Stopped for a DUI in California: What to do next

Being stopped for DUI in California is a frightening and often a confusing experience.  If you drink and you own a car, you should  take precautions to avoid driving under the influence.  If you have been drinking, it can be difficult to tell whether you have sobered up enough to drive.

Keep these things in mind in case you are ever stopped for DUI:

  • Request your right to an attorney and do not answer questions.

    As soon as the police tell you that they suspect you of driving under the influence, tell the police that you want to cooperate and that you want to talk to an attorney before you answer any of their questions.  Provide the following four things:  license, registration, proof of insurance, and a blood test (unless you have any drugs in your system).

  • Do take the blood test—unless you have intoxicating narcotics in your system.

    When you get a California driving license you consent in advance to taking a blood or breath test if you are stopped on suspicion for driving under the influence.  If you request the blood test, in most cases it takes longer to submit to a blood test than a breath test because a blood test requires a licensed phlebotomist, who is usually not immediately available, whereas and evidentiary breath test can be administered by a police officer.  During this delay, which can take between a half an hour to an hour, your Blood Alcohol Level will drop.  For instance, a person who takes a breath test immediately after the arrest that shows a .10, had she requested a blood test may have gotten a reading of .07 due to the delay.

  • Call an attorney immediately.

    You need to contact an skilled DUI defense attorney immediately for three reasons:  (1) to be sure that you have one available for the court date, (2) so that the attorney can request the police report and conduct any necessary investigation, and (3) so that the attorney can represent you at the DMV hearing.

  • Avoid discussing your case with anyone other than your attorney.

    Anything you say to anyone other than an attorney can be used as an admission, and if the prosecutor finds out about what you have said to anyone (even a friend), those statements can be used against you in court.

  • Create an outline of what happened.

    As soon as you can, make notes about what happened:  what you drank and where, names of witnesses, the order of events, anything you ate and medications you were taking, any statements you made to the police officer, and anything unusual about the event.  Your notes can be helpful in refreshing your recollection when you meet with your defense attorney to discuss your case.

DUI defense attorney Thomas Greenberg has worked on thousands of DUI cases, is a member of the California DUI Attorneys Association, and is often consulted by other criminal attorneys regarding DUI cases and defenses.  Contact him at (650) 242-0021 to begin the defense process for your DUI.

Warrantless Search for Marijuana—It Can’t Be Based on Smell Alone

An unwarranted police search based only on the odor of drugs is not legal, according to a California appeal court.

The case involved the police opening a shipped package that smelled strongly of pot.  A FedEx employee smelled what she thought was marijuana emanating from a package that was to be shipped from California to Illinois.  She alerted the police, who seized the package and took it back to the station where they opened it and found pot.  The man who shipped the package, Kewhan Robey, returned to FedEx to ask why his package had not been shipped.  The FedEx employee called the police, who arrested Robey.  The seized package was later used as evidence against Robey.

Do they need a warrant to search for marijuana?

The Fourth Amendment protects you from unreasonable search and seizure.  This right is safeguarded by the warrant requirement—police need a warrant to conduct a search and seizure unless they have probable cause to believe that you committed a crime and what amounts to a strong reason to detain you immediately.  If the police see drugs, they have the right to conduct a warrantless search and to seize them.  According to the court of appeal, to smell drugs is not the same as to see them.

Defense attorney Thomas Greenberg has defended drug cases hundreds of times and is up to date about drug laws.  If you have been charged with a drug crime, defense attorney Thomas Greenberg can help you.  Call for free consultation (650) 242-0021

Protect Your Computer and Phone from Illegal Police Searches

EFF Releases ‘Know Your Digital Rights’ Guide to Your Constitutional Liberties

San Francisco – Your computer, your phone, and your other digital devices hold vast amounts of personal information about you and your family. Can police officers enter your home to search your laptop? Do you have to give law enforcement officials your encryption keys or passwords? If you are pulled over when driving, can the officer search your cell phone?

The Electronic Frontier Foundation (EFF) has answers to these questions in our new “Know Your Digital Rights” guide, including easy-to-understand tips on interacting with police officers and other law enforcement officials.

“With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” said EFF Staff Attorney Hanni Fakhoury. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

The Fourth Amendment to the Constitution protects you from unreasonable government searches and seizures, and this protection extends to your computer and portable devices. In EFF’s “Know Your Digital Rights” guide, we outline various common scenarios and explain when and how the police can search the data stored on your computer or portable electronic device — or seize it for further examination somewhere else — and give suggestions on what you can and can’t do to protect your privacy.

“In the heat of the moment, it can be hard to remember what your rights are and how to exercise them,” said EFF Senior Staff Attorney Marcia Hofmann. “Sometimes police can search your computer whether you like it or not, but sometimes they can’t. We wrote this guide to help you tell the difference and to empower you to assert your rights when the police come knocking.”

For the full “Know Your Digital Rights” guide:

For a one-page summary to print and post:

Wondering what to do when the police stop you?

This is almost word for word what I have been telling clients for years. Protect yourself when you are stopped by the Police by being very clear: “I want to speak to an Attorney”. Then, call Criminal Defense Attorney Thomas Greenberg!

Here is a link to a card that you can print off to keep with you, in case you forget what to do when stopped by the police.

Search This? During a Lawful Arrest, Police Can Search Your Cell Phone Without A Warrant

police search phoneAs of January 2011, if the police are lawfully arresting you in California they can search your cell phone without a warrant. This includes all of your cell phone contents—texts, voicemails, photos, videos, your list of contents and recent calls, plus any email and online services or apps you may subscribe to via your phone.

In January 2011, the California Supreme Court affirmed the Court of Appeal holding that an unwarranted police search of a cell phone text message folder during a lawful arrest for sale of ecstasy was constitutional. The way this went down was that police arrested the defendant after an informant who had been wearing a wireless transmitter purchased ecstasy from him. Upon arresting the defendant, police seized his phone and took him to the sheriff’s station where they interviewed him without an attorney present (he did not assert his right to an attorney!). The defendant denied having knowledge of the drug transaction. After the interview, police checked his cell phone texts and pulled up the message “6 4 80.” The police showed the defendant this message, told him they interpreted it as a price quote, and he then admitted to participating in the sale.

The defendant was charged with selling a controlled substance (Health & Safety Code, Section 11379(a)), a felony. He pleaded not guilty and moved to suppress the fruits of the cell phone search, arguing that the warrantless search was remote in time relative to his arrest (90 minutes), and therefore violated the Fourth Amendment. The trial court denied the defendant’s motion, the Court of Appeal affirmed, and the Supreme Court of California also affirmed.

The Court’s reasoning was this: the cell phone was immediately associated with the defendant’s person, like an item of clothing or a cigarette package, and therefore, upon lawfully arresting the defendant, the police were entitled to inspect the cell phone’s contents without a warrant. Unwarranted searches are generally unreasonable and violate the Fourth Amendment, however, there is an exception that allows police to conduct a warrantless search of the person and the area in the arrestee’s immediate control when carrying out a lawful arrest. That exception has traditionally been justified by the idea that police have a right to search for weapons that may be used against them, or for instruments of escape, or for evidence that may be concealed or destroyed. It is under this exception that police are allowed to confiscate personal clothing and items “immediately associated with the defendant’s person” for traces of evidence. The California Supreme Court held that a cell phone is immediately associated with the defendant’s person, and that the police were therefore entitled to inspect its contents without a warrant at the sheriff’s station 90 minutes later, whether or not an exigency existed.

Note, the Court did not say that the police can search your cell phone at any time or for any reason, only that the police can search your cell phone as a search incident to a lawful arrest. That means that the police must be lawfully arresting you—they must have a warrant or probable cause to conduct the arrest. If the police are lawfully arresting you and show you the contents of your cell phone to get you to answer their questions or make a statement, don’t be like the defendant in the case that went to the California Supreme Court! Call an experienced defense attorney before you answer any questions by the police other than providing your name and identification.