Practice Areas and Legal Definitions

Driving Under the Influence (DUI):
DUI stands for Driving Under the Influence and occurs when someone is operating, or is in actual physical control, of a motor vehicle while under the influence of alcohol or other controlled substance, to the extent that their mental faculties are impaired and/or their blood alcohol content (BAC) is above the legal limit. Even for a first offense, penalties can include license suspension, substantial fines, community service, mandatory attendance at a state or DMV approved alcohol program, mandatory overnight incarceration and the required installation (at the offender's expense) of a car ignition locking device. In addition, a DUI charge typically results in higher insurance premiums and an offender may become ineligible for credit.

Driving with a Suspended License:
Driving with a suspended or revoked license is usually charged as a serious misdemeanor punishable by substantial fines and up to a year in jail. Under some circumstances, as where someone is killed or injured in an accident caused by a driver whose license is suspended or revoked, the offense can be charged as a felony, with a high fine and a possible state prison sentence. Fines and jail sentences are typically heaviest in cases where the license suspension or revocation resulted from a traffic offense involving alcohol and/or drugs.

Reckless Driving:
Reckless driving is operating a vehicle with willful or wanton disregard for the safety of others or the property of others. It generally involves drastic misconduct on the road, such as driving on the wrong side of the road or driving at dangerously high speeds. It is generally charged as a misdemeanor, punishable by a fine and a local jail sentence. It sometimes results in a driver's license suspension or revocation, and it very often results in the cancellation of insurance. Automobile insurance companies know that people who drive “recklessly” are more likely than others to get in traffic accidents. Also, “reckless driving” convictions are commonly seen as part of a plea bargain in which an initial DUI charge is “reduced” to reckless driving.

Hit and Run Driving:
Hit and Run Driving is a serious offense that involves leaving the scene of an accident without first stopping and identifying oneself to the other driver or drivers. It is, at minimum, a serious misdemeanor punishable by jail time and a high fine. If someone is injured or killed in the accident, hit and run driving is charged as a felony that can result in a state prison sentence. In either case the charge has nothing to do with who was at fault in the accident. Apart from the other penalties, hit and run driving can result in long-term driver's license suspension or, in some cases, actual license revocation.

Driving Under the Influence – Murder:
Murder is the criminal charge for unlawfully killing someone, either deliberately and intentionally or recklessly with extreme disregard for human life. In some states, when someone driving under the influence causes an accident in which someone is killed the driver may be charged with murder if the circumstances are particularly aggravated.

Driving Under the Influence – Manslaughter:
Manslaughter is the criminal charge for unlawfully killing someone without actually intending to do so. When someone is driving under the influence and causes an accident in which someone is killed, the driver may be charged with manslaughter.

Driving Under the Influence (DUI) with Prior Convictions:
In all 50 states, repeat DUI offenders face progressively stiffer penalties. In some states, the third or fourth offense may be charged as a felony and, upon a conviction, result in a multi-year state prison term. The elements of the offense are the same, whether or not there are prior convictions.

Driving Under the Influence of Drugs or Prescription Medications:
Most people know that it is illegal to drive under the influence of illegal drugs, but many believe they can avoid a conviction for DUI by producing a prescription for the drug in question. This is not true. A DUI (drugs) charge has nothing to do with whether or not possession of  the drug was lawful. The legal issue in any DUI case is whether, as the result of "impairment," the driver has lost the ability to drive safely. It is just as unlawful to drive under the influence of a properly prescribed medication as it is to drive after drinking too much alcohol.

Contests of Speed (Drag Racing):
In most states, engaging in contests of speed (racing) is a serious misdemeanor punishable by local jail time and a fine. It can also trigger license suspension or revocation by the Department of Motor Vehicles or other state licensing agency. It is also fairly certain to result in cancellation of automobile insurance. Repeat offenders usually face escalating penalties including felony prosecution in aggravated circumstances.

Other Traffic Crimes:
Every state has its own set of laws governing the operation of motor vehicles on public streets and highways. Most of these laws classify violations as infractions - relatively minor offenses for which a fine is the only penalty. One cannot be given a jail sentence for an infraction. It can be very important to fight infraction prosecutions in some situations. Many states have “point” systems to track individual driving records and the accumulation of too many points can have serious consequences, ranging from license suspension to revocation. Automobile insurance carriers often cancel the policies of drivers with too many “points.” The decision whether or not to fight an infraction ticket is one that should receive very careful consideration.

Administrative License Suspension Hearings:
Most states provide for administrative driver's license suspension in certain circumstances, but in every case the driver is entitled to a hearing in which the suspension can be contested. If a hearing is not requested within the time provided by law the right to a hearing is waived, and the suspension goes into effect automatically. In some cases the time for requesting a hearing is very short, and the scope of the hearing is usually very narrow and highly technical, from a legal standpoint. Self-representation at a suspension hearing is rarely successful. The different types of administrative suspension include:

• Medical/Drug Suspension
  Some medical conditions require administrative driver's license suspension. These include certain diseases involving seizures, blackouts, fainting spells, serious physical coordination problems, some mental disorders and loss of vision. The defense to this type of suspension usually involves the submission of written reports from health care providers and other experts.
• Negligent Driver Suspension
  This involves situations in which a driver has accumulated too many “points” for traffic tickets or has been involved in an unusually high number of accidents.
• Drunk Driving Suspension Based on BAC
  If a defendant’s chemical test shows a BAC of .08% or more most states impose a 30 to 90 day suspension. This varies from state to state and may be longer than that. At the hearing, skilled counsel may attack the probable cause for the defendant’s detention and arrest and/or the validity of the chemical test.
• Drunk Driving Suspension Based on Test Refusal
  Where the defendant refuses to submit to a chemical test most states provide for a license suspension ranging from six months to a year, but in at least one state the term is three years. The refusal suspension is not affected by the outcome of a DUI trial. If there is a refusal suspension it remains in place even if the defendant is adjudged “not guilty.” At the hearing, skilled counsel may attack the probable cause for the defendant’s detention and arrest and/or the validity of the chemical test.

If you or someone you know in Hayward, Freemont, Pleasanton, or anywhere in the Bay Area needs the legal counsel or the assistance of an experienced California DUI lawyer, contact Lynn Gorelick of the Law Offices of Allan Gorelick today at 866-731-9214, or use the contact form provided on this site to arrange for your free initial consultation.

Frequently Asked Questions

The following information includes frequently asked drunk driving defense questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel.  By contacting Bay Area DUI lawyer Lynn Gorelick at 866-731-9214, you can receive a personal consultation regarding your specific drunk driving defense case.

Is drunk driving a felony?
Aggravated cases such as those involving accidents where someone is killed or seriously injured have long been charged as felonies, but most drunk driving charges are brought as misdemeanors. Growing public and legislative impatience with repeat offenders has been expressed in the enactment of statutes such as the one in California that provides for a fourth drunk driving offense within seven years to be charged as a felony. The number of prior offenses and the time between them varies from state to state for the charging of felony drunk driving, but a trend is definitely in progress.

Can my driver's license be suspended or revoked?
Yes it can. Drivers who refuse to take a chemical test after a drunk driving arrest face an administrative suspension by the state licensing agency even if the drunk driving charge is dismissed or results in a “not guilty” verdict. The duration of the suspension varies from state to state, but can be as long as three years. If the drunk driving prosecution results in a conviction, the court will order an additional suspension or in aggravated cases, actually revoke the license as part of the sentence. Driving without insurance can result in license suspension, and drivers who accumulate too many traffic tickets may also have their driving privilege suspended. It is not uncommon for a driver's license suspension to trigger negative job action by an employer, and it almost always results in a substantial increase in the cost of insurance.

Is there any way to avoid a drunk driving arrest?
It is not against the law to drink and drive, no matter where you live provided that you are under the legal limit, but the most reliable way to avoid a drunk driving conviction is not to do it. It is an excellent idea, when planning a night out, to arrange for a "designated driver." Barring that, you should never drive after consuming any amount of alcohol if you don't know your personal limitations in terms of alcohol's effects on you.

If you do know your limitations, you can safely drink and drive, provided that you are honest with yourself about your condition. If you have any doubt as to your ability to drive safely after drinking, don't do it. Take a taxi, walk, or call a friend, but no matter what, do not drive.

Does the car have to be moving for me to be guilty of DUI?
No. You can be arrested for DUI by driving while over the legal BAC in your state or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for DUI by being in actual physical control of the car.

What are the benefits of hiring a drunk driving attorney?
Although generally charged as a misdemeanor on a first offense, drunk driving cases are prosecuted with the same aggressive zeal as serious felonies in most states. If convicted, even a first offender may encounter far-reaching and destructive consequences, aside and apart from the sentence imposed by the Court. Even if the Court does not suspend or revoke the driving privilege the DMV or other state licensing agency may do so in an administrative action, and in this age the lack of a drivers license often causes loss of employment, resulting in financial catastrophe. If automobile insurance is not canceled the convicted drunk driver is certain to receive notice of drastic premium increases. As prosecutors have tightened the focus on drunk driving cases legislators have responded with ever more severe statutory penalties and the scientific world has brought the cutting edge of modern technology into the drunk driving courtroom.

Effective representation in a drunk driving case requires much more than a law degree and general courtroom experience. There is no substitute for an aggressive and experienced trial lawyer with broad expertise in drunk driving defense. Mere knowledge of the law is simply not sufficient. Today’s drunk driving lawyer must be thoroughly conversant with the effects of alcohol on the body and must be well-informed on matters involving pharmacology and chemical testing. He or she must know the many medical and psychological conditions that can mimic intoxication with their symptoms, and needs sufficient experience in the field to have established personal credibility with the prosecutors and judges in this demanding field. Lawyers lacking in drunk driving defense experience are often overwhelmed by the various scientific and technical aspects of these cases, even though they may be superbly qualified to handle cases in other fields.

What are Field Sobriety Tests?
Field Sobriety Tests (FSTs) are a series of tests commonly administered to drunk driving suspects for the stated purpose of evaluating their sobriety. In many cases, however, the investigating officer has already decided to arrest the suspect before administering any FSTs based on his or her personal observation of the suspect. In cases such as this, the test is used not to determine sobriety, but to gather evidence to use against the suspect in court.

With some variation from one police agency to another, the FSTs typically require the suspect to walk heel-to-toe a few steps, turn, and then walk back heel to toe; touch the tip of the nose with the tip of each index finger while keeping the eyes closed; stand on first one leg, then the other, as directed by the officer; stand with eyes closed and head tilted back, as directed by the officer; and, without moving the head, visually track the horizontal movement of a pen or flashlight moved back and forth in front of his or her face by the officer. Most of the tests are intended to measure physical coordination and mental concentration. The eye test measures the angle at which an involuntary reaction of the pupil, called nystagmus, occurs. Although the onset of nystagmus is involuntary, and the angle at which it occurs may affected by alcohol consumption, the fact is that nystagmus begins to appear regularly in most people, with or without consuming alcohol, when they are about 40 years old.

Do I have to take Field Sobriety Test (FST)?
No. You are not legally required to perform FST’s, and you should probably "respectfully decline" any request that you do so. It is virtually impossible to pass an FST. Nervous, frightened people tend to make mistakes, and you may be certain that if you are stopped for drunk driving and asked to perform an FST, you are going to be nervous and you are going to be frightened. If you make a single error - even a trivial one - in any of the several stages of the test, the officer may grade your performance as a failure. If, by some miracle, your performance is utterly flawless, one of the witnesses at your trial may be a prosecution expert, testifying that perfect performance on the FST does not necessarily indicate that you were not impaired by alcohol. The expert will then go on to explain that it may very well be an indication that you are a heavy drinker who has built up "tolerance" to alcohol over time. In other words, if you fail the test, that means you were impaired, but if you pass the test that doesn't necessarily help your case. Tell the officer that you are nervous and upset - that will certainly not be a lie - and that you "respectfully decline" to perform any FST’s.

Do I have to take a chemical test?
If arrested for drunk driving, you will be offered your choice of a blood, breath, or urine test to measure the alcohol in your system. In most states police are not permitted to physically compel you to take a chemical test unless you are involved in an injury-causing accident. To the extent the police may not be able to employ force to coerce you, the answer is "no, you do not have to take the test." Make certain you know the law in your state before you refuse a chemical test, however. Some states do permit police to use reasonable force to obtain a blood sample if a breath test is refused, and in at least eight states the refusal itself constitutes a separate criminal offense.

Wherever your arrest occurs, a chemical test refusal will probably trigger serious penalties, including administrative suspension of your driver's license for as long as three years. Even if a jury later finds you "not guilty," your acquittal will not stop the administrative suspension of your license. Thus, while you may have the "power" to refuse the test in some states, you probably do not have the right to do so in any state. And if your case goes to trial, the prosecution will use a test refusal against you as evidence of "consciousness of guilt" on your part, arguing that the reason you refused the test was that you realized the test result would prove your guilt. Refusing a chemical test is almost always a very bad idea.

Professional Profile

For more than 35 years, the attorneys of the Law Offices of Allan Gorelick have helped people accused of Driving Under the Influence of alcohol (DUI). Their many years of experience practicing law in the Bay Area has allowed them to build solid relationships with judges and other court officials, and they have earned a superb reputation from the legal community. The Law Offices of Allan Gorelick has been voted the best law firm in Alameda county for six years in a row.

If you or someone you know has been arrested and charged with drunk driving, and you need the aggressive and skilled legal representation of a Hayward, California drunk driving attorney, contact Lynn Gorelick of the Law Offices of Allan Gorelick today at 866-731-9214, or use the contact form provided on this site to arrange for your free initial consultation.

FIRM ADDRESSES:
Law Offices of Allan Gorelick
24301 Southland Dr., Suite 620
Hayward, CA 94545

4900 Hopyard Dr., Suite 100
Pleasanton, CA 94588

Telephone: 866-731-9214

After-Hours Appointments Available Upon Request

MEMBERS OF THE FIRM:
Lynn Gorelick

EDUCATION:

• University of California, Hastings College of Law, J.D., 1982
• University of California, Berkeley, B.A., 1978

COURTS ADMITTED:

• California, 1982
• U.S. District Court, Northern District of California, 1983

PROFESSIONAL MEMBERSHIPS AND AFFILIATIONS:

• Judge Pro Tem, Traffic and Small Claims Calendars in Berkeley, Pleasanton and Fremont Courts
• California DUI Lawyers Association, Board of Directors 
• California Attorneys for Criminal Justice
• Alameda County Bar Association
• California Public Defender Association
• Women Defenders
• California Deuce Defenders, Board Member
• California Trial Lawyers Association
• California Bar Association, Court Appointed Attorneys Committee
• California Bar Association, Judicial Evaluation Committee

COMMUNITY ACTIVITIES:

• Pro Bono Service: S.I.S.T.E.R., a non-profit drug and alcohol program for women
• S.I.S.T.E.R., Board of Directors
• Berkeley Hills Nursery School, President, Board of Directors
• Prospect Sierra School Volunteer, Chairperson, Film Festival Gala

AWARDS AND RECOGNITION:

• "Best Lawyer Award," Alameda Newspaper Group - Law Offices of Allan Gorelick

LECTURES AND SEMINARS:

• Speaker, Alameda County Public Defender's Training Session, Deuces, Dope and the DMV
• Speaker, Women Defenders Annual Fall Seminar, Collateral Consequences of Convictions: Helping Clients to Avoid Them

PRACTICE AREAS:

• Criminal Defense
• Drunk Driving
• Drug Charges
• Domestic Violence/Assault
• Theft/Shoplifting
• DMV License Suspensions