FAQ: A Few Things You Should Know
1) The Law in California:The California Vehicle Code has 2 sections whereby you can be charged with driving under the influence ('DUI'): The most common is CVC Section 23152(b). It is unlawful for any person who has 0.08 % (or more) of alcohol in his or her blood to drive a car. To convict you, the District Attorney ('DA') must prove: 1) you were driving a car, and 2) your blood alcohol level was .08 or above at the time of driving.
Most people who are arrested for DUI are also charged with CVC Section 23152 (a). Basically, this section makes it illegal to operate a car while 'under the influence' of any alcohol or drug. Notice there is no minimum blood alcohol level. Theoretically, you can be arrested and charged for DUI with a blood alcohol level of .01%, while 'under the influence' of your legally prescribed medication, or even after taking some over-the-counter medicine. Of course, this section can also be used to charge people with DUI of any illegal drug, like marijuana (difficult to prove) or cocaine. In CVC Section 23152(a), the DA must prove that: 1) you were driving a car, and 2) you were 'under the influence' while driving.
Question: How does the DA prove that I was 'under the influence'? Usually, there are two ways to prove this: 1) you were in involved in an accident, or 2) your so-called 'bad driving' you swerved into another lane, failed to obey a red light, drove around at night with your headlights off. For purposes of CVC Section 23152(a), 'under the influence' means that your ability to drive safely was 'impaired,' so that you weren’t as cautious or alert as a completely sober driver would have been in similar circumstances.
Question: I blew a .13%. Why am I being charged with CVC Section 23152(a) and 23152(b)? The answer is simple: It gives the DA 'two bites at the apple.' If your lawyer can prove at trial that your blood alcohol level was rising -- thereby casting doubt on the fact that you were .08 or above at the time of driving -- the DA can still try to convince the jury that you were nonetheless 'under the influence' at the time of driving, and therefore guilty on the CVC Section 23152(a) count. Of course, the DA will need to show 'bad driving' for the (a) count, which may be difficult to prove if you were pulled over for expired registration or a bad brake light, for example.
2) If I get pulled over for DUI, what are my rights?First, a police officer must have what is known as 'probable cause' to pull you over. Typically, this means you must commit some offense under the Vehicle Code. An officer cannot simply wait outside the bar, watch for people going to their cars, and pull them over: that is not a valid probable cause. If the officers pulled you over without probable cause, you need a lawyer to file a suppression motion to get the illegally obtained evidence thrown out.
Most likely, you will be asked something along the lines of 'How much have you had to drink tonight?' Your answer (and your attitude) will determine how the rest of the police encounter goes. While it is important to stay polite and respectful of the police officer, this does not mean you should give up your constitutional rights. For example, you do not need to answer any incriminating questions, and you do not need to consent to any search of your car or person. It makes the officer’s job a lot easier if you give the standard 'I had 2 beers' answer, or if you give consent to let him search your car. There is no need to do this, despite what the officer may claim about 'making it easier on yourself by cooperating.' This is a false and completely unenforceable promise. A simple, polite reply of 'I’d rather remain silent' will do just fine.
If the officer suspects you of DUI, he will ask you to blow into a Portable Alcohol Screening device (also known as the 'PAS' device). Because of the notorious unreliability of the PAS machine, the results are oftentimes suspect or inflated. Unless you are under 21, you do NOT need to submit to the PAS screening. If you are over 21, you may refuse the PAS altogether. Whether you agree to take the PAS test or assert your right to refuse it, you will probably be asked to submit to the 'Field Sobriety Tests,' also known as FSTs.
You may have seen people pulled over on the side of the road, doing the finger-to-nose-with-head-tilted-back test, or walking the line, or staring at a pen while the officer moves it side-to-side. The important thing to know about the FSTs is that they are set up for you to fail. In other words, if the officer thinks you've been drinking, your performance will be graded as a failure, no matter how well you think you did. Many people are surprised to read in their police reports that they failed the FSTs for 'swaying one inch in a circular direction' or displaying the onset of 'horizontal nystagmus.' There has been no study that equates performance on any particular FST to any particular blood alcohol level. In short, the FSTs are scientifically unreliable. As with most tests that are subjective and unreliable, the law protects you from submitting to them, and you have the absolute right to refuse to perform the FSTs.
3) What if I refuse the PAS and the FSTs? What happens next? Do I get arrested?If the police officer has probable cause to arrest you for DUI, you will be arrested. Keep in mind that the probable cause cannot be your refusal to take the PAS screening, or your refusal to submit to the FSTs. Your rights become worthless if the Government can punish you for asserting them, this is a fundamental principle of constitutional law.
This is a commonly misunderstood concept – what’s known as 'chilling your rights.' A quick example: the officer asks for your permission to search the trunk, and you say 'No thanks, officer.' He says 'If you don’t consent, I’ll get a search warrant.' You say: 'In that case, you’ll have to get your warrant.' The cop cannot use your refusal to give consent as the probable cause for the search warrant. He must come up with some independent, objective reason for the warrant, and that is not always easy to do. Make him get a search warrant, assert your 4th Amendment rights!
If you are arrested for DUI, you can expect the probable cause for your arrest to be something like this: 'I observed the suspect driving erratically. I initiated a traffic stop. The suspect had slurred speech, red/watery/bloodshot eyes, dilated pupils, a flushed face, an overwhelming odor of alcohol, and exhibited extreme unsteadiness on his/her feet after getting out of the car.' Almost everyone gets some version of the same thing in the DUI police report.
If you are arrested for DUI, you must submit to a chemical test of your breath or blood. This is what’s known as the 'implied consent' law. In exchange for your driving privilege, you agreed (when you signed up for your CA Driver’s License) to submit to a chemical test if you are arrested for DUI. You have the right to choose from a breath test or a blood draw. However, in the rare case where one of the tests is unavailable, you must submit to the other. If you refuse to submit to a chemical test, it will be used against you at trial and the DMV will suspend your license for one year. Then, after you refuse, the police can hold you down and take your blood anyway.
4) DUI Penalties and Priorability:A conviction of CVC Section 23152 (a) or Section 23152 (b) is 'priorable' for 10 years. A conviction for a 'wet reckless' is priorable the same way as a full fledged DUI. This means that it stays on your record for 10 years. The DUI is priorable from the date of offense, not the date of conviction. Why is this important? Because a second DUI (within 10 years of the first DUI) has a statutory minimum jail sentence of 48 hours, and a third DUI (within 10 years of the first DUI) has a statutory minimum of 120 days jail. Also, your car insurance may go up with a DUI on your record.
5) What do I do if I am booked on a DUI?Sometimes you will be booked into jail, with a bail amount set. Typically, a first time DUI will have a bail of around $2,000. If you call a bail bondsman, you will have to post approximately 10%, or $200, to get out of jail. If you wait in custody until your arraignment (which must be within 48 hours of your arrest), you can plead 'not guilty' in front of the Judge and request release on your own recognizance (also known as 'O.R.') Whether the Judge grants your O.R. request will largely depend on your criminal record and your connections to the local community. If you post bail before your arraignment, the arraignment date will usually be set out approximately 30 to 60 days after your arrest. As with most misdemeanor offenses, your lawyer can appear in court without you, and plead 'not guilty' to the DUI on your behalf at arraignment.
Other times, you will get a 'cite and release,' where you sign the ticket with a 'promise to appear' at a later court date, and you get a ride home. After you get home, you will have to decide if you need or want a lawyer. This is an important decision that will take time, and you want to think it over carefully. Before you wait too long, however, you need to contact the DMV, or have your lawyer do it for you.
In order to protect your driving privilege after being arrested for DUI, you must contact the DMV within 10 days of your arrest to schedule what's known as a DMV APS hearing. If you wait too long, you waive your right to the hearing, and the suspension of your license will automatically take effect 30 days after the date of your DUI arrest.