How many drinks are TOO many to drive?

Every time you drive your car after consuming alcohol, you run a risk of potentially being falsely arrested and wrongfully charged with a DUI.  Let's identify the scientific and logical explanations that demonstrate why they were not guilty of driving under the influence.

It is important to note that the laws against driving under the influence prohibit an adult (above the age of 21) from driving with a blood alcohol concentration (BAC) of .08% or above, and California Vehicle Code §23152(a) prohibits someone from driving under the influence of alcohol, even if their BAC is below .08%. Thus, it is important to know your limits, to know how alcohol effects you, and how impaired you get from each drink.  Some people have a greater tolerance to alcohol than others, based on their resistance to the effects of alcohol.  But, even if someone does not feel impaired at .08% BAC, they are deemed too impaired to drive based on the law.

"The absorption rate varies in each person, and studies have shown that it can vary from 14 minutes to 138 minutes...This means that a person’s body can take over two hours to fully absorb the alcohol and reach a peak, only then will the alcohol be evenly disbursed in their blood, and only then will breathalyzer readings become somewhat accurate. "

Remember, it is not illegal to consume alcohol and drive, as long as your BAC is below .08%, and you are not too impaired to drive a car as cautiously as a sober person.  The problem is that most people, who have been drinking, have no idea when they reach .08% BAC.   This is why someone may feel as though they can drive safely, but may still be considered driving under the influence based on the law.  Here is a BIG secret to most DUI cases!!!  Prosecutors also don’t have any idea when you reached .08% BAC.

Here is how it works.  When someone consumes alcohol, it doesn’t immediately disperse evenly throughout your entire bloodstream.  It takes a while to get evenly disbursed and “distributed” throughout the various organs and tissues in your body.  Organs with the highest blood supply, like the lungs, get the largest initial concentration of alcohol.  Thus, the BAC in your lungs, during the period of time when the alcohol is “absorbing” into your system, may read up to 3X higher than your actual BAC level.  This means that potentially someone who has an actual .04% BAC, may register a false-high reading of .12% BAC in a breathalyzer, during the “absorptive phase.”

Also, everyone absorbs alcohol at their own pace.  The absorption rate varies in each person, and studies have shown that it can vary from 14 minutes to 138 minutes (from end of alcohol intake to peak blood alcohol concentration).  This means that a person’s body can take over two hours to fully absorb the alcohol and reach a peak, only then will the alcohol be evenly disbursed in their blood, and only then will breathalyzer readings become somewhat accurate.  In essence, once you take a drink and decide to drive, you expose yourself to potentially being obligated to submit to a chemical test at the request of a police officer.  These tests, as you now know, may falsely reflect a BAC level much higher than your actual level.

How Serious is a First Offense DUI?

Many people, and unfortunately most attorneys, see a First Offense DUI as a minor offense.  It is not!  The consequences of a DUI conviction go far beyond a driver’s license suspension, possible jail time, fines and fees, an alcohol program, probation, and an ignition interlock device in your car. The social stigma associated with a criminal conviction may create major problems in one’s professional employment and career, and may cause major turmoil in someone’s personal life.

The attorney that represents a DUI client, obviously doesn’t have to complete the requirements of a DUI, and doesn’t have to live in the shoes of the convicted first timer after the case resolves.  Also, since most first offenders don’t face major jail time, attorneys from various fields of law tend to convince clients they can handle their case.  For these reasons, many attorneys do not give the care and attention a First DUI deserves.

Most people facing a first offense never anticipated to be placed in the criminal justice system as a defendant. Also, most people rely on their driver’s license to make a living.  Because of this many people convicted of DUI end up driving on their suspended license, violating probation, or are constantly worried about getting stopped by the police. We understand that these clients need our expertise and skill, to prevent them from unjustifiably being convicted of a DUI.

Some attorneys take advantage of first time DUI clients because they know that the person being charged is usually inexperienced with the criminal justice system, doesn’t know what they are facing, and doesn’t understand how to potentially defend themselves.  Some people blame themselves for getting arrested because they know that they did drink before they went driving. However, every state permits adults to drive after they have had something to drink.  It only becomes illegal when the person is so impaired, they exhibit unsafe driving caused by the alcohol, or when their BAC level exceeds the .08% limit.

It is crucial to get an attorney that is trustworthy, and explains everything about the charges, the potential consequences, your defenses, and your alternatives.  Some attorneys leave their clients in the dark, and hopefully get a good result to justify their fees.  Unfortunately, most people convicted of a DUI don’t know whether their attorney properly represented them, or looked into all of the defenses in their case.

An attorney at The Law Office of Ben Mironer always investigates every DUI case thoroughly, and recommends the best option based on all of the facts in the case.

Colts Owner Jim Irsay Arrested for a DUI

The owner of the Indianapolis Colts, Jim Irsay, possibly faces four felony counts after being arrested Sunday night for a DUI by Carmel police. Irsay did not crash, but will likely be charged with driving under the influence and possession of a controlled substance, police said.

Lt. Joe Bickel of the Carmel Police Department said in a release, Irsay reportedly drove at a slow rate of speed, stopped in the roadway, and failed to signal a turn before police stopped him.

"During the course of the investigation, Irsay subsequently failed several roadside field sobriety tests," Bickel said.

This is important to note, especially when considering that Field Sobriety Tests are not pass or fail. These tests were created and used to determined cues or clues of impairment. They are in no way conclusory or 100% accurate to prove impairment.

Thus, it appears Irsay had some prescription drugs in his car, drove in an odd manner, and performed Field Sobriety Tests poorly.

But, this case definitely needs further investigation. If the streets were empty and no other cars were affected, while Irsay's driving may appear somewhat erratic, it was not necessarily enough to prove he was too impaired to drive. As for the Field Sobriety Tests, they can always be challenged as insufficient to prove impairment beyond a reasonable doubt.

Thus, it appears they must wait for chemical results, like a blood test result. Until they have a quantitative breakdown of drugs in his system, and further investigation, we will not know whether Irsay was guilty of driving under the influence. Here's what he faces for a Felony DUI.

E-Cigarettes and Vapors Banned From Public Places in Los Angeles

The Los Angeles City Counsel voted unanimously (14-0) on Tuesdays, to approve an ordinance banning the use of e-cigarettes in public areas like bars, nightclubs, parks, and restaurants. Vaping lounges and smoking clubs will be exempt from the ban, but sales of e-cigarettes will be restricted to adults 18 or older.

City Councilman, Mitch O'Farrell, justified the decision to restrict the use of e-cigarettes by explaining, this regulation helps control "the second-hand aerosol exposure to thousands of employees in the work force, young people." However, research has yet to determine the extent to which e-cigarettes may pose a health threat to the public.

E-cigarettes have gained lots of popularity in the past year, and have been increasingly promoted as helping cigarette smokers quit smoking. Now, it's ironically getting banned by the city counsel for being harmful to the public?

This seems counter-intuitive. If in fact e-cigarettes are helping smokers quit their deadly addictions, then they're actually benefiting the public in the long term. E-cigarettes could potentially help the public and the smokers' well-being because there would be less smokers. Thus, banning e-cigarettes may actually be counter-productive in promoting a smoke-free environment, in the long term.

Sometimes it's important to question the motives behind certain politically motivated ordinances that get approved by city counsel. It is clear that e-cigarettes have taken a considerable market-share away from conventional cigarette companies. These cigarette companies have always lobbied and promoted their political special interests, throughout history.

When you consider, who stands to gain the most from this ordinance? The answer is clearly the cigarette companies! Now that e- cigarettes will be restricted, cigarette smokers will have less of an incentive to switch and quit.

Former Child Actor, Jordan Oschin, Struck by a Drunk Driver

Former child actor, Jordan Oschin, was tragically struck by a Ford Explorer on February 14, at approximately 9:45 pm.  Jordan was crossing north on Burbank Blvd. about 40 feet east of Farralone Ave., according to police reports.  New information now suggest that the driver of the Ford Explorer, Randy Allan Goodman, was arrested on suspicion of misdemeanor driving under the influence, and was released after he posted a $15,000 bail.  The case was transferred from the L.A. County District Attorney’s Office to the Los Angeles City Attorney’s Office, but Goodman has yet to be formally charged by prosecutors with any crime. Goodman is currently scheduled to appear in court on March 12.

The reason this case was transferred from the District Attorney’s Office to the City Attorney’s Office is because it appears that Goodman will not be charged with a felony in this matter.  The City Attorney’s Office only files Misdemeanor complaints, and this implies that if charges get filed, they will not be felony charges for this fatality.

There may be various reasons for this decision by the District Attorney’s Office to transfer the case.  One of the main reasons may due to information that suggests Oschin was not crossing the street at a legal crosswalk.  This location was near a crosswalk, but since it appears Oschin was jaywalking, Goodman can’t be held criminally negligent, or even be considered the proximate cause for the accident.  In order for the prosecutor to prove a violation of California Vehicle Code §§191.5(a), 191.5(b), or even 23153(a) or (b), which are the statutes for Vehicular Manslaughter while Intoxicated, Gross Vehicular Manslaughter while Intoxicated, and Driving Under the Influence Causing Injury, there must be evidence that the driver was the proximate cause of the accident.

If the driver was not the proximate cause of the accident, then the prosecutor can’t prove all of the elements of a felony DUI. A DUI attorney knows that it is critical to reconstruct the accident scene, whenever there is a fatal accident and alcohol may be involved.  At The Law Office of Ben Mironer, we work with an accident reconstruction expert to examine and research the proximate cause of the accident, in all of our felony DUI cases.  These cases take on a different tone because there are no winners and there is no glory, but there must be justice for all.

It is Now Legal to Look at Maps on Your Cellphone While Driving

The California Court of Appeal just ruled that drivers are allowed to use their cell phone for the purpose of looking at maps. The law that prohibits the use of cell phones, while driving, does not apply to drivers looking at maps on cell phones. The Court expressed that the law specifically applies to people using their cell phones to listen and talk. Therefore, drivers are only permitted hands free devices to listen and talk while driving.  However, the Court found that using cell phones in other ways is not prohibited by this statute.

This is a very important ruling by the Court because this law must now apply to all California trial courts.  The reason for many stops is the use of a cell phone while driving, and the fine for this citation continues to rise.  Also, many DUI arrests are predicated by the use of cell phones as being the reason for the stop.  Now, it is going to become very important for an officer to tell what specific purpose the driver is using the cell phone for.   Many people listen and talk on their cell phones using the speaker option, and this makes it impossible to tell whether someone is looking at a map or on speakerphone.

If you are stopped for illegally using your cell phone, whether it leads to a subsequent arrest or simply a citation, it is important to contact an attorney at The Law Office of Ben Mironer right away.  We can help use this new law to get a citation like this dismissed, or possibly get evidence excluded from your case, if it was obtained after such a stop.  An experienced attorney will thoroughly explain our defense and how we will argue your case in court.

Appellate Courts are only able to make these types of landmark decisions because people decide to challenge the status quo.  The appellate court reversed a trial court’s decision to find the driver guilty of the cell phone violation.  It is crucial to have an attorney that can challenge a trial courts’ decision in the court of appeal.

Justin Bieber Rejected Plea Bargain Offer and Will Try to Beat His DUI

You can't always believe the police report!

Justin Bieber rejected a plea bargain offer today, in his Florida criminal case for DUI and street racing.  Bieber's attorneys suggest that the officers may have embellished as to statements made by Bieber.

His attorneys are also challenging the street racing charges. The prosecutors reportedly offered Bieber a no jail deal, with probation and certain standard DUI terms.

Bieber reportedly is not interested in a deal with probation or an alcohol program. Unfortunately, most deals that have no probation, usually carry a jail sentence. Also, the alcohol program is required by law for a DUI.

In essence, he wants his lawyers to get him no probation, no jail, and no alcohol program.  This suggests that Bieber will have to take his chances with a jury trial. Unless the DUI defense team can discover problems with the prosecutions case, it appears that Bieber will be headed to trial.

This can turn out to be a very interesting case, especially if Bieber has been falsely accused by over-zealous police officers that wanted to arrest a celebrity. Right now, Bieber's attorneys are requesting additional discovery and building their defense for Bieber. This case may potentially expose the weaknesses in DUI cases, on a national level.

Top 5 Ways to Beat a DUI

5. GET LOTS OF DISCOVERY
It is crucial in any criminal case to conduct a thorough investigation of the evidence, but especially in any DUI case because there is usually some chemical evidence that prosecution must prove is reliable. Sometimes a good investigation by the defense can uncover that a bad investigation was conducted by law enforcement. Prosecutors commonly have to state on the record that “problems with proof” is their reason for reducing charges, or dismissing a DUI.

4. FILE LOTS OF MOTIONS
An experienced criminal defense attorney knows that a good motion can get a case dismissed without the need for a trial. A motion is a way for the attorneys to request the court to review certain issues before trial commences. Sometimes motions are in regard to discovery, while other motions may question the legality of stops, searches, or arrests. A “suppression motion” is a common motion used by defense attorneys to challenge the constitutionality of a stop and the lawfulness of an arrest. If the defense motion is granted, and all of the evidence is suppressed, the DUI should get dismissed.

3.GET AS MUCH EVIDENCE EXCLUDED AS POSSIBLE
Prior to commencing trial, your defense attorney will have an opportunity to file motions immediately before the start of the trial. These motion are known as 402 motions or motion in limine. Sometimes certain evidence can get excluded because it lacks any scientific merit, or it lacks foundation. An experienced trial attorney knows how to spot the prosecutor’s evidence that can be challenged, and raises the contention effectively. If a Judge excludes some of the prosecutor’s evidence it can obviously weaken their case, but it can also potentially lead to the DUI getting dismissed.

2. GO TO TRIAL
By putting 12 angry people in a jury box, you do two things. For one, you raise their interests as to what they’re going to be listening to for several days about you. But two, you give yourself the opportunity to get your charges dismissed, as opposed to pleading guilty. This opportunity means that you have a chance, which is something you don’t have when you plead. The pressure is really put on the prosecution to prove their case because there will generally be flaws in the police investigation, the chemical evidence, the prosecutor’s witnesses, and the case in whole. This is why often times DUI cases in California that go to trial get dismissed.

1. GET A PROFESSIONAL DUI ATTORNEY TO REPRESENT YOU
Unlike other criminal offenses, DUI cases in California are very specialized and require professional attention and expertise. Good DUI attorneys know how to utilize the four methods mentioned above to get the best imaginable outcomes. Not all criminal defense attorneys are suited to aggressively advocate DUI cases. Some criminal attorneys don’t have the knowledge or ability to properly handle a DUI case, so you must get an attorney who mainly does DUI cases in California. Also, you need to be weary of some good DUI attorneys that no longer have the desire to personally handle cases, so find out who’s handling your case. It is crucial to have a skilled and seasoned DUI attorney represent you. That is truly the BEST way to beat a DUI.

Todd Harrell of 3 Doors Down Arrested for a DUI

Todd Harrell, base player for 3 Doors Down, was reportedly arrested late Tuesday for suspicion of driving under the influence. This recent arrest occurred in Mississippi, where he was previously convicted of DUI in 2012. He had appealed the 2012 conviction, but the appellate court had upheld the decision. More importantly, Harrell is also currently facing several serious charges for driving impaired in an accident resulting in another driver’s death in April 2013. That traffic collision landed Harrell in jail for several days, in Tennessee.  The Judge released him on $100,000 bail, pending the outcome of that case. In California, the bail for a felony DUI, even without a great bodily injury, is usually $100,000.

Harrell now faces a second offense DUI. In his first offense he was involved in a traffic collision where he rear ended a pick-up truck. After consenting to a blood draw, he reportedly told police officers he had five different prescription pills in his system. In this current arrest, it appears that the report suggests Harrell was under the influence of a substance other than alcohol. In California, if this case goes to trial, the prosecutor must go through the prior conviction, and Harrell is entitled to “bifurcate” the trial. This means that the jury cannot find out about his prior conviction during trial, and should not hold it against him. Also, his attorney must make sure the jury does not know about his pending case in Tennessee.  A fair juror must decide whether someone is guilty based on Harrell’s actions in this case only, they should not be influenced by information that can cause a bias against Harrell. It is unfortunate that sometimes people don’t learn from their mistakes, but everyone is entitled to a fair trial.

These current charges are very serious, but the charges in Tennessee against him are obviously much more serious. In California, Felony DUI where someone is killed can be charged as a “Watson” murder. This offense can carry a sentence of life in prison. When someone is convicted of a misdemeanor or felony DUI, they are given an advisement that if they are involved in a traffic collision where they’re under the influence and someone is killed they can be charged with second degree murder. Even though this incident didn’t involve a traffic collision, it seems Harrell needs to be proactive in seeking help for any substance abuse issues he may have. Not just to benefit his case, but to improve his well being.

Chris Kattan of SNL Arrested for Suspicion of DUI

Actor Chris Kattan, well known for his roles on SNL and Night at the Roxbury, was arrested around 2 am last night for suspicion of drunk driving. He was arrested after an anonymous 911 caller notified police about a Mercedes swerving in the 101 freeway. His vehicle later crossed into a coned area, and collided with a cal trans vehicle.

This is another unfortunate incident, which shows us again that celebrities are not super-human. As the story has been reported, there appears to be a lot of evidence suggesting Mr. Kattan was too impaired to drive. Now, his case will be heard in the Van Nuys courthouse, which is notorious for being very strict with DUI cases.

The City Attorney's Office will likely be the agency to prosecute this case. This office is known for being very tough on DUI defendants. Now that it appears Mr. Kattan was seen swerving and moments later was involved in a traffic collision with a cal trans vehicle, the City Attorney's Office will likely go forward with a prosecution. Even though we don't know the alleged BAC level, given this driving pattern, the prosecutor may file a DUI charge under California Vehicle Code Section 23152(a), even if Mr. Kattan was below .08%.

Also, the 911 call will likely be admitted into evidence based on California case law. An "anonymous tipster" may contact 911 to report a drunk driver and the audio recording may potentially be used against Mr. Kattan, even if the caller is anonymous. The key is whether the 911 call properly identified Mr. Kattan's vehicle description, location, and whether the call describes a driving pattern that is sufficient to give an officer probable cause to stop the car.

A DUI attorney could potentially have a major impact on this case. If Mr. Kattan was not a celebrity, a common person in this same situation would be facing a jail offer from the prosecutor. Even though this is potentially a first offense DUI, the combination of facts and the location of the incident could cause someone to end up in jail, unless they have a skilled DUI attorney to defend them. This is why it is critical to hire a local DUI attorney, for anyone facing DUI charges in the Van Nuys courthouse.

Can I Ever Become a Nurse if I Have a Criminal Conviction on My Record?

The Board of Nursing is very select in their admissions, and will not admit someone that has a criminal conviction on their record. Furthermore, most nursing schools require that their applicants have no criminal record. This would make it seem impossible to become a nurse, if you’ve ever been convicted of a misdemeanor or felony criminal offense.

However, there is hope! Most criminal misdemeanor and many felony criminal convictions can be cleared from your record. The process is called a criminal record expungement, and it allows the court to withdraw your plea of guilty/no contest, and enter a not guilty plea, and then dismiss your case. Under California Penal Code §1203.4, the court may grant an expungement if it is in the “interests of justice.” It is crucial to get an expungement attorney that focuses in the area of post-conviction relief, in order to optimize your chances of getting the petition granted.

Some felony cases may be reduced to misdemeanors and expunged, but it is important to hire an attorney that knows which offences may be reduced and which can’t. There are also various requirements that must be satisfied, in order to be eligible for an expungement. An expungement attorney can discuss all of the requirements to verify you’re eligible, before you pursue a petition with the court.



One of the requirements for expungement, is that you can’t still be on probation for a criminal conviction. However, you may be eligible for an early termination of probation under California Penal Code §1203.3. If so, you could potentially get an expungement granted at the same time as an early termination of your probation.

The key is that you must have an attorney that handles lots of expungement petitions, in order to give yourself the highest probability of success in these matters. It is crucial to know exactly what the court is looking for, and how to prepare the petition. An attorney with a track record of success in expungements has already demonstrated that they know exactly what the Judges are looking for. Even though every case is different, and every individual client is different, there is a formula as to what the court wants to see in an expungement petition. For more information, visit Expungement for Nurses.