QUESTIONS & ANSWERS (please select a category)

Office Info

Where is Rief Legal located?


I have two Bay Area locations and go to both each week. One office is in Redwood City (620 Jefferson Avenue, Suite I), San Mateo County, which is a couple blocks from the Hall of Justice Courthouse in downtown. My East Bay Office is located in Moraga, which serves as a midway point for Alameda and Contra Costa County clients. The address is 1100 Moraga Way, Suite 208. For maps, go to: www.rieflegal.com/office-locations




Will I work directly with Ari Rief?


Yes, if you hire my law office, you will work directly with me, Ari Rief. I prepare your case and attend court. I will directly take your phone calls and answer your questions. I may, on occasion, due to court scheduling conflicts have an associate handle non-substantive matters in court (such as to schedule a court date to a date I am available). But as a general matter, hiring Rief Legal means you're hiring me to handle your case.




Does Rief Legal accept cases in other parts of California besides the Bay Area?


No, when it comes to criminal and DUI defense, I only accept local Bay Area cases. However, if you have a case in another part of the state, I could try to connect you with another criminal defense lawyer.




Are payment plans offered? How do they work?


Yes. Depending on your case and quoted fee, an in-house payment plan typically will be split into three equal payments. For instance, if the case fee is quoted at $3,000, there would be a monthly payment of $1,000. This is just an example to give you an idea of how it works. Rief Legal also offers legal financing options with other lenders. For an instant quote and further explanation, please visit: www.rieflegal.com/financing.




How much does Rief Legal charge for representation?


Case quotes require a consultation. The following is NOT a guarantee of what your quoted fee will be. But to give you some idea of what to generally expect, misdemeanor cases (including DUIs) typically range from $2,900 to $3,900. Complicating factors could result in higher fees. For standard felony cases, fees generally range from $6,900 to $8,900, and that includes representation at a preliminary hearing. In either misdemeanors or felonies, if your case went to a jury trial, there is a fee -- generally $750 per day of trial. Please note that most cases do not require going to trial. Also, in some cases, it may be worth hiring an expert witness or other specialized service. These costs do not apply in the majority of cases.




Can I videochat instead of coming into the office?


Absolutely. There's no need to go through the hassle of traveling to my office to meet in person. You certainly can visit my office if that's your preference, but I routinely provide video consultations for clients on Zoom or other video platforms, depending on one's preference. I offered that service before COVID-19, too. Also, my contracts are all electronic, so nothing needs to be signed in person. Everything can be done on your device.









Health & Safety Code

HS 11350 - Possession of Controlled Substance - QUESTIONS


HEALTH & SAFETY CODE § 11350. POSSESSION OF A CONTROLLED SUBSTANCE QUESTION: How much jail is possible? This is a misdemeanor. You technically face up to 364 days but no judge will give you anywhere close to that. QUESTION: Can I get diversion? Yes, very possibly. This offense falls under the list of acceptable offenses for drug diversion within Penal Code section 1000. Assuming you qualify, your criminal prosecution could be diverted while you complete drug education classes. QUESTION: If I fight the case, what does the prosecution have to prove? To prove you guilty of this crime, the prosecution must prove each of the following elements beyond a reasonable doubt: 1. You unlawfully possessed a controlled substance; 2. You knew of its presence; 3. You knew of the substance’s nature or character as a controlled substance; 4. The drug was actually a controlled substance or an analog of a controlled substance; AND 5. The controlled substance was in a usable amount. QUESTION: What’s a “usable” amount? A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris shouldn’t count. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user. QUESTION: Does it matter if you don’t know which specific controlled substance you have? No. The prosecution doesn’t have to prove you knew which specific controlled substance you possessed. QUESTION: What if I was in a group and it’s unclear who possessed the controlled substances? Two or more people may possess something at the same time. So the defense that the drugs were your friend’s, not yours, will not necessarily work. However, if the circumstances support your argument that the drugs really weren’t yours, then by all means fight your case. Just because you were within the vicinity of drugs doesn’t mean it’s easy to prove they belonged to you. This issue often arises from vehicle stops where drugs are found in the car. QUESTION: What if the drugs weren’t actually on me? A person does not have to actually hold or touch something to possess it. The question is whether you had control over it or the right to control it, either personally or through another person. So if police searched your bag in the car, and it’s clear the bag belonged to you, then it’s not a defense to say the drugs weren’t actually found on your person. QUESTION: What if I have a valid prescription? Definitely fight your case. As a matter of law, you are not guilty if you had a valid, written prescription for the substance in question. The key word here is valid meaning a legitimate doctor licensed to practice in California prescribed you the medication. A more subtle issue is if the prescription is old. But, in my opinion, good luck to any DA who tries to convince 12 jurors to unanimously convict someone for simply possessing old prescription meds. Probably at least half the jurors themselves have old medication in their medicine cabinets at home. If you raise the defense that you had a valid prescription, the DA has the burden of proving beyond a reasonable doubt that the prescription was invalid.





Recent Results

9-21-21 - REDUCED - DUI with Prior Offense Reduced to a "Wet Reckless"


Client was charged with a second DUI offense within 10 years. By law, if convicted of a DUI with a prior offense, a judge at a minimum must sentence you to at least 10 days jail, about 2K in fines, and 18 months of DUI school, to name a few of the probationary conditions. Here, realistically, the client faced somewhere between 30-60 days of jail. However, in negotiations, the prosecution agreed to dismiss the DUI charge in exchange for client pleading No Contest to a "wet reckless" driving offense. WIth the dismissal of the DUI charge, that meant the minimum punishment required for having a prior offense no longer applied. In the end, the client only faced 1 year court probation (unsupervised) instead of 3 years, received no jail, a simple 12-hour DUI class, and 3 days of community work program to reduce the fine to less than $250.




10-15-21 - DISMISSED - Diversion Violation Withdrawn. Client gets another shot.


Client was on a pre-plea diversion for a drug paraphernalia offense (Health and Safety Code section 11364). What that means is that the client's case was suspended pre-trial, also referred to as being placed on deferred entry of judgment in accordance with AB 208 -- a relatively new law in California (started in 2018). In short, during this "diversion" period, the client was required to complete drug education classes; if so, the case would be dismissed. The issue here is that the client did not comply with any of the terms and conditions of the diversion and, accordingly, faced a violation. Ordinarily that means you've forfeited your chance at diversion. The case is essentially re-opened and now you have to deal with it. Here, however, the judge agreed to give client another opportunity at diversion. So, now, the client gets another opportunity to get the case fully dismissed without record of a conviction.




10-14-21 - DISMISSED - Hit-and-Run, VC 20002(a), and Driving Without License Case, VC 12500


Client crashed into public property and drove off only to have car stall out shortly down the road. An investigation led to hit-and-run charge -- a violation of Vehicle Code section 20002(a) -- as well as a driving without a license charge (Veh. Code section 12500(a)). In negotiations, the prosecution agreed to dismiss the hit-and-run charge. The circumstances were such that the client's intentions in driving off were not entirely clear. With regard to not having a license, the prosecution reduced the misdemeanor charge to a basic infraction (basically, a speeding ticket). Client simply faced a small fine of a few hundred bucks. That's it.




10-15-21 - DIVERSION in 3 Drug Cases


Client faced three separate cases for drug possession. Two of the cases were violations of Health & Safety Code section 11377(a) for possession of a controlled substance (methamphetamine). The third case was a violation of HS 11350(a), possession of a controlled substance (cocaine). A complicating factor was immigration. Drug charges do not help one's efforts to become a citizen. Thankfully, the cases were all resolved for pre-plea diversion per Penal Code section 1000. What that means is that the criminal proceedings are suspended and, in the interim, the client will be required to complete drug education classes. If successful, and no violations occur, then the client's three cases will all be dismissed. Client was not required to enter a guilty plea or anything, so this should help to keep Client's record clean for immigration purposes.




10-15-21 - Client with .35% DUI and record of old prior DUIs sentenced to only 4 days community work program


Client had gone to prison for a felony DUI many years ago. And despite that, the client picked up two more DUIs after prison. Luckily for this client, the old DUIs fell outside the 10-year window that prosecutors and judges look at when assessing mandatory minimum punishments for DUIs. Here, Client got another DUI. And it wasn't good. The blood alcohol was .35% (that's more than 4 times the legal limit!). But, Client took good steps like immediately getting into an outpatient alcohol treatment program. In the end, the case resolved through negotiation. Client's jail time will simply be 4 days of work program (instead of behind bars).




SEE MORE RESULTS - PICK A CATEGORY OF CASE


Please click on one of the following categories to see recent case results related to that type of case. DUI Cases Other Vehicle Code Cases (Not DUI) Assault or Battery-Related (Including Domestic Violence) Cases Drug Cases Property or Theft-Related Cases Probation Violation Cases Serious Felony Cases Weapons Cases Miscellaneous Cases




11-12-21 - DISMISSED - DUI Drugs


Client was charged with violating Vehicle Code section 23152(a), driving under the influence of drugs for a prescription medication he validly takes. A private citizen called 911 when observing him, supposedly, swerving on the road. CHP responded and pulled client over, who performed poorly on field sobriety tests. Client was arrested and submitted to a blood test which indicated he was on psychiatric medication -- something which could cause potential drowsiness. However, the levels in client's blood were not an alarming level. Ultimately, we pushed the case to trial to let a jury decide. Our expert witness -- a medical doctor -- provided opinion to the prosecution before trial in support of the reasonableness of Rx levels in Client's blood, among other opinions to help explain reasonable alternative explanations to why Client performed poorly on the field sobriety tests. Ultimately, the prosecution determined from our pretrial negotiations that reasonable doubt existed. Accordingly the DA's Office dismissed the case the day of trial.





DUI Info

What are my rights during a DUI traffic stop investigation?


During a DUI investigation, it's important to understand that an officer’s main objective is to collect evidence that shows you were driving under the influence. When speaking to you, make no mistake about it: the questions are specifically designed to incriminate you. Some questions will be obvious (e.g., “Did you have anything to drink tonight?” or “When was your last drink?”). But others will be more subtle (e.g., “Where you driving from?”, “When do you last eat?”, or “Do you have any injuries or take any medication?”). Everything you say is fair game later on at a trial; however, everything you DON’T say is equally fair game. Although you can remain silent during questioning, 12 jurors may interpret your silence as a sign of guilt. Some jurors may feel a simple admission to drinking is less damaging than silence. Remember, it’s not illegal to drink alcohol and drive; it’s only illegal if you were actually under the influence of alcohol (or drugs) while driving. You have a right to refuse to participate in any of the standard field sobriety tests (FSTs). The most common FSTs are the following: The Horizontal Gaze Nystagmus (HGN) Test - The officer will ask you to track an object (e.g., a finger or pen) to the peripherals of your vision. If you have alcohol in your system, your pupil, in general, will jerk or bounce at the maximum deviations (like a marble rolling on a unsmooth surface). The Rhomberg (Balance) Test - The officer will ask you to tilt your head back, close your eyes, silently count 30 seconds in your head, and then open your eyes and indicate when you've counted 30 seconds. The One Leg Stand test - The officer asks you to stand on one leg, keep your hands to your side, balance your lifted leg 6 inches above the ground, and count outloud (e.g., 1001, 1002, 1003, etc.) The Walk-and-Turn Test - The officer asks you to take nine steps in a straight line heel-to-toe, then turn around and take nine steps back to the starting point. (MOST IMPORTANT) The Preliminary Alcohol Screening ("PAS") Test - This is the breathalyzer test where they collect two breath samples of you in the field. This test is generally their last FST before arresting you. If you're anywhere near .08%, they're going to arrest you. ​​ The PAS test, which is the breathalyzer test on scene BEFORE you're arrested, is the most important FST for the officers in their investigation. Again, you are NOT required by law to submit to the PAS test, so it's typically wise to refuse to submit to the PAS. You do NOT have a legal right, however, to refuse the breath or blood test AFTER you're arrested. In other words, there are two tests—one before you’re arrested and one after. As a condition of having a driving license, every Californian is required to submit to a breath or blood test after being arrested for DUI. If you refuse the second (post-arrest) test, you face further consequences plus officers can force a blood draw, but only if they get a signed search warrant from a judge. Jurors that hear you refused to participate in the tests may interpret your refusal to participate as guilty behavior. But, that's generally a smaller hurdle to overcome at trial than the incriminating evidence gathered if you do participate. Ideally, it's best to strike a balance where your refusal to cooperate is somewhat excusable (for example, participating in some, but not all tests). Remember that whether or not you participate in the tests, the officer will undoubtedly still note that you smelled of alcohol, had red and watery eyes, exhibited slurred speech, and walked with an unsteady gait. That is, regardless of your level of participation, law enforcement will still build the case that you were under the influence based on their observations on scene. And, understandably, they're not going to take chances with safety by letting you drive off if they suspect you're under the influence. Understand that if you refuse to participate, you will be arrested. Participating in the tests, particularly, the PAS test, is a gamble. If you really only had one small drink and you're positive that your blood alcohol is well below .08%, then submitting to a PAS and showing the officer your low blood alcohol level could mean you're sleeping in your bedroom rather than jail or a drunk tank that evening. But, I wouldn't advise that route unless you were absolutely certain that you consumed only a minimal amount of alcohol.




What are field sobriety tests? What if I did well on them?


When it comes to field sobriety tests (FSTs), there are several. Law enforcement will first check your eyes and then make you: - balance on one leg and count out loud; - walk a straight line heel-to-toe for nine steps and then turn and walk back; - look up and estimate 30 seconds in your head; - place your finger to your nose; - count fingers on your hand; AND - ask you to submit to a Preliminary Alcohol Screening (“PAS”) device. There are other tests as well (such as saying the alphabet), but the ones above are the most common. All of these tests are designed for the officer to form probable cause that you were under the influence while driving. This is the standard they need to legally arrest you. Here are three important points about FSTs to keep in mind: First, understand that these tests may seem easy, but they are not—often times even for sober people. On that note, it is common for people to think they did pretty well on the tests. The strong odds are that you did not do nearly as well as you think. Pretty much everyone in these police reports fail most of the tests. Even if, for example, you counted 30 seconds in your head exactly correct, the officer will undoubtedly mention that you exhibited eyelid tremors, that your body swayed, and other observations that essentially conclude you failed the test anyway. Second, these tests are voluntary, but law enforcement will do no favors in explaining that to you. You can choose to perform all, some, or none of the tests. An officer cannot force you to do them. This includes the PAS test—the preliminary breath test administered before you are arrested. The PAS test is typically their last test to ultimately justify placing you under arrest. Officers are required to explain how this test is voluntary, which they sometimes fail to do. Even when officers explain it, most folks don’t understand or they’re too nervous to say no to the test. Importantly, if you do choose to refuse any or all of the tests, explain your position respectfully to the officer. Do not be argumentative, combative, or play games with the officer. This could get you arrested for violating Penal Code section 148 (Resisting Arrest or Causing Undue Delay to a Criminal Investigation). This charge can have worse consequences than a DUI. Third and finally, even if you refuse all tests, there is likely still probable cause to arrest you. Remember the officer has OTHER evidence—he or she has potentially observed you: - drive poorly; - fumble while handing over your license and registration; - have red and watery eyes; - stagger while standing; - smell of alcohol; or - anything else that indicates you were drinking. In sum, refusing to do any tests or answer any questions will not prevent you from being arrested. Law enforcement is not going to take any chances with public safety at risk. In other words, they're going to err on the side of caution and arrest you in most cases unless it's very clear you are well under .08%.




What's the difference between the preliminary breath test and the official post-arrest "chemical test"? What if I refuse to give a sample?


Generally, in DUI cases, the most significant piece of evidence is the breath or blood sample. That’s because, when determining guilt, nothing is more persuasive than blood alcohol content ("BAC"). After you are arrested, by law, you are required to submit to a "chemical test," which is your choice between breath or blood test. This is different than the preliminary alcohol screening ("PAS") device breath test, which is administered as a field sobriety test before you are arrested. The pre-arrest PAS test is considered voluntary, meaning you can refuse it legally. By contrast, you cannot legally refuse the post-arrest chemical test. That's because driving is considered a privilege, not a right. In California, your driving privilege is conditioned upon you consenting to provide a breath or blood sample if ever arrested for DUI. The courts call this “implied” or “advance” consent. What happens if you refuse the chemical test post-arrest? If you refuse to provide a breath or blood sample, law enforcement generally cannot force a needle in you on the spot. Historically, forced blood draws were permitted. But, in 2013, the United States Supreme Court in Missouri v. McNeely changed the law. Now, if you refuse to take a test, officers must get a search warrant to force a blood draw. If not, they violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. As a practical matter, getting a judge to sign a warrant on short notice, and most often late at night, may at times present a challenge for law enforcement -- or at least it used to. For the first few years following McNeely, agencies scrambled to get a system in place to address late night warrants. However, by now, most agencies have taken proper steps to address that challenge. The worst case scenario is you refuse the test, but then officers get a warrant and obtain the blood so they get the evidence anyway. Now you face the automatic suspension with the DMV plus you face worse consequences in the corresponding criminal case. It also makes it easier for the prosecution to argue that your unwillingness to provide a breath or blood sample was because you knew you were guilty of driving under the influence. Even if you got lucky that a judge wasn't available to sign a warrant, refusing to provide a breath or blood sample is certainly not without consequence. As mentioned, the DMV will automatically suspend your license for at least one year with no recourse to apply for a restricted license to allow you to drive to work. If you’ve refused the test in the past, then your suspension will be at least two years. Additionally, if prosecuted for DUI, the prosecutor will likely charge an “enhancement” allegation for your refusal, which generally will increase your punishment if convicted. But even with these added consequences, there are folks who’d still refuse to submit to a test. They would rather face these other consequences than allow their BAC to be known.




Which test is better to submit to -- the breath or blood test?


When arrested, most people end up submitting to a breath or blood test. The question often asked is which test provides you the best chance to prevail in your DUI case. The answer depends on the circumstances of your case. Are you 250 lbs or 100 lbs? Did you drink 15 minutes before getting on the road or has it been five hours since your last drink? Did you smoke marijuana, ingest prescription meds, or take any other narcotics? Do you want the ability to retest the sample later on? These are the kinds of factors that weigh into which test is more strategic to take. The bottom line from a defense perspective is there are potential advantages to either test. As an introduction, I’ll discuss some bigger picture factors and considerations. First, with breath tests, there’s generally more susceptibility to inaccurate readings. Blood tests are more accurate are thus typically harder to attack later at trial. The agencies administering the breath devices must comply with strict regulations requiring routine maintenance, calibration and accuracy checks. These accuracy checks must be all be written down in logs that you will have access to. Any competent defense attorney can spot potential errors in the device, which could help out your case. Also, there are many rules that must be followed with regard to the manner in which these devices are administered. For example, the officer must wait 15 minutes before you submit to the test. The more rules for law enforcement to follow, the more opportunities there are for officers to make a mistake, which is good for your potential defense. Second, the timing of the tests can have a significant effect on your blood alcohol level. That’s because alcohol takes time to absorb into your bloodstream as well as leave your bloodstream. Roughly speaking, your blood alcohol will rise over the course of the hour you had a drink and then drop off the following hour. The exact rates depend on your weight and sex. Most of the alcohol from a drink is absorbed within 15-20 minutes; the rest of the hour, it’s still slightly rising. But after approximately an hour, the alcohol will start to drop off. Of course, the more drinks you had, the longer it will take for alcohol to leave your bloodstream. As an example, for most people, a single drink (e.g., a small shot, a can of beer, a glass of wine, etc.) will translate roughly into .02% blood alcohol, but lighter skinnier folks, that amount is higher. Many people mistake a pint of beer (which is 16 oz. and probably the most common serving size at bars and restaurants) as equaling one drink when in reality it’s 1.3 drinks. In other words, two back-to-back pints of beer is closer to three drinks than two. Within an hour of consuming those pints, most men, again depending on their weight, are either above or getting close to the legal limit of .08% blood alcohol at the end of the hour they consumed the pints. Thus, they’ll have to wait at least an hour for the alcohol to start tapering off, which generally occurs at a rate of .018% per hour. The main point about timing in helping you choose between a breath test or blood test is determining, during your DUI arrest, whether the alcohol in you is still absorbing (thus increasing) or whether you’re fully absorbed (thus the alcohol is tapering off). With that in mind, understand that if you choose a blood test, it will generally take the officers at least an hour to get the phlebotomist (the blood technician or nurse) to a specific location to draw blood. This is a general observation, not a rule. Blood draws must occur under sterile conditions. That is, the officer isn’t going to bust out a needle right there in the street after arresting you. These things take time. By contrast, the breath test is typically more immediate—it can be administered on the road after placing you under arrest. However, most agencies will conduct the official breath test at the booking station. Even if an officer takes you back to the station to perform the test, it is still often a faster process than the blood test. So...if you suspect you’re still absorbing because you drank very shortly before driving, then the FASTER you take a test, the LOWER the blood alcohol content will likely show. Thus, choosing a breath test in that scenario would generally be your best bet. On the other hand, if you stopped drinking a few hours before driving, that means you’re probably fully absorbed and the alcohol is in the downward process. Therefore, the LONGER you wait to take the test, the LOWER your blood alcohol will most likely be, in which case a blood test may make more sense. Remember, however, that there’s no guarantee that a blood test will take longer. But, generally, they’re slower. Finally, there are other considerations that may be important to you. For example, with a breath test, unlike blood, there’s no sample that can later be retested. Another example is if you were a drunk and high, a breath test won’t detect anything other than alcohol. A blood sample, however, can be tested for almost any kind of drug. And, lastly, of course a breath test doesn’t involve being injected with a needle, which isn’t easy for many folks. BLOOD ALCOHOL SCIENCE There are many decades’ worth of complex scientific studies and data addressing the accuracy and reliability of blood alcohol reading instruments and correlation studies involving FSTs. A skilled defense attorney will be able to reference certain studies that call into question the accuracy and reliability of these tests, and thus effectively cross-examine the DA’s toxicology expert.




Why do I face 2 criminal charges for 1 DUI case?


Unless you injured or killed someone, California DUIs are charged under Vehicle Code section 23152. Specific kinds of DUIs are tailored under this section depending on which substance you allegedly were under the influence of at the time of driving. For example, subdivision (e) prohibits driving while under the influence of drugs and subdivision (f) prohibits driving under the combined influence of alcohol and drugs. The vast majority of DUI cases in court, however, involve only alcohol. The prosecuting District Attorney's Office will generally file two criminal charges against you: in Count 1, a violation of section 23152(a), driving under the influence of alcohol; and in Count 2, a violation of section 23152(b), driving with a blood alcohol content (BAC) of 0.08% or more. Why does the DA do this? You show up to court and discover you're facing TWO misdemeanor charges for only one alleged drunk driving incident. What's up with that? Is that even legal? Yes. Why is the DA doing it? To be blunt, the reason the DA charges both crimes is to increase their chances of winning in court. Both charges relate to the same act but are alternative theories to convicting you of a DUI. First, imagine a 250 pound guy who can drink a ton of booze without it seemingly affecting him. Let's say he got pulled over after 5 beers and his blood alcohol content ("BAC") was .09%, which is only .01% above the legal limit of .08%. What if he felt perfectly fine to drive and ended up performing really well on the field sobriety tests? The DA would then likely struggle to prove him guilty of Count 1— that he was under the influence of alcohol. However, because his BAC measured .09%, the DA will nevertheless be able to prove him guilty of Count 2, which simply requires proof he drove with a BAC of .08% or higher. That's because decades of scientific research indicate that anyone, regardless of weight, is too impaired to safely drive when their BAC is .08% or more. So if the DA can prove your BAC was .08% or more at the time you were driving, it's considered a crime. It won't matter if you appeared sober enough to drive. In other words, being able to handle booze well is not a valid legal defense. Now imagine a 130 pound guy who's a "lightweight" when it comes to drinking. After just one stiff drink, he feels the effects of alcohol and shouldn't be driving. Say he got pulled over and his BAC was only .05% (well below the legal limit) but he performed terribly on the field sobriety tests and showed clear signs that he shouldn't be driving. Here, the DA wouldn't be able to prove that him guilty of Count 2 (having a BAC of .08% or more), but may still be able to prove Count 1 that he was, simply, under the influence of alcohol. In sum, prosecutors file both charges to cover both scenarios and increase the odds of proving their case in court if it proceeds to trial. That gives them added leverage in pretrial negotiations. The takeaway to remember here is that even if you're certain that you're below a .08%, that doesn't mean you're safe from getting a DUI. And even if you can handle your booze like a champ, it won't do you any good if your blood alcohol results are above .08%. The bottom line: if you still feel a little buzz, before you hop behind the wheel, I advise you instead to spring for an Uber. Otherwise, you may have to call my law office to defend you. The one bit of good news is that even if you are convicted of both charges is that the won't face double the punishment. Legally, you cannot be punished for two offenses that stem from the same conduct.




What kind of jail time or other penalties am I facing?


Whether you plead guilty (or “No Contest”) or get convicted at trial in criminal court, DUI penalties are significant. First and foremost, you’ll face criminal consequences—e.g., the judge will sentence you to jail time, fines, DUI classes, etc. Second, and often equally devastating (if not more so), the DMV can administratively revoke your license for extended periods of time. This can greatly affect your ability to live and work. Third, your insurance rates can skyrocket, which is an often overlooked consequence of a DUI conviction. Fourth, you will have a criminal record, no matter how you slice it. This can certainly affect your current employment (depending on your profession) and opportunities in the future. The degree of punishment in your criminal case depends on a number of factors. The significant factor is whether this DUI was a first-time offense or you have prior DUIs within the last ten years. Additionally, the court will look at whether: - the level of your blood alcohol content was very high (Were you twice the legal limit or worse?); - you were involved in an accident and whether anyone was injured; - you were speeding; - you had a passenger in the vehicle 14-years-old or younger; - you refused to submit to a breath or blood test after you were arrested; - you committed other offenses in addition to DUI, such as driving with a suspended license or driving with no insurance, driving with an open can of beer or marijuana in the car, etc.; or - whether you were on probation for a prior offense. ​​ Below is a general summary of the basic consequences you’ll face when convicted of DUI in the criminal courts. Every case is unique. Further, this generic summary includes neither added punishment for any factors listed above nor separate consequences imposed by DMV regarding your license. Please note that some counties have harsher punishments than others. The specifics of what you’ll actually face in terms of jail time and fines differs county-by-county. However, overall, the minimum punishments are relatively similar throughout California. In general, in criminal court, if you plead guilty (or no contest), or you’re convicted after a jury trial, you will be sentenced in the range of what’s listed below. The times in jail listed can be served on a Sheriff’s Work Program (e.g., picking up trash on the road instead of actual jail time). Also, if you’ve already been booked and spent any time in custody, you’ll get credit for that time. FIRST OFFENSE: - 3 years of informal / summary / court (unsupervised) probation (a few counties require more than 3 years court probation to help lower monthly fine amounts, but 3 years is generally the norm) - Generally between 2 to 30 days of jail (satisfied by work program). The maximum punishment possible is technically 6 months, but no one gets that. Plus you receive 50% credit (for example, 8 days jail really means 4 days of work program) - 3 months “First Offender Program” DUI classes to reinstate your license. But you could be sentenced to 9 months of classes if your blood alcohol was particularly high (e.g., .20% or more) - Approximately $1,700 to $2,000 in court fines and added penalty assessments, which can be paid off in monthly installments or often reduced by added work program time. ​​ SECOND OFFENSE WITHIN 10 YEARS OF LAST DUI - 3 years of probation (but could be as much as 5 years). Probably formal, supervised probation where a probation officer monitors you. Generally you'll face between 10 and 90 days of jail (or potentially work program in lieu of jail, which varies by county). The maximum punishment is technically 364 days jail (no one gets this). - 18-month DUI “Multiple Offender Program” to reinstate your license - Approximately $1,700 to $2,000 in court fines and fees, which can be paid in monthly installments and potentially reduced with added work program time. - Up to $100/mo. for probation supervision fees (if you're on formal probation) - Requirement to install an Ignition Interlock Device (an "IID," which is a breathalyzer connected to your car's ignition) - Possibly the requirement to attend AA classes - Possibly the requirement to wear a SCRAM device (a device on your ankle that monitors whether you have any alcohol in your blood. - Probably the probation condition that you not consume any alcohol or go into any bars or stores where alcohol is the chief item of sale ​​ THIRD OFFENSE WITHIN 10 YEARS OF 2 PRIOR DUI CONVICTIONS - 3 years of probation (but could be as much as 5 years). Likely formal, supervised probation where a probation officer monitors you - Generally between 120 and 180 days of jail or worse. The maximum punishment is 364 days jail, meaning up to 6 actual months with 50% credit. - You cannot rely on being able to serve all or part of time on work program or work furlough. You may, however, be able to serve all or part of time in a certified residential treatment program. - 18-month DUI (or possibly 30-month) “Multiple Offender Program” to reinstate your license - Approximately $1,700 to $2,000 in court fines and fees, which can be paid in monthly installments or reduced with added jail time. - Up to $100/mo. for probation supervision fees - Requirement to install an Ignition Interlock Device in your vehicle - Possibly the requirement to also attend AA classes - Possibly requirement to wear a SCRAM device on your ankle. - Probation condition that you not consume any alcohol or go into any bars or stores where alcohol is the chief item of sale ​​ FOURTH OFFENSE WITHIN 10 YEARS OF 3 PRIOR CONVICTIONS. You will be charged with a felony at this point. As a felony, the punishment, would be felony probation, which is formal with a probation officer, and you'd face up to 1 year in the county jail (180 actual days). If the judge did not grant you felony probation, however, then you would then face one of the following prison sentences: the judge would choose either 16 months, 2 years, or 3 years. Although a "prison" sentence, you would still serve the sentence in the local county jail at 50% time. So, for example, if sentenced to 16 months, you'd serve 8 actual months. ​​ DUI CAUSING INJURY? It doesn't matter if it's your first, second, or third offense, you will likely be charged as a felony if anyone was seriously injured. If the injuries were minor, then it's possible the DA will file the case as a misdemeanor. It's within their discretion. If the case is filed as a felony, it may be possible to convince a judge to reduce the case to a misdemeanor after the preliminary hearing, especially if the DA struggles to put on evidence of any legitimate injury. If a judge didn't grant felony probation, you'd serve 16 months, 2 years, or 3 years in prison (served locally in county jail). ​​ DUI WHERE SOMEONE DIED? If you had a prior DUI, you'd be charged with murder. Anytime someone pleads guilty to a DUI, all courts in CA require defendants to acknowledge that they understand drinking and driving is inherently dangerous and can kill. Thus, if you act recklessly in the future and ended up killing someone while drinking and driving, you won't just face a vehicular manslaughter charge, which is far less punishment than murder. This acknowledgment in open court is known as a Watson advisement (stems from a case where the defendant's name was Watson). Accordingly, when murder charges stem from a repeat drunk driver who eventually kills someone, these cases are referred to as Watson murders.




What are the best ways to fight DUI charges?


The best defense in a DUI case depends, of course, on the facts of your individual case. There are a variety of ways to fight a case, but generally here are five of the most common and powerful avenues of attack: #1 THE "RISING" BLOOD ALCOHOL DEFENSE One way is to attack the science regarding the rate of your blood alcohol absorption. Alcohol doesn't immediately absorb into your blood stream; it takes time. So do DUI investigations during at a traffic stop. Often at least an hour or two has passed by the time you're actually arrested and submit to a breath or blood test, which can leave open the argument that your blood alcohol was still absorbing, or rising, when you were arrested. To prove you guilty of driving under the influence or having a blood alcohol content (BAC) of .08% or more, the DA has to show you were, in fact, under the influence or a .08% or more at the time you were driving. It doesn't matter if you were above .08% AFTER the fact or, in other words, getting drunker after being pulled over. If you can raise a reasonable doubt, through scientific circumstantial evidence, that your blood alcohol was lower than .08% at the time you were driving, you can win at trial. The "rising" blood alcohol defense is an effective and popular defense. But you may be limited in reasonably making the argument if, for example, you submitted to a preliminary alcohol screening (PAS) test (the breathalyzer on scene before being arrested) and it showed your blood alcohol was higher than the breath or blood test you submitted to after your arrest. For example, if your preliminary test result showed your BAC at .11% and your chemical test post-arrest taken 1.5 hours later was .09%, the DA will surely argue that the alcohol was already absorbed in your system and thus falling, not rising. #2 FAULTY EQUIPMENT OR MISTAKES MADE BY OFFICERS Another potentially effective way to fight the evidence in a DUI case is to challenge the accuracy of the blood alcohol instruments used. Law enforcement is required to comply with a lengthy set of administrative rules with respect to ensuring accuracy. You are entitled to see the accuracy check logs. If there were any mistakes or signs of inaccuracies in the readings, you can argue those points to raise a reasonable doubt. #3 ALTERNATIVE EXPLANATIONS FOR POOR FIELD SOBRIETY TESTS There are many other potential reasons why, for example, a person's eyes may be red and watery or why someone may have struggled on a balance test. It's not always because someone was drunk. Many people who are sober struggle to perform field sobriety tests (FSTs) well. In other words, if there's any reasonable alternative explanations to counter one or more observations made by officers during their investigation, then it's important to emphasize that. #4 THE "NO DRIVING" DEFENSE Critical to any driving under the influence case is proof that you were, in fact, driving. If officers came upon a scene where your car was in park, or off, there is often the argument that the DA can't definitively prove you drove to that location -- or that you drove there under the influence. For example, this scenario often occurs when there's a solo vehicle car accident or a person is found drunk and asleep in his or her car. Without a witness to you driving, the proof of your driving is entirely circumstantial. Who knows whether you had someone else in the car before officers arrived on scene? A jury can understand why this mystery person, especially if drunk, may not have wanted to stick around to be interviewed by law enforcement. Of course, if you told the officers that you drove, claiming someone else drove may appear unreasonable, but people cover for their friends and loved ones all the time. Or maybe it's obvious you drove to that location, but not obvious when you drank or when the alcohol impaired you. If you only started drinking after pulled over, then you have a very strong case. But if you drank and started to drive, thought better of it and pulled over, it's gets tricky to prove you were above a .08% when you were actually driving, which is all that matters. But this brings us back to the rising blood alcohol defense again. Maybe you were .05%, .06%, or .07%, then pulled over and became .08% or more when police contacted you. That's a case worth fighting. #5 MOTIONS TO SUPPRESS EVIDENCE If any aspect of an officer's DUI traffic stop and subsequent investigation potentially violated your Fourth Amendment right to be free from unreasonable searches and seizures by the government, your attorney can file a motion to suppress evidence pursuant to Penal Code section 1538.5. In sum, at motions to suppress, the DA has the burden to show the officers complied with the law when they conducted their investigation. Potential law violations are too numerous to list here, but in general, if you can show the officers violated your Fourth Amendment right, as a remedy the judge may prohibit (or suppress) the prosecution from using critical evidence against you if the case proceeded to trial. Without, for example, the ability to use the blood alcohol test results, the prosecution will not be able to prove the case and, consequently, will dismiss the case before trial.




What does it cost to hire a DUI lawyer?


First off, you don't have to limit your search only to "DUI lawyers" to get good representation. That's just what criminal defense lawyers call themselves for marketing purposes but DUI defense is criminal defense. DUI law is criminal law. If someone is a good criminal defense lawyer, he or she is probably good at handling DUI cases, specifically. But that person may not be up-to-date on certain things like DMV consequences. Anyway, that said, the range of prices to privately hire a DUI lawyer widely vary. As a quick answer, for first offenses misdemeanors, most criminal defense lawyers in California will charge $3,000 to $5,000 for a DUI case. If you live in a more expensive place, expect higher general prices. You could find cheaper, but don't expect your case to get the royal treatment. If your case is a second or third DUI offense within the past 10 years or a prior conviction, and/or there was a car accident, it becomes more complicated and, consequently, more expensive. If your case involved serious injuries or this was your fourth offense within 10 years, then your case will be filed as a felony. You can expect most lawyers to start their rates between $5,000 and $10,000, and possibly much more. JURY TRIAL FEES? When lawyers quote you their initial fee, they often do not include what it costs go to trial. While the vast majority of cases don't go to trial, it's important to know what it will cost you if you do. Lawyers need to be upfront with you from the beginning so that you're not caught off-guard. For trials, lawyers do it different ways. For example, some will charge a simple daily trial rate (e.g., $1,000 per day of trial). Others charge per hour while in trial (e.g., $400/hr.). Some charge a simple flat rate (e.g., $4,000). And finally, some will do a combo of one of the above. It's important to understand that trials are rarely just one day long. Even a basic DUI case will often last 2-5 days, sometimes longer. So, as you can see, the costs can quickly add up. Personally, I charge clients a simple daily rate of $750 for jury trials. I keep my trial rates low to not deter clients who want to fight their cases to trial. After all, I'm a trial lawyer at the end of the day. ARE THERE OTHER COSTS? There are other potential costs. The most notable one in a DUI case is whether your case would benefit from hiring a forensic toxicologist to testify as an expert witness. Hiring scientists for their time as witnesses isn't cheap. Their fees can sometimes surpass your lawyer's. The good thing to know is that most cases do not require retaining an expert witness. But, if you're going to trial or fighting your DMV administrative hearing to save your driver's license, and it's clear that retaining an expert witness could make a big difference, then it's a worthy investment to give yourself the best chance at winning. Most people do not have tons of expendable income. Even if you have the money, I always try to avoid unnecessary expenses for my clients and keep everyone in the loop before taking on additional costs. The majority of my cases do not end up costing my clients more than the original quoted fee. Remember: Before hiring any DUI lawyer, make sure he or she makes it crystal clear what the expected fees and costs will be.




Is it absolutely necessary to hire a lawyer for my case? Can I avoid the cost?


You are not required to hire your own lawyer. Assuming you qualify for a public defender, you don't have a choice in who's assigned your case, which a lot of people don't like. You could, alternatively, simply seek to represent yourself to save yourself the expense of hiring a lawyer. So, do you 100% need a lawyer? Can you instead just come to court, plead guilty, and get your penalties, and move on? I'm probably one of the few lawyers out there who would ever say that it's not ALWAYS necessary to have a lawyer. If you're someone who simply wants to accept responsibility early by pleading guilty to avoid any legal fees or the potential of a drawn-out process, then it's certainly possible that you could resolve your case and end up with a punishment similar or even identical to what you would have received with the assistance of a lawyer. In other words, it could be a reasonable gamble under the right circumstances. But it is a gamble. If you just go in and plead guilty, you're assuming that there's absolutely no holes in the prosecution's evidence and that you'll be given a minimal punishment. That may be the case, but my advice is why risk it? It's better to play it safe, even if you feel you're totally guilty, to see if you have any viable legal defense or at least avenues to negotiate your case for even lesser punishment. In other words, before you face your case completely alone, the strong recommendation is to at least have a lawyer first look over the evidence. Also, if you're serious at all about actually fighting your case to trial, then hands down you'll need a lawyer. I would not do that alone. First of all, a DUI lawyer will know how to properly review the evidence to spot weaknesses to attack in the prosecution's case. Secondly, defending oneself in court, regardless of the type of case, is very complex. It takes attorneys many years to become even just proficient in the rules of evidence, let alone show signs of mastery in the courtroom. And then there's the law itself. DUI cases can be very scientific and complex. If proceeding to trial, you'll need to quickly learn many very nuanced skills. For example, you'll need to know... - how to file pre-trial motions; - pick a jury that gives you the best chance for success; - how to cross-examine witnesses, such as an expert forensic toxicologist, in addition to the police officers; - how to make proper objections when the DA presents the case; - how to concisely and cogently argue your defense to a jury. I can go on and on about the nitty-gritty of courtroom litigation, but the bottom line is that you'll be at a major disadvantage to fight your case without legal representation. Also, as a practical benefit, a privately retained lawyer can attend court on your behalf, so you don't have to miss work or other obligations and can avoid the hassle of court. REPRESENTING YOURSELF? If this is a first-time DUI offense and you are interested in representing yourself to save a few thousand dollars, I strongly advise you to at least have a lawyer review your case first. I offer a virtual legal consulting service (to California residents) where I help you obtain and closely review all of the evidence in your case first. I then coach you, if I feel it's appropriate, to resolve your case on your own.





Your Rights

What does it take for an officer to legally pull someone over?


Police CAN pull you over if they have a "reasonable suspicion" you've committed any offense, large or small. But they CANNOT legally pull you over simply based on a hunch. They need objective "articulable" facts to justify stopping you, such as a traffic (moving) violation. The most minor of traffic infractions in enough to justify stopping you. The reality is that if you follow behind almost any driver, within a matter of minutes the driver is likely going to commit some offense (slightly speeding, drive over line, not stop perfectly at a stop sign, etc.). If you can't show the officer is straightup lying (ideally with a video), the odds are a judge will accept an officer's testimony explaining the traffic violation. Sometimes, however, you can show in court that the reason(s) given to justify the traffic stop did not occur. In such circumstances, a motion to suppress evidence, if granted, will result in the judge throwing out any evidence officers gained that resulted from the traffic stop. In other words, the prosecution will have no evidence left and, accordingly, they will dismiss the case.




When can an officer legally detain me?


An officer CAN temporarily detain you to investigate whether you’ve, in fact, committed the offense they suspect, so long as there was reasonable suspicion of an offense based on objective, articulable facts rather than just some hunch you've committed a crime.




How long can an officer legally detain me?


Officers CANNOT detain you longer than what’s reasonably necessary to complete their investigation. HOWEVER, if reasonable suspicion of another offense develops during the initial detention, then they can detain you longer to investigate the newly suspected offense. For example, a traffic stop for speeding requires only a short investigation. But, if during the stop, the officer smells alcohol, the officer develops reasonable suspicion of drunk driving. The officer now has a basis to further detain the driver for a DUI investigation.




I was arrested or cited without a warrant -- is that legal?


When officers see what they reasonably suspect is criminal activity, or a suspected crime is reported to them, it's their duty to investigate. If their reasonable suspicion develops into probable cause to make an arrest, they can do so without an arrest warrant. Most criminal investigations (and, ultimately, arrests) involve searches performed without arrest warrants or search warrants. The lack of a warrant is not automatically a constitutional violation. But it certainly could be depending on the circumstances of your case.




During a traffic stop, can an officer legally search me or my car without a warrant?


They CAN search you if they have probable cause of a crime, or even just reasonable suspicion that you're carrying a weapon or contraband. Similarly, they CAN search most of your vehicle with probable cause, or reasonable suspicion, that contraband is inside. To search your trunk, however, they need probable cause. They CANNOT search you or your vehicle if there’s no reasonable suspicion to do so. However, there are a lot of exceptions. Also, they are always allowed to simply ask you for consent or permission to search. You are allowed to say no (unless you're on probation with search terms). Surprisingly, many people -- even when they have illegal things on them or in the car -- still agree to be searched and then end up arrested or cited. That’s because law enforcement can be intimidating. People try to be cooperative and it backfires. Even if you think you don't have anything illegal in a car, it's probably smartest to err on the side of not consenting. You never know what someone else may have left in your car.




What does "probable cause" to arrest really mean?


Police CAN arrest you if their investigation leads to "probable cause" you've committed a public offense in their presence. It's a higher standard than "reasonable suspicion," which is needed to detain and investigate you, but not by much. In legal terms, probable cause means it's more likely than not that you committed the offense. But put simply, probable cause means what it sounds like: essentially, that you PROBABLY committed a crime, nothing more than that. Proving you probably committed an offense is a MUCH LOWER hurdle than proving in court, beyond a reasonable doubt, that you did it. Proof beyond a reasonable doubt is the prosecutor's burden at trial.




Can officers cite or arrest me for an offense not committed in their presence?


They CANNOT arrest you for a misdemeanor unless you’ve committed the offense in their presence — in other words, they have to personally observe you commit the offense. (Note: This rule does not apply to felony arrests.) There are some big exceptions, such as in domestic violence cases or DUI crash cases, but, generally, that’s the rule. To arrest someone for a misdemeanor based solely on a report to law enforcement, the “reporting party” citizen who called the cops must make a "citizen's arrest." (Yes, if you witness a misdemeanor, that means you can physically arrest someone, so long as the degree of force you use is reasonable under the circumstances.) But, typically the reporting party simply signs a "Citizen's Arrest" form and law enforcement takes care of the rest. Note, however, that a citizen's arrest is often unnecessary; if officers follow up on a report and then independently observe the suspect commit an offense, they can make the arrest without the reporting party's involvement.




Can you give me a summary of my 4th Amendment right?


The Fourth Amendment protects you against unreasonable searches and seizures by the government. It states that “probable cause” is required to issue a warrant to search or arrest you. It is important to note that vast majority of searches and arrests by law enforcement occur without a warrant. But warrantless searches and arrests are often considered lawful because there are plenty of exceptions to the warrant requirement. For example, say during a routine traffic stop for speeding, an officer sees illegal drugs in plain view while standing outside your car, the officer does not need a warrant to search your car, seize the drugs, and arrest you. This is known as the "plain view" exception. On this same example, let's say the drugs were under your seat and not in plain view, but the officer asked you for consent to search your car and you agreed. This is known as the "consent" exception. Here, again, the officer can (and will) seize the drugs and arrest you without a search or arrest warrant. Your consent in this scenario provided an exception to the general requirement that law enforcement seek a warrant first before performing a search. (So, word to the wise: Don't consent to be searched.) Attorneys file motions to suppress evidence to challenge the grounds upon which officers performed a search or seizure. The typical scenario involves an officer finding and collecting a certain item of evidence without a warrant. The prosecution has the burden to justify the search by showing the judge the officer's actions fell within a recognized exception to the warrant requirement. If the prosecution fails, the judge suppresses the evidence, which generally leads to the dismissal of a case or the charges stemming from an item of evidence because, without the being able to present the evidence, the prosecution can no longer prove the charge(s). What officers are permitted to legally search and seize as evidence without a warrant, and even with one, is a rich topic of legal study and debate especially in the context of our frequently evolving complex modern digital world. Lastly, the 4th Amendment also covers your right to promptly see a judge if arrested without a warrant. In felonies, that right includes a prompt determination by the judge that there was probable cause you committed the offense. Otherwise they have to release you from jail.




Can you explain my 5th Amendment rights? What if I wasn't read my Miranda rights?!


The Fifth Amendment pertains to your right against self-incrimination—in other words, your right to remain silent. If you're accused of a crime, you don't have to talk to police and you can choose not to testify at trial. The prosecution can't argue to a jury that you not testifying is a sign of guilt. And the prosecution further cannot use evidence of your statements made to officers during the investigation if they resulted from a violation of your "Miranda rights." MIRANDA RIGHTS? Whether from TV or real-life experience, most people have heard of “Miranda rights.” If arrested, officers must "Mirandize" you before questioning or interrogating you any further. They are called “Miranda rights” in reference to Miranda v. Arizona, a 1966 U.S. Supreme Court case involving police interrogation after an arrest. Most officers have these rights committed to memory or will read from a card to ensure they don’t miss anything. The rights are fundamentally simple: - You have the right to remain silent; - Anything you say can be used against you in a court of law; - You have the right to an attorney; - If you cannot afford an attorney, one will be provided to you at no cost. It doesn’t matter if the exact wording is slightly off or they get the order wrong. As long as they’ve touched all points in general, they’re covered. Once you indicate that you are exercising your right to remain silent, the questioning must stop immediately. BUT I WASN'T READ MY MIRANDA RIGHTS? DOES THAT MEAN THE CASE GETS DISMISSED? The quick answer is no, at least not automatically. Even if officers acted improperly and got an incriminating statement from you in violation of your Fifth Amendment right, that doesn't mean the case gets automatically dismissed. It just means a judge may rule that the prosecution is prohibited from presenting that statement to a jury if the case proceeds to trial. And here's the critical point about whether a Fifth Amendment violation even occurred in the first place based upon a supposed Miranda violation: Officers are not always required to explain the Miranda rights to you before questioning you. In fact, the requirement that you be read your rights first before any questioning only triggers AFTER two things occur at the same time: (#1) You're considered, legally, to be "in custody" and (#2) You're being interrogated. IN CUSTODY? Of course if you're sitting in jail or handcuffed in the back of a patrol car and then an officer starts asking you a bunch of questions about the suspected crime without Mirandizing you, then it shouldn't be too difficult for a defense lawyer to argue that you were in custody at the time of questioning. But what if you're neither sitting in jail nor handcuffed but, at the time of questioning, still arguably in a position where a reasonable person would not feel free to leave? For example, say you were pulled out of your car, surrounded by 4 officers for 45 minutes, that evidence of a crime having been probably committed was present (say illegal drugs were already spotted and seized), but then an officer started to ask you questions without Mirandizing you...? Well, in this example, at some point even though you weren't handcuffed or anything, a judge may agree that the surrounding circumstances here when you were questioned was the equivalent of being "in custody" and therefore the officer should've read you the Miranda rights first. If a judge agrees the officer crossed the line by not Mirandizing before getting some info from you that you wish you could take back, then the judge as a remedy will rule the prosecution cannot use your statement in evidence. But that only applies to statements made AFTER the officer crossed the line. INTERROGATION? This is a just fancy word for police questioning that's designed to get an incriminating response from you. In other words, are they questioning you about relevant things that can pin you to a crime? If an officer, after you're arrested, is just chit-chatting with you about irrelevant things, that's okay. As a practical matter, the whole point about claiming Miranda or Fifth Amendment violations is to keep out of evidence incriminating statements you made before being properly warned. It's not like you're going to court to exclude a statement you made to an officer while in custody that you wanted a sandwich. DID YOU PROPERLY "WAIVE" YOUR RIGHT TO REMAIN SILENT? Surprisingly, a lot of folks still talk to law enforcement after they are arrested or in custody. Despite their right to remain silent and have an attorney present during questioning, they instead admit all kinds of incriminating things. There are a number of reasons why. For example, a lot of people are simply nervous. Also, many falsely believe that, by being honest, the officers will help them to get their charges dropped or reduced. It's important to know that when questioning you, officers are allowed to lie and make you believe things like false promises to go easy on you if you admit guilt. They often pretend to know more than they do, use trickery or claim they have evidence against you when they don't (a witness, a video, whatever). The bottom line is that it's not illegal for them to lie to you; in fact, it's considered good police work. Odds are if you talked after being Mirandized, your statements can come in as evidence against you at trial. But not always—for statements to be admissible, there must have been a proper waiver of rights. What that means is you legitimately agreed to talk after being warned. That requires the prosecutor to show that you not only understood your Miranda rights, but also voluntarily waived them. If a judge decided, for instance, that the officers exerted improper pressure, the statements (or "admissions") may be excluded from evidence. In other words, the jury will never hear about them. As a side note, admissions are not necessarily the same as confessions. Admissions are where an individual provides even the slightest nugget of information or evidence. Confessions are where an individual provides either a full written or recorded statement detailing the fact that he committed an offense. For instance, you can deny that you felt the effects of alcohol, but at the same time admit that you drank two beers. That's an admission to consuming some alcohol, not a confession that you were, in fact, drunk driving. Fun Fact: As a former prosecutor and, now as a criminal defense attorney, I have always noticed that the vast majority of DUI suspects tell officers that they’ve only had "two beers" or "two drinks." Ask any officer who performs DUI traffic stops regularly and he or she will agree. Folks seem to think that admitting "two beers" is the perfect response to sound honest while not admitting the full extent of what they drank. Instead, they end up sounding like a broken record to cops. EXAMPLE OF YOUR 5TH AMENDMENT RIGHTS IN ACTION Let’s say you just got placed under arrest for DUI, handcuffed, and put in the back of a patrol vehicle. However, the arresting officer did not immediately read you your Miranda rights. Instead, after 30 minutes he asked you, “Why did you drive drunk tonight?” and, in response, you said: “I knew I shouldn’t have been driving; I had way too much to drink.” Later at your trial, the DA will put the arresting officer on the witness stand and ask him to repeat your statement to the jury. Here, any decent defense attorney will seek to exclude your statement from evidence. You were arrested and then questioned in custody without being Mirandized yet. It doesn't matter that you weren't in jail; being handcuffed in the back of a patrol vehicle should qualify as "custody." Also, it doesn't matter that it was just one simple question. It still counts as interrogation while you were in custody, which requires Miranda warnings. Therefore, the judge should agree to exclude the statement. (That does not mean the judge will, but your attorney must present the argument.) In other words, here, the officer messed up. It happens all the time—not maliciously, necessarily. A skilled defense attorney must spot the mistakes and vigorously advocate to exclude from evidence the statements that resulted.




What are my 6th Amendment rights?


As a quick answer, the Sixth Amendment pertains to your fundamental procedural rights AFTER you’ve been arrested and accused—that is, the right to have a speedy trial, to have a lawyer, to have an impartial jury, to know the nature of the charges against you, and to cross-examine the witnesses that have accused you.




What officers CAN and CANNOT do - SUMMARY


Please visit: www.rieflegal.com/what-officers-can-and-cannot-do





About Attorney

Education?


Juris Doctor (J.D.) (a law degree) from the University of San Diego School of Law Bachelor of Arts (B.A.) in History from the University of California, Los Angeles (UCLA)




Bio?


My path to becoming a trial lawyer began after I graduated college at UCLA. I initially worked for a mortgage brokerage in San Diego, but I was appalled by the deceitful business practices in the industry. Unlike the brokers and loan officers around me, I often convinced potential customers not to refinance their home loans (which was antithetical to my job description) because, for many, it did not make sense financially. I decided quickly to leave the industry and become a lawyer—a far more suitable role for me—to achieve my life's pursuit of helping people. My interest in litigation, negotiation, and specifically criminal law sparked while at the University of San Diego School of Law. After three particular courses where I received top grades—Criminal Law, Legal Research & Writing, and Negotiations—I then participated in three consecutive Mock Trial Tournaments, and won First Place in each competition. That led to me competing in a national tournament in a Chicago federal court. I also gained valuable real-life litigation experience both during and after law school completing four prosecutorial clerkships at three government offices: two with the San Diego County District Attorney's Office, one with the United States Attorney's Office, Criminal Division (Major Frauds Unit), and one at the San Diego City Attorney's Office (Land Use and Environmental Section). Additionally, I clerked for one year at Thorsnes Bartolotta Magure, a well-respected civil litigation firm in San Diego. As an attorney, I was hired to be a criminal prosecutor—first a deputy district attorney with the Santa Barbara County District Attorney's Office (2011-2012) and, second, with the Amador County District Attorney's Office (2012-2015). As a prosecutor, I handled a wide variety of cases—from countless common misdemeanors to many serious felonies—and gained valuable negotiation and jury trial experience along the way. Now, as a defense attorney, I handle cases that range from DUI to homicide and I believe that my experience at multiple DA's Offices and in preparing cases with law enforcement provides helpful insight to share with clients. In 2015, I moved to the Bay Area and initially joined a civil litigation law firm in Silicon Valley handling consumer protection cases against automobile manufacturers. In 2016, I returned to criminal law—my first career passion—and founded Rief Legal. Additionally, a portion of my practice is dedicated to indigent defense cases appointed through the San Mateo County Private Defender Program, which enables me to defend individuals who do not have the financial resources to hire a lawyer. In my law practice, each year I get the opportunity to help hundreds of people through what's often the most difficult times in their lives—a weighty yet profoundly rewarding responsibility. Whether that means negotiating the reduction or dismissal of criminal charges or fighting a case all the way to trial, I take whatever path is needed to help. In all cases, my mission is to advise with compassion, transparency, smart strategy, and pragmatism.




Why does being a former prosecutor help?


As a former prosecutor (I was a deputy district attorney in multiple California counties), I have first-hand knowledge of what it's like to be in the DA's shoes, to prepare cases with law enforcement and to negotiate with defense counsel. Understanding the behind-the-scene challenges prosecutors face I believe provides me, as a defense attorney, with an advantage when negotiating with DAs and preparing clients' cases for trial.




Does jury trial experience really matter since most cases don't go to trial?


In my strong opinion, yes it matters. It is risky to hire an attorney who lacks years of real-life jury trial experience and success. That's similar to going into surgery with a doctor who lacks surgery experience. Also, on a day-to-day basis, the clients who have hired an attorney with a reputation for not just going to trial, but also ideally winning a lot at trial, gain an edge in pre-trial negotiations with prosecutors and judges based upon their attorney's credibility. Otherwise an attorney's threat or posturing to fight the case to trial—which is your main leverage in pretrial negotiations—is perceived as an empty threat and thus not going to be taken seriously by prosecutors or judges. In other words, that lawyer is less likely to get as good of offers to resolve cases for clients in the big picture. If you hire me, you can rest assured that I've at least gone to jury trial dozens of times—and won the vast majority of them, too. My success rate in trial is ~80%. The trials in which I was unsuccessful were when I was a rookie a decade ago, which illustrates my point that experience matters.




What's the "Dropjail Method"?


I have a 3-part negotiation strategy with prosecutors and judges that I call my "Dropjail Method" because it routinely leads to the most criminal charges and jail time being dropped. First, I expose some issue(s) of proof in the prosecution's case if it went to trial—that is, any potential issue that could realistically lead to at least one juror (which is all we need) not being fully convinced from the evidence and therefore having reasonable doubt. Don't forget: No matter how strong the evidence may seem against you early on in a case, it's a different ballgame in trial. Every case for the prosecution has its challenges. While presenting a realistic threat of going to trial and winning, an equally important part of the Dropjail Method—the second step—is to present "mitigation" information about my client. In other words, I provide the prosecution and judge with facts about my client's life and case that highlight how he or she is a good person and not a further threat to the community. The third and final step is to negotiate the "brass tax" of the most minimal charges and punishment possible if my client were to accept responsibility early in the case—an important factor for prosecutors and judges who strongly favor efficient resolution of cases. I do this in a pragmatic way to explore a resolution without admitting any guilt on my client's part. The key to the Dropjail Method is to skillfully balance all three objectives at the same time. When delivered succinctly with professionalism, and by an attorney who knows how to read a room, it repeatedly produces top negotiation results.




Is there a limit on cases Ari takes?


Yes. With any law firm, the more cases a lawyer takes, the less time and attention that lawyer can devote to each individual client. I am not just taking on any client who calls my office and then passing the work off to less experienced associates. To address the concern about availability and to ensure that proper care is reserved for each case, I limit the number of new clients I take at a time. Although it's not an exact science, by thoughtfully placing some necessary limits on my caseload, I can best serve the clients I do represent and provide top tier legal services.




Is hiring a bigger firm with more support better?


There's often a perception, particularly in civil law, that bigger is better. The powerhouse large firm with hundreds of lawyers enables a client's case to gain immediate credibility. Criminal law, as a whole, operates quite a bit differently. Many of the very best criminal defense lawyers in the country have solo boutique practices and operate independently or have a very small firm of only a couple lawyers. And, in fact, hiring a larger firm, particularly in the criminal law context, will often lead to your case being handled by an associate who lacks the trial experience and courtroom credibility that you believe you're paying for. But what if the solo lawyer or small firm (like my law office, Rief Legal) needs assistance with a complicated legal issue? It's a fair question. After all, criminal law is vast and complex. To me, the answer is to have a network of peers and a pool of knowledge and experience that you can draw from—an invaluable and necessary asset for any serious litigator. To that end, I belong to multiple criminal defense listserves, chair the Criminal Law Section of my local bar association and am a member of top defense organizations, such as California Attorneys for Criminal Justice (CACJ), an affiliate of the National Association of Criminal Defense Lawyers (NACDL), the California Public Defenders Association (CPDA), and the San Mateo County Private Defender Program. With a substantive network of hundreds of the best criminal lawyers across the state, I have the critical support I need in complex cases when issues arise. The bottom line is that I certainly do not claim to know everything. It'd be foolish and arrogant to think otherwise. That is why I subscribe to the best legal research tools in the industry and attend various monthly trainings and conferences to stay up-to-date on any changes in the law and criminal justice system.




What will Ari do in my case?


There's often at least two sides to every story. I'm here to tell your side. And not just regarding the facts of your case to support a legal defense. I'm also here to tell your story as a person—to show your goodness, to show the challenges you've faced, and to illustrate how you're not a one-dimensional criminal that they've painted you to be, even if you've made some mistakes in life. The bottom line: Whether you're completely guilty or innocent or somewhere in between, there are steps I take in early negotiations to show the judge and prosecution why you deserve a chance instead of a harsh punishment—and to do it in a way that's succinct and reasonable. Second, my role is to expose the weaknesses in the prosecution's evidence against you. Remember in this country, you are presumed innocent until proven guilty. The prosecution alone has the burden to prove that you are guilty of the charges they accuse you of committing. It's important to understand the distinction that you don't have to prove that you're innocent; they have to prove that you're guilty. In fact, you don't have to prove anything. When it comes to proof, the grounds for an officer to arrest or issue a citation to someone is NOT the same as the grounds needed to convict that person of a crime in court. Police only need "probable cause" to arrest or cite you—in other words, evidence that just shows you're probably guilty. But that's not enough (or at least shouldn't be) to convict you in court. Instead, the prosecution needs to show a jury enough credible evidence against you to prove each element of each charge "beyond a reasonable doubt," which is a significantly higher burden of proof for the government. Remember, legally speaking, you're only guilty if, before trial, you plead (or admit) that you're guilty or, at the conclusion of a trial, you're found to be guilty. In a jury trial, that means 12 strangers have to unanimously (meaning all 12) vote to convict you. If JUST ONE juror has a doubt about any element within any charged offense, then so long as that doubt is not outlandishly unreasonable, that means you cannot be convicted of that charge. Further, even if you're convicted of something, the fight doesn't end there. I next advocate against any unjustified jail time, seek alternative rehabilitative solutions, and ultimately seek to minimize the terms of any punishment you may face. Finally, my role throughout any case is to keep you well-informed so that you're not alone in this process. My goal is always to make everything as understandable and the least intimidating as possible for my client and to provide the most valuable legal and pragmatic guidance to produce the best result possible in your case. You're likely going to be confronted with a difficult decision to make (for example, should you take a specific deal or should you take your chances at trial?) and you'll need someone to trust who will help you make the decision that's right for you.





Court Info

What's restitution and how does it work?


As part of your punishment if convicted of a crime, in some cases, the court will also order you to pay restitution, which is an amount of money to make a victim whole. This doesn't apply in all cases; it's only cases where there are financial losses. For example, let's say you were convicted of a hit-and-run driving offense (Vehicle Code 20002) where the damage to a car you hit was $2,000 -- well, in addition to potential jail time and fines, you'd be ordered to pay the car owner the $2,000. You have a right, though, to challenge the amount of restitution being claimed in a separate post-conviction hearing called a "restitution hearing." This is when criminal cases start to a look a lot more like a civil case (where it's just an argument about money). Say the car owner claims $10,000 in restitution for a minor amount of damage to an old beat-up car (believe me, these things happen), that's when it's time to demand a hearing.




What happens at an "arraignment" -- the first court date?


An arraignment, simply put, is your first court date where a judge calls your name, tells you the charges that you're facing, and then asks you whether you plead guilty or not guilty. Generally the lawyers, on behalf of their clients, will say their client is "not guilty" and the court then schedules future court dates. If it's a misdemeanor case, typically the court schedules a date reserved for negotiation that's generally called a "pretrial conference." Some counties will also calendar a jury trial date in the event one doesn't resolve his or her case at the pretrial conference. If your case is a felony, generally at an arraignment the court schedules a date for a preliminary hearing aka preliminary examination, which you have a right to demand within 10 court days or within 60 calendar days of your arraignment. This hearing is the first hurdle for the prosecution to show that there's sufficient evidence for the case to proceed as a felony. Some counties will schedule an intermin negotiation date in low-level felony cases to see if matters can resolve short of a preliminary hearing. Whether you're facing a misdemeanor or felony, in general at arraignment typically nothing too exciting happens other than entering a Not Guilty plea and scheduling dates. WHO'S YOUR LAWYER? At an arraignment, when your case is called, the first thing the judge will determine is who's representing you—is it going to be court-appointed counsel such as a public defender or a privately retained lawyer? In other words, they'll assume you're represented by a lawyer. However, if you want to represent yourself, in general you can. But you technically have to get the judge's permission first. Procedurally, when your case is called, you make what's called a "Faretta motion," which is simply an oral request to represent yourself "pro per." "WAIVING TIME"? Whomever is representing you -- whether it's the SETTING BAIL OR RELEASING ON YOUR OWN RECOGNIZANCE?




How are criminal charges filed?


Most folks don't understand that, generally, the ultimate decision whether to file criminal charges rests alone with the prosecutor (in most cases, that means your local county District Attorney's Office), not any other agency or individual. It’s neither the law enforcement agencies nor the alleged victims who decide. So, when an officer tells you that he or she can make your charges disappear or decrease if you talk, he or she is yanking your chain. The way it works is that after officers make an arrest, they write reports that get submitted to the DA’s Office (or another prosecuting agency). The prosecutors evaluate the reports and decide whether there is strong enough evidence to support the filing of criminal charges. In other words, just because you were arrested does not mean a criminal case will result. It’s all within the prosecutor’s discretion. Frequently, the DA will depart from the officer’s recommended charges contained in the report and either charge more or less than what was recommended. Similarly, just because an alleged victim tells the DA not to file charges or to dismiss a case that’s already filed does not mean the case will be closed. For instance, this frequently takes place in domestic violence cases. Alleged victims will very often ask for the charges against their spouses or significant others to be dropped and will say that nothing happened, that it was all a misunderstanding, etc. The DA looks at (or is supposed to look at) the evidence of the offense. He or she will listen to the recording of the 911 call made by the alleged victim the night of the offense and the recording of interviews conducted by law enforcement, look at pictures (e.g., of broken furniture, any bruising, scratches, etc.), and any other evidence that paints the picture of what occurred. If the evidence is ultimately strong enough, it’s entirely proper for the prosecutor to ignore the alleged victim’s requests and press forward with the case.




What's the difference between felonies vs misdemeanors?


The legal process differs greatly depending upon whether you were charged with a felony, misdemeanor, or infraction. The definition of a felony means that punishment for the offense is, at a minimum, one year of confinement. Also, traditionally, punishment for felonies meant confinement in state prison, not local county jail. However, due to MAJOR legislative changes in the last decade, many convicted felons now serve their sentences in local jail. It technically counts as prison time, which is why it's often referred to as "local prison." Misdemeanors, by definition, mean any offense where the maximum punishment is 364 days in local jail. Note: That's jail, not prison. You only go to prison (state or "local prison") by committing felonies. Lastly, infractions are offenses that are punished by fines only; no jail time is permitted. A speeding ticket is the classic example of an infraction.





Results - Vehicle Code

9-21-21 - REDUCED - DUI with Prior Offense Reduced to a "Wet Reckless"


Client was charged with a second DUI offense within 10 years. By law, if convicted of a DUI with a prior offense, a judge at a minimum must sentence you to at least 10 days jail, about 2K in fines, and 18 months of DUI school, to name a few of the probationary conditions. Here, realistically, the client faced somewhere between 30-60 days of jail. However, in negotiations, the prosecution agreed to dismiss the DUI charge in exchange for client pleading No Contest to a "wet reckless" driving offense. WIth the dismissal of the DUI charge, that meant the minimum punishment required for having a prior offense no longer applied. In the end, the client only faced 1 year court probation (unsupervised) instead of 3 years, received no jail, a simple 12-hour DUI class, and 3 days of community work program to reduce the fine to less than $250.




11-12-21 - DISMISSED - DUI Drugs


Client was charged with violating Vehicle Code section 23152(a), driving under the influence of drugs for a prescription medication he validly takes. A private citizen called 911 when observing him, supposedly, swerving on the road. CHP responded and pulled client over, who performed poorly on field sobriety tests. Client was arrested and submitted to a blood test which indicated he was on psychiatric medication -- something which could cause potential drowsiness. However, the levels in client's blood were not an alarming level. Ultimately, we pushed the case to trial to let a jury decide. Our expert witness -- a medical doctor -- provided opinion to the prosecution before trial in support of the reasonableness of Rx levels in Client's blood, among other opinions to help explain reasonable alternative explanations to why Client performed poorly on the field sobriety tests. Ultimately, the prosecution determined from our pretrial negotiations that reasonable doubt existed. Accordingly the DA's Office dismissed the case the day of trial.





Results - Health & Safety Code

10-15-21 - DIVERSION in 3 Drug Cases


Client faced three separate cases for drug possession. Two of the cases were violations of Health & Safety Code section 11377(a) for possession of a controlled substance (methamphetamine). The third case was a violation of HS 11350(a), possession of a controlled substance (cocaine). A complicating factor was immigration. Drug charges do not help one's efforts to become a citizen. Thankfully, the cases were all resolved for pre-plea diversion per Penal Code section 1000. What that means is that the criminal proceedings are suspended and, in the interim, the client will be required to complete drug education classes. If successful, and no violations occur, then the client's three cases will all be dismissed. Client was not required to enter a guilty plea or anything, so this should help to keep Client's record clean for immigration purposes.




10-15-21 - DISMISSED - Diversion Violation Withdrawn. Client gets another shot.


Client was on a pre-plea diversion for a drug paraphernalia offense (Health and Safety Code section 11364). What that means is that the client's case was suspended pre-trial, also referred to as being placed on deferred entry of judgment in accordance with AB 208 -- a relatively new law in California (started in 2018). In short, during this "diversion" period, the client was required to complete drug education classes; if so, the case would be dismissed. The issue here is that the client did not comply with any of the terms and conditions of the diversion and, accordingly, faced a violation. Ordinarily that means you've forfeited your chance at diversion. The case is essentially re-opened and now you have to deal with it. Here, however, the judge agreed to give client another opportunity at diversion. So, now, the client gets another opportunity to get the case fully dismissed without record of a conviction.





Results - Non-DUI Vehicle Code Cases

10-14-21 - DISMISSED - Hit-and-Run, VC 20002(a), and Driving Without License Case, VC 12500


Client crashed into public property and drove off only to have car stall out shortly down the road. An investigation led to hit-and-run charge -- a violation of Vehicle Code section 20002(a) -- as well as a driving without a license charge (Veh. Code section 12500(a)). In negotiations, the prosecution agreed to dismiss the hit-and-run charge. The circumstances were such that the client's intentions in driving off were not entirely clear. With regard to not having a license, the prosecution reduced the misdemeanor charge to a basic infraction (basically, a speeding ticket). Client simply faced a small fine of a few hundred bucks. That's it.





Penal Code