Myles L. Berman® Interviewed On Thursday, May 26, 2016, By Heidi & Frank On KLOS 95.5 FM

Transcript:
Host: The Heidi & Frank Show, Memorial Day Weekend is pretty much here and a lot of people are leaving this afternoon to try to beat traffic and we have some bad news for you. Everyone had the same idea. This is the worst time to leave for your Memorial Day travels is Thursday afternoon. Yeah, everyone had the same idea. Also, you’ll be hitting the beaches and the lakes and probably water skiing, now I don’t know if you saw the video that’s going viral right now of a 6 month old in Florida, broke a world record last Saturday by water skiing for over 686 feet. The skis were linked together to make it easier for this little girl and there was a bar attached to it to hang on to but it’s great. 6 months old? It’s like when you see a squirrel water skiing, it’s kind of like that. This is a baby water skiing. It’s awesome. Must watch.

We are going to post it on Heidiandfrank.com. If you haven’t downloaded the app yet, the Heidi & Frank app, do that on the app store on the Android and you can get it on the show any time you want by becoming a VIP. Download the app. 1-800-955-KLOS. You need that number right now because I guess Memorial Day is here and it’s known to be a big drinking weekend and you’ve got to be careful. There was a guy in North Dakota who showed up at a hospital and said he got attacked by a bear but he actually broke into the zoo with his friends, stuck his arm into the bear enclosure and got bitten on the hand. Alcohol! So if that happens to you, call a doctor but if you happen to get pulled over and there are going to be a lot of cops out this weekend.

If you happen to get pulled over, you need to call somebody else and that guy would be Myles L. Berman and he is here. We are going to talk about all the DUI checkpoints and DUI enforcement patrolling for Memorial Day weekend. He does it every weekend. I will give the number right now. Put it in your phone and just make it one of your contacts, speed dials. 1-888-4-TOP GUN. Hello Myles.

Myles Berman: Hello Frank, Hello Heidi.

Host: Good morning. Is this your favorite time of the year?

Myles Berman: it is. Of course, can I compliment you? Nice wheels.

Host: Oh you like that RV?

Myles: Beautiful. Yes, but there is a silhouette of a female that’s bigger than everything else. And it’s kind of, Frank what happened to you?

Host: It’s just a silhouette of Heidi standing above the crowd. But yeah, that’s how we get around now which is pretty smart because we have a guy who is the official driver of the RV because they don’t trust us to wreck it, plus I think we are going to go out. Tomorrow, we are going down to Gladstone’s in Malibu and just kind of kicking off Memorial Day weekend. The RV is going to be down there and it’s going to be like an impromptu party and you guys should join us down there.

Myles: What time?

Host: Like around noon. We get off at 10:00 Myles, now come on. It’s happy hour for us. So if you want to kick off your Memorial Day weekend, you can stop by Gladstone’s tomorrow with us. But yeah, a lot of people are going to be driving to destinations but there is going to be a lot of law enforcement out as well because this is a big drinking weekend.

Myles: It is. Don’t forget drugs too.

Host: Don’t forget my drugs. I almost forgot the drugs.

Myles: There is a big push now, not just for alcohol but for drugs as well especially marijuana.

Host: How do they; there is no Breathalyzer for marijuana, obviously they can test for alcohol through Breathalyzer, blood, urine, everything you have told us over the years but medical marijuana, if you’ve got your card? It says not to operate vehicles when you are on Percocet or something like that. So if you are on marijuana they are trying to figure out a way to test for that. Is there a way to test for that?

Myles: Yes and they are starting to develop swabs and other types of things to quickly test for the presence of marijuana or other drugs but usually it is a blood test or a urine test and they go through the similar type process, they go through the investigation and they try to do the field sobriety tests and they sometimes call it a drug recognition expert. The big thing right now is making the push for the arrests and interestingly, right now, the DMV won’t take your license and have their second proceedings against you for drugs or marijuana, only for alcohol which never made sense to me but now they are going to come out with something, probably another procedure for drugs as well.

Host: let’s you get your medical marijuana card because you have back pain. i mean excruciating back pain. You will want to take an opioid, you want to take medical marijuana. It doesn’t matter Heidi. You are not supposed to drive on opioids either. I’ve got to go to work, I’ve got to do a job

Myles: Okay, you have wheels and then you have a driver.

Host: I mean I am just saying, a lot of people think that way, it’s actually my medical prescription.

Myles: Most of our clients who get arrested for DUI marijuana tell us that they have a card. Not everybody has a card. So it doesn’t save you. I mean you still have to go through the prosecution and trying to avoid a conviction which is difficult for the state to get a DUI conviction for marijuana just because of the issues that are related to, that can be in the system, you have this level of nanograms. Actually some people function better when they are under

Host: Do the same rules apply, the Myles L. Berman rules, say you are pulled over as marijuana and they want to do field sobriety testing. Do the same rules apply as for alcohol like you can refuse all that stuff and build a case around that information and say no field sobriety tests?

Myles: Yes, good point, if they refuse a request for a chemical test even if it’s just marijuana or alcohol and marijuana, they can still proceed against you but if you do a test and it tests positive for marijuana or drugs, they will take your license. Now, alcohol is different. If you do a chemical test, it’s called a chemical test, it’s generally either a breath or a blood test and you get a result that’s a 0.08 or greater, if you are older than 21, they will take your license from you. They just won’t do it if you do the tests for marijuana or drugs.

Host: We do have a plan to drink on the show tomorrow but we’ve done this in the past or on weekends where the LAPDs and Sheriffs come in here and give us

Myles: I’ve seen and heard many of those shows

Host: Breathalyzers, so you can understand if we have 3 or 4 drinks and now we are already over the legal limit and we feel like we could be able to drive. I’m talking about right there at that cusp. Knowing where you are. I mean obviously you know when you shouldn’t drive and you make stupid choices. When you are right there at that cusp and you are like okay, we need potato chips and you decide I’ll go get them and you’ve already had a couple of beers because you just got there and now you drive. That’s what we are kind of talking about. It’s that person who gets pulled over.

Myles: yeah, first off, nobody really knows what their alcohol level is. It’s just different for everybody.

Host: It’s different depending on what you’ve eaten at what time of the day and all that stuff, right?

Myles: Correct and there are a whole bunch of different factors in how fast you metabolize and

Host: Didn’t you learn something about yourself in how fast you metabolize alcohol? Yes, I oxidize it or metabolize it slower. So I’ll keep drinking and all of a sudden it will hit me like a ton of bricks.

Myles: Interestingly, when you are absorbing alcohol which is part of this process, if the breath test is administered during the absorptive phase which is in different periods of time, experts will disagree how long after you finish drinking but the breath test is always too high which is one of the reasons and one of the ways in which we are able to beat these DUI cases in court. It’s just not really accurate. Breath testing is not, just as an example, it’s not unusual for someone to blow a 0.10 and a 0.12 and a person doesn’t go from a 0.10 to a 0.12 in a matter of minutes which will lead to another question, which is better to take? Breath or blood? All I can say is we’ve fought both types of cases and won both types of cases but breath is less accurate.

Host: Myles L. Berman with us, the Top Gun DUI Defense Attorney and topgundui.com. Myles is really good on Twitter, @MylesLBerman because right before the weekend begins, he posts where the checkpoints are going to be and this is public knowledge, this is not like you are letting out a secret, it’s like you can go to the website and it’s like it’s going to be at this place at this time and then you just kind of give us the information.

Myles: yeah, we do research on it and also police agencies notify us as to where all the checkpoints are but I have to thank you, Frank, for getting me into the social media world and started texting checkpoints and we post them usually around 3:00 or 4:00 on Fridays. Only known checkpoints. If we don’t know the location or the time, we won’t post it. We don’t want people guessing. I actually have had businesses call me up and say hey, you posted a checkpoint right near our business and they’ve killed business and there wasn’t a checkpoint there. So I think it’s only better to post what’s known for sure. Some people post checkpoints in individual cities which doesn’t make any sense to me but maybe it’s helpful for drivers. Police are supposed to publicize checkpoints so we are kind of providing a public service which is by the way the safest areas where the driver could be with the checkpoint.

Host: @MylesL. Berman. We often retweet the posts that Myles does but if you’ve missed it for some reason, just follow Myles Twitter on @MylesLBerman. If you have any questions for Myles. Oh we’ve got Rich on the phone. Hello Rich. Good morning Rich. Rich, you there? I’m not getting anything. I’m not either. Rich, are you there? Oh boy! Not even a dead phone sound. Are the phones even working Sammy? Alright we’ve got some calls coming in. let me talk to Bill real quick. Hello Bill.

Bill: hey, how are you doing sir?

Host: Say hello to Myles L Berman, Top Gun DUI Defense Attorney.

Bill: hey Mr. Berman, how are you sir?

Myles: Fine Bill, how are you?

Bill: very good. Okay, so I’ve been diagnosed with a condition called “fermentation syndrome” where my body turns everything into alcohol even if I do not drink.

Host: What, you drink a glass of milk and then you get wasted?

Bill: No. I don’t feel like I’m drunk or anything but my body is like, any sugars or anything, it turns it into my blood into alcohol.

Myles: We’ve seen this before. As a matter of fact, blood vials themselves can ferment and create alcohol in the blood vial and the machines cannot tell whether or not that alcohol was ingested that somebody drank or if it was actually created in the vial after a blood draw in a DUI case.

Host: that’s amazing. I’ve never heard of that before. What’s that called again, Bill?

Bill: It’s called fermentation syndrome.

Myles: I’m addressing fermentation. I once had a prosecutor call it Bermantation.

Host: what’s your question Bill?

Bill: My question is how do I fight that. I don’t drink, I mean I stopped drinking as soon as I was diagnosed with it but if I was to get pulled over, that’s just a fight. Correct?

Myles: yeah, in answer to your question on how to fight it, just call 888-4-TOP GUN.

Host: there you go. Call Myles and he will fight it for you.

Bill: I appreciate it.

Host: Thanks Bill. You said that the checkpoints are public knowledge, the police calls you and lets you know where everything is going to be. This weekend being Memorial Day weekend, how many more are there this weekend than a normal Friday?

Myles: This weekend and on other holiday weekends, there is going to be a lot of checkpoints and they get grants from the federal government and then they have to spend the money so they have the checkpoints but especially this particular weekend and it’s a 3 day weekend. So it’s going to be all over, you know, not just in Southern California but throughout the state and throughout the country for that matter. This is a way for officers to make arrests and overtime and things like that. So there is going to be a lot.

Host: If you are going through a checkpoint, the best thing to do is to be cooperative and you don’t have to offer information like where you’ve been or where you are going. You don’t have to answer any of those questions. You just 10 and 2 on the wheel, looking straight ahead.

Myles: After all these years, you’ve become the expert Frank but that’s not because of the experience, just because of the show.

Host: all of our talks at the courthouse.

Myles: a person doesn’t have to; they have to identify themselves, show proof of insurance and driver’s license but they don’t have to answer their questions. They don’t have to tell them where they are coming from and where they are going to. The field sobriety tests are completely voluntary, if you are older than 21, the portable breath testing machine, I said earlier that breath testing is not reliable but the portable breath test machine is completely voluntary and the officer is supposed to tell you before the arrest and so you don’t have to take that as well. But it takes a strong person to be able to resist the temptation to cooperate with the police officer but it happens.

Host: The police are like where are you going? Where are you headed? Ad I’m just like, a friend’s house. have you had anything to drink ma’am? I did. That’s probably the wrong answer right Myles? What if I say I had a glass of wine about an hour and a half ago. Okay, then please step out of the car. Talk to my attorney Myles L. Berman.

Myles: There you go. Since I started with your show and other shows but in particular, your show, people have been calling us as they are getting pulled over which is kind of unusual.

Host: there is a cop behind me Myles, what do I do?

Myles: we get those calls but when you have the odor of alcohol on your breath and you admit to the drinking, that’s enough for the police officer to begin to investigate. Everything that is done generally probably about 80% or 90% of the time if not 100% of the time, is designed to get a person to give either a breath test or a blood test. Either a breath test on the street or a blood test or a breath test back at the jail. That’s all where it’s going. So generally police only rely on the breath test result if they decide to charge somebody although we’ve seen people being charged a low as a 0.06, we’ve represented people who had a 0.03.

Host: That’s wait; but still it’s erratic driving, it doesn’t matter. 0.08 is like the legal base but if you are driving like an idiot at 0.03, you can

Myles: Unfortunately he had to go through the process and he wasn’t convicted. So nothing happened but if he got a prosecutor who looks at him like he shouldn’t have been drinking and driving. as more time goes on, the prosecutors are getting much more aggressive than they used to be in the past. That’s just the way it is.

Host: Eve though Myles L. Berman is the Top Gun DUI Defense Attorney, he is always about safety first. So always have a friend drive or use Lyft or Uber or whoever or Heidi & Frank RV, whatever. Stay safe this weekend, if you do need to call Myles this weekend, 1-888-4-TOP GUN. What do you think about the self-driving cars?

Myles: I would never drive one or ride in one. I don’t feel as if it’s comfortable. I always like to have control of the car but I don’t think California is going to allow self-driving cars without somebody behind the wheel which in turn will probably increase DUI arrests because people are going to end up thinking I’m not driving the car, I don’t have to worry about it and get behind the wheel.

Host: I thought the self-driving car was, okay, I can get wasted and the horse will drive me home but you can be parked and have your keys in the ignition and not even driving and if you are beyond the legal limit and you think you are drunk, or passed out and can sleep it off, if you have the ability to ever start that car and drive, you have a DUI. Right?

Myles: Correct. If you are sitting at the wheel of the car and there are people in the backseat, there are people in the passenger seat, the key is out of the ignition but when the police officer tries to come up and check on what is going on, they are going to ask and the guy will say or the gal will say I drove here in a park to sleep it off and they actually did the right thing. If they felt that they were not good enough to drive, they pulled over but they still could end up with a DUI once they admit the time they drove there. But the self-driving cars, I am wondering whether or not self-driving cars are able to drive without violating any vehicle code. I don’t think that’s the case. I think it’s impossible.

Host: We’ve got Eric on Line 1 and he says he already has a DUI and has a question about it. Hello Eric.

Eric: Yes, I do have a question. Is everyone there?

Host: Hi.

Myles: Hello Eric, I’m here.

Eric: If you already have a DUI, is there any obligation that you have to do before you are pulled over at these checkpoints?

Myles: Well, if you are on DUI probation, you have to take chemical tests. You have to take a breath or a blood test fast because it’s zero tolerance.

Host: They will find that out fast when they punch in your driver’s license.

Myles: Correct. So if you violate your probation by having any measurable amount of alcohol in your system then you can be cited for driving while on DUI probation, taking a breath test and violation of probation.

Eric: Even if you are a passenger or just driving?

Myles: Just driving.

Host: No. Just driving Eric.

Eric: Thanks, okay.

Host: he’s like, Oh Man I’ve got a DUI, I’m in a passenger seat and the guy is. Thank you Eric, let’s go to Rich. Hello Rich. You are on the air with Myles L. Berman, Top Gun DUI Defense Attorney

Rich: How are you doing? Great show, yet again. Hey, at what point when you are pulled over, do you exercise your right to remain silent? If they do say please step outside of the car, are you, at that point, pretty much done?

Myles: Okay, well there are videos circulating on the internet where a guy goes through a checkpoint, doesn’t roll down his window and holds up a sign that says. Forget about that in California. You have to cooperate with the police but the cooperation is limited to identifying yourself by giving the driver’s license, proof of insurance and registration. When the officer orders you out of the car, you have to follow the command but at the same time, your right against self-incrimination in my judgment. I mean people have the right not to incriminate themselves at any time. So you can use your own judgment as to what it is that you want to share with the police officer.

Host: I think if I said, I’d rather not say where I’ve been. Sounds like I’ve been someplace bad. So of course, I plead the fifth.

Rich: Doesn’t that give them probable cause to just keep pushing them because you are refusing to talk to them?

Myles: the argument would be that probable cause is based on facts and if they don’t have any sufficient facts on which to place you under arrest then it’s a good case for the defense for a whole host of reasons. But nevertheless, field sobriety tests are completely voluntary, you can absolutely refuse to do them. You don’t have to do them. They are difficult enough to do anyway.

Host: They really are. Touch your nose and lean your head and you are sitting down in a chair. Can you do it? You did it once, here you go. Can you say your ABC backwards? I can’t do that. I mean I can do it I just can’t take any more. Is that a myth or is that one of the tests? The ABCs backwards. I’ve never seen it. He got to Y and then he screwed up.

Myles: Except for the video on Youtube where that dancing guy says the alphabet backwards

Host: can you do it backwards. Z, Y, X, W, V, U, T, S, R, Q, P, O, N, M, L, K, J, I, H, F, E, D, C, B, K. Sober as a judge.

Myles: Wow and the colors of the rainbow. VIBGYOR.

Host: thank you Myles for coming in. Myles L. Berman, Top Gun DUI Defense Attorney, topgundui.com is his website, @MylesLBerman on Twitter and the phone number, put it in your phone right now. 1-888-4-TOP GUN. Thank you Myles.