Frequently Asked Questions
A DUI charge can be beat in court and at the DMV. The Law Office of Ben Mironer has successfully had many DUI cases dismissed, reduced, or rejected. We have also had many clients acquitted after a jury trial. It is important to fight a DUI charge, in order to get the best result possible. Just hiring a lawyer, doesn’t mean that they will actually fight your DUI charge. Unfortunately, most attorneys (especially the ones that advertise a lot) usually take whatever offer the prosecutor gives them. They may ask for a reduction, in a friendly way, but they will not challenge the legitimacy of the charge. They may even get a reduction, once in a while. However, if you have an attorney that is willing and capable of actually fighting a DUI charge, you will generally get a better result. Ben Mironer is trained, experienced, and has the track record to prove that he fights for his clients, in every DUI case he takes on.
The stakes are very high in a DUI case, even higher than many other crimes, especially in the long run. A DUI conviction could cost some people their employment, especially “commercial drivers” and “professionals” that hold a specialized license. A DUI conviction can stay on your record for years, which can affect auto insurance rates and employment opportunities. Furthermore, some people face jail time in their DUI cases. It is important to know that the legal system is set up to help prosecutors get a DUI conviction. Many Constitutional rights do not apply with the DMV, and many Constitutional protections do not apply in a DUI arrest. Finally, even though DUI is the most common criminal offense, DUI cases are also the most complex to understand, and to defend properly. A skilled DUI attorney could be the difference between getting a criminal conviction, and getting a case dismissed.
A Misdemeanor criminal offense is much less serious than a Felony offense. Unlike a Felony, when someone is arrested for a Misdemeanor, they are usually released without having to pay any bail. Someone who suffers a Misdemeanor conviction usually has to pay a fine, complete a program, sometimes complete community labor, and generally has to do little to no jail time. But, there are some Misdemeanor cases where a defendant may have to spend up to one year in county jail. They are also usually given summary (informal) probation, where they must obey all laws. Someone who suffers a Felony conviction usually faces some time in jail (either in county jail or prison), some treatment program, or counseling (live-in residential). Felony cases may also have a “preliminary hearing,” which Misdemeanors do not have. Individuals convicted of a Felony face prison time, and they are generally placed on formal probation or parole. Finally, there are some charges known as “Wobblers,” these are criminal offenses that can be charged as either a Misdemeanor or a Felony.
Anyone who is convicted of a Misdemeanor criminal offense faces a sentence that may include County Jail, but can not be sentenced to State Prison. The maximum for many Misdemeanor crimes is up to one year in County Jail. However, someone who is convicted of a Felony offense, faces time in State Prison. A prison sentence can be “low-term,” “mid-term,” or “high-term.” The Judge imposes a sentence based on various “mitigating factors,” or “enhancing factors.” The lowest Prison sentence possible is 16 months of State Prison, and could be up to as long as life without parole. It is important to note that in most cases where someone spends time in prison, they are not eligible for an Expungement (some exceptions apply). However, prison in-mates are potentially eligible for a Certificate of Rehabilitation, or Clemency (a Pardon).
There are various reasons why someone may get pulled over, but it is always important to immediately put yourself in the officer’s shoes. The officer doesn’t know if you are potentially dangerous or not, so it is important to always put both hands on top of your steering wheel and keep them there while the officer approaches. This immediately allows the officer to know that there is no danger in contacting you. When the officer makes contact with you, it’s important to listen closely and only speak after asked a question (don’t cut the officer off). It’s easy to advise someone not to say anything at all, but when truly placed in the situation of confronting an officer, everybody understands that appearing to be uncooperative, or confrontational, can get you arrested right away.
It is important to stay calm, and inform the officer very politely that you apologize for the infraction you’re being pulled over for. If the officer persists, and begins asking questions about where you are coming from, this is a sign that the officer is beginning a DUI investigation. At that point, you should inform the officer that you chose to exercise your right to remain silent. If you are then asked to perform field sobriety tests, let the officer know that based on your research, you have found information that shows these tests may not be reliable, so you don’t want to do them. If asked to perform a breathalyzer (BEFORE BEING ARRESTED), respond the same way about the reliability issue. If arrested you should submit to a breath or blood test, as required by law. If you want to know whether it’s better to do a breath or blood test, please read our Frequently Asked Question on Mironerlaw.com.
Under the California Implied Consent Law, every driver is required to submit to a breath or blood test, in a DUI arrest, when requested to do so by a police officer. Both tests have various problems with reliability, even though the prosecution wants you to believe the tests are very accurate. Breathalyzers test the concentration of alcohol vapors in the lungs, not the alcohol concentration in the blood. This conversion of determining how much alcohol concentration is in the blood, from the amount of alcohol concentration in the lungs, is prone with problems. The biggest problem is that all breathalyzers use what’s called a partition ratio to make this conversion. The partition ratio for breathalyzer devices is 2100 to 1, however there is a broad range of what a person’s actual partition ration may be. This creates an inherent margin of error in every case where a breathalyzer is used.
As for blood cases, there is always a potential issue that arises with the preservation of the blood. It is important to understand that the sugar which is naturally found in everybody’s blood, may convert to alcohol (through fermentation), if a blood sample is improperly stored or preserved. There are also potential issues that arise with the device used to test blood samples (headspace gas chromatographs). It also takes much longer to get blood tested because the officers must take you to a location where a safe blood draw can be administered. This can be advantageous because the more time that passes, the more difficult it becomes to backtrack and determine the BAC level at the time of driving (known as retrograde extrapolation). Overall, the breathalyzer is less reliable than a direct blood test, even though they are treated equally by the law.