Road Rules

Tips from an Orange County DUI defense lawyer

Photo by Jack GouldFew people know as much about drunken driving as Mike Fremont. As a partner with the Newport Beach offices of Myles Berman's famous "Top Gun DUI" law firm, Fremont has successfully defended dozens of clients against drunken-driving charges. Fremont says the streets of Orange County are less a war zone between police and actual drunks than a "turkey shoot" in which anyone whose rear license plate is obscured by a trailer hitch could become the subject of a DUI investigation.

Just in time for summer, Fremont agreed to share some advice for Orange County drivers.

OC Weekly:What's your best advice for people when it comes to drunken driving? Mike Fremont:First of all, don't drink and drive. Then, try not to drive early in the morning. Make sure everything on your car works, down to your license-plate lights. Your front license plate is incredibly important to have at 3 a.m.; if a cop sees that you don't have one, it's a traffic infraction, and he will pull you over. What he really wants to do is a DUI investigation. On the weekends, cops really like places like Newport and Huntington and other places with concentrations of bars or nightclubs where younger people like to drink. At 2 a.m., 90 percent of drivers have probably had something to drink. So the cops are looking for any reason to pull you over. It's like a turkey shoot. What do you do if you get pulled over and you've been drinking?

The law allows people to drive as long as your blood-alcohol level is below .08 percent and you haven't lost the ability to drive as a sober person. According to the law, if you get pulled over, the only thing you have to do is identify yourself. If you are under 21 years old, you must also submit to a preliminary alcohol-screening device—a field alcohol-breath test. These devices are pretty inaccurate. I have personally blown a .065 blood level after chewing on three slices of white bread. The machine said I had three drinks in my system, and I was [actually] alcohol-free! There is apparently some alcohol content in white bread.

You're saying that people don't have to perform a field breath test if they're over 21 years old?

You do not have to perform a field sobriety test. That is absolutely voluntary. All you have to do is say your name and provide your driver's license and insurance and proof of registration. Make sure your hands are on the steering wheel. Say, "Look, officer, I haven't done anything wrong. I'm not under the influence of alcohol. If you have probable cause to arrest me, I will submit to an alcohol test, but I will not take your field sobriety test because they are subjective, and I will not answer any other questions."

What should you not do if you get pulled over?

Do not let the cops do their horizontal alcohol-gaze test. You have no obligation to follow that light with your eyes. If they bring you to the station, you will have your choice of a chemical breath or blood test. I suggest the breath test because it is the most inaccurate. The blood test is more accurate, but it's invasive and the police do not have people who are qualified to take blood.

Here's the twist: if you have been taking drugs—either stimulants or marijuana, cocaine or anything else—and the officer asks you for a breath test, that's great because breath tests cannot show if you've been taking drugs. If the officer believes you may be under the influence of drugs—including prescription drugs—he can request and you are required to take a urine test after your breath test. If the cop thinks you're on drugs, he can request a blood or urine test for drug-testing purposes. That is mandatory and can turn you into a refusal if you don't do it.

What's a "refusal"?

A refusal is someone who refuses to take the police breath or blood test once they are brought to the station. Even though I've won a lot of refusal cases in court, I do not advise people to refuse the test. A refusal gets you an irreversible one-year suspension of your driver's license. If you take a test and fail because your blood-alcohol level is more than .08, you will either get a four-month suspension or a 30-day suspension. If you're in the station, you can refuse the test, but you are looking at a one-year suspension of your driver's license without much recourse.

What's the weirdest drunken-driving case you've seen?

The most egregious case I worked on involves a client who was with his friend at a Jack in the Box drive-through restaurant. They had just ordered, and the service was a little slow, so they actually fell asleep in the car. The cops came 15 minutes later, and these guys were still asleep. It was a drug-and-alcohol combination. They failed the tests. But they weren't driving when the police found them, so they walked: not guilty.

Other than "Stay awake," any final words of advice this summer?

Just remember that the field sobriety tests—spelling the alphabet backward, touching your nose while leaning your head straight back—are designed for failure, so don't agree to submit to any. Most of those tests don't correlate to alcohol use because alcohol-free people will fail them 30 percent to 50 percent of the time. There is a lot more involved in defending someone from a DUI conviction than you'd think. You are not necessarily guilty just because you're arrested or because you were drinking. And remember, friends don't let friends plead guilty!

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