Myles L. Berman Guest Appearance On KLOS FM Heidi & Frank Show – December 19, 2013

Myles Berman: Thank you and everybody here.

Host: It’s always good to have a friend like Myles and have his number handy. You all know it 1-888-4 TOP GUN. Right 888-4-TOP GUN. Hopefully, you’ll never have to call it. But if you ever need him, he is like your best buddy and is there for you. I mean when you need him the most, Myles L. Berman is going to have your back. Every time we see Myles, it’s like alright, good seeing you. I hope I don’t see you soon. We just mean hope we don’t need you. How have you been? You are on Twitter now.

Myles Berman: Yeah, you told me Frank, a while ago that I should start working the social sites and I’ve been doing it and hopefully I’m doing it alright because you are the master.

Host: Yeah right. What I love about Myles is that he will tweet the checkpoints. You are not digging in or hacking into any systems to find these checkpoints. This is public knowledge and you are just putting them together and saying hey, here is the info.

Myles: Yes, well there are a couple of sources and usually I tweet them Friday afternoon and then you guys gratefully retweet them, because people should know where the checkpoints are. It’s required by law enforcement to publicize the checkpoints so we are just helping facilitate the police department to comply with the law.

Host: If I didn’t follow Myles L. Berman on Twitter and didn’t know I was going to hit a checkpoint and I do go to a checkpoint and I’ve had two glasses of wine at a Christmas party. I’m totally fine but over a maybe, 2 hour period. They say have you had anything to drink tonight? What’s my best strategy? If I’m fine, is it better to be honest?

Myles: well, if you drank and you smell alcohol, it’s probably a good idea to say that you drank. Understand that, you are not required to answer the questions as far as where you came from, where you are going to or what you had to drink, things like that. Most people though, end up saying I had a couple of beers or a couple of drinks and surprisingly, that doesn’t mean that you are under the influence of alcohol, all that means is that you don’t want to go to jail and you just don’t know what to say and that’s actually a true statement for a lot of people that they’ve had a couple of drinks, at least but sometimes they have more and people are nervous and they are not sure what to do. Most people have never been through this situation before. So they are very nervous and they are not quite sure what to say. But again, I want to stress that it doesn’t mean you are under the influence of alcohol. We bring that out at trial, that most people who come into contact with the police are really nervous.

Host: Yeah. It’s a very stressful situation. It’s almost like if you are going to be given a lie detector test. The anxiety of taking the lie detector test might skew the lie detector test, that’s why lie detector tests are not allowed in court right? They are like what are you nervous about? So you failed it but that’s not evidence in court. But even in the Breathalyzer or in the field sobriety tests, I’m so nervous here that I tripped over myself and they are like you failed the sobriety test

Myles: Well, it’s interesting. You’re talking about lie detector tests and they are unreliable which is why they are not used in criminal cases. Sometimes, in civil cases, they come up but in criminal cases, they are not allowed in California. The same thing with breath testing. A lot of it is unreliable. Breath testing is not an exact science. As a matter of fact there are a lot of errors that occur with breath testing. So we bring out the errors and the machines etc. to let the juries know that they are just not reliable to show what the blood alcohol level is at the time the person was driving.

Host: and when they say step out of the car and you are going to do the field sobriety tests. I don’t have to do that? I can say, just call my attorney Myles? What do I say? If you don’t have to answer any questions about where you’ve been or if you’ve had anything to drink. What do I say? Do I just go no? None of your bees wax. I think you probably had a couple of drinks to say Bees wax.

Myles: If you say excuse me I want to call 888-4 TOP Gun, you may not be allowed to do that. But, like I was saying that field sobriety tests, just like the where are you coming from, where are you going to, you don’t have to do them. Everything is completely voluntary. I mean you have to identify yourself, show them your license, proof of registration and proof of insurance.

Host: It just seems like; if I, how do you say it? No, I’m not walking heel to toe, I’m not pointing at my nose and I’m not telling you where I’ve been. So take that. Then we end up going to court and it’s like he wasn’t very cooperative. Why weren’t you cooperative? Because I was wasted. I’ll never admit that. I mean it doesn’t really look good but you don’t want to build a case against yourself. So it’s sort like Catch 22

Myles: It is. It takes a strong constitution for people to stand on the constitution and say that they prefer not to answer any of the questions. But the field sobriety tests, they are very unreliable either way because people are nervous. Frank was mentioning, you were in high heels, Heidi doing field sobriety tests.

Host: She is not used to wearing high heels. We know that much.

Myles: Imagine they let you take your shoes off and you are standing on the side of the road at 2:00 in the morning. It’s cold especially this time of the year and you are trying to walk the line or you are trying to stand on one foot and trying to balance yourself.

Host: It could be windy.

Myles: Not only that but add on top of that the nervousness you feel going through this for the first time and by the way, most people that get arrested for a DUI get arrested for the first time and the penalties have gotten so severe that people are almost compelled to fight their case.

Host: What are the penalties?

Myles: Let’s talk about just a first offense DUI where a person is over the limit and no accidents, no injuries, things like that. Usually running a stop sign, not stopping to complete the stop. Different jurisdictions vary but for LA and Orange County, you are looking at a fine of $2000 to $3000, 3 years’ probation, if it’s a lower alcohol level a 90 days alcohol program

Host: Meaning under the legal limit?

Myles: No. Say a 0.10. As you get higher, the programs get longer like a 6 months program, a 9 months program etc.

Host: Do you lose your license?

Myles: We are going to get to that yet. In LA County which is the pilot county and I’m almost positive it’s going to go statewide. LA is one of the 4 or 5 pilot counties in the state where if you are convicted of a DUI first offense, you need to install an ignition interlock device in any car that you own or have access to for 5 months.

Host: That’s embarrassing where you have to blow into your car. Hold on, I’m picking up a date. What’s that?

Myles: It’s interesting how your mind goes in that direction. How about a businesswoman who is driving.

Host: She’s into real estate and she’s got to show houses and she’s like hold on.

Myles: Yeah, you want to entertain somebody or say there is a family with only one car and say the husband is convicted of DUI. He has, I’ve heard them called a blower. He has to blow into his car’s ignition interlock device and then they go out but the wife is driving and the wife needs the car.

Host: Does she have to blow into it too?

Myles: No, no. It’s programmed for him

Host: For his breath? They know his breath?

Myles: No, it’s programmed not just for his breath. It’s more than that. Fingerprinting etc.

Host: Oh Wow! It’s that high tech; seriously.

Myles: Yeah.

Host: Sounds almost too expensive to go statewide and that’s why the fines are so expensive because you have to pay for all the devices to go in your car.

Myles: Plus, you have to pay for that as well and insurance is a killer. Now you ask about license suspension on a first offense. Just what I talked about, you are looking at a 4 months license suspension. They can be converted to a 5 months restriction after 30 days

Host: Like to and from work and that kind of thing.

Myles: To and from work. Nature and scope of your employment. Right.

Host: Usually, you know if you are going out for the holidays, going to a Christmas party, basically you are going to drink. If you are drinking; if you are that type, you are going to go and have a couple of cocktails. So just plan. Don’t say that I’m going to have a couple and then go home. You might be 0.1, you might have had 2 glasses like Heidi. We all know Heidi can handle 2 glasses. Right. She can handle 2 bottles. That’s right totally. It’s not true but I wouldn’t drive. It would look like you were impaired and you felt fine. So don’t do it. Plan for it. Have a designated driver, have Myles’ number. I’m not saying that go out and get wasted and have Myles’ number, what I am saying is that you might need Myles’ number because of the situation. I just found out that if you have an orange, half an orange out for 4 days, it would ferment and if I would eat that, it’s already fermented. So I would have alcohol in my system. H’s had a bad orange. I had a piece of pizza last night that was a week old. It was probably fermented. I drove to work this morning, if I had gotten pulled over at work I would have been drunk on pizza. Who would have known? I would have known that.

Myles: It’s interesting you know. Fermentation actually is an issue in blood cases. So without getting too involved. Sometimes blood in a vial can ferment and create alcohol and the machine measures it as if it’s

Host: way worse than it is..

Myles: Yeah, you can’t tell if it’s fermented alcohol or if it’s alcohol that was initially in the blood that was put into a vial at the time.

Host: Is that normal that blood would ferment and become alcohol?

Myles: Yes, it is but there is supposed to be a sufficient amount of preservatives, anti-coagulants in the vial to stop that but it doesn’t stop it.

Host: But it’s a good defense like maybe there wasn’t enough of what needed to be in there. Myles, it’s always good talking to you, it’s always so informative and people need to be educated about this because it affects; you probably know somebody like everybody knows somebody with cancer, it’s probably everybody knows somebody who has had a DUI or something similar like being pulled over.

Myles: Just to make another point. Here is what we’ve been seeing a lot lately, DUI drugs with drugs being lawfully prescribed drugs where people are taking drugs and they are getting pulled over and it’s happening a lot with people who are older, who are taking more medication for whatever reason or after some type of medical procedure. So we are seeing a lot of that, in addition, to increase in DUI marijuana. That has nothing to do with alcohol.

Host: So it’s prescription drugs as well. Yeah my mom just had knee surgery and she is on a load of hydrocodone or whatever that is, legally prescribed medication and she gets pulled over because she had to run to the store and we are screwed because she is driving under the influence.

Myles: Right. So you should remember. 888-4 TOP GUN

Host: There we go. Write that number down. 888-4 TOP GUN. The website is topgundui.com and definitely follow Myles on Twitter. He puts out the checkpoints on Wednesdays? Every Wednesday?

Myles: Fridays.

Host: On Fridays, puts out the checkpoints that are going to happen over the weekend @myleslberman on Twitter. Thank you so much for coming in. Thanks Myles.

Myles: Thank you and thank you guys for retweeting the checkpoints on Fridays as well.

Host: We’ll keep doing it. We’ll be right back, we are Heidi and Frank.