If you or a loved one has been arrested for driving under the influence of alcohol or drugs (DUI), Mark Malachowski is the best DUI attorney to represent you. Although driving under the influence of alcohol, or drunk driving, is the most commonly committed crime in the United States, the laws are complex and the penalties are severe. A DUI conviction can result in jail time, probation, a criminal record, fines, required classes, and loss of your license. It is extremely important that you speak with a DUI attorney who knows the unique system of legal standards that apply to DUI cases.
Criminal and civil procedures in DUI cases move forward rapidly, thus it is essential that you retain a top DUI attorney to take immediate action and afford you aggressive representation to get you the best DUI case results possible. You are innocent until the State proves that you are guilty beyond a reasonable doubt.
The police officer's decision to arrest a citizen for DUI is based on the totality of information that includes driving, the stop, the initial contact, objective symptoms, the interview, the performance on the FSTs, and the preliminary breath (preliminary alcohol screening, or PAS) test.
The DUI Stop
The police must have a reasonable suspicion that a violation of law is being or has been committed before they can pull you over. Moreover, the police must be able to explain what gave them this reasonable suspicion. Typical reasons for being pulled over are speeding, erratic speed, weaving or swerving, wide right turns, not using a blinker, broken tail lights, or driving with your high beams.
The officer may note in his report if the driver reacts inappropriately to the police officer's flashing red lights, whether the driver puts on his blinker, pulls over in a safe spot, and parks his vehicle in a safe and orderly manner.
Next, the police must have probable cause to arrest you. The police attempt to establish this probable cause by questioning you and requesting you to take a variety of tests.
Sobriety checkpoints are road blocks setup by police to catch drunk drivers. Typically, they are set up late at night or on holiday weekends when police think it is most likely for people to be drinking and
driving. Generally, defendants attempting to evade road blocks do not fare well. If your car is selected out of the stream of traffic, police officers look for slurred speech, the odor of alcohol, and admissions of drinking.
Field Sobriety Tests (FSTs)
If you admit to having been drinking, the police almost invariably ask you to step out of the vehicle and perform a field sobriety test (FST). The officer may note in his report if he smells the odor of alcohol, the driver has a flush face, bloodshot eyes, thick or slurred speech, or fumbles when presenting his driver's license, registration, and proof of insurance.
When the police officer tells you to step out of the car, you are required to do so. However, you are not required to perform the FSTs. The field sobriety tests are highly subjective and may be difficult for many people to pass, even if they have had nothing to drink. The police use the field sobriety tests to prove probable cause for your arrest. Also, the police officer uses his discretion to decide whether you have passed the test.
Typical field sobriety tests include: walk and turn, one-leg stand, horizontal gaze nystagmus (HGN), as well as tipping the head backwards, reciting the alphabet, and touching your nose with your finger with your eyes closed. All of these tests are typically conducted on the side of the road with traffic going by and possibly under the glare of police spotlights. You have a right to refuse to take the field sobriety tests. Also, there is no penalty for refusing to perform the FSTs. However, if you do refuse to take the FSTs, it is important to politely refuse the request. Also, always treat the officer with respect.
Preliminary Alcohol Screening (PAS) Tests
The officer may also request that you take a preliminary alcohol screening (PAS) test. The PAS test is done with a handheld device that is subject to errors. Physiological factors that can affect the results include a weak breath sample, mouth alcohol, or recent drinking. Instrumental factors that may affect the results include radio frequency, cell phones, police radios, calibration, temperature condensation, and the type and age of the detector. Operator factors that can affect the result include poor training, repeat use of the same mouth piece, incorrect use of equipment, and recording results incorrectly.
If you are over 21, the PAS test is voluntary and is not required by California's implied consent law. The California implied consent law stems from a paper that you signed when you obtained your driver's license agreeing to be obligated to submit to blood alcohol testing when you are arrested for DUI. While you may not recall signing this paper, you would not have a California driver's license if you had not.
However, if you are arrested you are required to take a urine, breath, or alcohol test to determine your blood alcohol content (BAC). The evidentiary breath test is typically performed at the police station.
DUI Blood Test
Blood testing is considered to be more reliable than the breath test for determining DUI BAC. Also, a blood sample may be retained for future testing. However, factors such as contamination, poor storage techniques, improper labeling, switched samples, or fermentation may cause errors.
DUI Urine Test
Urine tests may be used when the driver suspected of driving under the influence of a combination of alcohol and drugs or drugs alone. Typically, urine tests are not used when the driver is suspected of driving solely under the influence of alcohol.
DMV Administrative Hearing for DUI License Suspension
If you have been arrested for DUI, you only have ten (10) days to schedule an administrative hearing. Contact top DUI attorney Mark Malachowski at (415) 812-1575 immediately after your arrest to schedule a hearing, gather evidence, and represent you during the DMV administrative hearing. If you do not schedule a hearing within ten (10) days, you forfeit your right to a DMV administrative hearing and your driver's license will be automatically suspended thirty (30) days after your arrest.
Motion to Suppress Evidence 1538.5
A motion to suppress is an attack on the prosecution's case that seeks to suppress the evidence that will be used in an attempt to convict the defendant. If successful, the prosecution will likely dismiss the charges. An evidentiary hearing is held to determine whether the evidence against the defendant was properly obtained. Typically, a motion to suppress asserts that the officer has shown no legal cause for the stop. If successful, all evidence obtained after the stop will be inadmissible. The motion to suppress may also attack the DUI arrest based on the assertion that there was not evidence supporting the officer's belief that the defendant was under the influence.
DUI trials are complex because the system of legal standards and procedures is unique and scientific evidence is a vital component of the prosecution's case. The reliability of equipment used, the training and behavior of the officers and technicians, and the procedures used to determine the DUI BAC are all highly technical.
Moreover, different defendants have varying physiology or conditions that may influence DUI BAC results. Moreover, issues regarding impaired driving, the investigation, witnesses, circumstantial and direct evidence, and past arrests or convictions may also be relevant. The prosecution has the burden of proof and must prove the defendant is guilty beyond a reasonable doubt.
A keen understanding of these legal and technical issues allows DUI defense attorney Mark Malachowski to present convincing evidence to show the jury that the State has not proven that the defendant is guilty beyond a reasonable doubt.