Ok, you've been pulled over by a police officer and you have
been drinking. What do you do? This is a tough question, and different
lawyers will give you different answers.
In
California, there are two things the State must prove to convict someone
of a DUI. It must prove that you were driving and that you were driving
under the influence of alcohol or drugs. You cannot legally drive in
California if your blood-alcohol concentration (BAC) exceeds 0.08% or if
you are under the influence of drugs, or a combination of the two.
If
you are involved in the situation where proof of YOU driving is an
issue (such as where a police officer rolls up after an accident), be
cooperative but NEVER admit driving.
More common is the situation where
the officer sees you driving and you are pulled over. At the point you
are pulled over, you are NOT under arrest, so your "Miranda" right to
remain silent does not apply. Instead, the officer has every right to
ask you questions as part of his ongoing investigation. Every police
report will state you have bloodshot and watery eyes, the smell of
alcohol on your breath, and slurred speech - which the officer will
observe before you even get out of the car. More likely than not, the
officer will also have observed bad driving. Frankly, he has already
decided to arrest you, but he is still entitled to ask you questions and
perform field sobriety tests (FSTs) at the scene.
Here is a tip: keep
strong-flavored foil wrapped gum (that pops out) within easy access; it
may or may not mask your breath, and it can't hurt to try to take away
one of the symptoms of drinking.
BETTER TIP: Go online and buy a
portable breath tester (ALCOHAWK) and keep it in your car. They cost
between $40.00 - $100.00 depending on the model, but could save you
THOUSANDS of dollars and even time in prison. I have told this to
hundreds of people: drinking and driving is the only way normally good
people wind up in prison.
Think about it, if you drink, drive and kill
someone, you will go to state prison, and maybe for the rest of your
life. It happens all the time and, sadly, California state prisons are
filled with drunk drivers. It is better to BUY A PORTABLE BREATH TESTER
and test yourself before driving; if you are over the limit DON'T
DRIVE.
Getting back to the more common scenario, just getting pulled
over after drinking, the key question from the officer you will have to
answer is "have you been drinking?" It is likely a no-win situation. If
you admit to drinking, whether it is "Officer, I had one, two or three
drinks," the officer will assume you have had more. If you have had a
few and admit to "no drinking," but smell like a liquor store, the
officer will assume you are a liar. But if you truly think you are under
the limit, and are confident that there is no discernible odor of
alcohol on your breath, my advice is not to admit to drinking as that
answer is the lesser of two evils. Here is a CHP drink chart guide that
will allow you to better judge whether or not you are over or under the
limit:
These are rough estimates.
AND REMEMBER THE
FOLLOWING: martinis and mixed drinks, if free-poured, typically contain
much more than 1.25 oz. of alcohol, so one martini with 3 oz. can put
you over the limit; this chart assumes 1.25 oz of 80-proof liquor per
drink. The chart also assumes 12 oz. 3.5% alcohol beers (think Budweiser
or Coors), but ice beer (5.5%), malt liquor (7.0%), and certain
specialty beers (9.0%) are stronger, so it will take fewer beers to put
you over the limit; 16 and 20 oz. "pints" will also! And a typical wine
glass pour is 6 oz. not 4 oz. as assumed in the chart. Be
careful!!!!!!!!
In any event, whether or not you admit drinking, the
officer will certainly follow up with FSTs. Put differently, if he asks
you out of the car to do FSTs, you are likely going to be
arrested.
There is no law that requires you to perform FSTs. However,
if you refuse, you will surely go to jail. It takes a lot of nerve to
refuse FSTs. If you are not that type of person, do the best you can. No
matter how good you think you did, the police report will indicate that
you could not follow directions and were unsteady.
WARNING: There
is a portable breath test administered by the officer in the field
called the PAS (Preliminary Alcohol Screening) test - you simply blow
into a portable device at the scene. If you have been drinking, DO NOT
AGREE TO TAKE THIS TEST. You have that choice in California. Just
explain that you are happy to take a breath test at the station. This
will likely piss off the officer, but he is not your friend anyway. But
taking this test may preclude your attorney from asserting certain
defenses for you at both the DMV hearing and at trial.
At the station,
they will offer the choice of a breath or blood test. My advice is to
take the breath test because it is less accurate than the blood test.
However, some attorneys prefer that you submit to a blood test because
it prevents the officer from knowing your blood alcohol level prior to
writing the police report.
If you REFUSE to take either test, DMV will
suspend your license for one year, pretty much a slam dunk. Refusing to
take the test may or may not help you beat your case if you go to court.
"May not" is the more likely scenario, so take the breath or blood
test. However, if you are facing a second or third DUI, you may
want to politely refuse any test.
Once you have been arrested and
booked, you will be released. Two separate proceedings will be filed
against you: an administrative proceeding (by DMV) and a legal
proceeding (the court case). You should seek legal counsel right away,
but if not, you must deal with the DMV aspect of your case immediately,
because you have only 10 days to call the DMV Driver Safety Office to
set up a hearing (there are 3 in Los Angeles County -- in Commerce, El
Segundo and Van Nuys), or that right is lost and your license will be
suspended. While it is not easy to win at a DMV hearing, good lawyers do
win all the time.
For a first time DUI, DMV will suspend your license
for 4 months, so it is better to win than take the bus, drive illegally
or rely on friends. Get an experienced criminal defense attorney for
your DMV hearing.
Next is the actual court case. Two things will
happen: you will get an offer to a reduced charge, or you will not get
an offer to a reduced charge. If it is the latter, you have to decide
whether to go to trial or plea guilty or no contest to the charge. That
decision is dependent on too many variables to fully discuss here, but
here are a few for you to consider: (1) whether there was an illegal
stop - a driver cannot be stopped unless the officer has a reasonable
and articulate basis to believe that a traffic law has been violated;
(2) the FSTs can be attacked, whether because you have heath problems,
there was bad weather, or bad administration of the tests themselves;
(3) the breath test can be challenged on several bases - bad test, bad
machine, bad administration of the test; and a good DUI scientific
expert can refute many of the claims made by law enforcement regarding
your BAC; (5) the police officer may be a bad witness; (6) two police
officers may contradict each other; or (7) you have witnesses who can
credibly testify on your behalf. This list is not exhaustive.
Again,
talk to your attorney and he or she will lay out all of you options. If
you do not have a criminal defense attorney, I am available for a free
consultation.
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