The Basics- Probable Cause For Being Pulled Over

Drinking and driving- at its basic level, we've all done it. The point it becomes illegal is when a driver's BAC is above .08%, or "his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances" (CALCRIM 2110, Jury instruction).

On a Friday, Saturday, or holiday night/season, police are looking for excuses to stop people to see if they have been drinking. The best way to avoid being pulled over is to not give an officer justification, or probable cause, to stop you. The state does not need to prove "bad driving" to charge a DUI- only driving, which in California is any volitional movement of a vehicle. This section may also help remind drivers of what officers are looking for in general, and how either more cautious driving, or correcting minor vehicle code violations, will help unwanted law enforcement contact.

1) Make sure that your car has no visible vehicle code violations. A DUI investigation begins every time an officer pulls over a vehicle for any vehicle code violation. Make sure all the lights work on your car (or the car you drive), including the license plate light. Don't drive the car if it has a large crack in the windshield, has illegal window tinting, or the rearview window is obstructed. Also, don't drive a car that has expired registration. Stay home, take a cab, or offer to be the sober driver in another car.

2) When you get behind the wheel, put your seatbelt on. Countless DUIs have been initiated for nothing less than that. Besides, someone else might hit you and sometimes defensive driving isn't enough.

3) When driving, don't commit any moving violations. Don't speed- alcohol reduces inhibitions and increases risk taking behavior. Don't do a "rolling stop," shift lanes without signaling, make a right turn on red in an unfamiliar intersection, enter an HOV lane crossing a double yellow, etc. I've seen drivers go the wrong way on one-way streets in confusing downtown San Diego- it doesn't matter. If confused or lost, stop the car.

4) Don't create distractions for yourself. First, leave your phone alone. A cell phone to the ear is probable cause (CA VC 23123), and dangerous. If you get a call you need to take, pull over. Turn the radio down. Alcohol affects "divided attention"- doing two things at once. Playing with your radio, checking messages, etc. divides your attention into three, four, or more tasks which increases the likelihood of either getting into an accident, or doing something a cop will pull you over for. Concentrate on driving- even if you don't feel impaired, you might be.

5) Reduce external distractions. This includes flirting with the next car, or getting into a "road rage" incident. Do not aggressively interact with another vehicle. You never know who another driver is, and it could be an off duty cop with a vigilante complex. San Diego Charger Steve Foley had his career ended by an off duty police officer that shot him. Albeit an extreme example, but anyone can call your car in. I prosecuted a case where an off-duty firefighter called in a road rage incident. The jury found him guilty of a marijuana DUI.

6) Choose your route to get home. Avoid avenues that are heavily traveled by people, or that are from bar and restaurant hotspots. Police know this, and will patrol those areas, or set up checkpoints at popular routes. And concentrate on getting home, not getting a burrito or cheese fries. Seriously consider the benefits and risks of a cross-town liaison.

7) If you have been drinking, stay away from the car. That includes driving it across the street for better parking, or going one block away to show your friend your motorcycle. I've seen DUIs in both circumstances. Again, in California, you can get a DUI for ANY volitional movement of the car. In Vermont, you can get arrested for a DUI for opening the car windows (V.S.A. 1201(a)(2), State v. Kelton, 1998).

8) Lastly, if a designated drinker, don't drive. If your designated driver makes a mistake and drinks, don't step up to the plate. People with a high tolerance are more likely to get a DUI, as they are the ones others rely on in a clutch situation. Alcohol affects are felt mentally, including decision making, before they are felt physically. Ironically, this includes your ability to assess your own impairment. Be a hero and pay for a cab, but don't risk a DUI.

Keep in mind that you are not immune. Socio-economic status has nothing to do with who gets a DUI. This includes you. I've defended both millionaires and single mothers on public assistance.

Overall, many people have a drink or two with dinner and handle it responsibly. The bigger point is not to put yourself in a position to justify your responsible drinking to a police officer, a judge, or a jury.

Next I will discuss what to do if pulled for suspicion of driving under the influence. Please post any questions or comments you may have, or contact me directly. Remember, the above is for general informational purposes and not specific legal advice. Finally, nothing here, or posted elsewhere on this page, establishes an attorney/client relationship.

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What Are Some Options When Being Arraigned For OUI In Massachusetts?

The last time the Massachusetts OUI laws saw a significant modification the legislature had one thing in mind. They wanted to get accountability as soon as possible. The changes to the law made the prospect of immediately pleading guilty extremely attractive. The statue made provisions for the issuance of hardship licenses almost soon as your case gets resolved. Simply put, for first time offenders once you plead guilty you can, three days after registering for the alcohol awareness program apply for a hardship license. For all practical purposes you will be driving shortly after you plead out. Consequently, many of my clients now ask about their options when being arraigned for OUI in Massachusetts. This post discusses some of the pros and cons associated with expeditious drunk driving pleas.

Massachusetts OUI Defense Lawyer

The Benefits to Pleading Guilty at Your Arraignment

Oftentimes when people get arrested for OUI the bail commissioner sets a bail. This is usually forty dollars. Once bail is paid you will be released. Because run of the mill drunk driving cases are not the most serious offenses your arraignment might not be scheduled for a couple of days. If this happens your lawyer will be able to bet a copy of the complaint and police report before the arraignment. This will permit time to evaluate the case prior to arraignment. If the arraignment is the day after your arrest you will get these documents at that proceeding. Regardless, you should have some time to discuss your options with your lawyer. A good DUI lawyer can quickly evaluate the likelihood of success in fighting your case.

So what should you do? If the case is one that you will not likely win pleading guilty at arraignment might make the most sense. You will get your driver’s license back rather quickly. You can get into the alcohol awareness program right away and get this behind you. Most judges will continue your case without a finding and impose the 24D program. Upon a successful completion of your probation you will not have a criminal record. No perspective employer will know that you had an OUI case. It is usually less expensive to plead guilty at arraignment most lawyers will charge you somewhere between one thousand and two thousand dollars to plead you out at arraignment. The additional court appearances associated with litigating your case will increase the cost of your defense. Trial first offense DUI cases in Massachusetts cost between three thousand five hundred dollars and ten thousand dollars.

When You Should Not Plead Guilty At Arraignment

If the motor vehicle stop violated your constitutional rights you will want to file a motion to suppress. If you win the case will be over. If you did not take a breathalyzer test and there was no accident you might want to try your case. If the breathalyzer test was administered improperly your lawyer will try to get the results excluded. If you took a breathalyzer test and the result was under a .08 you might want to refrain from pleading guilty at your arraignment. Basically, in cases where you are likely to win or where discovery might lead to success you probably should not plead guilty. A good lawyer can advise you about your rights in this regard. Remember, once you have been charged hire a lawyer. There are many things to discuss prior to arraignment all of which will help you make the decision of whether to plead or pursue your defense.

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On Being Treated Unfairly

Some potential and current clients I talk to feel the police and the state’s attorney’s office are treating them unfairly.  This is frequently not the case.  If a guilty person wrongly feels the State is treating him unfairly, in my experience, the case usually fits in one of the following categories:

The Routine. Sometimes the questioning defendant is simply being treated exactly the same as thousands of defendants before him.  He may not understand this because the sentence seems harsh now that it is being applied to him, he may have heard stories (either false or involving different circumstances) of the State treating others better,  or he simply does not realize that this is how things work in cases like his.  Regardless of the reason,  the defendant is not being treated particularly worse than anyone else.On the Radar.  Trouble begets trouble.  Sometimes a particular person gets on the radar of police or prosecutors.  As a general rule, the more criminal history the person has, the harsher the sentence he will receive.   The key here is to simply quit violating the law; a judge or prosecutor will not be sympathetic to the suggestion that a person’s misdeeds should be ignored since the State is watching the person closely.But, You Did That. Not all crimes are equal.  A person possessing a Class C misdemeanor amount of marijuana will get a slap on the wrist (in the grand spectrum of things); a person trafficking pounds of pot will not be treated so lightly.  Child molesters are universally reviled.  It is always a terrible idea to stick a gun in a person’s face.   Serious consequences follow the commission of serious crimes and being a first offender probably won’t count for too much.

Now, of course, there are some cases where the State does, in fact, treat the defendants unfairly.  It does happen.  The most obvious example of this is where an innocent person is charged with a crime.  But, often times a defendant’s feelings about being treated unfairly are just wrong.

Jeremy Richey

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