To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the "caution characteristic of a sober person of ordinary prudence under the same or similar circumstances." That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the "field sobriety tests", and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it's more than a .08, the driver is under the influence.

Proving that a driver's BA is over a .08 at the time of the driving is accomplished one of two ways. The driver has a choice of either a blood test or a breath test after he is arrested. If the blood alcohol level comes back at a .08 or more at the time of the test and the test is conducted within 3 hours of the driving then the driver is presumed to have had a blood alcohol level of .08 or more at the time of driving. It's not a foregone conclusion that the driver's BA was at or above the legal limit of .08, it is rebuttable. The prosecutor will try to extrapolate (or estimate backwards) through an expert's testimony that given the known BA level at the time of the test the BA at the time of the driving was within a range that puts the driver over the legal limit.

If a breath test is chosen it can be first done in the field and often times again at the station. Depending on the department, the test in field can serve as the preliminary test first and then the forensic test (one used in court). The breath testing equipment is designed to show what the blood alcohol content is of the driver's blood from a sample of the breath. It takes a detailed discussion of the science of this to explain it fully, but the legislature and the courts have decided that for DUI purposes the breath sample, even with its limitations on accuracy, is a legally accepted method of proof of a driver's level of impairment.

The trial of a driving under the influence case is one of the more complicated trials an attorney can face. The trial will often contain eyewitness testimony from civilians, professional witness testimony from police officers, chain of custody issues with blood specimens, and expert testimony from analysts from the crime lab. An experienced criminal defense attorney can battle the prosecutor to a successful conclusion even under the most difficult circumstances when he has met these challenges before and learned how to conquer them.

The Veteran's Court has been instituted in some courts in California in an effort to acknowledge the veteran's service and deal with it in an organized, comprehensive fashion complete with Veteran's Administration participation. Yet, what happens to the veteran who doesn't qualify for Veteran's Court? While Veteran's Court is a great alternative when available, in some jurisdictions, Veteran's Court doesn't even exist. Now Veteran's Court funding, as all the system's funding, is at risk.

The prosecutor who is willing to consider the defendant's service in a meaningful way has many options at his disposal, short of entry into Veteran's Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system's attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

The prosecutor must be convinced that society will be protected and better served, not by just punishment, but by trying to make the defendant whole again. Continuances to show acceptance of responsibility, treatment to establish a drug free life, alternative sentencing if conviction is mandated are a few solutions available to the defense attorney. Every manner of alternative thinking must be on the table in the representation of the defendant who is a veteran. In order to do that, the defense attorney must be specially aware of the unique problems and solutions available to our military.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran's military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran's (defendant's) service has helped protect the very system he now finds himself in.

Too often the prosecutor has the attitude that this veteran (defendant) isn't any different than anyone else. The common mantra of the prosecutor is, "Everyone should be treated the same no matter what their personal story or background is. Justice is blind".

To that, I respond, justice has to open it's eyes to who people are, what caused them to come into contact with law enforcement, and if they are veterans to appreciate the trauma they have suffered in the defense of our country. True justice cannot afford to be blind. The veteran deserves to have his service recognized as a cause of his criminal conduct and every effort needs to be made to recognize this in fashioning a resolution of the criminal case. Rehabilitation and not punishment must be the goal. To do anything else is just criminal.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn't necessarily shared by the lawyers in the class because they don't have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What's a good settlement?

The hardest issue for the lawyer teaching other lawyers is to make the class interesting and informative. Maybe that's the challenge for every teacher. But, lawyers being who they are, become a critical crowd and one that already feels they know what they are doing, even when they don't. However, I guess the crowd of lawyers liked the "inside" knowledge and tips I gave them because they asked me back.

In order to be released when you are arrested, you will either post bail or be released on a written promise to appear on a specific date. One of the problems that the person arrested has is that if he is from out of state he or she won't be in California when the court date comes. When the court date arrives, if the Defendant doesn't show up, the judge has no choice but to issue a bench warrant for the absent Defendant's arrest. Any bail that is posted will be forfeited. An additional charge of failing to appear will be added to the Defendant's charges and pose an additional problem.

Once the warrant is issued for the Defendant's arrest he or she becomes a fugitive. Several common issues can present itself to people with warrants out for their arrest. For example, if the Defendant goes through an airport, a security check will show the arrest warrant. Once that happens, depending on where it occurs, the Defendant could be arrested right then and there at the airport. At this point the person arrested would have to post bail at an increased amount from the original arrest.

The way to solve this problem is for the person arrested to hire a lawyer to appear at the arraignment on behalf of the Defendant. In California, a lawyer can appear for a person arrested on a misdemeanor without the Defendant actually appearing. Even if a warrant has issued for the Defendant for failing to appear at the arraignment the lawyer can appear, with the court's permission, and have the warrant withdrawn (recalled) and resolve the case without the Defendant ever personally appearing in court. All paperwork can be handled by the attorney sending it to the Defendant for signature out of state.

What is important is that a Defendant who is out of state, for any reason, hire a lawyer to appear for him or her so that an arrest warrant does not go out, and if it does, to recall it without the Defendant coming back to California. If done right the negative consequences for not being present in court as promised can be minimized by a good criminal defense lawyer.

There is even a Standardized Field Sobriety Testing Manual (SFST Manual). It covers everything the arresting officer is trained to observe. In my opinion, the Field Sobriety Test (FST) is nothing more than a balance and coordination exam. Many of my clients say that they can't do the FSTs that are given on the side of the freeway, even if they were alcohol free and trying the tests in a well lighted, quiet room.

However, before you even get to the step in the process where you are standing by the side of the road, trying to tap dance on the head of a pin while the officer breathes down your neck and trucks are thundering by, the officer has watched closely for several things. The SFST Manual tells the officer that he should look for whether or not there is an attempt to flee; slow or no response to the emergency lights from the police car; any abrupt swerving; how the vehicle stopped; and whether or not your car hit the curb or some other object.

Of course, once the officer has contacted you he is looking for your response to his questions. He observes your reaction to his request for your license and insurance. Our DUI defense starts with showing just how well you did from the beginning of the contact with the officer. We take the focus off the negative and put it where it belongs, on all the things you did correctly when you were stopped.

The police don't have to give you your Miranda Rights unless they are interrogating you and you are in custody. If both of these requirements aren't met then Miranda simply doesn't apply.

What happens if you are arrested for a DUI? You are stopped by the police, you are taken out of your car, you're certainly not free to go, and you are being questioned about how much you have had to drink, where and when you've been drinking, and a whole host of questions that obviously incriminate you! Surely, you have to be given your Miranda Rights, and if you aren't then nothing you said can be used against you, right? Wrong.

The Supreme Court has ruled quite clearly that even though you aren't free to go and even though you are being interrogated, you don't have to be given your Miranda warnings in a DUI situation. Believe it or not, you haven't been arrested in the strictest sense of the word so Miranda doesn't apply in a DUI investigation until you have been arrested! Of course, by then you have probably given them everything they want to know.

However, sometimes there are areas that can and do require Miranda and the admission of those statements you gave can mean the difference between conviction and going free. A good defense lawyer can find those violations of Miranda and other defenses which can mean the difference between winning and losing. Don't go into court without your best defense, a good criminal defense lawyer. He can make all the difference.

Recently, a child abuse charge was alleged against a couple who allowed their child to smoke marijuana. The child was only a toddler and the couple took a video of the incident. This kind of case is one where the abuse is obvious. If a 23 month old baby is smoking pot the charge of child abuse is self-evident. It seems that it would go without even saying it but a baby should never be allowed to smoke let alone smoke a controlled substance no matter whether we think marijuana should be legalized or not.

However, what about driving under the influence of alcohol and having your child in the car seat? Someone who drives their car while under the influence can and will be charged with child endangerment (Penal Code section 273a). The prosecutor will accuse you of endangering the health of the child by driving your car while under the influence and even though the child is strapped into the car seat, the theory is that the child is in danger because you, the driver, aren't as able to care for his or her safety as if you were driving sober. It increases punishment for driving under the influence and labels you as a child abuser even though you didn't have any intent to strike, molest, or otherwise hurt your child.

If you are charged with child abuse you need to realize that it is very serious and the District Attorney can charge you with crimes that allege it in many forms. It is crucial that you seek advice from a qualified expert in criminal law as soon as possible.