My answer will be based on several things: California law (based on my experience as a cop, a prosecutor, a defense attorney and an instructor at a police academy), common sense and tidbits for thought.
First – California law.
There are two different charges for DUI – 23152(a) and 23152(b) of the Vehicle Code. The first – (a) is for driving under the influence. That is the charge that makes it illegal to drive under the influence of alcohol, drugs or a combination of the two. That has nothing to do with any particular blood alcohol level. You could be a complete lightweight, have a blood alcohol of 0.04% (half the legal limit), but if you were all over the road you could be arrested for charged with and convicted of 23152(a) – driving under the influence.
The second charge – 23152(b) – makes it illegal to drive what a blood alcohol of 0.08% or higher. This one has nothing to do with any “bad” driving. For example, you could be stopped for an equipment violation only (something like a burnt out taillight) and if it is determined that you were at or above 0.08% blood alcohol level, even without any bad driving, you can be convicted of this count.
Both of those sections count exactly the same as far as punishment, priorability, and as a DUI on your record. You can be charged with both and potentially convicted of both, but they merge and only count as one conviction with one punishment. [Some attorneys boast claims that they routinely get DUI charges dismissed. What actually happens is that in a plea deal, the prosecutor will agree to drop one of the charges and accept a plea to the other. It’s the same net result – a DUI conviction, but the lawyer calls it a “dismissed DUI”…. now you know.]
The other law that is important to know is the implied consent law. Under California law, when you get a driver’s license issued to you, you have given your implied consent to submit to a chemical test if you are lawfully arrested for driving under the influence.
So now, you get to the question – what should you do if pulled over for DUI?
I won’t belabor the issues about pulling over safely, not running from the police, etc. I will instead focus on the nuts and bolts.
On the side of the road during a traffic stop, you are considered “detained”. You are not free to go, but you are not “in custody”, so the first thing to keep in mind are your Miranda rights. Because you are not in custody, the officer does not have to read you your rights before asking very incriminating questions. Questions like “have you been drinking?”, “how much?”, “do you feel the effects of the alcohol?” etc. are all very incriminating, so answering them can absolutely hurt you. Even though they have not advised you of your rights, you can still exercise your Fifth Amendment privilege against self-incrimination. You can decline to answer questions. 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.
In addition to asking you questions about drinking, I’m sure the officer will want to do some field sobriety tests. Those too are voluntary. Will they warn you of that? Of course not.
The field sobriety tests are extremely subjective in interpreting “performance” during them. The officers are trained to look for subtle clues as to whether or not your performance on these tests could indicate that you are under the influence of alcohol. There is no “pass” or “fail” to a field sobriety test. Even an Olympic gymnast probably couldn’t perform the field sobriety tests to an officer’s satisfaction. They are designed to test motor skills, divided attention, and information retention. If you “fail”, the officer will testify that you were unable to satisfactorily perform the field sobriety tests. If you’ve ever seen them 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. On the side of the road, with traffic whizzing by, lights flashing and you incredibly nervous, they rattle off a series of instructions that they expect you to follow to the letter. If you don’t hear them, they will either assume that you did the test incorrectly and label you as intoxicated. If you ask for clarification, they will assume that you could not comprehend and therefore must be intoxicated. You truly are in a no win situation. Even if you hear them correctly and do them to the best of your abilities, any slight misstep, bobble, or “error” (according to the officer’s interpretation) and you are labeled as intoxicated.
Instead, if asked to perform field sobriety tests, my answer would be to politely decline, along with a statement that I believe they are too subjective and not required by California law. (I would make the oral statement at the time, since many officers wear recording devices and it wouldn’t be claimed later that I was only trying to make up an excuse after the fact as to why I didn’t do them).
Regarding the chemical test itself: There are two different stages of chemical testing. 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 essentially another field sobriety test. Whether or not the result will be admissible in court, why help them build a case against you? 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.
If they do develop probable cause to arrest you, then you are required by law to submit to a chemical test. You have your choice of breath or blood. 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. You cannot retest a breath sample. If you choose blood, you and your attorney have a right to have the samples retested by an independent laboratory to determine the accuracy of the government’s test results.
If you refuse the chemical test after being lawfully arrested for DUI, license can and will be suspended by the DMV, they can still force blood from you and use the results against you in court while increasing the punishment for refusing the chemical test. Some people think that refusing a chemical test will help them because there’s no numerical result, but in my experience, your refusal won’t help you. They will force blood and make it worse.
If you are arrested and chemical test reveals that you are 0.08% or more, or the officer believes that your blood test will come back 0.08% or above, they will take away your driver’s license and issue a temporary license to you at the time of your arrest. That license allows you to drive for 30 days following your arrest for DUI. That pink 8.5 x 11 piece of paper also warned you that after 30 days, your license will automatically be suspended for 4 months by the DMV. You have 10 days from the date of your arrest to request a hearing with the DMV to challenge that automatic suspension. If you miss that 10 day window to request the hearing, the DMV is heartless. Your license will be suspended. Instead, if you request the hearing within the 10 days, they will extend your temporary license pending the outcome of the hearing. If you are arrested for DUI, what ever you do – don’t miss that 10 day window.
And of course, contact a local criminal defense attorney that routinely practices in the court where your case will be heard to discuss the issues in greater detail. Hopefully, you’re doing that within the 10 days so your lawyer can arrange for the DMV hearing and prepare to represent you in court.
To discuss your situation further, give me a call.