By Carl Simons

Avoiding the Nightmare Before Christmas

It's that time of year again-with the plethora of holiday parties also comes the peak season for DUI (driving under the influence) arrests, with law enforcement out in full force doing their jobs.

You can legally operate a motor vehicle with alcohol in your system -- technically you must be at .08 percent or above to be considered DUI. However, if you are operating a motor vehicle and you have any measurable amount of narcotics (recreational or prescription) in your blood and this is discovered by law enforcement, you are also DUI. There is no minimum amount requirement, and the test given will show narcotics that you have ingested up to three or more days prior to the date of the test.

Before getting behind the wheel of an automobile, listen to your intuition. If while at a holiday party, you consumed more than two drinks or any other substances, have someone else drive. If you still choose to drive and have contact with the police, it's best to treat them with respect. Remember officers are enforcing the laws, they do not make the laws, and they are the ones that make the decisions to ticket you, arrest you, or let you go.

In order for an officer to make initial contact with you, they are legally supposed to have "probable cause," which is legalese for a "reasonable" belief that you have committed some type of legal offense or vehicle code violation. Probable cause is not a difficult burden to overcome, it can be anything from speeding (even one mile over the speed limit), excessive lane changes (easily described as "weaving"), a missing front license plate, or burned out head taillight.

Once the officer makes contact with you, they are determining what other types of offenses may have been committed. Legally, they may question you; do a "plain view search" of your vehicle (anything within plain view that may be a violation is fair game, i.e. the bumper or roach in the ashtray); they also may rely on their senses (i.e. odor of alcohol or marijuana) in their determination if you have committed a legal offense.

When the police make contact with you, you are under no legal requirement to speak with them. In fact anything you say or do prior to your arrest by them can and will be used against you in their case should you be arrested. However, if the officer requests that you take a blood, breath, or urine test you must not refuse to take the test, or you run the risk of loosing your privilege to drive in California for a year or more

Most people think if they cooperate with the police, answer their questions, do their field sobriety tests, etc., the cops will go easy on them. However, the reality is if you are DUI and know it, you are simply giving them more evidence to prove their case against you.

Most people are familiar with their Miranda rights -- but what most of us believe about Miranda is incorrect. Not being read your Miranda rights is insufficient grounds for dismissal of any case against you. Miranda only comes into play once you have been arrested, and only has to do with what evidence the prosecution may or may not use against you at trial. Officers question you and make decisions prior to arresting you. They generally gather their case against you prior to your arrest, therefore anything you say after your arrest is relatively unimportant in their prosecution of their case against you.

If you are arrested for a DUI, it's extremely important that you contact an attorney immediately to discuss your options. In a nutshell, you have two actions going on against you: one by the criminal court and one by the DMV, who will try and have your driver's license suspended. In the DMV matter, you have only 10 days from the date of arrest to act upon the DMV suspension or your license will be automatically suspended.

If you have any legal questions regarding this or any other pending legal matter please contact the Law Offices of Carl Simons at (310) 749-4LAW.