Tuesday, November 1, 2011

What to Do When Stopped for a DUI

Driving Under the Influence (also referred to as "Drunk Driving", "DUI/DWI") is one of the most commonly charged crimes in California.  It's the kind of thing that we've all done, but we haven't all been caught.  A conviction can be expensive and can carry some nasty penalties that will really make your life difficult for a while.  The following post describes what you should do, (and what you should NOT do) if you are stopped on suspicion of DUI.

The best way to guarantee that you won't be arrested for DUI is by designating a driver.  You've heard this before and I don't mean to sound like your mom, but seriously: don't plan on driving after you've been drinking.  That's sometimes easier said than done, though.  It's hard to tell when a few beers is actually a few too many.  Keep in mind also that you can be arrested on suspicion of DUI even when your blood alcohol concentration (BAC) is below the legal limit of 0.08.  There are a couple reasons for this:

First, DUI actually consists of 2 separate crimes in California, VC 23152(a) and VC 23152(b).  The (a) count applies when a person is impaired by alcohol, drugs, or the combined effects of alcohol and drugs.  To be convicted of the (a) count, it must be proven that the driver was not able to operate a vehicle with the skill and care of an ordinary sober person.  You can be convicted of the (a) count even when your BAC is below 0.08 if the officer has enough evidence to convince a jury that the effects of alcohol, drugs or both rendered you unsafe behind the wheel.  Some people are probably unsafe behind the wheel when they have a BAC of only 0.07.  Observed bad driving, coupled with poor performance on field sobriety tests (FSTs) and an officer's subjective observations (i.e. "He smelled like alcohol and seemed to have difficulty following directions") can spell bad news, even for someone below the legal limit. 

The (b) count is the crime of operating a motor vehicle with a BAC of >0.08.  When you have a BAC >0.08, you are presumptively impaired (and therefore presumptively guilty of the (a) count).

Second, remember that you can get a DUI even with a BAC of 0.00.  That's because, as previously mentioned, the (a) count can apply when someone is impaired by drugs.  This includes legal drugs like over-the-counter sleeping pills, prescription drugs like Xanax (even if you have a valid prescription -- that's not the issue), medical marijuana, chemotherapy drugs and illegal street drugs.  I've seen cancer patients who've been arrested for driving under the influence of their cancer drugs. 

Once you've been pulled over, remember that it's the police officer's job to gather evidence to be used against you in court.  He or she is not your friend and they're not interested in evidence that helps your defense.  They are working for the prosecution and they're doing everything they can to help the DA build a solid case against you.   A lot of the most incriminating evidence will come right out of your own mouth ("Yes, officer.  I was drinking at the bar and I just stopped here by the side of the road to rest my eyes for a minute").  That being said, you have no legal obligation to speak to the officer except to identify yourself.  You should politely refuse to answer any other questions and decline the field sobriety tests.  Do not voluntarily submit to a breathalyzer at the scene.  If you've been involved in a collision, simply tell the officer that you don't want to talk about the accident without an attorney present.  Do not lie to the officer, but don't do his or her job for them by providing them with evidence against yourself. 

Now you can probably expect to enjoy an all-expenses-paid night in jail, courtesy of your local police department.  This does not mean that you've been charged with a crime (remember: the police don't decide who's charged with what; that's the DA's job.  The police just gather evidence).  Once you get to jail, you will probably be given your choice of a breath test or a blood test.  You must submit to one or the other after you've been arrested (distinguish: at the scene of the arrest, you have no obligation to take the breathalyzer, and you should not submit to the breath test at the scene.  AFTER you are transported to the station, you must submit to a chemical test, however). 

There is a real split of opinion among attorneys regarding whether you should choose the breath test or the blood test.  There are advantages and disadvantages to each.  A blood test is more accurate and reliable.  A sample will be preserved for your attorney to retest in the future.  You may have a defense based on mishandled blood, improper use of anticoagulants / preservatives, etc.  A blood test will also find any drugs, legal or illegal, in your system that could tend to show that you were under the influence (i.e. the marijuana you smoked yesterday). 

The breath test, on the other hand, does not preserve a sample for retesting.  It is considered less reliable than the blood test.  You may have a defense based on improper maintenance of the breath machine and it will not detect any drugs other than alcohol.  For these reasons, I would personally opt for the breath test if I were in that position. 

Keep in mind also what police call the "attitude test".  Your demeanor can make a world of difference in the way you're treated.  I know that you're probably upset, angry, scared, confused, etc., but do your best to be polite and courteous (and that's harder than it sounds).  Having a bad attitude doesn't necessarily prove that you're drunk, but the officer will definitely note in the report if you're mouthy, crying, screaming, threatening to sue everybody, etc.  Having a bad attitude will also earn you a couple more hours of "sobering up" time in a holding cell. 

Once you're released from custody, you will have 10 days to contact the DMV and let them know that you plan to challenge the license suspension.  If you fail to do so, your driver's license will automatically be suspended for 120 days.  An experienced DUI attorney can help you fight the DMV and increase the chances of saving your license. 

If you or someone you know is arrested for DUI, call the attorneys at Rizio & Nelson for a free consultation.