DRIVING UNDER THE INFLUENCE  (DUI):

Below you will find important information concerning your alleged DUI.  However, before we get to the legal battle, it is crucial for you to understand the following:  there are many attorneys that will defend you on your DUI charge.  Some attorneys will charge you as little as $699.00 (“Mcdonald Attorneys”), others will charge you as much as $20,000.00, what is the difference?  Before explaining the difference, what you need to understand is that running a law-firm, is a business, just like any other business.  An attorney that charges you a small fee will be highly motivated to settle your case within 1 to 2 appearances.  If that attorney has to appear more than twice on your particular case, he will be losing money and therefore will do everything in his power to settle your case within 1 to 2 appearances.  An average prosecutor in Los Angeles County carries a personal case load in the hundreds of cases per month.  This means that to simply survive, every prosecutor must settle somewhere around 95% of his case load, simply due to the fact that there are not enough hours in the day to take each and every case to trial.  This is not a secret, the prosecutors’ office knows this, us defense attorneys know this, and now you know this.  Fair or not, this is our legal system and this is the system that is preparing to prosecute you.  The secret to obtaining the best results in such an overworked legal system is to be the squeaky wheel, and make the prosecutor work for the conviction.  Any attorney you hire will appear for you during your initial arraignment date.  The problem is that the attorney who was only paid $699.00 will immediately begin to negotiate with the prosecutor about a plea bargain pertaining to your specific DUI.  An experienced prosecutor, who literally prosecutes hundreds of these DUI cases per month, will immediately recognize the fact that your $699.00 attorney is desperate to settle your case and will take advantage of this by only offerring said attorney a “bad deal.”  Like it or not, within two to four weeks from your arraignment, your $699.00 attorney will call you with the “best offer” he was able to obtain for you.  Take it or leave it!!!  On the other hand, attorneys at Netzah & Jankielewicz are trained to fight DUI cases under the motto that “THE MORE WORK WE THROW AT THE PROSECUTOR, THE MORE LIKELY WE ARE TO GET A BETTER DEAL FOR THE CLIENT.”  This means that we do not settle DUI cases in one to two appearances, we do not simply lay down and allow the prosecution to steam roll you.  Instead, we send a clear message to the prosecution that we are here to stay until such time as we obtain the best possible results for our clients.  This includes the subpoenaing of the arresting officer both the trial and the DMV hearing, the examination of the breathalyzer logs relative to the breathalyzer you blew into during your arrest, a retesting of your blood and/or urine sample by our own independent laboratory and other various proverbial tricks that we maintain in our legal bag.  While we are not the cheapest game in town, we are far from being the most expensive.  Our prices are competitive, fair and most importantly:  provide us with a sufficient income stream that we do not need to dedicate a set number of hours to each case, so that we are not losing money.  Some cases settle in 3 appearances, other settle in 10 appearances.  What ever it takes, however much time we have to spend to better your situation, rest assured that we will use every available tool in our legal bag to represent your interests in the most aggressive manner available under the law.      

THE BOTTOM LINE IS THIS:  A PROSECUTOR WHO DEALS WITH A NETZAH & JANKIELEWICZ ATTORNEY KNOWS THAT HE IS IN FOR A FIGHT AND THAT WE WILL NOT SIMPLY ROLL OVER AT THE FIRST SIGN OF TROUBLE.  IN THOSE CASES THAT WE DO “GO DOWN,” WE DO SO WHILE FIGHTING UNTIL THE VERY LAST SECOND. 

So you have been arrested for DUI, here is what you need to know.  First, take a deep breath and try to relax.  We know that being arrested for a DUI is a scary and sometimes earth shattering experience.  Rest assured that at Netzah & Jankielewicz we will employ all of our available resources to defend you in the most aggressive and affective manner possible under the law.  Below is a checklist of important facts that you need to know about the criminal prosecution currently being conducted against you:

1.                              DMV 10 DAY RULE:  You have exactly ten days from the date of your arrest to setup your DMV hearing.  If you miss this deadline, your suspension with the DMV will be automatic.  If you are already past the 10 days, yet have failed to setup the DMV hearing, contact us immediately, there is still hope to setup your DMV hearing and avoid the automatic suspension.

2.                              Technically speaking, you are facing a battle on two separate fronts the first is the court case for which you are being prosecuted and the second is the DMV hearing concerning the possible suspension of your license.  You must understand that the two are completely separate processes that truly have nothing to do with one another.  You could win one and lose the other, win both or lose both.  Barring a procedural “fumble” on the side of the prosecution, your chances of winning the DMV hearing outright are minimal.  The reasons for the low probability of winning the DMV hearing outright are twofold:

a.                                                       Unlike the court case, which is considered a criminal proceeding and therefore operates under the standard of proof of “Beyond a Reasonable Doubt,” the DMV hearing is only an administrative hearing that operates under the much lower standard of “Preponderance of the Evidence.”  In simple terms, the differences can be explained as follows:  to successfully prosecute your court case, the District/City Attorney prosecuting you must prove your guilt beyond a reasonable doubt.  This standard of proof is extremely demanding and therefore is much more susceptible to attack by the defense (i.e. you).  On the other hand, the standard of proof used by the DMV, being preponderance of the evidence only requires a showing of “More Likely Than Not,” for a successful prosecution.  This standard of proof does not lend itself as readily to attack by the defendant (i.e. you).

b.                                                      The hearing officer at the DMV is the person charged with deciding your fate with the DMV.  This same person is also charged with prosecuting you during your DMV hearing.  As such, the DMV hearing officer if literally judge, jury and executioner, all rolled into one person.  Fair or not, and clearly this system is unfair, this is the only system that we have here in California.   

3.  The Consequences of a Refusal:  During your arrest, the arresting officer should have informed you of the need to provide a chemical, urine or blood sample relative to your blood alcohol level.  Under California Law, once you are arrested for a DUI, the law requires you to submit to a blood, breath or urine test to determine if you are under the influence of alcohol.  This law is commonly referred to as the "implied consent" law, and is embodied in California Vehicle Code Section 23612:

“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly

committed in violation of Section 23140, 23152, or 23153 (DUI offenses).”

California's implied consent law only applies to the breathalyzer test given at the police station or the blood test at the hospital after a DUI arrest.  The requirement to submit to a chemical test does not apply to the handheld PAS machine.  (The PAS machine is the handheld portable breathalyzer that the arresting officer usually asks the arrestee to blow into prior to the arrest).  If you are over 21 years old, your submission to the portable breathalyzer is entirely voluntary.  Unless you are 100% positive that you will blow under the legal limit of 0.08%, we recommend that you refuse the PAS breathalyzer and instead submit to either a chemical test at the police station or a blood test at the hospital (for a detailed explanation as to the reasons behind this recommendation, contact us directly for a free consultation). 

A person who is lawfully arrested for DUI yet refuses a chemical test will not only be charged with DUI, but also with a "refusal enhancement".  The refusal enhancement can increase the DUI penalties in the following ways:

First DUI Offense:         1 year suspension of your driver’s license & 2 days jail.

Second DUI Offense:    2 year suspension of your driver’s license & 4 days jail.

Third DUI Offense:       3 year suspension of your driver’s license & 10 days jail.

The court imposes the jail time and the DMV imposes the driver’s license suspensions. These penalties are imposed in addition to the standard punishment for DUI, such as probation, fines, alcohol programs, AA meetings and possibly further jail time.

Can I Fight The Refusal Charge in My DUI Case?
Absolutely. For the refusal charge to stick, it must be proven at the DMV hearing and the DUI prosecutor must prove it beyond a reasonable doubt in court. A DUI defense lawyer can fight the refusal charge at both of these places.

Some of the defenses that may be asserted include:

The driver was not lawfully arrested for DUI: 

If the DUI officer lacked a sufficient basis to pull you over, or later to arrest you, then the DUI and the refusal enhancement will be dismissed.

The driver was not under the influence:

If a court or jury acquits you of the underlying DUI charge, then the refusal enhancement ceases to exist as far as the court is concerned. The DMV, however, may still seek to suspend your drivers license.

The DUI officer failed to advise the driver properly of the consequences of refusing:

The DUI police officer must give you a very specific set of warnings as to what will happen if you refuse to take the chemical test. (See Jury Instruction on Refusal) If he fails to give you this warning properly, the refusal cannot be held against you by the court or the DMV.

The DUI officer himself caused confusion about the BAC test requirement:

The DUI officer must give the warning in a manner comprehensible to the driver. If the officer's conduct or explanation of the law cause the DUI suspect to be confused as to the requirement to take the BAC test, this may negate the refusal penalty.

Can the DUI Prosecutor Elect to Drop the Refusal Enhancement?
Yes. As part of plea negotiations, the prosecutor will often dismiss or "strike" the refusal enhancement. Many prosecutors hate to go to trial on refusal DUI cases because they don't have a BAC test result to use against the defendant. So they are often willing to settle the cases on more favorable terms, depending on the state of the other the evidence.

What If I Initially Refused, But Later Agreed to Take the Test?
Suppose you initially refuse to take the blood or breath test. But a few minutes later you change your mind and tell the officer "OK, I agree to take it." Unfortunately, under California DUI law, it still counts as a refusal. As the law puts it, "One offer plus one rejection equals one refusal."