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Lawyer Reviews DUI Questions with FM 97.1


DUI attorney Myles Berman sits down with LA FM 97.1 radio’s Frosty, Heidi, and Frank to review common questions about DUI laws prior to the holiday weekend. Topics such as how to behave at DUI checkpoints, the accuracy of BAC testing methods, and drivers’ rights when pulled over are discussed. A well-known DUI defense lawyer with three offices serving areas throughout Southern California, including Los Angeles, Riverside, San Diego, Thousand Oaks, and Ventura, Mr. Berman and his team of DUI defense lawyers can assist individuals facing DUI charges. If you have been charged with driving under the influence, read on to learn more about your rights or contact the DUI lawyers at Top Gun DUI for a free consultation.

HOLIDAY DUI CHECKPOINT NOTICE

Ventura/Thousand Oaks DUI attorney Myles Berman begins the interview with information on a DUI checkpoint scheduled for the holiday weekend near his Los Angeles office. While educating listeners about the checkpoint time and location, he offers his thoughts on the aggressive tactics of the Beverly Hills police department. Related information is also featured in Mr. Berman’s video interview on cop hideouts.

DJ: Frosty, Heidi, and Frank. And a special guest that we haven’t seen for the longest time. I’ve seen you walking the hallways. We wave at you now and again through sheets of glass, but now he’s in the studio with us.  Top Gun DUI Defense Attorney Myles L. Berman has stuck his head in the door.

Myles L. Berman: Thank you. Thanks for the greeting. Glad to be here.

DJ: Now I’m not kissing but or anything, but Myles Berman is one of these guys that gets better looking with age.

Myles L. Berman: Thank you.

DJ: I don’t know what you looked like when you were younger but I guarantee—he’s a lot like Jack Silver, our boss here—you see old pictures of him and I’m like, oh, boy…

DJ: Yeah, Myles had an afro when he was in high school

DJ: I see these old pictures of our boss, Jack Silver, and I’m like, oh, my… how interesting. And now he’s grown into himself and he’s very handsome. I have a feeling that’s what I would think about you too. Like, see old Myles Berman pictures and say, “interesting…” (laughter) But you’re a very handsome man

Myles L. Berman: Thank you. I did have long hair when I was in college, but that was in the early 70s. It was in shag, is what it was called at that time. None of you guys probably know what I’m talking about.

DJ: Well Myles we’ve known you for about 8 years that we’ve been at 97.1, you really haven’t changed at all. Like a weird warlock sort of way. I look much worse than I did. I aged and you haven’t!

Myles L. Berman: I remember the first time we met. We had Japanese food at a restaurant in the valley, and you guys looks the same to me now as you did then. Except Frank looks more like a rabbi a little bit today.

DJ: Well, it’s good to have you on. How’ve you been?

Myles L. Berman: Good, thank you.

DJ: Big weekend this weekend.

Myles L. Berman: Yeah, actually this weekend I’m a little bit depressed.

DJ: Why?

Myles L. Berman: Well, I just found out that the Beverly Hills police department is doing a checkpoint starting tomorrow night between seven and noon right in front of my main office on the border of Beverly Hills and West Hollywood.

DJ: So you’re just going to get a lawn chair out there and just wait for guys. Pass out your cards.

Myles Berman: You know, they’re very aggressive and it’s going to be a very high profile checkpoint. And of course I’m helping education the public that there’s going to be this checkpoint as you exit West Hollywood into Beverly Hills tomorrow night between seven and noon.

DJ: Is this kind of a giant F.U. by the police department? I mean, to put it there, right in front of your office seems like they’re making a message of some kind.

Myles Berman: Yeah, I can’t tell whether or not they’re doing it intentionally to send a message to me, but that’s where they’re going to be doing it.

DUI CHECKPOINT LAWS

To help explain the confusing California DUI checkpoint laws, Mr. Berman provides insight into how checkpoints are supposed to be conducted and offers information about how drivers should behave at DUI checkpoints. Mr. Berman also discusses the topic of field sobriety testing and your right to refuse this test.

DJ: Myles L. Berman hanging out with us.—Top Gun DUI Defense Attorney. Now at a checkpoint, is it every car is checked that goes through or is it this random thing where they let a couple through or do they stop every car?

Myles L. Berman: Well, it depends. And there is going to be a lot of check points all over Southern California, all over the state and all over the country this particular weekend. This is one of the few really big weekends and we’ve talked about this in the past where checkpoints are actually big money raisers for the government. They have to get funded by the government so in order to get funded you have to make all these arrests to justify the checkpoints and they have a bunch of cops out there that get paid overtime because they’re not on regular duty. I mean it’s a whole big industry for law enforcement. This particular weekend there’s going to be checkpoints all over Southern California and they’re supposed to have—on your question—they’re supposed to have a neutral determination as far as who they stop. So the reason why I say that depends is it’s supposed to be every other car, every fourth car or every third car, or every sixth car, but what happens often times is as the night wears on and they don’t get the arrests that they’re looking for, because again, they have to justify the checkpoints, they start stopping everybody.

DJ: When do those checkpoints usually start in the evening? I mean, is it at 10 pm?

Myles Berman: Tomorrow night it’s going to be starting at 7 o-clock and I’m sure at different agencies they’re going to be starting at seven, eight, nine, but—

DJ: Do they last until 2 am or 3 am? All night long?

Myles L. Berman: Yeah, it’s going to be tomorrow until midnight but other agencies start at 8 and go until 2.

DJ: And the same thing is true—and this you taught us and I never knew—that when you’re pulled over, you don’t have to do a field sobriety test, right? So the same thing is true at a checkpoint.

Myles Berman: Correct. Field sobriety tests are completely voluntary. You don’t have to tell the officer where you’re coming from, where you’re going to, how much you’ve had to drink—you do not.

DJ: Just to understand that, Myles, when the officer says, “Have you been drinking?” You don’t have to answer that question?

Myles L. Berman: That’s correct.

DJ: So whether or not you have or haven’t, you don’t have to answer it?

MylesBerman: That’s correct.

DUI CHECKPOINTS AND YOUR RIGHTS

At this point in the interview, Ventura/Thousand Oaks DUI lawyer Myles Berman provides clarification on how drivers should behave when stopped at a DUI checkpoint, including how to cooperate with police officers while protecting your rights. Additionally, Mr. Berman reviews some of the penalties for a DUI conviction and the lasting impact a DUI can have on an individual’s life.

DJ: So if you choose to say, “I don’t have to answer the question,” doesn’t that get you in trouble if they take you in—that you were uncooperative or not cooperating with the police? I mean, doesn’t that get you in more trouble?

MylesBerman: Well, it depends on your point of view. If you believe in the Constitution and you believe in your rights and that the Constitution covers us, which is what our soldiers are fighting for in Afghanistan and Iraq—that the Constitution covers us all the time, you have a right to be free—I don’t want to get too technical—from unreasonable search and seizure, you have the right not to incriminate yourself, and you should exercise that right. You have that right, so if you’ve been drinking and you’re driving—and I don’t encourage people to drink and drive. That’s not the issue here. As a matter of fact, I wish everybody a save and sober holiday weekend. However, if you’re convicted of DUI in California, the penalties can be devastating. You lose you job, your home, your freedom, your drivers license, your reputation—so knowing that is the end game, then if you’re going through a checkpoint or being questioned by a police officer, and if you have the risk of losing everything, then you should decide whether or not you want to cooperate with the police officer.

DJ: That is so interesting because even getting pulled over for speeding, which I just did recently, the officer say, “How are you doing, there, ma’am? Where are you coming from? Where you headed?” And I always go, “I just left work. I’m going home.” You’re saying I don’t have to say anything? I can just say—

MylesBerman: Well, you weren’t drinking, were you?

DJ: Oh, no, no.

MylesBerman: So this is a different analysis. You’re not worried about your whole life flashing in front of you, your freedom and stuff?

DJ: No. I didn’t know that it was an option. Drinking or not drinking that if he says, “Where are you coming from?” I can say, “I don’t need to answer that question.”

Myles L. Berman: Always be nice and polite, and yes, you can assume you may be being video taped or audio taped. There is nothing wrong with standing on your rights. “Thank you officer but I request that I don’t answer that, or I prefer not to answer any of those questions.”

DJ: Don’t say “no.”

Myles Berman: Oh, yeah. I would never say to lie to a police officer.

DJ: Just say, “I’m not answering that question.”

Myles Berman: I appreciate what you’re doing, but I prefer not to answer that question.”

DJ: But if you say that. And you say you have the right to say that and I get that, but if you say that, doesn’t that draw in more people to ask more questions and doesn’t that make you look guilty, even if you aren’t?

Myles Berman: Look guilty to whom? Cops generally are of the mindset that when they stop somebody and they smell booze, you’re already pretty much guilty, or close to being guilty, in the cop’s mind anyway. So who are you trying to convince? What you’re now trying to do is protect yourself so that you don’t feel the weight of the full force of the state against you in a prosecution. You have that right.

LEGAL ALCOHOL LIMITS

At this point in the conversation, DUI attorney Myles Berman reviews the legal alcohol limit and provides additional insight into factors that can influence your level of intoxication. This leads into a discussion of how an individual can be charged with DUI even if they are below the legal alcohol limit.

DJ: Ok, is it better to say, then—let’s say you have had a drink or two, but you are not over the limit. You believe that you are not over the limit. Is it better to say nothing than to say, “Yes officer, I have been drinking but it’s only one or two beers?”

Myles Berman: Well, look. We didn’t talk about what happens after that. So if you still don’t cooperate with the police—from their point of view. Nice and polite, but I prefer not to answer your questions. And the field sobriety tests are completely voluntary, like we just talked about, so now you’re dealing with… you think you only had two drinks so you think you’re not under the influence. But do you have any idea what your alcohol level would be if you had two beers in you?

DJ: Because I’m kind of a big guy being however overweight I am—and we have done the drinking show, so me personally, I know that with two beers I’m not over the limit.

Myles L. Berman: But that’s not what I asked. What I asked was do you know what your alcohol level would be if you’ve had two beers?

DJ: I guess I would say I know it’s below the legal limit.

Myles Berman: Ok that’s a fair—

DJ: So I don’t know the exact number but I know it’s not over the limit.

Myles Berman: It may be a .04, but that’s for you. Most people have no idea what their alcohol level is, even if they’ve had two drinks—especially if their two long island iced teas as opposed to two beers. Or if they’re two vodka and cranberry juice—

DJ: Or if you haven’t eaten?

Myles Berman: Well, yeah. Eating has somewhat of an effect. It slows down the alcohol going through your system but still, the numbers are there. So it just depends on what the drinks are.

DJ: But the numbers don’t matter. .08 is the standard for legally intoxicated. But if he’s .04 but if he is a super lightweight and he’s falling all over himself, then you’re .04 but your drunk as a skunk.

Myles Berman: That’s the key here, and that’s a very good point. In California, you could be prosecuted even under a .08. We see this all the time. People are arrested all the time, .05, .06, .07.

DJ: Is it the same?

Myles L. Berman: It’s the same type of prosecution. It’s the same penalties if you’re convicted of driving under the influence or driving with a .08 or greater. It’s two charges that have the same punishment that are just two ways to get at somebody. So even if you’re under the limit, it doesn’t mean you can’t get arrested.

DJ: So even—hypothetically now—let’s say I’ve had one beer only, which is certainly not going to be anywhere near the .08.

Myles L. Berman: Right.

DJ: But the police determine that, oh, maybe you swerved back there, or maybe you look intoxicated, or maybe your eye twitches or something. They can arrest you for being under the influence even though, by definition, you’re not even close.

Myles L. Berman: Well, yes, but now you’re getting to the chemical test. Now you’re getting to the blood or the breath test. So assuming—which I don’t because you’ve hard me say before that breath testing is based on voodoo science—but assuming that the breath test—one would think it’s legitimate—you would get a result of well under a .08. So there would be your protection in the event that you’ve only had a drink or two. You may get arrested, but you’re not going to talk yourself out of an arrest. If the cop thinks that you’re under the influence based on what you say, where you came from, what you had to drink, and the field sobriety exercises. Heidi you said you were just recently pulled over. I assume you were nervous at the time that you were pulled over.

Heidi: Yeah, of course.

Myles Berman: Okay, so you’re not your normal self. So it you were to do the walk the line or finger to nose—by the way—have you ever seen anybody with their eyes closed, their head tilted back and touching their finger to their nose while they’re driving? (laughter)

DJ: Unless a woman’s putting on makeup or something like that. A woman putting eye shadow when she’s drunk with her head tilted back—I think she could do it.

DJ: So completely sober you’re just different. You’re like, okay now I’m shaking…

DJ: It’s the pressure of not F-ing up.

Myles Berman:  Correct. So you can see there really isn’t a correlation between these field sobriety exercises and whether somebody is under the influence. This is just stuff that cops made up because there is no other way for them to try and—

DJ: But they can build a case with that too. Well, you couldn’t walk the line; you couldn’t keep your toes together.

Myles Berman: Sure they can but what we do in court is in cross examination we actually bring out the truth and the whole version, not just the slanted, biased version of the police officer, or that which the state wants to put forward. But unfortunately most people get arrested for DUI and they don’t know these things and they go and the just end up throwing themselves to the mercy of the court, which is why we say, “friends don’t let friends plead guilty.”

DJ: Call Myles L. Berman.

THE ROLE OF A DUI DEFENSE LAWYER

In this segment of the interview, Mr. Berman discusses how drunk driving attorneys can help you understand the legal process and ensure that your case proceeds smoothly. Mr. Berman also talks about the relationship between DUI lawyers and police officers. To learn more about these and other DUI-related legal topics, contact Top Gun DUI today.

DJ: If Myles L. Berman shows up, do they start shaking in their boots because they probably know you by now. They know you’re going to deal with all these things. When they see you do they kind of go, “Okay. Case dismissed.” Or what happens then?

Myles Berman: No, it’s interesting. Who the defense attorney is very important in the analysis of the prosecutor in determining whether they want to offer a deal or whether or not they prosecute or…

DJ: Or how many of them you’ve been golfing with.

Myles L. Berman: Pardon?

DJ: Do you take those guys golfing?

Myles L. Berman: I have no problem socializing with police officers or with prosecutors. As a matter of fact, this morning, I was teaching the Beverly Hills and Santa Monica, and Southgate, and three or four other police agencies on testifying in court on DUI cases. I have no problem, and this is not an adverse scenario. Except when we walk into court. When we walk into court I’ll fight like tooth and nail for my client and won’t roll over one inch. So in that respect, yes there is a certain degree of deference that I would get from a prosecutor, but that’s just based on my experience and reputation.

DJ: If someone gets picked up in the middle of the night, I guess what you should do is call the number 888-4-TOPGUN. Now you’re not saying drive intoxicated—of course—but if I understand you, what you’re saying is call this number. But that’s after you’ve been taken down to the cop station? When do you call? You’re standing there in front of the cops and they want you to take these tests. Do you say, “I’m calling Myles L. Berman?” When do they make that call?

Myles L. Berman: Here’s the funny thing. Since I’ve started advertising on your station, which is going back—how long have you guys been on the air?

DJ: Eight years.

Myles Berman: Ok, so I was with the station longer than that because I met you guys. So eight or nine years. I’m actually getting calls as the cops are pulling somebody over and the call will go to the answering service and, so and so, “I’m being pulled over right now!” I did a show once where we were talking about checkpoints and a guy called up and he said I drove through a checkpoint and I got pulled over. Myles is right about the checkpoints, and blah, blah blah. And he goes, oh my God—while he’s on the air—he says, “I’m getting pulled over again.” (laughter) That was on the air at this station. He’s talking about it again because he’s driving through the same checkpoint that he just talked about 6 months or a year previously. So in this day and age everything is almost instantaneous.

DUI CHECKPOINTS AND BAC TESTING

In this portion of the interview, Thousand Oaks/Ventura DUI attorney Myles Berman responds to common questions about avoiding DUI checkpoints, refusing portable breathalyzer tests, and BAC testing options after you’ve been arrested.

DJ: Now if you see a checkpoint ahead and you turn around to avoid it, they probably have a spotter cop hanging back to find people who don’t want to go through the checkpoint?

Myles Berman: Look, there is no way to avoid being stopped for whatever reason by a police officer. The vehicle code has so many different components to it. It’s like as thick as a bible. Therefore you can’t drive without violating something. So there is always a reason for a police officer to pull you over. I don’t know if I answered your question but that’s where I went with it.

DJ: Well it was about someone that doesn’t want to go through the checkpoint.

Myles Berman: Yeah, as far as the checkpoints go—the advantage that we have with the checkpoints is that there is no bad driving. Think about this. Any of you guys ever been through a checkpoint?

DJ: No I’ve never been through one.

Myles Berman: Well, if you would like, there is one tomorrow night in Beverly Hills from 7 to noon as you’re going West on Sunset. (laughter) When you get pulled into a checkpoint, the first officer greets you. You have a greeter. You know, “Hi. How are you? What have you been doing tonight? Where have you been coming from? Everything cool?” What they’re doing is—when they were asking you, Heidi, where you were coming from, they were trying to get you to talk so they could smell your breath. So this is what officers do when you’re approached at a checkpoint. They want to engage you in conversation so they can get a whiff. And then if the officer smells booze, most likely he is going to say, “okay, go from here, to over there.” Now think about it. IF the person is driving under the influence, why would the officer let them go from point A to point B? But they do, so this is an example of, not only is there no bad driving, but there is good driving at a checkpoint. So just because it’s a checkpoint doesn’t mean that the person is going to be convicted.

DJ: So it’s the door that they use to get to the breathalyzer and the field sobriety tests is, if they can smell alcohol, that’s always their opener.

Myles Berman: Frank, you hit the nail right on the head. Everything is geared to get the person to a breath or a blood test. That’s all that that is. And by the way, if you’re older than 21 and they want to have you blow into a little portable breath test, before you’re arrested, you have the right to refuse it. Absolutely stand on your right to refuse.

DJ: IF you do that. This is really important, Myles. If you refuse the breath test, doesn’t that mean a guaranteed loss of your driver’s license?

Myles L. Berman: Let’s make it clear. What I said was, before you are arrested, if they offer you a portable breath test, you have a right to refuse and the cop is supposed to tell you that you have the right to refuse and you should absolutely refuse if you’re older than 21. After you are arrested that’s a different issue. After you are arrested you have the choice whether a blood or a breath. I never said anything about whether you should choose a blood or a breath or refuse a blood or a breath, but in anticipation of the question, all I can say is breath is less reliable than blood—

DJ: Isn’t there also a pee test?

Myles L. Berman: You know we were so successful in—not just us, but defense lawyers—in attacking the urine test, that they now have eliminated it as a third choice of a test. It used to be blood, breath or urine. Now it’s blood or breath that you have a choice of. Unless there is drugs involved.

BREATHALYZER INACCURACY

Mr. Berman discusses questions concerning the accuracy of breathalyzer testing in this portion of the interview, providing valuable information about how drivers can protect their rights if they are pulled over under suspicion of drunk driving.

DJ: If the breath machine is out there going all night long, by the end of the night, isn’t the machine a little bit less accurate than before? Are the continually cleaning out and calibrating the machine between each person they have use it?

Myles L. Berman: You know that’s a great point. Our starting point, though, is that the breath machine isn’t accurate anyway. So it’s another factor, and it can be contaminated from previous samples to subsequent samples. But the machine is supposed to go through all its cycles and if it does everything that it’s supposed to do then, of course, the state wants people to think that the machine is the best thing since sliced bread and that it always works and that it’s never wrong. And unfortunately—or fortunately—depending on whose point of view you have, it’s not always accurate. It can’t be accurate. Many times people have like a .10 and a .12, both over a .08. The two test results are two minutes apart. People don’t go from a .10 to a .12 in two minutes. And by the same token, it’s the same the other way around. The results themselves show an inaccuracy.

DJ: Can you stick around, Myles? We have to take a break. We have people calling in with questions. Myles L. Berman, the Top Gun DUI Defense Attorney. His number 888-4-TOPGUN. Hopefully you’ll never have to use it, but if you need it, there it is. 888-4-TOPGUN.

DJ: We’ll be right back with Myles L. Berman. We are Frosty, Heidi, and Frank.

CONTACT DUI DEFENSE LAWYERS AT TOP GUN DUI

If you have additional questions for Mr. Berman, contact his offices today. In addition to serving the Thousand Oaks/Ventura areas, the DUI lawyers at Top Gun DUI represent individuals accused of DUI in Ventura County, LA County, San Diego, Riverside, and throughout Southern California.

Top Gun DUI Defense Attorney Myles L. Berman

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