Myles L. Berman Guest Appearance KLOS Heidi & Frank 8-27-14
Host: Top Gun DUI Defense Attorney Myles L. Berman is going to be joining us next here on Heidi & Frank. Heidi & Frank Show, Memorial day weekend is fast approaching and you are probably going to go out and you are probably going to partake in beers and in some barbecuing. Most of it usual, yeah, it’s a day off. Yeah it’s Monday this time around and Sunday night people go out and drink and if you do happen to get pulled over, you need to call the Top Gun DUI Defense attorney Myles L. Berman. Where is he? Get him in here. There he is, good morning Myles, good to see you. He always comes in always looking perfectly glossed and suit and hair and here I am in my sweatshirt. Good to see you Myles.
Myles Berman: Thank you too, Frank.
Host: A great thing Myles has been doing is he got on Twitter and on the weekends he posts about the checkpoints, where they are going to be. Is that public knowledge, is it on the website of the LAPD or the Sherriff’s Department and you just relay it to all of us. So thank you for that. We always retweet them.
Myles Berman: Actually, your listeners should thank you because you are the one that convinced me to get on Twitter and Facebook and all the social media stuff
Host: You took your time with it. I know it’s kind of a pain in the ass. I think it’s tough for us too because we come into this radio show and Twitter, it’s like whatever I want to say, we’ll just say ere, so on Twitter, I’m like, I can’t say everything
Myles: Do you guys check right away to see if it’s retweeted?
Host: I mean it can be a habit where you are like always checking to see what’s going on and you can’t live without your phone. I know it’s like that sometimes. I’ve got 5 minutes. Let’s see if somebody retweeted or somebody commented. No. Crap
Myles: Post views and all that.
Host: What I love is the, I think we may have talked about where people will have the phantom vibration in their pocket but they are not even. Yeah your phone is not even in your pocket but you feel the phantom. Yeah, I’ve felt that too. You’ve felt it? Yeah. I’ve never felt it because I don’t have my phone on vibrate but that’s weird. We have the holidays that are celebrated around by drinking. There is Labor Day weekend which one of the big holidays where the most people get busted.
Myles: Yes, it’s a very big holiday for DUI enforcement. A lot of people are partying, barbecues. So the weather is warm and the cops are going to be out in full force. Last week they were out in full force, there were 10 checkpoints that we knew of that we posted on Twitter.
Host: And normally, there is how many?
Myles: I would expect at least that many if not more, this weekend all throughout Southern California, your listening audience.
Host: Is it random or do they target certain areas more than others?
Myles: It depends on the history of the police agency. If they go to a place where they pick up people for a DUI, they are going back and if they are going to a place where there aren’t a lot of people then you are not going back. These checkpoints get funded by the state, local and federal governments so they also have to show results in order to get re-funded so there is an incentive to post checkpoints where or place checkpoints where they are going to stop and arrest drivers.
Host: Now, if I see a checkpoint and I won’t do this but I’m just curious. If I see a checkpoint up ahead and I go Oh Crap! I’m going to do a UE here and then get away. Will somebody leave that checkpoint to come chase me?
Myles: I would actually think your first thought was what’s that number again? Oh Yeah, 888-4 TOP GUN
Host: I’ve got that in my phone. I know that. But in that moment, do I go Hey Myles, I had 2 glasses of wine. I’m not drunk, I don’t know, I haven’t had a lot to eat but I’m not drunk but there is a checkpoint up ahead, there is a line of cars. What should I do?
Myles: You know it’s interesting. There are supposed to be turnoffs at checkpoints and so people have the right to not go through the checkpoint but the problem is that the turnoffs or the escape routes, they are monitored as well. So they know that people try to avoid the checkpoints for whatever reason
Host: This is why I drink at home. Do you see why I stay at home? I open my shirt and I sit on my couch and not a cop in sight. So do you wait till you are almost like the car behind the car that is getting checked and then you put your window down and yell, Damn it, I forgot to pick up the milk. I need to go back. The wife is going to kill me if I forget the milk.
Myles: Milk run. Sorry officer, I’m on a milk run right now. It’s interesting where people go. When checkpoints first started, people were really inflamed about it because it was a big disruption and they were still kind of new and people weren’t used to it. Now, people are used to seeing checkpoints ahead. But when you drive through the checkpoint you have the same rights you do as when you are pulled over by a police officer. You only have to identify yourself, show proof of insurance and registration.
Host: What if they ask where are you coming from tonight?
Myles: People don’t have to voluntarily answer those questions, those investigative questions.
Host: It’s so tough not to. The DMV is not the criminal system but it’s the DMV system and so they can take your license away and you are battling in two courts. There is DMV court and then there is criminal court.
Myles: Right. Any time someone is arrested for DUI, there are 2 issues. DUI Alcohol, drugs is common. There are 2 issues with the DMV for alcohol. You have the court and you have the what’s called the implied consent suspension where the DMV will take a proceeding against your license as well. What’s been interesting in all these years and I haven’t said it publicly because I didn’t want to tip off the DMV but for years, only takes and took action against somebody that got arrested for DUI alcohol. If you get arrested for DUI drugs, then they don’t take action against your license.
Myles: Yeah, it’s been that way.
Host: So it could be prescription pills? Or marijuana?
Myles: Or marijuana. Upon conviction they will take an action but they won’t take a parallel action although it’s coming. So I’ve been told that it’s coming.
Host: what’s easier to defend? A marijuana DUI or an alcohol DUI? Marijuana, right? As far as the field sobriety tests for marijuana, they just tell you silly jokes and if you laugh at them, you are stoned? How do they test you in the field? What’s a cat’s favorite color? Purr-ple. It’s hilarious. You are stoned.
Myles: Do you have something to eat? Do you have the munchies? It used to be, now let’s just talk about marijuana. It used to be that it was difficult for them to prove marijuana cases because on alcohol there have been tons of studies because alcohol was legal. So cops and civilians would be dosed up. They would be doing field sobriety tests, they’d be driving. they’d be looked at and videotaped and investigated to determine at what level are they impaired by alcohol. How we got to originally 0.15, a 0.10 and then the 0.08. But with marijuana, it wasn’t legal.
Host: Wait, are you talking about what used to be legal was 0.15?
Host: That’s still pretty low.
Myles: It may be for some people Frank and that’s twice the legal limit.
Host: But we are talking about marijuana right now and how it’s measured in your system.
Myles: Yeah. So what’s happened is that there weren’t any studies to correlate the amount of marijuana in your system or the chemicals in marijuana that cause impairment. They don’t have any studies to determine how much they have nano-grams in your system in order for you to be impaired.
Host: What about the Breathalyzer? If they give you the Breathalyzer and they try to light the other end of it?
Myles: It’s a blood test.
Host: A blood test? We might have the same amount in our system because you smoke and I don’t, so I might be really impaired. You are like you lightweight. We have the same amount in our system but I’m like all over the place. It’s the same way with alcohol so you make that alcoholic who walks around double the legal limit. That’s him functioning. But he is still over the legal limit, it doesn’t matter.
Myles: Both of you are talking about a great issue which is one of the ways in which we attack these cases in court because everybody is affected differently. Although the law assumes everybody is the same. So everybody at a 0.08 is impaired by alcohol. The machines are calibrated to assume that everybody has the same relationship between alcohol on their breath and alcohol in their blood.
Host: My Mom can have a white wine spritzer and she is Oh my goodness and I drink a bottle of wine and I’m like seriously Mom? You had a half of a white wine spritzer. Yeah my Mom had a glass of Chardonnay once and I found out her favorite position wasn’t missionary and I’m like how are we talking about this? Which is the whole point because alcohol affects everybody differently
Myles: Was that in Indiana?
Host: No. I didn’t find out. She’s like, this was a discussion around a table. Just so you know, my favorite position is not missionary and then walks into the kitchen. Then we had to figure out what it was and that was a weird game of charades. The wheels are falling off this thing.
Myles: I know how you got to missionary, because marijuana begins with an M and missionary begins with an M.
Host: Actually we have a call from Mark. Mark has a marijuana DUI question. So we’ll turn the phone on there. Mark, say hello to Myles L. Berman.
Mark: Heidi & Frank, what’s up? Long time listener. So yeah, with marijuana being legal all over California now, we kind of know that marijuana DUIS are coming about but you kind of answered my question already. How do they test for that or how long should I wait before I drive out for a smoke?
Myles: Well, marijuana can stay in your system for quite a long time. Days, weeks, and so I can’t really. It’s scary. It really is scary because the way the law tries to proceed is they try to make it black and white. It’s not really black and white. So I can’t really tell you how long to wait. Obviously at a minimum it’s a matter of substantial number of hours. People are getting high at night. They have a medical marijuana card or in the morning and they are driving or throughout the day.
Host: Prescription drugs often say on the back, don’t operate heavy machinery like Vicodin for back pain. The most abused prescription drug or legal medicine.
Myles: Which has led to another problem or another issue that we see. We are seeing or we have seen for a number of years now. First it was a spike and now it is a high number of people that are arrested for DUI prescription drugs and what’s really scary is this runs the gamut for people who are teens to people who are 70 or 80 years old. Not that it’s so old but we see clients who is a grandmother although not that a grandmother is so old
Host: You are a grandpa Myles and you know. You look exactly the same as you looked when I met you 15 years ago. Talk about a deal with the devil. Wow.
Myles: Thanks. But they are stunned when they get into an accident and all of a sudden, they are looking for something or the police are looking for something to blame it on and if a person is taking prescription drugs which is similar to alcohol and you get into an accident, they are going to turn it on you. But it’s shocking for people who are lawfully taking prescription drugs and en up getting arrested for DUI, both misdemeanor and felony.
Host: So because the alcohol DUI has been around for so long. You said there is so much study and investigation and how they are trained to spot people like that and they are not. I mean it’s not new with marijuana is the marijuana DUI. I mean people are getting marijuana DUIs already. That’s something for you or your department, easier to defend because it’s such a vague world of marijuana DUIs or does it equalize to defend?
Myles: It just depends on the individual case. There are dynamics that exist in a DUI marijuana case that don’t exist in DUI cases but again, there is a presumption that, not a legal presumption but the prosecutor’s office assumes that a certain amount of marijuana in the system equals a 0.08.
Host: Because if you have a real problem. From my understanding, if I have a legitimate back pain like prescription pills, if I take a little bit of marijuana before I go to work, I’m not getting high because it’s going to the pain. I took it for my legitimate back pain but I am not stoned right now. I’m actually just pain free.
Myles: That’s another dynamic that exists in a DUI marijuana case. When you have a prescription card for marijuana, that doesn’t necessarily exist in DUI alcohol.
Host: That would be awesome. I have a prescription for wine. For all the mental pain she has. i have a Cabernet card people.
Myles: yeah, the self-medication through alcohol defense usually doesn’t work.
Host: I would imagine not. That’s Myles L. Berman hanging out with us. Top Gun DUI Defense attorney. So Labor Day Weekend, as we said is fast approaching. It’s this weekend and I want you to drive safe, be smart but if you have a problem you can always call Myles. Myles, give them the number again.
Myles: 888-4-TOP GUN
Host: 888-4-TOP GUN. He has always been a big supporter of the show and a very knowledgeable guy who can get the job done for you. So Myles L. Berman, 888-4-TOP GUN. If you need him this coming Labor Day Weekend. Also, you can follow him on Twitter, he can give you all the updates and everything @MylesLBerman on Twitter, right?
Myles: Yes, ma’am.
Host: Just follow him on Twitter or on topgundui.com. Alright we are going to take a quick break and come right back. We are Heidi & Frank.
Description: Attorney Myles Berman has briefed about DUI and DUI related tests in the show.
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