Lawyer Discussing DUIs with Al Rantel

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Myles L. Berman, a trusted Los Angeles drunk driving and DUI attorney, appeared on The Al Rantel Show to discuss a number of issues about drunk driving, DWI, and DUI arrests. Myles and Al talk in this first part of the conversation about the arrest and sobriety test process. For more information on your legal rights following a drunk driving arrest, contact the skilled Los Angeles DUI lawyers at the law firm of Myles L. Berman.

Intro: Christmas DUI and Drunk Driving Show

Christmas DUI Enforcement and Checkpoints

Refusing Portable Breath Tests and Breathalyzer Tests

Forced Blood Draws to Test Sobriety and Alcohol Level

Can blood tests to measure sobriety by inaccurate?

Are field sobriety tests a flawed way to measure sobriety?

DUI, DWI, and Drunk Driving Attorneys defend the Accused

KABC AM 790 TALK RADIO – AL RANTEL PODCAST – DECEMBER 21, 2007 PART 1

INTRO: CHRISTMAS DUI AND DRUNK DRIVING SHOW

In this first segment of the interview, Al Rantel introduces his annual Christmas DUI and drunk driving/DWI attorney Myles L. Berman, who serves clients throughout Los Angeles and Orange County. Al mentions two acquaintances who received DUIs the night before the interview, both of whom become the focus of drunk driving questions later on.

Rantel: It is our annual Christmas DUI show on The Al Rantel Show with Top Gun DUI Defense Attorney Myles L. Berman. This is our ninth show, Myles, for Christmas.

Myles L. Berman: You know it goes by fast, Al.

Rantel: This is our ninth show and we both look exactly like we did nine years ago… in fact we look better.

Myles L. Berman: To me you do.

Rantel: How are you? You look good. How is your family?            

Myles L. Berman: I’m doing fine, thank you. Everybody is doing fine. Thank you.

Rantel: You still giving them hell down there? We still take calls by the way from Myles. Especially from people that get angry with him. But I got to tell you what happened today because this is really amazing. It shows you what’s going on. This is God’s honest true story. Myles, you’ve been booked to do this show for months, because you know, the last show I’m no the air every Christmas.

Myles L. Berman: Correct.

Rantel: Which is why you’re here.

Myles L. Berman: Right.

Rantel: And we’ve done it for nine years so this is not some planned thing. So today—I know you’re coming on, of course—today my phone rings once in the morning and once in the afternoon. Two different people that I know and they both said, “I got a DUI last night.” And I was like, “Oh my God.” And the next question is—because they all know, you know—after nine years, “How do I get the top gun, because I’m scared,” and I told them I’ll tell Myles you’re a friend of mine and he takes care of all his clients, but I’ll put a word for you. But I was shocked because, what are the chance that two people calling me in the same day? And the day you’re coming on the show.

Myles L. Berman: It happens. You know, it happens. It just can happen to anybody at any time.

CHRISTMAS DUI ENFORCEMENT AND CHECKPOINTS

In this segment of the interview, radio host Al Rantel and L.A. DUI/DWI defense attorney Myles L. Berman speak about DUI enforcement during Christmas and the holidays. To learn more about your legal rights in a drunk driving case, contact the skilled Los Angeles DUI lawyers at the law firm of Myles L. Berman.

Rantel: Are there a lot more arrests this time of year?

Myles Berman: Yeah. You know the weather has got a lot to do with DUI enforcement.

Rantel: How so?

Myles L. Berman: Because when it rains, cops don’t like administering field sobriety tests in the street. It’s just a fact of life that when weather is bad, arrests go down. So my only conclusion is that police don’t like to go outside—

Rantel: Well, the weather was clear last night.

Myles Berman: Now we’re building up to… now they got to make up. So there’s a certain number of DUI arrests that occur annually and monthly and cyclically. And now there is going to be much more DUI enforcement. I have some checkpoint information for you.

Rantel: Oh, you do?

Myles L. Berman: Yeah.

Rantel: Aren’t we in what’s called a period of maximum enforcement? That’s what they call it, isn’t it?

Myles Berman: I’m starting to hear terms like that.

Rantel: Which means they’ve got a lot of people out looking.

Myles Berman: Yes, and economics come into play because the checkpoints are funded by the government and often times checkpoints are multi-agency checkpoints and so they have to not only justify the checkpoints but they have to keep this process going in order to get future checkpoints funded. So in order to get funded they have to show results, so it’s kind of like a viscous cycle.

REFUSING PORTABLE BREATH TESTS AND BREATHALYZER TESTS

In this segment of the interview, radio host Al Rantel and L.A. DUI/DWI defense attorney Myles L. Berman continue their discussion about drunk driving issues. Rantel brings up the situation of his two friends mentioned earlier in the show. The primary focus here is whether or not a driver can refuse an alcohol level/sobriety test.

Rantel: Well, we’re going to talk about all that stuff, but I want to start off by telling you, I asked each one of them what they did last night because you and I have been talking about this subject for so many years. I know the drill and you and I have talked about it and you have given years of advice to people and it’s controversial because everybody is angry about people who drive drunk. But I don’t know. My two friends—well one of them is not really a friend, I just know him. I won’t say how because I don’t want to get too specific but I don’t know if they’re guilty or not.

Myles Berman: They’re not guilty!

Rantel: Right. They’re not. But I’m just saying, you know… but here’s what they did. I always ask people what they did. And one said, “I took the breathalyzer in the cop car and then I took it again when they took me to” —wherever they took him to book him.

Myles L. Berman: Right.

Rantel: And the other person refused the breathalyzer and they took him to the hospital and they took blood. Does that happen? Do they do that? Which person did the better thing?

Myles L. Berman: Let’s talk in generalities. Without referencing any of the two cases.

Rantel: Right, because these may be your clients.

Myles Berman: I’ve been saying for years to not take the portable breath test before somebody gets arrested.

Rantel: That’s the one in the cop car.

Myles Berman: Yes. A lot of jurisdictions are going to using the portable breath test machine as the breath test machine before and then after somebody has been arrested.

Rantel: It’s the same machine?

Myles L. Berman: It’s the same machine and they just flip a switch and one is for evidentiary purposes, which is after the arrest and one is for screening purposes before the arrest.

Rantel: What do you mean, screening purposes?

Myles Berman: To determine what the person’s alcohol level is. Before the person is arrested, for the screening purposes, the machine reads a result, but it doesn’t print out a result. As opposed to evidentiary purposes, not only does the machine give a result, but it also prints out a result. That’s the difference between the two. But the bottom line is that machine, in my opinion, is bogus. It’s based on voodoo science. It’s just not an accurate machine. It’s even less accurate than the machines that the agencies used to use back in the jail. Now some agencies still use the big machine back in the jail, but on the street—I’m talking about anybody that’s over 21. Because under 21 it’s zero tolerance and you’re supposed to take it.

Rantel: Right, you have no choice.

Myles L. Berman: But as far as an adult, over 21, absolutely refuse to take the portable breath test before the person is arrested. So, that scenario that was the correct thing.

FORCED BLOOD DRAWS TO TEST SOBRIETY AND ALCOHOL LEVEL

As the conversation continues, radio host Al Rantel and Los Angeles DUI/DWI defense attorney Myles L. Berman talk about blood tests to check sobriety, how you can be forced to take a blood test, and how the blood tests are used to check alcohol levels. To learn more about your legal rights in a drunk driving case, contact the skilled Los Angeles DUI lawyers at the law firm of Myles L. Berman.

Myles L. Berman: After the person is arrested, they have a choice of a breath or a blood.

Rantel: Oh, okay.

Myles Berman: Now let’s assume that a person refuses a breath or a blood. What happens is often times—I mean enough. If it happens once it’s enough.

Rantel: You can refuse both?

Myles L. Berman: Well, people do refuse and when you refuse, they strap you down at the jail and stick a needle in your arm and draw blood. They hold you down. Those are forced blood draws. So the double whammy on that is—

Rantel: Can they do that, legally?

Myles Berman: In most circumstances, yes. And it’s a double whammy because the DMV is going to consider it a refusal, which means that you’re looking at losing your license for a year with no restriction to drive to and from work or nature and scope of the employment on a first offense. And the court can look at it as a refusal—

Rantel: Can look at what? If they strap you down?

Myles Berman: The forced blood draws.

Rantel: Well that would be a refusal, wouldn’t it? They have to strap you down.

Myles Berman: Which enhances the penalties as well.

Rantel: No, I don’t think my friend was strapped down. I think he agreed to let them take it.

Myles Berman: Well, yeah. And often times people use the delay factor in getting a blood test. I’m not saying it happened in this case, but the delay factor—

Rantel: Thinking it may be lower.

Myles L. Berman: That the longer you go, the lower the alcohol level becomes. Realistically, it may help with the DMV if it ends up under .08, but in court it doesn’t really make that much of a difference because science can predict what an alcohol level is earlier, assuming certain facts. So for our purposes, breath or blood—breath is more inaccurate than blood.

CAN BLOOD TESTS TO MEASURE SOBRIETY BY INACCURATE?

Radio host Al Rantel asks an intriguing question: Can a blood test to measure sobriety be inaccurate? Los Angeles drunk driving defense attorney Myles L. Berman offers some interesting answers.

Rantel: Can blood be inaccurate? How can blood be inaccurate?

Myles Berman: Oftentimes blood—there are so many protocols that the state has to follow in order for blood results to be valid. And there’s other factors as well, without getting into it in too much detail. Then again, if you got a blood draw that’s done an hour after driving, well what was the alcohol level at the time of driving? The state will say at the time it was higher. We can say it was lower in a defense.

Rantel: They can’t use that. Can they use that? They can say, “oh, it was higher.”

Myles L. Berman: That’s what they’ve classically done.

Rantel: What are they, psychics?

Myles Berman: They get witnesses to say at the time of driving—

Rantel: Oh, they’ll say there was more time to burn off the alcohol.

Myles L. Berman: When I say that prosecutors say that, they say that based on witnesses that the government presents. People who work for the crime lab who make their living testifying day in and day out for the government, to say that the defendant is guilty. And oftentimes jurors recognize this for what it is, and they’re just working for the government—

Rantel: Well it would make sense that the person had time to burn off alcohol in between, right?

Myles Berman: Yeah, it would except that if the person just finished drinking before they got behind the wheel of a car, their alcohol level is lower than a test later on, be it a breath or a blood test. So it gets somewhat complicated. And I don’t want to get too, you know—

Rantel: Yeah, we’re not going to get to all of it. So based on what we talked about, you recommend no breath test… at least on the stop in the car.

Myles L. Berman: Before the person is arrested and if you’re older than 21 it’s completely voluntary. The cop has to tell you it’s voluntary and absolutely refuse to take it.

ARE FIELD SOBRIETY TESTS A FLAWED WAY TO MEASURE SOBRIETY?

Radio host Al Rantel and Los Angeles DUI/DWI defense attorney Myles L. Berman turn the discussion to the field sobriety test why it may not be as effective at determining sobriety as one might think. To learn more about your legal rights in a drunk driving case, contact the skilled Los Angeles DUI lawyers at the law firm of Myles L. Berman.

Rantel: And what about the would you touch your nose, and please put your head back, and count backwards, and say the alphabet? The monkey tests, I call them.

Myles L. Berman: The field sobriety exercises, which is what I call them—they’re just that, they’re exercises. There is really no correlation between field sobriety exercises and being able to drive a car. For example, I have never seen anybody driving down the road with their eyes closed, their head tilted back, and trying to estimate 30 seconds.

Rantel: They tell you to estimate 30 seconds?

Myles Berman: Yeah. Close your eyes, put your arms down to your sides. Feet together, tilt your head back and estimate 30 seconds. At that point, life actually stops for people. The surreal experience is just—

Rantel: 30 seconds seems like an hour.

Myles L. Berman: Right, so people are counting and it’s very nerve racking.

Rantel: I’ve heard sometimes, “say the alphabet without singing it.”

Myles L. Berman: Yes.

Rantel: I can do that.

Myles L. Berman: That’s also the song for “Twinkle, Twinkle Little Star.”

Rantel: I know. That’s help.

Myles L. Berman: I told you that before.

Rantel: That’s how I know. I learned everything from you, Myles.

Myles L. Berman: No, I learned a lot from you, but on that I think I may have—

Rantel: You did.

Myles Berman: But anyway—yeah, say the alphabet—and sometimes they stay start with the letter E.

Rantel: Start with K.

Myles L. Berman: Later in the alphabet, so in their minds they’re going “A, B, C, D, E, F G H, I, J…”

Rantel: Right, right. And then they say, “Oh, he didn’t do it.”

Myles Berman: Yeah, I mean, it’s very nerve racking. It’s very difficult to walk a straight line normally, especially under the stress and directions of a police officer. So field sobriety exercises are completely voluntary and people do not have to do them.

DUI, DWI, AND DRUNK DRIVING ATTORNEYS DEFEND THE ACCUSED

Al Rantel and L.A. DUI/DWI defense attorney Myles L. Berman conclude the first part of their conversation by restating why drunk driving attorneys are so important given the potential inequities and flaws in the current system.

Rantel: Isn’t the cop—and by the way, we’re not encouraging people to drive drunk and get away with it—but isn’t the cop basically gathering evidence when they’re doing all this stuff.

Myles Berman: Yeah.

Rantel: Which is their job. That’s their job.

Myles L. Berman: I want to get it out there that I do not advocate drinking and driving. I think that we all want the roads safe.

Rantel: Right.

Myles Berman: Now having said that, putting on my legal hat, it’s not against the law to drink and drive. It’s only against the law to drive when you’ve had so much to drink that you’re impaired. Or under state law .08 or greater. So as far as cooperating with the police officer, yeah they are doing their job. Their job is to try and get people who are dangerous off the road. I understand that they do serve an important function, but the reality is—

Rantel: But your job is to defend the person accused.

Myles Berman: Yeah and here’s the problem. When they testify in court to these exercises as if it gives us some scientific validity—

Rantel: You mean when the cop testifies?

Myles L. Berman: Sure. It just doesn’t have any scientific validity whatsoever in my mind. Same thing with the breath tests. Oftentimes breath tests don’t have scientific validity to determine the specific level that the state is saying. So when you come into court, everybody should be treated fairly. And I think there is an inherent, built in unfairness in the system.

Rantel: We’re going to talk more about it when we come back. Roadblocks and the penalties—if they’re too small, because some people think they’re too low. Some people think they’re too high.

Myles Berman: Yeah, I’ve been advocating for years—

Rantel: Well, save it.

Myles L. Berman: Okay.

Rantel: We’ll come back. Top Gun is here. Our annual Christmas drunk driving show from Top Gun DUI Defense Attorney Myles L. Berman. Right back.

Los Angeles DUI/DWI defense lawyer Myles Berman represents clients throughout Southern California, including Santa Barbara, Los Angeles County, Riverside County, San Bernardino County, San Diego County, and Ventura County. To learn more about your legal rights in a drunk driving case, contact the skilled Los Angeles DUI lawyers at the law firm of Myles L. Berman.