Driving Under The Influence:
1. If stopped for a DUI should you take a chemical test?
Yes. Willful failure to take a chemical test will result in the forfeiture of your drivers license for a year. Even if you are found not guilty of the DUI for which you were stopped, California’s Implied Consent Law states you must submit to a test if requested by law enforcement.
2. What is the difference between taking a blood or breath test?
That is a difficult question without a clear cut answer. The breath test may give rise to a greater number of issues if you want to contest the results. However, it cannot be retested by the defense at a later date. The advantage to the blood test is that is can be retested if necessary by the defense.
3. Who controls how I get my drivers license back?
All issues controlling your license are handled by the Department of Motor Vehicles, or the DMV.
4. What is the role of the DMV?
Once you are arrested for driving under the influence, law enforcement will confiscate your license. They will then send a report both to the DMV and the District Attorney.
You have 10 calendar days from the date of your arrest to contact the DMV and ask for a hearing. If you don’t request a hearing within this time frame, then 30 days later the DMV will suspend your driving privilege for 4 months. If you are found not guilty of having a .08 or greater blood alcohol level then the suspension will be overturned. If you request the DMV hearing in a timely manner, you can also request a stay, meaning that your driving privilege will be remain in effect pending the outcome of the DMV hearing. You have a right to a hearing before a DMV Hearing Officer. If you have hired an attorney the attorney can appear at this hearing either with or without you.
At the DMV hearing the hearing officer will look at 3 issues:
1. Was there probable cause to detain you?
2. Was there reasonable cause to think you were under the influence?
3. Were you a .08 or greater at the time of driving?
The hearing officer decides based on a preponderance of the evidence. In other words the DMV looks to see if it is more likely than not that the answers to these questions are true. If he finds that they are true, you will lose your license for 4 months. If he decides that it isn’t more likely than not that the answers are true, your license will be restored.
5. How can I apply for a restricted license?
After 30 days on a suspended license, you can apply to the DMV for a restricted license. In order to obtain a restricted license your insurance company must file an SR22, which is a form from your insurance company showing you have current automobile insurance. In addition you must pay a reissue fee, and enroll in a DUI school. A restricted license will allow you to drive to and from and within the course and scope of your employment and to and from the alcohol program.
6. What is the role of the courts?
On the court side, the DA decides whether there is enough evidence to prove you were driving under the influence. If so, you will be charged with 2 vehicle code violations; driving while under the influence of alcohol, CVC 23152 (a) and driving with more than a .08 blood alcohol, CVC 23152(b) and you will be given a date to appear in court for an arraignment. If there are no injuries, this will be a misdemeanor. If there are injuries you may be charged with either felony drunk driving or misdemeanor drunk driving.
7. How likely is jail time?
This depends on the jurisdiction. The maximum penalty is 6 months in jail, however, depending on the jurisdiction, the level of blood alcohol and whether there was an accident, the likelihood of jail time will vary.
8. How long does a conviction for DUI stay on my record?
For most purposes, such as insurance companies and employment applications, the conviction is only pertinent for 3 years. But if you get a second DUI, the court can look back 10 years and this can be used to increase your punishment.
General Questions:
9. What is an expungement and how do I get it?
An expungement allows you to withdraw your plea, enter a not guilty and get the case dismissed.
To be eligible you must successfully complete probation or have probation terminated early and not have picked up any new offenses. If no probation was ordered you are eligible 1 year after the judgment was pronounced. You must petition the court to get an expungement.
You are NOT eligible for an expungement if:
1. you were convicted of a felony and sentenced to state prison
2. you were convicted of certain sex offenses
3. you were convicted of certain misdemeanor traffic violations
A dismissal (due to an expungement) does not eliminate all record of a conviction. It still allows:
1. conviction records to be made available to the public
2. licensing agencies to use the conviction in their licensing decisions
3. the conviction to disqualify an individual from getting a foster care license
10. You’ve just been arrested – What should you do?
It is crucial that you maintain your 5th amendment right to remain silent until you have a chance to speak to a lawyer. Despite what you may think, is not likely you will be able to explain your way out of the situation and your attempts to do so may lead to irreparable damage. Contact a lawyer immediately to protect your rights and fight for you. It cannot be stressed enough that the quality of your representation has a direct effect on the outcome of your case.
11. You are under investigation or think you may be arrested – What should you do?
Once again, it cannot be emphasized enough how important it is to have an experienced lawyer act as a buffer between you and the police. Mr. Loewenstein has frequently initiated contacts with the DA and the police that have prevented the case from being filed at all. If the case is going to be filed, Mr. Loewenstein can arrange for you to surrender yourself, saving you the embarrassment of being arrested in front of your friends, family, neighbors or at your place of employment in front of your co-workers. Early intervention can also be instrumental in lowering your bail, saving hundreds or thousands of dollars.
12. Bail
The bail amount is set at the jail when you are arrested and is determined according to a bail schedule which depends on the type of crime you are accused of. It is presumed by the court to be correct. If you pay the entire amount of the bail and you DO show up in court as ordered the bail is fully refundable.
However, most people use a bail bondsman who will generally charge 10% of the amount of the bail as his fee. The money paid to a bail bondsman is like an insurance policy that you will show up in court. This amount is NOT refundable. An experienced lawyer may be able to arrange for a lower percentage from the bail bondsman. Mr. Loewenstein has numerous contacts in the bail bond industry and can help you secure bail at a lower percentage. In addition, Mr. Loewenstein has argued successfully to lower the scheduled bail amount on numerous occasions. If he is contacted early enough, Mr. Loewenstein has done this by discussing the amount with officials at the jail or, if necessary, later at the arraignment with the judge.
You can also be released without paying any bail. This is called an O.R., meaning you are released on your Own Recognizance. Said more simply, you are released on your written promise to appear in court.
How is bail posted?
If you are paying the entire amount of bail, someone must come to the jail where you are being held and pay the bail amount. If you are using a bondsman, you must contact that person, who will present the bail bond to the jail. It can take several hours before you are then released.
Does all this sound complicated and overwhelming? You’re right, it is and this is only a little information on a subject that can fill volumes. That is exactly why you need an experienced lawyer who not only knows his way around the legal system but who has earned credibility with both judges and prosecutors. Mr. Loewenstein has handled literally thousands of cases and is an expert on the subject, so much so that the State Bar of California has awarded him the coveted designation of Certified Criminal Law Specialist. As a former Deputy District Attorney, he knows the legal system from both prosecution and defense points of view. This is invaluable in allowing him to design a defense that will be the most effective one possible for you.
