At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Appeals are currently pending, which will hopefully reverse that decision to exclude DUIs from diversion. If successful, diversion would once again be applicable to DUIs in California. Please contact our office with any questions. Email us at abortellaw@gmail.com OR Call us at: (415) 886-6333

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Law Offices of Aaron Bortel

Q: I Refused The Breathalyzer, So There Will Be No Evidence Against Me.

A: Just because you refused to take the breathalyzer, there are other options when prosecutors are choosing evidence to use against you. From other tests to the observation of the officer, you are not out of the clear. Since a DUI can be broken into two charges, even if you were not over the legal limit, you can still be charged with impaired driving if you did not display the care or caution a sober person would have.

Courts in Marin County do not need to have a number to convict you. From the field sobriety tests to several other factors like slurred speech or an unsober demeanor, the prosecutor has a range of options to use against you. A forensic toxicologist will also be used often in trial. Even though the legal limit is 0.08, they will testify that even at .05 most of the population will be impaired. Refusing the breathalyzer may work in some states, but in California and Marin County, there is no such luck.

Q: I Think I Performed Rather Well On The Standardized Field Sobriety Test, So, It’s Going To Be An Easy Case, Right?

A: Just because you believe you did well on the field sobriety tests does not mean that it is the reality of the case. There are also statistics used by the officers and prosecutors that predict the probability of intoxication based on fractional differences in performance which can be used against you.

It is also extremely rare for an officer to testify that a defendant did well on all of the tests. Even if you passed one or some with good results, the less adequate performance of the others will still be used in the prosecution’s favor.

For example, in the horizontal gaze nystagmus test, just because one follows the light or finger or pen without moving their head does not mean they did well on the test. In reality, the officer is looking for the involuntary jerking of the eye.

Even with the walk and turn test, factors like putting your arms out, not counting, or miscounting steps can allow the officer to say you made a mistake. Even if they say you did not touch your heel, there is still reason to defend it since you are allowed to fall within a half an inch of it.

Unfortunately, while we hope it is not the case often, we have seen officers lie about the results of the tests, like saying drivers did not start or stop the one leg stand test inn the proper time. When it comes down to your word against the officer’s, it’s a difficult argument. This is why getting the video is so critical in many DUI cases in Marin County.

Even if you think you did well, it does not mean you did. However, there are other defenses to it like being tired if it was early in the morning or being nervous around the officer.

Q: I Refused Both The Breathalyzer And The Standardized Field Sobriety Test, There’s Definitely No Evidence Against Me. I Should Be Home Free, Am I Right?

A: Even if you refused all tests, it does not mean you are home free. They will use the “consciousness of guilt” factor against you. Since a sober person would have nothing to hide, you must have been hiding something. Even if you testify you were exercising advice you previously found from an attorney by refusing, there are other pieces of evidence they can use against you which can give them the push they need to convince the court like the odor of alcohol or things of that nature. Since the ramification of DUI cases can be so severe, ensuring you do everything in your power and are extremely cautious is essential.

Q: The Police Officer Didn’t Read Me My Miranda Rights, So The Case Will Be Dismissed.

A: An officer is allowed to ask general information questions without reading your Miranda Rights since the only requirement for being read your rights in a DUI arrest comes after the arrest (usually the cuffs going on and further questioning). This means that unfortunately, the officers will try to find out as much information as possible to bolster their case before making the arrest.

Once they make the arrest after gathering the initial information is when you are allowed to choose a blood or breath test, which you are required to take or face losing your license for an extended period. Additionally, your Miranda Rights only protect the dissemination of non-voluntary information, which means that if you voluntarily tell the officer something, it can be used against you.

Q: The Officer Was Rude To Me And I Feel Like I Was Forced To Say Or Do Things Because I Was Intimidated. That’s Always Caught On Camera, Right?

A: Even if an officer is caught being hostile or rude on video, it does not guarantee anything since it’s not necessarily an officer’s job to be pleasant. However, most officers I have come across are pleasant and understand the difficult situation you are in as long as the driver cooperates. However, if the officer coerces you, or impeded any of your rights and it is caught on camera, we will attack that point aggressively.

Q: The Police Officer Was Very Nice To Me And Assured Me, As I Was Getting Arrested, That I Wouldn’t Have To Worry Even Though I Was Getting Arrested That It Was Just All Part Of A Formality.

A: An officer being nice and saying you do not need to worry does not mean that it is the reality of the situation. Most of the time, they are just saying this to keep the situation calm and amiable it makes their jobs easier. Additionally, it is a similar case why they will not show you the results of your tests. If they did, drivers may ask to retake them or argue the results which would make their jobs more difficult or would not be allowed.

Regardless of what an officer says, once you blow at or over the legal limit, you will be arrested. Any niceties beyond that are their attempts to keep the situation deescalated and calm.

Q: My Tolerance Level For Alcohol Is Really High. It Takes A Lot To Get Me Intoxicated. I Can Just Do The Standardized Field Sobriety Test To Prove That I Am Fine, Right?

A: Having a tolerance for alcohol is not typically beneficial and will not help your case since they can lean on the other charge to build their case. However, even if you feel unimpaired, I would not recommend taking the field sobriety tests. Regardless of the situation, if you blow over a 0.08, you will face trouble.

Q: I Am A Professional In The Education Field Or I Am A Professional In The Healthcare Field, The Court Should Go Easy On Me, Right?

A: While a health or education profession may help in other kinds of cases, it often will not in DUI cases. It may even make the educational licensing boards less likely to recertify a teacher which can affect future employment. Especially with nurses, the likelihood of facing severe consequences in their field along with discipline is high. It is a similar situation with doctors but nurses historically have been treated much more harshly.

It is important to listen to your attorney throughout the process since the advice they offer can save you much trouble down the road when dealing with disciplinary boards or other factors. Additionally, administrative attorneys can help represent you to those boards, which some DUI attorneys will also help with. A reduced charge can often help with the BRN.

Q: I Am A Single Mother And The Courts Will Be Lenient With Me, Right?

A: Being a single mother will most likely not help you with any aspect of court proceedings or negotiations. In fact, the biggest implication of being a single mother and facing these charges will be getting your children to and from school. Unfortunately, there is not much leeway given by the courts and they are not forgiven in DUI cases. The exception is in San Francisco where we can now often get what’s called caretaker diversion.

Q: My Medications Were Prescription, So I Don’t Have To Worry, Right?

A: Rectification: Unfortunately, even if a drug you were taking was prescribed, you may still face trouble. If it caused you to be impaired, it will still count as impaired driving and carry equally harsh penalties. Additionally, Marin County has been seeking these kinds of cases much more frequently as well, meaning that if you are on prescription drugs, it is in your best interest not to disclose that information to the officer. The Marin County DA may consider a reduced charge in some prescription drug cases.

Q: If I Was Convicted For A DUI In Marin County, I Can Just Expunge It Right Away And Get It Off My Record, Right?

A: Your attorney can help you seek an expungement, and in some cases, you can begin before your probation is over by requesting early termination of probation. However, probation is set at a certain time for a reason, and these requests are not often granted. The time parameters are to ensure you behave as you should. The courts conditionally release you to the community for three years on a DUI where if you do not get in additional trouble, you will not go to jail.

The goal of probation is to prove that you can stay out of trouble. So, what they’ll do is you’ll have 6 months in jail hanging over your head while you are being conditionally released to the community.

Q: How Will A First Offense Help Me In A DUI Charge?

A: DUI cases are serious regardless of which offense it may be, so do not expect extreme lenience just because it is your first mistake. A first DUI can bar you from entering Canada for a significant period of time.

Q: What Are The Penalties Associated With A First Offense DUI Conviction?

A: The lowest fine I’ve seen anywhere recently is typically around $1800 and can be as high as $2400 or $2500. You may also be required to attend a work detail or acquire SR-22 insurance which is additional coverage resulting from your charge. While you will have to attend a three month DUI school, you will most likely not face jail time in a first offense if there were not aggravating factors.

While this is not allowed to be guaranteed, it is for the alternative to happen.

Q: I Was Drinking, So I Pulled Over The Side Of The Road To Wait It Off But The Police Officer Insisted On Arresting Me Even Though I Wasn’t Driving. I Should Have An Easy Case Though, Right?

A: Even if you pulled over and are not driving it does not protect you from a DUI automatically. However, the argument that the driver was trying to do the right thing can be used, but it may not get you out of trouble. Even though you were trying to do the right thing, you still attempted to drive in the first place. These situations are almost always charged as DUIs by the Marin District Attorney’s office.

Q: Should I Just Throw Myself At The Mercy Of The Court?

A: Everyone is entitled to a lawyer and you should absolutely use that resource. Pleading guilty to begin a case is almost never the best strategy. While some attorneys will just go in and plead guilty find one that will fight for you and your rights every step of the way. Do not throw yourself at the mercy of the court. A good DUI lawyer will investigate all areas of your case from the stop, contact with police, procedures, chemical testing, video and audio and anything else that can possibly help.

After you have been arrested, do not talk to anyone other than your lawyer. Almost all good DUI lawyers offer free consultation, and you can find the help you need. If they are not willing to talk to you for at least half an hour to an hour about your case, hey are probably not the right attorney for you.

Find a lawyer with the qualities previously discussed and one who you can communicate well with. This will give you the best foundation to find the favorable results you seek.

Q: A DUI Is An Impossible Battle That I Am Doomed To Lose.

A: I completely disagree with that statemen. I win DUIs in court, I win them at DMV. And if I can’t win them, very often, I will get the charges reduced. I will give you some examples. I had a case with a 0.30% blood alcohol level. I won that case in court, I got that case dismissed, and I won that case at DMV. Nothing happened to my client’s license, they do not have a criminal record and the case was dismissed. Other examples are numerous; I could talk all day about cases that I’ve won where someone came to me and thought they had no chance of winning it at all. Recently I won a case where the officer said my client was going over the line, we got the video in that case and we were able to show that they were not going over the line, the judge dismissed that case and I won that case at DMV not on that issue but on a different issue. I won that because the machine had issues and the officer didn’t wait long enough until he had the client blow into it again.

There’s no reason to go and find someone who doesn’t do mainly DUI defense because most lawyers out there who do general criminal defense are very good in that but they are general practitioners, it’s like a doctor who does a little bit of everything. When you have a specialized problem, they send you to a specialist. There are a handful of DUI lawyers in Marin County who do mainly DUI defense or like me, exclusively DUI defense, nothing else. And that’s the type of lawyer that you want to talk to. That’s the type of lawyer who understands the different defenses, who studies DUI law, who attends conferences all over the country, who has manuals in their office from all different areas of DUI law, the sciences, defenses, everything. These lawyers are trained and constantly keep up to speed with all the DUI laws and defenses. That’s the type of lawyer you need, that’s a person who can help you when you are feeling helpless.

I’ve had so many people coming to me and saying, “Hey, I think this is hopeless. There is no way I can win but someone told me to talk to you”, and what I would tell them is there’s no promises or guarantees about winning; hard work, knowledge and lots of other things go into your odds of getting a better result on a DUI case than you would get than if you just went in there with someone who didn’t know what they were doing or who is not as experienced as they should be. So, find the right DUI lawyer for you. They are out there.

Q: I’ve Researched Enough On The Internet And Gotten A Lot Of Information On What To Do About A DUI And I Also Have A Friend That’s Gone Through Similar Experiences. I Can Probably Beat This Case On My Own, Right?

A: If you even want a chance of winning the DUI case or a DMV hearing in Marin County, you must find an experienced drunk driving defense attorney who you can communicate with. Just because information is available online, that does not mean it will work the same in your case. There is too much poor information regarding DUI law and how to handle the cases for you to find the needle in a haystack.

Q: My Friend Had A DUI And They Were Intoxicated. They Said I Would Lose Anyway So Why Hire A Lawyer?

A: Every case is different, and just because your friend received one result, that does not mean you will as well. While your friends may have good intentions, you are always better off finding a lawyer to advise you on what to do next.

Q: I Have A Friend Or A Relative That Practices General Law. They Consider Themselves To Be A Master Of All Trades. They Ca Help Me Out With This, Right?

A: While almost any lawyer can help you with the basics of almost any case and do the bare minimum, it is crucial to find an experienced DUI lawyer to help with your case. If you do not, you risk hiring sub-par help in one of the most consequential cases you can find yourself in. It is always better to go with experience rather than familiarity.

Q: Should I Only Go With A Lawyer That Guarantees Me Success?

A: A lawyer is not allowed to guarantee success. They will lose their license if they do so. If you find a lawyer who guarantees you a specific outcome of a case, do not hire them. If you were to ask for a guarantee in writing, they will not give it to you, since every case is different and no results can be promised.

Q: A Lawyer Is A Lawyer. Should I Shop Around And Find The Best Deal.

A: A common saying when finding a lawyer is “you get what you pay for”. You will most certainly be able to find an attorney with a cheap rate, but in all likelihood, that will also mean cut rate service.

While not everyone can afford the best of the best, many lawyers will offer payment plans to make their services more affordable if they believe in your case. However, if a lawyer immediately quotes a price during the initial consultation, they are simply trying to feel out your ability to afford their services, not actually help you. Try to avoid those attorneys.

Q: I Already Had A DUI Before. The Result Wasn’t What I Was Hoping For. I Don’t Think Hiring An Attorney Would Be Beneficial And I Should Just Throw Myself To The Mercy Of The Court.

A: In Marin County, subsequent DUIs can mean serious time in jail, Sherriff’s work programs and increasingly suspended or revoked driving privileges. While these are always an option, many people wish to avoid them. If you do as well, do not throw yourself to the mercy of the court. Hire an experienced attorney ad let them work for you to try to find a more favorable solution to the situation you have found yourself in. Almost always there is a strategy to find mitigating arguments or negotiating the penalties down from what they may have initially been.

For more information on Myths Regarding DUI Charges In Marin County, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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Call Us 24/7: (415) 886-6333
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