Top Gun DUI Defense Attorney® Myles L. Berman® 12/7/2017 | DUI & Drug Cases During The Holidays

Transcript:
Host: Myles L. Berman, the Top Gun DUI Defense Attorney. He has been with us for a very long time. A part of the show and he is here to talk about the DUI checkpoints and DUI enforcement patrolling for the Holiday season. If you need his number, let me just give it to you right now. Just put it in your phone. 1-888-4 TOP GUN. His website, topgundui.com. He knows what he is talking about and if you have any questions about DUIs, give us a call right now so he can answer all of your questions. Myles L. Berman. Good morning. Hey sir, hello. We always know it’s going to be a good day when Myles is here. Myles, you haven’t aged in the 15 years or so we’ve been associated with you. You look younger now than you did in 2000. It’s his mustache. That’s what it is. Mustache ages people. Right, Anthony? Anthony is the birthday boy over there and looks 50.

Myles Berman: Hi Frank

Host: How are you doing Myles? Good to see you. Thanks for coming on the show. We have the time of the year when people are going to Holiday parties and here the companies are reeling their holiday parties in as far as serving alcohol or even having them. I’ve been invited to quite a few white elephants and things like that where your friends and families. So are they putting out double the enforcement during the season knowing that people are going to be out driving and maybe having a few?

Myles Berman: As soon as the fires are over, I think they will be out in enforcement big time, especially because it’s not just alcohol that people are taking on the roads. A lot of pot smoking

Host: Right. Do they have a way to determine, I mean the Breathalyzer for alcohol obviously, that’s their tool but do they have a tool for marijuana?

Myles: They are developing swabs but also blood tests. So, you know, it’s a classic examination and then a blood test.

Host: But that’s done back at the station, right?

Myles: Back at the station.

Host: Blood test and the bloodshot eyes and the Fun Yuns are in your lap. My favorite is the Hot Cheeto bag. We are going to have to take you in.

Myles: The problem is that sometimes cops may be getting high because when they are coming up to your car and somebody is smoking pot in their car and if they are getting hit with the smoke, I’m kidding of course, they are not getting high.

Host: I just heard that you can fail a drug test from second hand marijuana smoke. So if they are going to drug test you for your job and it stays in your system like for about a month.

Myles: You know, that’s a good defense. I like that. I’m going to develop that.

Host: The second hand smoke can stay in your system for 2 or 3 days. So if you went back in and they swabbed you and you are like no. You happened to be in the hot box before you got in the car. At Frank’s house, you don’t have to partake at all but somehow when you get out you say like I feel a little fuzzy. I didn’t do anything, I was just there. January one, it becomes legal right?

Myles: Yes.

Host: January 1, it becomes legal. They give you a test, they pull you over. Is a test for being high the same as the test for being inebriated or is it a different test? Field sobriety test?

Myles: The examination is similar and sometimes they will call in a drug recognition expert as well. It’s called a DRE. The investigation and the interrogation is similar and then, of course, they’ve got the blood test back at the jail. Interestingly, it still hasn’t changed where if you are pulled over for DUI alcohol and you either refuse or if you are a 0.08 or greater, they will take your license from you and give you a pink temporary license. That’s not happening for drugs. So, for whatever it is worth, they don’t take your license on the street when it’s DUI drugs. They are not supposed to but sometimes they do anyway. The cops aren’t always sure on what to do.

Host: Because you can never argue in defense for alcohol, it’s my medicine but with marijuana you might say, it’s my medicine, with my painkiller, you can say it’s my medicine. Right? You can’t do that with alcohol.

Myles: There are people that self-medicate.

Host: Yeah I know but, You Heidi. I know that but I know enough that I’m not talking about no officer, it’s my medicine. It helps me fall asleep at night. I mean with marijuana, that’s legit. Like I’ve got my medical marijuana card because I have back pain or anxiety or whatever.

Myles: you know it’s great that you bring that up. 9 out of 10 people think that because they have a medical marijuana card, that it will somehow be a defense and it will preclude them from being prosecuted for DUI drugs. I want to tell our audience, forget about thinking that just because you have a medical marijuana card, that it somehow is going to help you. As a matter of fact, 9 out of 10 times, they want to show the medical marijuana card to the officer, if they have it on them and the officer just isn’t interested in looking at it and gives it back to them.

Host: So, it’s not a get out of jail free card. You still have to be driving.

Myles: You said to trigger that, I digress

Host: The pink license or I can’t remember Myles.

Myles: It’s okay. You know what we are seeing and this isn’t a comment or an observation on your recollection. A lot of prescription drug DUI drugs, both for people who have drugs prescribed for them as well as prescription drugs that are prescribed for somebody else. So we are seeing that as well and then sometimes a combination of alcohol and drugs, be it prescription, non-prescription, legal or illegal

Host: It says don’t operate heavy machinery and a car is considered heavy machinery and so it says on the bottle or the packet

Myles: Sometimes people will take it and then hours later. Let’s say they’ve got to take a dose every 4 hours or once every 8 hours and if they are driving after 6 hours or 10 hours then there still maybe some in their system or there may be other symptoms that the officer would see assuming that it’s related to drugs and has nothing to do with drugs.

Host: Myles L. Berman is with us. If you have a question for him, give us a call at 1800-955-5567. We have Todd, he was the first one through. Hello Todd.

Todd: Hey, good morning.

Host: Say hello to the Top Gun DUI Defense Attorney

Todd: Okay, a quick question for you guys. If I approach a DUI checkpoint, am I required to pull down my window? Can I just hand the information through my sunroof?

Myles: Do you have a sunroof?

Todd: Yes.

Host: See he is thorough. Myles L. Berman is thorough.

Todd: But you know what? I understand they have these flashlights that can detect alcohol. Why do I have to roll down my window because they can hear me talking through my window but if I hand them my information through the sunroof

Myles: You know, there is a video on the internet a while back where a guy would actually have things written out and put it up to the window and then they show the officer eventually let the guy through. I wouldn’t recommend that, you know trying to hand it through the sunroof. There are going to be observations, my guess is that, I haven’t seen this before, so my guess is that the officer is still going to see certain observations that indicate that you may be impaired. So he may see blood shot eyes. He may see un-coordination on your part that could trigger a further full blown investigation. So I wouldn’t recommend that but this is a free country

Host: Can he put it in his report that you were uncooperative if you try to do shenanigans like that? Okay, you are being difficult for no reason. This operator here is being difficult. Why be difficult in such a situation.

Myles: Here is what‘s required. You need to identify yourself, driver’s license, proof of insurance and proof of registration. So usually people do that face to face. But you don’t have to answer the questions, where are you coming from, where are you going to, what you had to drink, how much you had to smoke

Host: So you agree that you don’t have to answer those questions.

Myles: No. You don’t have to. When you drink, where you drink, these are all

Host: So when they ask you those questions, are you just supposed to remain silent or do you say, how much have you had to drink? Answer the same question back.

Myles: let me tell you. I’ve been such a supporter of this show that I’m getting people who are repeating to me what I’m about to say and what I’ve been saying for, I don’t know, you guys have been in LA for 20 something years. Is it 20?

Host: Yes, 20 years now. We all look older but Myles doesn’t look older. It’s bizarre and not fair.

Myles: You guys look great. So you don’t have to answer the officer’s questions other than to identify yourself. You can politely refuse to answer the officer’s questions. The field sobriety tests are completely voluntary, you can politely refuse the field sobriety tests and for alcohol, if you are older than 21, the portable breath test before being arrested is completely voluntary. The officer is supposed to tell you it’s completely voluntary and they don’t and you can politely refuse the portable breath test.

Host: So be polite, be respectful. I know what to do and this is hypothetical but let’s say Myles, a beer or two or Margarita or two at lunch but I’m not crap faced. I still think I can drive. If I had just one or two beers, you roll the window down, I know you can smell the beer, I really did have one or two beers but I’m not impaired. So I want you to give me the test because I’m going to pass. If you ask me if I’ve been drinking and I say I refuse to answer. Well, now they are really going to go after me, right?

Myles: First of all, Frosty, if you were to say I had a couple of beers, you actually think you are going to be believed?

Host: You’ve opened the door to the investigation by saying you’ve had a couple of drinks. It’s like legitimately, I had a beer or two and I am not even supposed to answer that question even though I’ve only had two. What do I say? Have you been drinking? What do I say?

Myles: Officer, I respect what you are doing. I have a lot of respect for police officers. However I just prefer not to answer any of your questions. They are going to continue to ask you questions but why would you give them information and evidence that can be used against you in a court of law, because a lot of this is just designed to get you to take a breath test, for alcohol.

Host: So you are saying even if you haven’t had anything to drink, you shouldn’t answer any of those questions. Just be like Nope. I had a drink, it’s noon. If they ask you, are you coming from a martini lunch or something like that. It’s just that if everyone answers the question the same way by not answering, that’s what they will get used to. So if we all start saying we are not going to answer your questions. Thank you very much, that’s what they will get used to hearing as opposed to two beers.

Myles: You know what’s interesting is that just because somebody says that they had a couple of beers and that’s what the officer writes down and in court it comes to trial, it doesn’t mean that the person was under the influence of alcohol. All that means is that the person didn’t want to go to jail to begin with. I mean a person could have 4, 5, 6, or 7 drinks, 8 drinks but it depends on over what period of time. If it’s over a long period of time,

Host: Everybody has done this. It’s time to go. Let’s get out of here and you still have over half a beer left and you are like okay, hold on. I just swirled it in my mouth, 6 ounces of beer and if I got pulled over pulling out of the parking lot and I blew right there, it would give a false reading. I mean I just had one beer, I just swished with half a beer

Myles: I’m more impressed that you just swished 6 ounces of beer. But yes, you are going to have; the odor of alcohol stays on your breath for quite a long time.

Host: Don’t they have 15 minutes where they can take a true reading after you stopped drinking? What’s the timeframe?

Myles: There is a requirement or a regulation that they have to observe you for 15 minutes before they give you a breath test but that doesn’t really mean that you are at a level where the alcohol that they measure is what’s in your blood. It’s as simple as that. Sometimes it could take 15 to 30 minutes before they may get a measurement that’s closer

Host: Like everybody absorbs differently. Frank, as we’ve done on this show many times, it’s like you are going to blow higher than me for weight, food, whatever it is. So if Frank is in this scenario, there is a pub like one mile away from my house.

Myles: Except Frosty. Frosty, he absorbs pretty quick.

Host: Like a giant sponge. Frank’s example, if there is a pub on the 92^nd driveway from where I live. So it’s into the happy hour. Okay, chug it, we got him. I just chugged a beer. If I can get home before it gets into my blood system. So if I responsibly stop drinking after 2 or 3 beers and then I chugged that last one, I am not over the limit but if I get pulled over and they make me wait 15 minutes when they test my breath, now that’s soaked into my bloodstream and I am over the limit and I’m screwed. By the way if you are that close to the pub, walk.

Myles: Now, see I don’t subscribe to that 15 minute theory, sometimes, it’s an hour, two hours or three hours before the person actually has the alcohol absorbed in their system but what the danger is that if you take a breath test shortly after drinking or even relatively shortly after drinking, it’s going to measure too high compared to what’s in your blood. It always does. Even the state’s experts will tell you that.

Host: is that your defense when you represent people as part of that?

Myles: It depends on the facts of the case but yes and just to give you a quick perfect example, if a person is driving and they end up blowing a 0.15 or a 0.17, that sounds pretty bad, doesn’t it?

Host: Amateurs

Myles: You haven’t seen him walk, he could be pretty experienced in some of the field sobriety tests. The 0.15 to 0.17, you can’t go from a 0.15 to a 0.17 in two to five minutes. It just doesn’t happen. It’s scientifically impossible. So when you get down into the weeds, there are actually all kinds of ways to attack breath tests.

Host: Myles L. Berman is with us, he is the Top Gun DUI Defense Attorney. Eric on Line 2 says can he refuse the field sobriety test and if he does, will he get arrested?

Myles: You may get arrested and you are now at the point where, I haven’t been asked yet but it opens up the door for that. What do you do after you get arrested when you politely refuse?

Host: 1-888-4-TOP GUN

Myles: You got it. Frank had to look for it. Your audience is so loyal that we get calls from them as the cops are pulling them over. I mean it’s pretty amazing. But after you get arrested, you have a choice of a breath or a blood, generally speaking. You can revoke that, when we get our driver’s license, we consent to take a breath or a blood after you get a license. But you can revoke that. So you have a right to refuse. But the consequences can be much greater with the DMV than in court and in court, without a chemical test or a breath test or a blood test, it’s a much more difficult road to hold for the prosecutor. So I don’t tell people what they should do

Host: Is your license suspended for a year in front of the DMV?

Myles: You could, on a first offense without any chance of a restricted license. So I don’t tell people what to do, I just tell them what the law says they can do.

Host: Danny says he was pulled over for throwing a cigarette out the window but he doesn’t even smoke.

Danny: Yeah, hi. I was driving in Lyft one night and it was pretty late at night and I was coming down the hill over at Chino Hills and an officer pulled me over. I had my arm out my window and she just pulled me over and said that I’d thrown a cigarette out of my window. I don’t smoke, I obviously wasn’t drinking as I was driving the Lyft and she insisted that I was smoking and kept asking me if I smoked. She asked me so many times, that I almost thought that maybe I was smoking but I didn’t. So finally, after a few times, she took my license, she didn’t even ask for my registration or my insurance and then she checked in and she came back and said, okay, I thank you and I believe you. Have a good night. What was that about?

Myles: It was about you should thank your lucky stars that you didn’t get a citation or anything like that. So I don’t know why she pulled you over. Did you throw anything out the window?

Danny: No. I don’t smoke. I even told the officer, it’s not my hand

Host: Show my finger to a female officer? Don’t you watch the news? You can’t do that.

Myles: Sometimes police officers say things that may not be accurate. So I don’t know why the officer used that as a premise

Host: If you drive a Lyft, did you have a passenger who was smoking and then he tossed it out the window behind you?

Danny: No. There was nobody back and I had just dropped somebody off. There was nobody in the car. I was by myself. Normally I don’t allow passengers to smoke in my car. So, no that wasn’t it.

Host: It’s just a big mystery. I think that he drove a Lyft and it’s something that you should think about this holiday season like calling a Lyft, Uber, taxi cab, having a designated driver or the ways that we avoid being inebriated and driving and making poor choices but also if you are just going to an office party and you have one glass of wine or one beer and you decided to drive and got pulled over. When you get into that situation, the man to call, Myles L. Berman 1-888-4 TOP GUN. Go to his website topgundui.com and take it all out and @MylesLBerman on Twitter where Myles always posts the checkpoints because that’s public information. So you look it up and you repost it for everybody to see and follow Myles on Twitter. Always good to see you man. Yes.

Myles: Thank you, same here. Merry Christmas, Happy Hanukkah, Happy New Year to you audience.

Host: but we celebrate Happy Shakakanukkah. It’s a blast. Yes we all have rides tomorrow for the reindeer games. So we’ll be drinking responsibly tomorrow. Yeah, the Reindeer Games happening tomorrow at the Slide Bar in Fullerton. Live show, live broadcast audience. 6:00 am so be sure to come out with $5. A 45 donation to the St. Jude’s Hospital to get you in. Thank you to Bellator MMA for sponsoring the whole day tomorrow and they have their big event, Bellator 192 on January 20^th, the forum, so you can get your tickets now. We are going to have a bunch of tickets tomorrow at the Slide Bar to be given away. So be sure to come out for that.