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FM Station 95.5 – Miss Mark & Brian – August 19, 2011


Caroline: Hey guys, I’m Caroline Martin, Miss Mark and Brian 2011. I’m here with Top Gun DUI defense attorney Myles L. Berman. How are you doing?

Myles: Good, how are you doing?

C: Good. Everyone knows that getting a DUI can be a life-changing experience. So today we’re going to be talking about DUI checkpoints and what you can do if you’re stopped for a DUI.

M: Sure, I’d be happy to do that.

C: So, let’s say it’s 2 in the morning and you’re coming back from a club and you’ve had a couple of drinks. What should you do if you see a DUI checkpoint?

M: Well first of all, DUI checkpoints are designed to try and get people to drive into them. But they are also, there’s a requirement that checkpoints have to have an escape route. But people need to be aware that many times, there are motorcycle officers, who I like to call scouts, who are looking for people who are avoiding the checkpoint, even though you have the right to avoid the checkpoint, and they’re just looking for any type of vehicle code violation to pull somebody over. So you have to make a judgment call as to whether or not you want to go through the checkpoint, because like I said, you have the right not to. Once you go into the checkpoint, the officer is going to ask you for your drivers license, and start asking you if you had anything to drink. While you’re doing that, they’re going to be trying to determine whether or not they can smell alcohol. If they do, then they’re going to ask the person to pull over to another area. Now, this is in general, once you’re at that point and you’re being investigated for DUI, the police officer is going to ask a whole series of questions. Now people actually do not have to answer the questions if they don’t want to. They have to identify themselves and give them their drivers license and registration, but these questions are designed to illicit incriminating information. So if a person wants to cooperate, most likely they’re going to say things that may be harmful in a subsequent prosecution for DUI. So the questions and answers are something that somebody should consider whether or not they want to actually give them the information, because they don’t have to. The officer will then ask the person to get out of the car and then begin to field sobriety test the person. Now these field sobriety tests are completely voluntary, people do not have to do the field sobriety test. But police officers don’t tell you. It’s very intimidating when a person is in that situation, and the police know that. And so on the one hand, people want to cooperate, but on the other hand, nobody wants to get arrested for DUI. Because these can have tremendous consequences on a person’s life. If you’re convicted of DUI, you can end up losing your job, end up going to jail, losing your reputation, all kinds of things that can happen that aren’t necessarily good. They will eventually try and get to the point where, if you’re 21 and older, then the portable sobriety test that they want to give you before you’re arrested is completely voluntary, and the police have to tell you that it’s completely voluntary. If you’re under 21, you have to take it, otherwise you can lose your license and it’s zero tolerance. But we don’t believe these portable breath test machines are actually very accurate. As a mater of fact, there’s plenty of studies out there to show that breath testing is very inaccurate, especially when you’re looking to determine the alcohol level in a person’s blood. So once you’re at the point where the officer wants you to take the portable breath test, you have the right to refuse, and you should refuse that. It could lead to an arrest, but at least they don’t have evidence that we think is unreliable to try and prosecute somebody, at least from the scene.

C: All right, and so if you enter a checkpoint, what exactly should you do?

M: Well, a lot of people try and pin me down, and you’re very astute, and obviously Mark and Brian selected somebody who is very astute. It’s not for me to actually tell someone what they should or shouldn’t do when they go through a checkpoint, or when they’re investigated, all I can do is tell people what the requirements are and what their rights are. But I did say, don’t take the portable breath test machine because it’s very unreliable.

C: Got it. Now should people take a portable breath test before they’re arrested?

M: Yeah, that’s what we’re talking about. Again, if you’re older than 21, the answer is no, absolutely not. Because like I said, they’re very unreliable. After you get arrested, you have a choice of either a breath or a blood test. A lot of people think that if they choose a blood test they will end up delaying the time in which the blood results are obtained. Lets’ say they get arrested at 10 o’clock at night, they hang out for a blood test, whereas a breath test may occur within 30 minutes of 10 o’clock, 15 or 20 minutes. The blood test may occur an hour, hour and a half later. So people in their minds sometimes think that if they take a blood test, they’ll end up with a lower result later. The problem with that is in court, and first of all I have to say we’ve seen many cases, everyone thinks the legal limit is a 0.08, but we’ve seen many cases where people are actually charged under a 0.08.

C: I’ve seen that, too.

M:  Part of the reason is that they try to relate back, let’s say like a blood test an hour and a half after you’re arrested is a 0.08 or 0.09, or even a 0.07, they will say an hour and a half earlier, the person couldn’t be anywhere between a 0.10, 0.11 or a 0.09 because they’re saying at the time of driving you’re actually higher. Now that’s not always the case, and as a matter of fact in many cases, at the time of driving, the person is actually below the legal limit, and not impaired by alcohol. But sometime later they end up being at or higher than the legal limit. There’s all kinds of problems associated with, especially breath testing. Blood isn’t always accurate either. But breath testing, and the state is aware of this, but I bet you aren’t aware of it and most people aren’t aware of it, that breath testing often reads way too high.

C: I didn’t know that

M: And unfortunately, unless somebody goes through this process and goes to trial on the case, would never know what the reasons are. When clients come to us, we explain to them from the beginning the variations in science on why breath testing isn’t always accurate.  And one of the reasons why we’re successful at jury trial, which most of these cases are jury trial, is because we explain to the jury in as basic and simplistic terms as we can, that the science of breath testing shows that its not accurate to determine alcohol in a person’s blood. And in a DUI, that’s what a person is charged with, driving under the influence of alcohol and – two counts – driving with a .08 or greater.

C: Got it. So a blood test is 100 percent accurate or no?

M: No, a blood test is not 100 percent accurate. There are some problems associated with blood and often times, blood gets retested later by the defense, and the blood results are actually different that the defense measured than the prosecution measured. Now there are many types of reasons why the blood may not be accurate. But then again, if you still take into consideration the fact that a person’s blood test with the results of maybe an hour or two hours later, and that happens often, that doesn’t mean, that definitely is not the alcohol level of the person at the time of driving, so we’re able to show that even if there’s a blood test that’s at or greater than the legal limit at time of driving, the person’s blood alcohol level, by a blood test is actually lower.

C: Interesting. Now if you’re just joining us, I am here with Myles L. Berman, Top Gun DUI defense attorney, and we’re talking about DUIs. You can reach him at 888-4-TOPGUN, again 888-4-TOPGUN. Now what should you do if someone knows that they are too drunk to drive?

M: You know that’s a great question. The law can still be pretty tough, but this is what I think people should do. If you believe that you have had too much to drink, you should, actually first of all, not get behind the wheel of a car, but sometimes it happens. I’ll give you an example why people who have a higher alcohol level later actually aren’t impaired earlier at the time of driving. I assume that you drink alcohol.

C: I do.

M: It doesn’t hit you right away, it takes awhile to go through the body. And sometimes, again, different people have different amounts of alcohol that can affect them and make it more difficult, make them impaired and possibly a drunk driver when they get behind the wheel. Now having said that, nobody is a drunk driver until a judge or jury says that. So getting back to…what was the question again?

C: What should someone do if they know they’re too drunk to drive?

M: Oh yeah. Thanks for bringing me back. I’m telling you, Mark and Brian got somebody good to be Miss Mark & Brian. Many times, we represent people who feel it’s better to be safe than sorry. They pull over, sometimes they pull over on side of road, they pull over into a parking lot, they pull over wherever they’re at. But if they’re still behind the wheel, and the engine is running, keys in the ignition, car is on, and they drove there within a certain period of time, and more importantly,  they admit to the police officer when they drove – remember I told you earlier that you don’t have to answer the officer’s questions – the best thing to do is pull off, get away from any environment, take the keys out of the ignition, turn the car off obviously, put the keys somewhere away from you, get in the back seat, get out of the driver’s seat, and sleep it off. Obviously, if you can call a cab, if you can call for somebody to come pick you up and take you away, that would be preferable. But often times at 2, 3, 4 o’clock in the morning, there’s nobody to call. Sometimes people are far away from their home. Now in southern California, we don’t have public transportation.

C: No we do not.

M: So you’re out somewhere, you’re 10, 15, 20, 30 miles, or San Diego, or somewhere further north and you’re driving home, you don’t have that ability to take public transportation. And many people are in California who don’t necessarily have family here, they come here for the dream. There isn’t somebody to call. So again, definitely get off the road, definitely do the right thing and get yourself out from behind the wheel of the car. When the officer asks you, ‘What are you doing?,’ say, ‘I’m sleeping.’ If he asks you if you drove, or when you drove here or what time you drove, again, if you give him the information, it can be used to prosecute you.

C: Got it. What’s happening with the new ignition interlock device laws?

M: This went into effect recently. It was last year, where in five counties in California, but here down in southern California, Los Angeles is the big one, that even on a first offense DUI, if somebody is convicted to DUI, they must install an ignition interlock device on any car they own or have access to, unless it’s a work provided car, for five months. It’s the personal cars. This has become very commonplace for this imposition of the sentence in Los Angeles and the four other counties. It’s a pilot project. I’m pretty confident that after the pilot project ends, and the five counties talk about their statistics, that in effect, this will go throughout the state of California. So I’m sure anywhere and everywhere in the state of California, anyone convicted of DUI, first offense, is going to have to install an ignition interlock device in their car. Now look at it from another point of view. Let’s assume it’s a husband or a wife, either one of them gets a DUI, and both cars are registered to both people, in both names, and the person who’s convicted, the spouse winds up having to install an ignition interlock device on all of these cars that they own.

C: All of them?

M: Yeah, any car you own or have access to. So now let’s assume it’s the husband that gets the DUI. And he’s not taking that car to work, and the other car is in the shop having an ignition interlock device being installed. So the wife takes the kid to school in the car that has the ignition interlock device in it. It does have a deterrent effect, there’s no question about that, but also it’s kind of like a scarlet letter. Or a businessman who wants to entertain somebody and take them out to lunch, a businesswoman who wants to entertain someone and take them out in their car, they have to have the ignition interlock device installed in their car and obviously there’s going to have to be an explanation for it. So there’s basically two reasons why they required that. One is for the scarlet letter, and two, because they believe that this will cut down on at least repeat offenses because if the car, before the car is started, and sometimes while the car is being driven, it requires a test, you have to be alcohol-free, the car won’t start or the car will shut down if you’re not alcohol-free.

C: What should someone do immediately after they’ve been arrested for a DUI?

M: You know it’s really important that immediately once they’re released from custody, they need to call an attorney who concentrates in this area. Hopefully they’ll consider us and call 888-4-TOPGUN, but it’s so important that an attorney get involved in it right away because the DMV needs to be contacted within 10 days in order to stop the suspension from going into effect. A temporary license is given to a person who’s arrested for DUI that’s good for 30 days. Many people are so upset about getting the DUI that they don’t even read the temporary license. They come to us even beyond the 10 days. Sometimes we’re still able to get a late hearing request, and stop the suspension from going into effect, it just depends on the individual circumstances. Sometimes when people get arrested for DUI, the police officer actually doesn’t give them the temporary license, and therefore the people don’t know that they have to call the DMV. Sometimes people feel that they want to call the DMV on their own, we don’t recommend that because we have inside numbers that we call the DMV, for attorneys, and we’re able to document the phone call and follow it up with a certified letter, return receipt request, confirming what transpired and confirming that we sent them the request, and sent in the follow-up written request, so that that first call is documented because once the license is suspended, obviously, people can have great difficulty like we talked about earlier, getting to work, getting around, getting to the doctor, taking the kids to school. These are all issues that need to be dealt with. That’s just for the DMV side. On the criminal side, and these are criminal cases, it’s important that we get involved, from our point of view, because we do a comprehensive evaluation. We immediately give the clients the paperwork necessary to document everything that transpired from that day, up through the date of the arrest, up through the release, so that witnesses can be – names, information and phone numbers can be captured, so that we have them for defending the DUI case. And again, it’s really important to document what transpired, the day leading up to the arrest and even after that.

C: I have one more question. How can people find out about DUI checkpoints?

M: Oh thank you, I’m glad you asked me that question. We have on our website, https://www.topgundui.com, checkpoints that we post for the upcoming weekend. So we get checkpoints sent to us from police agencies, we also do our own research to determine where checkpoints are, and then we post them for the upcoming weekend. Usually on Thursday, Friday at the latest. That site actually gets lot of hits, on a weekly basis for upcoming checkpoints. We also actually have a site, a page called Southern California  DUI Cop Hideouts. There, people also send us locations where police actually hide out. It’s pretty well-known there are many bars and restaurants that serve alcohol into the wee hours of the morning and police officers often times scout the area looking for people coming out of those areas and actually get investigated and arrested for DUI. So check out our Web site at www.topgundui.com, we’ll not only let you know where checkpoints are coming up and where DUI cop hideouts are, and a whole host of other information that we have, including a partial list of successful cases, which is quite extensive.

C: Well that’s very, very helpful. Thank you.

M: Thank you very much.

Top Gun DUI Defense Attorney Myles L. Berman

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