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Tim’s Success Story

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Tim was accused of a 2nd time dui with a breath reading of .11. The CHP believed Tim failed all of the field sobriety test. At a jury trial the expert for the government stated that they believed Tim drank 14 beers. Here is the problem, it took the officers 4 hours to process Tim through the system and NOT once did Tim ask to use the restroom. How does a person drink 14 beers and not have to urinate? I also proved that that breath machine was not working as designed.

Here is what Tim wrote about our law firm:

When I received mu DUI I reached out to another lawyer I knew and he referred me to Patrick Silva based on his experience and reputation in the legal community. I believed I had a case and after reviewing the details Mr. Silva felt strongly in supporting me as well. My case was dismissed after going to trial. It was a very stressful situation for me and Patrick went above my expectations throughout the entire process. I found Mr. Silva to be very ethical, honest, and professional. The trial process was tedious at times and Mr. Silva is extremely confident and knowledgeable which made me very relieved to watch him work on my behalf. The Judge, court room staff, and even the DA all showed great respect for him. To the jury he came across as an advocate for justice. Mr. Silva never made me feel like my case wasn’t important. He was very responsive to my calls and kept me informed. I believe many attorneys will take your money, give you some weak advice, and get ready to move onto the next case, but Mr. Silva was extremely thorough and worked on the many details of my case until the very end. I was definitely happy he was on my side watching him work in the court room. I highly recommend Patrick Silva to anyone looking for an attorney and, although I don’t plan on ever needing his services again, he would be my first call without hesitation. He’s a worker and a fighter and has my respect for what he has done to help me and my family.

David’s Success Story

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I met David when I was a young 20-something adult and I had bought a brand new airless sprayer from Home Depot. My buddy, Mark, David’s dad, was living in an older home and he said, “hey, come test out that sprayer over there, we’ll have a bar-b-que and drink some beers.” So I took my airless sprayer over there, and we ended up spraying that 1,100 square foot house in one day and it looked brand new. David was only four years old at the time. Almost 30 years later, I get a call from David, and he says, “I need help with a DUI.” I have not heard from David in almost 30 years, so it was kind of a surprise to hear from this young man that I last knew as a young child……

David told me that he was arrested for a DUI, and he did not think it looked good. He said that he was blowing off some steam and he had went to the local bar. I called the DMV to schedule an appointment to fight the license suspension, I received the police report about a month later. When I read the report I thought, boy, this does not look good, the cop wrote in the report that David was swerving over the left double yellow line three full times, and he went over the right white line twice before he pulled him over. David was arrested by California Highway Patrol which has a dash camera system, I subpoenaed the dash camera, and upon reviewing the video, there was some huge surprises. The video disclosed that it looked nothing like the police report that the cop wrote. Remember, the cop wrote that David went over the double yellow line three times and over the white line on the right twice.

This is what the video disclosed. David stopped at a red light, there’s a car behind him, the cop rolls up and he stops, they sit there another 10 seconds. As the light turns green, David proceeds straight. As he proceeds straight, the road dog legs to the right at about 15 degrees, David went straight, and as he got to the yellow line, he adjusted to the right, and continued driving in the middle of the lane. David’s wheels maybe got within two to three inches of the yellow line, but it never went over the yellow line three complete times like the officer wrote in his report. As I watched the video, it also disclosed that David did not go over the right white line even once. Based on the video, David drove completely perfect. He did not speed, did not swerve, and he definitely did not go over the lines as the officer described.

We held the DMV hearing, and I subpoenaed the officer to appear. When he appeared, he testified, and he said exactly what his report said, he said David went over the line three complete lines, his wheel was all the way over the double yellow line on the left, and that he went over the right white line two complete times. When I showed the officer the video, he stated, “oh, the videos can be wrong sometimes. That’s not what I saw that night”, I’ll give credit to that officer, as the country song goes, “that’s my story and I’m sticking to it”. Needless to say, I won the DMV and I saved David’s license. I did not mention that this was David’s third DUI, and his blood alcohol level was 0.17. A loss at the DMV would have required a suspension for a minimum of one year.

We went to court on his case, and I filed what’s called a motion to suppress under penal code 1538.5. Upon filing the motion, I came to court ready with a laptop, a DVD, and I was able to get a seasoned District Attorney who recognized the problem that the officer would have if he was going to take the stand and testify about what he allegedly saw. The DUI was dismissed, and ultimately, this saved David’s job and his license.

DUI Refusal

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What is a DUI Refusal?

In California, a DUI refusal can be more serious that a typical DUI charge. If you have been charged with a DUI refusal you need the assistance of a local DUI attorney in your area.  Did you know you can still be charged with a refusal even if you gave a blood test? DUI refusals are a tricky beast. Technically the law states one request and one refusal equals a refusal. This alone can have the effect of losing your driver’s license for up to 1 year on your first DUI.

One of the pitfalls is what we call implied refusals. This is where you don’t exactly say you won’t give a breath or blood sample but because you can’t blow hard enough into the breath machine and when the cop ask you if you will give blood and you say you don’t like needles, the cop can take this as meaning you refuse.

How do I protect myself?

Get a DUI attorney on your side! Many time the officer will NOT comply with Vehicle Code Section 23612 which requires that he inform you of all the ramifications of a refusal. Many times the officer will fail to give a complete admonishment and this can be crucial in protecting your California drivers license.

Should I Hire a DUI Lawyer

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One of the most frequent questions I receive is, ” should I hire a dui lawyer” and “if it is worth it”.   These 2 questions are at the top of everyone’s question list. If you do decide to hire a dui lawyer then look for the most experience lawyer you can afford, and preferably a lawyer who specializes in dui defense.  I myself have spoken in front of hundreds of lawyers while I was teaching them tricks of my trade. 

 

 

Attorney Questions

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PLEASE THINK ABOUT THE FOLLOWING – as the answer might affect your case:

1.     Have you ever had your license suspended or revoked?

2.     Does your job require you to travel outside of the United States?

3.     Do you drive a company owned vehicle?

4.     Do you have to prove insurability to your company?

5.     Do you have any security clearance issues at work?

6.     What is your weight?  height? at time of arrest?  Any physical disabilities? Take any meds? 

7.     Any:  Diabetes / Hypoglycemia / Hyperglycemia / Gastric Reflux / Hiatal Hernia / Stomach Ulcers / Hepatitis

        Cirrhosis / Emphysema /  Lung Disorders ?

8.     Do you have a green card? temporary work visa?

9.     Do you have any type of state license? RN? Medical Doctor? LVN?  Dental Hygenist?

10.   Are you going through any type of child custody issues which could be affected by a DUI charge?

11.   Where were you standing when you did the field sobriety testing? Sidewalk? Dirt? Gravel?

12.   When the officer gave you the eye test were the patrol car’s flashing light activated?

13.   What type of shoes were you wearing?

14.   Were you advised by the officer that the roadside breath test was completely voluntary?

15.   Did the officer read you a Miranda Warning?  Did the officer ask you questions after that?

16.   Was your car towed? Did you talk to the tow operator?

17.   Did any officers make any comments to you regarding your sobriety? “you don’t seem drunk to me”

18.   Did you complete a breath test back at the police station? Were you told results?

19.   Did you give blood? Did you watch the blood draw? Did blood tech invert vial? Shake? Nothing?

20.   Did you sign any documents?

21.   Do you know if you were video taped?

22.   Did you refuse any of the test?

23.   Were there any children in the car? Are you charged with child endangerment?

23152(a) & (b)

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WHAT’S THE DIFFERENCE BETWEEN THE (a) and the (b) count?

Normally when someone is arrested they will see that they are charged with vehicle codes sections 23152(a) and 23152(b). Many time the cops will write the numbers .08 next to the (b) count to indicate the “per se” element of the code.

In a nutshell, the 23152(a) means that it is illegal to drive while under the influence of alcohol. 23152(b) means that it is illegal to drive with a blood or breath .08 or greater. It is interesting to note that this (b) section of the code was not added until 1982. Prior to that, the prosecution had to prove you were under the influence.

So all that this means is that the prosecution has in essence 2 opportunity to prove you were DUI.

Field Sobriety Tests

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WHERE THE PSUEDO SCIENCE BEGAN

Back in 1975 the National Highway Traffic Safety Administration (NHTSA) gave a grant to the Southern California Research Institute and namely a Dr. M. Burns.  Dr. Burns took 6 of the then currently used Field Sobriety Test and tested which ones had any accuracy in determining if a person’s blood alcohol level was .10 or greater.

The study yielded three field sobriety test. The Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). These 3 FST’s came to be known as “standardized” field sobriety tests, or SFST.  The word “standardized” means that in order for the FST to be of any validity, the test MUST be given exactly the same each and every time. A good example of “standardized” is a McDonald’s hamburger, whether you buy one in Los Angeles or Japan that hamburger is going to be exactly the same, or as we say, “standardized”

In the original study there were 238 participants who had a BAC range from .00 to .15 with some of the folks receiving a placebo drink. In the original study they started with 6 test that were evaluated in determining if a person was over the .10 legal limit.  At the conclusion of the test the officer were only able to make a correct arrest 76% of the time.

What does that mean? that 24% of the time the COPS GOT IT WRONG!.

San Bernardino County License Suspensions

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1st Time DUI Suspensions

When a person is charged with a DUI they are fighting 2 different entities. The court system is trying to punish you for the DUI and the DMV is trying to take away your driving privileges. One of the first things you need to do is call the DMV for an administrative hearing. Under the law, whenever your rights as a citizen may be affected you are entitled to a hearing in order to protect your due process rights. However, you must call the DMV within 10 days of your arrest.

What if I do not call the DMV for a hearing?

When you got charged with the DUI the arresting officer gave you a “pink” colored carbon paper which is your temporary drivers license. This license will be valid for the next 30 days after the arrest. On day 31 your license will be suspended for the next 4 months. At the end of 4 months you will be eligible for your license again as long as you have an SR-22 on file with the DMV, you  may also be required to be enrolled in a DUI class.

What if I call the DMV for a hearing?

If you called the DMV for a hearing then your “pink” temporary license will be extended a couple of months in order for you to have the hearing and for the DMV to make a finding on the matter. If you did call the DMV within the 10 day limit you will then receive a “new” temporary license in the mail which will be printed on ordinary white paper. The DMV will usually give you approximately a 4-5 month extension, the technical term is called a “stay”.

How do I get a “restricted” license?

A restricted license will allow you to drive to and from work, during the course of work, and to and from your DUI classes. You will be eligible for a restricted license on day 61 following your arrest. The reason is that you had a pink temporary from day 1-30, there is then a mandatory 30 suspension from day 31-60, and on day 61 you will be eligible to apply for a restricted license. Your restricted license will be in effect for 5 months.  In order to apply for a restricted license you will need to be enrolled in a DUI class, have an SR-22 on file with the DMV, and pay the DMV their fee of $140.00.

What happens if I get caught driving on a suspended license?

In lawyer land, this is what we call a 14601.  However, under that code there are several charges and distinctions that need to be made. If you are charged with driving on a suspended license due to a DUI then you most likely will be charged with a 14601.2.   The problem then arises with the DMV in that the will suspend your license for a year and force you to install a ignition interlock device (breathalyzer) on you car.

San Bernardino County DMV Hearings

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EXCESSIVE BLOOD ALCOHOL HEARING (.08)

There are 3 issues that must be met when the DMV is trying to take away your license.

ISSUE 1:

Did the officer have reasonable suspicion to believe you were driving in violation of cvc 23152  or cvc 23153. This requires that the cop had reasonable suspicion to believe you were a) driving the vehicle and b) you were driving while over the limit. Many times the problem with the DMV’s case will be that they use hearsay to show element (a) and the issue of whether or not you were driving can be shown under element (b).

ISSUE 2:

Were you lawfuly arrested?  This is required under cvc 23612(a) and Mercer v. DMV (1991) 53 Cal.3d 753.   There are 2 elements to a lawful arrest; (a) was there reasonable suspicion for the stop (b) was there probable cause for the arrest.   Whether or not the officer had reasonable suspicion for the stop will rest on the abundant consitutional case that support and define the 4th Amendment to the United States Constitution which is the guardian to our free liberties as an American.    The officer must also establish that you were under the influence of alcohol prior to the arrest.

                  Element (a).  The officer must observe a violation of the law. His observation will be tested objectively against the reasonable officer standard.  This is the usually element where the officer’s fail to follow the U.S. Constitution. When we see a violation of the 4th Amendment we make a challenge under Penal Code 1538.5.  If the motion is granted by the court then an imaginary line in time is drawn and everything the officer observed or collected cannot come into evidence. If there is no evidence then there is no case.

ISSUE 3:

Were you driving a motor vehicle while your blood alcohol level was over a .08%