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FREQUENTLY ASKED QUESTIONS AND HELPFUL INFORMATION 

SHOULD YOU HIRE A DUI LAWYER?

MISCONCEPTION: I commonly hear people talk about how it makes absolutely no difference whether you hire an attorney when it comes to defending your DUI case.  
This is a fallacy.
REALITY: Self representation is not a good idea for several reasons.  You don’t know all the ins and outs of the law, and yes, DUI cases are defensable.  The District Attorney knows you are not a lawyer, despite all the internet searches you have done and all the reading you have done, and will take advantage of you.  You don’t have a track record with the courts nor with prosecution, and again, they will take advantage of you.  Most importantly, a good lawyer knows how to defend and win a case, but you don’t.  

SHOULD YOU HIRE AN ATTORNEY OR GO WITH THE PUBLIC DEFENDER? 

MISCONCEPTION: All lawyers are the same.  At least a public defender is free.  This is a fallacy.
REALITY: I often say, “Don’t you wish you could interview doctors for free before you decide who to go to as your physician or specialist?”  Well, that’s the difference between hiring a public defender and hiring your own lawyer.  You should look for lawyers who will give you a free initial consultation so you can meet with them and get a feel for who they are and how they work.  And once you’ve talked to a few and met with them, you can choose who you feel will be able to do the best job for you.  When you go with the public defender, it is a draw of the luck.  You might get a great public defender or one that is just not responsive, knowledgeable or as aggressive as this job often requires.  

SHOULD I HIRE AN ATTORNEY TO TRY AND GET MY DRIVER'S LICENSE BACK?

MISCONCEPTION: there is nothing you can do with the DMV, you will lose your license anyway. This is a fallacy.
REALITY: There are very strict rules and guidelines when it comes to the DMV and only an attorney who has dealt with them repetitively over the years knows how it works.  At a minimum, a good defense attorney will be able to minimize the amount of time your license will be suspended and will work to get you a restricted license.  Once again, DMV hearings can be won if the right legal work is done.  
(Note: if you go with the Public Defender’s office, you don’t get the benefit of having the public defender present in dealing with the DMV. You are on your own. It’s you versus an administrative agency that has the authority to suspend or revoke your driver’s license under certain circumstances.)

WHY SHOULD I HIRE AN ATTORNEY?

Most importantly, by hiring an experienced DUI lawyer you will relieve some of your stress knowing that the attorney is going to take the time to talk to you, to update you on the progress of the case, to spot and exploit all defense issues in your case, and that your lawyer will be instrumental in helping you keep your driving privileges.  Also, your lawyer will make all court appearances on misdemeanor DUI’s for you so you don’t have to take time off work and further jeopardize your work and family life.


WHAT DO I DO IF POLICE PULL ME OVER AND I’VE HAD A FEW DRINKS?
Do nothing.  Say nothing. Volunteer nothing.

BUT I DON’T WANT TO SEEM UNCOOPERATIVE
The law protects you in more ways than most think.  You, as a driver, are not required to provide the police with any evidence to support them arresting you and subsequently filing charges again you.  The only thing the law requires you to do as a driver, if suspected of drunk driving, is to submit to a chemical test, which means blood or breath at the station. Everything else, such as answering their questions, performing field sobriety tests, or blowing into the Preliminary Alcohol Screening test (PAS test), is voluntary!  



WHAT IF I REFUSE TO ANSWER THEIR QUESTIONS, WILL THEY ARREST ME?

You can and should refuse to answer their questions, however, offer to have your blood drawn or ask for a breath test at the police station.  If you refuse to answer their questions and refuse to take their field sobriety tests, police can still require you to come to the station and take the requisite test. That’s what you want.  But remember to always be polite when dealing with the police.
You are absolutely within your rights to politely refuse to take the Field Sobriety Tests in their entirety.

POLICE STILL NEED TO SHOW PROBABLE CAUSE TO STOP YOU.

Just because you have been drinking and police pull you over does not automatically mean you are doomed.  If police do not have articulable facts to support the reason for their stop, your attorney now has the possibility of getting your case dismissed. This is commonly known as a suppression motion.  Only an attorney who is up on the current nuances of the law will be able to properly determine if there is an appropriate motion to run.  



IS DUI A SERIOUS OFFENSE?

The short answer is “yes” even if you have never suffered a prior DUI conviction.  DUI’s are very costly because there are programs that you must attend, fees and fines that must be paid to the courts and the DMV if you plan on ever driving again.  
A California DUI case may be charged as a misdemeanor or as a felony. It may be charged as a felony where someone is injured (usually when an accident is involved), or where the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a "wet reckless"). These convictions must have happened within ten years of the new charge to count against the accused as a prior conviction. 

It is important to point out that the law governing DUI arrests is different for those under 21 years of age (Please See section on DUI under 21).

WHY HIRE APKARIAN & ZALEWSKI, APC FOR YOUR DUI CASE?

    •    Because we have been doing this for a long time (almost 30 years)
    •    Because we have an excellent reputation for being competent and fighters for our clients                 and we will uphold that reputation.
    •    Because DUI’s can be life changing incidents in our clients’ lives and we understand how it               can impact you and your family both emotionally and financially.
    •    Because we will be honest and forthcoming with our clients while keeping them abreast of all           developments.
    •    Because we care about the work we do and we take pride in it.
    •    Because we will treat our clients with the utmost respect and full confidentiality.
    •    Because we treat our clients individually and no two cases are alike.

These tests are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the Field Sobriety Tests, is the one who is determining whether you pass or fail each test.  Furthermore police officers are agenda oriented.  The more arrests and resulting convictions they make the better their work records are. Because of this they are actually looking for you to fail. The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol in their system "fail" these tests

Field Sobriety Tests may include:

Nystagmus test - When a person is impaired by alcohol, the nerves in the eyes are stimulated and do not behave as normal. While the slower responses means that a person has difficulty following an object with the eyes, and a severely intoxicated person may have to actually move the entire head to attempt to track an object with the eyes, nystagmus is exaggerated. The eyes will twitch or jerk at less than the 45-degree-angle response in a sober person.  Important to note that nystagmus is a naturally occurring phenomenon of the eyes; drugs and/or alcohol only increase or exaggerate the twitching or jerking of the eyes.

Walk and Turn Test- This test consists of asking the driver to walk heel-to-toe along a line for nine steps, turn at the end and return is a simple test that anyone should be able to perform without difficulty, in theory.  The test does not account for performance in high heals, or windy road conditions or gravel roads. 

Standing on One Leg Test -This test also has a 65 percent reliability that a driver is impaired (BAC of .10 or higher) if s/he cannot perform this action. Combined with the walk-and-turn test, reliability is about 80 percent.  However, it is important to note that even these test results combined leave a 20% margin of error.  With a good attorney and the proper experts this margin of error can be exploited. Remember again there can be additional errors of these tests are not administered properly. In this test, driver is asked to stand with one foot raised about six inches. While doing so, s/he must count aloud (one thousand one, one thousand two, etc.) until asked to stop (about 30 seconds)

Finger to Nose Test-This test requires the driver to close his or her eyes and bring the finger around to touch the nose. In certain cases while you are performing the test the officer may try to distract you, thereby altering your ability to successfully complete the test.  These tactics are non uncommon and well known by a seasoned DUI Defense lawyer. 

Alphabet Test - reciting the alphabet, or a portion of it.

Rhomberg stationary balance test-This requires the driver to stand, feet together, and lean the head back to look up at the sky while holding their arms out to the side. The officer is simply looking for a loss of balance. Again this doesn’t take into account any other physical impairments, the road surface itself or many other eternal factors that have nothing to do with alcohol consumption. 

Hand Pat Test- The Hand Pat FST requires a subject to place one hand extended, palm up, out in front of him/her. The other hand is placed on top of the first, with the palm facing down. The top hand then begins to pat the bottom hand. The top hand rotates 180 degrees alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The DUI suspect counts out loud, "ONE, TWO, ONE, TWO, ONE, TWO, etc." in relation with each pat. The police officer is testing for the ability to follow instructions as well as coordination in performing the task.

Preliminary Alcohol Screening Test (PAS) - The preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant measure of your blood alcohol concentration.  The validity of the test can be argued based on whether the test was properly administered and whether or not the machine was properly calibrated or tested for accuracy prior to testing. 

WHAT CAN A LAWYER DO WITH THESE FIELD SOBRIETY TESTS?
Lawyering is not just about knowing the law, but knowing how to affectively cross examine a police officer and show the flaws in each of these tests and exploit these errors.



CAN YOU BEAT A CHEMICAL TEST IN COURT?

Like all things, everything can be beat in a court of law as long as you have a lawyer who understands Tital 17 of the California Code of Regulations, which sets out the requirements for proper chemical testing in California. When these standards are violated or ignored, the result of the test is unreliable, and therefore should not be used for a DUI conviction or a D.M.V. license suspension.
Remember these tests have limitations, and are prone to human error. Many cases that seem insurmountable can be defended based on problems with the chemical test

DO NOT REFUSE TO TAKE A CHEMICAL TEST

When you are arrested for suspected DUI, do not refuse to take a chemical test at the police stations because this refusal can be used as evidence that you knew you were under the influence, and it is known as “consciousness of guilt." This may lead to increased penalties in the criminal court case. The D.M.V. will also use this refusal to lengthen the period of time that they suspend or revoke your driver's license.