with the Driver’s License Division. If they did not request that, then their license would automatically be suspended 120 days for the first offense and two years for the second offense. It is very crucial to request that hearing within the 10 days because when I attend those hearings, I use that as an opportunity to not only save the license but to gather information.
I would have an opportunity at that hearing to question the officer about the events that occurred the night of the arrest, why he stopped the driver and why he conducted a DUI investigation. A lot of information could be gathered. It’s very important to request it and attend that hearing with the DUI internee.
Something else that might sometimes help the case is if the person felt they were in need of counseling, because they felt like they might have a problem with drugs or alcohol. If they signed up with a court approved counselor, which is information an attorney could provide, then by the time they got in front of the judge or met with the prosecutor, it would show that they had taken the charge very seriously and acknowledged they might have a problem. This can go a long way with some prosecutors and some courts.
If I cannot find a legal technicality to get the case thrown out of court, then I can usually get the charge reduced down to something less than a DUI or I could at least get some of the other traffic offenses dismissed if there were other offences along with the DUI, like a possession of paraphernalia, a failure to signal, speeding or an accident, because I can usually get some of those other offenses dismissed.
The second biggest myth is that it would be good enough to hire any attorney. People tend to have the impression that attorneys are familiar with all areas of law and that going to just anyone their neighbor or their family recommended would be good enough as long as the person they hired was an attorney, but that is just not the case nowadays. Attorneys, like people in other professions, are becoming specialized because of the numerous laws and the complexity of the laws.
It would take a specialist to help someone in a certain area of law nowadays, and a DUI happens to be one of those areas because of the science and the technical analysis that would go through interpreting the bodily fluids, the breath, the blood or the urine, because the attorney would need to understand that science and the processes they go through to get the numbers they would use against the person in court. This is why it would be one of the biggest myths that the person could go to just any attorney.
The third and fourth myths can be combined. The third myth is that the person will lose their license and the forth myth would be that they will have to do jail time. A lot of people come in expecting to lose their license or to go to jail, whereas in most cases if I was not able to save the license at the driver’s license hearing, I could still get the suspension reduced down or cut in half.
In most cases, unless it was a felony or something, if I could not get it thrown out, then I would usually be able to avoid a jail sentence, or I could get home confinement for the person instead of jail. The statute does provide for other alternatives than jail, like community service, home confinement and a lot of other times, with my guidance in the beginning such as getting some counseling in advance, we can avoid a jail sentence.
One of the first things I ask them is whether their medication caused them to drive or operate their vehicle in an unsafe manner, because that would be one of the prongs of the DUI statute that the prosecutor could use to convict someone under the influence of alcohol or any drug, including prescription drugs, that might render the individual incapable of safely operating their vehicle.
The sentencing scheme is in the same section of the code as if it were an alcohol related DUI, so the fine, the minimum mandatory requirements for treatment or counseling would all be the same whether it was for a prescription medication or alcohol.
Another reason why people tend to fail these tests is because of the circumstances in which they do the tests. It might be cold outside or late at night, or there could be other distractions like traffic if the test was conducted on the Interstate. There are numerous things that might happen, so I like to have the jury consider that.
Someone who is in college or even when they are taking the exam to get their driver’s license issued in the first place, most people would have had a chance to prepare for it and take some classes in advance, they would have had an instructor and a booklet they could review and study before they went in and took the test to get their license, which would not be the case with the standard field sobriety tests. When someone does the field sobriety tests, it is usually the first time something like that has happened to them, so they would not have been able to practice. Since the tests are one shot and pass or fail, they would usually be nervous.
People usually feel intimidated by the police officer because there are usually two or sometimes three other officers standing there off to the side or behind them watching and observing, which is a big reason why I believe people fail the field sobriety tests. No one goes into an exam or gives any kind of tests unless they have prepared, practiced or studied for it, and they would usually not have to perform any tests on the side of the road at midnight or one in the morning.
Along with the criminal sanctions that could be issued by the court, the license suspension time would also go up, so it would be a 120-day suspension for a first offense and a two-year suspension for the second or subsequent offense, which is why it would be extremely important to get representation for a second or subsequent offense DUI because there would be so much more at stake.
Once they had collected the blood, they would have to do certain things to preserve it and they would have to store it because the lab would not usually be open at midnight on a Sunday morning, so the officer would have to store the blood until they could get it to the lab to be analyzed. That storage might be in the trunk of the car for a week, and sometimes it might be in the evidence locker for a month. Once the sample does get to the lab, it would have to be analyzed by someone who was trained to do that, who followed the standard operating procedures and was qualified.
The machine that performed the analysis would have to be properly maintained, calibrated and functioning, so if there was a problem anywhere along the line in any of those steps, there might be a legal reason to have that blood test thrown out. The prosecutor would have to go through a lot of work to make sure all those things were in place if he was going to prosecute a blood DUI case.
From a defense standpoint, errors can usually be found along the way in that process. I can usually find something, whether in the blood draw, collection or the storage or the analysis, that would get the DUI thrown out or get it reduced down to something that the client felt was acceptable.