The best way to avoid a DUI conviction is obviously not to drive if you are impaired. With the availability of public transportation and taxi cabs driving while impaired should never be an option (give LYFT or UBER a try). However, it is not illegal to drink and drive in California. It is perfectly legal to have a couple of drinks and get behind the wheel as long as you are not impaired or do not have a BAC of .08% or higher. The following post provides information about your rights and what to do if you find yourself pulled over for suspicion of DUI.
THE LAW IN CALIFORNIA
In California, there are two different charges for DUI: sections 23152(a) and 23152(b) of the Vehicle Code. The “a” charge is for driving under the influence where it is illegal to drive under the influence of alcohol, drugs or a combination of the two. This count does not look at your blood alcohol level. You could be a lightweight with a blood alcohol of 0.07%, but if you were all over the road or got into an accident you could be charged with and convicted of 23152(a) – driving under the influence.
The second charge is section 23152(b), where it is illegal to drive with a blood alcohol of 0.08% or higher. This charge has nothing to do with any “bad” driving. For example, you could be stopped for having a brake light out and if it is determined that you were at or above 0.08% blood alcohol level, even with no bad driving, you could be convicted of this count. The “b” charge is common in DUI checkpoint cases because there is usually no evidence of bad driving.
Both sections are punished the exact same as far as priorability, fines, etc. Many clients ask why they have two counts and express concern about double punishment. Have no fear because even if you are convicted for both charges you can only be punished once, which means a conviction under just the “a” or “b” charge is treated the exact same as a conviction for both charges (rent your favorite Ashley Judd movie on Netflix if you want more information on why this is the case).
You should also be familiar with California’s implied consent law. In California, when you get a driver’s license, you have given your implied consent to submit to a chemical test (blood, breath, or urine) if you are lawfully arrested for driving under the influence. If you refuse to submit to a chemical test at the station the DMV will take your license for one year. While you must submit to a chemical test at the station, you can (and should) say NO to the “PAS” test at the side of the road.
THE DUI STOP
So now the big question. What do you do if you get pulled over for a DUI in San Diego?
I read a blog post similar to this one where it was suggested that the driver pull over, get out of the car, and chug a bottle of vodka in front of the police. The reasoning behind this foolish stunt was so the driver could later argue that his BAC was high only because of what he drank AFTER he was driving. If you are wearing your Sigma Chi letters and think you can convince the officer, prosecutor, or a jury that you were forced to do it for fear of hazing then you might stand a chance, otherwise I would stick to the following plan.
DON’T ADMIT TO ANYTHING
After you are pulled over you do not have to answer any questions. The last person on earth who will tell you this is the officer. I know what you are thinking… I watch Law & Order, what about my Miranda rights! Unfortunately, Miranda does not apply in the DUI stop setting because you are not “in custody.” All this means is that the officer does not have to tell you about your 5th Amendment right to keep your mouth shut… lucky for you regardless of what the officer says to you the 5th Amendment right against self-incriminating applies 24/7, no matter the situation… so you don’t have to answer the officers very incriminating questions.
You will be asked “have you been drinking?”, “how much?”, “do you feel the effects of the alcohol?” These are all very incriminating questions, so answering them won’t help your case. You are required to provide your driver’s license, registration and proof of insurance, but any additional questions that may incriminate you, such as the drinking questions, you can decline to answer. Many clients give the “I have had just two beers” answer. You might as well just jump in the back of the squad car if you are going to give the officer that information. The best option is to politely decline to answer any questions. An easy way to do this is to simply say “I would love to answer all your questions but I have a friend who is an attorney and he told me that I should not answer any questions.” There is no reason to be difficult, the officer is simply doing his job.
DON’T PERFORM FIELD SOBRIETY TESTS
Many people are unaware that they do not have to perform field sobriety tests. The 5th Amendment protects you from having to say or do anything that would incriminate you.
Most of the time there is not a camera capturing these so the officer knows that his report will be the only record of your field sobriety tests that anyone will care about. The officer almost always conducts the HGN test (follow the tip of the finger/pen with your eyes) first. Of course, the only person who can verify whether you did well on this test is the officer. It is important that you decline to submit to the HGN, even if you are still sitting in the driver’s seat when asked to do it. Experts agree that out of all of the field sobriety tests the HGN is the best indicator of impairment so performing poorly on the HGN can seal your fate before you even get out of the car.
There is no “pass” or “fail” to a field sobriety test. It is unlikely that you could perform as well as this guy, but even if you do the officer will likely not be satisfied. These are designed to test motor skills, divided attention, and information retention. If you’ve ever seen these tests administered, realizing what you are being asked to do is a huge task. The officers administer these all the time and are familiar with the instructions they are giving, but to you they are completely foreign. With that being said, if you do elect to submit to the field sobriety tests a knowledgeable San Diego DUI attorney can discredit the tests at trial because they simply have many flaws, both in their design and how the officer administers them.
If asked to perform field sobriety tests, you should politely decline, along with a statement that you believe they are too subjective and not required by California law. (Keep in mind that the officers may have recording devices so make sure that you are clear about why).
BREATH AND BLOOD TESTS
There are two different stages where you may be asked to submit to a chemical test.
The first is a roadside breath test known as a PAS (preliminary alcohol screening) device. If you are on probation for a DUI conviction or are under 21, you must submit to that roadside PAS device test. Otherwise, it is just another field sobriety test. So rather than help the officers build a case against you, simply decline the PAS (of course, if you haven’t had anything to drink then a quick blow into the PAS device should send you on your way). If the results are over 0.08%, it adds into their probable cause to place you under arrest. If they don’t have those results, they must independently determine whether or not there is probable cause to arrest you (hopefully without any admissions of drinking, field sobriety tests or PAS results to rely on). If they cannot develop probable cause to believe you were driving under the influence of alcohol, they cannot arrest you (at least not lawfully). If the arrest is not supported by probable cause, any subsequent chemical test and blood-alcohol result may be excluded by the court in your trial.
REQUIRED CHEMICAL TESTS (BLOOD OR BREATH)
If probable cause is found, then you are required by law to submit to a breath or blood test. Remember, when you are issued a California Driver’s License you have given your “implied consent” to submit to a chemical test. Breath can be more easily attacked in court and there is a built-in margin of error that may work in your favor. However, breath is not preserved and the breath testing machines have many flaws. More and more courts are starting to understand that breath testing machines simply are not scientifically reliability. This gives an attorney many ways to discredit the results.
Many people ask if they should just refuse to submit to a test and take the year suspension that comes from the DMV when a driver refuses a chemical test. This is a bad idea mainly because they can still force you to do a blood draw and then you would be facing the DUI and the refusal charge.
The recent case of Missouri v. McNeely, (2013) 133 S.Ct. 1552, has changed the landscape of chemical tests in DUI cases. It held that the police must secure a search warrant before they can draw your blood. This ruling is at odds with the DMV’s implied consent but in a court of law the Supreme Court trumps the DMV. It is best to simply tell the officer that a warrant is required before the government can draw someone’s blood and then do what the officers tell you to do. The police are not well versed on this area of law and rather than face a refusal enhancement it is wise to submit to blood draw without a warrant and then allow your attorney to argue that the blood should be suppressed pursuant to McNeeley.
YOU AREN’T GOING TO REMEMBER ALL THIS SO HERE IS A CHART
The following chart provides a basic guide to the decisions you have to make after you are pulled over. Of course, each person and each situation are different… at the end of the day you have to know yourself and how much you have had to drink.
|FSTs & PAS?||Blood Test?||Breath Test?|
|You are positive you are over .08%||Decline||Decline||Accept|
|You are positive you are under .08%||Decline||Accept||Decline|
|You believe you are on the fence of .08%||Decline||Accept||Decline|
CONTACT AN ATTORNEY
Before you make up your mind as to whether you are guilty, it is certainly a good idea to speak with an attorney. San Diego DUI attorney, Patrick Griffin, offers free consultations and will even get a copy of your police report free of charge to get a better idea of what course of action is in your best interests. Keep in mind you only have 10 days to request a DMV hearing and a public defender cannot represent you before the DMV.
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