Disputing California DUI Tests


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Category Archives: DUI Commentary

Disputing California DUI Tests

Was the breathalyzer in my DUI case operating properly?

Disputing California DUI Tests

Disputing California DUI Tests: DUI convictions in Orange County and throughout California often rest on the results of one or more California DUI tests. While many people charged with drunk driving believe that there is no way to avoid conviction if they have failed these tests, an experienced DUI lawyer can often fight the charges.

Types of California DUI Tests

Horizontal Gaze Nystagmus (HGN) Field Sobriety Test

BAC Testing in California

BAC tests measure the concentration of alcohol in the driver’s blood. These tests can be administered in a variety of ways, including breath alcohol tests, blood alcohol tests, and urine tests. While both the prosecution and the DMV tend to take these tests at face value, these tests are far from perfect. Some of the most common grounds for challenging chemical DUI tests include:

• Lack of probable cause, meaning that the officer had no right to administer the test and the results may be excluded from evidence
• Faulty testing equipment, such as a breathalyzer test machine that has not been properly calibrated
• Flawed administration of the test, calling the validity of the results into question
• A delay in administration of the test, raising the possibility that BAC increased between the time of the arrest and the time of the test
• A break in the chain of custody of a blood sample or urine sample
Depending on the specifics of your case, there may be other grounds for challenging the accuracy or admissibility of DUI test results.

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Field Sobriety Testing in California

dui breath test

Field sobriety tests are dependent on human administration and human observation, which means that mistakes can occur and disputing California DUI tests and conclusions can be disputed. Environmental factors can also impact the reliability of a field sobriety test. For example, if the ground where a test is administered is wet, uneven, or rocky, that may impact a driver’s ability to perform the tests successfully.
In addition, there are very specific guidelines to be followed in administering field sobriety tests. Many law enforcement officers do not adhere to these guidelines or make mistakes in the administration of the tests. Often, scrutinizing video of the testing will reveal errors or procedural violations that call the test results into question.

The Power of Challenging California DUI Tests

The Walk and Turn Field Sobriety Test - Instructional Stage.

Orange County prosecutors rely heavily on test results, especially BAC test results. But disputing California DUI tests is possible. A BAC test result of .08% or greater—or even lower under some circumstances—is sufficient to support a DUI conviction. However, if an experienced Orange County DUI lawyer successfully challenges the accuracy of the tests or prevents the test result from being entered into evidence, the prosecution is often unable to prove its case.
When the test results are excluded or their validity is called into question, some possible outcomes include:

• Charges may be dismissed, as the prosecution recognizes that it will be difficult or impossible to prove its case
• A very favorable plea agreement may be offered, such as a significant reduction in the charge
• The “automatic” driver’s license suspension may be avoided
• We may take the case to trial and win an acquittal (finding of “not guilty”)

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Orange County DUI Lawyer Robert Miller Knows How to Fight DUI Tests

Orange County DUI Lawyer Robert MillerAttorney Robert Miller has gone above and beyond the norm to ensure that he has the tools and knowledge necessary to challenge California DUI test results. He has twice successfully completed the DUI Trial Skills College at Harvard Law School, is certified in Field Sobriety Testing, and has completed scientific coursework on breath and blood testing.

He also stays informed about the latest developments in DUI testing technology, legal defenses, and other critical information through membership in the California DUI Lawyers Association, the DUI Defense Lawyers Association, and the National College of DUI Defense.

Talk to an Experienced DUI Lawyer Right Away

About Us Robert Miller Associates Law Firm

If you’ve failed a BAC test or field sobriety test, don’t assume that means a conviction. Disputing California DUI tests is possible. Schedule a consultation today to learn more about how we can help you fight the charges against you. Contact us today.

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California DUI Penalties Can Be Serious

CHP DUI Arrest Rearview

California DUI Penalties Can Be Serious

California prosecutors take drunk driving seriously, and even a first conviction may trigger serious consequences. Most California DUI charges are misdemeanors, but even a misdemeanor carries a possible sentence of up to three years in jail. A first-time DUI offender may also be placed on probation for up to three years, be assessed significant fines, and lose his or her driver’s license for four months.

California DUI Penalties are Only the Beginning

DUI defense lawyers Riverside

The penalties imposed by the criminal court system and the California DMV can be serious, but they’re not the only consequences a person convicted of drunk driving in California may face.

The indirect consequences of a conviction may have a significant impact on the driver’s life.

Some examples include:
• A jump in automobile insurance rates
• A criminal record, which may impact the driver in many ways
• Possible limitations on employment options
If you’ve been charged with DUI in California, you must act quickly to protect your rights and prepare your defense.

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You Only Have 10 Days to Request a California DMV Hearing

DUI California DMV

One of the California DUI penalties of great concern to many clients is the driver’s license suspension. Losing your license can create a significant burden, interfering with your ability to earn a living, care for your family, and attend to many important areas of your life.
You’ve undoubtedly heard the driver’s license suspension that occurs after a BAC test result of .08% or greater as “automatic,” but that’s a bit misleading. While the suspension automatically takes effect 30 days after the arrest, you can fight the suspension—but only if you take action immediately.
You have just 10 days to request a hearing on the Administrative Per Se license suspension. If you do not request this hearing, generally called an “APS hearing,” within 10 days, you will be barred from contesting the license suspension.

Defenses to Administrative Per Se License Suspension

dui breath testMany California drivers mistakenly believe that there’s no way to fight the administrative suspension if they’ve failed a breathalyzer or blood alcohol test. However, an experienced criminal defense attorney knows better. DUI lawyer Robert Miller has educated himself on the science surrounding blood testing and breath testing, and knows how to challenge the validity of the BAC test results.
In some cases, the suspension may also be challenged on legal grounds. For example, if the law enforcement officer did not have reasonable cause to believe that you were operating a vehicle under the influence, he may have overstepped his authority in requiring the blood or breath test and the results may be inadmissible.

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Fighting California DUI Charges

California DUI Penalties Can Be Serious.  But being charged with driving under the influence doesn’t necessarily mean a DUI conviction. An experienced DUI lawyer may be able to fight the charges against you by:

• Successfully arguing that the police officer did not have reasonable cause to stop you, or to administer a blood or breath alcohol test
• Filing a motion to suppress critical evidence, such as the BAC test result
• Demonstrating that the officer improperly administered or interpreted field sobriety test results
• Calling into question the accuracy or reliability of the chemical test results
Give yourself the advantage of a seasoned DUI defense lawyer on your side. When you retain attorney Robert Miller to represent you in a California DUI case, Mr. Miller will thoroughly investigate all aspects of your case to determine the best way to fight the charges against you.

See What Our Past DUI Clients are Saying

best orange county dui attorney yelp

Yelp Best Orange County DUI Attorney Review“Robert is professional, incredibly intelligent and not only a great attorney, but a great person to work with.” – Rebecca N. (Yelp)

Best Orange County DUI Attorney Yelp Reviews Elizabeth



“I found Robert Miller to be both professional and approachable. He returned my calls quickly and answered my questions with confidence. I felt that he explored every option available to me and fought hard on my behalf. I would gladly recommend Robert Miller to anyone who needs to-notch legal counsel and specifically a great DUI defense attorney.” – Elizabeth O. (Yelp)

See What Other Attorneys are Saying about Our DUI Lawyer

Orange County DUI Attorney Top Rating Avvo

Attorney Robert Miller has more than 60 endorsements from other lawyers on Avvo. Other attorneys know that California DUI penalties can be serious, and here’s what a few of them have to say:

“Attorney Miller is an excellent advocate for his clients, and his mastery of the DUI/DWI Law in California is top-notch. I endorse him as a great advocate, and lawyer.” — Anthony Rao, Child Custody Attorney

“I endorse this lawyer. Attorney Miller is an outstanding attorney with an exceptional reputation. He is one of the best lawyers in his state and a credit to the legal profession. If I was arrested for drunk driving I would call him immediately. He is the best of the best.” — Howard Lewis, Divorce and Separation Attorney

“Robert Miller is one of the go to criminal defense lawyers in Southern California. He is knowledgeable, respected by his peers legal community, and is dedicated to her clients. Robert is effective in dealing with judges and opposing counsel. Without reservation I endorse this lawyer.” — Randall Longwith, Criminal Defense Attorney

Avoid or Minimize California DUI Penalties

Orange County DUI Lawyer Robert MillerCalifornia DUI Penalties Can Be Serious. Attorney Robert Miller has handled thousands of cases, and has achieved positive results for many clients in a wide range of circumstances. Our first step is always to thoroughly examine the specifics of your case for flaws or violations of your rights that will allow us to secure a dismissal. If that isn’t an option, we’ll fight for the least severe California DUI penalties.

You owe it to yourself to get help now. Contact us today.

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What to do if Arrested For DUI In Orange County

Help! I’ve Been Arrested For DUI In Orange County.

Arrested for DUI? What to do if Arrested For DUI In Orange County – You need the best Orange County DUI lawyer standing behind you at your court appearance. With over 23 years of experience in Orange County DUI Defense Practice, Miller & Associates is your best choice.

DUI Lawyer Robert Miller has handled thousands of DUI cases just like yours—and while this is certainly a stressful time for you, it’s another day at the office for him. Let Robert Miller’s experience and professional expertise guide you to a successful conclusion of your DUI case.

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If you’ve received a DUI, let the best DUI lawyer in Orange County take your case. We have a history of dismissals, trial wins, and negotiated cases in favor of the client, and you can rest assured that your case will be never be simply handed off to another lawyer during trial preparation or during the course of your case. What to do if Arrested For DUI In Orange County is where we can help — We conduct thorough investigations of the evidence against you, in order to determine the best course of action for your success.

Practical, Hard-Working DUI Defense Lawyers In Orange County

Miller & Associates have handled 5000+ Orange County DUI cases, with successes at the DMV and in OC courts. We help clients win back their driving licenses at the DMV and get driving again. Helping you beat your case is our top priority—that’s why we’re considered the best Orange County DUI lawyer you can work with.

What Can I Expect If I Choose Miller & Associates?

About Us Robert Miller Associates Law Firm

When you choose to hire us for your case, we will begin with a free, detailed case review from the Orange County DUI attorney who will be dedicated to your case. We offer honest assessments of your potential outcome, based on our experience in the industry. We will inform you of our responsibilities and expectations. You will have direct phone and email contact with your Orange County DUI lawyer during the entirety of your case.

We provide cutting-edge scientific education on breath testing, blood testing, and field sobriety testing. We will review the maintenance, calibration and accuracy of breath tests and blood tests to ensure trustworthy results. We will challenge an illegal arrest or stop, investigate police video for your defense, and review and challenge every aspect of your case. A win for you is a win for us.

We dig deep into your case to ensure that your arrest and the charges against you are fair, legal, and true. This means that we look closely at every fact in your case, and challenge each one of them. From the reason you were pulled over in the first place, to the tools and nature of your field sobriety test, we leave no stone unturned.

What to do if Arrested For DUI In Orange County – Being arrested for DUI in Orange County is something we do not take lightly—that’s why our clients have called Robert Miller the best Orange County DUI lawyer, and how we have helped so many people with their DUI case.

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Why Is Robert Miller The Top Rated DUI Lawyer In Orange County?

Orange County DUI Lawyer Robert MillerOur clients and peers have given us top ratings and reviews to solidify our place among Orange County DUI lawyers. Our attention to detail and dogged determinedness to tackle every charge against you make us winners in the courtroom.

We have a proved track record of keeping our clients out of jail, helping them avoid losing their driving privileges, and reducing charges and sentences. Our DUI lawyers have practiced in Orange County courts for more than 20 years, and we’re ready to put our experience to work for you.  Find out what to do if arrested for DUI In Orange County.

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SCRAM Violations caused by Alcohol False Positive

Orange County SCRAM ankle bracelet

SCRAM Violations caused by Alcohol False Positive

SCRAM is an alternative to jail time in DUI cases.  It works by measuring the skin for the presence of alcohol through an ankle bracelet.  Because of how it works, it shows a judge, or a probation officer, that the person has been sober, and abstained from alcohol during the time period that it is worn. SCRAM Violations caused by Alcohol False Positive can be defended against, however.
SCRAM bracelets are supposed to be tamper proof.  But it is not uncommon for persons wearing the devices to try to interfere with the device, by placing plastic wrap between the skin and the machine, lunch meats, like bologna, or lotions or oils.
Some persons facing a SCRAM alcohol reading in the past have claimed that cleaning products, or medicines (like cough syrup, which has alcohol), or working around alcohol caused a false positive for the SCRAM device.
In most cases, a term of the sentence or probation that avoids jail time is to have no SCRAM readings, or any indications of tampering with the device.  A tampering is considered a false reading.
Alternative Sentencing for DUI - Scram
Judges, when dealing with false positive claims, are not terribly impressed with tampering claims by the prosecutors or probation when there lacks simultaneous evidence of drinking or an admission that someone consumed alcohol.
The way that a tampering issue comes up is that the IR (Infrared) sensor reports a change in the voltage reading outside of the variance for a period exceeding 8 hours. Readings are taken every half hour. The variance is supposedly unique to each bracelet and each individual. In one recent tampering allegation, the variance was about 15% from the running baseline voltage with a variance expressed in percentages as 12%. The baselines are set when the bracelet is first put on the client of the DUI lawyer.
As an Orange County DUI specialist, we receive a graph that shows transdermal alcohol present when they put the bracelet on a client, typically right after he or she leaves their probation office and gives a clean urine sample.
They give you a “report” about the alleged violation. The report looks impressive, but it’s only a piece of the puzzle. They give you chunks of data but not the whole thing.  The best thing to do to handle SCRAM violations is to hire a consultant and send a subpoena to the manufacturer (the largest manufacturer for SCRAM is AMS), for all of the IR voltage data for the history of the instrument, and any error logs, an d all calibration and maintenance records.
SCRAM ankle bracelet orange county jail
As you might expect, the manufacturer sometimes pushes back on information requests.  They don’t want their reputation to suffer with the court. Many manufacturers have an installer and “middleman” for the court or for probation.
Many installation companies have policies that guide an officer on how they decide what a violation is. Often, that is a criteria that differs from provider to provider.
Orange County Probation Officers usually try to help facilitate getting the data and can even subpoena engineers from AMS or elsewhere to testify b. Engineers will usually acknowledge that the data from one of the reports could have been consistent with a sock blocking the IR from the top of the instrument and slipping off – which might have been exactly what happened.
The IR sensor is located near the top of the SCRAM instrument. If the wearer wears a sock – it could quite likely interfere with the IR voltage readings and trigger a tampering claim.
The witness testifying from AMS delivered the data and showed up with it at court. Of course, they brought it out in the middle of the hearing. The best approach was to have the engineer use the data as the key to tell the difference between instability of the instrument and an actual statistically-significant change in the IR voltage that is evidence of interference.

Winning allegations of SCRAM Violations caused by Alcohol False Positive

The judge in the above case case told the client that there was no violation but the judge thought it would be a good idea to write an essay.  He had to continue to wear the SCRAM as a term of DUI probation. Even with a finding of no violation he still had to write an essay.  Accepting that was the lesser of two evils.

SCRAM Violations caused by Alcohol False Positive often can benefit from the use of an expert witness in a DUI case. We usually  ask our expert witness (a forensic analytic expert) to analyze the data. He plots it in no time flat (50 pages) in most cases.  The IR sensor fluctuates wildly in some cases, which results in probation violation dismissals.

Our approach to allegations of false positives for SCRAM devices

We find our law firm fighting over SCRAM malfunctions for our clients more and more. We’ve put some protocols into place, and they have made the fights on behalf of our clients a little easier.

First, every single one of our clients who needs to get a SCRAM installed is directed to the SCRAM page on our website, and it tells them this:

Unfortunately, SCRAM has the same unreliable factors as all monitoring systems, and one of those unreliable factors is the human element. If you take part in SCRAM monitoring either as a pre-plea condition or as part of sentencing, please take these common-sense precautions to make sure nothing happens that could get you in trouble:

1.  When you have the SCRAM device attached to your ankle, you will also be signing a contract. Make sure that the serial number on the device matches the serial number on the contract. Then, before they attach the device, take a picture of the serial number on the device. Send your attorney (us) a picture of the serial number and a picture of the contract by email so that the matching numbers are effectively time-stamped.

2.  Don’t ever place anything between the device and your skin. No lotion. No socks. No leggings or sweatpants – nothing.

3.  If the device is acting strangely or if you have any reason to believe that it is registering an alcohol or tamper event, contact your attorney at our law firm immediately. He or she may want you to get a urine screen done to show that there was no alcohol intake on your part, but you need to get the screen done quickly. We usually send clients to Quest Diagnostics when we need a quick screen done. It is not cheap, but it is a lot less expensive than a SCRAM violation.

This eliminates anyone saying that nobody told them not to put a sock between the device and their leg. In addition, every time one of my clients has to go on SCRAM, I send the SCRAM rep an email that says something like this:


I represent John Doe, who is required to have a SCRAM CAM for 90 days pursuant to a sentence imposed by Hon. Judge, in Orange County Superior Court. You can reach Mr. Doe at (585) 555-1212 to schedule an appointment.

I am also writing to ask that I be notified immediately of any tamper events or alcohol detection events. If there is any sort of event that would need to be reported to the court, I need to know within 24 hours so that I can ask Mr. Doe to get a urine screen from a certified lab. Because the SCRAM does not tell the client when it is detecting an event, I kindly request that SCRAM notify me as soon as practicable, but in no case more than 24 hours after any such event.

This way, and this is important, when we land back in court because of an alleged violation, I either have a lab test that I can show the judge, or a question about why we weren’t notified so that we could have had a screen done. These precautions have helped me get a couple clients out of jams.

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The court in Newport Beach (the Harbor Justice Center) is very familiar with the use of SCRAM in DUI cases, as an alternative to jail.  We are familiar with not only DUI, but as DUI Lawyers Orange County Newport Beach, CA, we know how SCRAM DUI probation violation cases are handled there.  If you have any questions for us, contact us today.

How much is a DUI fine in California?

Cost of a DUI

How much is a DUI fine in California?

It is no secret that a DUI in California can be expensive.  A common question for people that have just been arrested in Orange County, CA for DUI is “how much will a DUI cost?”

In California, the minimums and maximums for a DUI are set by California law.  The minimum fine set by law for a DUI is $390, and the maximum is $1000.

However, there are other fees, costs, and fines that you have to take into account if you are facing a DUI. If you show up, without an Orange County DUI Lawyer, and plead guilty in Orange County at your OC DUI arraignment, and are sentenced by the judge to just the minimum punishment, you would be facing the following minimum fees:

  • $390 Base Fine;
  • Penalty assessment (a tax) of 280% of the base fine, or
  • $100 Alcohol & Drug Assessment Program fee (pursuant to Vehicle Code 23649);
  • $50.00 Alcohol Abuse Education fee (pursuant to Vehicle Code section 23645);
  • $50.00 DUI Lab/Blood Alcohol Penalty (pursuant to Penal Code 1463.14(b))
  • $150.00 Probation Revocation Restitution Fine (pursuant to Penal Code 1202.44);
  • $40.00 Court Operations Fee per convicted count (pursuant to Penal Code 1465.8);
  • Criminal Conviction Assessment Fee per convicted count of $30.00 per misdemeanor/felony and $35.00 per infraction (pursuant to Government Code 70373(a)(1));
  • DNA fees to the Orange County District Attorney for DNA collection and testing of $150; and
  • Booking Fees to the Police Arresting Agency of between $195 and $362.

Booking Fees for an Orange County DUI

The booking fees are especially noteable in an Orange County DUI case.  You are ordered responsible for booking fees and will be ordered to pay those, although they are technically not part of your sentence, and not paying them would be a civil matter between you and the police department, not a probation violation or something that would cause you problems with the court.

For Orange County DUI cases, the following booking fees are common:

  • In Irvine DUI cases, you would owe the Irvine Police Department booking fees in the amount of $195 dollars;
  • Laguna Beach DUI arrests are $195 also;
    The Orange County Sheriff’s Department is $235;
    Costa Mesa DUI arrests are $280; and
  • Newport Beach DUIs have a booking fee that is a whopping $362.

(Judge London, the arraignment judge in the Orange County Harbor Justice Center Newport Beach Courthouse always jokes that that particular department “must give a balcony with an ocean view, cater your meals from the Ritz Carlton, and have the officer give you daily massages to justify those fees”.

How much are costs other than the  DUI fine in California?

How much does a DUI cost first time

In addition to those fees, there are fees outside of the court system that you are responsible for.  Those include the following:

Insurance increases.  Insurance rates are based upon a number of complex factors, including your car make and model, the number of miles you drive, your gender, age, and zip code.  But a DUI is a two point violation, and so for the three years that your SR-22 proof of insurance is required, your insurance can increase between 10% and 50% per point.

Alcohol school.  The alcohol program or school can be costly, and for first time offenders, a three month, six month, or nine month alcohol school is required.  Those fees are as follows in general:

  • Three month alcohol school: $555
  • Six month alcohol school: $866
  • Nine month alcohol school: $1123

For someone with a Second Time DUI in Orange County, the multiple offender program is $1589.

If you need the help of an Orange County DUI Attorney to reduce fees in your case, feel free to contact our law firm.  Handling DUI cases in Orange County, California, is our specialty.

OC District Attorney funding for DUI Drug cases

Drug DUI Cases

OC District Attorney funding for DUI Drug cases

A press release from the Orange County District Attorney’s Office (OCDA) from yesterday (11/16/2017) indicates that the office received money from two grants from the California Office of Traffic Safety (OTS) for a DUI Training and Vertical Prosecution Program. The OC District Attorney funding for DUI Drug cases is to fight drug DUI cases all over Orange County.

The OC DA’s office was given $672,500 for the Alcohol and Drug Impaired Driver Vertical Prosecution Program and $594,600 for the California Traffic Safety Resource Program Training Network.

OCDA has been working with OTS Traffic Safety grants and funding to fight driving under the influence of drugs (DUID) cases specifically since 2011.

With the decriminalization of marijuana, California expects to see a rise in the number of drug-impaired driving cases that will be investigated and prosecuted by law enforcement.

In Orange County, the crime lab reported a 40 percent increase in drug-impaired driving submissions from 2015 to 2016.

In 2011, OCDA developed a new system to prosecute DUI drug cases.  That involved a multi-agency collaborative DUID prosecution, investigation and toxicology model which has served as the innovative foundation for the development of a statewide DUID program.

In October 2016, OCDA expanded their training role to the Southern California region, serving as the lead agency in prosecution and law enforcement training.

This includes the delivery of live training, roundtables, training videos, and legal updates.

In 2017, OCDA began to develop a California statewide training program through its administration of the Traffic Safety Resource Prosecutor (TSRP) and training program.

As part of this process, OCDA has begun to align law enforcement and prosecution agencies throughout the state to create a massive statewide training, resource, and education network. This new responsibility offers agencies throughout the state the opportunity to share expertise in the area of traffic safety as the OCDA works in partnership to proactively investigate and prosecute traffic-related crimes, increasing public safety in all jurisdictions throughout California.

As part of this grant opportunity, OCDA maintains eight vertical DUI-Drug prosecutors assigned throughout the county.

These deputy district attorneys review, file and prosecute all drug-impaired driving cases. Collectively in the 2017 grant year, OCDA prosecutors reviewed 1,060 DUID cases and charged 925 of them. Many of those cases are still pending, but in the 2017 grant year, our vertical prosecutors obtained 522 convictions on DUID vertical prosecution cases.

This year, the eight prosecutors assigned to the program are Deputy District Attorneys Mina Said and Alyssa Staudinger of Central Justice Center, David McMurrin and Dalia Wahab of West Justice Center, Lauren Boyd and Vincent Marinaccio of Harbor Justice Center, and Erin Henry and Stephen Ladsous of North Justice Center.

The Orange County District Attorney’s office realizes that the unique nature of driving under the influence of drug cases, which are rapidly rising in number, requires unique education, training, and handling, hence the specific, specially trained drug DUI prosecutors.  Drug DUI cases also benefit from someone specially educated in Drug DUI handling, like our Orange County DUI Attorney.

Contact our firm for a consultation regarding a drug DUI case today.

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Can a DUI keep you from a job?

One of the questions that our Orange County DUI Attorney gets asked most often is, “can a DUI keep you from a job?” That is, can a DUI conviction actually prohibit you from being hired for employment?  Usually, the answer is complicated, as it depends on what type of job and how relevant the DUI is.  However, there is some good news as of September 2017, for DUI convictions.
During September of 2017, the California state legislature passed a bill making it unlawful in most cases to ask about a job applicant’s criminal history.  The measure now sits with Governor Jerry Brown, who is expected to sign it later this month.
The new law would stop businesses with five or more employees from inquiring into a job applicant’s criminal history in writing, verbally, or otherwise until after extending a conditional offer of employment.
If a criminal background check then yields any result that concerns the employer, it must consider whether prior offenses have a direct, actual relationship to the employment position that is being offered.

Businesses that subsequently decide not to move forward with an applicant after a criminal history check must provide him or her with its decision in writing.  Persons rejected for a job would then have the right to file an appeal with the Department of Fair Employment and Housing, which would investigate further. Having the decision in writing makes it easier to win a labor or employment case where there was a decision that was made in bad faith or against the law.

When the new law goes into effect on January 1, 2018, California will become the tenth state to ban criminal history inquiries for private employers.


(City and state data compiled by The National Employment Law Program.)


These are known as “ban the box” state laws (referring to the “have you ever been convicted of a crime?” checkbox on job applications) and have enjoyed bipartisan support at the state and local level. Last spring, a bipartisan group of Congressional lawmakers went as a far as to propose a nationwide ban.

In just 2016, Louisiana, Missouri, Oklahoma, and Wisconsin have all enacted policies applying to either private or public employers. In total, 26 states and over 150 cities and counties have laws and ordinances limiting employers’ access to criminal history—meaning that over 211 million people (or two-thirds of the U.S population) now live in ban-the-box jurisdictions.

Can an expungement of my DUI help?

An expungement of your DUI may still help you.  But since a DUI leaves not only a criminal record but a driving record, certain driving related jobs might be difficult to obtain.  An expungement will also not help you with certain federal or state employment opportunities, or with any specialized licenses.

Contact us for Questions

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Our team of Orange County DUI Lawyers will continue to monitor

the status of the California bill and similar measures nationwide. We can help fight your DUI case to meet your long-term goals, wherever possible, to protect your career ambitions in the future, and not let a DUI derail your plans. Contact us anytime.


What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

Often, people feel that their DUI involved entrapment by the police.  In criminal law, entrapment exists where the actions of a law enforcement officer make a person commit a crime that they would have otherwise been unlikely to commit.

What if the police used entrapment in my DUI? Entrapment is defined by one source as “the conception and planning of a crime by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.”  Translated from legalese, that means “you wouldn’t have done it if the police hadn’t set you up.”

The most common example in a DUI case is where an officer suspects that you were driving under the influence of alcohol or drugs, but you were no longer driving your car, or your car was already stopped.  The officer then asks you to move your car, and since that is “driving”, they then arrest you immediately after doing so. Entrapment is an area that law enforcement does not like to talk about, as it implies police corruption. However, there is evidence that police officers have attempted to “trap” drivers in exactly this way in order to achieve a conviction.

What is used to prove Entrapment in a DUI?

The jury instruction in California instructs that it is the defendant’s burden to show entrapment.  The instruction read in trial states as follows:

Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.

A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. “

In one case in California, People v. McIntire, the court mentioned that third parties that are asked by the police to have the defendant do the illegal act can also constitute entrapment, stating:

“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator. [Citing another case}, ‘The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime.’”

What if the police used Entrapment in my DUI? Usually, the defense of entrapment doesn’t mix well with the law in DUI cases, because the law considers a defendant voluntarily consuming alcohol (or drugs, for driving under the influence of drugs (DUID) cases), to be a contributing factor of the crime of driving under the influence. There is a defense of involuntary intoxication in a DUI case where a person was dosed with drugs or alcohol without their knowledge, however.

The courts consider that defendants are free to say “no” when asked to drive a vehicle under the influence, even if they may not know that fact. Officers who use violence or threats of violence to make the defendant drive are a different situation since in that case, the driver would not feel free to walk away.  And driving under the influence because of a legal necessity to avoid a crime is recognized as a defense.

Contact us for questions.   Orange County DUI Attorney Robert Miller is experienced with DUI defenses, and the court system in Orange County, and can ensure you receive the best possible representation if you have been charged.

Contact our law firm today

Contact us today.


Should I go to AA to help my DUI case?

Should I go to AA to help my DUI case?

Should I go to AA to help my DUI case?

Clients often ask if they should go to alcoholics anonymous, or AA sessions, before their court date for their DUI, asking, “Should I go to AA to help my DUI case?”

Unfortunately, there is no “one size fits all” answer to that question.  On this page, we will discuss how AA may, or may not, help you with your DUI case, along with the recommendations from our Orange County DUI Attorneys

What is Alcoholics Anonymous?

Alcoholics Anonymous (AA) is actually named after a book.  The book, Alcoholics Anonymous: The Story of How More Than One Hundred Men Have Recovered From Alcoholism“, is known as “The Big Book”.  The book was written by William (“Bill”) Wilson, whom members of AA often refer to as “Bill W.” The group was founded in 1935.

AA uses the “Twelve Steps” — which are development steps,  along with social interaction, support, and communication with other members, including “sponsors”.

AA has been wildly successful, and it’s unlikely that you haven’t heard of it somewhere.  Many similar programs like Narcotics Anonymous also use the Twelve Steps as part of their programs, many of which are based upon AA’s structure.

Does AA Work?  Can it help?

Many have criticized AA for not keeping, collecting, or allowing statistics on their effectiveness.  Studies of people volunteering to report on effectiveness have shown that there is often no correlation between AA attendance and complete and continued sobriety, and sometimes inconsistency.

Many scientists looking at addiction issues, and the body’s mechanism of addictions, critique AA for not being as effective as other options.

Problems with AA being faith-based or requiring religion

Some have greatly criticized AA for being faith-based.  For example, the second and third, fifth and sixth of the twelve steps are as follows:

Four: We came to believe that a Power greater than ourselves could restore us to sanity.

Five: We made a decision to turn our will and our lives over to the care of God as we understood Him.

Six: Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

Seven: Were entirely ready to have God remove all these defects of character.”

The fact that AA requires belief in a higher power has led some to conclude that courts have a first amendment problem in recommending it since that might violate the 1st amendment prohibition on the endorsement of an official religion.  Judges get around that by requiring AA only as a bail requirement and allowing conditions of “any self-help classes”, which opens it to other options that are not strictly faith-based.

What alternatives are there to AA?

Other than AA, there are the following options (among others), that are alternatives to alcoholics anonymous:

  • Life Ring (a secular group which is popular with our clients, because they have online meetings)
  • Rational Recovery
  • Celebrate Recovery (faith-based and usually through a member church)
  • Secular Organizations for Sobriety (SOS) 
  • SMART Recovery
  • Women for Sobriety


What takes place in AA meetings?

AA has two types of meetings – closed, and open.  In open meetings, which are, as the name implies, open to everyone, according to one account, you can find the following:

  1. Initial announcements
  2. The reading of the 12 Steps and 12 Traditions
  3. One alcoholic will come up to the front and share his or her story of strength, hope, and recovery.

On the other hand, closed meetings differ in, that, in addition, to the above, you will find (after the above portions of the meeting), a group reading or discussion based on one of the steps or traditions, or a topic related to recovery.

How can Alcoholics Anonymous be helpful in a DUI case?

AA can show commitment to sobriety.  By being around others that are able to support and help you in the path away from alcohol, that puts you on the road to recovery, you can help assuage the fears of the court, the prosecutor, and your defense attorney that you may relapse, and face another crime.

Unlike SCRAM or other monitoring devices that are work around the clock, it does not monitor sobriety, however, or provide any alternative sentencing for jail time in a DUI case.

What is a DUI lawyer’s recommendation regarding AA meetings?

As a firm of DUI lawyers in Orange County, having handled thousands of DUI cases in over 23 years of practice, we have seen many clients helped by AA and similar programs, and others that have not.  Our recommendation is to be honest with yourself, and to get into AA or a more intensive program right away, if you feel you need to, or if you feel you have a problem.  Should I go to AA to help my DUI case? Only you can make that decision for yourself.  But if you decide you need help, AA can be an important first step, or for many an ongoing component of other support structures to keep you clean.

Where can I find AA meetings in Orange County, California?

Orange County has its own directory of all the AA meetings in the county.  You can find it at: http://www.oc-aa.org/directory/meetings.asp

How can I discuss AA and how it can help in my case?

Contact our law firm today

Contact us if you have questions about an Orange County DUI case, or if you need the help of our law firm.  We can help answer questions for you about whether AA can help your DUI case.  We are here to help you.




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