Los Angeles DUI Defense and the Constitution

Several sections of the United States Constitution apply to a Los Angeles DUI case. The 4th Amendment prohibits unlawful searches and seizures. The 5th Amendment allows the suspect to decline testing and questioning. The 6th Amendment provides the right to counsel. The 8th Amendment prohibits cruel and unusual punishment.

Fourth Amendment Challenges in Los Angeles DUI Cases

The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Los Angeles DUI defense, we commonly file motions under Penal Code section 1538.5 to challenge searches and seizures. We can challenge the reason for the stop, alleging that the police lacked reasonable suspension when they detained the driver. This often comes into play when the police approach a parked car and initiate a DUI investigation.

We can also challenge the probable cause for the arrest by digging into the standardized field sobriety tests (SFST) and observation of driving. Sometimes the body camera video shows the police unsure about whether the driver was drinking. Or the police conduct the SFSTs improperly.

Another option is a motion to challenge the manner of the blood draw. The government must use “accepted medical practices” when they draw a driver’s blood in a Los Angeles DUI case. This means that the methods used must not increase the risk of pain or infection. No actual pain or infection is required for us to prevail on this kind of challenge. Some issues in a blood draw include: if blood draw causes bruising; or if the phlebotomist leaves the tourniquet on for too long; or if the location of the blood draw is dirty.

The Fifth Amendment in DUI Defense Cases

The Fifth Amendment provides several protections in a DUI case. During a DUI investigation, you have the right to decline to answer questions. You can also decline to participate in field sobriety tests and the portable alcohol screening device. In court, you have the absolute right to testify or not to testify in your case. No one can make you say anything that incriminates you. See our article here about evidence that you should not give the police.

However, the infamous Miranda warnings are rarely relevant in a Los Angeles DUI case. Lots of clients complain that the police didn’t read them their rights. The Miranda warnings are only implicated when a subject is both (1) in custody; and (2) under interrogation. Most of a DUI investigation happens before the suspect is in custody, so effective challenges on these grounds are rare.

Another 5th Amendment issue is when the right to counsel attaches. In California, there is no right to counsel until after the police arrest the person. Even then, there is no right to counsel before choosing either a blood test or a breath test.

The Sixth Amendment

The Sixth Amendment guarantees the right to an attorney at all stages of criminal court proceedings. A defendant can use a public defender or retain private counsel. The right to counsel does not apply to DMV administrative hearings, so the public defender will not assist with the DMV process. It’s always a good idea to consult with an attorney immediately after a Los Angeles DUI arrest. The arrestee has only 10 days to request a DMV hearing and prevent the automatic suspension of their driving privilege.

The Eighth Amendment

The Eighth Amendment is rarely implicated in Los Angeles DUI defense cases, but it protects the accused against cruel and unusual punishment. For example, the court cannot send you to prison for 10 years on a first-time misdemeanor DUI case. The statutory maximum in California for a first DUI is 6 months in County Jail. The maximum punishment for a second or third misdemeanor DUI within 10 years is one year in County Jail. A fourth DUI conviction within 10 years will usually be charged as a felony, with state prison time as a sentencing option.

Your Los Angeles DUI Defense Attorney

Criminal Defense Heroes, P.C. is based in Torrance, California. We cover all of Los Angeles County and beyond. We frequently defend DUI cases at the Torrance Courthouse, Long Beach Courthouse, Airport Courthouse, Inglewood Courthouse, Compton Courthouse, Metropolitan Courthouse, Van Nuys Courthouse, Bellflower Courthouse, Downey Courthouse, and more. Our founding attorney, Don Hammond, has more training than the average police officer in SFSTs and DUI investigations, and he understands the science behind drug and alcohol testing. We have won constitutional challenges in DUI cases, both in court and with the DMV. Contact us today at 323-529-3660!

The DUI Attorney Don Hammond


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