DUI CASES:
Yes I've Been Arrested for DUI, Now What?
First of all you must understand
that the legislature has recently 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 at the same time. 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 thing. If you think of it as "Double Trouble"
you will quickly grasp the concept.
What am I Really Facing as a Penalty?
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,
that may not be true in certain Counties.
You
will probably receive some kind of fine in the neighborhood of between $390.00 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 direct
responsibility of the Department of Motor Vehicles.
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 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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