There are many ways a skilled California DUI defense attorney can argue that there was insufficient probable cause to suspect that a person was under the influence of alcohol when driving.  One of the ways is if a police officer testifies that he/she smelled alcohol on the suspect’s breath. On cross-examination, it can be stated that alcohol itself has no odor. What the officer may have smelled could have been the flavoring used in beverages including non-alcoholic beverages. Smelling “mouth alcohol” on a person’s breath does not prove that he has been drinking and it certainly does not give an officer reason to suspect that the driver has a BAC over the legal limit.

Another factor that can cause “mouth alcohol” to produce a high reading are prescriptions or over the counter medications that may contain alcohol.  Every day medications that contain the highest alcohol contents of alcohol include Vick’s Formula 44 D which contains 20% alcohol, Dristan Ultra Cold, and Cough contains 25%, and Nyquil Night Time, 25%. Taking any of these medications can cause the standard California Breathalyzer used during PAS testing to produce an inaccurate, false reading. source: http://www.sdsuduip.com/medications-containing-alcohol/

Another way for “mouth alcohol” to register a higher reading on a Breathalyzer is burping. Burping causes gas trapped in the stomach to escape into the mouth and that gas can include alcohol.  This will cause a higher than accurate Breathalyzer blood alcohol reading.

If you have an existing medical condition and are taking medications, or if you just returned from a dentist and have had certain procedures performed using alcohol-based anesthetics or dental fillings that had traces of alcohol, an inaccurate Breathalyzer BAC could result.

Mouthwash, cough drops, and other lozenges may also contain alcohol, and if used before or during driving, breath testing could cause inaccurate high BAC readings.

If you consented to take the PAS using a Breathalyzer that produced a high reading, the skilled and experienced DUI defense attorneys at our law firm will fight zealously on your behalf. California police are required to inform you that pre-arrest PAS testing is not mandatory and you have the right to refuse to take them.

The California DUI defense attorneys at The Kavinoky Law Firm have been successful in getting false and inaccurate PAS Breathalyzer tests thrown out of court. Police must follow strict procedures in the administration of PAS Breathalyzer testing and the machines themselves must be maintained in accordance with the manufacturer’s suggested recommendations. We are knowledgeable in the science behind the reasons why “mouth alcohol” can produce false, inaccurate BAC results.

In addition to large fines, driver’s license suspension, potential jail time, and a criminal conviction that can stay on one’s record for many years, being convicted of a California DUI also include other life-changing penalties. For professionals such as a medical doctor, there is the potential for the suspension or permanent loss of the professional license to practice medicine.

For medical practitioners, the Medical Board of California is the governing body that oversees medical licenses in the state of California. When convicted of a DUI, California doctors are required to immediately report the outcome of the court case to the board via an 802 Report entitled Physician Reporting – Criminal Actions, and can be located at: http://www.mbc.ca.gov/Forms/Reporting/enf-802.pdf

Section 802.1 of the California Business and Professions Code states:
(a)(1) A physician and surgeon, osteopathic physician and surgeon, and a doctor of podiatric medicine and a
physician assistant
shall report either of the following to the entity that
issued his or her license:
(A) The bringing of an indictment or information charging a felony against the licensee.
(B) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or
misdemeanor.
(2) The
report required by this subdivision shall be made in writing within 30 days of the date of the bringing of the
indictment or information or of the conviction.
(b) Failure to make a report required by this section shall be a public offense punishable by a
fine not to exceed five
thousand dollars ($5,000).23

This report is matched against the report that is received by the medical board from the Justice Department. Each criminal conviction, misdemeanor, or felony is evaluated by the board on a case-by-case basis. The board will evaluate the underlying issues that led to the arrest.

A License Suspension is Not Automatic
When evaluating a case, the Division of Medical Quality of the Medical Board of California examines the criminal history of the physician and whether or not factors surrounding the DUI conviction are “substantially related to the qualifications, functions or duties of a physician”, and could compromise the physician’s ability to do his/her job. The board tries to determine if the circumstances that surround the arrest constitutes “unprofessional conduct”. If so the board may temporarily or permanently suspend the doctor from practicing medicine.

Unprofessional Conduct
As it applies to medical practitioners, unprofessional conduct is explained in the California Business and Professional Code in Section 2239 as follows:

“(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

(b) A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The Division of Medical Quality may order discipline of the licensee in accordance with Section 2227 or the Division of Licensing may order the denial of the license when the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment. ” (1)

As a physician, it is imperative that you retain the California DUI lawyers at The  Kavinoky Law Firm. We are skilled DUI defense attorneys and are knowledgeable and experienced in all facets of your DUI defense including representation before the state Medical Board. If you have been arrested and charged with DUI give us a call immediately.

Source: (1) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=2239.

Other Sources Source: http://www.mbc.ca.gov/Licensees/Criminal_Conviction.aspx

It is unlikely that a person who receives a DUI conviction would be fired from their job, provided that this is their first criminal conviction, no one was injured, and there was no property damage. There are several instances, however, where being convicted of a DUI could lead to being terminated from your job and then finding it difficult to get a new one.

DUI Convictions That Could Lead to Job Loss

1. Second and subsequent California DUI conviction include significant jail time and therefore a person will not be able to show up for work for months or even years and it is likely the person will be terminated from their job.

2. A DUI conviction could lead to being fired if the terms of employment state in writing that being convicted of a DUI or other misdemeanor or felony crime is grounds for termination.

3. Since a DUI conviction carries a driver’s license suspension, if your job requires driving, such as a salesperson in the field, it is more likely that a DUI will lead to being fired since you can no longer perform your duties. In addition to losing your driver’s license for 6-10 months, your car can be impounded leaving you with nothing to drive. The good news is that even if your current job requires driving, your employer might be able to offer you another job within the company.

Finding Another Job

If you are fired from your job you’ll have no choice but to look for other work. This may be daunting as this is the first time you will have applied for a job while having a criminal record. While the Civil Rights Act prohibits an employer from discriminating among job applicants based on a criminal conviction, in practice, this is rarely the case. Most employers in the private sector will favor the applicant with a clean driving record over one with a DUI conviction if all other things are equal. There are also certain jobs that require driving such as bus driver, package delivery driver, railroad engineer and others where you may be fired if you are convicted of a DUI.  You could also be forced out of or prohibited from landing any job that required that you carry a firearm such as those in the security industry.

Since the penalties you may suffer from a DUI conviction extend far beyond the courtroom and could include losing your job and having difficulty finding a new one, you need to hire the best California criminal defense attorney you can find. If you are arrested and charged with DUI it is critical that your lawyer does everything possible to get the charges against you dismissed without a criminal record. Call the Kavinoky Law Firm today.

It is not necessary to be drunk to be pulled over and arrested for DUI. Consuming any amount of alcohol can give a police officer reason to believe you could be over the legal limit, arrested and forced to undergo chemical testing at the police station. That said, thousands of innocent people that are arrested every year and charged with DUI fail to exercise their traffic stop rights and unwittingly help the police make a case against them. The following are the most common rights of California drivers when they are confronted by the police during a traffic stop.

 

The Police Must Have Probable Cause

Your first right in a California DUI traffic stop is that a police officer needs a probable cause to pull you over. Common reasons to give the police probable cause include committing a moveable violation such as failing to stop at a stop sign or failing to use your turn signal, a physical defect in the safety features of your car like a broken headlight or brake light, and/or operating your vehicle in an unsafe or reckless manner.

The Right to Remain Silent

When you are pulled over you are under no obligation to answer the police officer’s questions. You have the right to remain silent. The only information you are required to give the police at this point is your driver’s license and proof of automobile insurance.

Field Sobriety Tests

If you are over 21 years old, you have the right to refuse to take field sobriety tests. Field sobriety tests include standing on one foot while counting, walking an imaginary line heel-to-toe, and the finger-to-nose test. Failing to take field sobriety tests cannot be held against you and the police are required to tell you that the tests are optional.

Search of Your Vehicle

You have the right to refuse to allow a police officer to search your vehicle except when, during a routine traffic stop the officer finds contraband such as a container of alcohol, drugs, or a weapon, or finds evidence of a crime having been committed. Once an officer thinks the driver has committed a crime he may legally search your entire vehicle.

If you are arrested, taken into custody, and charged with a DUI, you need to have a lawyer by your side to do the talking for you and to answer any questions put to you by interrogators at the police station. Call the California DUI defense attorneys at the Kavinoky Law firm today.

Sources: https://www.motorists.org/issues/dui/traffic-stop/

http://www.legalmatch.com/law-library/article/what-to-do-during-a-dui-stop-in-california.html

Being convicted of a DUI in California can have serious, life-altering consequences. While most of the penalties for DUI are straightforward, there are a number of problems that can occur in a chain reaction once you have been convicted of DUI  and they can affect every aspect of your life. The following are a few of the consequences of being convicted of DUI that you may have overlooked.

10 Frequently Overlooked Consequences of a DUI Conviction

1. Getting a DUI can be a felony and you will receive a criminal record. While most first, second, and third driving under the influence of alcohol arrests are charged as misdemeanors, those that involve injury or deaths can be charged as a felony. Other ways that a DUI can escalate to a felony is if this is a third or more DUI or if you have had one prior felony DUI conviction.

2. You could be dropped from you current automobile insurance coverage or receive a large, unaffordable increase in insurance premiums. Your insurance company will find out about your DUI by checking the Department of Motor Vehicle records whey your policy comes up for renewal or when you submit form SR-22 which is required to reinstate a suspended California driver’s license.

3. Rejected From Job Opportunities
If you were an employer and had two identical resumes where one person has committed felony DUI and a has a criminal record, and the other person has a clean criminal record, who might you favor? This logic also could apply to job promotions and salary raises as well.

4. Fired From a Driving Job
Some employers have zero tolerance for employees convicted of DUI. Occupations where one actually drives for a living such as a school or municipal bus driver, package delivery truck driver or other professional drivers may immediately fire an employee convicted of DUI.

5. Forfeiture of professional License
Trusted professionals such as surgeons, school bus drivers, and airline pilots have the lives of other people in their hands and must be trusted to be sober 100% of the time. One of the purposes of requiring them to obtain a special license is to prevent those who abuse drugs and alcohol from receiving or renewing their license. Most of these licenses are required to be renewed annually and the governing associations will be notified of the criminal conviction for DUI when a routine criminal background check is undertaken.

6. While misdemeanor DUI will most likely have no effect on your ability to get an automobile loan at an affordable interest rate or a home mortgage, felony DUI may make it more difficult. Lending standards for major purchases may require both a clean credit and an unblemished criminal background report. If you have a felony DUI conviction you may not be able to drive the type of car you want nor live in the type of house that you would ordinarily be able to afford.

7. Refusal to Obtain a Firearm
A California felony DUI conviction will prohibit possessing a firearm of any type. In addition to no longer being able to protect yourself or your family, you will not be able to get a job that requires you carry a firearm such as those in law enforcement.

8. Cost of Renting an Ignition Interlock Device
If you are required to install an ignition interlock device on the devices under your control, you will have to pay not only for the installation but also make a large deposit on the equipment and pay a monthly rental fee.

9. Lost Income due to Felony Court Appearances and DUI Classes
If you are convicted of felony DUI, you will be required to appear in court several times and that will take you away from your business and prevent you from making money during that time.

10. If you refused chemical testing and are subsequently convicted of DUI, there are additional fines and a mandatory one year suspension of your driver’s license.

Being charged with DUI in California is a serious charge that should not be taken lightly. If you are pulled over, arrested, and charged with DUI, call the California DUI defense attorneys at The Kavinoky Law Firm immediately.

According to the California Vehicle Code Sec. 23152, it is illegal for anyone who is under the influence of alcohol, or the combined influence of any alcoholic beverage and drugs to drive a motor vehicle. It is also illegal for anyone who is addicted to drugs to drive unless that person is participating in a narcotics treatment program.

The State of California treats drugged driving the same as driving under the influence of alcohol. Either a prior drugged driving or prior alcohol conviction will be counted as a prior offense. The penalties that apply to DUI apply to drugged driving as well, gradually increasing depending on the number of prior convictions on a person’s criminal record.

 

1st offense- 48 hours to 6 months in County jail, DUI courses can be 3-6-9 months

2nd offense- 96 hours to a year in County Jail, 18 month DUI course

3rd offense- 120 days to 1 year in jail, 3 year revocation no restricted license

Unlike PAS and chemical testing for alcohol, there are no BAC considerations for drugged driving. Every case is taken individually and is up to the discretion of the prosecutor. California drugged driving law defines a drug as any prohibited chemical substance regulated by the government. Medical marijuana is not excluded from the list of illegal chemical substances when it comes to drugged driving. Schedule I and II drugs such as marijuana, methamphetamine, and cocaine are the leading drugs found in California drugged driving arrests. The complete list of drugs can be found on the Drug Enforcement Administration website located at  . Once arrested and in custody, drivers suspected of drugged driving are required under California’s implied consent rule to undergo blood and urine testing.

Just because marijuana has been legalized in California doesn’t mean that you can use it and drive under its influence. Drugged driving includes marijuana and you could face the same, severe, life-altering consequences as that of a DUI conviction. Don’t assume that police will not arrest you if they suspect that you are high while driving. If you are pulled over under the suspicion of drugged driving, remember to exercise your Fifth Amendment right to remain silent and to have an attorney present when you are in custody to answer all question for you.

http://dui.drivinglaws.org/resources/californias-drugged-driving-law.htm

There is confusion as to whether or not a person who has been pulled over by the police has the right to remain silent and if so, exactly when that right begins. The police are not required to read your Miranda rights until you are arrested and taken into custody, and then only if they intend to question you further. You have the right to remain silent from the moment you are pulled over and confronted by the police. The answers you give to any questions asked before you are arrested and read your Miranda rights are considered part of the police investigation and may be used against you in court.

The Fifth Amendment to the Constitution guarantees the right against self-incrimination. In addition to this right, you are not required to help the police arrest you. You are not required to perform preliminary alcohol screening or field sobriety tests prior to being arrested. You do not, however, have a right to an attorney by the side of the road during the investigation or when deciding to submit to a chemical test.  You do have the right to refuse to answer any questions without an attorney present.  It needs to be made very clear that the benefit of non-cooperation essentially ends with arrest, and that refusing a chemical test has some draconian penalties.

Remember that when you are arrested the police are your adversary and will not encourage you to exercise your right to remain silent. On the contrary, the police may tell you that an innocent person has nothing to hide so you would naturally want to cooperate and answer their questions.

When you are pulled over by the police and suspected of DUI, the officer will generally ask you questions in an attempt to get you to incriminate yourself. Examples of questions that are designed this way are:

– How many drinks have you had tonight?

– Which bar are you coming from?

– You know why I pulled you over don’t you?

– Which drugs have you taken tonight?

How to Answer Police Questions

A person can exercise their Miranda rights from the very first moment they are pulled over by the police. The first thing an officer may ask is “how many drinks did you have” and your answer to that question should be, ” I am exercising my Fifth Amendment right to remain silent until I have a lawyer present”. If the officer persists and threatens that you are only making it harder on yourself, simply reply, “I will not answer any questions until I have a lawyer present”.

Miranda rights are designed to protect us from self-incrimination.  Your Miranda rights kick in the moment you are pulled over but the police are not required read them to you until after you are arrested. Any pre-arrest questions are a part of the police investigation and you are under no obligation to help them arrest you.

The age of majority in the state of California is 21 and alcoholic beverage consumption in any form for those under that age is illegal. California is a “zero-tolerance” state and a BAC over .01 will result in a DUI charge for an under 21-year old driver.

In order to prevent young adults from drinking and driving, strict penalties for underage DUI have been implemented. For first time offenders, jail time is 4 days up to 6 months, fines of $1400 to $2600, and a license suspension of 30 days to 10 months. Second offenders will receive 10 days up to 1 year in jail, $1800 to $2800 in fines and 2 years in jail. The same penalties apply for underage DUI marijuana as they do to underage DUI alcohol.

In addition to the stiff legal penalties, being convicted of an underage DUI can have life-altering consequences. You will be starting off your adult life with a criminal record and that alone could prevent you from getting into the college of your choice or qualifying for scholarships or student loans. Your ability to get a job or job promotion could suffer as most employers do not want the potential liability of hiring someone with poor judgment. In addition, will may not be able to purchase a firearm. If you lose your driver’s license you may apply to the court for a restricted license which would allow you to drive to school and work. Your chances of getting a restricted license are greater if you help to support your family by working or if there is an absence of public transportation.

Underage DUI Statistics

According to Mothers Against Drunk Driving (MADD), in 2014 the highest number of drunk driving fatalities was recorded in the 21 to 24-year-old age group where 30% of all drunk driving fatalities occurred.

Motor vehicle crashes are the greatest cause of deaths to young persons between the ages of 15 and 20. Each year approximately 1900 young people under the age of 21 die as a result of underage drinking.

If you are under 21-years old and have been arrested and charged with underage DUI you need to immediately call the California DUI attorneys at The Kavinoky Law Firm. Just because you have been charged with underage DUI does not mean that you are guilty. If you are taken into custody, remain silent and do not answer any questions until you have your attorney present.

 

Sources: Source: www.madd.org/statistics/

www.pubs.niaaa.nih.gov/publications/AA67/AA67.htm

Challenging the results of a blood alcohol content (BAC) test can be a large part of a comprehensive defense strategy when you are charged with DUI. Proving that blood alcohol testing has been tainted can render the test results inadmissible in court and can cause the DUI charges against you to be dismissed. The DUI defense attorneys at The Kavinoky Law Firm leave no stone unturned when challenging the police procedures pertaining to your DUI arrest.

 

The arresting police officer may choose from two testing methods to attempt to determine if you were over the limit while driving. The two most commonly used are breath tests and blood tests and both have a number of potential flaws that may render their results inaccurate or questionable.

 

Breath Tests

One of the problems with the accuracy of DUI breath tests is that the test seeks to measure the amount of alcohol that has been absorbed into a DUI suspect’s deep lung tissue. In so doing, the amount of alcohol in one’s mouth may also be recorded. Alcohol can be present in the mouth for reasons other than drinking such as one having a pre-existing medical condition, acid reflux disorder or even routine heartburn. Recent dental work can produce loose particles of dental materials used for fillings and other dental procedures that may contain alcohol. Mouthwashes, lozenges, cold medications and other over-the-counter products may contain alcohol as well.

 

Other aspects of BAC testing results that can be challenged are the maintenance of the testing equipment and the training of the officer who administers the test. BAC testing devices are sensitive medical equipment that must be regularly maintained according to specific legal requirements. A maintenance log should be examined to see if it complies with the requirements. Further, officers must be specifically trained to use and maintain these devices. The fact that an officer lacked the necessary training could render testing results invalid.

 

Yet another aspect of a BAC test result that can be challenged is that it takes up to three hours for alcohol to be absorbed into the blood stream. Given this large window of time, an individual could, in fact, be sober when pulled over and arrested, yet have an illegal BAC when the tests are given minutes or hours later.

 

Blood Tests

The accuracy of blood testing is even more suspect than breath tests because of the specialized training that is necessary to procure, handle, and preserve a blood sample. Blood samples can be tainted, improperly sealed and improperly stored once in the possession of the police.

 

Just because you are charged with DUI in California doesn’t mean that you are guilty. Forensic Alcohol Experts can be employed to challenge every aspect of the equipment, training, and results of the BAC tests that are being used against you. Challenging BAC test results may be an appropriate line of defense for you. Call us today for a free telephone consultation.