Can a DUI keep you from a job?



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Category Archives: Criminal Defense commentary

Can a DUI keep you from a job?

One of the questions that our Orange County DUI Attorney gets asked most often is, “can a DUI keep you from a job?” That is, can a DUI conviction actually prohibit you from being hired for employment?  Usually, the answer is complicated, as it depends on what type of job and how relevant the DUI is.  However, there is some good news as of September 2017, for DUI convictions.
During September of 2017, the California state legislature passed a bill making it unlawful in most cases to ask about a job applicant’s criminal history.  The measure now sits with Governor Jerry Brown, who is expected to sign it later this month.
The new law would stop businesses with five or more employees from inquiring into a job applicant’s criminal history in writing, verbally, or otherwise until after extending a conditional offer of employment.
If a criminal background check then yields any result that concerns the employer, it must consider whether prior offenses have a direct, actual relationship to the employment position that is being offered.

Businesses that subsequently decide not to move forward with an applicant after a criminal history check must provide him or her with its decision in writing.  Persons rejected for a job would then have the right to file an appeal with the Department of Fair Employment and Housing, which would investigate further. Having the decision in writing makes it easier to win a labor or employment case where there was a decision that was made in bad faith or against the law.

When the new law goes into effect on January 1, 2018, California will become the tenth state to ban criminal history inquiries for private employers.


(City and state data compiled by The National Employment Law Program.)


These are known as “ban the box” state laws (referring to the “have you ever been convicted of a crime?” checkbox on job applications) and have enjoyed bipartisan support at the state and local level. Last spring, a bipartisan group of Congressional lawmakers went as a far as to propose a nationwide ban.

In just 2016, Louisiana, Missouri, Oklahoma, and Wisconsin have all enacted policies applying to either private or public employers. In total, 26 states and over 150 cities and counties have laws and ordinances limiting employers’ access to criminal history—meaning that over 211 million people (or two-thirds of the U.S population) now live in ban-the-box jurisdictions.

Can an expungement of my DUI help?

An expungement of your DUI may still help you.  But since a DUI leaves not only a criminal record but a driving record, certain driving related jobs might be difficult to obtain.  An expungement will also not help you with certain federal or state employment opportunities, or with any specialized licenses.

Contact us for Questions

Contact our law firm today

Our team of Orange County DUI Lawyers will continue to monitor

the status of the California bill and similar measures nationwide. We can help fight your DUI case to meet your long-term goals, wherever possible, to protect your career ambitions in the future, and not let a DUI derail your plans. Contact us anytime.


Why do people stay in abusive relationships?

Why do people stay in abusive relationships? 

The question which frustrates police officers, prosecutors, judges, caseworkers, counselors, ER doctors and nurses, family and friends is the title of this article. Those who work with both victims and perpetrators of domestic violence in any capacity will ask themselves this.

They will spend months with women who have been abused, listening to their stories of beatings, rape, threats, and insults, their beloved pets being killed, their valued possessions smashed, and their children too often witnessing violence or being drawn into it.

In therapy, the roots of the violence, and often the acceptance thereof back to their experience in their developmental years will be processed. The warning signs their abuser showed early in the relationship will be identified, as will any patterns they have of choosing abusive men.

Therapists will examine how they couldn’t fix their alcoholic, addicted, abusive, molesting father, so they have a compulsion to find men just like their father and fix them.  New behaviors will be gradually learned, to develop self-confidence and self-respect.

Options for a safe exit plan or for the successful prosecution of their abuser will be laid out. They get restraining orders, a job, a new place to live and start presenting themselves with a new found confidence as they create distance between themselves and the predator that has victimized them.

Then they go back to them. They still love him. He’s a good man. He’s changed. He stopped drinking. It wasn’t so bad. You have to take the good with the bad in a relationship. Or they go out and find another man who could be his twin brother as far as behavior goes.

The legal definition of domestic violence varies between jurisdictions. Generally speaking, it is a form of violence which takes place between people who are married or living together or are family members (United States Department of Justice, n.d.). It is violence which occurs in the confines of a relationship, and often behind closed doors. Much of it is never reported, and the victims suffer in silence.

Why do people allow themselves to be abused?

  • Financial dependence on the abuser.
  • Drug dependence, with the abuser as the supplier.
  • Children with the abuser, which will keep you linked together.
  • The proverbial low self-esteem: I can’t do any better; I know this because he said so
  • Preference for a chaos, crisis-oriented existence, and inability to be comfortable with being treated well.
  • A rigid belief that you have to make a relationship work once you are in it.
  • Repetition compulsion: The unconscious compulsion to re-live a traumatic experience in a vain effort to gain closure (Bowins, 2010).
  • Adaptation to mistreatment. Over time, anything can become acceptable. Human beings are very adaptable, but sometimes this can work against us.
  • Borderline or Histrionic personality disorders. Individuals with these personality disorders will be very dramatic, and seek out crises (Out of the Fog, 2015, Out of the Fog, 2015a).

The dynamics of violence can be complex. It is almost always an interactive process to some degree. This is not blaming the victim; the offender is always responsible for their crime. However, the victim is responsible for their safety. There are men who are narcissistic and sociopathic, who believe their word is law and enforce their law with violence. They dominate those who are weaker, though I have observed many will not step up to another man. They are very bold with a woman or child, however. There are also women who are psychotically unstable, and who do violence to the men in their lives, or their own children. Here are some closing thoughts for both men and women who are in an abusive relationship:

Ladies, if you are with a man who hits you, get away from him, it will not get better. It doesn’t matter if he says he’s sorry, or if he cries real tears; you need to get away and never go back.

Gentleman, if you are with a woman who provokes you constantly, get away from her before you hit her. One day, you may lash out in frustration, and if you are a decent man, you will never forgive yourself for hitting her.

Some people should not be together, no matter how badly they want to. Some relationships cannot be fixed. And some people are incapable of being in a relationship.


Bowins, B. (2010). Repetitive maladaptive behavior: beyond repetition compulsion. American Journal of Psychoanalysis. (3):282-98. doi: 10.1057/ajp.2010.14.

Out of the Fog. (2015). Borderline Personality Disorder. Out of the Fog.

Out of the Fog. (2015). Histrionic Personality Disorder. Out of the Fog.

United States Department of Justice. (n.d.). Domestic violence.

CNA Classes Free Info. How to Stop Domestic Abuse.


stop domestic abuse




Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic theft is not only on the rise, as monetary systems move to the internet, but also are easier for the police to investigate and for prosecutors to prosecute.  Those factors make electronic theft crimes and convictions increase year over year.  It also makes convictions rise year over year.  This page discusses Electronic Theft Crime Defenses.

This FAQ page discusses how electronic theft crimes are investigated and what is allowed in prosecuting and defending cases.  The most common situation is where a credit card payment system is diverted or siphoned from, to route payments (or sometimes false payments) to an employee or another third party.

Question: In investigating an electronic theft crime, how likely are the police to try to access an online payments system?

Answer: The police wouldn’t be able to access any online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely that depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first.

Q: How likely are police to succeed in getting records in an electronic theft case?

A: Again, that depends on the specific facts and evidence the police have before using specific tools to access this account.  The police wouldn’t be able to access the online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first. If the account owner consents to provide information or agrees to give access, no legal warrant or subpoena is needed, as there is consent.

Q: Can anything be done by the defense to stop this?

A:  With a warrant, there is a criminal motion to quash a warrant from being granted, or being used.  That can be served on the police and prosecution and used to stop an illegal warrant.  With the subpoena, there is likely third-party information being revealed.  Third parties would have a privacy interest in protecting private information, such as their credit card information, order history, name, address, and date of birth (if in the system).  Objecting to the subpoena as a third party based upon privacy rights and obtaining an injunction preventing release of the information via court order (from a civil court or an appeals level court) has been very successful in stopping or blocking this type of information from being released until the court system can analyze the data and see what, if anything, can be released protecting the privacy of others, which can take six months to a year. If the delay extends the investigation beyond the statute of limitations for the crime, this tactic alone may cause the case to be dismissed, or never filed in the first place, and would make it impossible to bring charges in the future.

Q: If an electronic order confirmation email was deleted after sending, how easily can these be recovered?

A: This is really a technical question, that depends on the email system used, the backup and storage methods, and the company’s policy regarding deleting, or backing up and saving old information.  From a legal point of view, I have no idea.  There is no legal requirement to save emails in most industries.

Q: How should he respond if being accused of being involved in, or a defendant in, an electronic theft crime?

A: This question is one permutation of the age-old question about what to say if accused of a crime.  Almost 100% of attorneys and most judges will tell you it’s best not to say anything.  You have 5th Amendment rights and 14th amendment rights for a reason, and that is to protect your right to remain silent.

Q: What should a defendant say if questioned?

A: That depends on the exact question asked.  Most attorneys would prefer that the accused not admit to a crime, and state that they have talked to an attorney, and the attorney has advised he or she not to make any statements regarding this at all.

Lying about it and stating they don’t know would not likely be a crime, like obstructing an investigation, or obstructing justice, but would certainly cause job consequences. 

Q: Wouldn’t it be better to attempt to fabricate some kind of explanation — That the sale was legitimate, but that the receipt was lost?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That statement cannot be used against him, as it’s fundamental constitutional right.

Q: That ticket scalping sites are somehow involved if the case involves false ticket sales?


Q: That any charges made electronically were a mistake?


Q: Or, if the police do decide to pursue charges, should the alleged defendant maintain silence, and hope that either the case is dropped by the prosecutor, or that there’s some kind of semi-viable legal defense available?

A: Yes.  Most attorneys would prefer that he not admit to a crime, and state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That’s his rights under the Fifth Amendment. Talking about it or admitting to charges, or even admitting to side issues that help prove the case is never helpful

Q: Just how likely, roughly, are the police to pursue this?

A:  This question is impossible to answer by anyone but the specific agency investigating this case.  That would depend on their resources, how overloaded they might be by other cases, what their budget is to investigate this case, how much evidence they have (including what you don’t know about yet) and their motivation for the case.  The police have a duty to investigate and report to the prosecutor’s office via reports and other evidence any time they suspect a crime has occurred.  But in the real world, they may not have enough evidence or time to handle every case.

Q: And beyond that, how likely is the prosecutor to take up the case?
A: A prosecutor has a duty to file cases where there is a good faith belief that there is a crime and it can be proven beyond a reasonable doubt (note this is a higher standard than the police investigation standard above).  I do not know the answer to this without knowing the agency involved and the evidence involved. I suspect that there may be some denial here, in that you hope that charges will never be filed.  That usually doesn’t work out well, but it’s understandable psychologically.  Most cases presented are filed with the court.  

Q: How much room is there for a good Electronic Theft Crime Defenses, getting the charges dropped on that basis?

A: That’s difficult to tell from the limited evidence here.  There may be factual defenses – facts that don’t prove a connection to the alleged defendant, or there may be legal defenses, like a lack of intent here.  But there’s not enough to guarantee a particular defense or dismissal among the variety of Electronic Theft Crime Defenses.

Q: As far as actual sentencing is concerned… are cases like these sometimes are eligible for a pre-trial diversion — Pretrial diversion is where full restitution is paid, and the defendant has to take a class, the record is cleared, and that this becomes more difficult the more money is involved.
A: Yes, especially in certain counties, like Los Angeles County, the courts rely on pretrial diversion quite a bit for first-time offenders with no criminal record.  What this is describing is usually not eligible for more serious theft or embezzlement crimes, but probation instead of prison time is a possibility for first-time offenders.  

Q: If Pretrial Diversion (PTD) isn’t possible, what charges are likely, what sentences are likely?

Q: The sentences depend very much on what charges are filed, proven, or pled to. California charges depend on the amount of issue (or the total amount taken).  Anything under $950 is a misdemeanor and has the misdemeanor sentencing range, and anything above $950 is a felony, with the felony sentencing range. What crimes are covered under electronic theft could certainly qualify as California Penal Code 487, Grand Theft, or if below $950, Petty Theft.  It could also definitely qualify as Embezzlement, which is petty theft or grand theft while under the contract or employ of an employer and in a position of trust, which would also be a misdemeanor if under $950, or a felony if above $950. This could also be prosecuted as a misdemeanor or felony fraud.  Prosecutors would usually in normal situations file both, which gives them leverage to run both sentences concurrently, or consecutively, or dismiss one as part of a plea bargain.

If referred to the Federal Attorney General, which electronic crimes often are, that would be the federal crime of electronic wire fraud, or 18 U.S. Code 1343.

As a misdemeanor, the sentencing for California crimes would be from zero jail time to one year in jail, three to five years probation, restitution, and certain additional punishment (education, community service, work programs, booking, DNA, or counseling), depending on the judge and the policies for the courthouse you are in.

As a felony, the judge would only have the choice of sentencing you to one of three state prison options – sixteen months in state prison, two years in state prison, or three years in state prison.  Before sentencing, the judge will allow the defense to bring a motion to show good cause for first-time offenders for mitigation for felony supervised formal probation in certain circumstances.

As a federal crime, section 1343 allows a judge to review sentencing briefs from both sides and proclaim a sentence up to one million dollars in fines, plus actual restitution, and up to 20 years in Federal prison.

Any of the above is a crime of moral turpitude, even if a misdemeanor.  Theft, fraud, or embezzlement crimes are a hard no for many employers, and crimes of moral turpitude make you ineligible for state or federal licenses and cause immigration or travel consequences.

Q: What difference could a good defense attorney make?

A: A defense attorney is the only one working on the defense side to challenge the evidence, block certain evidence from being used, arguing for you, presenting evidence on your side and presenting mitigation evidence on your behalf.  The difference could be a more harsh sentence and a light sentence, or between a dismissal and a conviction. A defense attorney is important enough that you will be given one by the court even if you can’t afford one, but having a plan in place now and being prepared and having a firm dedicated to your case and fighting every aspect of it and minimizing the impact on you can make a dramatic difference in your matter.

Q: Overall — How dangerous is this situation, legally speaking?

Q: Theft crimes are not “dangerous”, per se, and not “dangerous” in terms of personal harm.  But this situation is serious.  I think you’re doing the right thing by taking this seriously and gathering as much information as you can to have a plan or strategy in place and reaching out to professionals to get opinions and potentially having someone handle this situation. As you can see from the punishment above, this is serious enough to be concerned and want to fight this and minimize the impact on you as much as you can. 

Q: Is there any possibility of resolving it internally, before the police get seriously involved?

A: If the police have already been contacted and have begun looking into this (which is what I gather from your explicit statements to that effect), then they would have a legal duty to investigate this if they believe there are facts that support a conclusion that a crime has occurred.  (See above).  If I am incorrect in this, and the police have not been contacted, then an internal settlement could be negotiated (with or without an attorney), which may stop the police from being involved, or a challenge to the warrant or subpoena (see answer above) may prevent evidence from being obtained.  Many police detectives or officers will also allow an attorney to argue the evidence collected towards convincing the police not to file charges and send to the DA’s office if there is a weak case.

Q: How likely are the police to gather sufficient evidence for a viable case?

A:  This is another question that any answer would only be pure speculation. If the police have the manpower, time, budget, and evidence to gather sufficient evidence, then they could.  Not knowing any of that, I can only guess.  People often underestimate how easy it is to get and analyze electronic data, and many larger police departments have specific task forces or sub-departments just for electronic evidence retrieval and analysis. Sufficient evidence depends on whether or not they can prove the elements of the crime.  For embezzlement, for example, the criminal statute and the court instructions require proof of the following elements, each beyond a reasonable doubt: (a) An owner entrusted someone to access to property; (b) The owner trusted the defendant; (c) The defendant fraudulently acted to steal or defraud; and (d) there was an intention to steal or defraud.  If they can’t provide sufficient evidence as to each of those elements, then you would win the case at motion or at trial.

Q: Can anything be done about this?

A:  Yes.  As mentioned above, you can be proactive about challenging the evidence, or blocking the efforts to obtain evidence, or create a settlement.  You can settle the case with the employer or convince the investigating officer or detective that there is insufficient evidence.  You can also challenge the filing deputy at the prosecutor’s office that there is not a case to be filed, you can challenge the case and the charges at the arraignment in court, challenge the elements of the crime, provide defenses or defense evidence, challenge the case at trial, or provide mitigation evidence and ask for leniency in the punishment, or a reduction of the charges, or argue for the minimums allowed by law at sentencing.

Q: How likely is this 1) to be investigated, 2) to lead to arrest, and then 3) to prosecution?

A: There are unknowns, but it’s rare for a clear crime to not be investigated.  If there is enough evidence, it will lead to an arrest, and lead to prosecution. The state’s own statistics  show that over 90% of cases presented to the prosecutor are filed.

Q: What kind of sentencing is likely for Electronic Theft Crime Defenses?

A:  See above regarding sentencing ranges.  For felonies, where the court has three choices in sentencing, the guidelines for judges state that the judge must choose the mid-term (2 years), and then decide if the mitigation evidence presented by the defense outweighs the aggravating evidence presented by the prosecution.  As a first time offender, the court usually would go towards the low term or towards probation and lower jail time, rather than towards the maximum sentencing range.

Q: What kind of Electronic Theft Crime Defenses are viable?

A:  Many long books have been written on criminal defenses, which also apply to this case.  Defenses to theft include consent, lack of intent, lack of fraud, stealing, or misappropriation, factual or legal mistake, a challenge to the crimes charged by pointing out legal defenses, or that the elements of the crime cannot be proven, or mental capacity, or legal justification.

Contact our Orange County criminal defense attorney if you have questions.

Contact our law firm today

What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

Often, people feel that their DUI involved entrapment by the police.  In criminal law, entrapment exists where the actions of a law enforcement officer make a person commit a crime that they would have otherwise been unlikely to commit.

What if the police used entrapment in my DUI? Entrapment is defined by one source as “the conception and planning of a crime by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.”  Translated from legalese, that means “you wouldn’t have done it if the police hadn’t set you up.”

The most common example in a DUI case is where an officer suspects that you were driving under the influence of alcohol or drugs, but you were no longer driving your car, or your car was already stopped.  The officer then asks you to move your car, and since that is “driving”, they then arrest you immediately after doing so. Entrapment is an area that law enforcement does not like to talk about, as it implies police corruption. However, there is evidence that police officers have attempted to “trap” drivers in exactly this way in order to achieve a conviction.

What is used to prove Entrapment in a DUI?

The jury instruction in California instructs that it is the defendant’s burden to show entrapment.  The instruction read in trial states as follows:

Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.

A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. “

In one case in California, People v. McIntire, the court mentioned that third parties that are asked by the police to have the defendant do the illegal act can also constitute entrapment, stating:

“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator. [Citing another case}, ‘The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime.’”

What if the police used Entrapment in my DUI? Usually, the defense of entrapment doesn’t mix well with the law in DUI cases, because the law considers a defendant voluntarily consuming alcohol (or drugs, for driving under the influence of drugs (DUID) cases), to be a contributing factor of the crime of driving under the influence. There is a defense of involuntary intoxication in a DUI case where a person was dosed with drugs or alcohol without their knowledge, however.

The courts consider that defendants are free to say “no” when asked to drive a vehicle under the influence, even if they may not know that fact. Officers who use violence or threats of violence to make the defendant drive are a different situation since in that case, the driver would not feel free to walk away.  And driving under the influence because of a legal necessity to avoid a crime is recognized as a defense.

Contact us for questions.   Orange County DUI Attorney Robert Miller is experienced with DUI defenses, and the court system in Orange County, and can ensure you receive the best possible representation if you have been charged.

Contact our law firm today

Contact us today.


The future of breath test machines – drug testing

The future of breath test machines – drug testing

The future of breath test machines – drug testing:  A few years ago, a new, and relatively crude device, which consisted of a modified breath alcohol testing machine, was tested to see if it could detect certain substances on the breath.  A control group of 47 individuals, who had taken marijuana, cocaine, heroin, and methamphetamines less than 24 hours prior to the test, were tested to check the accuracy of the device. The test detected drugs successfully in 87% of the people tested.

The device required the suspect to breathe into a mouthpiece attached to a micro-particle filter. The microparticles in the breath were separated from the saliva and deposited onto a filter, which was then sealed and stored. The particles were then taken to a lab and tested using liquid chromatography and mass spectroscopy devices. Plans are underway to see if a portable test could be used roadside.

Police, and state and federal highway agencies, are concerned that drugged driving is on the rise, but is not being detected. As marijuana becomes legal in more and more states, the laws are changing to make sure that it is clear that driving under the influence of marijuana is still illegal.

A recent series of studies by the AAA Foundation for Traffic Safety found that DUI fatalities involving drivers who had used marijuana shortly before driving doubled in Washington State after it legalized usage of the drug. Other states have had variance in their statistics, but seem to have an increase after legalization.  It seems clear that states need good methods to find drivers under the influence of marijuana that cause accidents which endanger others. The problem is that there’s no reliable and accepted method of measuring levels of marijuana in a driver’s system, other than a blood or urine test. There are also no agreed upon levels of impairment for marijuana, unlike alcohol.

Companies have been developing the equivalent of an alcohol breathalyzer for testing for motorists who are DUI for cannabis. Law enforcement officials have been relying on breathalyzer technology to estimate blood alcohol levels for decades, and the future of breath test machines – drug testing and not just alcohol testing. In addition, there’s a legal agreement to follow the federal government’s definition of what constitutes DUI; all 50 states accept the federal BAC of 0.08 percent or greater as the dividing line.

It isn’t easy when it comes to determining driving under the influence of drugs (DUID) involving marijuana.  Police would need a roadside method of measuring levels of cannabis’s main active ingredient, tetrahydrocannabinol (THC), in a driver’s system. There are a few university researchers, and testing companies, all over the world, that are attempting to solve this challenge right now, and market devices for this purpose

But the problem of insufficient scientific research of what levels equal “under the influence” remains.  There is no good way of determining what levels of THC in the bloodstream are dangerous, or even whether THC levels are an accurate metric to determine when someone is under the influence of marijuana.

THC Measurement in Drivers

Marijuana Hemp Cannabis License Health Benefits

States that have legalized marijuana are having difficulty with the fact that measuring a person’s THC is actually a poor indicator of intoxication. According to Thomas Marcotte, co-director of The Center for Medicinal Cannabis Research at the University of California, San Diego, THC gets stored in your fat cells, and isn’t water-soluble like alcohol.  As a result, there isn’t a linear relationship between the amount of THC in the body and impairment.

We are often asked what the legal limit for marijuana is for DUI cases.  California has no limit, but Colorado is one state that has a limit.  They set the DUI level for cannabis intoxication as five nano-grams of THC per milliliter of blood. But a positive test for the presence of THC only shows that at some point —perhaps a week ago or longer— the person ingested marijuana. The test doesn’t measure the level of intoxication or impairment at all.

Researcher Margaret Haney, a neurobiologist at Columbia University, states that the amount of THC in the body also varies by whether or not the person used cannabis only occasionally (in which case the THC would leave the body quickly) or fairly regularly (in which case it would be stored longer term). The occasional smoker stopped for DUI, could actually be much more intoxicated than a regular user but would have much lower THC levels in their bloodstream.

There is also a difference between consuming cannabis or marijuana edibles, or smoking marijuana.  Smokers almost always have higher levels in testing.

The AAA, a staunch opponent of DUI, has even admitted that THC levels aren’t effective in determining drivers’ intoxication. It evaluated the arrest records of more than 5,000 drivers arrested for DUI because of their THC levels. It found that

“There is no evidence from the data collected…that any objective threshold exists that established impairment, based on THC concentrations measured in specimens collected from cannabis-positive subjects placed under arrest for impaired driving…. When examining differences in performance in these parameters between subjects with high (>5 2 ng/mL) and low (<5 2 ng/mL) THC concentrations, minimal differences were found. There was no correlation between blood THC concentration and scores on the individual indicators [of intoxication], and performance on the indicators could not reliably assign a subject to the high or low blood THC categories.”

Marijuana breathalyzers

Law enforcement officers would welcome the development of a breathalyzer for marijuana. There are articles online featuring police officers who complaint about the fact that they don’t have this essential tool. But those officials also echo doubts about how accurate such tests could be because of the uncertainty over the effect of THC levels.

The future of breath test machines – drug testing problems. To get around that problem, the developers of breathalyzers for cannabis appear to be focusing on ways to detect the active presence of THC in the bloodstream, which they claim is a better indicator of intoxication.

Cannabix Technologies Inc., a company based in Vancouver, British Columbia, Canada, has been working to bring portable hand-held tools to market that could improve law enforcement’s ability to measure marijuana-impaired driving offenses.

The company has developed drug-testing devices that will detect THC using breath samples. But the company says that it is focused on “developing breath testing devices for detection of recent use of THC, in contrast to urine testing for THC metabolite that requires an invasive collection and reflects use days or even weeks earlier.” They define recent use as within two hours.

Cannabix has been partnering with the University of Florida to develop a THC breath detection device based upon high-field ion mobility and mass spectrometry. Their work is focusing on instant readings of THC through breath. Even they admit that the device only works when people have smoked marijuana, not when they have ingested it in other ways.

Oakland, California-based Hound Labs says that its proprietary technology can measure both smoked marijuana and edibles and can measure the presence of both alcohol and marijuana together. Hound Lab’s breathalyzer can also store breath samples for independent verification at a later date.

Both companies state that their technology will pinpoint those who have used marijuana recently. At the same time, its technology will ensure that unimpaired individuals who may have THC in their saliva or blood because of previous use aren’t wrongfully accused of impairment.

Hound states on their website that the correlation from THC to being “under the influence” shouldn’t stop their device from being used:

“[The] marijuana breathalyzer not only provides information that is immediately useful at the roadside, but also allows ongoing data collection to inform states on how much THC is too much to drive.”

Clinical trials started at the University of California, San Francisco, in May 2017, and the first data from those trials and testing are expected to be published late this year or early next year.

dui breath test

The future of breath test machines – drug testing in the future for DUI. The controversy over whether breath devices are accurate and effective for drug testing will certainly continue for much longer, as DUI defense attorneys for clients accused of marijuana DUI are likely to challenge the results of those breathalyzers and the use of THC as a measure of intoxication.

Contact us.  Contact Orange County DUI Lawyer Robert Miller, of the law firm of Miller & Associates, if you have any questions about drug DUI or breath testing.

Orange County Automatic License Plate Reader Systems

Orange County Automatic License Plate Reader Systems

Orange County Automatic License Plate Reader Systems ACLU Image

What are Automatic License Plate Readers?


An Automatic License Plate Reader, or ALPR, is a high-speed camera system, which is n computer-controlled, and automatically captures images of every vehicle plate that comes into view. ALPRs can detect when a license plate is in the camera’s view, capture an image of the car and its surroundings (including the plate), and convert the image of the license plate into alphanumeric data—in effect “reading” the plate. They use the same technology developed for toll roads – reading plates and providing information to match against a database in the system.

Orange County Automatic License Plate Reader Systems diagram

ALPRs are generally mounted on streetlight poles, but can also be mounted on bridges or overpasses, scanning every car below, as well as on mobile police cars. ALPRs record data on each plate they scan, including not only the plate number but also the precise time, date and place it was encountered. The cameras can scan up to 1,800 license plates per minute, day or night, allowing one squad car to record more than 14,000 plates during the course of a single shift, or an entire agency to scan over a billion records per year.

Orange County Automatic License Plate Reader Systems on patrol cars

ALPR systems are expensive.  Each camera can cost as much as $30,000, and entire systems can be several times that.

Where are they used?

Orange County Automatic License Plate Reader Systems problems defenses

The ALPR systems are used and purchased all over the United States.  In Orange County, California, the City of Irvine, Laguna Beach, Huntington BeachLong Beach, Anaheim, Fullerton, and the OC Sheriff’s Department, all use Automatic License Plate Reader Systems to scan automobile license plates and check numbers against the State of California database of stolen or wanted vehicles, and can match plates to arrest warrants, stolen license plates and missing persons that have been matched with a plate. It is also used to gather information related to homeland security investigations, electronic surveillance, suspect interdiction and stolen property recovery.

License-plate readers make it extremely easy for the police to find stolen cars and catch up with people with expired registration, licenses or active warrants.

The Boston Globe found at least ten repossession companies in Massachusetts that used license-plate readers to do their job and find cars for repossession. (Todd Hodnett, the director of government affairs for Vigilant Solutions, says he estimates about one in four repo companies nationally operate license-plate readers.)

Certain agencies, like the ACLU, and The Electronic Frontier Foundation (EFF) are concerned about the use of ALPRS systems and how they are used.  The EFF submitted a request in 2014 for information about the Oakland Police Department’s use of license-plate readers. That advocacy organization found that the readers were deployed disproportionately often in low-income areas and in neighborhoods with high concentrations of African-American and Latino residents.

The police agencies point out that the system has helped police solve crimes.  Lenders find it economic because it leads to the rapid repossession of vehicles.  However, there’s a lack of consistent state laws to prevent local police from accessing billions of commercially-gathered license-plate scans.

As a result, two new laws were passed in California requiring that every police agency come up with a policy, that must be posted publicly, disclosing the use of a camera license plate reader system, and disclosing how long the information will be kept for. On January 1, 2016, those new laws went into effect in California:

S.B. 34 requires agencies that use automated license plate recognition (ALPR) or access ALPR data to publish privacy and usage policies;

S.B. 741 requires public policies for cell-site simulators, a type of cellphone tracking technology often referred to as “Stingrays” and “Dirtboxes.”

These policies must be posted “conspicuously” on their websites.

Orange County Automatic License Plate Reader Systems policies.

The following policy was developed and posted by the Orange County Sheriff’s Department (OCSD) and appears in the OCSD Manual:

463.3 OPERATIONS Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53). (a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR. (c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training. (e) No ALPR operator may access department, state or federal data unless otherwise authorized to do so. (f) If practicable, the deputy should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.

The policies of Orange County Automatic License Plate Reader Systems, and throughout California, are summarized as follows:

Alhambra PD 1 year
Anaheim PD 1 year
Carlsbad PD 1 year
Claremont PD 2 years
Cypress PD 1 year
Elk Grove PD 1 year
Escondido PD 2 years for mobile systems; 1 year for fixed systems
Fontana PD 2 years
Fountain Valley PD 1 year
Fullerton PD 1 year
Glendora PD 1 year
Huntington Beach PD 1 year
Imperial PD 1 year
Irwindale PD 1 year
La Habra PD 1 year
Los Angeles Sheriff’s Department 5 years
La Verne PD 1 year
Long Beach PD 2 years
Los Alamitos PD 1 year
Monrovia PD 1 year
Orange County Sheriff’s Department 2 years
Oxnard PD 1 year
Pasadena PD 2 years
San Bernardino PD 1 year
Sierra Madre PD 1 year
Simi Valley PD 1 year
Upland PD 1 year
Ventura County Sheriff’s Department 1 year
West Covina PD Not stated
Westminster PD 1 year
Woodland PD 1 year

Source: Department policies

Further reading on Orange County Automatic License Plate Reader Systems:

Eyes on the Road (The National College of DUI Defense Blog)

Here are 79 Surveillance Tech Policies for CA Public Safety Agencies — But Where Are the Other 90?

Contact our Orange County DUI Lawyer, Robert Miller, for questions about the Orange County Automatic License Plate Reader Systems currently in use.

How to get the police report in your DUI case

How to get the police report in your DUI case

How to get the police report in your DUI case

If you have been arrested for a DUI, you might be interested in getting a police report, or police reports, to see what the police officer in your DUI case wrote about the incident. This page has information from our Orange County criminal defense attorney on how to get the police report in your DUI case.

Why the police report in your DUI case is important

The police report constitutes almost all of the evidence that the DMV uses in deciding whether or not there is proof enough to find the issues at a DMV hearing true, which would suspend your license.  Because the DMV typically decides cases based only on the documents in your case, and in most cases does not hear live testimony, the documents, as written, are used to prove the case at the DMV.

For your court case, the police report is sent directly to the prosecutor’s office, in most cases the Orange County DA’s Office.  The police report gives the DA the basic evidence to show whether or not the case can be proven, and to see if any other crimes have been committed.  They use the police report to support the decision whether or not to file criminal charges of DUI in court. The police report also identifies the parties involved, and the evidence that exists for the case.

The problem in getting the police report in your DUI case

In discussing how to get the police report in your DUI case, the problem is California’s Penal Code section PC 1054.2.  That code section states as follows:

(a)(1) Except as provided in paragraph (2), no attorney may disclose or permit to be disclosed to a defendant, members of the defendant’s family, or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1, unless specifically permitted to do so by the court after a hearing and a showing of good cause.

(2) Notwithstanding paragraph (1), an attorney may disclose or permit to be disclosed the address or telephone number of a victim or witness to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant’s case if that disclosure is required for that preparation. Persons provided this information by an attorney shall be informed by the attorney that further dissemination of the information, except as provided by this section, is prohibited.

(3) Willful violation of this subdivision by an attorney, persons employed by the attorney, or persons appointed by the court is a misdemeanor.

The translation from legalese is that a person who is a subject, or defendant, in the case, cannot get a copy of the police report unless all the witnesses, or the alleged victim’s name, address, and contact information, is redacted.  The purpose of this law is to prevent retaliation against victims or witnesses, or defendants dissuading witnesses to testify at trial or at a hearing.

What if you are representing yourself?

It is never wise to represent yourself.  In a DUI case, which involves testing science and legal issues, an Orange County DUI Attorney can help you defend your case. But if you do choose to appear as your own attorney, the law accounts for that special situation, as follows:

(b) If the defendant is acting as his or her own attorney, the court shall endeavor to protect the address and telephone number of a victim or witness by providing for contact only through a private investigator licensed by the Department of Consumer Affairs and appointed by the court or by imposing other reasonable restrictions, absent a showing of good cause as determined by the court.

With Orange County DUI cases, where a person is representing themselves in a DUI, the current procedure is to have a public defender redact (blackout or use white out) all witness information, including the police officers, copy the reports, and provide the copied report to the defendant acting as their own attorney.  That is one of the ways how to get the police report in your DUI case.  But there are others.

How to get the police report in your DUI case – directly from the police agency

As you can see from the above, if you try to get a copy of your police report from the police agency, often they will state they cannot release that to you, citing the above laws.  They may say that, as a pending court case, that you need to get any report through your attorney as part of the court case.

However, police records departments are often used to giving out police reports for insurance or investigative purposes, especially in traffic collision cases.  Licensing agencies and background investigation services also commonly order police reports.  However, access to these records varies greatly from one police agency to another and depends mainly on their procedures and policies for records.

As an Orange County DUI Attorney, I have had my clients tell me that they have had success in going directly to the police records department and obtaining their reports there.  Most police agencies charge per page for copying police reports, so there is a charge.

In Orange County, some of the police agencies that have policies releasing police reports are as follows:

Anaheim DUI Police Reports

Obtaining an Anaheim Police report (note the section instructing defendants with a pending crime).

Costa Mesa DUI Police Reports

Obtaining a Costa Mesa Police Report.  Note that the records department for Costa Mesa is open 24 hours a day.  Their phone number for records and report questions is (714) 754-5373.

Fountain Valley DUI Police Reports

Obtaining a Fountain Valley Police Report (note that you will need to fill out a form).

Tustin DUI Police Reports

Obtaining a Tustin Police Report

Los Angeles Police  DUI Police Reports

Obtaining a Los Angeles Police Department (LAPD) Report

Obtaining your police reports and alcohol test results through the DMV Office of Driver Safety

DMV and a DUIWith DUI cases, the same police report is copied and sent two places – to the prosecutor’s office, for the filing of charges, and to the DMV, for use in your DMV hearing. How to get the police report in your DUI case from the DMV?

If you request a DMV hearing within the 10-day time limit to request a hearing, you, or your DUI defense attorney, will be sent by mail a full, unedited copy of the police report to be used in defending and preparing for your DMV hearing. That is sent to you at no charge, and it one way how to get the police report in your DUI case for free.

Obtaining your police reports from an online service

The legal research and online records service, Lexis/Nexis, has partnerships with many police stations to scan and search police reports, which are available directly through the service.  You can request and pay for access and documents here:

Contact Us

Contact us

If you have any questions for an Orange County criminal defense lawyer about your pending DUI case, or about obtaining your police report, don’t delay contacting us.  We can start you on a plan of action today that will help your court date later. Contact us today.


Using an expert witness in a DUI case

Using an expert witness in a DUI case

In the courtroom

An expert witness can be helpful in a DUI case to help provide proof in support of defenses that require particular specialized knowledge. Using an expert witness in a DUI case can be extremely helpful in proving a number of issues, as discussed below.

The primary purpose of any expert, when hired by either side, is to educate – that is to provide evidence in the form of an expert report and/or testimony that educates the DMV hearing officer, or the judge, or even the jury, in a way that presents information that is helpful to a client, towards a certain conclusion.

Some of the information you might want to present in a DUI case could be presented by someone who is not an expert.  The problem with using non-experts is that a DMV hearing officer, or a judge hearing the case, might exclude or strike down layman testimony as lacking proper foundation or requiring an expert witness to give an opinion as to any complex issue that requires an expert. For that reason, courts and other hearings require experts who can provide their qualifications, experience, and opinions.

There are also reasons in a DUI where you will want an expert witness as a strategy in defending a DUI case. Using an expert witness in a DUI case can give particular testimony extra weight, authority, and emphasis.  

Expert witnesses are also subject to cross examination by the other side.

The law on who is an expert witness, and what they can testify to.

California Evidence Code section 720 contains the authority under the law, defining what an expert witness is, and what they can testify to:

   (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

Using a forensic alcohol expert witness in a DUI case at the DMV and in court

Forensic toxicology is the study of the presence of drugs or alcohol and their affects on the human body and human behavior. A forensic toxicologist, therefore, is able to testify about the concentration of alcohol and/or drugs in a person’s body and how impaired that person might be, given such a concentration. Using an expert witness in a DUI case that knows about intoxication and impairment, key issues in any DUI is always helpful.

A toxicology expert may also testify about flaws in breath or blood tests, such as an incorrectly calibrated breathalyzer machine or the use of improper scientific methods during the analysis of a blood sample. The prosecution will usually also provide their own experts, including forensic toxicologists who work in crime labs for the police. Testimony provided by each side’s experts can and often does determine the outcome in a DUI trial, so it is imperative to have qualified experts on your side.

Using an expert witness in a DUI case may be required for certain complex issues. As a science, blood testing and breath testing is the domain of experts who are familiar with the studies and requirements for accuracy.

An expert can be extremely helpful in that the expert can comment on, and possibly criticize, the way in which an alcohol or drug level was determined in a DUI class. They can outline the way why those results might be inaccurate. This can include incorrectly calibrated breathalyzer machines, incorrect use of the machinery, or inexact scientific methods of blood analysis. A common use of an expert witness in a DUI is to fight the retrograde extrapolation typically presented by the prosecution – which is often improperly used to speculate as to how many drinks the defendant or driver consumed, or might be used to estimate what the blood alcohol level was at the time of driving for the defendant.  That evidence is often based upon a number of assumptions, each with a wide range of possibilities, that the expert can easily point out.

Using an expert witness in a DUI case at the DMV, can lead to a showing that the DMV has insufficient evidence, or invalid evidence, as to one of the relevant issues at a DMV hearing — include the major issue of whether the person was above a .08% alcohol level at the time of driving, or whether the person was above a .01% if under the age of 21 or if on DUI probation.  Rising blood alcohol defenses, or errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness.

In court, all elements of a DUI must be proven beyond a reasonable doubt. Showing a judge, jury, or prosecutor an expert witness report detailing facts supporting a rising blood alcohol defense, impairment of drugs (and interactions between drugs, or with alcohol) for DUI Drug (DUID) cases,  or showing any errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness, who can also testify to the state’s standards and the scientific literature and studies that support defenses in the case.

In most cases, our Orange County DUI attorney uses Henry Greenberg, of Forensic Analytical Consultants, here in Orange County, although we have used and consulted with expert witnesses Dewayne Beckner, Daryl Clardy, and Okorie Okorocha, as to forensic alcohol testing, detection, and error issues.

Using police procedures expert witness in a DUI case

Often, police will act in a way that violates their training, or explicit procedures under the law, or the rules from their own department.

The most common one known by almost everyone is the right against self-incrimination – the Miranda rights, read by police before any custodial interrogation.  Any confessions, or admissions, or statements, that were made without these warnings while in custody or detention, can be the subject of a motion to exclude those statements as evidence.

More importantly for a DUI case in court, or at trial, our Orange County DUI Lawyer will obtain the DUI police procedures as to observation and contact with a driver, field sobriety testing, safety of the officer and the testing subject, and the methods of collection of evidence to be used in the case, can be testified to by an expert.

With DMV hearings in a DUI case, one of the issues at the DMV hearing is whether or not the officer followed all the procedures and laws to place someone under a “lawful arrest”.  The issue of whether that occurred or not can be the domain of an expert witness opinion also.

Our DUI attorney Orange County has used expert witness Dewayne Beckner, who used to train police officers in his role as leader of the Los Angeles County Sheriff’s Department alcohol detection unit, for testimony related to violations of police procedures, the law or standard of care violations, and problems with alcohol detection and procedures.

Using a field sobriety test expert witness in a DUI case

A field sobriety test expert can comment on the validity of the administration of the test or tests are given to the accused and point out any mistakes that may have been made by the arresting officer.

With DUI cases, officers are trained in alcohol detection, stopping potential drunk drivers, and conducting field sobriety tests using one standard training course – the NHTSA approved FST student course, using the NHTSA manual.  That manual and course strictly follow the procedures for each field sobriety test, which matches, and are calibrated to, the validation studies that correlated certain behaviors and test performance with being above a .08% or a .10% alcohol level.

As it states in the NHTSA FST manual used to train all officers in the USA, if the tests are not given exactly as trained or instructed, the test results may be invalid.

Although police who are on DUI saturation patrols or make DUI arrests and conduct DUI testing are trained to follow the field sobriety tests, not all police officers do the test perfectly, under all conditions.  That can be used to show a judge, or a jury, that the test should be considered invalid because it was not utilized as it was designed to be given.

Most forensic alcohol experts can also testify as to the field sobriety tests, the standardized FST testing procedures, the history of the FSTs, the validation studies, and how they should be done correctly.

Using an expert witness in a DUI case can also help you prove that the DMV cannot meet their burden of proof. At the DMV, one of the issues that must be proven is whether or not the DMV has proven that the police had sufficient probable cause to conclude that a person was impaired, and to arrest.  That is usually shown through the FSTs, so pointing out via an expert how those tests were done incorrectly can help win the DMV hearing.

An expert witness for these issues can also be another DUI defense lawyer, as another DUI lawyer Orange County that specializes in DUI are certified in field sobriety testing at the student level, and have taken the instructor FST course, and have reviewed hundreds, sometimes thousands, of field sobriety tests.

Using a field sobriety test expert witness in a DUI drugs (DUID) case

Cases involving Driving Under the Influence of Drugs (DUID) usually involve a DRE – a “Drug Recognition Expert”.  This is a police officer that has gone through more extensive training to detect a wide variety of prescription and illegal substances, towards gathering evidence to support a charge of driving under the influence of any controlled substance or illegal substance.

That could be a case for driving under the influence of marijuana, driving under the influence of Ambien or other sleeping medication, driving under the influence of any illegal drug, or driving under the influence of any of a number of prescription drugs.

Using an expert witness in a DUI case involving drugs happens in every DUID case. The prosecution qualifies and uses a DRE police officer as an expert – their training, and experience with cases usually allow the court to recognize them as one.  Countering that with a drug recognition expert of our own, as the defense might help explain the behavior that the DRE uses as evidence of impairment through drugs.  In many cases, there are other explanations of particular behavior.  Sweating, a rapid pulse, or other behavior might be explained, at least in part, by the nervousness from being pulled over by the police.

Like field sobriety test experts, anyone with equivalent training to the police DRE expert in a DUI drugs (DUID) case can counter the evidence at trial, or at the DMV. Certain medical expert witnesses (see below) can also be helpful, or can be used, to testify as to the effects of stimulants, depressants, psychedelics, and the interactions between various types of drugs or medicines, as well as how long the drug might stay in the system, and at what levels a person might be impaired.

Using a mechanical expert witness in a DUI case at trial

In some cases, a mechanical expert might be appropriate.  In civil cases, including product defect cases and personal injury cases, mechanical experts are very common.  Mechanical expert witnesses are used to being hired by lawyers and providing expert testimony at depositions, or at trial.

Driving, especially poor driving behavior that was used by the police to justify a stop for suspicion and investigation of DUI, can sometimes be caused by problems with a vehicle’s brakes, suspension, tires, wheels, or alignment.  That can help with the issue of probable cause in a motion to suppress evidence and dismiss before trial, a not guilty on your DUI at trial, and can help to show that there was not sufficient probable cause to win your DMV hearing.

Using an expert witness in a DUI case can help explain not only probable cause but also breath testing issues.  When it comes to a false positive in a breathalyzer test for DUI cases, being involved in an accident that caused the vehicle’s airbag to deploy can often scatter airbag dust, which, through the Tyndall effect, can mimic alcohol in a breath machine.  That dust contains acetones, which can be on the skin, in the mouth, and inhaled in the lungs, and which show up as a false positive for alcohol in breath tests during a DUI arrest.

The airbag dust acetone dust only exists on certain model cars, however, so a mechanic familiar with vehicles and airbags, or any mechanical expert that can give an opinion on the subject, might be enough to create reasonable doubt at trial or at a motion to dismiss in court.

With the DMV hearing in a DUI case, it may also be used to show that the breath test results are invalid. It is an essential issue and part of the requirement under the DMV burden of proof that the DMV shows that a licensee was above a .08% at the time of driving.  An expert can show that the results measured were not truly alcohol, or that other factors contaminated the test to an extent that the alcohol test is not meaningful or useful in the case.  That can win a DMV hearing.

Using an accident reconstruction expert in a DUI case

An accident reconstruction expert is also a common expert witness for civil and personal injury depositions and trials.  Using an expert witness in a DUI case to describe how an accident occurred in detail can help the defense. This type of expert may be used to generally describe and explain how any accident in question occurred, based upon the evidence from the road, the vehicles, and witnesses. In a DUI with accident case, it can show that the accident was not the fault of the driver, in some cases.

The expert may also be able to estimate the speed of the vehicles at the time of impact, find out when the brakes were applied, deduce how fast each vehicle was going before and after impact, and other relevant details that refute or cast doubt on the claims made by the prosecutor.  If an accident was found to be someone else’s fault, that may help mitigate the damage in a DUI case in court, at trial, or at sentencing.

Using a medical expert witness in a DUI case

Using an expert witness in a DUI case for explaining medical issues, symptoms, and effects can help. The are many issues where a medical expert might be helpful in a DUI case.

In breath testing involved in a DUI case, known medical issues such as the creation of alcohol by the body, gastric bypass surgery, acid reflux disease or GERD, or mouth alcohol from dental work, might be a contaminant that can cause a falsely higher reading for alcohol.  Certain conditions, like diabetes, being on a ketogenic diet, or even having aspirin in your system, can falsely inflate the alcohol reading, above the true reading. The driver’s lung capacity, which might have been reduced from smoking, exposure to pollution, or surgery, can also be relevant to a breath test.

With a DUI blood test, a medical expert can testify as to bacteria in the vial, DUI blood testing issues, and defenses, chain of custody or refrigeration of the blood sample, and the correct way to collect or draw blood.  Using an expert witness in a DUI case can cross over to what can be the domain of other expert witnesses. For example, in a DUI case involving alcohol consumption, a phlebotomist is not supposed to use an alcohol swab on the arm before drawing blood, as that can contaminate the sample and prevent measurement of the true reading from the blood.  That is known by both the forensic alcohol community, and the medical community.

With field sobriety testing, a medical expert can testify as to balance issues caused by knee, back, ear/equilibrium, knee, or ankle problems, can testify as to neurological reasons why nystagmus or other symptoms might be present, and can testify as to lung capacity or physical problems that may be relevant

Using an expert witness in a DUI case for more complex medical issues doesn’t have to be expensive either.  A medical expert witness in a DUI case can be the driver’s treating physician, or any specialist with relevant knowledge, who can testify regarding the particular medical issue involved in the DUI case.

When using an expert witness in a DUI case, can the jury be told that you paid an expert witness to give his or her opinion?

Yes.  Using an expert witness in a DUI case can result in the jury being told that the expert was paid by the defense. Under Evidence Code 722 in California, it states:

722.  (a) The fact of the appointment of an expert witness by the court may be revealed to the trier of fact.

Of course, expert witnesses do not work for free, so it’s natural for a DMV hearing officer, a judge at a hearing, or at trial, or a jury to expect that an expert would be compensated for reviewing evidence and providing testimony as an expert.

Could an expert witness in your case be stopped from testifying?

According to Federal Rule of Evidence Rule 702: Testimony by Experts, under the Daubert standard, any testimony supplied has to be based on sufficient facts or data and must be produced and applied through reliable methods and sound principles by the expert. If it meets that criteria, it will then, as Rule 703 says, be regarded as evidence.

In California courts, Evidence code section 352 allows a judge to weigh how helpful the testimony is, against how prejudicial it might be to a fair trial.  The judge makes the final call as to whether or not the testimony comes in, or whether it’s limited as to what the expert can say.  Using an expert witness in a DUI case usually is allowed, as DUI cases rely on scientific evidence and testing, as well as more complex issues.

Although an expert witness may not be free or compulsory, they can be very useful, and helpful, in court, or at the DMV, and with proper use by the best DUI lawyer,  they can help win DUI cases.

Contact us for questions

Contact us

Contact our firm if you have any questions about the use of expert witnesses in a DUI case.  We have much experience in this area, and are happy to help you win your case in any way that we can.


Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

If you know you’ve had too much to drink, sleeping in your car until you’re sober again is the right thing to do, right?  Believe it or not, you can get a DUI for sleeping “it off” in the car, and you could get a DUI in that situation – if the police find indications that you may have been driving drunk.

According to California law, a driver can be arrested for a DUI if they are found sleeping inside their vehicle while intoxicated. In fact, the legislature in California created a separate law that allows for an arrest for sleeping in a car (even if not running) to be authorized by law.  However, several factors are still considered as to whether an arrest will actually be made.

California Law Regarding Sleeping in Car While Intoxicated

The law – California Vehicle Code VC 40300.5

The California legislature enacted Vehicle Code section 40300.5 which doesn’t require that the officer observe driving.  In other words, the law allows for an arrest even if the violation did not occur in front of the officer.
Vehicle Code section 40300.5 provides that an officer is permitted to make a DUI arrest whenever they have probable cause to believe that the person has been driving while under the influence and the person:
  • may cause injury to himself or herself or damage property unless immediately arrested;
  • may destroy or conceal evidence of the crime unless immediately arrested;
  • was involved in a traffic accident of any type;
  • is in or about a vehicle that is obstructing a roadway; or
  • will not be apprehended unless immediately arrested.

Those exceptions above in California Vehicle Code VC 40300.5, favor law enforcement and make it easier for them to prove the driving issue. Given the statement in California Vehicle Code VC 40300.6 that “liberal interpretation of the no observation of driving rule” shall be part of the code, judges and hearing officers, after enactment of that code section have gone out of their way to not make decisions based on the police not observing driving in a DUI case.

As Orange County DUI Attorney Robert Miller has stated, “California case law previously stated that a driver could only be arrested and charged with a DUI if the car was actually moving. There was no chance of an arrest if someone was sleeping in his/her car while intoxicated and the car was not moving.”

The Jury Instructions – CalCrim 2241

In order to prove a case at trial, the jury has to find driving proven beyond a reasonable doubt.  The instruction used to give the jury the law is given below:

CALCRIM 2241. Driver and Driving Defined (Veh. Code, § 305):
[A driver is a person who drives or is in actual physical control of a vehicle.]
As you can see it still must be proven that the vehicle was moved at some point in the past, even if the officer didn’t see driving.

DUI Caselaw – The Mercer v. DMV Case

Under the California DMV case of Mercer v. Department of Motor Vehicles,(1991) 53 Cal 3rd 753, the court said that you can get a DUI even if the car is not moving:
“We do not hold that observed movement of a vehicle is necessary to support a conviction of drunk driving under 23152.”
The court in Mercer holds that the law required proof of volitional movement of a car before someone can be convicted of a DUI.
However, like elsewhere in law, circumstantial evidence is sufficient to establish this element, and no one has to see driving.

Circumstantial Evidence and a DUI

Circumstantial evidence that may prove you were driving include:

  • An engine or hood that is still warm;
  • Tires that are still warm;
  • A car in any part of the roadway, including slightly over the shoulder line;
  • A vehicle damaged and next to the scene of an accident;
  • Your vehicle’s gear in drive; or 
  • Your keys in the car.

Your failure to explain the absence of any other drivers could also be used against you, or if you deny being the driver or if you fail to give a credible explanation of where the driver is or the driver’s identity.

In one Orange County DUI case we handled to trial, the driver was found in a vehicle asleep and was determined to be intoxicated.  At trial, we showed that his girlfriend had actually left the car to get gas when they had run out, and the jury found our client not guilty of DUI.

As a circumstantial evidence case, everything, from admissions to driving, to observations, (including feeling that the engine was still warm/hot to the touch), is a relevant issue.

Do the police have the right to investigate you if you are sleeping in your car?

Yes.  The law does require that police have to have probable cause to investigate and validly arrest for a DUI.  However, the law allows for police to conduct a “welfare check” to check on the safety of people in a vehicle asleep.  Probable cause to investigate further can be supported by the police if they suspect alcohol, as an individual can be charged with a drunk in public in violation of California Penal Code Section 647(f).
In many cities or counties, there are ordinances against sleeping in a car or at least overnight, which can support the actions of an officer to wake and question you.
There is a “blocking the roadway in any manner” exception in the law under California Vehicle Code VC 40300.6.  Once the police investigate to see if you need help, and smell alcohol, or observe anything that leads to a suspicion of impairment, they have enough probable cause justification to investigate further, and eventually conduct a “search” (the breath or blood test).
Attempted DUI: In California, you can also be arrested, or charged with, attempted DUI for trying to or exhibiting the specific intent to drive even if your car is still parked.
The attempt of any other crime is a separate crime, listed under Penal Code Section 21(a). An attempt is a “specific intent to commit a crime with a direct but ineffectual act towards committing it”.
Although it is theoretically possible to be charged with this, it is so rare and fact-specific as to be almost non-existent.
As Orange County DUI Lawyers, we always look very closely at the probable cause for any DUI stop.

Defenses to a DUI arrest for sleeping in the car

One DUI defense that may work in negotiating the DUI with the prosecutor, or at a  jury trial, is that the driver had a rising blood alcohol level defense – that is that they consumed alcohol before the police showed up and tested the breath or blood, and were not impaired or above a .08% at the actual time of driving.
The prosecution’s expert witness usually will point to the scientific literature that shows that absorption to a peak alcohol level takes place anywhere from 20 minutes to 90 minutes (mainly depending on whether you had food in your stomach), after which you start falling.
It makes it a much stronger case if a witness states that the driver purchased alcohol and that they saw you drink it.  Or if there was an admission that the driver had consumed alcohol after stopping the car, and there were the empty beer cans to prove it around the vehicle.  However, in most cases, the majority of facts are against the driver, even as a circumstantial case.
It’s easy to focus on the alcohol in sleeping in the car cases, but we also have to show that any narcotics or prescription drugs were not consumed while driving, if the case is a Driving Under the Influence of Drugs (DUID) case.
Since the law is written so that it’s illegal to drive with any prohibited substances in a driver’s bloodstream (even if legal), and if found to be driving under the influence of drugs, you are presumed to be driving under the influence (under the same/similar statute as alcohol).
That’s a rebuttable presumption, and as Orange County DUI Defense Attorneys, we can present expert testimony that a driver was not impaired.
For most drivers, that leaves them with two remaining options if they cannot challenge the stop in the first place:
  • Challenging the blood or breath testing; or
  • Impressing upon the DA any mitigation evidence – that is, any special licenses and other accomplishments, character reference letters, rehabilitation, charity work, or school work, and trying to negotiate something lower just based upon that.
With the right jury and expert testimony that is clear, a driver would have a stronger case.  Or with the right jury and the right expert testimony, and the help of an Orange County DUI Lawyer, the jury might end up hung, or could provide you with a not guilty verdict.
Being in a parked vehicle may or may not be grounds for law enforcement to investigate you for DUI or any other alleged offense. As with many stops and detentions by police, it depends on the facts and circumstances of each case.

Can you get a DUI for sleeping in your car if you’re in the back seat, or if your keys are in the trunk or back seat?

Considering all the facts of the case, it’s better to be in the back seat, and it’s better to have the keys somewhere away from you. If you have the engine off, that makes the case more difficult to prove for the officers to prove you were driving at some point.
If you get in the back seat and the police officer can’t find the keys to the car, how do they know that you were driving or someone else wasn’t driving and left it? There are a number of possibilities, as long as you have invoked your right to remain silent and do not confess or admit to anything the police have to prove. It’s best for the keys to be nowhere and for you not to be in the driver’s seat, but even that doesn’t always prevent you from being arrested for DUI.

So can you get a DUI for sleeping in your car?

Yes.  Since California law makes that easier for officers to arrest for, your best move is to take a cab or a ride-sharing service like Uber, or Lyft home if you are too drunk to drive. Or, have a designated, non-drinking driver take you home.

Contact Us if you were arrested for DUI.

Contact Our Firm
Contact us today. If you have been charged with a DUI, contact our Orange County DUI Attorneys for representation. We provide legal advice and representation to people with cases in Orange County who have been charged with DUI. We can help try to get the charge asserted against you reduced or completely dismissed.