What To Expect From a DUI Arrest

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1 What To Expect From a DUI Arrest By Marcus Landsberg, IV of the

2 A first-time DUI arrest is scary for those involved. You see the blue lights in the rear view and your heart sinks. This pamphlet is the first in a series of informational pamphlets designed to help explain the basics of DUI law in Hawaii. This is provided by the Landsberg Law Office as a means of community outreach. This contains information that will walk you through the process of a Criminal DUI. THIS IS OFFERED INFORMATIONAL PURPOSES. While this will help you understand a DUI charge, IT IS NOT meant as do-it-yourself instructions. You should consult an attorney to understand the Criminal DUI process completely, although this pamphlet will help you better understand some of the words and procedures your attorney explains. While every state has DUI laws and the principles are universal, we will discuss strictly Hawaii law. ELEMENTS Every charge has elements. Elements are what the State has to prove in order to convict you or your loved one of the charge. There are FOUR TYPES of DUI. These types are drawn out in purple to the right. The vast majority of DUIs charged (90+%) are charged under the FIRST and the THIRD types. There are five BASIC elements that come into play in a DUI charge (drawn in blue and yellow). This chart explains which elements are needed for which type of DUI. OTHER ELEMENTS This simplistic chart leaves out the universal elements. These include the driver s identification and the presence of a Motor Vehicle. Another important element is INTENT, which, thanks to a recent court decision the State only has to prove for the FIRST and SECOND types of DUI.

3 BREAKDOWN OF A DUI ARREST A DUI arrest generally triggers from a ROADBLOCK or an accused TRAFFIC VIOLATION. At which points, it flows like this: Each blue box in the above chart is a step the Police will check off. Every orange oval are facts that police will write down in the average police report. These are just examples included in the cut-and-paste reports of the Honolulu Police Officers. They will put these in their report. It is up to your attorney to be able to know how to counter the police officer s accusations. Yellow and red are my informal notes. MOTION TO SUPPRESS Often, the most successful way to challenge a DUI arrest is to file what attorneys call A Motion to Suppress. A motion to suppress says that cops inexcusably broke the law during the process of your arrest. The blue squares in the chart above are the places police most often inexcusably break the law. A Motion to Suppress tells the judge Hey, the Cop can t do that! Be warned, winning this won t instantly throw out your DUI arrest. What it will do, when we are victorious, is block any evidence collected after the part of the arrest that is suppressed. The phrase Fruits of the poisonous tree comes from this. That blue square is illegal, so anything after that square is illegal fruit. Remember, any evidence that was collected BEFORE the illegality is still used against you at trial. The good news is the most damning evidence is usually collected at the end of that chart. Believe it or not, sometimes the police can excusably violate the law against you. But do not let that slide. There s always a way to categorize their violation as inexcusable. The lawyer s job is to phrase the argument in such a way that makes the judge agree.

4 SHOULD I BLOW? That s your question, right? Unfortunately it s not a question I m really allowed to answer. Everyone must make that decision for themselves. Blow Likely prosecution on 291E-61(a3). Often easier for the state to prove (no State-of-Mind element.) Not Blow Potential longer, more strict license suspension. Prosecution under 291E-68 as a Petty Misdemeanor. SENTENCING: "What am I looking at? There are two penalties you re worried about more than any other: Jail, and the license suspension.

5 As far as jail goes, it depends on the peculiar facts of your case, but the vast majority of DUI arrests in Hawaii do NOT go back to jail once they bail out. License suspension: This will be a ONE YEAR, ABSOLUTE license suspension. If you are caught driving during this time period without court permission you will get Mandatory Jail. Mandatory. Jail. There are two ways to get Court Permission to drive, a personal permit, or an employer s permit. For the personal permit, which allows you to drive anywhere at any time, you need to install an ignition interlock device. (See the next page for the chart.) THE IGNITION INTERLOCK "But I really need to Drive" Well you can. Maybe. The way that happens is through the Ignition Interlock device. This consists of a housing that goes on the steering column, a tube to blow into, and a small camera that mounts on the windshield. To start the car you'll need to blow into the tube. Your BAC (Blood Alcohol Content) will register, and it needs to be below.002 for the car to start. At random points while you drive an alarm will go off warning you that the engine will shut off if you do not blow in the tube again. Every time you blow into the tube, a camera takes a picture. This camera will save the picture along with the BAC and store it in the memory of the Ignition Interlock to be downloaded once a month by the servicer. You can also get a permit to drive an employer's car WITHOUT an ignition interlock. But to do that is much more complicated and requires a selection of sworn statements. See the chart attached to determine who needs to swear to a statement and what those statements need to contain. Ignition Interlock Experiences Anecdotally, one client told me that drinking the night before stopped him from driving to work the next day after 10 o'clock am. In addition, he informed me the Interlock servicers told him that, while they are supposed to report ANY "high" blows to start the car, they really only report if it happens more than five times. (This is NOT legal advice, and may change at any time, and may not even be true now!) Repeating the warning above, if you are caught driving without a permit (or using the permit wrong) during the time period your license is suspended for DUI you will receive mandatory jail.

6 WHAT IF THE OFFICERS DON T SHOW UP? You win. IF it happens, usually about three times. And you ve been ready every time. It s a defense, but is it really the defense you want to count on? OTHER DEFENSES TO A DUI We have already discussed the elements, we ve discussed Motions to Suppress, and we ve discussed the ramifications of a conviction. How else can we defeat a DUI arrest. Is it hopeless? The answer: absolutely not. But you re going to need a personal assessment of your case. The facts of each case is different, and every attorney should be able to do a quick consultation over the phone. But we ll need to hear specifically what was peculiar about the case.

7 A List of Defenses We ve Heard "I was almost home." Not a Defense. "I drive drunker than this all the time!" Not a Defense. "My field test was much better than my other DUIs!" Not a Defense. "But my friend was more drunk than me" Maybe a defense, probably not. "The other police officer said I could drive." A Possible defense. "I was drugged." A defense to an a2. "I didn't know how much alcohol was in that cocktail." Not a Defense. "I had to drive to the hospital!" Did you call a ambulance and there was a problem, Defense! Did you not call or the Ambulance was on its way? Probably Not a Defense. "I needed to buy more liquor for the party." Really... "Everyone rolls through that stop sign/speeds there/turns right on that red." All potential defenses to an a1/a2. "I have a personal alcohol meter and tested myself and it said I could drive." Let's try it. "But it wasn't my car." Potentially Auto Theft, let's rethink this one... Now you should have a little bit better understanding of what you re looking at for the Criminal portion of the DUI case. Keep an eye out for the second in this series of Pamphlets that cover the Administrative Driver s License Revocation Organization or ADLRO and how you can use the ADLRO procedural hearings to keep your license. Send an or call the Landsberg Law Office, and we can put you on the list so you can get future pamphlets in the series ed directly to you.

8 About the Landsberg Law Office Rooted in the desire to handle court cases "the right way" The Landsberg Law Office opened in June of Word spread and the office soon exploded. Within six months the LLO moved to its current location on the top floor of the historic Executive Centre. One month shy of the one year anniversary, Mr. Landsberg decided to open the "DUI Branch" to handle strictly DUI cases with an experienced sensibility. This pamphlet is a production of that branch. The Landsberg Law Office may be reached at (808) Also at: Drop-ins are welcome. Appointments are recommended. Version 1.2

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