Top Gun DUI Attorney ® Myles L. Berman® 5/25/2018 | DUI Alcohol & Drug Cases During Memorial Day

Transcript:
Host: Frosty, Heidi & Frank Show, behind the scenes, drinking and Frosty is talking about his hair. Stop it! Shave it or keep it the way it is. Everybody says shave it to you. I’ve seen the Facebook posts. I know if you film me, I just look like a big cute and fuzzy Humpty Dumpty. I get this big fat bulbous, shiny, bloated, pale, pasty head. Yes, so cut it all off, man. If I cut my hair, I’ll be like a giant balloon. When you get all svelte and skinny. Rally, you prefer me completely bald as opposed to a little bit hair on my sides. I think most girls will probably agree that if you are trying to chase that hair dragon, just give it away because you look like you are trying now. I have plenty on the sides so they can come over from this side to above. How do you like that girl? Oh Yeah, Trump is the sexiest thing that ever was. There is a certain amount of time that you have to do the hiding part and then you have to won it and confidence is actually, wait a second, there isn’t hair. So you wouldn’t find me less masculine or sexy without any hair at all? I would find you more sexy because you are owning it. But like Sting and those guys, they still have hair but they spike up what they have left. No he doesn’t. Sting barely has any hair.

It’s just like 10 or 12 hairs, so I can loose these up. Oh my God. You touching it makes it gross. Can I touch them? Ooh she touched me. What’s it like to touch? It’s like pubes. Notice the texture of my dying hair, they feel different from normal hair, don’t they? Yeah, they are coarse. Are you trying pube transplants? Yes, they can do that, you know. I’ve checked into that. They can take it from your armpits, your back hair, your pubes, whatever you want. Why would you want pubes on top of your head? Well, it’s not my first choice but… But if you put my pubes on the top of your head? Now, we are talking after this show. Thrilled, they stick out like this. If you really want to be a brunette. This is real. It’s not the real deal, prove it. Not this part, that part. Said Morgan Freeman, prove it. Alright, Myles L. Berman, he is waiting in the hallway. It’s a big weekend coming up, Memorial Day weekend.

A lot of people travelling on the roads, a lot of people going to parties and a lot of people drinking. There is no reason to drink and drive. In this day and age of Uber and Lyft and cabs, for God’s sake, there is no reason to be stupid and drive while you are drunk. But if you happen to make a mistake or if you want to know, what’s the deal with DUIs, Myles is coming on right now. So why don’t you give us a call right now, if you have any questions. 1-800-955-KLOS is the number. Let’s get Myles in here. Myles L. Berman, the Top Gun DUI Defense Attorney, Myles is here. You probably remember me but I barely remember you. Last time, I saw you I was wasted. Sorry about that. That one needed a lawyer. I was alright. I don’t remember the last time.

Myles Berman: You are okay and I’m impressed that you have some memory of me.

Host: I remember you sitting right here but it’s funny that they put us so far away now. I feel like maybe I offended you last time.

Myles Berman: you are right, I was sitting there. No you didn’t offend me at all. You were great.

Host: Thank you. Do you remember that part of the show, you did the appearance last time we did the alcohol. Yeah it was like one of the last segments and then we started drinking. I don’t remember you at all. Did Myles come in? Yeah

Myles: I’m not surprised you don’t remember, Frosty.

Host: Yeah, Frosty has a matter of peeing his pants. Stop saying that. If you have any questions 1-800-955-KLOS. You can call up because we have Myles L. Berman Top Gun DUI defense Attorney in ths studio and you may have questions. Maybe you have been pulled over, maybe you are currently working on something now but this is a big drinking weekend and so there are probably going to be a lot more of the checkpoints. Alright, so checkpoints, a lot of them out this weekend.

Myles: Yes, there are and it’s not just alcohol, drugs and marijuana. Especially with what’s going on in the cannabis industry, that marijuana cases are becoming more prevalent.

Host: Is it charged the same? Is it charged the exact same as smoking a couple of joints as it would be for a couple of beers?

Myles: Yes and no. How is that for a lawyer answer? That’s the truth.

Host: How unusual? I don’t think so. I think it’s still under the influence and obviously the measurement is going to be different.

Myles: That’s the issue. Actually, you are impaired. You could be impaired by alcohol or drugs or marijuana. But with alcohol, there is also a level of 0.08 but with marijuana there isn’t a statutory amount of nanograms in your system that will make you impaired. It’s kind of subjective.

Host: last time we talked, there wasn’t a kind of definitive mark of you are impaired and because marijuana stays in your system for 30 days, how close are they getting to an actual number, say if you are pulled over and you blow, how can you measure it?

Myles: Yeah it’s going to be tough. I mean blood testing but it’s going to be tough to have a definitive amount for marijuana because it’s not just how many nanograms you have but the THC is different and it stays in your system different and different parts of marijuana plants have different levels or indications of what can cause impairment. So it’s not cut and dried. An alcohol molecule is an alcohol molecule but THC is not always the same when obtained from different plants.

Host: I don’t like this Myles. I don’t like where this is going. I don’t like the fact that if they assume that I am under the influence of something and I said, no, I’m not and they give me a Breathalyzer and sure enough I’m not blowing any alcohol whatsoever and they are like, well, we are going to have to take you downtown and give you a blood test. They take me downtown and give me a blood test. I didn’t smoke at a party that night, I’m definitely sober but I smoked the night before and I slept on it and I’m sober and I’m awake now but obviously the marijuana is still in my system. Can they abuse that so that they don’t look like fools for pulling me over t begin with?

Myles: Yes. That’s the problem. It kind of shifts the burden to the defense to establish that whatever measurement they have doesn’t cause them impairment and then you still have the classical defense that you have objective symptoms that are inconsistent with being impaired. It’s like alcohol. For example, the walk the line test. If somebody does a very good job on the walk the line test being either an alcohol case or a drug case or alcohol and drugs and if they do a good job on the walk the line test, that’s consistent with not being impaired. So there are defenses, not just the science component but also the subjective facts.

Host: Got some calls coming in for you Myles. Let’s see, we’ve got Dennis on Line 1. Hello Dennis.

Dennis: Hey, what’s up, Frosty, Frank, Heidi and Myles. So Myles, today I’m drinking in my car. The keys are in the ignition, I’m on my second beer. I’m in the driver’s by the way. Cops happen to drive by.

Myles: are you about ready to pull out or did you just pull into your driveway?

Dennis: I just got off work and I am listening to the show.

Myles: Oh, so you are not going to the house, it’s a good show.

Dennis: Yeah it is.

Host: Are you drunk right now?

Dennis: Yes. I’m drinking. I’m on my second beer.

Host: Okay, so he is working the night shift, he gets home early and he is listening to the show in his driveway, a cop rolls by

Myles: Was there a question in there or are you giving me the question?

Dennis: No, because I’m saying I’ve seen two cops drive by. So would I get into trouble? Sorry?

Myles: Did you raise your beer to toast them?

Dennis: No. I kind of hid it.

Myles: That’s pretty smart. Look, if you are behind the wheel, the ignition is running and you are drinking while you are in the car and obviously you are going to have alcohol in your system, you are subjected to being arrested if they see you even though you are on your private property, they can come out.

Host: It looks like intent to drive.

Myles: Yeah. I mean there are many different reasons why a police officer could justify approaching while you are sitting in the car and one of them would be drinking while you are behind the wheel.

Host: One of them could be just looking shady in the driveway. Why are you drinking in your car?

Dennis: Because I’m just listening to this show and the people are asleep inside.

Host: You know, you could take the keys out of the ignition, right? That would help.

Dennis: but then, my battery is going to die.

Myles: If, for some reason, they do approach you, you give a call to 888-4-TOP GUN right away because we are going to use the Frosty, Heidi & Frank defense for the very first time that he wasn’t under the influence, he was listening to the show.

Host: If you do take the keys out of the ignition because you want to sleep it off in the car in the parking lot and put it in the back of the tire or something. Is that a good defense?

Myles: Those are heartbreaking stories and I’ll tell you why. The answer is no or it depends. The thing of it is that when somebody is drinking or driving and oftentimes, they realize that they shouldn’t be drinking and driving but they are in the car by themselves and there is nobody else for them to give the car to so they pull over. It’s not too smart to pull over on the shoulder of the freeway but they get off the freeway and park on the side street but then, all of a sudden, the car may look out of place or the police officer may see a person sleeping in the car and they approach it or they park behind a mall or somewhere they are being responsible to the extent that they stop themselves from driving. What’s heartbreaking about this is they still could be arrested and prosecuted for driving under the influence.

So the fact that they weren’t driving at the time which I think you are getting to, they didn’t have the keys in the ignition and so are they really driving? Is there any evidence of driving? The answer is it depends because here is what really happens. Banging on the window, roll down the window, wake up the guy or they sometimes break the window to wake up the guy or gal because they don’t know whether or not the person is okay or under the influence. So once they begin the investigation, what are you doing here? Well, I’m sleeping it off. Oh, when did you drive here? About half an hour ago. So now the person just admitted that they drove the car to where they are at which brings us to another issue which is that when you get pulled over for DUI, you are under no obligations to answer all of their questions and tell them where you are coming from, where you are going to, how much you’ve had to drink or smoke or eat, any of that stuff. All you have to do is identify yourself, give registration, driver’s license and proof of insurance but people end up talking themselves into a DUI arrest.

Host: That’s certainly an unfortunate side effect of drinking as people like to talk a lot. So you can actually get away with saying absolutely nothing? You can just present your ID, your license, your registration and all that stuff and you can literally say nothing.

Myles: That’s correct. You are under no obligation to cooperate with the police officer and give incriminating evidence against yourself.

Host: Give us one line. You have to write a line to say on a card. I plead the fifth. Not be rude, not lead to suspicion that you might be drinking because you are so defensive. What would you say to the cop?

Myles: It’s not just what you say Frank but it’s also how you say it. So it’s always a good idea to be polite and respectful of the police officer

Host: Try not to hiccup a lot

Myles: Or slur your speech. But you can politely refuse to answer any of the questions. I appreciate what you are doing but I just prefer not to answer your questions. Then they are going to of course, ask you to get out of the car and they want you to do the field sobriety tests. Again, it’s for alcohol as well as for drugs including marijuana.

Host: My theory is that the police would say in court, he was so drunk he couldn’t speak.

Myles: Yes and no.

Host: They can throw it out there. All of us agreed he couldn’t talk. How do you defend that?

Myles: It’s not so much what you think that the police are going to say or what the prosecutor would say, it’s what the evidence is and the interpretation of what the evidence is. So, if they don’t have when you drank last, where you are coming from or where you are going, they don’t have that information, that’s less information for them to prosecute and quite frankly, if there is no interrogation, no information other than they identify who you are and there are no field sobriety tests, you would think that their evidence is somewhat weak which it is. Then, of course, I haven’t been asked yet but at some point in time, I will with what happens regarding the breath test and the blood test?

Host: Hey Myles, what happens? You just asked yourself but we have some more calls coming in. When we first started working with you Myles, 25 years ago, it was just drinking and driving. Now it is marijuana, be it medicinal or now that it’s just recreational and even with prescription drugs, don’t operate heavy machinery and they don’t give you a license to go ahead and take your medication because you are operating a vehicle. The cops pull someone over and they are like I have a certificate because I have medical marijuana. That doesn’t help or anything.

Myles: I swear you sound like you just had helium.

Host: he’s trying to mask his identity. I do the Helium Kush. They should make that where you smoke and your voice changes. Billion dollar idea. It’s a genius idea. Helium Kush. Let’s sell it I balloons, we are going to make millions.

Myles: A lot of people think that When hey have medical marijuana card, that it will help them get out of a prosecution. But it won’t. What’s amazing is that people get pulled over for DUI and again, we are talking marijuana in this scenario and they actually have opened their car, parked their car and the cops will take it and give it back to them but I know people who would go to jail years ago. Life has really changed.

Host: Victor said that he had an open container ticket through weed and he wants to know what the rules are on that. Hello Victor.

Victor: Hey. Hi guys.

Host: Explain your open container ticket for weed.

Victor: Okay, so I was leaving LAX from dropping off my friend and on the way I got pulled over for expired tags. Then the cops say, hey I smell marijuana, did you guys smoke? I said no. I smoked this morning anyways. They asked if they could search the car and I said yeah, sure. They asked me if I had any marijuana and I said, yes, I have some right here in the center console. So they searched the vehicle and obviously they found that and so I ended up getting an open container ticket. So my question is, is that really considered open container when it’s away or there is nothing to smoke it with or anything around it?

Myles: I’d have to think about that. This is a little bit unusual for me to hear. An open container for marijuana, so I’m not sure what the actual statute it is they cited you for. But you don’t have any medical marijuana card or anything like that, correct?

Victor: I did. I didn’t have it with me. I had it in my other wallet. I switched wallets so that we could

Myles: Is this case still pending?

Victor: Yes, actually I have court next week. On the 8^th.

Myles: Okay, I’ll be back in the office in a little while. You can call 888-4-TOP GUN and we can talk about it.

Victor: Awesome. Thank you Myles..

Myles: You’re welcome.

Host: I get pulled to the side because the stupid driver’s got expired plates or brake lights don’t work or whatever. They pull me aside and now they smell booze on my breath. They pulled me over because I was weaving around but now they know it might be booze. The Breathalyzers are whipped out. Do I take the test or not? What happens if I don’t?

Myles: Okay. What I am going to say is what the law requires or doesn’t require. You actually can refuse to take a breath or a blood. When we get our driver’s license we consent to take a breath or a blood but then when you are in this investigation scenario, you have a right to refuse to take the test. If you do refuse, they can get a warrant to get a forced blood draw. They can do that, they don’t always do that. Also, sometimes when they don’t get a warrant for a blood test, then there will not be a breath or a blood result. So, in court, obviously they are easier cases to win when there is no interrogation information, there is no field sobriety test and there is no breath or a blood test. The DMV will be harder on a refusal case than it would

Host: That’s totally separate than court.

Myles: That is separate. Correct. So those are what people’s choices are and that’s as far as I can go to publicly say what people should do. That’s just what the law is.

Host: If they ask you to do the field sobriety test and you refuse that, then they take you downtown and say blood or pee or whatever they take from you.

Myles: I do want to add if you are older than 21 and you are investigated by the police and before you are arrested they will want you to blow into a portable breath test machine in the street, you don’t have to do that. That you should refuse. It is completely voluntary if you are older than 21. But what you are saying Frank, after they get arrested, they take you to take a breath test or if not, a blood test. Urine generally isn’t available except in something like drug cases but urine was so unreliable that they knocked that out as a test for alcohol.

Host: Okay, so if I get out of the car, resist talking too much, so I also resist getting out of the car to do a field sobriety test. So I resist the urge to break in the dance.

Myles: It depends. Are you a good dancer? I mean that could show you are sober. I want to do a dance.

Host: Cha cha in a straight line. Will they help me or? Unless he is the Drunken Master, he can only dance when he’s drinking. Here is something that always bugs me. Let’s say I’ve had one or two beers. I’m not inebriated. I’ve just had a couple of beers at the pub, throwing darts with the guys. I live 2 miles away, I’ll be home in 90 seconds but they want you to chug a shot before you leave. Okay, one for the road. Now it’s in my system but I’m not inebriated with that for the next 10 or 15 minutes. It’s in your mouth, not quite in your system. So now, I get pulled over 6 blocks away and they make me wait to take the blood test or whatever. 15 minutes later when I take that test, now I’m over the limit but I wasn’t when they pulled me over. So you never should do a shot for the road, right?

Myles: Yes and no. You are correct Frosty that your alcohol levels depend on the timing o the task and the timing of the drinking. But that’s one of the defenses that we use in defending people in court on DUI cases.

Host: Legitimately, I did that shot and I was going to drive straight home so I could enjoy the buzz in my backyard or my pool.

Myles: It does take a while for alcohol to go through your system.

Host: Myles, can you visualize this right now? Frosty is naked in his pool, drunk.

Myles: On the stomach or on his back?

Host: The stomach is floating, real floating and there are little peas on the top of your head. Oh Myles, it’s so much fun having you here on this show. It’s a big Memorial Day weekend so if you do happen to encounter a checkpoint, roadblock or anything and you get into any kind of a mishap at all, call Myles L. Berman at 1-888-4-TOP GUN or go to topgundui.com. The thing about Myles is, on Twitter, he will let you know every weekend where the checkpoints are going to be because that’s public knowledge. It’s free information and he takes that knowledge and he puts it on Twitter @MylesLBerman on Twitter and he puts out the checkpoints on every single weekend. I usually retweet him but you can follow him yourself so you don’t miss it. Be sure and do that. Myles, is that 24 hours a day, 7 days a week? Call your number? Call you from where they got pulled over?

Myles: Yes. Sure. I don’t know if they’ll get through to me but if they leave a message, I’ll get back.

Host: So it’s not your cellphone number? You are there with your beautiful wife and looking at the alarm clock and the phone is ringing, receiving every call that comes in. 888-4-TOP GUN. Thank you Myles for coming in. We’ve got to check traffic right now. Let’s go down to Lisa.