Attorney Discusses DUIs on K-Talk

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KTLK AM 1150 Talk Radio – Marc ‘Mr. K’ Germain Podcast – Dec 18, 2007 5PM

Los Angeles and Orange County DUI defense lawyer Myles Berman chatted with K-Talk radio’s Marc Germain and Lisa about the increase in DUI enforcement during holiday weekends. He also answered listener’s questions and gave tips about how to avoid getting convicted of drunk driving. If you have been charged with drunk driving, contact Top Gun DUI today.

Celebrities and DUI arrests
Review evidence before pleading guilty
DUIs: the most common crime charged in the United States
The John Monday case
DUI statistics
DUI checkpoints during holiday weekends
The constitutionality of DUI checkpoints
Listener question for Myles: Whose rights are you trying to protect?
Listener question for Myles: Will saying you are going to kill yourself get you out of a DUI?
Is the police department required to publicize DUI checkpoint locations?
Listener question for Myles: Do cops set up checkpoints in the wealthy areas of LA?
Listener question for Myles: What should I do if I get pulled over by a cop after drinking?
Listener comment for Myles: DUI arrests impede on our civil rights
Discussion: Is the smell of alcohol on the breath probable cause?
Listener question for Myles: Do you get a lot of repeat clients?
Listener question for Myles: It is possible to have a couple drinks and not be drunk?
Listener comment for Myles: Alcoholics and DUIs
Listener comment for Myles: The horror of dui accidents makes it wrong to drink and drive

CELEBRITIES AND DUI ARRESTS

In this section of the interview, L.A. DUI attorney Myles Berman discusses how many celebrities prematurely plead guilty to drunk driving before finding out exactly what they are charged with and what the evidence is against them. Read the transcript below to find out how you can avoid making the same mistake.

Marc: Five minutes after five. It’s k-talk AM 1150. I am Marc Germain, “Mr., K’ along with producer Lisa. Every afternoon from 3 – 7 after the news at six, no guests, no topics, no screeners. It’s your questions, my answers. Joining us this hour in the studio Top Gun DUI Defense Attorney Myles L. Berman always good to see you.

Myles L. Berman: Good to be here.

Marc: So since the last time you were here, Myles, let me just give you the names of some celebrities who were arrested, and/or convicted, and/or pled guilty to DUI. Ray Liotta pleaded no contest to alcohol and/or drug related reckless driving. The facts show that he had been involved in a hit and run with two parked cars.

Myles L. Berman: I thought you were going to give me a whole list.

Marc: I am. You can comment on each, or none. Scott Weiland who is the lead singer for Velvet Revolver was charged with DUI last month after wrecking his car. According to the CHP he crashed on the Hollywood freeway. Officers said he was visibly impaired the sobriety test and refused to take a blood or urine test. No one was injured.

Myles L. Berman: I’ll let you read one more, then I’ll give a collective response to those three.

Marc: Alright. December 6th, Vivica A. Fox was booked for DUI.

Myles L. Berman: That’s it?

Marc: I have a couple more.

Myles L. Berman: No, anything about that case?

Marc: No.

Myles L. Berman: Alright. You know, keep going.

Marc: Okay. Gary Collins. Do you know who Gary Collins is?

Myles L. Berman: Yup.

Marc: Gary Collins hit a guy in October. He was DUI. He was driving a black Ford Explorer. He crashed into a blue Toyota while driving through Sherman Oaks. The guy who he hit died.

Myles Berman: You know, um—

Marc: And he was sentenced to 96 hours in jail and 100 hours of community service after pleading guilty to drink driving last week. Is that a term in California, drink driving?

MylesBerman: No, if you’re reading—

Marc: This may be from a foreign news source.

Myles L. Berman: If you’re accurately reading from it, then the facts that you’re reading aren’t accurate. The guy ran into him and he had nothing to do with causing the death.

Marc: Okay is this a client of yours?

Myles L. Berman: No. But here is the collective response to that and others. Celebrities often times when they get arrested for DUI don’t fight their case. They end up pleading guilty in court and the problem I have with that is that the people that surround them tell them that you should plead guilty, accept responsibility, it’s good for your PR, and then move on. But what happens then is that the facts that get reported in the press by the police or the prosecutor—often times it’s the police agency—those are the facts that are relied on that actually make it look worse than it is.

REVIEW EVIDENCE BEFORE PLEADING GUILTY

Myles Berman, recognized as one of the top DUI defense lawyers in Los Angeles, talks about how he waits to see all evidence and police reports before he develops a defense strategy for his clients. Contact Top Gun DUI for a review of your case.

Marc: Why would anyone—you might plead guilty to reckless driving—but why would you plead guilty to driving while intoxicated in order to make your position stronger, in order to bolster the case that you have that, “Hey this was just an accident and accidents happen and I’m sorry the guy died, but lost control of my car or he lost control of his car. Why would any celebrity, or anyone else for that matter, cop to a DUI charge?

Myles Berman: Again, I just think I explained that. The perception is it’s better to go ahead and accept responsibility in the minds of—

Marc: Would you ever tell a client it’s better to accept responsibility and to plead to—you might want to plea bargain a case. If I came to you and said that I was involved in an accident and a guy died and the police officers smelled alcohol on my breath, and I blew a .09, you might say, well, let’s plea bargain this down to something that’s reckless driving, or whatever.

Myles Berman: Yeah, that’s not how we would handle it. We wouldn’t tell the client in the beginning what we should do at the end because we don’t know what the evidence is and we don’t know—we know what the client is telling us but we don’t know—

Marc: How it’s going to be charged.

MylesBerman: Either how it’s going to be charged or if we know how it’s going to be charged, we don’t know what the cop wrote down in the police report, which gets the ball rolling. So it’s more of a reactive approach as opposed to a proactive approach. And when I say it’s proactive, I know there’s people out there that think that somehow we should encourage people to accept responsibility but that’s almost like a religious application to a judicial prosecution.

DUIS: THE MOST COMMON CRIME CHARGED IN THE UNITED STATES

In this section of the radio interview, Myles Berman tells listeners in the Los Angeles and Orange County area that drunk driving is the most common crime people are charged with in the United States.

Marc: Alright, well we’ve talked about this before and we’ll probably get into it at some point again but it’s surprising how many celebrities… Former NHL star John LeClair also pleaded guilty to drunk driving charges. TNA world champion Kurt Angle was arrested for DUI and had to reschedule his court date. Former NBA-er Charles Oakley was arrested early Tuesday morning in Gwinnett County on drunk driving charges. It’s surprising. These are just the celebrities I kind of did a cursory search on Google for recent arrests of DUI for celebrities. Do you think that it happens a lot more frequently than anyone cares to admit?

MylesBerman: That celebrities get arrested for DUI?

Marc: That everybody—people in general.

Myles L. Berman: I can tell you that celebrities get arrested more frequently than people in general. No that I can tell you from our practice. And naturally people don’t want to have their names in the press, especially associated with a DUI. In the general population, I’ve always said that if there is a business meeting and there’s 10 people in the room, it wouldn’t be surprising if three, or four, or five were arrested or convicted of DUI. It’s such a common occurrence. It’s the most common crime charged in the United States.

Marc: It is?

Myles L. Berman: Absolutely.

Lisa: Well probably you don’t hear about it because people don’t talk about it. You don’t come to work and go, “Oh, man I got a DUI on Friday.” Because people don’t really want their work mates, I would assume, to know that they’re drinking and driving.

Marc: Appropriately there shame involved in being cited or arrested for DUI, isn’t there?

Myles Berman: Well, yeah but I think the bigger reason is the loss of their reputation. Depending on what profession or reputation somebody is in, if you are a professional and you end up being convicted of a DUI, it will impact your ability to practice your profession.

THE JOHN MONDAY CASE

In the John Monday case, Los Angeles DUI defense attorney Myles Berman says that John Monday did not have to step down from his government position simply for being in the car with someone charged with drunk driving. Contact Top Gun DUI for more information.

Marc: Funny you should mention that. Do you know the name John Monday? John Monday is the director of California’s parole board.

MylesL. Berman: I read about it.

Marc: And he’s going to resign next week because he was in a car driven by another state employee who was stopped for drunk driving while on government business. He was a passenger.

Myles L. Berman: Yes, I read that story. I saw it in the L.A. Times. It must have been today. Was that from today?

Marc: Yes. No, yesterday. Monday.

Myles Berman: I was reading it in the LA Times. I had to read that article three or four times to figure out what the heck that article was saying. I figured it out and it still doesn’t make sense.

Marc: Okay, well here’s the deal. He was not charged with a crime because he was the passenger but the corrections department says that he’s going to resign from his appointed post and return to a civil service job because do you want the guy who is the director of—who’s the head of the parole board in a car with a guy who is driving drunk on government business?

Myles L. Berman: You know nothing happened. The driver ended up getting stopped and getting arrested for DUI. Look, I actually don’t think that John Monday, is that his name?

Marc: Yes.

Myles Berman: I think he caved in for no reason. The only indication that I would think that he may have seen—and this is one of the ways in which we’re able to win DUI cases—is just because somebody has booze on their breath. Just because they drank doesn’t mean that they are under the influence of alcohol. Cops can’t tell the difference between one drink, two drinks, four drinks, six drinks, beer, wine, tequila. All the odor smells the same. So I don’t know what it was that they charged him with the knowledge of that the guy was—

Marc: They didn’t charge him with anything.

Myles L. Berman: Wait. No, they charged him with the knowledge. In other words, he had to resign because he got into the car—

Marc: No, Myles, it says right here, “…was not charged with a crime.”

Myles Berman: When I’m saying “charged” I don’t mean charged in the context of “prosecuted.” I mean somebody in the government attributed–let’s

use that word—attributed knowledge to him that really is beyond the realm of a lot of people.

Lisa: Because maybe he didn’t know.

Marc: Wait a minute. Doesn’t it show poor judgment that you would get into a car driven by another state employee, on government business, who’s drunk?

Lisa: Well maybe they weren’t drunk. Maybe they were just drinking?

Myles Berman: The way you put it, yes. But Lisa is absolutely correct. If they just went out for a drink or two or the guy only saw him have one or two drinks—

Lisa: Maybe he had two cocktails and then got pulled over and then he was determined to be drunk.

Myles L. Berman: Well, now we’re getting into voodoo science because you’re talking about—I think that was a breath case?

Marc: Yeah, it was.

Myles L. Berman: Yeah, so any breath test machine as far as we’re concerned, as far as I’m concerned is based on voodoo science so I don’t trust that anyway.

DUI STATISTICS

Myles Berman’s 25 years’ experience as a DUI defense attorney serving the Orange County and Los Angeles areas has provided him with a wealth of knowledge regarding drunk driving laws. Here, he discusses DUI statistics and their impact on the law.

Marc: Alright, we are going into the period of maximum enforcement this holiday season. It means that traffic deputies across the county of Los Angeles will increase their DUI patrols in an effort to keep the streets safe.

Myles Berman: There’s good news and bad news to that. First of all, flash weather report everybody, it’s raining outside. And I bring that up because when it’s raining DUI enforcement actually slows down. Cops don’t like going out in the rain doing field sobriety exercises, stopping people when it’s cold out. I mean weather has a lot to do with the number of—

Marc: Wait a minute. Is it because the cops don’t do their job or because fewer people go out and drink when it’s cold because they don’t want to be out in the wet either?

Lisa: Oh, no. People drink- I would say more.

Myles L. Berman: I really don’t know because there’s no statistics for people who don’t get arrested for DUI, although organizations try to manufacture statistics. Like for example, I heard that somebody drives four or five hundred times under the influence before they get arrested. Well, there is no evidence to support that it’s just made up out of hole cloth.

Marc: That seems a little crazy. Let’s see, does this trouble you? Alcohol related deaths increased in California for the 8th year in a row. Last year 300 people were killed. 7700 were injured in alcohol involved crashes in Los Angeles County alone.

Myles Berman: I’ll tell you what’s troubling about that is that that statistic or those statistics are being used to paint everybody with the same broad brush and therefore to make the laws tougher and take away our rights and make it more difficult for people to—once they’re faced with being arrested for DUI. I mean, make their lives so miserable because, in large part, as a result of these statistics that you talked about. Now in California there are about 160 – 180 DUI arrests a year. You said how many fatalities, three hundred and some? I mean, I don’t have a calculator but that’s less than point zero, zero some percent. I don’t know the exact percentage. Most people that get arrested for DUI are first time offenders and never repeat. So it depends on how you use those statistics.

DUI CHECKPOINTS DURING HOLIDAY WEEKENDS

It is no secret the there is increased DUI enforcement during holiday weekends. The increased enforcement comes in the form of DUI checkpoints and more law enforcement on the job. In this section of the K-Talk radio interview, Myles Berman discusses why there is increased DUI enforcement during holiday weekends.

Marc: The three-week enforcement effort kicks off with DUI checkpoints in Southgate, Burbank, Gardena, and saturation patrols in the Crescenta Valley, Baldwin Park, Newhall, and central L.A.

Myles L. Berman: The three weeks I assume starts now and goes until shortly after New Years. Probably the 2nd, 3rd, whatever it is.

Marc: Correct.

MylesL. Berman: Again, there is going to be a lot of checkpoints that they do every year and every year it seems like there’s more checkpoints. My website at topgundui.com has checkpoints where people can post them if they know about them. But we’ve talked about checkpoints before as well. That checkpoints—a large force that’s driving the checkpoints is money. That these checkpoints get funded by the government, there’s multi-agency task forces that work on the checkpoints so in order to justify the funding they have to make arrests. I’ve heard of horror stories where checkpoints—just as to the narrow issue of when they’re supposed to stop a car—you’re supposed to stop a car every fourth car or every fifth car, but as the evening goes on and arrests are down they start stopping every car.

Marc: In general what do you think of the—obviously the issue of the constitutionality of a DUI checkpoint has been established. They’re constitutional.

Myles Berman: And they’re being abused because throughout the country checkpoints are now being used—I’ll tell two— Do we have to go to a commercial break?

Marc: Yeah we do.

MylesL. Berman: Okay, when we come back remind about the checkpoint in Sausalito.

Marc: Alright. And if you’ve been on a checkpoint does it bother you? Are you upset by being inconvenienced by DUI checkpoints? And we’ll take your phone calls. 877-520-1150 for Top Gun DUI Defense Attorney Myles L. Berman. 877-520-1150

THE CONSTITUTIONALITY OF DUI CHECKPOINTS

Do DUI checkpoints infringe on our civil liberties? In this section, L.A. drunk driving lawyer Myles Berman discusses how DUI checkpoints impede on our civil rights.

Marc: 23 minutes after five. It’s KTALK1150. Marc Germain, Mr., K. and Top Gun DUI Defense Attorney Myles L. Berman. After the news at 6 it’s your questions, my answers. No guests, no topics, screeners. Let’s talk about since we’re in the period of maximum enforcement and the have already announced where these DUI checkpoints are going to be, I’ve been inconvenienced by them, but I also see that they do arrest people and cite people for DUI. And they get drunks off the road. And as someone who doesn’t want to be hit by a drunk driver, I’m good with that.

Myles Berman: Great but the reality is that in order for them to have the checkpoints be implemented, somebody made the decision and now it’s been okayed, that it’s alright for police to randomly stop people to check to see whether or not they’re under the influence of alcohol. And most of the people that go through the checkpoints, and they don’t tell you these statistics, but it wouldn’t surprise me that 80 percent, 90 percent of the people that go through the checkpoints are absolutely fine and sober.

Marc: I suspect that’s true.

Myles L. Berman: And probably higher. So then the question is—you have to look at the total picture, not just the snapshot that you presented—is the funding worth it? Is the inconvenience worth it? Is the taking away of our civil rights worth it? A lot of people say no. Not to mention that the checkpoints are just another way to get people to the promised land of that voodoo science machine.

Marc: How is it taking away my civil rights? You don’t have a civil right to drive a car.

MylesL. Berman: You’re being pulled over by a police officer without probable cause. Your civil right has already been taken away.

Marc: Why isn’t it unconstitutional?

Myles Berman: Because the courts have done a balancing test—that the carnage on the road, using the statistics that you were talking about earlier, outweigh the inconvenience to the public.

LISTENER QUESTION FOR MYLES: WHOSE RIGHTS ARE YOU TRYING TO PROTECT?

In this portion of the radio interview, Marc takes phone calls from listeners that have questions for DUI attorney Myles Berman. The first listener wants to know whose rights criminal law attorneys seek to protect: drunk drivers or those that can be harmed by drunk drivers.

Marc: Alright, let’s take some phone calls for Myles L. Berman the Top Gun DUI Defense Attorney. Bob in Orange County welcome to KTALK. Say hi to Myles L. Berman.

Bob: Hey, Myles, how you doing?

Myles L. Berman: Hello Bob, how are you?

Bob: I am just fine. I’m just curious as to whose rights are you trying to protect? There is no right to drive drunk. I don’t understand what it is. If it’s your right to make money, that’s fine but the right that you’re attempting to protect is the right to drive drunk. I just don’t ever see that as being a right.

Myles Berman: I can understand how you feel and I don’t think I’ll convince you otherwise. However, from my point of view, this is what the law is. It’s not against the law to drink and drive. It’s against the law to drink and drive with a .08 or greater while you’re impaired. The problem, Bob, is that the way the government goes about doing it is not based on anything in my mind that is completely logical. For example, field sobriety exercises. I’ve never seen anybody drive down the road with their eyes closed, their head tilted back, and trying to estimate 30 seconds. I’ve never seen anybody drive down the road touching their finger to their nose. Again, as far as the breath test machine—the breath test machines, in my opinion, are based on voodoo science and there is no other area in the criminal law where somebody is judged guilty based by a number. So I have no problem in using the system and protecting my clients’ rights. And not only that, but the downside to the individual client can be so substantial that there is a lot of unfairness built into the system. So if somebody gets arrested for DUI, we have no problem—we’re not advocating drunk driving. As a matter of fact, I’m the last person that would advocate drunk driving and I contribute to organizations that oppose drinking and driving. At the same time the issue is that citizens need to be prosecuted by the government fairly no matter what the crime is.

Bob: Okay well I understand that and you’re saying that heel-to-toe and all that kind of stuff is not replicating driving but you can’t replicate a drunk driving test. You can’t take a guy to a race track or something like that, so you have to come up with something.

Marc: Well in the world of Myles L. Berman how do we get drunk drivers off the road? What’s the fair way to do that?

MylesL. Berman: In my world? Prohibition? That’s the only way. Stop selling booze and that’s the only way.

Marc: Robert on the 105 you’re on KTALK. Hello.

LISTENER QUESTION FOR MYLES: WILL SAYING YOU ARE GOING TO KILL YOURSELF GET YOU OUT OF A DUI?

Another listener from the Los Angeles and Orange County area asks Myles Berman about strategies to get out of a DUI charges. The listener wants to know if acting depressed will get you out of a DUI.

Robert: Hey, how you doing. I just have a quick question. In my career I got to know a couple of judges and one judge told me that if you ever get pulled over for a DUI, then tell the cop you wanted to kill yourself. Start crying or something and the police is automatically going to have to give you a 5150. They send you in for a 72 hour evaluation. When you show up in front of the judge, tell them, “My wife just left me. I just lost my job—“

Marc: What judge told you this? What judge told you act crazy and you’ll get off?

Robert: You don’t have to act crazy. You just have to say you want to kill yourself. You have to get a 5150 if you want to kill yourself. The judge said that once you go in front of the judge—

Marc: Alright Myles, is this good advice if you want to get out of a DUI? When the cop pulls you over.

Lisa: It’s a little overly dramatic. I like it!

MylesL. Berman: I’ve never heard of that before and I’d have to give that some thought and study it before I gave an answer. I’m just wondering if they heard it at a cocktail party or something.

Marc: He said a judge told me.

Myles L. Berman: Judges go to cocktail parties.

Marc: Judge Judy? Who? What judge?

Lisa: I like it.

Marc: Judge Roy Bean? Or Judge Jim Beam probably.

Lisa: Say you’re going to kill yourself. Judge Jim Beam (laughter).

Marc: It’s 5:30. Top Gun DUI Attorney Myles Berman. We’re talking about the maximum enforcement period that we’re in right now. Are you troubled by if they’ve popped up in your neighbor hood—a DUI checkpoint. Are you troubled by it or do you freely submit and think that, “Hey if it’s going to get drunk drivers off the road in my community, I want it there??” 877-520-1150. We’ll continue.

IS THE POLICE DEPARTMENT REQUIRED TO PUBLICIZE DUI CHECKPOINT LOCATIONS?

In this segment, DUI defense lawyer Myles Berman discusses how law enforcement officials do not always publicize DUI checkpoints, though law requires them to. If you have been charged with a drunk driving offense, contact Top Gun DUI.

Marc: 5:35 KTALK AM 1150. Marc Germain, Mr. K. and producer Lisa and joining us in the studio Top Gun DUI Defense Attorney Myles L. Berman. As we move into this period of maximum enforcement over the next three weeks it means that there will be more than three dozen checkpoints during the campaign and nearly 200 extra patrols during this three week enforcement period that began earlier this week. There will be DUI checkpoints Southgate, Burbank, Gardena, Crescenta Valley, Baldwin Park, Newhall, and Central L.A. Also a DUI stakeout in Walnut the L.A. Sheriff’s department will participate in. Are you inconvenienced or do you just think it’s the price of doing business when we have so many drunk drivers on our roads that you may be inconvenienced once and a while.

MylesL. Berman: Wait. Can we just go back? You slipped in stakeout.

Marc: What is that? A DUI stakeout.

Myles L. Berman: To me it’s cops hiding. Although on my website at topgundui.com I have a cop’s hideout. Maybe I should change it to stakeout.

Marc: That’s what they’re calling it in the story.

MylesL. Berman: To me it sounds like—and everybody tells me this and people know this and believes this—that cops go at one, two o-clock in the morning at particular bars in particular neighborhoods and just sit there and wait for the people to come out and if they see a traffic violation, which they almost always do, they’ll pull somebody over. So this sounds like they’re hitting the liquor industry. They’re hitting the places where the serve alcohol. Some people may have a problem with that. Some people don’t but if you walk into a bar and you see three squad cars outside, first of all if they’re going to do it fairly, they would park the squad cars right in front of the restaurant. That will encourage people not to drink and drive—not to drink in excess—just like checkpoints are supposed to be publicized the times, dates and locations. Whenever they publicize checkpoints, DUI goes down in the area. And oftentimes we’ve called police agencies and asked them, when and where are your checkpoints and they go, “Why should we tell you?” Not just because they’re supposed to but this confirms that these checkpoints have really become tools for them to arrest people and revenue raisers to justify the checkpoints.

Marc: You think it’s a revenue enhancement and not really trying to get drunk drivers off the road?

Myles Berman: I think it’s a combination of both. As long as it’s a combination of both, then some people could argue that checkpoints are tainted—the motives behind checkpoints are tainted. It’s not just to get DUI drivers off the road, it’s also revenue.

Marc: Jonathon off the 110 you’re on KTALK. Hello.

Jonathon: Hello. I have a couple things to say. One is whenever you have to demand results and you think, “Well, gee is this just about the money?” And the answer is it’s always about the money. There is always a component that is about the money. Secondly, it’s kind of like the wire tapping. Do you cast a broader net to see who you’re going to catch and do you mind giving up some of your civil liberty, whether that liberty is the right to travel unencumbered or are you okay giving up that personal right just like you’re giving up your right because you’re not a terrorist, so it’s okay to listen to everybody’s phone.

Myles Berman: You know, the caller has a great point, however, the government knows this concept and here’s what the government plays on. Most people don’t think this will happen to them. So I can’t tell you how many times throughout the day people come into our office and people say, “I never thought I would be sitting here.” And this is how people think. Just like with the wire tap. “Well, okay. They’re not going to wire tap my phone. They’re going to wire tap some other phone. They’re not going to stop me for DUI but they’re going to stop somebody else. They’re not going to catch me at a checkpoint.” Or the argument is, “Well, I have nothing to hide so I might as well go along with it.” And again it comes back to voodoo science. You have one or two drinks, or three drinks and the breath test machine gives an overestimate of what your alcohol level is in your blood—you’re going to jail.

LISTENER QUESTION FOR MYLES: DO COPS SET UP CHECKPOINTS IN THE WEALTHY AREAS OF LA?

In this section of the radio interview, a listener calls in and notes that all the DUI checkpoints seems to be in the poorer areas of LA. Does law enforcement unfairly target minorities when setting up DUI checkpoints? Read on to find out how Los Angeles drunk driving attorney Myles Berman answers this listener question.

Marc: Thomas in Anaheim, you’re on KTALK with Top Gun DUI Defense Attorney Myles L. Berman.

Thomas: Hi there. Yeah, I heard you list off a bunch of places where they’re going to have the checkpoint like Southgate and Gardena and that sort of thing but I didn’t really hear any upscale places like Manhattan Beach, Redondo Beach, Hermosa Beach, Beverly Hills… places where people with money would be driving.

Marc: Do they not do checkpoints in—

Lisa: I’ve seen them in Beverly Hills before.

Marc: You have?

Lisa: Oh, yeah. On Sunset Boulevard I’ve seen them.

Myles Berman: Yeah, they do it right in front of my office and sometimes I think they do it just to upset me.

Marc: Why would it upset you? It’s good for business. The more people who are—see this is the dirty little secret, Myles—is that the more people who are arrested for DUI, the better it is for your business. So you should be in favor of strengthening laws that discourage drunk driving. The wider the net that gets cast the better it is for you personally.

Myles Berman: Is it still a secret or should I respond to it? (Laughter) Because I guess it’s not a secret anymore. The reality is that in order for us to do what we do and in this particular field—a DUI lawyer has to know what they’re doing otherwise the clients are going to get hurt. Not a lot of us know exactly what we’re doing and it’s important for people know that when they hire a DUI lawyer, it’s a DUI lawyer that knows how to fight cases and know how to win cases—

Marc: It’s an area of specialty that you can’t just trifle with.

MylesL. Berman: That’s correct.

Marc: And I say this in my commercial for you. Not just any lawyer can help. I got two brothers that are attorneys and if I were ever arrested for DUI, I’d call you first.

Myles L. Berman: What number would you call?

Marc: (Laughter) 888-4-TOPGUN.

Myles Berman: Alright.

Marc: There’s your commercial. Here is Tom in Fullerton. Welcome to KTALK.

LISTENER QUESTION FOR MYLES: WHAT SHOULD I DO IF I GET PULLED OVER BY A COP AFTER DRINKING?

In this section of the K-Talk radio interview, a listener asks DUI defense attorney Myles Berman how to avoid getting charged with drunk driving if you get pulled over by a cop after drinking.

Tom: Yeah I was wondering as far as if you get pulled over at a checkpoint and you have been drinking, what is the best strategy as far as to refuse the breathalyzer and say, “I’ll take—“

Marc: You know, Myles gets asked this every time and he never answers this question. He never tells people what they should do to avoid to get popped for DUI.

MylesBerman: Well, I kind of do. It doesn’t matter if you’re going through a checkpoint or you get pulled over. It’s still the same thing. People don’t tell the officer where they’re coming from, or where they’re going to, or how much they’ve had to drink, or what they’ve had to drink, or things of that nature. They also don’t have to do the field sobriety tests, although they really are exercises. If you’re under 21 you have to take a portable breath test because of zero tolerance, but if you’re older than 21, before you’re arrested, you don’t have to take the portable breath test. And absolutely refuse to take the portable breath test before you’re arrested. After you’re arrested, then you’ve got a choice. You can take a chemical test, which is a breath test or a blood test, or if you refuse, which people do, you could suffer greater consequences in court and with the DMV, if you’re convicted in court and if the DMV affirms the suspension.

Marc: If Lisa gets pulled over and a police officer smells—

Lisa: Did you have to use me as an example?

Marc: And a police officer smell alcohol on her breath and they say, “Step out of the car, ma’am.”

Lisa: That’s when I have a heart attack and die and they’ll never have to worry about arresting me ever.

Marc: What should she do? Refuse the field sobriety test? Is that your advice?

Myles Berman: People do not have to do the field sobriety exercises.

Marc: Is your advice to Lisa, don’t take the field sobriety test?

MylesL. Berman: You know that’s a tough call. To Lisa? No, absolutely not. Don’t take those field sobriety exercises because you’re not going to do well alcohol free. You’re a nervous Nelly and most people can’t do it so it’s not going to—

Marc: So she says no and the police officer says, “Well then I’ll take you down to the station and we’ll give you a blood or breath test down at the station.”

Myles Berman: Now you just trampled all over Lisa’s civil rights.

Marc: But that’s what’s going to happen. If she refuses—

Myles L. Berman: Wait a minute. You say it as if it’s acceptable and the fact is—

Marc: I’m saying it’s the fact. We’re not debating the acceptability of it.

Myles L. Berman: Hold on because it’s applicable to what would happen in court. If the officer wanted to determine whether or not they had probable cause to arrest or they or they should have arrested Lisa. Poor Lisa. Now you’re a prop.

Lisa: See now I’m really nervous. Okay, go ahead.

MylesL. Berman: If they didn’t have probable cause and they wanted to develop probable cause by having her do field sobriety exercises and she asserted her right.

Marc: You’re right; Lisa would not do well on the field sobriety tests even if she wasn’t drunk.

MylesBerman: And if the cops take you in, they take you in. There’s nothing you can do about that.

Marc: Okay and they take her in and then what does she do?

Myles L. Berman: She has a choice of taking a test or not taking a test. Now here’s what you want me to say: Take a breath test, take a blood test, or refuse the test. I can’t say that it’s okay to refuse the test because California law wants people to take it and the reality is that most people take a test.

Marc: There’s an automatic penalty if you refuse to take the test.

Myles L. Berman: Nothing is automatic. No. Did I say automatic?

Marc: No.

Myles L. Berman: Okay. Nothing is automatic. You’ve heard the slogan, “Friends don’t let friends plead guilty.”

Marc: I’ve heard it somewhere.

MylesL. Berman: Okay, well that’s to reinforce that nothing is automatic. With refusing a test that doesn’t mean that you’re going to be convicted in court or the DMV is going to take your license. But if you are convicted in court, you could be looking at going to jail on the first offense and you could be looking at losing your license for a year with the DMV with no privilege to drive to and from work or nature and scope of your employment. No restrictions whatsoever.

LISTENER COMMENT FOR MYLES: DUI ARRESTS IMPEDE ON OUR CIVIL RIGHTS

In this segment, a listener calls into K-Talk to discuss his views on DUI checkpoint laws with Los Angeles drunk driving lawyer Myles Berman.

Marc: Michael in Hollywood. You’re on KTALK. Say hi to Myles L. Berman.

Michael: Hey Myles. Thanks so much for doing what you’re doing. I got to really chastise you Marc. There is absolutely and positively no reason whatsoever you could give me for me to allow somebody to take away my rights. There is nothing you could say.

Marc: You don’t have a right to drive. It’s a privilege.

Michael: I have a right to be secure in my person from illegal search and seizure.

Marc: And if you want to walk, that’s fine, but if you want to drive a car, it’s not.

Michael: No because there’s a slippery slope, Marc and you’re absolutely wrong about this.

Marc: Well then why do the courts of cities affirm the right to have DUI checkpoints.

Michael: They’re wrong. Just because they affirmed it doesn’t mean that it’s right.

Marc: Come on, Michael. This is all over the country. So every civil libertarian is wrong when they say, “You know what? The cities do have a right to do it.” Every one of them–we’re all wrong.

Michael: I say they do not have the right to do it. They do not.

Marc: Michael, you can say that you don’t want it and you think it’s a violation of the Constitution. You show me where in the law it says it’s a violation of the Constitution. The Fourth Amendment doesn’t apply to your car.

Myles L. Berman: Actually it applies to—people have the right to be from unreasonable search and seizure wherever they are.

Michael I think it’s unreasonable.

Marc: Individuals are but your car is subject to be searched.

MylesL. Berman: It’s still the same test that they have to have probable cause, other than a checkpoint.

Marc: They’ve got to be able to see something in the car. If they see a bunch of open beer bottles in my car, empty beer bottles or empty beer cans, sure. You know what? My fault.

DISCUSSION: IS THE SMELL OF ALCOHOL ON THE BREATH PROBABLE CAUSE?

In this portion of the discussion on DUI laws and checkpoints, the group debates whether the smell of alcohol on the breath is probable cause, giving law enforcement the right to search your car or drive you down to the police station for alcohol testing. DUI convictions come with serious consequences that can ruin lives. If you have been charged with a DUI in the Orange County or Los Angeles area, contact drunk driving attorney Myles Berman.

Marc: Michael, do you think its probable cause if I smell alcohol on your breath?

Lisa: No.

Marc: I’m asking Michael.

Michael: I really don’t.

Marc: You don’t? So if you reek of alcohol, that’s not probable cause, Michael?

Lisa: But you’re breath can smell like alcohol, Marc, without you being drunk.

MylesL. Berman: Or impaired… or it could be smelling like—diabetics express breath that smells like alcohol.

Marc: And diabetics that smell of alcohol on their breath don’t get arrested for DUI.

Myles L. Berman: There I would actually disagree with you. As a matter of fact, nurses are trained in emergency rooms to make sure that the odor that they smell is not alcohol and to be sensitive to the fact that diabetics—

Marc: Myles, how many people have come to you who got arrested for DUI actually were people who were diabetics who didn’t have alcohol on their breath?

Myles L. Berman: Here’s the concept. A lot of people—

Marc: So you’re not going to answer my question.

Myles L. Berman: I’ll answer it this way. A lot of people come to us—like the Atkins diet, you’ve heard of that diet.

Marc: Yes.

Myles L. Berman: Okay, and then you express keytones—and this was going on big time around the country—

Marc: Okay now you’re really stretching it.

Myles L. Berman: In your mind.

Marc: You’re telling me that people who are diabetics get arrested for DUI and I’m asking you in your 25 years of practice as a DUI defense attorney, how many people have come to you and said, “I’m a diabetic. I didn’t have anything to drink but the police officer arrested me because my breath smelled—“

Myles L. Berman: I agree with you that it’s very rare.

Marc: Thank you for the call.

Myles L. Berman: I agree with you—

Marc: I got to take a break.

MylesL. Berman: Sure, when you’re winning.

Marc: 5:48 it’s KTALK 1150

LISTENER QUESTION FOR MYLES: DO YOU GET A LOT OF REPEAT CLIENTS?

During the radio interview, a listener calls in to ask drunk driving lawyer Myles Berman if he gets a lot of repeat clients who have been charged with multiple DUIs.

Marc: 5:52 KTALK AM 1150. Marc Germain, Mr. K., producer Lisa, and Top Gun DUI Defense Attorney Myles L. Berman and we’re taking your phone calls. Let’s start with Lois in Hollywood. Is it Louis in Hollywood? You’re on KTALK. Hello.

Lois: Hi. Question for you real quick. (garbled)

Marc: Okay good thing we can actually see what you have to say. Your question for Myles is how many repeat clients, Myles?

Myles L. Berman: As I said earlier, the overwhelming majority of people get arrested and most of our clients are first offense. There are some repeat clients, but very rare.

LISTENER QUESTION FOR MYLES: IT IS POSSIBLE TO HAVE A COUPLE DRINKS AND NOT BE DRUNK?

In this segment, a listener from the Orange County and LA area asks DUI defense attorney Myles Berman if it is possible to have a couple drinks before driving, and not be drunk enough to get charged with a DUI.

Marc: Let’s see here. Tony on the 605 you’re on KTALK. Hello.

Tony: Hi Marc, this must be a pretty touchy subject because you got a pretty long wait. A lot of people trying to get on.

Marc: Yes.

Tony: There is pretty much a lot of meat on both sides of this bone. And I kind of agree with you as far as it being a necessary evil on that side of it but I agree with Myles and all the people that are opposed to it. We’re all against the inconvenience of being stopped and then there is also the question of the fairness issue of it. Like you say, in the paper they tell you where and when they’re going to do these things but nobody knows exactly what goes on if you happen to be in one. If you get pulled over and you stopped and maybe you had one beer—not because you’re out drinking but maybe because you’re socializing a little bit—and you’re a healthy adult male, 230 pounds, you’re not drunk with one beer.

Marc: And you’re not going to be arrested for drunk driving if you’re 230 pounds and had one beer. Unless you’re drinking it while the officer is giving you the field sobriety test.

Myles L. Berman: You know, Marc—you’re indicating that one beer. What about two or three beers and you’re still not under the influence? You’re still well below. But, yet, you’re assuming that the breath test machine is reliable and I’m telling you that there is many times where people get arrested who have had one, two, three beers, or four beers and they get arrested for DUI.

Marc: But the field sobriety test is always followed up with another test down at the station, right?

MylesL. Berman: Generally speaking there is a field sobriety exercise and then there is a breath test beforehand sometimes and then afterwards there is a breath or a blood. Again it’s the same principles. If it’s voodoo science in the beginning, it’s voodoo science in the end.

LISTENER COMMENT FOR MYLES: ALCOHOLICS AND DUIS

In this portion of the K-Talk radio interview, a listener calls in saying he is a recovering alcoholic, and that there are probably many people driving under the influence of alcohol who do not ever get charged with drunk driving.

Marc: Alright. Larry on the 405 you’re on KTALK. Hello.

Larry: Thanks Marc. Couple of points, Myles. You mention that most of the people are first offenders. I don’t know where your stats come on that.

Marc: He’s telling you from his personal experience as an attorney for 25 years.

Myles L. Berman: Also from reading DMV statistics.

Larry: Well there are a lot of people out there and am a recovering alcoholic and I agree totally. I don’t think that people who are addicted and that’s maybe 10 percent. Nine out of ten people can drink without a problem. I don’t think they belong in jail. I haven’t heard you mention anything about prop. 36. But on the other hand I don’t know where your stats are as far as people who are—all the people who don’t get picked up. I mean I hear things that maybe one out of 15 drivers on the road at any time at night can be impaired.

Marc: I’ve heard that the numbers are a lot higher than that. Something like one in four after 1 a.m.

Myles L. Berman: Actually this is a great call because we didn’t talk about this. And Larry, kudos for you for a recovering and I hope you stay a recovering alcoholic for the rest of your life. There is not a serious connection between DUI and alcoholism, yet the news media and other organizations like to taint all DUI drivers as alcoholics and that’s just not the case, unless you consider anybody who drinks alcohol an alcoholic.

Marc: No. Anyone who gets drunk. Someone who repeatedly gets drunk has a problem with alcohol.

Myles L. Berman: Your definition and my definition and Lisa’s definition may be different as who is an alcoholic. Again the government preys on that. In my mind an alcoholic is somebody who has to drink alcohol to get through the day, who constantly has to have alcohol in their system. And by the way, it’s a lower number. Often times when somebody is an alcoholic they don’t need to drink 10, 12 beers or shots or six or eight glasses of wine to get to the point where they need to not have anymore alcohol. It’s often times just one or two drinks.

LISTENER COMMENT FOR MYLES: THE HORROR OF DUI ACCIDENTS MAKES IT WRONG TO DRINK AND DRIVE

In this segment, a listener who has seen the horror of drunk driving accidents firsthand challenges attorney Myles Berman’s cause.

Marc: Guillermo in Cypress Park, you’re on KTALK with Myles Berman. Go.

Guillermo: Good evening, Mr. K. I’ve been with the court system for 39 years and I have seen a lot of victims of DUIs, who have been hurt by DUI drivers.

MylesL. Berman: In what capacity?

Guillermo: In what capacity? Probation officer, court clerk, I’ve been in different areas of the L.A. court system and I believe that when I hear his ad, don’t let your friends plead guilty to drunk driving, you know, “Friends don’t’ let friends plead guilty.” I find that the original version of don’t let your friends drink and drive is more important because I believe that the majority of cases that I’ve seen and read that I’ve gone through have been people that have been drunk and have caused quite a bit of accidents. And I just believe that Mr. Berman is out there to make some money and it’s not fair that he’s—

Marc: This argument that he’s just out there to make money. You don’t do this for charity. This is how you make a living.

Myles L. Berman: Yeah but that doesn’t bother me. I’m entitled to make a living but more importantly we’ve worked very hard and I’ve worked very hard to get to this point in my life in order to be able to be good at what I do. So, putting aside that issue, I mean people that raise that argument as if it’s something dirty making money and I recognize that for what it is—

Marc: Or that being a criminal defense attorney is dirty.

MylesL. Berman: Well, I recognize that for what it is and it doesn’t bother me. But the other issue is—and this is the concern that I have. He’s absolutely right from what he’s seen in court through his experience that there’s a lot of horror stories. But that’s not the whole picture. He doesn’t see the horror stories of the people who lose their job just because they get arrested and convicted of DUI.

Marc: As always, Myles, there’s way more calls than we have time for. It’s always good to see you, and again, period of maximum enforcement and if you or someone you care about has been arrested or cited for DUI call who I would call, Myles L. Berman. The Top Gun DUI Defense Attorney at 888-4-TOPGUN, right?

Myles L. Berman: Yes and I want to wish you and your audience and Lisa a happy and safe and sober holiday week and happy New Year’s.

Marc: Thank you, Myles.

DUI defense lawyer Myles Berman represents those that have been charged with drunk driving in Orange County, Los Angeles County, Riverside County, San Bernardino County, San Diego County, Santa Barbara County, Ventura County, and other areas of southern California. If you have been charged with a DUI, contact Top Gun DUI today.