Top 10 DUI Questions
This Guide is meant to address questions people charged with a DUI commonly ask so you have a better understanding of the law and how to choose a DUI attorney (the RIGHT ONE that is) to handle the DUI charges filed against you. This is the first of multi-part segments that will be devoted to DUI's.
Q: Do I have to be *drunk* to be charged with a DUI?A: Being *drunk* is subjective. Individuals have different tolerance levels to alcohol depending on their body type (height/weight), gender (female versus male) and other factors as well as tolerance to alcohol at very high levels due to alcoholism. Most people don*t consider themselves *drunk* while driving.
The actual legal standard in DUI cases is whether you were operating a motor vehicle while under the influence rendering you impaired to safely operate a motor vehicle.
In California, if your blood, breath or urine test shows a blood alcohol content (BAC) of .08 or higher, you are PRESUMED to be under the influence of alcohol. You can then be charged with two offenses:
1) Vehicle Code section 23152(a), which means that even if your test result is less than the .08 legal limit you can still be charged with a DUI. Other reasons include bad or erratic driving, failing Field Sobriety Tests (FST*s), the police officer*s observations of anything from smelling alcohol on your breath, slurred speech, unsteady gait, etc. after you are pulled over;
2) Vehicle Code section 23152(b), Driving with a Blood Alcohol Level of .08 or Higher.
Q: What about if I used drugs (marijuana) but didn*t drink alcohol, can I still be charged with a DA: Yes. Vehicle Code section 23152 expressly states that a person can be arrested for a DUI whether under the influence of alcohol, drugs or a combination of both.
Q: Can I be arrested for DUI because I had prescription medication in my system when I was stopped?A: Yes. Prescription medication can and do impair a person*s ability to operate a motor vehicle just as much or more so than illegal drugs (depending on dosage). If you inform the police officer that you have taken prescription medication, you will undoubtedly be told (not asked (see below) to submit to a blood test. Also, if you submit to a official breathalyzer (more below) and your BAC test result is under the .08 legal limit, police officers routinely then suspect that you may be on illegal drugs or medication and ask you to submit to a blood test as well.
Q: Do I have to perform field sobriety tests (FST*s) if the police officer asks me to?A: No. You are under no legal obligation to perform any *field sobriety tests.* Most of these tests you may be asked to perform have little to no evidentiary value and are highly subjective. Consequently, most police reports are written in such a way to support the police officer*s suspicion you may be under the influence of alcohol and exaggerate how *poorly* the person supposedly performed FST*s to provide a basis why you are then arrested for a DUI.
Additionally, FST*s are commonly performed on the side of the roadway which can be an uneven surface (meaning sloped or at a slant) which can impair your performance. Women, in particular, may have issues such as having to perform balance/walk a straight line tests with or without their high heels on. Even the count to 30/estimate 30 seconds or repeat the alphabet tests can be skewed due to your agitation/nervousness over having to perform such tests particularly with cars passing by.
Instead of telling the officer, *I know my rights, I don*t have to do FST*s (which will lead the officer to conclude that you have an *attitude* and everything he sees/hears from that point on will be negative in the report he or she writes about you being under the influence of alcohol), the best thing you can do is politely inform the officer of any medical conditions you have which may impair your ability to perform the tests (but NOT what medications you were prescribed in treatment for those medical problems).
Q: Do I have to submit to a field breathalyzer at the scene of the stop?A: No. You are under no obligation to submit to a field breathalyzer (commonly referred to as a PAS test) when asked to do so by a police officer at the scene where your vehicle was stopped. Consequently, that device is commonly used by police officers to see if you have alcohol on your breath, which is NOT the same as alcohol in your blood stream, and is another tool in their arsenal to support their suspicion that you are DUI but which you are not required to take.
However, you are required to take a blood or breath test (authorized and properly calibrated device recognized by the State of California) at the police station or if transported to a hospital after you are arrested for suspicion of DUI.
Q: Will my license be suspended on a first time DUI?A: Yes, if you fail to schedule a hearing with the Department of Motor Vehicles (DMV) within 10 days of the date of your arrest if your BAC is .08 or higher. Either you (or your attorney) must schedule a hearing in order to contest a suspension of your driver*s license. Otherwise, whatever determination is made by the DMV official will result in your license being suspended. At that juncture, you*ll have no recourse but to file a costly Appeal. No one should try to handle a DMV hearing without an attorney.
Why? DMV Administrative Per Se Hearings (APS) are similar to a *Kangaroo Court*. You will automatically be presumed *guilty*. The *hearing officer* will admit all documents into evidence that are not in your favor. However, there are Rules of Evidence that may preclude such documents from being considered. Also, legal defenses can be raised that an experienced attorney who knows how to raise the defense and what evidence is needed in support of the same.
Q: I was not given a choice of BAC tests. Instead I was only offered a blood test. Is this legal?A: Under a California Supreme Court decision in the 1960*s (People v. Schmerber), a police officer or blood technician can not only require you to submit to a blood test, they could even force you to do so unless the force used *exceeds the bounds of reasonable conscience*. There were many Appellate Court decisions afterward that upheld the use of excessive force to the point the person suspected of being DUI was severely beaten/mistreated to forcibly withdraw a suspect's blood.
That was the case until the U.S. Supreme Court decision in 2013 that forcible withdrawal of blood against a person*s will is unconstitutional. Now, a *duty judge* may be called in the middle of the night to grant the police officer/blood tech to draw your blood. This makes the process appear more *legal*.
The best thing to do is not refuse a blood test because a "Refusal" will lead to a one (1) year suspension of your license by the DMV and enhanced punishment by the court.
Q: My license is suspended but I need to drive to work. Can I get a restricted license?A: Yes. If this is your first DUI, your license will be suspended and you will be precluded from driving for 30 days. However, once the initial 30-day suspension is over, the DMV will issue you a restricted license after you enrolled in a Drinking/Driving program (AB541). This will allow you to drive during term of the license restriction.
If this is your second DUI, you will not be permitted to operate a motor vehicle for 1 full year. If you are enrolled in an 18-month second offender Drinking/Driving program (SB 38), the DMV will issue you a restricted license. However, that is only after you*ve completed one full year of the 18-month program.
Q: I*ll lose my job if I have to keep coming to court on my DUI case. Is there anything you can do?A: Absolutely. I always have clients charged with misdemeanor DUI's sign various documents including a PC 977 waiver which will be filed in court at your Arraignment so I can make all appearances on your behalf without you having to be personally present.
Q: I don*t think the stop was legal. The police didn*t read me my rights. What can you do to help?A: First, whether the stop was *legal* is something only an experienced attorney can determine. The attorney should review the police report and other supporting documents that will be used against you. Many stops by police officers are *pre-textual*, meaning they had a *hunch* you*re under the influence many times simply because you were driving late at night or coming out of a bar.
Motions to Suppress evidence can be filed on behalf of clients (many DUI attorneys don*t) and, ff successful, all of the evidence will be excluded and result in the DUI charges against you being dismissed.
When the police fail to read you your rights (referred to as a *Miranda* warning) it*s a little trickier. The officer will say he stopped you for a traffic infraction to conduct a *routine stop* for a traffic infraction or to "check on your welfare".
If you are detained (not free to leave after a citation could have been issued) and asked further questions about whether you*ve been drinking that night and, if so, how much, asked to perform FST*s, perform a PAS test (see above), etc., then the detention can be considered *custodial* in which case your statements without a Miranda Warning be given can potentially be suppressed.