Lamar Odom was arrested two days ago for DUI. It’s already old news so why am I writing about it now? The reason is because his arrest poses some interesting issues that frequently come up in DUI cases. First, misdemeanor DUI is charged under two different vehicle code sections in California: 23152 (a) and 23152 (b). The first is an allegation of driving under the influence of alcohol, drugs or a combination of the two. The second count is an allegation of driving while one’s blood alcohol concentration is .08 or above, regardless of impairment and with no allegation of drugs.
When we are arrested for DUI in California the law requires that we submit to a chemical test for alcohol or drugs when requested by law enforcement. If police think we are drunk they ask us to take a breath test or a blood test for alcohol. If they think we are on drugs or both drunk and on drugs they ask us to take a blood test or a urine test to be screened for drugs.
If we refuse to take any tests and are arrested for DUI, several things happen. First, whether or not we are famous, there will be no retained physical evidence of intoxication – there is no blood or urine to test. While this may benefit Mr. Odom in his civil divorce case or in trying to land a new contract in the NBA, it is not usually good for the criminal court proceedings or for dealing with the administrative suspension pending before the Department of Motor Vehicles.
The DMV will be looking to take Odom’s driver’s license for one year based on the allegation that he refused a chemical test. In court, the prosecutor will be looking to increase his punishment if he is convicted of DUI. A standard first offense DUI will involve probation, a fine, and alcohol school. In this case the prosecutor will seek some term in jail, an enhanced alcohol education program, possibly an ignition interlock device and maybe more.
At this point people often ask if Odom is not better off having refused any tests, after all, if he took a test that could be used against him, right? Right. However, the law is very much in favor of the prosecution on the issue of refusal. The law allows the jury to consider the refusal as “consciousness of guilt”. This means that if the jury thinks you refused a test because you knew you were guilty, they can use that against you.
Next, the trial court will normally allow other evidence of impairment at the trial. Here we may consider the driving pattern alleged as weaving and driving too slowly at 3:00 a.m. The jury will likely hear about objective symptoms of intoxication: red and watery eyes, odor of alcoholic beverage, slurred speech, unsteady gait and more. Field sobriety tests often take on a more significant role in refusal cases. How did Odom perform on his tests?
In recent months there have been technical advances in law enforcement in California, including onboard video and audio in CHP cruisers. The video and audio will likely be used if Odom’s case ever sees the inside of a trial court.
What does Odom do now?
Mr. Odom should do what any citizen of the state should do. Hire a competent lawyer of his choice. Lamar…if I may call you Lamar? Hire a lawyer who is familiar with DUI law, is familiar with the jurisdiction (court) and finally, hire a lawyer who you personally meet and feel comfortable with. Please call the lawyer within ten days so that they may set a DMV hearing on your behalf and request a stay on your license suspension.
I hesitate to say that any lawyer will see Lamar coming. He is hard to miss. However, a first offense DUI with a refusal allegation will likely cost in excess of $5,000 or more to start. This fee is not including trial. Should the case go to trial, the fee for trial is often $1,500 or more per day of trial. Additional expenses for expert witnesses may also come into play.
Lamar, good luck with your case and your contract.
If you or someone you know has been arrested for DUI or has questions about any other traffic or criminal law matter, call me, Jeffrey Vallens (818) 783-5700 or (888) 764-4340 or email me at: email@example.com