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ANTHONY J. ROBINSON

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In Memory of 09-11-01

Lest We Forget

DUI CASES:

DO I NEED A CRIMINAL DUI ATTORNEY?

        The short answer is yes,  you do. As a result of political pressure, the legislature has passed extremely harsh laws which govern so called "Drunk Driving" cases. Today, not only will you be facing criminal prosecution and criminal penalties, you will also have to deal with the "automatic" confiscation of your drivers license by the Department of Motor Vehicles. These are two separate and very distinct processes and  consequences. You must understand that in order to protect all of your rights, you must deal with both processes.  Just because you appeared in Court, doesn't  mean that the DMV is out of the picture. While both processes  are interrelated to one another, they are not one and the same.   If you think of it as "Double Trouble" you will quickly grasp the concept. 

What if I Represent Myself?

        If you are a "first time offender" you may feel that it is easier to simply appear in court in pro per (without an attorney) and simply "plead out" to a violation of either V.C. § 23152 A or B.  If you are really lucky they may even offer you a "wet reckless." What this means to you is that unless this is not your first offense, have a blood alcohol level above .020, have refused a chemical test, had an accident which resulted in death or serious injury, you "probably won't"  receive any jail time. 

        However, you will probably receive some kind of fine in the neighborhood of  between $500.00 and $1,500.00. You will be placed  on between one and three years summary probation and will have to attend a first offense alcohol program. Depending on the Court jurisdiction you may have additional requirements in addition to the ones we  mention here, such as attending A.A. meetings.

        To the uninitiated, the consequences of  being charged with a first offense DUI may appear to be deceptively simple. They probably will feel that the fine and increase in their insurance premiums are the worst of it. This feeling is usually the result of the embarrassment that they experienced by  being arrested and put in jail. They just  want to put the whole nightmare behind them. They aren't bad people, they just don't do anything to help themselves.  As a result,  one of the important first steps in defending their right to drive slips away.  Their privilege  to drive a motor vehicle in the State of California. I'll bet you thought that driving is a right, like your right to vote. Well think again because it isn't. It's a privilege granted by the State of California. Managing that  privilege is  the responsibility of the Department of Motor Vehicles. 

What About My Right to a DMV Hearing?

        For more information concerning your rights to a Department of Motor Vehicles per se Hearings click the "DMV Hearings" button to your left. That page will explain your right to a  DMV hearing; how to obtain one; and the time limit in which to request one. This is "very important information", especially if you have recently been arrested for DUI.  

What If the Police Ask if I Have Been Drinking?

        The police cannot compel you to talk to them or answer  incriminating questions. You can simply tell them that you would prefer to speak to an attorney before answering their questions.   However if you do this, be aware that you will  probably be arrested   anyway.  Especially if they have other objective symptoms which would lead them to believe that you are under the influence.

        The most obvious symptom would be the smell of alcohol on your breath. I have read other attorneys recommend that you admit to having "one beer" as a possible explanation for the odor. But if  you do  that, then  you open the door for the officer to ask you follow up questions, that you might have difficulty answering honestly.

        As a result of your answer, the police officer may  request that you perform Field Sobriety Tests (FST'S).  Which may not be the best thing for you to do, especially if you are impaired. Sometimes the best advice is to invoke your  5th.  amendment right against self incrimination and refuse to answer his question.  It beats  lying to a police officer every time. 

        But for the purposes of our discussion, let's assume that you told the police officer that you drank one beer and the police officer asks you to take one or more of the Field Sobriety Test's (FST) listed below. The next question is, must  you submit?

What  Exactly is a FST?

        Before we can answer that question, you should know exactly what a FST is and what  purpose it serves.  FST'S  can include various test designed to test your ability to perform physical tasks. They can include such things as:

•  Walking heel-to-toe over a prescribed distance;,
•  Placing alternate fingers of either hand to your nose;
• Standing on one leg 
• Reciting the  alphabet or writing it down;
• Counting alternate fingers with your  thumb, etc.
• A Preliminary Alcohol Screening (PAS) test in the field. 

Can I Legally Refuse to Take a FST?

       Before you make that final decision, you should consider the fact that  field sobriety tests are highly subjective physical tests.  Whether or  you pass or fail depends entirely upon the subjective opinion of the police officer, who is human and makes mistakes just like you and I do.   Unfortunately judges and juries will usually give the police officer's  opinion of your performance far more weight  that it really deserves.  Not to mention, that some of us are uncoordinated when we are stone cold sober. Consider this sobering fact, what if you accidentally trip and fall during the test because of a dirty surface. Who will believe that you weren't drunk. 

         The short answer is "Yes" you can refuse, politely, to take a FST. However, there is a caveat  (warning) to that answer.  You need to understand that while  you are not legally required to perform any of these tests, if you don't you will probably be arrested.

        The positive side of  your refusal to take a FST is that the police officer  cannot testify to observing you fail an "objective" test of your ability to perform physical tasks. It deprives the police and  prosecution of a key piece of evidence that could be used to  convict you of DUI. For that reason, it is probably a good to politely decline these tests, especially if you can feel the effects of the alcohol. 

What Happens Next?

        Most likely be arrested and transported to the police station for a formal chemical test. 

What if I Refuse  to Take a Chemical Test? 

        Remember when we were discussing that driving is a privilege and not a right? As a condition of  that privilege is an implicit understanding that  we will submit to a chemical test whenever requested to do so by a police officer. We are legally obligated to submit to a chemical test whenever requested to do so. 

        While a police officer cannot force you to submit to a chemical test, refusing to take one  is an almost guaranteed way of being convicted of DUI.  In addition,  if you are found guilty of refusing a chemical test,  your California Driver's License "will be"  suspended for a one-year period by the Department of Motor Vehicles.   It doesn't  matter if you are found innocent of the DUI, the refusal is sufficient to warrant the one-year suspension. While you can refuse to take a FST, you cannot legally refuse to take and complete a chemical test. 

Can I Request a Lawyer Before the Chemical Test?

        The answer is No.  In California, you do not have the right to consult an attorney before  submitting to a field sobriety test or a chemical test. Bet you didn't know the answer to that one, did you? 

Can I Choose Which Chemical Test to Take?

        Yes. In most cases you will be given a choice between a  Blood or Breath tests. Usually speaking a Blood tests is more accurate than a breath test. Giving a blood sample also gives you another weapon to attack their evidence. If you request a blood test, a sample is retained and preserved according to special rules of evidence. This allows your attorney to make a motion for a split of the sample to allow your defense laboratory  to  independent test and analyze the sample at a later date.  The defense laboratory will analyze the sample to see if the proper preservative is present in the vial and, if it is, for the blood alcohol level. 

        While breath tests are fairly reliable today, they are not the preferred test because  the results can be unreliable for a variety of reasons. In addition, no sample is retained for later analysis. It is not that they lack the technical know how to preserve a sample, they simply choose not to do so. 

        Urine tests are no longer valid in California because historically they proved to be  the least accurate of the three tests.  In our opinion,  a blood test is the most accurate and you should chose it  if you are reasonably sure  that your blood alcohol content is below the legal limit. If you believe  that your blood alcohol level may be over the limit,  you may consider taking a breath test so that there is a possibility of contesting  the results later. 

        In some jurisdictions, you can submit to a breath test and request that a blood sample be taken as well. However, you should understand that the police are going to steer you towards the breath test and away from the blood test. You have to adamantly demand a blood test if you want one. 

What Else Don't  I Know About a DUI?

         You should know that the police can legally arrest you at any appreciable blood alcohol level. It is not unusual in some counties of the State of California for the drivers to be prosecuted  with blood alcohol levels as low as 0.05%. The decision to make an arrest is entirely within the discretion of the police officer. He is most likely going to make that determination on your driving.  Police need "probable cause" to effect a traffic stop to talk to you. They will be looking for you to exhibit one or more of the following signs of impairment: 

• Erratic driving;
• Speeding 
• Inappropriate braking;
• Nearly causing an accident;
• Delay in responding to traffic lights;
• Weaving over the line or not staying in your lane of traffic;
• Swerving for no reason;
• Stopping for no apparent reason;
• Tailgating or following too closely;
• Driving on to the unpaved shoulders;
• A traffic accident, involving serious injury or death.

        In reality a police officer can arrest for  being under the influence of alcohol by observation of your driving alone. He doesn't need to make any  reference to the blood alcohol level.

Do I Have Any Defenses That I Can Raise?

        Yes.  The first defense is the so-called "rising blood level defense." This  technique  may be available to you as a defense, if a considerable  amount of time has passed since the time you consumed alcohol and the time they administered the  chemical test at the police station.  The reason is that alcohol that you drink is not absorbed into your blood stream right away. The time it takes for alcohol to actually enter your blood stream can be from 20-30 minutes to  several hours. It all depends on many factors. 

        The argument goes like this. The starting point is the the time you consumed your last drink. The effects of that last drink will probably not hit your system immediately. Therefore, during the stop, while the police are interviewing you, administering FST'S, transporting you to the police station, and waiting for your chemical test, the alcohol that has been sitting in your stomach is still being absorbed into your blood stream. For that reason, your blood alcohol reading at the station may be considerable higher than when you were actually driving. 

Are There Any Other Defenses Available?

        Yes, all the defenses available to any other criminal case may be asserted in a DUI case. 

• No probable cause to  to stop, detain, test or arrest you;

• No proof that you were actually driving a motor vehicle;

• No Miranda warnings. This is a very technical defense and has its limitations. If you can assert it successfully, it can prevent incriminating evidence from being admitted into evidence;

• The chemical tests cannot be relied upon, due to poor maintenance, calibration of operation;

• Blood sample not properly preserved. If there is no preservative in the sample, the blood can decay or ferment and cause a artificially higher reading;

• Officer or other witnesses are unreliable. 

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