If you are stopped by police on suspicion of DUI, your behavior and demeanor can often determine whether or not you will spend a night in jail. Even if you are arrested, knowing how to interact with police can make a big difference for the outcome of your case in court and with the DMV.
Do Not Talk Yourself Into Trouble
The most common mistake I see clients make is to admit they've been drinking or using drugs. It is a crime to lie to police, but that doesn't mean that you're legally obligated to talk yourself into trouble. You can (and should) politely refuse to answer any questions whenever you're being grilled by police. Virtually nothing you can say will lead to less trouble than you're already in. If you start talking and your speech sounds slurred or if your breath smells like alcohol, those observations will be noted in the arrest report. If you admit that you've taken some prescription drugs or consumed marijuana (even medical marijuana), you will almost certainly be taken to the police station for a blood test.
Do Not Voluntarily Submit to Field Sobriety Tests
Field Sobriety Tests (FSTs, or the "roadside Olympics") are a series of standardized tasks that police use to evaluate drivers who are suspected of DUI. Common FSTs include the "Walk and Turn" test (where subjects are instructed to walk heel-to-toe for 9 steps along an imaginary line, pivot and walk back), the "Rhomberg" test (where subjects close their eyes and tilt their head back without swaying from side to side), and the "Finger to Nose" test (what it sounds like).
Unless you are currently on probation for DUI, you are not legally obligated to participate in any of these tests. No matter how well you perform on FSTs, the arrest report will always say that you "appeared disoriented", you "had difficultly following instructions", you were "unsteady on your feet", etc. Those tests not intended to be "passed", they're intended to give the arresting officer plenty of reasons to form a subjective opinion that you were too impaired to drive safely. Of course, there are plenty of reasons that a perfectly sober person might perform poorly on those tests. They're not easy.
Do Not Submit to a Breathalyzer Before You Are Arrested
The police officer might ask if you want to voluntarily take a roadside breath test. Again, you have no obligation to take the Preliminary Alcohol Screen (PAS) unless you are currently on probation for DUI. Don't do it. After you are arrested, you must provide a sample for chemical testing, but not before.
Breath Test or Blood Test?
If you are arrested on suspicion of driving under the influence of alcohol, then (and only then) you must submit to your choice of either a breath test or a blood test. If one test is unavailable, you must take the other. If you are suspected of driving under the influence of drugs, then you have no choice; you must take a blood test. Breath machines cannot test for drugs other than alcohol.
The police will read you an admonishment to specifically warn you about your obligation to provide a chemical sample for testing. If you are lawfully arrested on suspicion of DUI, the police read the appropriate warning, and you refuse to submit to a breath or blood test, your driver's license will automatically be suspended for one year. The police may even obtain a warrant to take your blood by force if necessary.
If you are given the choice, is it better to take a breath test or a blood test? In my opinion there are advantages and disadvantages to each. The blood test will preserve a sample that can be retested at a private facility if you disagree with the analysis that the county crime lab provides. Retesting that sample may reveal several different reasons that the county's toxicology report is unreliable. If the blood is contaminated with bacteria or improper preservatives, your attorney might have a good argument to have the sample thrown out entirely. On the other hand, a blood test will also reveal drugs other than alcohol that can form the basis for a DUI. If you take prescription medicine, sleep aids or if you have consumed marijuana within about 5 hours before driving, prosecutors may file additional charges.
The breath test does not retain a sample for retesting and it will not reveal other drugs that might be present in your blood. There are a handful of reasons that a breath test might be unreliable. Your attorney may challenge the machine's maintenance and calibration, or he might argue that the officer who administered the test failed to follow the manufacturer's instructions.
If you have recently consumed ANY drugs other than alcohol (even legal, prescription drugs) and you are given the option, I would personally opt for a breath test. If you have NOT taken any other drugs, you might choose the blood test.
To Post Bail or Not to Post Bail?
If you are arrested for a first-time DUI and nobody got injured, you will usually be released on your own recognizance within about 12 hours. You will be required to sign a "Promise to Appear" in court on a specific date for your arraignment, usually scheduled about 6-8 weeks after your arrest.
If you have previous convictions for DUI, if your case involved a collision, or if you refuse to sign the "Promise to Appear", you might not be quickly released on your own recognizance. Bail for a first DUI is usually $2,500 - 5,000, but it can be much higher if you are accused of causing an injury.
After You Are Released
You will be given several pieces of paper when you are released from custody. The pink page is your temporary driver's license. It is valid for 30 days. Once that temporary license expires, your license will automatically be suspended. You have a right, though, to conduct a hearing with the DMV to determine whether or not your license should be suspended before your criminal case is resolved. You must call and request that hearing within 10 days of your arrest. If your hearing is scheduled more than 30 days in the future, you may continue driving until you receive the results from that hearing.
A private attorney can handle everything with both the court and the DMV. If you plan to wait more than 10 days to hire an attorney, though, you should request your DMV hearing immediately. Once you eventually hire an attorney, he or she can contact the DMV to reschedule that hearing for some time when he or she is available.
If you or a loved one has been arrested for DUI in Orange County, call us for a free attorney consultation. 714 449 3335. Ask for John.
Thanks for reading.
Orange County DUI Lawyer
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