Friday, December 5, 2008

Q & A California DUI criminal defense attorneys at www.SanDiegoDrunkDrivingAttorney.net

California DUI criminal defense attorneys are often asked:

Q.When a California DUI cop pulls me over and asks if I had been drinking, how should I answer him?

A. A person is not required to answer any questions that could incriminate her or him. An individual is allowed to ask to speak with an attorney before answering any questions. If you do state that you have been drinking, you are putting yourself in a dangerous position.

Q. When a California DUI police officer asks me to follow a penlight what does he look for?

A.This California DUI test is called the horizontal gaze nystagmus (HGN) test. Nystagmus is the medical term that describes a particular eye oscillation. The steadiness of the eyes while following the pen and the degree at which the eyes begin to move erratically indicate the level of alcohol in the blood of the suspect. The police officer attempts to determine if the angle of the eyes are less than 45 degrees. An angle of less than 45 generally indicates a blood-alcohol level of .05% or greater.

The horizontal gaze nystagmus test is still fairly new and has not been accepted for use in many states. Many medical professionals don not consider this test to be credible. It is also possible that some police officers performing this test are not qualified to administer the test. The untrained officer may not be able to negotiate the proper angle and hence misjudge nystagmus. Although approved in other states, this test is not accepted for use in California.

Q.Can I choose which California DUI chemical test I can take?

A.In California, the most popular choices are the breath and blood tests. Should a breath or blood sample not be available or there be a suspicion of drug use, a urine test could be taken as an alternative. Many officers do not inform suspects that they can have a blood test taken after the breath sample is taken.

Blood tests can be the most accurate of the chemical tests but if you do not blow in the hand-held gadget, a blood test may be the best choice because the officer would not have the benefit of the result being ready when he does his report. The technology used in the breathalyzer is known for its flaws and errors that create inaccurate test results. The urine test is the least accurate of the choices but are rarely offered.

San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended informed the President of the California DUI Lawyers Association that San Diego California DUI criminal defense attorney Rick Mueller was excellent. Rick has been asked to speak again - at the California DUI Lawyers Association (CDLA) DUI seminar.









What you must do within 10 days of being arrested



10. If you need to save your driver's license or privileges, your attorney has only ten (10) calendar days to contact DMV!


Do not schedule yourself. If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your attorney contacts DMV by the 10th day from your arrest.


9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.


8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.


7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.


6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.


5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.


If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.


4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.


3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)


Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.


2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!


1. All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!





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