Law Offices of David ​Martinez


Should I Plead Guilty? 

Here's some things to consider:

Pleading guilty to charges of DUI will result in a criminal conviction.   By pleading guilty, you will have relieved the government of the difficult burden of proving to a jury of your peers that you were driving under the influence.  If you plead guilty to DUI, in essence. you will be authorizing the court to convict you based on probable cause to arrest - a burden far less than proof beyond a reasonable doubt.

By pleading guilty you can generally begin to put the conviction behind you and move on.  This is true in some, but not in all cases.  For example, if you did not actually violate the DUI statute, your suspicions that your plea was a bad idea may set in like serious buyer's remorse.  In addition, there are significant adverse consequences to a DUI conviction.

 If you choose to fight the DUI charges, the government will have to prove you guilty beyond a reasonable doubt, which is not an easy burden.  With carefully exploited defenses, and the fact that DUI is proven based entirely on circumstantial evidence,the government may not be able to present sufficient evidence to prove its case. 

What Are Typical DUI Charges?

In an alcohol related DUI case (i.e. not drugs), where no one was injured in an accident, the criminal complaint will allege that you were violating two DUI statutes.  The first or "a" count, often called "generic offense" will allege that you drove while under the influence of alcohol.  Vehicle Code § 23152(a). The second or "b" count, often called  the "per se offense," will allege that you drove a vehicle while having a blood alcohol content (BAC) of 0.08 percent or greater.  Vehicle Code 23152(b).

 It should be noted that the generic offense (DUI), does not mean you were impaired to the slightest degree, but rather that you could not drive a vehicle with the care of an ordinary and prudent sober person.  

 ​A special allegation may also appear on the complaint if your BAC was measured to be 0.15 percent or greater.  In most jurisdictions, in exchange for a guilty plea, the prosecution will move to dismiss one of the two DUI charges on the criminal complaint  
 Lastly, if you are on probation for DUI at the time of the alleged violation, the complaint will include an allegation that you violated probation and include a special allegations that there were one or more DUI convictions within the past ten years. 

What Would Happen if I'm Convicted of DUI?

If you are convicted of DUI, the court will order you to pay thousands of dollars in fees, surcharges, and penalties, will temporarily suspend your drivers license (the duration of which depends on the charges), and impose significant other terms and conditions of probation, assuming you choose probation.  

 A guilty plea on a first offense will result in a misdemeanor conviction, which will appear on your record until expunged.  Criminal convictions are readily discoverable by the public at large so your family, friends, and employer may find out about it.  If you have a professional license, you may have to report the conviction to your licensing agency.  If you are taking classes to acquire a professional license, such as nursing license, you may have ruined your chances of ever getting your license.  In addition, you’ll likely have to report the conviction on job applications unless it  has been expunged from your record.   If you have a commercial drivers license, you cannot legally drive a commercial vehicle for one year after a conviction on a first offense and forever on any subsequent offense occurring after September 20, 2005.  Vehicle Code §§ 15300 et seq.

If you choose probation on a first offense, the court will impose several conditions.  First, a jail term may be imposed, typically not exceeding five days for a first time offense.  You will have to complete a three-month DUI class, obey all laws, and be required to relinquish many cherished privacy rights.  Probation is not mandatory, but virtually everyone chooses it because the alternative jail term can be severe.  The potential sentence for a first offense is 96 hours to six months in jail.

 Upon a conviction, the court will require you to sign what's known as "Watson Advisement," which in plain terms means that you acknowledge and understand the following warning: 
 " I understand that being under the influence of alcohol or drugs, or both, impairs my     ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.   If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder."   The Watson Advisement in essence makes it easier for the prosecution to prove that "malice," a key element of murder was present because it was "implied" as supported your acknowledgment of the inherent danger of driving under the influence.    

What Happens if I am Convicted of a Subsequent DUI Offense?

For the next ten years after a first offense, any subsequent DUI conviction will count as a second offense.  Enhanced penalties will apply such as an automatic one-year license suspension and an increased jail term on a second.  A third DUI conviction within this 10-year  period will make matters significantly worse.  You may qualify for a restricted license after a second DUI conviction, but depending on the facts surrounding the offense, you’ll have to first  enroll in and stay current in a certified DUI school.  If you exceed the maximum number of unexcused absences from the school, the school will disqualify you and notify DMV, which will then rescind your restricted driver's license. 

DUI Defenses

Fortunately, defenses are available and can be used by a skilled attorney on your behalf.  DUI defense strategies revolve around the fact that only circumstantial evidence is available to prove a driver is guilty.  As your attorney, I will aggressively pursue every available strategy and defense to force the prosecution to prove it’s case to a jury of your peers beyond a reasonable doubt.  Short of a jury trial, I will aggressively seek out a dismissal or reasonable resolution aimed at accommodating your life-situation.  For example, just recently, a local DA dismissed my client's felony case after conceding my client had not actually violated a complicated felony statute. 

Below is summary of some important DUI defenses and strategies towards a not guilty verdict.  

Prevention is Key
If you are pulled over on suspicion of DUI, evidence prevention is crucial.  Do NOT give the police any further evidence than their reason for pulling you over –  weaving, speeding, running a stop sign, etc.  This means, DO NOT submit to any pre-arrest breath test (often called a PAS test or preliminary alcohol screening test).  The law does not require you to provide a pre-arrest breath test unless you are under age 21, on DUI probation, or have been ordered by the court to submit to pre-arrest breath testing.  

In addition, DO NOT submit to an eye test, or any other “field sobriety test” like the walk and turn, one-leg stand, finger to nose, or alphabet test.  DO NOT engage in any conversation or answer any questions because your manner of speech and what you say will be used against you.  For example, when asked by a police officer how many drinks they have had, most people will admit to having had two beers.  Law enforcement is VERY familiar with this response, and will testify to it at trial with the goal of exposing the response as a lie to show consciousness of guilt.  If the blood alcohol tests do not support two beers, the prosecution will put it before the jury and argue the lie shows consciousness of guilt.  You have a meaningful right to remain silent - USE IT. 

 No matter how charming or convincing the officer is, and no matter how confusing it all seems, the officer's goal is to get you to give him or her evidence, which will support an arrest and a subsequent conviction.  It's that simple! 

So what do you do if pulled over?

 If you have been drinking or taking drugs, say no to all pre-arrest "tests" or anything that resembles them.  Simply provide the officer with your valid driver’s license and show him/her evidence of financial responsibility (insurance) upon request.  If the officer insists you cooperate, simply indicate you want an attorney and tell the officer to arrest you if he/she suspects you were driving under the influence.  Doing so will short circuit the prosecution’s case leaving it with perhaps only the driving pattern and chemical test results taken after the arrest.  This will streamline your defense at trial, making a dismissal or a palatable offer more likely.  

 In California, after you are lawfully arrested for DUI, you have impliedly consented to a chemical test of either blood or breath.  You have the right to refuse to take the test unless a warrant is produced, but if you refuse, DMV will initiate proceedings to suspend your license for one year on a first offense.  If your arrest was not lawful, as your attorney, I will seek to have all evidence suppressed.

You Were Not Driving

 In all DUI charges, the prosecution must prove the defendant was driving a vehicle. The District Attorney's office will often charge a person with DUI even though that person may not have been driving.  If you are charged with DUI, but the prosecutor can't put you behind the wheel, I will work diligently to have your case dismissed.  If this is not possible, I will aggressively present a defense to a jury or judge that raises a reasonable doubt that you driving a vehicle.   Even if the prosecution can prove to the jury you were under the influence and/or had blood alcohol level exceeding the legal limit, you cannot be convicted of DUI if the even one juror believes you were not driving.   

Rising Blood Alcohol Level

In layman's terms, this defense means that at the actual time the defendant was pulled over or his/her vehicle stopped moving, his/her blood alcohol was low enough to support an acquittal on the per se offense (driving with a BAC of 0.08) or was low enough to be less than that required to be under the influence according to expert opinion.  

Officer's Initial Observations
This defense points out to both the prosecution in negotiations and the jury at trial that the officer’s observations do not support the prosecution’s case.  As your defense attorney, I will utilize the arresting officer’s observations to actually support your innocence.  The considerations in this area of defense are numerous.  As an example, suppose a police report claims a person was swaying from side to side about one to two inches.  The officer will include this in his police report to justify the arrest and will testify to it to support a conviction at trial.  A slight sway from the standing position may seem like evidence of impairment to the layman, but even the prosecution’s own expert will admit that a one to two inch sway is normal for even a person that is stone sober.  


Suppose the officer claims he observed you drift onto the highway fog-line momentarily then back again for a few seconds onto the left lane divider.  This driving pattern is not illegal and on its own can’t even support reasonable suspicion to stop a vehicle.  See United States v. Colin (2002, 9th Circ.) 314 F. 3rd 439.  As your defense attorney, I would argue this case law requires the court to suppress all of the prosecution’s evidence, which may lead to a dismissal if successful. 

Field Sobriety Exercises  
 Law enforcement uses roadside field exercises to support an arrest and subsequent conviction at trial.   If you agree to perform these exercises you do so at your own peril.   Even if you think you  performed well, chances are the officer will recall at trial that you performed poorly based on his memory, which he'll refresh with his field notes.   Bear in mind that even sober people perform poorly on these field exercises.  

Although the prosecution will call the exercises field sobriety “tests,” they are not even tests.  Rather, these so called "tests" are nothing more than junk science – plain and simple.  

This can be exposed to the jury by a variety of techniques.   For example, suppose a police officer refreshes his memory at trial that you raised your arms to balance during the walk and turn test.  The National Highway Transportation Safety Administration (NHTSA), classifies raising one’s arms as a clue of driving while having a BAC of 0.08 percent or more.  However, the officer may not have advised you not to raise your arms during the exercise, which is often the case.  Since it is natural to raise the arms to facilitate balancing, your reaction to the test was actually normal and expected of a sober person.  This analysis  of the truth behind the so-called field sobriety "tests" will support reasonable doubt before the jury.