Los Angeles Criminal Defense Attorney Blog

Published on: March 9, 2014

Los Angeles DUI Conundrum: What Should Be Done About “Mr. Checkpoint”?

Los Angeles DUI stakeholders – police, attorneys on both sides, judges, criminal defendants, and victims of DUI tragedies alike – don’t know what to make of a Twitter user who goes by the handle “Mr. Checkpoint.”

Also known as Sennett Devermont, the 25-year old Santa Monican has taken to calling himself “the drinking crowd’s Batman,” according to a recent article in the LA Weekly.

Devermont has over 42,000 followers on Twitter and an additional 20,000 text subscribers. His free cell phone app, Mr. Checkpoint, has been downloaded thousands of times. Why?

Devermont reveals the locations of upcoming Southern California DUI checkpoints.

Unsurprisingly, representatives from Mothers Against Drunk Driving (MADD) have been less than thrilled with Devermont’s mission. The Group’s Director of Communications, Anna Duerr, said “We don’t want apps out there that allow people to evade checkpoints.” MADD’s Regional Director for Los Angeles, Pat Rillera, told the LA Weekly: “While we support the publication of checkpoints as a deterrent to drunk driving, sites like Mr. Checkpoint alert drunk drivers so they can evade arrest. It’s not meant as a positive.”

Devermont disagrees. He’s found support from among many people who passionately want to punish DUI drivers and make streets safer. Defenders believe this app can deter people who are on the bubble from driving — that is, to encourage tipsy folks to take a cab, find a designated driver or walk home.

Devermont usually starts sending out his alerts during the evening, based on information provided by Sheriff and Police Departments in Los Angeles and San Diego. The app does have a box — which you must check — wherein you agree that you will not drive under the influence.

Devermont said he came up with the idea while enrolled at San Diego State University. Police pulled him over after a party. He was 18 at the time. Police forced him to go through the paces of several field sobriety tests. (These can include the finger to the nose test; the stand on one leg test; the count backwards by threes test and the horizontal gaze test).

Police told Devermont that he failed, but he hadn’t consumed any alcohol! When he blew into a breathalyzer, sure enough, he scored a 0.00 BAC. Still, he told the LA Weekly “it was humiliating and intimidating. I felt violated. After that, I looked up my rights.”

Do you need help understanding and protecting your rights after a Los Angeles DUI arrest? Please get in touch with Harvard Law School educated attorney, Michael Kraut, of the Kraut Law Group Criminal & DUI Lawyers, Inc., for a thorough, free consultation.

Published on: March 6, 2014

File Under: “Is This Really Happening?”– Police Defend Arrest of Black Man, Even After He Blew a 0.00% on Breath Test

by Michael Kraut

There’s no doubt that certain Los Angeles DUI cases are ambiguous.

Police should be entitled to some discretion when it comes to deciding whether to arrest people. If you look and act like you are DUI — and you blow a high number on your breath test — the police may have good cause to place you under arrest.

•   But what happens if you blow a 0.00 percent on your breath test?
•   What if a chemical test shows that you are literally stone cold sober?
•   And what if police arrest you anyway?
•   And what if you are black, and they arrest you for this “crime”?
•   And what if you are black, and they arrest you in Texas after blowing a 0.00 percent BAC, and then police still stand by the arrest months later?

If that scenario sounds fictional, think again.

Police in Austin arrested an African American man, Larry Davis, on January 13, 2013, after Davis ran a stop sign. Davis told police that he had only one drink of alcohol — and a breath test showed that he had a 0.00 percent BAC. He also volunteered to take a blood test. Weeks later, Davis’ blood test results came back showing exactly what he had insisted – there was zero alcohol in his system.

Nevertheless, Davis had to spend a whole day behind bars and deal with an arrest record that continued to dog him into 2014. To add insult to injury, Austin Police Commander, David Mahoney, told the local paper that he supported the officer’s decision to bust Davis for DUI: “if there’s someone who is possibly impaired, we don’t want them driving… we need to get them off the road, so that was probably the officer’s mindset.”

Statistically speaking, it’s easy to make a case that the Austin police are a bit “trigger happy,” when it comes to busting people for DUI. Travis County, Texas, has the highest DUI dismissal rate in Texas, per an Austin Statesman analysis — a whopping 30% of cases are dismissed.

That said, battling back against a DUI charge anywhere is neither simple, nor cheap.

First of all, the defendant must contend with direct costs, such as legal fees. The indirect costs can be far more pernicious. If you sit in jail for a day or two — or spend several days going back and forth to court — you waste many potential billable hours. That “time suck” alone can cost some people hundreds or thousands of dollars. Secondly, consider the indirect psychological and relationship costs. Many people are both judgmental and superficial. If police arrested you for DUI, others may judge you, even if the facts are totally on your side. Davis spoke to this frustration: “I was arrested for nothing, really… it was suspicion of drunk driving, which I wasn’t, so I am surprised and hurt at the same time.”

In Los Angeles, California police must respect your Fourth Amendment Rights. In other words, they must be able to justify stopping you by pointing to clear, easy to articulate facts about some criminal activity. It is possible to challenge probable cause by asking for a hearing per California Penal Code Section 1538.5.

The team here at the Kraut Law Group Criminal & DUI Lawyers, Inc. can assist. Attorney Michael Kraut is a former prosecutor who has a stellar reputation for helping clients like you with Los Angeles DUI defense.

Published on: February 27, 2014

If Los Angeles DUI Breathalyzer Tests Are So Flawed, Then Why Do So Many Police Forces Use Them?

by Michael Kraut

If you’ve read our criticisms of Los Angeles DUI breathalyzer tests, you’ve hopefully been at least slightly convinced that these screening tools are less than flawless.

At the risk of being repetitious, breath test results can vary, depending on:

•   How deeply you blow into the machine;
•   The machine’s calibration;
•   Your metabolic rate of alcohol absorption;
•   How much food you ate;
•   Your genetics and metabolic history;
•   Whether you’re sick or on any kind of medications;
•   How much “mouth alcohol” is present;
•   Whether you’re producing ketone bodies — metabolic byproducts of certain diets — which can throw off breath test readings and lead to false positives;
•   Whether the officer who conducted your breath test made mistakes regarding calibration, cleaning the machine, documenting the process and so forth;
•   Whether the type of breathalyzer machine used was flawed.

Depending on what happened with the breath test, you may have potential defensive avenues. For instance, perhaps the police violated your Constitutional rights and pulled you over without a good reason or subjected you to unreasonable search and seizure.

How should you fight your Los Angeles DUI charges? The first rule is commonsensical: don’t try to figure this all out on your own. Trust the attorneys at the Kraut Law Group Criminal & DUI Lawyers, Inc. to help you build a good strategy and contrive an effective defense.
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Published on: February 26, 2014

Actress Amanda Bynes Wins Big Victory in Her Los Angeles DUI Case

by Michael Kraut

In 2012, Actress Amanda Bynes was arrested for misdemeanor DUI in Los Angeles – the event prompted a slew of tabloid rumors and an onslaught of media coverage.

Law enforcement alleged that, in April 2012, Bynes tried to pass a police vehicle in her black BMW at around 3:00 a.m. She clipped the right rear panel of the cop car. Unsurprisingly, the police tried to pull her over – but she fled the scene. The police eventually caught up with her, arrested her, and set her bail at $5,000. In response, she begged for help from the President on Twitter (always a highly successful strategy), writing: “Hey@BarakObama… I don’t drink. Please fire the cop who arrested me. I also don’t hit and run.”

Prosecutors charged her with a single count of misdemeanor DUI, and the District Attorney asked for a sentencing enhancement because the actress refused a blood test or breathalyzer test. A conviction could have netted her a maximum sentence of six months behind bars.

But Bynes just resolved her case by pleading no contest to a charge of “wet reckless” – a similar but much less severe charge than DUI. Bynes will need to pay fines, complete a three month alcohol education course and serve probation for three years.

Even before her DUI, Bynes had a fractious relationship with the Los Angeles police. A few weeks prior to her April 2012 stop in West Hollywood, police stopped the actress for chatting on her cell phone while driving. While an officer wrote up her ticket, Bynes hit the gas and fled the scene before the cop could give her the ticket. (Later on, she went to the police station and paid the ticket.)

What lessons can we learn from Bynes’ torturous progression through the Los Angeles legal system?

Perhaps the most salient lesson is this: prosecutors CAN ask for enhanced sentencing, if you refuse a breath test or blood test. Even though Bynes plead no contest and escaped serving serious jail time, this doesn’t always happen. Prosecutors can really go after you, if you refused your breath or blood test. For instance, your license suspension could be extended substantially, and you could face extra jail time.

To manage your charges, get in touch with an experienced Los Angeles DUI defense attorney at the Kraut Law Group Criminal & DUI Lawyers, Inc. immediately for a confidential and free consultation. Mr. Kraut is a Harvard Law School educated attorney who also served as a senior level district attorney. He has a deep knowledge of the prosecutorial mindset and playbook, and he can help defendants develop articulate, precise strategies.
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Published on: February 20, 2014

Do Los Angeles DUI Checkpoints Really Work?

by Michael Kraut

Los Angeles DUI checkpoints have their critics. For instance, the American Beverage Institute complains that checkpoints lead more often to frivolous citations – police cite drivers who don’t have their licenses or who have broken taillights – than they do to stopping dangerous drivers. The ABI is actually far more fond of saturation patrols, also known as roving patrols. The ABI loves to cite a 2007 Virginia Tech study that found that roving patrols are almost 25 times more likely than checkpoints to nab DUI drivers.

Even if the American Beverage Institute’s analysis holds water — and the 2007 study could be replicated and confirmed here in Los Angeles — that doesn’t mean that police will (or should) suspend checkpoints. After all, one of the arguments for checkpoints is that they act as a deterrent. When drivers get behind the wheel, they know that checkpoints are out there “somewhere,” lurking. This fact may encourage drivers who are on the fence about whether to drive after drinking to make the smart choice and call a cab or a designated driver. Advocates of checkpoints argue that they’re also safe and relatively easy for police to run.

Of course, as someone who has been recently arrested — or knows someone who has been arrested — for a DUI, you probably could care less about whether saturation patrols or checkpoints are better enforcement methods.

Instead, you want crystal clear, insightful guidance about how to fight your charges and move on with your life. Look to the Los Angeles DUI defense team at the Kraut Law Group Criminal & DUI Lawyers, Inc.. We can help you get a grip on the charges you face and develop a plan of action to take them on.
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Published on: February 17, 2014

Did Justin Bieber Hit and Kill a 7-year-old While DUI? (The Anatomy of a Viral Rumor)

by Michael Kraut

As this Los Angeles DUI blog (and an infinite number of other sources) reported: last month, pop singer, Justin Bieber, got arrested in Miami for DUI. Beiber had been drag racing a fellow 19-year-old musician.

The news covered the story extensively, so there’s no need to rehash the details. However, in the wake of the arrest, a viral rumor spread suggesting that Bieber had hit and killed a 7-year-old boy while DUI. One fake headline making the rounds read: “Breaking News: Justin Bieber did it again!! This time it’s over … DUI.”

This message made the round weeks after police stopped Bieber and accused the Canadian pop star of racing a rented Lamborghini at reckless speeds after consuming antidepressants, beer, and marijuana.

Unfortunately, the Beiber hoax caused big computer problems. Unlucky users who clicked on a link to watch a video about the story met with a nasty surprise. Instead of downloading a video, they downloaded a virus, which grabbed their personal information and passed it to criminals.

Here’s what’s interesting about this rumor story. It illustrates the bizarre, web-related drama that DUI arrests can create. Odds are that your arrest won’t give rise to ridiculous online hoaxes. However, your DUI mug shot may get circulated widely on the internet. This can cause reputation management problems. Now, whenever someone Googles your name, your mug shot may pop up immediately in the search engine results. This is embarrassing. It can also cause you trouble when you start a relationship, apply for a loan, or try to land a job.

Preparing for odd eventualities is critical.

There is only a five percent chance that a DUI case will go to jury trial. Most other cases will be dismissed or settled way before this happens. But you still need to approach your defense as if you might ultimately plead your case before 12 jurors.

What if that happens?

First, the jurors will listen to witnesses for the prosecution. Then your lawyer will cross-examine. Then lawyers will review evidence, and both attorneys will make closing arguments. Next, the jury will deliberate and decide whether you’re “not guilty” or “guilty.” The jury can be “hung,” if the jurors cannot come to unanimous agreement. Even if you’re found guilty, your DUI attorney can try to convince the court to overturn the verdict and either dismiss the case or have it retried.

The point is that excellent preparation is essential. Harvard Law School educated former prosecutor, Michael Kraut, and his legal team, can help you build a sound Los Angeles DUI defense.

Published on: February 16, 2014

4 Potential Issues with Your Los Angeles DUI Breathalyzer Test Results

by Michael Kraut

You recently tested positive for DUI in Los Angeles via a breathalyzer test.

Perhaps you’re an underage driver who blew a relatively low 0.06% BAC. Your BAC level wouldn’t have been a problem, had you have been of legal drinking age. Or perhaps police stopped you at a checkpoint in Pasadena, and you blew a 0.09% – just over the legal limit – and performed less than stellarly on your field sobriety tests. Or maybe you blew an “extreme DUI” of 0.17%, after you got into an accident.

In all these situations, your Los Angeles DUI defense attorney may be able to challenge the results or accuracy of the breath test to reduce your penalties or potentially void them entirely. For instance, consider the “extreme DUI” example. Perhaps your lawyer can convince the court that you weren’t 0.17% but rather 0.14%. Even that may be enough to substantially reduce your penalties, such as jail time, fines, probation, alcohol school, etcetera.

Here are 4 common issues with breath tests:

1. Alcohol left over in your mouth.

Here’s a gross but true fact: alcohol can get stuck in between your teeth and in your mouth, depending on your dentition, your general oral health, and other factors. This “mouth alcohol” can throw off your BAC reading and cause it to read higher than it is, objectively.

2. You may have a slow alcohol metabolism.

The breath test doesn’t measure blood alcohol directly – it infers it. How long does it take you to absorb and metabolize alcohol? The breath test results may skew higher than your objective BAC level.

3. The strength of your exhale can skew the test results.

If you blow out “super hard” during the breath test, you can skew the BAC reading to be higher than accurate. This is one of the reasons why many law enforcement officials ask people to “blow deeply” into breath machines. They know that the deeper you blow, the higher your BAC reading will be, all other things being equal.

4. Other factors.

Potentially dozens of factors can throw off the breath test results, including:

•   Your breath’s temperature;
•   Whether or not you’re a diabetic or on an intense diet (ketone bodies created by low calorie and low carb diets can skew breath test results);
•   Whether you’ve ingested other chemicals that could throw off the breath test;
•   Whether you’re a man or a woman (men and woman absorb alcohol at different rates);
•   Whether the officer calibrated the breath test properly;
•   Whether the machine itself has inherent engineering flaws.

Of course, a breath test is not always challengeable, but you might be surprised by the sheer diversity of DUI defenses available to you.

Talk to a highly respected and experienced Los Angeles DUI criminal defense lawyer at the Kraut Law Group Criminal & DUI Lawyers, Inc. to get a handle on your options. Attorney Kraut is an ex-D.A. He has a deep understanding of the prosecutorial process and great relationships in the system.
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Published on: February 12, 2014

SNL Comedian Chris Kattan Busted for DUI in Los Angeles

by Michael Kraut

“Saturday Night Live” alumnus, Chris Kattan, was pulled over on Monday for DUI in Los Angeles, according to California Highway Patrol reports.

The 43-year-old Kattan hit a construction truck on the 101 Freeway at around 2 in the morning in Encino. CHP says that the truck had been parked on the shoulder. Kattan suffered a bloody nose in the crash. Fortunately, no construction workers got hurt, since no one was in the vehicle. Police took Kattan to a Van Nuys precinct and booked him.

Authorities say the truck had been well marked with orange cones, signs and flashing arrows. But Kattan apparently did not see those markers. The crash wrecked his 2011 Mercedes and also damaged the construction truck. Prior to the crash, a woman called the police to report a “Mercedes … weaving all over the roadway at slow speeds.”

Kattan — who’s best known for his wild sketch comedy bit (and later movie), The Night at the Roxbury, which he developed with comedian, Jim Carrey — confessed to police that he had been on prescription medications. Police said Kattan took a chemical test for drug DUI. The arresting officer, Leland Tang, told reporters “[Kattan’s accident] could have been lot worse.”

Kattan tweeted to his fans afterwards that “those concerned are just adding gossip: I am fine, passed all tests, released without bail, have driver’s license, cop offered to drive me home.”

Kattan is lucky that he did not get hurt more seriously and that he did not injure other people. Even so, in California, if you’re convicted of a misdemeanor DUI in Los Angeles, prosecutors can still seek an array of punishments, pursuant to California Vehicle Code Section 23152 (A), including:

•   Mandatory 48 hours in custody and up to six months behind bars;
•   A fine of $1,000 in addition to court costs, which can be substantially more than $1,000;
•   The court can impose either formal or informal probation and mandate that you install an Interlock Ignition Device (IID) in your vehicle. This means that you will need to blow a “sober breath” into the device before you can start your car;
•   You may face 6 weeks to 9 months of DUI alcohol school;
•   You can lose your license for a whole year… without the possibility of getting a restricted license for work or school.

For help understanding the nature of your Los Angeles DUI charge, connect with the team here at the Kraut Law Group Criminal & DUI Lawyers, Inc. today for a free, confidential consultation.
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Published on: February 6, 2014

Los Angeles DUI Analysis: Is the “Breathalyzer Equalizer” a Boon or a Bane for Road Safety?

by Michael Kraut

A new product has created an incredible amount of controversy and debate within the Los Angeles DUI prevention community. It’s called the “breathalyzer equalizer.” Developed by a DUI defense attorney and a state trooper, this product uses a powder to absorb “mouth alcohol” to make breathalyzer test results more accurate.

As we’ve discussed before on this blog, mouth alcohol can throw off the accuracy of breath test readings and lead to false positives and unnecessary arrests. The makers of this product argue that increased accuracy will lead to safer roads and fewer people falsely arrested and convicted. Critics, like Mothers Against Drunk Driving spokesperson, Berry Martin, call the product “unnecessary” and warn that its widespread use could “lead to dangerous circumstances.” Martin, a member of Georgia’s chapter of MADD, did not mince words: “you are putting drunks on the road…If you get caught, you could beat the test and that false sense of hope could lead to an accident. The accident could kill somebody.”

Would such a product lead to “false hope”?

Could this product cause harm?

These questions may not be simple to answer. Martin might have a point.

Paul Broft, a product representative, explained that “all [the Breathalyzer Equalizer] does is eliminate errors. What we are doing is protecting lives and careers.”

Let’s extrapolate from that logic. Imagine someone gets falsely convicted for DUI for having mouth alcohol, which pushes her BAC level above the 0.08% threshold. This leads to a conviction and unfair punishments, such as license suspension, jail time, etcetera. It also then leads to other indirect problems, such as the loss of her job, relationship issues, self-esteem problems and high insurance rates.

That might sound like a “bridge too far.” But now imagine hundreds of these “close call” DUI arrests occurring every year — hundreds of lives torn apart for no reason. As important as it is to stamp out problems like DUI recidivism, it’s also important to prevent nonsensical or unfair DUI arrests.

Of course, Martin’s point can also be correct. Depending on how this product is advertised and used, it could encourage drivers who are “on the bubble” to take a little extra risk. If you extrapolate that “little extra risk” over large time periods and large numbers of people, it could add up to something substantial and dangerous.

The point is that with products like this – as with changes to DUI laws and policy – you can never really know what changes will lead to what results in advance.

The good news is that your defense does not have to be confusing or complicated, particularly when you work with an experienced Los Angeles DUI defense lawyer at the Kraut Law Group Criminal & DUI Lawyers, Inc.. Connect today with attorney Kraut and his capable team today to build your defense.
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Published on: February 1, 2014

NFL Legend, Bruce Smith, Once Convicted of DUI, Warns about Dangers of Super Bowl Sunday DUIs

by Michael Kraut

Los Angeles DUI arrests can leave painful residue. Consider what happened to – the greatest sack artist in the history of the National Football League – after he got pulled over and arrested for DUI in 2009 in Virginia Beach.

Despite playing in four Super Bowls, racking up an unbelievable 200 sacks, and playing All-Pro 11 different times, Smith perseverates most on one statistic he wishes he could forget: his DUI charges.

To that end, Smith chose to work with Anheuser-Busch to create a Public Service Announcement (PSA) to spread the awareness about the dangers of DUI during the Super Bowl. Super Bowl Sunday is one of the most deadly times of the year for DUI driving. Other than New Year’s Eve — and, possibly, the day before Thanksgiving — Super Bowl Sunday is the worst day to drive all year.

In the ad, Smith tells viewers: “I was disappointed with myself and those close to me… please, learn from my story and make sure a safe ride home is part of your game plan.”

The 50-year-old Smith talked to reporters about the purpose of the ad: “the object of this campaign is to focus on Super Bowl Sunday and encourage people who plan to drink to have a game plan… Anheuser-Busch is trying to make it a safer experience for all fans.”

Not everyone is convinced by this message. Bruce Livingston of Alcohol Justice, a watchdog organization, sees the move as a slick marketing ploy: “what Anheuser-Busch is really saying is ‘drink up’… they are not promoting moderation in drinking at all. They are committed to promoting beer consumption.”

Smith, who claims to always use a designated driver now, told reporters that it’s challenging to confront the past and think deeply about his DUI: “to pull a scab off an old wound is not something anyone likes to do… if this helps one person make a wise decision, it’s worth it.”

Acknowledging mistakes made can be a deeply humane but also quite painful experience. In moments of crises, we can make less than ideal decisions. For instance, any driver stopped for suspicion of DUI must consider whether to submit to a chemical test, such as breath, blood, or urine test.

If you refuse to test after being arrested for DUI, you can face major consequences. If you’re under 21, you must submit to a preliminary alcohol-screening (PAS) test. If you’re on probation, and you refuse, your refusal — in and of itself! — can be considered a violation of your probation, and you can go back to jail.

Once you’re arrested, you must take either a blood test or breath test. If police suspect that you have been using drugs, you need to take a urine test.

The definition of what legally constitutes “refusal” can be hazy.

If you spend a long time before responding to an officer’s request, that could be considered a refusal, but only under certain conditions.

If you were impaired or unconscious — and/or you couldn’t understand or hear the request — the Court will likely not penalize you for refusal. The police also must advise you about the consequences of refusing a test.

Those consequences, however, can be pretty severe.

A refusal can, for instance, tack on additional jail time to your sentence. As far as the DMV is concerned… your refusal can lead to a total suspension of your license for a full year – without the possibility of a restricted license. The situation can get more severe from there, if you have racked-up additional DUI convictions.

To understand your options and make smarter choices, connect with an experienced Los Angeles DUI attorney at the Kraut Law Group Criminal & DUI Lawyers, Inc. today for a free consultation.
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