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Dave Jake Schwartz, Attorney at Law, PO Box 5604, Santa Rosa, CA 95402, 707-480-3383
Sonoma County DUI & DMV Phone Consultations Free from 5 a.m. to 6 p.m. Every Day

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TEN TIPS FOR FIGHTING A SONOMA COUNTY DUI

1. Observed Driving	6. Blood Tests
2. Initial Detention	7. 3-Hour Presumption
3. Rising Blood Alcohol	8. Test Refusals
4. Drinking After Driving	9. Necessity
5. 15-Minute Observation	10. Police Reports

1.     OBSERVED DRIVING

DRIVING IS A KEY ELEMENT OF THE SONOMA COUNTY PROSECUTOR'S AND SANTA ROSA DMV'S DUI CASE AGAINST YOU. IF THE GOVERNMENT CAN NOT PROVE BEYOND A REASONABLE DOUBT IN THE CRIMINAL CASE (OR AT SANTA ROSA DMV THE ADMINISTRATIVE LAW BURDEN OF PROOF IS EASIER FOR THE GOVERNMENT, OFTEN CALLED "BY A PREPONDERANCE" OR "MORE LIKELY THAN NOT" OR "BY 51%") THAT YOU WERE DRIVING, THEN YOUR CASE MAY BE A WINNER. YOU SHOULD DISCUSS YOUR SPECIFIC MATTER WITH A SANTA ROSA ATTORNEY. 

SOMEONE ELSE DROVE.
IF SOMEONE ELSE DROVE, NOT YOU, THEN THIS DUI DEFENSE IS MUCH STRONGER IF YOU AND THE ACTUAL DRIVER BOTH STATED AT THE TIME OF INITIAL CONTACT WITH LAW ENFORCEMENT THAT YOU WERE NOT THE DRIVER, AND IF THE ACTUAL DRIVER IS STILL AVAILABLE TO TESTIFY IN YOUR DEFENSE IN A SONOMA COUNTY COURTROOM OR AT THE SANTA ROSA DMV. NOTE THAT THIS IS NOT A NEW DEFENSE AND THE SANTA ROSA PROSECUTOR WILL OFTEN FIGHT HARD AGAINST YOUR LAWYER BECAUSE THEY KNOW IT IS UNLIKELY ANYONE ELSE AT THE SCENE WAS TESTED FOR BEING OVER THE LIMIT, SO IF THEY LOSE YOU THEN THEY LOSE THE WHOLE CASE.

CIRCUMSTANTIAL EVIDENCE OF DRIVING.
NOTE ALSO THAT EVEN THOUGH IT MAY BE THAT NO OFFICER SAW YOU DRIVING, THE SONOMA COUNTY DISTRICT ATTORNEY AND THE SANTA ROSA DMV MAY INTRODUCE CIRCUMSTANTIAL EVIDENCE (AS OPPOSED TO DIRECT OBSERVATION) OF YOUR DRIVING, TYPICALLY WITH FACTS SUCH AS YOU WERE FOUND IN THE DRIVER'S SEAT, THE VEHICLE IS REGISTERED TO YOU, THE KEYS WERE IN YOUR POCKET, THE VEHICLE HOOD WAS WARM TO THE TOUCH, THE SEAT WAS ADJUSTED FOR YOUR HEIGHT, YOUR OWN ADMISSION TO DRIVING, ETC... 

SUBSTANTIAL TIME LAPSE BETWEEN DRIVING AND STOPPED.
IF YOU DROVE BUT HAD BEEN PARKED OR STOPPED FOR A LONG TIME (MORE THAN A COUPLE HOURS) BEFORE LAW ENFORCEMENT ARRIVED, THEN YOUR ATTORNEY SHOULD EXPLAIN TO YOU THAT ADDITIONAL ISSUES MAY COME INTO PLAY. (SEE FOR EXAMPLE "3-HOUR PRESUMPTION" BELOW WHERE BOTH THE SONOMA COUNTY DISTRICT ATTORNEY AND THE SANTA ROSA DMV MUST ESTABLISH A TIME OF DRIVING, AND MORE FUNDAMENTALLY, WAS IT REASONABLE AT THE TIME FOR SONOMA COUNTY LAW ENFORCEMENT TO BELIEVE YOU WERE DUI WHEN DRIVING HOURS BEFORE?).

2.     INITIAL DETENTION

IF THE INITIAL ENCOUNTER BETWEEN YOU AND THE POLICE WAS NOT CONSENSUAL (WERE YOU PULLED OVER, OR SIMPLY APPROACHED BY OFFICERS?), THEN SONOMA COUNTY LAW ENFORCEMENT MUST HAVE A WARRANT, OR PROBABLE CAUSE TO BELIEVE A CRIME (A DUI OR ANOTHER CRIME) HAS BEEN OR IS BEING COMMITTED, OR SOME OTHER COMPELLING REASON TO STOP OR DETAIN YOU AND INTERFERE WITH YOUR FREEDOM TO LEAVE. 

TYPICALLY INITIAL STOPS IN SONOMA COUNTY DUI CASES ARE JUSTIFIED BY OFFICER ALLEGATIONS OF OBSERVED VEHICLE CODE VIOLATIONS SUCH AS SPEEDING, NO FRONT LICENSE PLATE, HEADLIGHTS OFF AT NIGHT, OR PECULIAR DRIVING BEHAVIOR SUCH AS WEAVING OR SUDDEN SWERVING.

BOTH THE SONOMA COUNTY DUI COURT CASE AND THE SANTA ROSA DMV CASE WILL BE DISMISSED IF THE DETAINING OFFICER CANNOT JUSTIFY THE ORIGINAL STOP OR DETENTION, EVEN IF HE/SHE BELIEVED IN GOOD FAITH THAT THERE WAS A JUSTIFIABLE REASON TO STOP YOU. THIS DEFENSE ARISES IF YOU WERE ACTUALLY DOING NOTHING WRONG WHEN YOU WERE STOPPED OR DETAINED AND/OR SONOMA COUNTY LAW ENFORCEMENT HAD NO REASON TO BELIEVE YOU HAD BEEN DRIVING UNDER THE INFLUENCE.

3.     RISING BLOOD ALCOHOL

IF YOUR BODY IS STILL ABSORBING ALCOHOL AT THE TIME THAT THE BLOOD ALCOHOL TESTING IS ADMINISTERED TO YOU BY SONOMA COUNTY LAW ENFORCEMENT, THEN THE LATER TEST RESULTS IN SANTA ROSA WILL NOT BE AN ACCURATE REFLECTION OF YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. THIS DEFENSE USUALLY ARISES WHEN YOU DRANK ALCOHOL JUST PRIOR TO DRIVING.

A RISING BLOOD ALCOHOL EXAMPLE.
YOUR ATTORNEY SHOULD EXPLAIN A RISING BLOOD ALCOHOL CASE TO YOU THIS WAY: YOU ARRIVE AT A PARTY IN PETALUMA AT 10:00 P.M. AND YOU HAVE NO ALCOHOL IN YOUR BODY. YOU DRINK THREE HEALTHY SHOTS OF TEQUILA ON A DARE. THEN YOU SEE YOUR EX AT THE PARTY AND DECIDE TO GO HOME. AT 10:05 P.M. YOU LEAVE AND DRIVE HIGHWAY 101 NORTH FROM PETALUMA TO CLOVERDALE. AS TIME PROGRESSES DURING YOUR DRIVING, YOUR BLOOD ALCOHOL CONCENTRATION ("BAC") IS RISING. FOR EXAMPLE, WHEN YOU REACH SANTA ROSA, YOUR BAC MAY STILL BE BELOW THE .08% LEGAL LIMIT AT .04%. BY THE TIME YOU REACH HEALDSBURG, YOUR BAC MAY BE AT .09%, AND BY THE TIME YOU REACH HOME, YOUR BAC MAY HAVE REACHED CLOSE TO TWICE THE LEGAL LIMIT AT .15%. BUT WHAT IF YOU ARE STOPPED BY CHP IN WINDSOR? LET'S SAY THAT YOUR BAC AT THE TIME OF THAT STOP WAS .06%. BUT YOUR ALCOHOL ABSORPTION DOESN'T STOP JUST BECAUSE YOU VEHICLE STOPPED. BY THE TIME YOU TAKE A BREATH TEST, TYPICALLY 15-25 MINUTES AFTER THE POLICE STOPPED YOU, YOUR BAC HAS RISEN TO .13%. 

THE DEFENSE.
THE LAW ALLOWS THE SONOMA COUNTY PROSECUTOR A LEGAL PRESUMPTION, TO ARGUE TO THE JURY IN A SANTA ROSA COURTROOM THAT THE .13% RESULT IS PRESUMED TO BE YOUR BAC AT THE TIME OF YOUR DRIVING (BECAUSE OBVIOUSLY THE POLICE CAN NEVER TEST YOU AT THE PRECISE TIME YOU ARE ACTUALLY DRIVING). THIS PRESUMPTION IS DISCUSSED IN FURTHER DETAIL IN TIP #7 BELOW. BUT IF WE CAN SHOW BY AFFIRMATIVE EVIDENCE THAT IT IS MORE LIKELY YOUR BAC WAS BELOW THAT TEST RESULT AT THE TIME YOU WERE OBSERVED DRIVING (WHICH IS THE ONLY LEGALLY RELEVANT TIME POINT -- IT IS NOT ILLEGAL TO BE OVER .08 WHILE STOPPED AT THE SIDE OF THE ROAD) THEN YOUR ATTORNEY MAY WIN YOUR CASE IN SONOMA COUNTY COURT AND AT SANTA ROSA DMV.

THIS DEFENSE IS STRONGEST WHEN YOUR TEST RESULTS SHOW LOW BLOOD ALCOHOL LEVELS AND IF YOU OFFERED A CREDIBLE DRINKING HISTORY AT THE TIME YOU WERE INTERVIEWED BY THE SONOMA COUNTY POLICE PRIOR TO ARREST. IF YOU TOOK A PRELIMINARY BREATH TEST PRIOR TO ARREST THAT ACTUALLY SHOWS YOU WERE BELOW .08% WITH LATER TESTS SHOWING MODEST GAINS, THEN YOU HAVE A VERY STRONG DEFENSE. 

ON THE OTHER HAND, IF YOU LIED WHEN INTERVIEWED AT THE SCENE (MANY PEOPLE DO), AND SAID YOU HAD NOTHING TO DRINK ALL NIGHT, OR "JUST ONE DRINK HOURS AGO," THEN WE MAY HAVE DIFFICULTY CONVINCING A SANTA ROSA JURY OR THE DMV YOU ARE TELLING THE TRUTH LATER WHEN YOU TESTIFY DIFFERENTLY THAN THE POLICE REPORT ACCOUNT BY SONOMA COUNTY LAW ENFORCEMENT. THIS IS WHY WE SUGGEST THAT DURING AN ENCOUNTER WITH SONOMA COUNTY LAW ENFORCEMENT, BEST TO SAY NOTHING ABOUT YOUR ACTIVITIES, BUT NEVER LIE.

4.     DRINKING AFTER DRIVING

IF YOU CONSUMED ALCOHOL SUBSEQUENT TO DRIVING AND PRIOR TO ARREST, THEN THE SONOMA POLICE OFFICER'S OBSERVATIONS OF YOUR BEHAVIOR LATER, AND THE ALCOHOL TEST RESULTS LATER, CANNOT BE AN ACCURATE REFLECTION OF YOUR CONDITION AND YOUR BODY'S ALCOHOL LEVEL AT THE TIME OF DRIVING. THIS PRESENTS OFTEN FATAL PROOF PROBLEMS FOR THE SONOMA COUNTY PROSECUTOR AND FOR THE SANTA ROSA DMV.

THIS DEFENSE IS STRONGEST WHEN YOUR TEST RESULTS SHOW LOW BLOOD ALCOHOL LEVELS AND/OR IF YOU OFFERED A CREDIBLE DRINKING HISTORY AT THE TIME YOU WERE INTERVIEWED BY THE SONOMA POLICE, AND IF THERE ARE DISINTERESTED WITNESSES TO THE AFTER-DRIVING CONSUMPTION.  

5.     15-MINUTE OBSERVATION & THE BREATH MACHINE

TITLE 17.
SONOMA COUNTY LAW ENFORCEMENT TESTING OF YOUR ALCOHOL LEVELS MUST COMPLY WITH STATE RULES (CALLED "TITLE 17") WHICH LEGITIMIZE A NON-DOCTOR (IN OTHER WORDS, YOUR ARRESTING OFFICER) ENGAGING MEDICAL PROCEDURES TO DETERMINE THE AMOUNT OF ALCOHOL IN YOUR BODY. YOUR ATTORNEY WILL EXPLAIN TO YOU THAT IN ORDER FOR TEST RESULTS TO BE VALID IN SONOMA COUNTY COURT OR AT THE SANTA ROSA DMV, CERTAIN PROCEDURAL CONDITIONS MUST BE MET. YOU CAN SEE THESE RULES BY CLICKING HERE: TITLE 17 RULES.

MOUTH ALCOHOL. 
ONE OF THESE CONDITIONS IS THAT, IF THE TESTS TO BE USED AGAINST YOU ARE BREATH TESTS, THEN YOU MUST BE CONTINUOUSLY OBSERVED BY SONOMA COUNTY LAW ENFORCEMENT FOR 15 MINUTES IMMEDIATELY PRIOR TO THE TEST BEING TAKEN TO ENSURE THAT YOU DID NOT BELCH, REGURGITATE, EAT OR DRINK, OR OTHERWISE HAVE MOUTH ALCOHOL OR OTHER FOREIGN SUBSTANCES PRESENT WHICH WOULD CAUSE THE TESTS TO PRODUCE FALSELY HIGH RESULTS. THE BEST DEFENSE HERE IS WHEN THE SONOMA OFFICER ARRIVES AT AN IDENTIFIED TIME AND WE CAN PROVE THAT THE RELEVANT BREATH TESTS ARE ADMINISTERED TO YOU PRIOR TO THE END OF THE 15-MINUTE WAITING PERIOD.

THE BREATH MACHINE. 
THERE ARE ADDITIONAL REGULATIONS WHICH REQUIRE THAT SONOMA COUNTY BREATH MACHINES ARE APPROVED DEVICES, AND CALIBRATED AT REGULAR INTERVALS AND TEST WITHIN CERTAIN ACCEPTABLE RANGES OF ACCURACY. YOUR ATTORNEY CAN SUBPOENA AND REVIEW CALIBRATION AND MAINTENANCE RECORDS FROM THE ARRESTING AGENCY IN SONOMA COUNTY, AND FROM THE SANTA ROSA LAB OF THE DEPARTMENT OF JUSTICE, FOR POSSIBLE DEFENSES, PARTICULARLY IF YOUR TEST RESULTS ARE RELATIVELY LOW.

MANY SANTA ROSA POLICE AGENCIES AND SONOMA COUNTY LAW ENFORCEMENT USE A TYPE OF BREATH MACHINE CALLED THE ALCOTEST 7410 WHICH CAN BE MANIPULATED BY THE OFFICER ADMINISTERING THE TEST. THE YOUTUBE VIDEO LINK PROVIDED BELOW EFFECTIVELY DEMONSTRATES THIS VULNERABILITY IN THE RELIABILITY OF THE MACHINE, AND THEREFORE DEMONSTRATES A DEFENSE IN THE RIGHT CIRCUMSTANCES, TYPICALLY IF THERE IS ADDITIONAL EVIDENCE OF SOBRIETY, POLICE FOUL PLAY OR OTHER ERROR IN YOUR CASE. CLICK HERE TO WATCH THE DEMONSTRATION (ALTHOUGH THIS VIDEO EFFECTIVELY PORTRAYS THE MACHINE'S DEFECT, WE DO NOT ENDORSE THE DEMONSTRATOR'S GENERAL SUGGESTION TO REFUSE THE BREATH TEST):  DARRYL GENIS DEMONSTRATES 7410 VULNERABILITY. 

6.     BLOOD TESTS

BLOOD DRAW.
THE CALIFORNIA VEHICLE CODE REQUIRES THAT ONLY CERTAIN LICENSED OR QUALIFIED INDIVIDUALS IN SANTA ROSA MAY DRAW BLOOD FOR TESTING, IF ACTING AT THE REQUEST OF A SONOMA COUNTY PEACE OFFICER. THESE INDIVIDUALS ARE CERTIFIED PARAMEDICS, OR LICENSED AS PHYSICIANS AND SURGEONS, REGISTERED NURSES, VOCATIONAL NURSES, CLINICAL LABORATORY SCIENTISTS, CLINICAL LABORATORY BIOANALYSTS, OR CERTIFIED PHLEBOTOMY TECHNICIANS, OR UNLICENSED LABORATORY PERSONNEL EMPLOYED BY A LICENSED CLINICAL LABORATORY AND SUPERVISED AND FULLY TRAINED BY ONE OF THE ABOVE. VC SECTION 23158. BPC SECTIONS 1242, 1242.5, 1246. 

IF THE SONOMA COUNTY POLICE REPORT INDICATES THAT THE INDIVIDUAL WHO DREW YOUR BLOOD FOR TESTING WAS NOT PROPERLY QUALIFIED UNDER THE LAW, THEN YOUR ATTORNEY SHOULD FIGHT ANY EFFORT TO USE THE TEST RESULTS AGAINST YOU IN SONOMA COUNTY SUPERIOR COURT OR AT THE SANTA ROSA DMV. SOMETIMES THE POLICE REPORT SIMPLY LISTS A NAME WITHOUT ANY FURTHER INDICATION OF WHAT TITLE OR QUALIFICATIONS ARE ASSOCIATED WITH THE INDIVIDUAL WHO DREW YOUR BLOOD. FURTHER INVESTIGATION MAY BE CONDUCTED TO DETERMINE IF A DEFENSE OF NONCOMPLIANCE IS APPLICABLE TO YOUR BLOOD DRAW. THIS APPROACH MAY BE PARTICULARLY EFFECTIVE IF OTHER FACTORS INDICATE A POSSIBLE ERROR IN BLOOD SAMPLE COLLECTION, SUCH AS YOUR RECOLLECTION OF WHAT YOU DRANK DIFFERS FROM THE BLOOD TEST RESULT, OR THE BREATH TESTING RESULTS ARE INEXPLICABLY DIFFERENT FROM THE BLOOD TEST RESULT.

RETESTING YOUR BLOOD SAMPLE.
GOVERNMENT TESTING MISTAKES DO HAPPEN, EVEN HERE IN SANTA ROSA. CLICK HERE TO SEE AN EXAMPLE OF LAB ERROR, AND HERE FOR ANOTHER EXAMPLE OF GOVERNMENT LAB PROBLEMS. MOREOVER, IF YOU TOOK A BLOOD TEST DURING THE ARREST PROCESS, THE RESULTS MAY SHOW A PROBLEM IDENTIFIED ON THE REPORT BY THE DEPARTMENT OF JUSTICE LABORATORY IN SANTA ROSA. IN ADDITION, BLOOD TEST SPECIMENS ARE RETAINED BY THE SANTA ROSA LAB FOR RETESTING BY YOU AND YOUR LAWYER AT AN INDEPENDENT LAB IF DESIRED. YOUR SANTA ROSA LAWYER CAN FORMALLY REQUEST A SONOMA COUNTY DISTRICT ATTORNEY AUTHORIZATION FOR RETEST, WHICH IS SENT TO THE DEPARTMENT OF JUSTICE WHERE A SPLIT SAMPLE OF YOUR BLOOD IS THEN SENT TO THE LAB OF OUR CHOICE FOR INDEPENDENT ANALYSIS.

ALTHOUGH THIS TYPICALLY INVOLVES ADDITIONAL EXPENSE TO YOU, NEVERTHELESS YOUR ATTORNEY WILL EXPLAIN TO YOU THAT RETESTING CAN CONFIRM BLOOD TYPE AND DNA IF THERE IS A QUESTION WHETHER THE SONOMA COUNTY SAMPLE ORIGINALLY TESTED IS IN FACT YOURS. ALSO, RETESTING CAN OFTEN LOWER THE RESULT NUMBER BY .01 TO .03 WHICH MAY DROP YOUR RESULT BELOW .08 (OR BELOW .01 IN THE CASE OF A MINOR) PROVIDING A BETTER CHANCE OF DISMISSAL, OR MAY PROVIDE ADDITIONAL ASSISTANCE IN PLEA BARGAINING EFFORTS WITH THE SONOMA COUNTY DISTRICT ATTORNEY IN SANTA ROSA TO OBTAIN A WET RECKLESS OR AVOID ADDITIONAL PENALTIES FOR VERY HIGH BLOOD ALCOHOL LEVELS. 

CLICK HERE TO SEE A RECENT EXAMPLE OF AN INDEPENDENT LAB ANALYSIS SHOWING A NEW .07 RETEST RESULT AFTER RETESTING AN INITIAL .08 BLOOD RESULT FROM THE DEPARTMENT OF JUSTICE. THIS EFFORT, COMBINED WITH A WET RECKLESS BARGAIN FROM THE DISTRICT ATTORNEY, RESULTED IN A COMPLETE VICTORY AT DMV AND NO DRIVER LICENSE SUSPENSION FOR THIS CLIENT. UNDERSTAND THAT ALL CASES ARE UNIQUE AND A BLOOD RETEST IN YOUR CASE MAY NOT PRODUCE SUCH VICTORIOUS RESULTS, BUT SOME BLOOD TEST CASES MAY BENEFIT FROM A RETEST AND OTHER MEANS OF INDEPENDENTLY CONFIRMING OR DENYING INITIAL GOVERNMENT ASSUMPTIONS AND CONCLUSIONS.

HOSPITAL DRAWS.
IF YOUR BLOOD WAS DRAWN BY SANTA ROSA HOSPITAL STAFF BECAUSE YOU WERE HOSPITALIZED DUE TO INJURY, STANDARD DUI BLOOD DRAW TECHNIQUES MAY NOT HAVE BEEN USED (FOR EXAMPLE AN ALCOHOL SWAB MAY HAVE BEEN USED TO STERILIZE YOUR ARM). A LOCAL HOSPITAL DRAW CAN BE CHALLENGED IF THERE IS ANY SUSPICION THAT THE RESULTS MAY BE FAULTY DUE TO INCORRECT BLOOD DRAW PROCEDURE OR THAT AN UNQUALIFIED INDIVIDUAL DREW YOUR BLOOD. IN ADDITION, ISSUES REGARDING PATIENT-DOCTOR CONFIDENTIALITY MAY ARISE AND PREVENT THE GOVERNMENT'S USE OF A SONOMA COUNTY HOSPITAL DRAW, PARTICULARLY IF THE DRAW WAS NOT ORIGINALLY MADE PURSUANT TO A REQUEST BY A SONOMA COUNTY PEACE OFFICER AS REQUIRED BY THE VEHICLE CODE.

7.     THE 3-HOUR PRESUMPTION

RELATING BACK. 
POLICE OFFICERS ARE NEVER ABLE TO TEST YOUR BLOOD ALCOHOL PRECISELY AT THE TIME YOU ARE DRIVING. YOUR ATTORNEY WILL EXPLAIN TO YOU THAT TYPICALLY AT LEAST 10-40 MINUTES ELAPSE, SOMETIMES MORE THAN AN HOUR OR TWO SUBSEQUENT TO DRIVING, PARTICULARLY IN ACCIDENT CASES AND DURING BUSY HOLIDAYS. THEREFORE THE LAW PROVIDES THE GOVERNMENT WITH A PRESUMPTION THAT AS LONG AS THE TEST SAMPLES ARE OBTAINED WITHIN THREE HOURS OF DRIVING, THE LAW WILL PRESUME THAT THE RESULT OBTAINED RELATES BACK TO YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. IF THE TEST SAMPLE WAS NOT OBTAINED WITHIN 3 HOURS, THEN THE GOVERNMENT CANNOT RELY ON THIS PRESUMPTION AND YOU MAY VERY WELL HAVE A WINNING CASE IN SONOMA COUNTY SUPERIOR COURT AND AT THE SANTA ROSA DMV.

UNDERSTAND THAT THE 3-HOUR RULE IS A REBUTTABLE PRESUMPTION, A LEGAL FICTION WHICH MAY BE CHALLENGED WITH OUR OWN AFFIRMATIVE EVIDENCE INTRODUCED IN A SONOMA COUNTY COURT OR AT THE SANTA ROSA DMV, THAT THE TEST IS NOT AN ACCURATE REFLECTION OF YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. THE BEST EXAMPLE IS EVIDENCE OF DRINKING AFTER DRIVING. 

TIME OF DRIVING. 

OBVIOUSLY, IN ORDER TO TAKE ADVANTAGE OF THIS GIFT OF A 3-HOUR PRESUMPTION, THE GOVERNMENT (BOTH THE SONOMA COUNTY DISTRICT ATTORNEY AND THE SANTA ROSA DMV) MUST BE ABLE TO ESTABLISH A TIME OF DRIVING WITH SOME DEGREE OF PROBABILITY. SONOMA COURT AND DMV CASES MAY BE WINNERS IF, FOR EXAMPLE, YOU WERE PARKED FOR MORE THAN A COUPLE HOURS PRIOR TO ENCOUNTERING LAW ENFORCEMENT, OR IF AN ACCIDENT SCENE IS UNDISCOVERED FOR A LONG TIME. OFTEN IMPARTIAL WITNESS TESTIMONY, BAR RECEIPTS, PHONE MESSAGES, AND CELL PHONE RECORDS CAN ESTABLISH DRIVING OUTSIDE THREE HOURS. WE ARE ALWAYS PREPARED FOR GOVERNMENT EVIDENCE OF TIME-STAMPED DISPATCH RECORDS, EVIDENCE OF THE PUBLIC VISIBILITY OF AN ACCIDENT SCENE, OR EVIDENCE OF RECENCY OF DRIVING (YOU IN THE DRIVER'S SEAT, WARM HOOD, KEYS IN IGNITION, ENGINE RUNNING, LIGHTS ON) TO CHALLENGE THE POSSIBILITY THAT YOUR VEHICLE HAD NOT BEEN STATIONARY FOR A LONG TIME.

8.     REFUSALS

IF THE SONOMA COUNTY POLICE FAILED TO OBTAIN A SAMPLE OF YOUR BREATH, BLOOD OR URINE, YOU MAY FIND AN ALLEGATION THAT YOU VIOLATED THE IMPLIED CONSENT LAW WHICH REQUIRES YOU TO PROVIDE SUCH A SAMPLE PURSUANT TO A VALID ARREST IF SONOMA COUNTY LAW ENFORCEMENT REASONABLY BELIEVED YOU WERE DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS. 

WHAT DID THE OFFICER SAY?
ALTHOUGH THE BOTTOM LINE IS WHETHER YOU PROVIDED A SAMPLE OR NOT, MUCH OF THE LEGAL FOCUS MAY SHIFT TO THE SONOMA COUNTY OFFICER WHO ALLEGED THE REFUSAL. DID THE OFFICER HAVE REASONABLE CAUSE TO BELIEVE YOU WERE DUI? PRECISELY WHEN DID HE/SHE REQUEST THAT YOU PROVIDE THE SAMPLE, PRECISELY WHAT DID THE OFFICER SAY WHEN HE/SHE ASKED YOU TO PROVIDE THE SAMPLE, AND PRECISELY WHAT WARNINGS WERE GIVEN TO YOU REGARDING THE CONSEQUENCE OF FAILING TO PROVIDE THE SAMPLE?

DEFENDING A REFUSAL ALLEGATION.
MOST REFUSAL ALLEGATIONS ARE WON WHEN YOUR ATTORNEY CAN ESTABLISH TO THE SONOMA COUNTY COURT AND THE SANTA ROSA DMV THAT THE ARREST WAS NOT VALID, OR THAT THE SONOMA POLICE OFFICER FAILED TO WARN YOU THAT YOU WOULD LOSE YOUR LICENSE FOR A YEAR IF YOU REFUSE TO PROVIDE A SAMPLE, OR THAT YOU WERE INCAPABLE OF UNDERSTANDING THE WARNINGS DUE TO INJURY OR THE SONOMA OFFICER'S MISINFORMATION. IF YOU SUBMITTED TO THE PRELIMINARY ALCOHOL SCREENING TEST (PAS), WHICH DOES NOT SATISFY THE LEGAL REQUIREMENT OF A POST-ARREST TEST, STILL, SOMETIMES IT IS POSSIBLE THAT ONE OR MORE FACTORS MAY ALLOW THE SANTA ROSA DMV TO ACCEPT THE PRELIMINARY RESULTS.

REFUSAL ALLEGATIONS CAN OFTEN BE PLEA BARGAINED OUT OF A COURT CASE IN SONOMA COUNTY, BUT THE SANTA ROSA DMV RARELY BARGAINS AND WILL STILL SUSPEND YOUR LICENSE FOR AT LEAST ONE YEAR WITHOUT ALLOWING YOU TO OBTAIN A RESTRICTED WORK LICENSE, SO REFUSAL CASES AT THE SANTA ROSA DMV ARE CRITICAL TO PRESERVING YOUR DRIVING PRIVILEGES.

9.     NECESSITY

SOMETIMES PEOPLE FEEL COMPELLED TO DRIVE WHILE INTOXICATED IN ORDER TO ESCAPE FROM A DANGEROUS SITUATION OR TO HELP SOMEONE ELSE. THIS IS AN "EQUITABLE DEFENSE" WHICH, IF SUCCESSFUL, CAN RESULT IN REDUCED OR DROPPED CHARGES IN SONOMA COUNTY SUPERIOR OR TRAFFIC COURT, BUT SUCH DEFENSES ARE NOT RECOGNIZED AT THE SANTA ROSA DMV. 

THESE DEFENSES ARE MOST SUCCESSFUL WHEN YOUR ATTORNEY CAN ESTABLISH THAT THE DANGER WAS OF SUCH A NATURE THAT A SOBER, REASONABLE PERSON WOULD HAVE BEEN COMPELLED TO DRIVE, AND THAT YOU DROVE ONLY SO FAR AS WAS NECESSARY TO ESCAPE THE RISK OF DANGER OR OTHERWISE ADDRESS THE EMERGENCY. IF YOU WERE TRYING TO GET AWAY FROM SOMEONE, THEN TYPICALLY DRIVING A COUPLE BLOCKS OR A MILE OR SO WOULD BE THE FURTHEST EXPECTED.

10.     POLICE REPORTS

THE SONOMA COUNTY COURT AND THE SANTA ROSA DMV PROCESS ARE PRIMARILY FUELED BY THE POLICE REPORT. A CAREFUL, DETAILED EXAMINATION OF SONOMA COUNTY POLICE REPORTS CAN OFTEN REVEAL NUMEROUS ERRORS AND/OR OMISSIONS. CLICK HERE TO SEE THE MOST COMMON FORMS, TITLED THE DS367 AGE 21 AND OLDER OFFICER'S STATEMENT AND THE CHP 202 DRIVING UNDER THE INFLUENCE ARREST - INVESTIGATION REPORT. 

SOME ERRORS AND OMISSIONS ARE NOT LEGALLY SIGNIFICANT, BUT OTHERS CAN BE FATAL TO THE GOVERNMENT'S CASE AGAINST YOU, ESPECIALLY AT THE SANTA ROSA DMV WHERE DOCUMENTS USUALLY ARE THE ONLY EVIDENCE CONSIDERED. IF AN IMPORTANT SIGNATURE IS MISSING AT A CRITICAL PLACE ON A FORM, AND THE SANTA ROSA AND SAN FRANCISCO DMV DRIVER SAFETY OFFICES DO NOT CATCH THIS ERROR OR OMISSION IN TIME TO SUBPOENA THE RESPONSIBLE PARTY TO "FIX" IT AT THE LOCAL SANTA ROSA HEARING, THEN YOUR LAWYER MAY BE ABLE TO WIN YOUR DMV CASE. EVEN NUMEROUS MINOR ERRORS MAY CALL INTO QUESTION THE RELIABILITY AND CREDIBILITY OF THE OFFICER WHO COMPLETED THE DOCUMENTS, USUALLY THE SONOMA COUNTY ARRESTING OFFICER.

LEGAL STUFF: © 2008 DAVE JAKE SCHWARTZ. MAY NOT BE REPRODUCED WITHOUT PERMISSION. ALL RIGHTS RESERVED.
NOTICE: THE TIPS ABOVE ARE NOT LEGAL ADVICE BUT RATHER THEY ARE INFORMATION INTENDED TO PROVOKE THOUGHT AND DISCUSSION.  LEGAL ADVICE CAN ONLY BE GIVEN BY A LAWYER DIRECTLY TO HIS CLIENT (AFTER BEING RETAINED AND FOLLOWING THOROUGH LEGAL ANALYSIS) AND MAY VARY ONCE FACTS AND YOUR INDIVIDUAL CIRCUMSTANCES ARE KNOWN. ALWAYS CONSULT WITH AN ATTORNEY, AND OTHER APPLICABLE LICENSED PROFESSIONAL(S), BEFORE ACTING IN ANY MANNER WHICH MIGHT AFFECT YOUR LEGAL RIGHTS OR LIABILITIES, OR OTHER SENSITIVE LIFE SITUATIONS.