Orange County Criminal Lawyer Blog

Many people do not realize that DUI cases resulting from law enforcement contact at a DUI checkpoint are some of the most beatable. The reason for this is that there are very strict rules about how a DUI checkpoint must be conducted. These rules are rooted in the U.S. Constitution and our fundamental rights (yes, we still have those) as a free society. Thankfully, some of those fundamental rights mean that the government does not have the right to set up roadblocks to contact citizens, unless they follow these very strict guidelines. Inevitably, in a DUI checkpoint case, many of these guidelines are ignored or downplayed, leaving gaps in the prosecution's case that a trained and dedicated DUI lawyer can take advantage of.

One of these strict guidelines is the requirement that the location of the checkpoint be disclosed and published in the media. For those of you planning to exercise your right to socialize responsibly on New Year's Eve, but still need to drive, here is the latest list of Orange County DUI checkpoint locations for New Year's Eve. Note that the less descriptive the disclosed location is, the MORE DEFENSIBLE cases are arising from that checkpoint.

Westminster 8pm to 3am UNDISCLOSED location

Laguna Beach: "saturation patrol" disclosed at "ROVING."

La Habra: "saturation patrol"

Placentia: "saturation patrol"

The actual press release from the OC Sheriff's Office can be found here:

http://www.ocgov.com/vgnfiles/ocgov/Sheriff-Coroner/Content/Press%20Releases/2011/2011-12-27_Avoid_DUI_Campaign_Update.pdf

The "Buzzed Driving is Drunk Driving" campaign by the Ad Council has been around for a while now. I watched another attorney do a DUI trial in approximately 2006, and after the jury convicted her client, one of the jurors cited that ad campaign as one of the reasons they convicted. "It doesn't matter that there was reasonable doubt as to whether the defendant's blood alcohol level was at or above .08," this juror said, "buzzed driving is drunk driving and the defendant admitted to having three drinks so he must have been buzzed."

This is what we are up against as defense attorneys, but that is why it is important to identify and remove jurors who harbor these beliefs before the trial even starts. The ability of a juror who is hell-bent on convicting to rationalize by any means necessary notwithstanding, catch phrases like "buzzed driving is drunk driving" are some of the jury poisons that a good defense attorney must take pains to neutralize before beginning any DUI trial.

The reason it is such a poisonous ad campaign is because it is a blatant misstatement of the law.

The law in California allows people to drink and drive. Allowing this is a public policy choice inherent in making it legal to drive with a blood alcohol level of .079. Had the State wanted to make all drinking and driving illegal, it certainly could have done so, by lowering the legal limit to .01. As it stands, though, it is perfectly legal to drink and drive as long as your blood alcohol does not exceed .08 while you are doing so. The legislature chose to balance their public safety concerns with the concerns of the restaurant and bar industry, along with alcoholic beverage manufacturers and retailers, all of whom would be seriously hobbled by a law that made it illegal to drink and drive. The United States government made the same balancing calculation and adopted the same standard, .08, when it made federal highway monies contingent upon states all lowering their legal blood alcohol levels to .08. There should be no doubt that it is legal to enjoy alcoholic beverages and then drive in California or anywhere in the United States.

It is ironic, then, when that same United States government, working through the Ad Council (the campaign is funded by the U.S. Department of Transportation) insists that "buzzed driving is drunk driving." "Buzzed" is a subjective term, but it is commonly used to mean that someone feels the effects of the alcohol they have consumed. This, of course, can happen at very low -- and very legal -- blood alcohol levels. In fact, by the common meaning of the term, nearly all drinking and driving could be termed "buzzed" driving, which the government has explicitly made LEGAL.

The real problem is that there are two ways to be guilty of a DUI in California: 1. The commonly-known .08 standard; and 2. Even if there is reasonable about as to whether the driver's blood alcohol level was at or above .08, if the driver was impaired by alcohol to the point that he/she was "no longer able to drive a vehicle with the caution of a sober person, using ordinary care." With media-invented memes like "buzzed driving is drink driving" bouncing around in their heads, it is all too easy for many jurors to find people guilty of DUIs when they are, in actuality, not guilty and simply trying to drink and drive responsibly, which is their right under the law.

This is why winning a DUI case is so difficult for most attorneys. There are many moving parts and many pitfalls to making sure a jury understands not only the law and the science, but the public policy surrounding the California DUI laws. Thus, if you are being accused of a DUI in California, you need an experienced DUI attorney who can not only guide you through the system, but can also guide a jury.

You may have heard of the latest National anti-DUI ad campaign, called "Drive Sober or Get Pulled Over." In conjunction with that highly-funded and highly-visible national ad blitz, Orange County Sheriff announced it would be stepping up its own patrols and arrests. In fact, they are taking "Drive Sober or Get Pulled Over" one step further, as they will be setting up roadblocks to stop drivers regardless of whether they're driving sober or not. You might call it the Orange County "Drive Sober, Get Pulled Over Anyway" campaign.

In America, land of liberty, the government is not allowed to suddenly decide to set up roadblocks and force you to prove your innocence to them. That would be a violation of Constitutional rights. In fact, these Constitutional Rights apply even in Orange County and, though begrudgingly, Orange County law enforcement tries to work within that constitutional framework, at least when it comes to DUI checkpoints.

Among many other technical regulations that law enforcement must abide by in conducting a DUI checkpoint, one of them is publicly announcing where the checkpoints are going to be conducted. Here is what they announced in a recent press release:

Fri. Aug 19, DUI/DL CHECKPOINT 1800-0100 hrs, City of Cypress

Fri. Aug 19, DUI TASK FORCE OPERATIONS 2000-0400 Cities of San Clemente, Dana Point & San Juan Capistrano

Sat. Aug 20, DUI/DL CHECKPOINT 1900-0300 hrs, City of Tustin

Fri. Aug 26, DUI/DL CHECKPOINT, 2000-0300 hrs, City of Anaheim

Fri. Aug 26, DUI TASK FORCE OPERATIONS, 2000-0300 hrs, Cities of Irvine and Newport Beach

Sat. Aug 27, DUI TASK FORCE OPERATIONS, 2000-0300 hrs, Cities of Garden Grove, Anaheim, Placentia and Buena Park

Thurs. Sep 1, DUI CHECKPOINT, 2100-0300 hrs, City of Cypress Fri. Sep 2, DUI CHECKPOINT 1900 - 0300 hrs, City of Mission Viejo

Of course, they have provided only bare-bones information about their checkpoints, which may not be enough to meet the constitutional requirements. Meaning if you are arrested at one of these checkpoints, FIGHT THE CASE with a good lawyer, and you may be surprised at the results.

Drive carefully, don't answer police questions, don't take field sobriety tests, and don't take any chemical tests before you are arrested (AFTER you're arrested you must take a blood or breath test or else you lose your license for a year, but if you follow the above advice, it greatly decreases the chances that you'll be arrested) . . . and avoid those checkpoint areas listed above. If you need us, we're here to help, call (949) 873-2724 to speak to an experienced DUI lawyer.