December 6, 2015
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Should I get a lawyer for a second time DUI?
Second Time DUI – Do I need a Lawyer?
A common question is, “Should I get a lawyer if I am charged with a second time DUI?”
As I’m sure most people are aware, a second time DUI, like any other charge, has a minimum and a maximum punishment, which is a huge range – anywhere from 96 hours to one year in jail. Plus there is an 18-month mandatory alcohol school, and fines and fees to the court, plus payments to the alcohol school and an insurance increase that is fairly expensive.
Since there is so much at stake, it is generally in your best interests to closely examine and fight all that you can when it comes to your case.
Should I get a Lawyer if the Police Didn’t have a Reason to Stop Me?
The probable cause, which is especially important in any case, is often listed as “speeding” or “weaving”. Aside from being vague, it may not meet the requirements of the law.
There exists a DMV memo to all police officers and agencies regarding valid probable cause, after the case of Solovij v. Gourley (now depublished), was decided. As mentioned in that case and in the DMV memo, it is not enough to state “speeding”, as there must be a legal foundation to conclude speeding. Under the law, that is shown through introducing a properly maintained and calibrated measuring device – a speedometer used for pacing a vehicle, or a laser or radar device.
It is interesting that speeding is specifically listed in the NHTSA manual used to train all police officers in field sobriety testing in the United States as not indicative of DUI. As the manual states, “Alcohol is a depressant, and drivers are more likely to drive slowly under the influence, rather than speed.”
Weaving, likewise, has to be descriptive. Weaving that takes place within a lane is not illegal. Even weaving outside lane lines has to be, under the statute, a danger to other drivers on the road. None of those elements are met, or proven, from the documents you sent me. Especially with weaving, the existence of a patrol car video could help or hurt in proving a violation of the law.
Looking closely at the probable cause could lead to a motion to suppress evidence if there was an invalid stop. The probable case in a case, whether weaving or speeding or both, must be well proven. A motion to suppress evidence, as it suppresses all evidence after your stop, would cause a dismissal of the case, so it would be especially important in your case. Even if you do not win the motion, filing and bringing the motion usually gives leverage for a negotiation in your case above and beyond what others may get for the same facts in cases like yours.
Should I Get a Lawyer to Challenge a Breath Test in a DUI?
Looking closely at the breath machine also, likewise, can get you a lot of mileage out of your case, as it can result in a finding that the breath machine testing results were invalid, which can exclude the breath test, the strongest evidence against you. Excluding the breath results could result in a complete dismissal of your DUI case and certainly would give you better negotiating leverage as well.
Likewise, with the breath machine used for your breath test, an attorney should subpoena or request via discovery the breath maintenance and calibration records, to make sure that the machine was accurate. Under California law, machines are entitled to a .02% margin of error, so your testing results could be as low as a .06% and as high as a .10%, and still be considered accurate in testing a .08% alcohol test result. Many breath machines are miscalibrated even more than that, which renders the values of the test invalid entirely.
Should I Get a Lawyer to Plea Bargain in a DUI case?
Finally, regarding plea bargain negotiations in a DUI, you or your attorney will want to make sure to personalize you as much as possible, so that the prosecutor doesn’t just see you as just another case number. I usually help collect character reference letters, get proof of volunteer service or steps towards sobriety (including your AA classes, or other steps), and get copies of your resume, or school transcripts, to show that you are on a good path, and that a conviction and punishment might derail you, and to assuage fears from the prosecutor that you might get a third DUI.
The goal is to dismiss wherever possible, or negotiate away the prior or negotiate to a lower charge, or, if neither of those are possible, negotiate using mitigation evidence to reduce the punishment, including jail time, as low as possible, and then convert any punishment to alternative sentencing (including sobriety programs, alcohol monitoring, gps or electronic monitoring, weekends, community service, or private punishment programs).
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