Call Now For a Free Case Evaluation

Attorney Discusses DUIs with Tom Leykis

Myles L. Berman, a leading Orange County drunk driving and DUI attorney, appeared on The Tom Leykis Show to discuss a number of drunk driving and DUI issues. He fielded a number of calls to help address the concerns and answer the questions of the radio audience. If you have been charged with driving under the influence, contact the skilled Orange County DUI lawyers at the law firm of Myles L. Berman.


Car accident fatalities and drunk driving laws
The poor economy and DUI / drunk driving arrests
The job of drunk driving attorneys
DUI / Drunk driving penalties
Listener comment for Myles: Drunk driving charges and technicalities
Listener question for Myles: Can Nyquil cause you to be arrested for DUI?
Listener question for Myles: What should I have done after my drunk driving accident or arrest?
Listener question for Myles: Can Eucalyptus mints beat a breathalyzer?
Listener question for Myles: Could I have fought a DUI arrest if the officer followed me from the bar?
Listener question for Myles: What transportation should I use if I know I will be drinking?
How to contact drunk driving and DUI attorney Myles Berman
Listener comment for Myles: I got a DUI just for walking between bars
Can you get charged with a DUI even if you aren’t driving?
Why you need to hire a drunk driving / DUI defense attorney
Listener question for Myles: Why do I have one DUI with the court of law and two DUIs on my DMV record?


In the introductory segment of this interview, Orange County DUI attorney Myles L. Berman and radio host Tom Leykis talk about auto accident fatalities and how they have dropped significantly throughout California. This could be attributable to additional law enforcement, though Myles Berman notes that while auto accident fatalities may be down, drunk driving and DUI arrests may not be following the same trend.

Intro: From Hollywood, it’s The Tom Leykis Show. And now, here he his, Tom Leykis.

Tom Leykis: Thank you for tuning in to The Tom Leykis Show. Here we are once again on the radio and it’s you and me. With us once again, as he is, about once a year is DUI attorney, Myles L. Berman. Good to see you.

Myles L. Berman: Good to be here, Tom. Good to see you and Gary.

Leykis: So all the Boozers were calling in. Some of them with rum right there in the cup holder. One guy had a bottle of wine. He was just pouring from the bottle.

Myles L. Berman: You mean that still goes on, huh?

Leykis: No matter how many years we do this, it still goes on.

Myles L. Berman: Well, I guess with the economy people need to get a little bit numb on the way home or wherever they’re going.

Leykis: It’s amazing. I keep hearing…not only in your commercials but in the news and everywhere else I keep hearing that the laws are getting tougher. And of course we hear these public service announcements that tell us officers are crackin’ down from coast to coast, they’re cracking down. Is this making any difference in the drunk driving situation?

Myles Berman: You know I read somewhere that fatalities are down big time in California. In large part because of the cell phone law keeping people off cell phones while they’re driving. We represent many people that are pulled over based on cell phone usage but there has been a significant, drop, obviously, in fatalities all across the board in California.

Leykis: And that’s attributable to drunk driving laws? I did hear the story about the cell phone law.

Myles Berman: I think it’s attributable to greater law enforcement, more people are aware of the risks of driving under the influence, which, by the way, there’s a new law that’s going into effect after the first of the year and this is a very scary law: Anybody, whether you’ve had a prior DUI or not, even somebody who’s never been arrested for DUI before… especially somebody like that. If they’re driving under the influence and they kill somebody they can be charged with murder and this is something that’s new. What the courts have done it in the past up until now is that they come up with this theory that, a person with a prior DUI… and they went to the alcohol program and they were taught the dangers of drinking and driving and then when out and killed somebody, they would end up being charged with a felony. Now when people get their driver’s licenses renewed, it’s at that point in time when the DMV is warning everybody that if you’re driving under the influence and you kill somebody you can be charged with murder. So this has been a significant, significant change in how things have been done. So it’s a combination of many things but DUI arrests, though, I think are not necessarily going down. Especially with this economy. A lot more people are drinking; a lot more people are obviously drinking and driving in California.


Skilled Orange County drunk driving and DUI lawyer Myles Berman continues his discussion with radio host Tom Leykis. Here they speculate on how the poor economy may be contributing to drinking and driving. To learn more about your legal rights in a drunk driving case, contact the skilled Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: I think a lot more people have free time because they have been given pink slips and we’ve talked to people on this program who were drinking to forget or were drinking because of all the bills or drinking because it’s the holidays and they can’t afford to buy Christmas presents or whatever.

Myles Berman: Yeah, I absolutely agree with that. And we’ve been getting a lot of calls, especially over the last couple of months—noticeably—for people who have been arrested for DUI. There’s somewhat of a panic now because, what you said, there is a lot of free time. A lot of people are out of work. Those people who are not out of work are even more concerned with their jobs than that have been in the past because we’ve always heard, you know, cops say you should take your lumps. Other organizations and groups: if you’re arrested you should plead guilty and just go through the system and, “big deal, it’s just a DUI.” Well now, corporations and companies will be looking for any particular type of reason, more so, I think than before.

Leykis: I’m real curious about something because I know you’ve handled all sorts of cases, and I know people who have—and of course there are some companies who are just cut their Christmas parties down to zero. There are others who still have Christmas parties because they think that in an economy like this it’s important to cheer up the troops but I’m curious, you know. It’s interesting to me how many companies provide unlimited free booze frequently because they are cutting down on budgets. They cut back on the amount of free food they offer people, making the problem even worse—exasperating the whole situation—I’m curious if you ever have a situation where someone goes to the company Christmas party because they’re expected to be there. They go; they drink the company’s booze. They go; they’re not getting much to eat. They get in a car. They get pulled over or worse they cause some kind of property damage, or worse yet, human damage and on top of that, the company says, “you know what, you’re fired because you’re not an exemplary employee.” I wonder how many people get blamed for that.

Myles Berman: I think that’s what we’re talking about. Because of the economy. The stress that some companies are under right now, that if someone goes to a party and they end up sloshing down too much or becoming goofy… I didn’t want to say other words (laughter). It rhymes with “hitface.” But people are at a much greater risk, especially with what’s going on in the economy. It’s a big thing.


Here Orange County-area DUI lawyer Myles Berman and radio host Tom Leykis clarify what a drunk driving attorney strives to accomplish, clearing up misconceptions about the job the attorney does for his or her clients.

Leykis: Now every time we talk, you talk about the fact that you perform a necessary job and that under the constitution everybody is entitled to a defense but your job is controversial. A lot of people don’t like you and don’t like what you do, and don’t like what they believe you stand for. You’re not in favor of people driving drunk and getting away with it, are you?

Myles Berman: Absolutely. I don’t want people drunk driving on the road. We all want public safety and I’m all for public safety and law enforcement, but that’s not the issue. The issue is once someone gets arrested for driving under the influence, then they’re facing a whole other scenario. I mean many of our clients. Probably a large, overwhelming majority, tell us that they never thought that they would be sitting in their seat, you know, talking to us. It was always somebody else. And now that they’re in the situation the have a different outlook on it because they are seeing the full force of the government coming down on them and at risk is their job, their reputation, their freedom, their home, their livelihood. I mean everything is at stake. So, why we feel so comfortable, and I don’t apologize for what I do, as a matter of fact I’m very proud of what I do. You know, the government has DUI prosecutions based on what I think is voodoo science. Breath testing machines, I don’t have any confidence in them. I’ve seen too many errors. I’ve seen too many inconsistencies to feel that they’re reliable. From the other point of view, when the cops do their investigation, these are the only tools that they have, the field sobriety exercises. We’ve talked about this before. One of them, just to give you an example, is where a person is made to close their eyes and they hold their fingers out and they’re told to touch the tip of their finger to the tip of their nose six times in different sequence. I have never seen someone driving down the road with their eyes closed, and with their index fingers, touching the tip of their nose. Walk the line, that’s another example. People are very nervous, and we’re getting older—not you so much, Tom, but (laughter). And Gary’s not at that stage yet but you know this morning I got up… my ankle was stiff. I don’t know why, but at a certain age the body starts to work differently and if you’re a gymnast and you can do these exercises then it’s a lot easier. But for the rest of us, it’s very difficult to do these exercises and especially under the stress of being taken out of your car and ordered to do things by a stranger who happens to be a police officer, and do it to the officer’s satisfaction.


Drunk driving attorney Myles Berman and radio host Tom Leykis continue their discussion by talking about the penalties for drunk driving / DUI. To learn more about your legal rights in a drunk driving case, contact the skilled Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: Let’s talk about what the penalties are these days in California for DUI. I keep hearing that the blood alcohol content to be declared guilty of a DUI will be going down again at some point? They’re talking about it, or what’s happening with that?

Myles L. Berman: No. I don’t believe it. I think that across the board, the entire country is at .08. And again, I tip my hat to some of these organizations that know how to lobby effectively to get congress to require the states to lower the alcohol level to a .08 across the board. Otherwise they were going to withhold state funding. So I don’t think that at this juncture, especially with the economy the way it is that it’s going to go any lower.

Leykis: If they really wanted to stop drunk driving, wouldn’t they have tougher laws than they have and when I say tougher, and we talked about this earlier, wouldn’t they have laws that say thinks like, first violation: mandatory loss of your license for a year. Second violation, mandatory five years in jail. Third violation, 25 years in prison, without possibility of parole. Wouldn’t they make the laws really tough instead of nickel and dime everyone on alcohol reeducation programs and court fees, which, you know…? I mean c’mon, we all know that’s the real reason why they don’t have tougher laws. Because you see these stories about people who have three DUIs, four DUIs, seven DUIs, and in some states you see guys with 16 DUIs and they’re up there again. Now, come on! If you really wanted to stop this, there would be a cap on that.

Myles Berman: You know, I think that the only way to stop people from drinking and driving is you just get rid of alcohol. Prohibition. I think that’s the only thing that’s going to do it. As far as the penalties go, the overwhelming majority of people that get arrested for DUI are first time offenders and never repeat. That’s a majority of the people that are getting caught up in this web of repeat offenders like you’re talking about. I’m not so sure that it would actually be feasible to have some draconian punishments for second, third, and fourth offenders. Now, in California, your fourth offense within 10 years is going to be a felony. In other states, and I think it’s Alabama or Arkansas—one of those A states—if you have your third or fourth lifetime, it’s a felony. California is moving in that direction. It used to be a repeat offense within five years, then seven years. Then a few years ago they changed it to 10 years. So they compromised on 10 years and we’re telling our clients at the very beginning that if they’re convicted of this DUI, that right now it would stay on their record for 10 years, but eventually I believe it’s going to go to lifetime. I’m 100 percent convinced of that.

Leykis: Our guest Myles L. Berman and he’s a drunk driving attorney. He defends people that are accused of DUI. That’s what he does. Of course, everybody, no matter what their opinion of what he does, everybody will eventually want to remember his phone number at that point in time because, guess what? Even the people that think that what he does is wrong, if somehow they got caught… maybe you took Nyquil before you went out, who knows what you did… the point is you can sit there and wag your finger but someday, you might just have to talk to somebody like Myles. By the same token there are some people that get angry. We’ll talk to all-comers here. 1 800 5800 TOM. It’s 1 800 5800 866 and during the holiday season, what better time to talk about drunk driving for God’s sake?



In this part of the interview, a police officer calls The Tom Leykis Show and expresses his concerns about people beating drunk driving charges on technicalities. Myles Berman, a skilled DUI and drunk driving attorney, applies his legal expertise to this matter and addresses the officer’s points.

Leykis: Here we are. 97.1 FM talk. Tom Leykis. Now with the shortest commercial breaks we’ve ever had. Ever. We’re on seven days a week whether you like it or not! And we are here with DUI Attorney Myles L. Berman. Your telephone calls at 1 800 5800 TOM. Tim on The Tom Leykis Show. Hello.

Tim: Hey, Tom, what’s going on?

Leykis: Not much.

Tim: Hey, I’m a police officer and it’s just it just blows my mind. I know that people have the right to a fair trial and stuff, but the amount of people that get out of DUIs just because of technicalities just blows my mind.

Myles Berman: Well I don’t agree that when somebody’s found not guilty, that’s a technicality. I don’t agree that when a police officer doesn’t follow the law that that’s a technicality. I don’t agree that if the state’s expert can’t correlate what the alcohol level was at the time of driving is a technicality. What are you talking about, is a technicality?

Tim: Well you know they’ll get out of it just because, uh… probable cause to get pulled over—

Myles L. Berman: Probable cause. Our Constitution is founded on the principle that somebody shouldn’t be arrested without probable cause. How can you describe The Constitution as a technicality? It’s mind boggling.

Tim: Well, I’m not disagreeing with you on that. The thing is you’ll see guys that are blatantly drunk that can’t pass their field sobriety tests. They blow over a .08 and they get out of it.

Myles L. Berman: Well first of all, you believe that the breath tests are 100 percent accurate. And I just don’t agree with that. As far as the field sobriety tests, just because somebody has booze on their breath doesn’t mean that they don’t do it to your satisfaction because of the booze. It could also mean, and most likely does mean, it’s caused by nervousness and unfamiliarity with the area or these exercises. You’re not with the CHP are you? I guess he’s gone.

Leykis: He is gone. Look at that. 1 800 5800 TOM. That’s our telephone number.


Here DUI attorney fields a question from a caller who claims his friend was mistaken for being drunk after taking Nyquil. To learn more about your legal rights in a drunk driving case, contact the Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: Justin on The Tom Leykis Show with Myles L. Berman. Hello.

Justin: Am I on?

Leykis: I just said you’re on.

Justin: Oh, sorry my bad. I had a friend, Brian. He doesn’t even drink at all. This dude does not let booze touch his lips. His dad had an alcohol problem. And him and I were handing out one night and he was sick. I hear you mention the thing about the Nyquil because he had taken some Nyquil and him and I were going to go get something to eat and he was looking for his lighter because he was going to smoke a cigarette and I guess he swerved a little bit and we got pulled over. The cop immediately asked him if he had been drinking and he says, “No, I haven’t drank anything.” And he says, “Well, why your eyes are red?” And he says, “I’m sick.” And he says, “Well, why does it smell funny?” And he said, “Well, I took some medicine.” And he’s all, “Can you step out of the car for me please?” And he did the whole sobriety thing. I’m sitting there watching the whole thing and I’m like, “Officer, I’ve been with him the entire night. He hasn’t even touched booze.” And they were even going to go to court. My friend had called me and told me that they were going to court, but the cop never showed up and they dismissed the case. But I was wondering can they actually get you on taking Nyquil.

MylesBerman: Well, first of all you experienced through your friend somebody who got arrested for DUI who didn’t even have any alcohol. So can they do it? Sure.

Leykis: Wait a minute. Wait, wait, wait. Now Nyquil is 20 percent alcohol. So it’s 40 proof.

Myles L. Berman: You got me there, Tom. (Laughter)

Leykis: He did have alcohol.

MylesBerman: I mean all these years. You’re right. He didn’t have an alcoholic beverage. He was taking Nyquil, and so had he not had the courage to fight the case, then yes, he could have ended up being convicted, but we represent many people who are arrested for driving under the influence but not alcohol. There could be drugs or something else. The problem is that the police… their job is to get who they think as a danger off the road and let the court take its course. They’re so jaded because often people deny that they’re drinking or have had anything to drink, or had a couple of beers, or a couple of drinks, and they’re just very suspect, so they’re going to err on the side of arresting somebody and bringing them in. But the force of the prosecution. The full force of the government can be overwhelming.

Leykis: Thank you, Justin, for the call. It’s 1-800-5800-TOM.


In this segment, Myles Berman, a drunk driving defense attorney serving the Orange County area, takes another listener question on The Tom Leykis Show. He addresses the question by making a larger point about what you ought to do after a drunk driving arrest.

Leykis: Robert on The Tom Leykis Show. Hello.

Robert: Hey, Tom. I have a quick DUI question. About eight years ago I was driving my girlfriend home. It was a rainy night. I dropped her off and on my way home I lost control of my car. I had been drinking and drove off the freeway. I left the scene and went to her house. And when I got back about a half hour later the cops were there and then they arrested me, but I was always curious as to if I could have got out of that.

MylesBerman: I guess you didn’t have my phone number 888-4-TOPGUN back at that time, but you may want to keep it—God forbid—something like that should happen again. In any case—I forgot the question (laughter).

Robert: I drove my car off the freeway and it was raining so I ran to her house. No one saw me. I was in a ditch off the freeway. No one could see my car. The prosecution has to prove that you were driving the car independent of any statements that you may have made. So they can do the investigation and it depends on who says what to who. So if you say you were driving or your girlfriend says that you were driving. Yeah, they can put the case on you.

Leykis: Now besides calling you and I know that’s what you’d like everyone to do, what should people do when they get pulled over—or not do?

MylesBerman: I’ve always been saying this. If you’re older than 21, absolutely refuse to take the portable breath test before you’re arrested. It’s completely voluntary. Field sobriety tests are completely voluntary. You don’t have to do them. You don’t have to tell the officer where you’re coming from or where you’re going to. I mean you can stand on your rights.

Leykis: Is it possible that would make the officer more suspicious and make him ask more questions?

MylesBerman: I think it’s very possible, but if you think about it and you believe in the system like I do, if the officer doesn’t have enough evidence you, then either the arrest itself can be thrown out, or more than likely, the prosecution won’t have sufficient evidence to convict. So, it’s up to the government to prove their case and prove beyond a reasonable doubt if they can. So yeah, the officer may get upset, but you may be going to jail anyway. So it’s a judgment call people have to make at the time.

Leykis: More from Myles L. Berman coming up.


Here DUI lawyer Myles Berman briefly fields a question about whether or not Eucalyptus breath mints can beat a breathalyzer reading. To learn more about your legal rights in a drunk driving case, contact the Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: It’s The Tom Leykis Show with Top Gun DUI Defense Attorney Myles L. Berman and your telephone calls at 1-800-5800 TOM. We’re whipping through these phone calls here. Casey on the show. Hello.

Casey: How you doing, Tom. I have a question. I heard this rumor that they have like, Eucalyptus mints from… might be Australia, I don’t know, but they reverse the effects that the breathalyzer has on your breath. So it comes out as if you haven’t been drinking.

MylesBerman: I find that hard to believe because the way the breath test machines work, they actually measure the carbon hydrogen bond between the alcohol molecule. That’s what’s in the breath. So I can’t scientifically rationalize how anything could counteract that type of measurement. Even though I don’t believe the measurements are accurate. Now it may somehow counteract the breath, the smell, the odor of alcohol. But I’m not so sure that will work either. So I wouldn’t rely on that.

Casey: Okay. What do you think I should do to research it?

Myles L. Berman: I guess you can search Google and see what comes up.

Leykis: We should point out that Casey is 19 years old and is not supposed to be legally drinking at all.

Casey: I don’t do it, I was just wondering.

Leykis: Yeah, you were just wondering. You don’t do it yet, but you’re heading, for God’s sake. 1-800-5800-TOM is our telephone number.


In another listener call on The Tom Leykis show, Orange County-area DUI and drunk driving lawyer Myles Berman notes that there are many ways to fight a DUI charge. The ways would have to be discussed with a drunk driving defense attorney who knows the details of your case, however.

Leykis: It’s Dave on The Tom Leykis Show. Hello.

Dave: Hey Tom. Long time, first time.

Leykis: Thank you.

Dave: First of all, I’ve had two DUIs. Both were in Northern California. The first one I refused the breathalyzer. I had heard before to refuse the breathalyzer so on the first one I refused the breathalyzer and it actually went real well for me. They booked and released me within about an hour and I got off with that one with a wet and reckless. About eight years later I got pulled over again and I was leaving a bar. I got pulled over maybe about three blocks away from the bar and the police officer followed me from the bar. He saw me leave the bar, followed me from the bar. I failed to use my right turn signal and at that point he pulled me over. I got a lawyer on that one as well, and even though it was my second, I was able to get that reduced to a wet and reckless. My question is, because of the fact that the police officer seen me leave the bar and he followed me from the bar, could I have fought that one even more and possibly got it off my record?

Myles Berman: Well you haven’t given me enough facts to make that decision based on the way you put it; however, there are always ways to attack a DUI case, and it’s not just how you put it: the officer following you. And by the way I have a new interactive video website at and on the website you’ll be able to navigate and find out, I have DUI cop hideouts in California, because you had mentioned that the cop stopped you after you left the bar. And also Southern California DUI checkpoints. And I have police agencies sending me emails and responding and sending me information where checkpoints are being held so I’m pretty confident that when I get them from the police department that it’s pretty accurate. But just to finish up with your question, the types of defenses and the ways to attack a DUI case are virtually limitless. It’s just up to the imagination and the creativity of the attorney who is handling the case.

Dave: Ok, thank you very much. Like I said I think I did pretty well. I was able to get the second one reduced to a wet and reckless as well. So, the lawyer worked.

Myles Berman: Well, if you’re happy, that’s all that counts.


DUI lawyer Myles Berman helps out another caller to the Tom Leykis show. Here Myles Berman suggests transportation options to consider if you are drunk and do not want to be charged with drunk driving. To learn more about your legal rights in a drunk driving case, contact Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: 1-800-5800-TOM. It’s Tom on The Tom Leykis Show for Myles L. Berman. Hello.

Tom: Hey, Tom I got a problem here. I got a little situation. I have two Christmas parties this week, coming up and I’m definitely, definitely going to be hammered, but I need to drive. I need to. That’s how I get around. What do I do?

Myles L. Berman: Well, you definitely have two potential problems. And knowing that you may get arrested or worse yet, you may get into an accident and injure yourself or someone else. You may want to bring a hundred bucks and take a cab, which a lot of people do. And even if it’s 200 bucks.

Tom: I live in Los Angeles and cabs are not too safe here when you get hammered.

Myles L. Berman: I don’t know about that, but I imagine that they’re safer—

Leykis: Wait a minute. Anyone that has a problem with cabs, call a limo service and get a sedan to come pick you up.

Tom: I’m working on a budget, Tom. You know the economy right now.

Leykis: Well, I understand that, but what would your budget be if you got nailed for a DUI and you had to pay Myles L. Berman or anyone else to defend you and pay all the court costs and pay everything else? What about that?

Tom: That’s true. That’s absolutely true.

Leykis: Myles is very good at what he does but the idea is you don’t want to get into that situation in the first place.

Tom: You’re right, but I’m a party kind of dude, so…

Leykis: Well, so am I.

Myles Berman: So bring a date who doesn’t drink.

Leykis: What good is that? (laughter)

Tom: I don’t do dates.

Leykis: I’m with you on that… I’m with you on that, Tom.

Tom: I carry a lot of cash in my pockets and me hammered with cash—that’s why I’m driving myself. Me hammered with cash; I want it to be me who takes it out of my pocket.

Leykis: Well you probably need Myles’ phone number since you clearly are not going to answer to any of the alternatives I’ve given you and you’re going to take that kind of chance, there is a good possibility that you’re going to get caught.

Tom: True. True. How much is a DUI ticket?

Myles Berman: Well, that all depends on the individual case and the facts and circumstances.

Leykis: The ticket is the least of your worries.

Myles L. Berman: Yeah, if someone is convicted of DUI, insurance alone can go up 15-to-25 thousand dollars—over a period of years. We talked about possibly losing your job. The dangers that can occur for somebody who is drinking and driving, but God forbid something should happen, 888-4-TOPGUN. Keep it with you.


In a brief break from fielding questions, radio host Tom Leykis talks with Orange County-area DUI lawyer Myles Berman about how to contact his law firm.

Leykis: And that’s the thing because people aren’t probably going to hear your commercial or hear your voice at the moment they get caught.

Myles Berman: You know, surprisingly we’ve been getting calls since we’ve been advertising on this station, we’re getting calls from people as they’re getting pulled over. We’re getting calls from people who are with somebody as they’re getting pulled over. Yeah, that’s the effectiveness of this station.

Leykis: You could tape those and sell them! (laughter) I’ll bet there is some real action there.

Myles L. Berman: Well, you mentioned before that people should take the number and write it down and I think they absolutely do. I don’t know if they put it in their cell phone and they have it there, but we get calls before some people are actually arrested.

Leykis: Can you imagine somebody who gets arrested and they are drunk and they’re trying to remember your phone number? Um, who is that guy I heard?

Myles Berman: It wouldn’t surprise me if the officer would remember 888-4-TOPGUN. It wouldn’t surprise me at all.

Leykis: I don’t think he’d tell you.

Myles L. Berman: That’s a different story. Actually, we represent a lot of police officers and police officers also refer people to us, as well. So this can happen to anybody and everybody and it does happen to anybody and everybody. There is no particular profile of a person who gets arrested for DUI. The only thing that comes to mind is when women get arrested for DUI, there is a common denominator and that is they’re depressed about something. They either got jilted or something happened in their family—and they’re going to the bar to drink and on the way home, that’s when they get arrested for DUI.

Leykis: These are the women you want to meet at the bar. You don’t want to let them get in their cars.


In this segment, DUI attorney Myles Berman addresses a comment from a caller who was charged with a DUI just from walking from one bar to another. To learn more about your legal rights in a drunk driving case, contact the Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: John Carlo on The Tom Leykis Show with Myles L. Berman.

John: I got a little situation. Back in July I got a DUI when I was walking to the bars.

Myles Berman: First of all if your case is still pending you heard the phone number 888-4-TOPGUN; please feel free to give us a call tomorrow, but the police officer probably thought you were driving. You went from point A to point B and you were stopped but you must have been driving. Were you driving before you started walking?

John: Well, yeah. This is what happened. We met with some friends downtown where I live and we had a couple beers and it was about 10 at night, so they had to go home, so I was like I’m going to go home and then walk back to the bars, so we all left and on the way here they pulled over one of my buddies, which I didn’t know at the time that he got pulled over. So I get home. I have a couple drinks. I take off. As I’m walking back, he’s taking the sobriety test and the cop looks at me. I’m probably about 10 yards away, 15 yards away and he says, “Oh you’re that other guy.” I was like, what are you talking about.

Myles L. Berman: Yeah, you know your story doesn’t surprise me because often times we represent people who were driving earlier and they went home and then the officer arrived at the home. Or after they went home they went somewhere else and they were maybe mistaken for driving earlier. Or the car was involved in an accident, but it’s not uncommon for somebody to be drinking once they get home because something happened, and then of course sometime the cops come to the home at that point in time. We’re going to see—especially if you’re driving great distances—you’re going to see signs that say “call 911, report a drunk driver,” they’re all over the freeways. IF you’re driving erratically, typically what will happen is that the caller will call in the license plate number and the description of the car. Sometimes people actually follow the driver they think is driving under the influence, but often times the driver gets off the freeway and ends up going home and the police now have the guy’s or lady’s home address based on a driver’s license and they do an investigation there. So you have to be extra careful. Extra cautious, but at the same time it’s not actually uncommon for someone to be pulled over not having been observed to be driving by the officer.


Spinning out of the previous call, radio host Tom Leykis asks drunk driving attorney Myles Berman if you necessarily need to be driving to be charged with a DUI. The answer proves to be both surprising and enlightening.

Leykis: Well that’s my next question. Do you have to be driving? Of course D in DUI stands for driving, I thought, and I don’t know how much of this is true because so much of this is anecdotal. I have heard that you don’t have to be driving to get a DUI. For example, you’re drinking and you realize oh my God I’m 20 miles from home so I’m going to go sleep in my car. I get in my car and I go to the back seat and I go to sleep. And pretty soon I see a flashlight in my face and somebody knocking on the window. Can I get a DUI just sleeping in my back seat?

Myles Berman: The answer is yes, you can get arrested. Now whether you’re convicted or not is another story. Those types of cases—and we see those a lot as well—those types of cases are very heartbreaking for me because people know the dangers of drinking and driving. If you’re somewhere—especially in California where there is no public transportation and you certainly can’t pull off the freeway and park your car in a strange neighborhood or go to a mall and leave your car there because you don’t know if the car is going to be there in the morning. So often times people pull over and sleep it off. They’re being responsible. They’re absolutely doing the right thing. But the problem is that they stay in the drivers seat and so what people should do is—and we also have something about this at my website as well at—that if you’re—I think one of the videos has this—if you’re pulling over and you want to sleep it off, you take the keys out of the ignition. You put the keys in the glove box. You don’t even have the keys on you. Obviously the car is off and get in the back seat at that point in time. So at least you don’t have control of the car while the car is there. And that’s what the real key is.

Leykis: Now I once heard a story about someone who was staggering around in the vicinity of his vehicle but had no intention of getting in the vehicle, did not get in the vehicle. He did have a car key on him, but he just happened to be on the same block as his car and the cops saw him and arrested him on a DUI. Is that legal?

Myles L. Berman: Well, it can be if when the cops approached him he said he was driving and he drove the car there at a certain point of time.

Leykis: Even if he wasn’t drunk at the time he drove?

Myles L. Berman: Is it legal? The arrest? There may be probable cause but that’s not the real test for a conviction.

Leykis: This is the part that doesn’t make sense to me. It’s driving under the influence. DUI. Unless you’re driving a car, I don’t see how anybody can be arrested for driving if they’re not driving.

Myles L. Berman: Because the police suspect that somebody drove the car there and they find somebody who they think is the driver and ask the driver where you came from. And, were you driving? And if the driver says, yes I was driving. I parked the car there a half hour ago or fifteen minutes ago, or two, three hours ago and they smell like booze now, then the cops are going to conclude and the state is going to want to prosecute with the theory that whatever the person’s alcohol level that that have at that point in time, they can try to scientifically figure out what the alcohol level was at the earlier point in time. And that’s where the science kind of comes into play where we refute that, often times. But, yes, it’s quite possible that even if you’re not in your car or near your car or driving your car, that you still can get arrested for a DUI.


After discussing the twists and turns in the laws regarding driving/not-driving and DUI charges, drunk driving defense attorney Myles Berman and radio host Tom Leykis stress why it’s so important to have a skilled lawyer at your side during legal proceedings. To learn more about your legal rights in a drunk driving case, contact the skilled Orange County DUI lawyers at the law firm of Myles L. Berman.

Leykis: And that’s why people need to hire an attorney. That’s why people need to hire an expert because, honestly, this stuff is way over our heads unless that’s what you’ve been trained and that’s what you understand. And me, by the way, I have, for any variety of reasons, I’ve got 12 great attorneys under retainer at any given time and I never skimp on that stuff because, frankly, I’ve never lost a dime hiring a great attorney.

Myles L. Berman: Yeah, you’ve said that and I’ve actually paid attention to what you said, as well. Yes, having the best attorney that you can have represent you is the smartest thing that you can do. It’s like surgery. If you have a tumor you’re not going to operate on yourself. And people think that just because somebody is arrested for DUI doesn’t—

Leykis: You know, I think people watch The People’s Court and Judge Hatchett and Judge Judy and they see these morons coming into what’s supposed to look like a small claims court and they come in and they defend themselves. I think there’s morons out there that watch this stuff on TV, and then they have been accused of a serious crime like a DUI and they think that they’re going to go in and do it themselves.

Myles L. Berman: Yes, and actually people who know, like us, who know what they’re doing—not everybody knows what they’re doing in this area. But we know what we’re doing and we know how to get the results and quite frankly, prosecutors and police officers know that we know what we’re doing and that’s why they refer cases to us. But when somebody is arrested for DUI it’s just like you say, Tom. It is a serious matter and it is something that should be attended to. We hear in the media, don’t drink and drive and it’s not against the law to drink and drive. At least not yet, so far. But people just assume that because the police are trained and because they use a breath test machines that somehow it must be accurate and that’s just not the case.

Leykis: We’ll take a break and more of your telephone calls with DUI attorney Myles L. Berman.


In this final segment of drunk driving lawyer Myles Berman’s appearance on The Tom Leykis Show, a listener wonders why he’s listed as having two DUIs on his DMV record even though he had one of his two DUIs charges dropped in court. Myles Berman also gets to stress again why having a drunk driving lawyer is so important if you are charged with a drunk driving offense.

Leykis: We’re here with DUI attorney Myles L. Berman and before Myles gets out of here he’ll give you his phone number, he’ll give you his web address. You’ll have 63 ways to get in touch with Myles and I’m sure during the holiday season that somebody listening is going to have the unfortunate experience we’re talking about. Let’s say hello to Freddy. Freddy on The Tom Leykis Show. Hello.

Freddy: Hello, Tom. This is an amazing story. I was 19, blew a .01 and I wound up fighting it and in the court of law I got it all taken care of, but the DMV—because I was under 21, I guess because of mothers against drunk driving—marked me as having a DUI. Fast forward five-and-a-half, six years, now I legitimately get a DUI. Now I go to court, I do the whole thing. I do the class and everything, but in the court of law I have one DUI, now on my DMV record I have two.

Myles L. Berman: Actually you have one DUI and two administrative actions against you. That’s what you have. Did you have a lawyer represent you either time?

Freddy: The first time, no and the second time I didn’t either. Not at all.

Myles L. Berman: That was a big mistake. You should have had a lawyer represent you. Especially under 21, we represent a bunch of people who get pulled over and it’s zero tolerance in the state of California. It doesn’t mean that just because you blew the .01 that you’re automatically going to lose your license for a year and he same thing if you’re arrested for DUI doesn’t mean you’re going to lose your license for four months if you take a test—or you can be convicted of DUI .

Freddy: Correct. And see that’s the thing that boggled my mind was the fact that—I wound up going to court and fighting it. I didn’t have a lawyer but I did fight it, but what happened was I guess the officer didn’t show or it took so long that the officer just didn’t show up and so they dropped the case. So in a court of law, I really only have one, but in terms of my DMV report, it shows that and my insurance is through the roof. It caused a lot of problems in terms of when I got my legitimate DUI, typically there is like a three month period where it’s no driving and then you can ask for a license with a restriction.

Myles L. Berman: I don’t know of any DUI that’s not legitimate but I understand what you’re saying. But you went through the system twice but please, next time, if something should happen to you—God forbid—hire a lawyer. Our phone number is 888-4-TOPGUN. Our website is It’s a brand new interactive video website. There is a lot of information in there. I wish everybody a safe and sober holiday weekend and a happy healthy new year.
Leykis: Booze it up and don’t get caught doing something bad.

DUI and drunk driving defense lawyer Myles Berman represents clients throughout Southern California, including Orange County, Los Angeles County, Riverside County, San Bernardino County, San Diego County, and Ventura County. If you have been charged with a DUI, contact Top Gun DUI today.

Top Gun DUI Defense Attorney Myles L. Berman

Get your questions answered - Call now for a FREE case evaluation (888) 486-7486

Accessibility Accessibility
× Accessibility Menu CTRL+U