Perhaps the most common question I receive about DUI’s is what to do if your stopped? Many believe there are magic bullets that will prevent them from being charged. Clearly, short of drinking and driving in the first place, the best way I can respond to such questions is to inform people of the rights and responsibilities in such situations. Most people have no idea of what their rights are and therefore they do not properly exercise them.

Since DUI in California is one of the most technical areas of the law, I will try to address the procedures, rights and issues from when one is stopped through the arrest itself. It goes without saying that this is just a cursory review and does not encompass all of the rights, details and issues that may arise.

The Stop

Although drivers are sometimes stopped for “erratic” driving or “straddling lanes,” often one is pulled over for a minor traffic infraction. This usually involves an improper lane change, speeding, red light or some other traffic violation. The officer needs probable cause prior to initiating the stop.

Everyone is aware that the officer will ask for license and registration and that one must present that to the officer.  But depending on the time of day, the location and facts, the officer may believe the driver was drinking and proceed to ask questions like: “where are you going?” “where were you coming from” and “did you have anything drink?"  It is at this point that people are not aware of what they are or are not required to do.

In California, you are not required to make any statements to the police. Short of presenting your license and vehicle information, you are not required to answer any of the above questions or make any other statements. Often, police are waiting for incriminating statements from the driver in order to justify the administration of field sobriety tests (“FST’s”). For example, if a driver responds by saying “yes officer, I had a few beers” then there is cause already to have the driver exit the vehicle and request the FST’s. On the other hand, if a driver politely refuses to make any statements the officer will have to justify cause from his observations (e.g. odor of alcohol, bloodshot eyes, erratic driving etc..) and other facts as to the suspicion of drinking. All of which are considerably less reliable and accurate than incriminating statements made by the driver himself. In short, one is well within their rights to politely refuse answering any questions and let the officer proceed without any such information.

Field Sobriety/Preliminary Alcohol Screening Tests 

If an officer has established cause to detain for suspicion of DUI, he will generally ask the driver to exit the vehicle and perform a variety of FST’s. These range from the “one-leg stand” ; the “walk and turn” test;  the horizontal gaze nystagmus (following the finger with your eyes).

The first and most important issue to realize here is that there is no statutory requirement to submit to FST’s in California. Simply put, you are not required to submit to such tests and you may politely refuse. There are no enhanced penalties for refusing the FST’s and although case law is unsettled in this area, defense counsel will generally be successful in suppressing the prosecutions evidence of a refusal to submit to such FST’s should the matter proceed to trial.

The officer may also ask for the driver to blow into a Preliminary Alcohol Screening device (“PAS”). This is a small pocket size device generally administered at the scene of the stop to determine if there is alcohol in the breath.  There is no statutory authority requiring a driver to submit to a PAS test if he/she is not on probation for a prior DUI and is 21 years of age or older (drivers under the age of 21 are required to submit to the PAS test or lose their license for a year if they refuse. The various legal issues facing these under age drivers will not be addressed herein). In fact, the law specifically states the officer will  advise the driver that such a test is not required and that one does not have to take it.  Of course, if a driver does submit to a PAS test and it reads .08 or above, the officer will have cause to believe you were driving under the influence and will take you to the station for further chemical testing.

So what does this all mean? That one doesn’t have to submit to any tests at all and wont be charged with a DUI? No!…in Part II, we will look at what happens from this point on. What chemical tests will be required at the police station; the consequences of refusing those tests; as well as the procedures and penalties for a DUI in court as well as with the Department of Motor Vehicles.

In California, other than providing your ID and vehicle registration you are not obligated to make any statements to the police if stopped. You are not required to answer where you were going or what you were doing. You are also not obligated to take any field sobriety tests (e.g. walk the straight line); nor are you required to take the Preliminary Alcohol Screening test “PAS” if you are over the age of 21 (a small breathalyzer machine administered at the scene of the stop). You are, however, statutorily obligated to take the actual blood or breath test at a regulated facility (usually a police station) if you are detained on suspicion of DUI.

Sobriety checkpoints are becoming all to common and are frequently used before major holidays and sporting events. I am frequently asked about the legality of these checkpoints.

In California,  police departments use sobriety checkpoints at various times and to varying degrees. While some confusion exists over their legality, checkpoints are lawful if properly conducted and follow certain procedures and guidelines.

Whether or not a checkpoint is lawful depends on many factors, some of which are:

• whether it is in a reasonable location;
• whether the police department provided advanced notice of its location;
• the reasonableness of the time and duration of said checkpoint;
• whether it is safe to motorists.

To be sure, there are many other factors too — and no one single factor is determinative of whether a checkpoint is valid or not. The court will generally look to the totality of the circumstances  to determine its validity. Moreover, some factors are more important than others. Suffice it to say, however, that anyone arrested for DUI at a checkpoint should have an experienced attorney review all the information relating not only to the arrest, but to the circumstances and validity surrounding the sobriety checkpoint itself.

Can one legally avoid a checkpoint?  Provided that he does so in a safe and legal manner (a legal turn onto another street, or a legal u-turn – prior to entering the checkpoint, etc…)  the answer is generally “yes.” If your in the “chute,” however, and/or are already waiting at the checkpoint–then you cannot legally turn off or avoid it.

An Austin American Statesman article recently addressed the issue of blood alcohol test refusal. According to the article, in Texas, politicians, prosecutors and judges refused blood alcohol tests 100% of the time when stopped for suspicion of DUI. The average Texan refused to take a test only 50% of the time.

As in Texas, California has its own implied consent law governing the issuance of licenses within the state. A California Licensee agrees to submit to a blood alcohol test as a condition of being issued the license. If he or she refuses, their license is suspended automatically for year–even if the DUI case is dropped or dismissed. In California, certain procedures by the police must be followed before a “refusal” is legitimate.  With competent representation, a license suspension for refusal can often be challenged. However, if the driver refused and the proper procedures were followed, it is likely that they will lose their license for a year–a significant burden in cities like Los Angeles where people are married to their automobiles.

Of course such a license suspension should be weighed against the consequences of taking a blood alcohol test, especially in light of inaccuracies and issues with breathalyzer machines discussed here.  Without such a test, the prosecution usually has no physical evidence of impairment, and is required to rely on the testimony of the officer–significantly weakening the prosecution’s case and raising the issue of reasonable doubt.

The Statesman’s article demonstrates that politicians, prosecutors and judges are aware of DUI laws and procedures, and are therefore able to make informed decisions tailored to their individual circumstances. By contrast, the average citizen is usually unaware that they have two problems to deal with: 1. the criminal case; and 2. the DMV administrative action against their driver’s license; to say nothing of the complex web of other laws and procedures that are inherit in a DUI charge.

Perhaps articles like the ones above will inform and educate the public of their rights and options, so the privileged few are not the only ones “in the know.”

Recent court rulings demonstrate the problems and issues with breath test machines and reliability. If the defense is unable to obtain information about how these machines actually work, and whether they are reliable, how can the legal system rely on them altogether?  It appears maybe they wont…

http://www.heraldtribune.com/article/20090115/ARTICLE/901150357

The holiday season is filled with celebration, good times…and of course, plenty of alcohol. It is no wonder that this time of year experiences some of the highest arrest rates for driving under the influence (DUI). Police agencies often set up check points during this time of year to catch potential violators. One should never drink and drive. But if you or a loved are arrested, understanding the complex legal system related to this area of law is crucial.

Women should be aware of the differences between themselves and men with respect to alcohol consumption and DUI. The difference is not in the law, or how it’s applied, but rather in the fact that women absorb alcohol faster than men because they generally weigh less. A two-hundred pound man, for example, may not be over the legal limit after 2 drinks, whereas a 120 pound woman may very well be. This is not to say that a heavier woman has a free pass to consume more alcohol. There are other important factors such as food intake, metabolism, and duration between drinks, among others, that also play a crucial role in determining blood alcohol level.

In California, fines and penalties for DUI have steadily increased. The California legislature has determined that a DUI violation is a serious violation of the law and has established a complex legal framework for handling these violations. An arrest for DUI can potentially result in severe fines, community service, alcohol programs and jail.

A mistaken belief that there is only a criminal case pending against one arrested for DUI is common. Many do not realize that they now have a battle on two fronts: 1. the criminal case itself; and 2. the Department of Motor Vehicles (DMV) – with respect to the suspension of their driver’s license

When one is arrested for DUI in California, the police confiscate their driver’s license and issue a temporary license for a thirty (30) period. One MUST then contact the DMV within ten (10) days of the arrest to request a “stay” of the license suspension and a DMV hearing to contest the DUI arrest. If one fails to request the “stay” and hearing within ten (10) days, their temporary driver’s license will expire after thirty (30) days, and they are unable to legally drive a motor vehicle.

California Vehicle Code Sections 23152 and 23153, state in part:

• It is criminal violation to operate a motor vehicle on a public roadway with a blood alcohol level of .08 percent or higher.

• It is a criminal violation to operate a motor vehicle with a blood alcohol level of over .01, if you are under the age of 21.

• It is a criminal violation to have an opened container of alcohol in a vehicle upon a roadway, unless the container is kept out of the immediate control of its occupants.

• Anyone arrested for driving under the influence must submit to a chemical test (blood or breath) to determine the alcohol content of the blood. Failure to complete or refusal to take the test will result in suspension of the driver’s license for one year.

The consequences and potential harm one can cause by drinking and driving can last a lifetime. This holiday season, be safe and designate a driver.