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     Before you hire any lawyer for your defense, read the information below.

Will We Learn MADD?

     In Salem, Massachusetts, early in American history, a good lesson was learned. What MADD should learn before they continue their pursuit of zero tolerance for all drivers is:

"When a community looks only for evidence of guilt and ignores or suppresses all contradictory evidence, the result is a witch hunt.  And a witch hunt was developing in Salem as the community felt itself so beset by evil that it was no longer capable of perceiving the good."

    You have just been arrested and charged with drunk driving, a criminal offense. You probably spent a few hours in jail before they released you with a ticket ordering you to appear in court, or you may have posted bail. If you were lucky, they only gave you a citation. But your car may have been impounded, or perhaps they plan to sell your car because you were driving with a suspended license (the Government keeps the profits).

    That's why it's best to let a defense attorney handle all the pressure. We're here, and the fees aren't all that much. But remember, you don't hire a gunslinger by the bullet. DUI law is very political and the system can be held wickedly against you even if you may be innocent of the crimes charged. That's because DUI became a hot political issue when MADD began its demonization of "drunk drivers" in the 1980's. Nowadays, the limit is so low that the danger of convicting innocent people (technically by law) is high.

    There are severe penalties for DUI and associated crimes. The California Penal and Vehicle Codes set forth mandatory jail sentences, fines, classes, probation, and other sanctions as punishment. You can also be subject to "enhancements" (extra punishment). It depends on the charges, and more importantly, the facts of your case.

    Remain tough and don't be cheated in the process. Legal representation can prepare you for success in the court and DMV processes. Know these processes by following these important tips:

    Don't talk about your case with anyone except a criminal defense attorney. What you tell your defense lawyer is confidential. If you discuss your arrest with friends or family, you risk harm to your reputation, loss of job, and the potential that friends and associates will be called to testify against you. Because every case is different, the law wants you to confide only in someone with the expertise and license to assist you.

    It is in your best interest to remember the details surrounding your arrest. Take this DUI defense quiz and fill out this DUI defense interview before interviewing with any lawyer. It will greatly assist you in your defense. You must get mentally prepared for what's ahead.

    In any criminal case, you must be represented by a competent defense lawyer, whether appointed by the court, or paid for by you or your family. You may choose a lawyer, get the public defender/appointed defender, or, risk the consequences of representing yourself.

    By hiring an attorney prior to court, you won't miss deadlines (especially at the DMV), and you can avoid ever having to go to court in misdemeanor cases (California Penal Code §977). Most of the time (if you're represented), you won't need to appear until a resolution has been reached.

    Judges won't know what you want to do unless someone educated in the law speaks for you. Many times, overworked prosecutors use inexperienced, or overzealous law enforcement officer's reports to over-prosecute a case. Defense attorneys are aware of these tendencies and are trained to handle such situations.

    If you are eligible for a court appointed defender, simply ask the judge for one on your first court date. If you convince the judge to let you be your own attorney, s/he must allow this in most cases. However, this is never recommended. As the saying goes, "He who represents himself has a fool for a client."

    Court appointed (free or low cost) lawyers are available to you, and each county has guidelines for determining this. In some counties, you have to pay for your appointed lawyer after a hearing about your employment and living habits. Advise the court of your true financial situation when seeking the public defender, or you may be charged with additional violations above and beyond what you are now accused. If you don't want a public defender, speak up immediately before you're  obligated to pay for the defender's services.

    In all DUIs, seek representation quickly. You should interview immediately after arrest, if possible (you have a 10 calendar day deadline after arrest).

"Most DA's ... (push) ... as hard as they can – ... past what the Constitution will tolerate – to put away criminals for as long as the legal system permits . . ." San Francisco Magazine, Crime, No Punishment November, 1997, emphasis added

 

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    All California criminal cases begin in the municipal court of the county in which you were arrested. The District Attorney (DA) receives and reviews the police officer's report to decide whether to prosecute you. In many counties, police reports in DUI and associated crimes are routinely filed.

    The DA knows that if you are not represented by a lawyer, you'll probably plead guilty either because you "feel" guilty, or just want to avoid going back to court. This means that you can be convicted of something worse than for what you've been charged. Do you really think the prosecutor has your best interest in mind? Since the police arrested you, you must be guilty of something, right? Wrong! Too many innocent people have been jailed after making a wrong decision too soon after arrest.

    In many counties you will face a "DUI" court. This is an assembly line for prosecution and conviction. Beware. Only a local defense attorney will know how to maneuver you through these legal mine fields.

Don't make the mistakes commonly made by DUI arrestees.

    When charges are filed against you, your court case begins. This is your first opportunity to investigate the case, since they will only turn over the reports to you at this first appearance. You must be in court on the date ordered on your paperwork, unless you get a lawyer. The date cannot be changed and the case cannot be transferred to your county of residence, except in very rare situations. If you or your attorney do not appear, the judge will issue a warrant for your arrest (if the case is discharged or dismissed, you do not have to be in court).

    You are making a mistake if you wait until your first court date to seek a lawyer. If you are turned down for the public defender, most judges will give you additional time to seek a private lawyer to represent you. Ask the judge for extra time. Don't ask for additional time more than once, lest the judge think you are purposely delaying the case.

    The judge will ask you for your defense (your "plea"). Say you want a lawyer, nothing else. Attorneys typically plea you "not guilty" on the first court date to study your case. The police viewpoint is that you're always guilty, but the judge knows different. That's why the judge will tell you to get a lawyer. Be extremely careful when dealing with judges. Most are former prosecutors.

    Most cases are settled prior to trial. Reasons include the police being mistaken, or the poor maintenance on their equipment. Sometimes you just get lucky and fall through the cracks in the system. Lawyers are good at what they do, and sometimes, they can work miracles.

    Crimes are classified as misdemeanors, or felonies. Misdemeanors are not minor offenses. They have a maximum county jail penalty of 6 months to 1 year; felonies more where your time is done in the State Penitentiary. If you're placed on probation in exchange for jail time, more constraints will apply: mandatory alcohol abstinence, driving during restricted times, and/or mandatory submission to warrantless search and seizure of your home, your person, your auto, and even your body fluids for up to five (5) years.

    Most DUIs, suspended license violations, driving without a license, possession of small amounts of marijuana, shoplifting, prostitution, simple assault & battery, etc., are misdemeanors. Injury accident DUIs, injury hit & run accidents, domestic violence and drug possession charges are filed by the DA as felonies. The potential liability to your liberty and property is substantial in either case.

Insurance Rates

    DUIs stay on your record for 10 years. Your insurance rates are directly affected by what happens in the court, and at the DMV. If you lose in court, or at your DMV hearing, you'll need an SR-22 certificate which you'll have to request.

    Do not notify your company now, seek legal advice. AAA Insurance routinely cancels your policy upon notice of a DUI conviction. For this reason, your investment in an attorney is well worth insurance savings over the next 10 years.

    As you complete your odyssey through the criminal justice system, the matter may be dismissed. You may plead guilty or no contest to the original charge, to a reduced charge, or, you may go to trial before a judge or jury to determine whether the State has the ability to prove you guilty beyond a reasonable doubt.

 

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    When driving is involved in your arrest (or citation), your license is also in jeopardy. California's Legislature & Department of Motor Vehicles (DMV) do not care about your need to drive. For all DUIs, simple marijuana possession, other drug charges, and other driving related charges, the DMV will "administratively" punish you by taking your driver's license. Lawyers who handle DUI's and other related DMV hearings understand applicable administrative (DMV) law.

    In order to get a hearing, time requirements must be met. You must call and fax, or mail, the DMV and request a hearing within ten (10) calendar days of your arrest (Download California DMV Fax Request Form, Acrobat Form Reader here). If you don't, you don't get a hearing. This is a terrible thing for your rights and your license.

    Only if a hearing is requested within the first 10 days can the temporary license (pink or other color paper) given to you by the officer be extended if DMV cannot hold your hearing within the first 30 days after your arrest. To drive legally after the 30 days have passed, you must receive a "stay," and another paper extension license.

    If you don't make a hearing request within the first 10 days of your arrest, you forfeit (give up) any right to a hearing, except in rare instances. This process is currently being challenged in the courts as a violation of DUI arrestee's due process rights.

    In a DMV administrative hearing, you do not have the right to a free appointed lawyer. Because DMV hearings are considered civil actions, you must bring your own lawyer. And don't forget, you're presumed guilty at this hearing, so going alone won't necessarily help you.

    In the hearing, the DMV official will act as both prosecutor and judge (a biased position). You have to know the ins and outs of the law, the rules of evidence, your rights, and the applicable laws. Only with these tools can your license be saved  (confirm everything in writing and keep all documents).

    For DUIs, the official will decide:

 1. Whether the police officer had a legal reason to stop you;

 2. Whether the police officer had a legal reason to arrest you; and,

 3. Whether the blood, breath, or urine test result is legally reliable enough to suspend your license.

    Your lawyer will know what laws apply to your specific case, and the chances of winning only go up. You automatically lose if you don't bother challenging your right to drive in the state.

    If the DMV official decides against you, your license will be suspended or revoked. You should appeal through the court system and the DMV immediately if you feel the suspension isn't just.

    Remember: Your rights may be violated even if you have an attorney at your side because the DMV official is both prosecutor and judge. In this case, appeal, or taking a writ, may be your only recourse. In all cases your attorney can file for another extension of your right to drive, however  judges seem to be reluctant to issue another since politics often govern their decisions where DUI is involved.

    If your license is taken by the DMV official, DMV's computer automatically suspends or revokes your license on the date the official selects. If you continue to drive, you face a minimum 10 day jail sentence. An attorney can advise you whether an appeal would benefit your case.

    In DUI cases, you or your attorney must contact DMV to schedule a challenge to the suspension or revocation within 10 calendar days of arrest. Remember, in order to lose your license, the State must prove its case by a preponderance of the evidence that your license should be taken. That is why getting legal representation is often more effective and less expensive in the long run.

Urgent Warning for CA arrestees!

 

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    Competence. Listen actively as you interview lawyers. Does s/he make sense? Does s/he specialize in the area of law you discuss? How about recent specialized training in the relevant areas?

    Affiliations. Does the lawyer belong to defense attorney associations that give credibility to their DUI talking points. Common defense lawyer affiliations are:

A.C.L.U., Local Bar Associations (Los Angeles, Alameda, San Francisco, Sacramento, Fresno, etc.), Assoc. of California Deuce Defenders, California Public Defenders Association, California Attorneys for Criminal Justice, National Association of Criminal Defense Lawyers, National College for DUI Defense, & the American Bar Association.

    Someone you can trust. Can you speak with and trust the attorney you interview? Do you feel relieved and free to talk? Were you "talked down" to, were you treated with respect?

    Have any complaints been made against the attorney in the past? Does s/he do what they say they will do? Did they show up for your appointment on time? Use common sense.

    Experience & Skill. Does the lawyer have experience in the criminal justice system? What experience in the system does s/he have? If the lawyer holds himself out to be a "specialist," s/he must have passed a special examination given by the State Bar of California. There is currently no category for DUI specialist, although such expertise will help win your case.

    Criminal Defense or DUI Attorney. Because DUI is one of the most frequently charged offenses against the average, everyday citizen, some attorneys specialize in DUI matters. Criminal defense attorneys represent you in DUI and other criminal matters as well.

    Reasonable Fee. Attorney fees are always negotiable in criminal and DUI cases. Fees are usually paid up-front or in payments prior to the end of the case. Many attorneys will accommodate an individual's special circumstances and you should always inquire about the ability to pay over time. Most attorneys will allow this if you have to go to trial due to an uncooperative prosecutor.

    What about costs? Ask before you sign. You should have clear questions about your matter at the consultation. Expect your attorney to be a communication expert. Expect to understand and be understood. Expect a thorough interview about the facts of your case. Ask questions and tell the attorney all of your concerns.

    What do Attorneys do? DUI and other misdemeanor matters take at least two or more appearances before trial, let alone out-of-court time. Does the fee include a discovery motion, a motion to suppress, a recusal motion, or a motion to dismiss? Does the fee include trial? Does the fee include the DMV hearing? Every DUI case must challenge the state's taking your license or you automatically lose.

    What to do next. Get a written quote and seek a second opinion. A retainer agreement is a legal contract that binds you to certain obligations including paying an attorney a fee. Sign a contract only when you feel sure about the attorney of your choice.

    Non-refundable fees. Many attorneys quote a flat, non-refundable fee for legal work on your case. This is legal in California because the attorney is setting aside valuable time for your matter and most likely giving up other business. Before you sign on the dotted line, make sure you are certain about your choice of an attorney. Use common sense, and don't forget you can fire your attorney at any time.

Insurance Rate Warning (Insurance and Your Future) "Your insurance rates are directly affected by what happens in the court, and at the DMV. Do not notify your company now, seek advice. AAA Insurance routinely cancels your policy upon . . ." See above

 

Ask any general question you have regarding your arrest There is no obligation in using this service - Free Help !!

 

    All California attorneys are governed by rules of ethical and professional conduct. The State Bar can discipline attorneys who violate these rules of conduct. Anybody can check up on an attorney before they call, interview, or sign on the dotted line. Information on whether an attorney is a certified specialist can also be obtained. A free call to the Attorney Discipline / Complaint Hotline - 800/843-9053 can advise you if the attorney in question is in good standing with the Bar, or you can search for yourself. Information is given in English and Spanish by phone only.

    The State Bar of California offers a free pamphlet: How I Can Find and Hire the Right Lawyer? This is available upon request and on the Internet. In its section, Should I hire the lawyer?, the pamphlet recommends:

    You can decide to hire the lawyer at your first meeting, or you can take time to think things over. You also might want to ask yourself these questions:

Will you be comfortable working closely with the lawyer?

Do you believe the lawyer has the experience and skill to handle your case?

Do you understand the lawyer's explanation of what your case involves?

Does the fee seem reasonable?

    If your answer to one or more of these questions is "no," you probably should talk with another lawyer. If all your answers are "yes," you may have found the right lawyer for you. back to top

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last update September, 2004
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