How Can You Best Advocate for a Special Education Child?

How Can You Best Advocate For a Special Education Child?
As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?

And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.

LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.

NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?

LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepancy between the child’s general ability, wherever that may be, and how the child is performing? If there’s a discrepancy, that’s fairly important. Thirdly, are there physical things that impact on the child’s ability to be educated? A vision loss, hearing loss, or physical restriction. Other ways in which you can determine whether the child’s education is adversely affected would be, how’s the child doing in developing various skills that a child ought to have at a certain age? Cognitive skills, is the child becoming literate, is the child developing the ability to write… if it appears the child is not doing that, that suggests that something is going on, and would be proof that the disability is affecting education.

NOLO: The IDEA states that a child with a disability is entitled to an appropriate education at no cost to the parents. That term, “appropriate education,” is one of the terms that has been subject to a great deal of debate since the law was enacted thirty years ago. We asked Lawrence Siegel his interpretation of the meaning, “appropriate education.”

LAWRENCE SIEGEL: It means, ultimately, that the child can progress from year to year, and make academic progress. It does not mean, if I can use a cliché, it doesn’t mean a Cadillac program, it means a Chevrolet program. So, you’ve got to look to the fact that the child with that program is going to advance academically and make progress.

NOLO: Another controversial aspect of the IDEA, and IEPs, is the concept of mainstreaming. Some courts have concluded that mainstreaming is a requirement of the IDEA. We asked Lawrence Siegel what mainstreaming means.

LAWRENCE SIEGEL: Mainstreaming is really the same as placement with non-disabled children in a regular class. It’s one option on what’s called the continuum of placement options under IDEA. IDEA doesn’t really use the term “mainstreaming,” what it says is, the legal term – and this is very important – is that every child with a disability is entitled to be educated in the least-restrictive environment, as determined by the IEP team. Furthermore, the law says that a child is entitled to be educated in a regular classroom and cannot be removed from that regular classroom unless there’s evidence that the child cannot achieve satisfactorily in the classroom, even with supplementary aides and services. So, at least theoretically, it means that all children should start in a regular class, and only be removed to a non-regular placement when there’s evidence that they can’t succeed there.

NOLO: Because the IDEA and the IEP rules are so complex, we asked Lawrence Siegel where parents whose children may qualify under the IDEA can look for assistance on these topics.

LAWRENCE SIEGEL: Your school district has an absolute legal duty to provide you with information about the whole special ed process, that’s the first place. Secondly, your state Department of Education usually will have a whole bunch of information about IDEA – how it works, what the rules are. So, you can start in those two places. If your child’s not in special ed yet, but you think your child belongs there, you certainly should start to talk to his or her teacher, talk to your doctor about the child, is the child not meeting developmental milestones, is the child having trouble with certain courses, is the child having trouble with handwriting, or a learning disability, or whatever it might be. So, talk to your teacher, talk to your doctor; there are a whole number of both generic support groups in your area and in the country, as well as specific support groups for specific disabilities who can give you some direction on what you should be looking for if you suspect your child is autistic or learning-disabled. Then, you may want to think about getting an assessment done, which the school has a duty to do, or even go outside of the school and get an assessment done.

NOLO: The IEP hearing can be quite expensive for a parent, especially if they have to pay for expert witnesses. We asked Lawrence Siegel for any suggestions about keeping fees down.

LAWRENCE SIEGEL: In terms of expert witnesses and other costs, this recent decision in the Arlington v. Murphy case, the court did say that, when there’s an expert witness who testifies in a hearing, you better be prepared that, if you have such a person and you win the case, you’re not going to get reimbursed for those costs. So, some alternatives would be, first of all, again, contact those organizations, and they’re fairly easy to find on the web and in my book. Those organizations that provide support for individuals and families with the specific disability your child has, they may in fact know a nonprofit or other folks who can provide you the expertise at no or low cost, that’s certainly one option. The second option is, if your expert has also done an evaluation on your child, I’d suggest you talk to the expert about the possibility of her testifying in a hearing, and whether she would do that or he would do that, as part of the total cost, and that total cost, for the assessment, is reimbursable. That’s one way to do it. And then, one other way, although I don’t particularly like it, is when you go to hearing, the expert may in fact provide written information as well as testifying. An alternative to cut your costs down would be to have the expert do a very thorough written report, which you would submit to the hearing officer, and not have that person testify. Now, I prefer that both happen, because it’s important that you have live testimony, but that would be a way to cut down your costs, too.

NOLO: The IEP hearing can also be a tense situation. Lawrence Siegel has participated in many of these hearings, and we asked him to describe what it’s like.

LAWRENCE SIEGEL: Well, you know, obviously the tension level will depend a good deal on the personalities involved… some administrators, even though they disagree with you, are really fairly decent people, and then others can be very difficult. It also depends on what the nature of the dispute is, and if it’s been acrimonious in the past then you can anticipate that it will be that way in the hearing. As a general rule, these hearings will take place certainly not in courts; they often will take place in the school district. They’ll be in rather informal settings, like a conference room. The hearing officer will generally try to put people at ease. It does have the trappings of going to trial in a way, but it’s much more informal so that there’s certainly going to be an anxiety level; everyone feels that, including the most jaded and experienced lawyer, but it’s informal enough that if you’re in it and you’re doing it yourself, you can always say to the hearing officer, “Can we stop? I’m really confused here,” or “I’m nervous,” or “I don’t know,” and it’s the kind of setting where you can ask questions like that.

NOLO: Should a family bring a lawyer to these hearings?

LAWRENCE SIEGEL: Certainly if you think the district’s going to have an attorney, you better seriously think about it. If the district’s not going to have an attorney, I think – and you can go to my book and other places to get some recommendations how you do the hearing yourself, but it’s certainly something that if you can do it, you should have an attorney. You’re probably going to do better with an attorney, and remember, if you win, you’re going to get reimbursed. In the alternative, one way to do it is to do it yourself – then you don’t have to put money out for an attorney – but possibly hire a special ed attorney. Remember, not every attorney is going to know special ed law, so make sure the attorney knows special ed law. Perhaps you can hire the attorney for a couple three-hours to review your case, and he or she can give you some pointers. That’s a heck of a lot less expensive than having the attorney go to the hearing, which can often involve anywhere from twenty to fifty hours of time for the lawyer.

Can You Prepare Your Own Will?

This week our topic deals with what it takes to do your own will and we’re talking with Nolo editor and author Mary Randolph.

QUESTION: Mary, wills deal with two things people often dread – death, and the law. For that reason, many people are wary of preparing a will without an attorney. What’s your response to someone who is fearful of doing it on their own?

MARY RANDOLPH: Well, I certainly understand that people want to do it right, it’s an important document, but the good news about wills is that they’re fairly simple, straightforward documents, and you can do one without a lawyer. They really haven’t changed much in several hundred years; they’re standard documents, and if you have some good materials to help you, you can fill in the blanks and make a perfectly valid will.

QUESTION: Maybe another way that we can understand how wills work would be if you explain what happens if you die without one.

MARY RANDOLPH: That’s right, things get more complicated if you don’t leave a will, because you’re not leaving any instructions for what you want to happen to your property. Or, more importantly, if you have young children, who you want to raise them, and those are two of the key things that you do in a will. Every state has a law under which it will distribute your property if you die without leaving any instructions, and it will go to your closest relatives, and that may be what you want, it may not be what you want. It also has provisions for appointing a guardian for children, if you have young children and you die before they’re adults. And that’s what people really want to take care of; if they have young children they want to name a person who would raise the children themselves if they couldn’t.

QUESTION: Let’s say that a person is sitting down to prepare a will. What type of information should they have gathered before they start writing?

MARY RANDOLPH: Well, it’s pretty basic; you want to think about your big assets – what kind of property you own (make sure you know what you own and what you co-own with someone else, because of course you can only leave what you own). You want to think about who you want to leave property to – do you want to leave it to children, or would you rather leave it to an adult to manage it for the children, for example. So it’s very basic, personal things, just to think about your assets; you may overlook some things that might be valuable, or that might be contentious after your death. Sometimes people can argue about things that aren’t particularly valuable financially but have a lot of emotional significance. So, that’s something you want to think about before you sit down to write down your wishes.

QUESTION: Is it a good idea or a bad idea to speak with family members or friends before preparing a will?

MARY RANDOLPH: Well, it’s never a good idea to surprise people with your estate plan, so whether you talk to people before you make your will, and solicit some opinions, or after you make your plan, and you tell them what your plan is, it’s a good idea to let people know what’s coming, and that’s for a couple of reasons. One is because if people are speculating about what you wished, or why you did something, it can really lead to family disagreements. Sometimes these situations don’t always bring out the best in surviving family members, and if they just don’t understand, for example, why you left a certain heirloom, or more property, to one child than another, which you might have perfectly good reasons for doing, if they don’t understand that, then they might feel bitter or resentful; it might lead to arguments and bad feelings. So, you want to explain to people while you can why you’re doing what you’re doing.

QUESTION: Let’s say I wanted to do this on my own. There are so many websites, software programs, and books available to help you write these documents. I know Nolo has many such products, but how could a person verify that the product they choose is reliable? For example, if I use a program like Quicken Willmaker Plus, how do I know it addresses my state’s laws?

MARY RANDOLPH: That’s a good question; there are a lot of things out there. You want to take a look and make sure that there’s good materials along with whatever forms you’re given to fill out, whether it’s online, or just in a form packet. Make sure there’s help that lets you know what decisions you’re making, that covers all the issues that you care about, and that you don’t have questions. Make sure something does address your state law; Willmaker, for example, one of the first questions it will ask you is what state you’re in, because that has a very big effect on what you own, how you can leave things, your spouse’s rights… it’s a very important thing to know. And if a software package or form that you’re using doesn’t get that information, you’re not going to get results that are really tailored to the law in your state.

QUESTION: Mary, how often do wills need to be updated?

MARY RANDOLPH: Well, there’s no cut-and-dried rule; it’s basically that you need to take a look at your documents when there’s a big change in your life. If your family situation changes, you get married or get divorced, there’s a new grandchild in the family, you sell your house… anything that’s going to make your will out-of-date, then it’s time to take a look. But it isn’t something that most people need to do even on an annual basis. Every few years, it’s a good idea to take it out, take a look at it, and see if you need to change anything. It’s not particularly hard to update a will. The easiest way, because everyone these days does them on computers, is just to make a new will, tear up the old one, and you’re done.

QUESTION: Is it possible that a law could change so that my will becomes invalid? If so, how would I learn about that kind of change?

MARY RANDOLPH: Very unlikely that any law would make your will invalid. It’s possible that laws could change in a way that you would want to change something in your will. For example, if you move to a different state that has different property laws affecting spouses, for example, community property state versus other states. It’s possible that you might want to reassess your will then, but nothing is going to come along and just make it invalid.

QUESTION: I read that Warren Burger, the former Chief Justice of the Supreme Court, wrote his own will, but he didn’t give any power to his executors, and didn’t provide for estate taxes, and these errors cost the estate thousands of dollars. How does a person preparing their own will know whether they’ve made the right financial decisions?

MARY RANDOLPH: Well, it’s true that Warren Burger scribbled out a will on a piece of paper, and didn’t really take into account some things he should have taken into account. Most people don’t owe estate taxes; 99% of the estates don’t pay estate taxes, so that’s not anything most people have to worry about, but you do need to make sure you have some standard provisions in your will. And I’m sure Warren Burger knew lots of lawyers that could have helped him. You don’t even have to know a lawyer these days, you can use something like Willmaker, it’s got all the standard provisions, so it lets you know that you’re not leaving out anything crucial; it will prompt you, and ask you questions. So by the time you get done you should feel that you’ve addressed all the issues that you need to.

QUESTION: I have a few questions about the Quicken Willmaker Plus product. If it’s made by Nolo, why is it called Quicken Willmaker Plus?

MARY RANDOLPH: Well, Quicken, as you probably know, has provided financial software, personal finance software, to people for many years now, and they approached Nolo and asked us to provide the legal content. We’ve been publishing books and software on legal matters for more than thirty-five years, and they asked us to provide the content for our will-making program, so that’s why we teamed up with Quicken.

QUESTION: From what I understand, the program has a web update feature, which automatically goes to the Nolo website, and downloads any changes in the laws into the program. How do you keep the software current each year?

MARY RANDOLPH: Well, our in-house lawyers are looking at Willmaker every year; we put out a new version every year that addresses any legal changes in the fifty states, so we are on top of it. Luckily, the law on wills doesn’t change usually each year, but if there’s something people should know about, or if there are some tips that we’d like to give them, we publish a new version every year. In the mean time, if there’s anything that changes that we think people should know about, we put it on our website, and the Willmaker software has a feature where you can go directly from the software to the web update page on Nolo.com, so you can find out about anything that you might need to know

How Can Job Descriptions Trigger Lawsuits?

We're speaking with Margie Mader-Clark, an expert on human resources issues and rules, and the author of "The Job Description Handbook," from Nolo.

NOLO: Margie, let's start with a basic question. Why does someone who manages employees need a book about writing job descriptions? Why can't someone just write out the tasks that the employee has to do?

MARGIE MADER-CLARK: You have to think of a job description as a management tool that will actually cover a lot more than just hiring someone or laying out the job. You can use it in most every part of the life-cycle of the employment process -- you can use it to set up interview questions, you can use it to orient your new employee and tell them what the functions of their job are, you can use it to measure their performance on those given functions... so a well-written job description can actually take you a lot further in any of the employment processes than just the hiring process itself.

NOLO: You write in your book that the most common and costly mistake managers make is to write a job description that can be interpreted as discriminatory. Could you give us an example of how a discriminatory job description can backfire?

MARGIE MADER-CLARK: A job description, like any other part of the employment process, is governed by a couple of different laws to do with overall discrimination, Americans with disabilities is another distinct law... a job description needs to be specific enough about what you actually need someone to do or be able to do to do the job. So, if you were to write a job description that had, for instance, a lifting requirement of fifty or sixty pounds, you would automatically be cutting out some portion of the potential workforce. So you have to be certain that the job actually does require that, or can that weight be broken down into smaller chunks, to potentially be picked up by more of the workforce. So the mistakes become costly when the job description can actually become a basis for an employment lawsuit. If it can be proven that you're discriminating in your hiring practices or your promotional practices, and the job description is the basis of that, you can be liable for significant amounts.

NOLO: There are some cases where a job description calls for specific characteristics, that relate to sex, religion, or other protected characteristics, for example if you're hiring a female matron at a women's prison. So how do you know when a protected characteristic is essential to the job description?

MARGIE MADER-CLARK: Well, a little background on the concept of protected characteristics. They actually have a name in the employment law world, they're called Bona Fide Occupational Qualifications, or BFOQs. So you have to be able to prove that nobody else can reasonably do the job without having that particular Bona Fide Occupational Qualification. In these particular examples, they're sort of obvious, which makes them all the more defensible. You wouldn't have a woman as a Catholic priest, and you probably wouldn't have a man as a warden at a female prison. If they're not obvious and defensible, they probably are not Bona Fide Occupational Qualifications. For example, the weight-lifting requirement that I gave earlier, that could be done by a man or a woman of any race or religion. That wouldn't be considered a BFOQ.

NOLO: In your book, you warn against job descriptions that include a statement like, "This position is a stepping-stone for promotion," or, "If you can meet these challenges, you'll have a bright future." What's wrong with providing some encouragement to a potential employee, and how else can a company attract ambitious people?

MARGIE MADER-CLARK: Well, first of all, I think you're exactly right, and the job description is a marketing tool for the job itself, so being able to make the job sound interesting and make it sound like there's advancement opportunities and so forth is critical. However, if you're making a promise about future advancement, that creates what's called an implied contract, and if for any reason you don't advance that person, you're in breach of that contract. So careful wording in your job description can still provide encouragement, without the contractual obligation. For instance: "This position is reviewed and considered for advancement on a regular basis," or, "The position is eligible for regular salary increases." Those kinds of statements would give the candidate the knowledge that there's more to the job, or that a career could be made out of the job without making a promise that would be an implied contract.

NOLO: In your book, you discussed a case where a woman sued, claiming that the job description requirements caused an invasion of her privacy, because she had to disrobe. How does one deal with situations such as artist models, where the job description seems to require an invasion of privacy?

MARGIE MADER-CLARK: Well, first of all, applying for a specific job is not mandatory, so people are sort of opting in. So if your job description is using these Bona Fide Occupational Qualifiers, and it is an artist model, and the artists are working on nudes, that would be a specific thing that you'd be either opting to do, or opting not to do. As a part of the job itself, it's a requirement, so if you didn't want to do that, you wouldn't apply for that particular job. That's the best way to get around something like that.

NOLO: When preparing a job description, how does a manager know how to classify those employees that qualify for overtime, and those that don't?

MARGIE MADER-CLARK: Overtime classifications can be very complicated; I think there could probably be a whole separate book on that particular topic. In actual fact, the law takes the position that all positions are eligible for overtime until they're classified as exempt from that eligibility. Exemption comes in a couple of different forms, but the basic rule of thumb: the more independence the position has, the less likely it is to qualify for overtime. So if your position is something that has high direction, you're being told what to do most of the time, you have specified work hours, you have specific deliverables that don't change that much, for instance an assembly line job or something like that, most likely that kind of job is eligible for overtime. You swing to the other end of the scale, if you basically operate independently, you have sort of wide-ranging goals, but no direction on necessarily how to accomplish them, that puts you more towards the exempt-from-overtime status. It's a lot more complicated than that, there's a couple of specific categories, but that's the basic rule of thumb regarding over-time.

NOLO: Some businesses try to get away with describing the same job in different ways so that the company can avoid equal pay considerations. For example, a female position is classified as a "maid," and a similar male position is entitled "housekeeping technician." What's the problem with this approach?

MARGIE MADER-CLARK: It's pure and simple discrimination based on gender, unless those positions are paid precisely the same. If each bullet under a maid and under a housekeeping technician, each bullet about what they do, is largely the same, and then classifying those jobs or paying them differently, is the basis for a discrimination lawsuit. You don't see that happen as much anymore, I think it's starting to blend together, especially in areas that have been traditionally female, like airline stewardesses, now flight attendants, and so forth. It's much more focused on what the job is and who can do the job, rather than what gender is specific to that job.

NOLO: Your job description book includes a series of tests at the end of each chapter. Just curious, what's the purpose of testing the reader?

MARGIE MADER-CLARK: The book was intended to be a learning manual, and broken up into parts where you could just sort of read one part and then read the next if you needed it. The tests are simply a way to test your learning. It's also a great way to recap the chapter, so if you go through a test, you can see what the basic bullet points of the chapter were, the most important points... it's a little clue that you might not have to read the whole chapter if you're passing the tests, so it's kind of two-fold: you can use it as a way to short-cut the reading process, and you can also use it as a way to test your knowledge.

NOLO: What happens if a manager writes a job description in an attempt to side-step the Americans With Disabilities act? For example, the job description includes a requirement that the employee be able to climb ladders in a warehouse, when it's really not essential.

MARGIE MADER-CLARK: I think the main thing to remember here is to be flexible in your requirements. If you're writing down that an employee needs to be able to climb ladders in a warehouse, you have to think more in terms of what do you really need them to do? Do you need them to be able to access materials on a, top shelf? If so, are there other ways to access those materials; can someone else climb a ladder for them? Or is it truly a job where they would be up on a ladder all day long? If you can't prove that it's truly a job where they would be up on a ladder all day long, then you need to provide a reasonable accommodation to anybody who would apply for that job. So a reasonable accommodation in this particular example would be someone who could lift things off the top shelf for you.

NOLO: You recommend including a disclaimer in a job description. What should it say, and what's the advantage of doing that?

MARGIE MADER-CLARK: A job description by its nature is a little bit of a living document. It needs to have the ability to change with the changing business needs. So, the most important point that you want to get across in a disclaimer is that the job description is flexible and subject to change; different functions can be added at management discretion and so forth. There's a couple good examples in the book of what a disclaimer could look like, but those are the basic points that you want to get across. The advantage of doing that of course is that it leaves you wiggle room if, when the person comes onboard they have a skill set that you weren't even 100% sure about, and you want to employ that skill set, you can add it into the job description, because those can change throughout the life-cycle of employment. And, likewise, if someone is not doing something as well, you can put that function onto someone else and you can take functions away from a job description. So what you don't want is you don't want a job description to look like, again, any sort of written contract about what that job is about, and be locked down and unable to change. A disclaimer gives you that wiggle room.

Do You Have to Consent to Roadside Sobriety Tests?

This week we’re going to discuss DUIs – the laws and procedures that are triggered when someone is arrested for driving under the influence of alcohol or drugs. We’re going to speak with Aaron Bortel, a San Francisco attorney and expert on DUI law. Aaron is also a member of Nolo’s Lawyer Directory. Most people call it “drunk driving” and in some states it’s referred to as “Driving While Intoxicated” or “DWI,” but you don’t have to be intoxicated or “drunk” to be convicted of this crime. For that reason, the offense we’re discussing is commonly known as “Driving Under the Influence” or ‘DUI.’

In most states, a first time DUI offense will usually result in some jail time, a large fine – usually more than $1,000 -- and a driver’s license suspension. The maximum sentence for a first offense is usually six months or a year in jail and that varies from state to state. Second and third offenses often result in jail sentences of several months to a year. In California, A DUI conviction counts as a second offense or third offense if the prior convictions occurred within ten years. This is what is known within the world of DUIs as priorability – whether an offense counts as prior offense.

In addition to the penalties I mentioned, insurance companies often cancel (or drastically raise rates) for drivers convicted of a DUI. And a DUI charge stays on a driving record for many years.

The procedure for enforcing DUI laws usually begins when a police officer observes someone driving improperly, perhaps weaving in out of lanes of traffic, or speeding. After stopping the car, the officer observes the driver, for indications of alcohol or drug impairment, for example, slurred speech, red eyes, dilated pupils, flushed face, a strong alcoholic beverage odor on the driver’s breath, or unsteadiness after the driver gets out of the car. The officer may request a roadside coordination test – also known as a field sobriety test which may involve the driver balancing or walking.

If the officer reasonably suspects that driver is under the influence, the driver will be arrested. And after the arrest, comes a crucial test -- either a breath or a blood test.

We asked DUI attorney Aaron Bortel whether it’s ever in a driver’s best interest to refuse to take this test.

AARON BORTEL: It‘s a tough one to defend, let’s put it that way. You’re better off not refusing the test in most cases.

NOLO: What’s the legal basis for requiring this test?

AARON BORTEL: When we sign up to get our license, we sign something where we impliedly consent to take a chemical test after being arrested for a DUI. The test that you’re required to do is the evidential test that’s either a blood test or a breath test which is usually at the station. The officer is required to tell you if you refuse to do the blood test or evidential breath test that you will lose your license for a year.

After the arrest, the driver’s license is taken away and usually, the driver’s car is impounded. The police officer will also be required to send a form to the DMV notifying them of the arrest.

A decision must be made as to what charges will be brought against the driver. In California, for example, driving under the influence can lead to two misdemeanor charges -- Driving Under the Influence or Driving While Blood Alcohol is 0.08% or higher. But the driver can also be charged with Felony DUI, a very serious charge that can send the driver to prison for over a year and possibly up to five years.

NOLO: We asked Aaron Bortel for an explanation of Felony DUI.

AARON BORTEL: If you add on an injury to another you’ve got a felony. It’s that injury. Now the degree of injury is usually what determines whether or not they will charge it as a felony or a misdemeanor. It can be to someone in another vehicle, or a pedestrian or someone in your own vehicle. There you’ve got felony DUI.

NOLO: Occasionally, famous people are arrested for DUIs and it makes the news. This week, actor Mel Gibson was arrested after driving over 85 miles per hour, almost twice the legal speed limit. The idea of an intoxicated person doing double the speed limit seems frightening to the average driver. Does the speeding affect the DUI charge?

AARON BORTEL: I feel the same way that you do that yeah, it is a lot scarier when someone is going that much faster and I think that is treated much more severely by the prosecutors. Prosecutors do not like speeding cases. I’m not talking ten or twenty miles an hour over the speed limit but when they start seeing double the speed limit, doing ninety, one hundred on the highways and freeways, they get a little more upset and what happens there is that they are less likely to reduce charges.

What they did not do here, was that they did not add on an enhancement where if he were convicted for doing 20 miles an hour or greater [over the speed limit] on a highway which also includes surface streets and were convicted he would be looking at a minimum 60 days in jail.

NOLO: Under California law, a driver under the influence whose speed on surface streets exceeds the posted limit by 20 mph is eligible for an additional factor or enhancement and, if convicted, would lead to a minimum of 60 days in jail for the driver. So, why wasn’t Mel Gibson charged with an enhancement?

AARON BORTEL: That’s a big question in the DUI community right now. Most prosecutor offices that I’ve dealt with would not hesitate, y’know more than thirty, more than forty miles an hour over the speed limit, they will do it.

NOLO: There were many other elements reported in the Mel Gibson DUI case including belligerency, threatening of an officer, and the fact that an open bottle of tequila was found in the car. Although to a layperson, the presence of an open bottle of tequila may seem like damning evidence, it can also be used as part of the defense which may argue that the effects of the drinking from the open bottle – since they were so close to when the driver was stopped -- may not have affected the driver … but it may have affected the evidential test given later, when the driver’s blood alcohol level has risen. In other words, defense attorneys sometimes argue that an open bottle raises doubt as to whether the driver was over a .08 at the time the driver was stopped. That aside, however, the conventional thinking for most DUI cases is that a properly administered test that results in a reading substantially higher than .08 -- and in Mel Gibson’s case, .12 – will most likely result in a conviction. So what would a first time offender like Mel Gibson face in a California court? How much is the fine? And is there jail time?

AARON BORTEL: It depends on the county, but I’d say usually it’s between $1400 to $1700. That’s a typical fine. Sometimes they have to do a little community service. But your standard first offense DUI will give you in most counties -- they’ll usually give you two days in jail which can be done picking up trash on the Sheriff’s work program so you don’t actually spend the night in jail. You show up in the morning, [they] give you an orange vest, [you] pick up trash on the road. Some counties are more harsh than others. It’s my understanding that L.A. county is not one of those.

NOLO: Aaron Bortel also explained that in addition to a minimum of 2 days in jail, and license suspension by the DMV, a first time offender would also face three years probation.

Depending on the county, drivers accused of DUIs can in some cases can plea bargain. Bortel explained that some counties, for example, Marin County, north of San Francisco have a reputation for not entering into plea bargains in DUI cases. In other California counties, drivers may plea bargain in appropriate cases to lower counts known as wet reckless, for example, – a lesser offense than a DUI but it still counts for determining priorability. Or a driver may plea bargain to what is known as a dry reckless which is not a priorable offense.

As public opinion has gathered against drunk driving over the past few decades, drivers have found it harder and harder to plea bargain? Aaron Bortel concurs.

AARON BORTEL: I think everything in DUI law has gotten tougher since I started practicing in the early nineties. Mothers Against Drunk Driving has had a big push for many years to make the laws tougher. The law’s gotten a lot tougher not just in fines going up, but the sentencing has gotten much tougher, priorability – number of years – has increased. It used to be that it was seven years – if you got a second DUI within seven years [in California] it would count as a second offense. Now it’s ten years.

Aaron Bortel, like many DUI attorneys, often attempts to help clients get into alcohol programs and begin a recovery. But does an arrest and conviction affect drivers so much that they really change their behavior?

AARON BORTEL: They learn a lesson. Because they are often having to go to a DUI school their insurance rates go way up. Their licenses are suspended or restricted. Those kind of things happen. And those are what make most people learn their lesson and not put themselves in that situation again.

NOLO: That’s all we have time for this week. Thanks so much for listening. Much of the background information I used is derived from two books, Fight Your Ticket and Beat Your Ticket, both by attorney David Wayne Brown.