Guest Post: 4 Tips to Survive A DUI Checkpoint

I received an email via my contact page from Brandon Leuangpaseuth, who wanted to share some tips to get through a DUI checkpoint. - Tom.

There has been a lot of controversy with the legality of checkpoints because you are protected
by the 4th amendment from unreasonable searches and seizures. However, the Supreme Court
evaluated the entire circumstance of DUI checkpoints. They determined that the state's interest
in safe roads and the success rate of finding impaired drivers weighed against the average
delay of less than 30 seconds per driver meant that the search and seizure were not
unreasonable. The U.S. Supreme court upheld the legality of DUI checkpoints.
The best way to survive a checkpoint is to be completely sober. However, if you had a few
drinks and you encounter a police DUI checkpoint, here are 4 tips to surviving the checkpoint.

1. Use Your Right To Remain Silent

The majority of checkpoint encounters would start with the police officer asking you a series of
questions to determine if you have been drinking. What a lot of people don’t realize is that you
are not obligated to answer any of these questions. You are protected by the 5th amendment
and have the right to remain silent and not have to contribute to your own potential demise. If an
officer asks you if you had any drinks tonight, you can just say “I respectfully decline to answer
these questions, and I would like to talk to
my lawyer”.

Anything you say, can and will be used against you in a case if you are arrested. If you
answered that you had a few drinks, the officer has some suspicion that you are potentially
breaking the law. No matter how nice the officer may seem, they are doing their job - trying to
get evidence to support a case against you.

2. Refuse the Field Sobriety Test and the Breathalyzer Test

Most people think that if they refuse the field sobriety test or the breathalyzer test, they will get
their license suspended. This is a common misconception. The only time you will get your
license suspended is if after you are arrested and you refuse to take a breathalyzer or blood
test. If you decline the field sobriety test or the breathalyzer test before the officer has any
probable cause to arrest you, you will be okay.

The officer is collecting evidence to determine if they have probable cause that you have
committed a crime. Failed completion of field sobriety tests is used, in the officers eyes, as
evidence that a crime has been committed. The field sobriety test is a difficult test to take even if
you are completely sober. In a field sobriety test, an officer will administer three tests to
determine if you are intoxicated: the horizontal gaze nystagmus (HGN) test, the walk-and-turn
test, and the one-leg stand test. It is in your best interest to not provide any excess evidence to
allegations of you committing a crime.

3. Do Not Get Out of Your Car (Unless There Are Signs of Alcohol And You Have To)

Officers have no right to force you out of your car unless they have reason to believe that you
are drunk. However, slurred words, an open container or the aroma of alcohol can be enough
probable cause to make a case for a DUI. Going this route, the officer has to establish exactly
what they are being arrested for a DUI.

Oftentimes, the police officer will ask you to step outside and you should always respectfully
decline. Do not give the officer probable cause to arrest you.

4. Don’t drive through!

You do not have to drive through a DUI checkpoint. You can turn around and simply not drive
through the DUI checkpoint. There are no laws forcing you to drive through a DUI checkpoint.
As long as you do not commit a crime i.e. an illegal turn or any other traffic violation, the officer
does not have enough probable cause to pull you over and detain you. Oftentimes, DUI
checkpoints can be a long line and you are not obligated to wait in the line.
If you have been out and drinking, and you do not want to deal with the hassle of a DUI
checkpoint, just turn around legally and you will be fine.

Should I Buy a Portable Breath Testing Device for Personal Use

Got an email from Len, who wanted to chime in on the breathalyzer issue. - Tom.

If a person has consumed alcohol away from home, and he or she is concerned about being over the legal blood alcohol limit, a personal breath testing device (PBT) might control their decision about driving home. Such a device can help avoid an accident, injuries, a night in jail or all three of them. PBTs are used by many police departments across the country for purposes of establishing probable cause to take a driver down to the station for certified breath testing. They're also available to the general public to help keep that from happening. For a charge, some bars even have their own stationary breath testing machines for use by their customers.

You Get What You Pay For
Any person who frequently consumes alcoholic beverages and drives might want to have a portable breath testing device. PBTs are hand-held devices that a person can use to measure their blood alcohol concentration anywhere that they might be. Some models even plug into smartphones with an app that performs all of the computations. They might be told right away if it's safe to get behind the wheel of a motor vehicle to drive home, or whether they should call Uber, Lyft or a taxi service. What comes to issue is the consistency and reliability of these devices. There can be a differential of plus or minus 20 percent from one blow to another from the same person, especially on the least expensive models. That's a big variable when a determination must be made as to whether a person should even be thinking about driving.

PBT Reliability Issues
There's a reason why PBT testing isn't admissible for purposes of proving guilt or innocence in a DUI trial. Their results simply aren't reliable. Some units need to be periodically returned to the manufacturer for recalibration. Others simply deteriorate over time. Even the most expensive PBTs carry a disclaimer on the back of their packaging. Others are marked as being for personal or home use only. Remember the reason for that: PBT results are generally unreliable. If you are considering a PBT see our review of this smartphone Breathalyzer. If you're going to get a PBT this is the one to buy. We have done a thorough review of it here.

Trust Your Gut
It's more likely than not that if you have any amount of an alcoholic beverage on your breath, and you're the subject of a traffic stop, you're going to end up at the police station with a blow or no blow dilemma. Your PBT results are irrelevant. The decision on whether to blow is up to you, but remember, if you refuse that breath testing, and you're found guilty of DUI, the penalties are going to be even more severe.
Contact a lawyer
It is almost always worth hiring a DUI lawyer after a DUI charge. You'll have questions, they'll advise you of your legal options, and you can decide on what direction you wish to take.


Guest Post: How often are DUI cases expunged in California?

Robert Miller reached out to me to share a bit about the expungement process. It's not a part of gotten to yet (I'm still on my probation) but hope to do someday. Valuable information that I have found very useful in the hope of moving on. Hopefully Robert will help me out when the time comes. - Tom.

How often are DUI cases expunged in California?

dui criminal background check

If you have been convicted of a DUI, clearing your record is a worthy goal that most people will have. An
expungement of a California DUI would help clear your criminal record. So you may wonder how often DUI cases are expunged in California.

As it becomes easier and easier for potentially employers to obtain digital records of convictions, and as the job market makes job applications more competitive, it is easier and easier for employers to screen out the candidates with a criminal record, which leaves those with a DUI with less and less available jobs to even compete for. For those reasons, if you have a DUI on your record, expunging it from your record is something you would want to accomplish as rapidly as possible.

What exactly is on my record after a DUI?
It’s important to realize that when speaking about a “record”, that in California, after a DUI conviction you actually have two different records that your DUI shows up on.

The first is your criminal record.
A criminal record will show your arrest, the case number, and the sentence (or what is called the “disposition” on a criminal record).

The second is the driving record.
The driving record will show points from a DUI conviction, whether a wet reckless or a DUI, or any accident or other related traffic tickets. Any alcohol related conviction will show as a notification on your driving record, and will show the date of offense, the date of conviction, and any DMV actions related to the DUI or alcohol related offense, and the also any filings of an SR22 for insurance purposes.

A criminal conviction stays on your criminal record for life, unless it’s expunged, or pardoned by the Governor of California. It never automatically “drops off”, like items on your credit report. It can only be used against you for purposes of alleging a prior DUI for ten years, but
it’s still on your record, even after that ten-year period.

Any driving record notation also stays on your record for life. It can only be used to increase insurance for three years. The points from any tickets, accidents, or court convictions can only be used against you by the DMV for a three-year period to suspend your license. But the DMV keeps track of your lifetime points for their “negligent operator” program, which is used to pull the licenses of the most serious driving offenders. There is no way to expunge your driving record, only your criminal record.

What exactly is an expungement in California?
An expungement is a motion to the court that, once granted, retroactively dismisses your case from your criminal record. There are some things that by law, an expungement cannot help you with, namely preventing criminal charges for priors for future crimes, getting federal or state licenses, or contracting with the state or federal government.

How does someone qualify for an expungement of a DUI?
In order to get an expungement order granted, you need to first bring the motion. Most counties in California have a court form available online for applying for an expungement, and in addition to the form motion, you must also provide the order for the judge to sign (California has a form for these, Forms CR-180 & CR-181). A copy of your motion must also be mailed or delivered in person to the prosecutor.

You also must meet three requirements in order to get an expungement:

  1. You must be off probation. Either probation must have expired, or you must bring a motion to terminate probation early first.
  2. You must have completed all the terms of your sentence. The court will look at your court file and make sure that all fines are paid, all alcohol schools are completed, and any community service, or special classes or punishment have been finished.
  3. You must not have any other cases pending, and you must not have any convictions after the conviction you are seeking to expunge. Any convictions would be a probation violation.

What does California law state about an expungement?
California’s expungement law, Penal Code 1203.4(a)(1) states:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.” (Emphasis added)

So, how often are DUI cases expunged in California?
I have bolded the sections of the law that state “shall” in the law above, because those are truly unusual in law. In most cases, and in most laws, the law explicitly gives a judge a decision to make, by stating that the judge “may, in his or her discretion”.

The expungement law is different because the use of the term “shall” means that the judge doesn’t have that discretion. As long as the person seeking an expungement meets the three requirements above,
the judge has to grant the expungement petition.

As a result, a high rate of DUI cases are expunged. The only way to
not get an expungement is either to not qualify by not meeting one of the three requirements above, or to not apply for one at all.

Author: This article was written by
Robert Miller, an Orange County DUI Lawyer at the law firm of Miller & Associates in Newport Beach, California.



Guest Post: Both Sides

I received an email via my contact page from David, who has seen both sides of receiving a DUI/DWI, both as an offender and as a victim. It's a really great perspective on everything we face. While this site does try to help get people through their DUI experiences, we do not endorse drinking and driving, and hope that everybody who goes through it learns their lesson and does not have a repeat offense. Thanks to David for this article, it was a harrowing read. - Tom.

My name is David. I am both a DWI offender and a victim of a DWI crash.

My DWI

Years ago, I had a bunch beers while enjoying a summer weekend with friends: I don't remember the exact number but it was at least 4 or 5. I stopped drinking at some point before I knew I had to leave.

I didn't stop soon enough. I didn't know that at the time. I thought I was ok to drive. I had driven home many, many times before in worse shape.

I was about a mile from home when I rear ended another driver at a red light. Fortunately, it was a minor fender bender and neither of us were hurt.

The cops came: I failed field sobriety tests, was arrested and taken to jail. I blew .09 at the station.

I was kept overnight in jail. I didn't sleep. My mind was racing with what might happen. All I could imagine was the worst.

The next morning, I walked home: my car was impounded and undriveable. My house keys were with my car; I had to break into my house.

That was a long, difficult summer and fall. I took the laws seriously: I sold my car after it was repaired. I rode my bike and public transportation every where I needed to go, including court.

I attended the driver responsibility training. During the driver responsibility training, I learned about the rate that alcohol metabolizes. I attended a victim impact panel.

I live in a state next to Canada: I haven't been to Canada since. I plan to request permission to go to Canada again soon.

Since then, I have tried to be responsible about drinking. I have gone long periods without drinking.

Being Hit By a Drunk Driver

Jump ahead a few years: my wife and I went out to dinner with one of her friends. We rode our bikes from our house to the restaurant, something we’d done many times before. It was a beautiful, late summer evening and we thoroughly enjoyed the weather and ride.

After dinner, my wife suggested we ride down to the waterfront. We had done so dozens of times before: it seemed perfectly safe.

We rode about 100 feet when it happened: we were hit. My wife and I were riding single file. She was riding behind me and the drunk driver hit her first. He hit me immediately after her.

Neither of us had any clue what happened. One moment we're riding our bikes, the next, we were flat on our backs, on the road. We were thrown from our bikes on to the road.

I couldn't move but I tried to pull myself up. I must have been unconscious briefly because someone was already with me and told me to lay still. I didn't know where my wife was or if anything had happened to her. I didn’t really know what was going on around me: I tunnel vision that limited what I saw and experienced.

Meanwhile, the driver who hit us took off. My bike was under the front of his SUV. He stopped after about 500', got out of his SUV and tried to pull my bike out from under his car.

By that time, people running after his car caught up to him. Moments later, the police showed up. He refused the breath test and was arrested.

An ambulance showed up and took me to the local emergency room. When I was unloaded, I heard the emergency room personnel say that one of us would go in one room and I to another. It was at that point I realized my wife was hurt. I didn't know just how badly she was until later that night.

We were hit around 9:45pm. I spent the entire night in an emergency room, wide awake.

Around 11pm, a police officer came to ask me if I knew what happened. I had no clue, so he filled in the details. And he told me what had happened to my wife: she had a broken leg, fractured ribs, fractured vertebrae and a broken collarbone.

I was a lot more fortunate: mostly scrapes and bruises. My back was torn up from landing and sliding on the road. Because of that, I didn't see a doctor until about 6am.

When the doctor released me, I couldn't walk. The trauma of being hit took its toll on me. The doctor gave me a cane and sent me on my way. I mustered all of my strength and, quite literally, dragged myself to my wife's room.

When I finally got there, I was never so happy to see someone in my life. She was battered and clearly injured but she was alive.

My wife had surgery to fix her leg later that day. Doctors put a rod in her leg to put it back together. That sounds like a simple thing but in reality, it is a very violent surgery. The rod has to be hammered in. Go look up inter medullary rod surgery on YouTube. There are plenty of videos showing how it's done.

My wife stayed on the surgery floor for for a couple days and was then transferred to the rehab floor.

She spent two weeks in rehab, learning how to walk again, how to get out of bed. When you are hurt that badly, your body shuts down. Nurses get you out of bed to go to the bathroom... after they take your catheter out. You have no independence: you have to retrain your body to do basic functions.

Over the course of two weeks, my wife progressed from not being able to get out of bed to a wheelchair to a walker and finally to a cane. She was released from the hospital wearing a cervical collar, which she had to wear another 12 weeks.

She lost her independence during that time. She could not drive. Me, my family, our friends took her to the many follow up appointments. She had to go to physical therapy for weeks afterwards.

While my wife was being put back together in the hospital, getting rehab, trying to recover from this incredibly violent assault, the driver was at home, sleeping in his own bed. Going about his daily life.

While she was in the hospital, I struggled through daily existence. I couldn't walk without a cane for several weeks and was dependent on friends to get me to the hospital and back. My wife missed the start of our son’s school year. She missed the start of his soccer season. She didn’t go to the school’s open house.

My mother came to stay with us. She drove me everywhere and, when my wife got out of the hospital, drove her many places.

Slowly, we recovered from our physical injuries. The rod in my wife's leg made it impossible for her to lay on that side and, a year later, she had it removed.

We both have constant reminders of the crash. My wife has scars on her leg from the surgeries. Her collarbone never healed properly. Her doctor told her she faces arthritis in the bones that were injured.

I have scars on my back. I developed tinnitus, probably from hitting my head on the SUV and/or road. I have a constant, high pitched ringing in my ears: it never stops and it never gets better.

Those are the physical scars. My wife didn’t want to ever ride a bike again. She did get back on a bike but she won’t ride anywhere except the neighborhood. We used to enjoy exploring the city, going places, doing things on our bikes. That joy is gone for my wife: every car that passes makes her nervous. She won’t ride at night. That I ride when it’s dark makes my wife very nervous.

After The Crash

After the crash, we had to deal with all sorts of issues.

The person who hit us ran. He left us for dead. Running sends a very strong message to victims about the value of their lives: it says that we are worth nothing. A human would stop, if for no other reason to see if we were ok.

Running makes the driver a monster. It makes him inhuman.

We suddenly got sucked into the insurance system. We live in a no fault state and the hospital and doctors dealt with the insurance company directly for the most part. There was a long, tense period where the insurance company was “deciding” if we shared any responsibility (we didn’t).

We wondered if there were going to be medical bills not covered by the insurance. We worried about how we would have to pay those if it happened.

We also got sucked into the criminal justice system. A victim advocate and the district attorney came to see us in the hospital. We were, to say the least, skeptical about what would happen.

The person who hit us was charged with a variety of things. It wasn’t his first DWI, either: he had a prior DWI conviction 7 years earlier that resulted in a 3 year probation. Clearly, he didn’t learn anything from that experience.

By the time we got to the arraignment (yes, victims can and will attend your arraignment), the driver had agreed to plead guilt to the top offense (hitting and injuring my wife while intoxicated). No one ever came right out and told us but the other charges were dropped. The driver was not prosecuted for hitting me.

We had to wait months while the criminal justice system did what they needed to do: talk to the driver, write sentencing recommendation reports et cetera. When it came time for sentencing, we were given the opportunity to make statements to the court. We were also encouraged to gather statements from our family members and friends about the impact on them (more on that below). In our statements, we could ask the judge to give a certain sentence.

The driver who hit us faced a maximum sentence of 3 years in prison. The sentencing guidelines in our state aren’t great, from a victim’s standpoint. For the crime, any given sentence seems like a joke.

My wife and I both read statements we’d prepared. We asked the judge for a split sentence: some jail time and five years of probation. We wanted the driver under close supervision for the maximum amount of time. A prison sentence might have been more punitive in the short term but would have, overall, resulted in less supervised time.

The judge was surprised by our request but understood the logic and agreed to it. He also made it abundantly clear to the driver that, if he violated probation, he would sentence the driver the maximum he could.

The driver and his lawyer attempted to show the judge he had started to turn his life around. He may have tried to apologize, I don’t know. I don’t recall anything that sounded even remotely like a sincere apology.

I mentioned the impact on our families above. One of the things you have to when something like this happens is tell everyone in your family before they find out some other way. We were lucky in that respect: our families didn’t have police officers showing up to tell them we were dead.

Almost all our family members live far away: my wife’s dad lives at the other end of the state. My dad lives in the south; my mom was in an airport somewhere. My wife’s brother lives overseas. Only my sister lives in town.

I had to call my wife’s father and tell him what happened and that we were ok. I couldn’t reach my mother: I had to message her through Facebook. Same thing for my dad.

I had no idea how to reach my wife’s brother: I’d never called him. So I took her phone and texted him. I wasn’t thinking about how any of these people would receive the message: I just needed to tell them as quickly as possible.

It wasn’t until months later that I found out about the impact of those messages. My wife’s brother said (in his impact statement): “I chat online with (my sister) quite frequently. Seeing her name popup in the message list on my mobile phone is a regular event. I know, when I see her name, that I am communicating with my sister. However, on the afternoon (after the crash), I received a very disturbing message. The message was delivered from Roberta's mobile phone, however it was made quite clear from the onset that it wasn't my sister who was writing.”

“Seeing that someone very close to my sister, but not my sister herself, was writing to me from her phone sent an immediate and shocking chill through my body. My immediate fear was that my sister had died somehow, and this was the method by which I would receive the news. He ultimately told me they were both alive and will survive, but I will never forget that cold chill shock. I will never forget that moment of feeling that I might have just lost my sister forever.”

I choke up and tears come to my eyes every time I read that. It chills me to the core: I don’t want anything like what happened to us to happen to any of my friends or family members.

The driver received a split sentence. He served his jail time and is currently service his probation. He wore an ankle monitor for six months or so. While he’s on probation, he must live under a long list of restrictions. He can’t leave the county. He can’t go anyplace (restaurant, bar) that serves alcohol (that includes Chucky Cheese). He faces random inspections. There can’t be any alcohol where he lives.

If the DMV agrees to let him have his license back (an uncertainty considering the prior DWI and the violence of the 2nd), he’ll have to put (and pay for) an interlock in every car he has access to in his household.

He has a felony conviction, which makes certain job opportunities unavailable to him.

We understand he paid his lawyers $10,000. For two court appearances. Actually, he didn’t pay it: a family friend did. I assume he has to pay it back.

Final Thoughts

As part of the civil side of a DWI crash, your victims will find out a lot about you. We found out the driver who hit us had declared bankruptcy and had tens of thousands of dollars of outstanding debts. He didn’t have any assets.

You might want to think about that if you’ve had one DWI. The reason a victim’s lawyer looks into your assets is to see what can be recovered for the victim.

We were fortunate that the driver who hit us carried reasonable insurance coverage. It covered all our medical expenses. There are limits to the coverage, however. That largest number (bodily injury liability) is a policy limit: all victims split it. So, if you have $300,000 (which is common), that’s the max the insurance company will pay out to all victims, combined. If those victims obtain a judgement against you, the balance comes from your assets.

The penalties for DWI, especially for a DWI that doesn’t involve other victims, can seem harsh. To the victim, they seem laughable. Having been both, I understand the point: they are intended to deter drivers from repeat DWIs. In our part of the state, all DWI drivers have to attend driver responsibility training and a victim impact panel.

At the victim impact panel, people like my wife and I, and other people, who’ve lost children, husbands, wives, parents, tell their story. They talk about the impact it had on their lives. We have a couple of people who’ve had multiple DWIs and made victims of themselves who present.

It is a terrible club to be in. Everyone there is because of heartbreak. For the victims, it doesn’t ever get better. There is not a day that goes by when we don’t think about what happened, what someone else did to us.

And in so doing, how cheaply they did it. How little value they place on our lives. We know our lives could have been, the lives of loved ones were, taken away for a few drinks.

Depending on where you live, the recidivism rate is somewhere between 11 and 69%. A DWI arrest is a predictor of another arrest. And, from what I’ve learned, the 2nd and later offenses will be worse. It is not a matter of whether you will be involved in a crash, just a matter of time.

Every one of the victims I present with has the same message: we don’t care if you drink. If you have a problem, we want you to get help. But if you want to drink socially, we’re not trying to discourage you. We just want you to do everything you can to stop yourself from drinking and driving. We want you to have a plan and to stick to it: once you’ve started drinking, your decision making ability is impaired and you will not make the right decision.

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