DUI In California

Reader’s Question:

I’m only 14 years old and I really don’t understand the legalities of my brother’s DUI case here in San Diego, California. He told me that he was given a pink paper or something, what is this?

Elbert

San Diego, CA

During your brother’s DUI arrest in  California, the police officer has taken away his California driver’s license and gave him a pink form that is entitled “Suspension Order and Temporary License.” This is a form that would serve as your brother’s temporary license and notice that this temporary license would automatically go into suspension in 30 days unless a hearing on the driver’s license is requested with the California Department of Motor Vehicles (DMV).

Your brother would have 10 calendar days to contact the DMV and request for a hearing. Once the hearing is requested, the driver’s license suspension would automatically be postponed pending the outcome of the DMV hearing. Your brother could be able to choose an in-person DMV hearing or a phone hearing. It would always be better that they request a live hearing. This DMV hearing would be very important on your brother’s DUI case because it would give them a preview of his DUI trial.

Reader’s Question:

I know some people who have been arrested for DUI here in Alameda, California and some of them claim that they are innocent. How would a police officer claim that a driver is under the influence?

Hope

Alameda, CA

In a DUI investigation in Alameda, California, the police officer usually claims that the DUI suspect “performed poorly” or “failed” the field sobriety tests and the handheld breath test indicates that the driver’s blood alcohol level was above the legal limit. Based on this, the officer would “form an opinion” that the driver is under the influence or the driver’s ability to drive a motor vehicle safely is impaired. After this, the officer would arrest the driver and take him/her to the police station (or hospital) for a chemical test.

The driver suspected for DUI would choose between a breath test and a blood test. The state of California has an “Implied Consent Law” that says that a person who is arrested lawfully for DUI should submit to one of these tests. A refusal could subject the DUI suspect to stiffer court penalties and possibly a one-year (or longer) driver’s license suspension. If the driver chooses a blood test, the blood sample would be forwarded to a crime lab for analysis. If he/she chooses a breath test, the officer would see the blood alcohol content reading immediately after the driver blows twice into the breath test machine. The officer sometimes tells the DUI suspect of the result, sometimes not.

Reader’s Question:

I have heard several cases about DUI here in Whittier, California that makes me more curious about it. Question is, what are the possible DUI defenses that can be brought out in a DUI trial that are related to the DUI stop?

Kyla

Whittier, CA

In a DUI case in Whittier, California for example, the prosecution should prove that the person was driving a vehicle while intoxicated in order to be found guilty. You may think that this is very obvious, but this could be an issue that can be brought out in a DUI trial where the police officer arrives later at the scene of an accident or where a vehicle is parked and the driver is asleep.

Another defense that could be used in a DUI case is that the police officer didn’t have actual reason to stop the vehicle of the person who is suspected for DUI. The police officer simply has to have a probable cause to pull the driver over. Traffic violations such as unsafe lane change, expired license plate tags or speeding could provide the excuse the officer needs to pull a driver over. In other words, the officer should have a legal reason to stop the vehicle and suspect that the driver was intoxicated. Weaving within a lane is generally used for probable cause, but this by itself would not be sufficient evidence that the driver was indeed under the influence.

Reader’s Question:

I was told that after being arrested for DUI in Anaheim, California, I would also have a civil case. What is this civil case and what does it have to do with my arrest for DUI?

BJ

Anaheim, CA

Aside from the criminal court trial in your DUI case in California, there would also be a civil case. This would be the administrative law case and it would be heard before the Department of Motor Vehicles (DMV). The administrative hearing has something to do with your driver’s license as this hearing before a DMV officer would determine whether you can keep your driving privileges or not. You should request for this hearing with the DMV within 10 days of the arrest.

You might be confused right now and you probably don’t understand that these are separate cases. It would be possible to win the administrative case with the DMV and loose the DUI criminal court case and on the other hand, it would also be possible to win the DUI criminal case and loose the administrative case with the DMV. But at times, the evidence collected for the administrative hearing could be used to get a reduction of charges in the criminal case.

Reader’s Question:

Regardless of guilt, what legal rights does a person have during a DUI arrest? I wanna know these things just in case I get arrested for DUI in Alhambra, California.

Vito

Alhambra, CA

If you will be arrested for DUI in Alhambra, California, it would be of great help if you know the legal rights that you have during a DUI arrest. These rights are actually commonly ignored by police officers. First of all, there should be sufficient facts to legally constitute a probable cause to stop your vehicle. The officer should also have enough reasons to legally detain and arrest you for DUI.

You must be advised that submission to field sobriety tests and portable field breath test is not required by law. Furthermore, if you are already in custody or you have already been arrested, you should be advised of your constitutional rights, otherwise known as the “Miranda” warning before any further questioning takes place. You should also be given a choice of breath or blood testing and if you refuse any chemical test, you should be advised of the legal consequences and this would be the “implied consent” advisement. If a breath test is conducted at the police station, since the breath sample is not saved, you should be given a chance to obtain a blood sample for later independent testing by your DUI defense attorney.

Reader’s Question:

Is it true that having even just a glass of wine or a bottle of beer and then driving afterward can already have you arrested for DUI in California?

Mill

Concord, CA

It depends in if you are a minor and under what state you are in. In your case there in Concord, California the answer is yes, it is possible for you to be convicted of DUI even if you have consumed (in your opinion) a small amount of alcohol. It all depends on the result of the Blood Alcohol Content (BAC) test and the level of suspicion of the police officer who have pulled you over. California has one of the strictest laws in the nation governing underage drinking, so anyone caught under 21 and has had a BAC result of 0.01% or greater will face a DUI charge. If you resulted with a 0.05% or greater then you can be arrested and be subjected to two charges, one for underage and a regular DUI charges as well.

To put things in perspective, for most people drinking a 12-ounce beer or one 4-ounce glass of wine or one 1.25-ounce of liquor will already tip your BAC result to over 0.01% to near 0.05%. If this happens to you, you are looking at a one year driver’s license suspension and any subsequent violations and convictions will lead to even more sever punishments, including fines up to the thousands and even jail time. Similarly, individuals who refuse to be tested will mean an automatic suspension of his or her license as well. In some cases, however, if you are 18 or over and have had no prior convictions, you may be able to just attend a 12-hour class regarding safety and alcohol or drug abuse.

Reader’s Question:

I did a little research about alcohol because my daughter has been arrested for DUI here in Buena Park, California. One of the reasons my daughter was asked to do the field sobriety tests is because the officer said that he smelled strong odor of alcohol on my daughter’s breath. I found out that alcohol really does not have an odor, so could she use this as a defense on her DUI case?

Piper

Buena Park, CA

Yes, your daughter can definitely use that as a defense on her DUI case in Buena Park, California. I bet you can never see a DUI case where the police officer doesn’t report an odor of alcohol on the DUI suspect’s breath. The officer actually expects to smell it and it is a psychological fact that we see, hear and smell what we expect to see, hear and smell. As a matter of fact, most DUI police reports are formatted for the usual symptoms: there would be a box for “odor of alcohol”, which the officer checks off. There are three boxes labelled as “strong”, “moderate” and “weak.” The “strong” box is usually checked because presumably, the stronger the odor of alcohol, the more intoxicated the person arrested; and the problem with that is alcohol has no odor. Even a non-alcoholic drink can smell like the “odor of alcohol,” when in fact, what the officer smells is not ethyl alcohol but the flavoring in the beverage.

And, of course, there could be a number of causes of an “odor of alcohol” on a person’s breath such as mouth wash, throat spray and cough syrup. Indigestion, illness or simple bad breath has been the cause of more than one officer’s trigger-quick conclusion that the suspect has an “odor of alcohol on his breath.” The main point is that the odor of alcohol has very little relevance in a DUI case. It could or could not indicate that the person has consumed alcohol. It has no evidentiary value as to how much the person has consumed, what he had to drink and when.

Reader’s Question:

My brother was arrested for DUI sometime last week here in California. We believe that he was arrested at an illegal roadblock. Can the evidence be excluded because of an illegal search? If so, how can the evidence be excluded from the case?

Macey

Anaheim, CA

Motion to suppress could be an extremely valuable tool in your brother’s DUI case. Some potentially harmful evidence could be excluded when a motion to suppress is successful, therefore weakening the prosecutor’s case. Suppressible evidence is evidence secured by illegal means and in bad faith and it cannot be introduced in a criminal trial.

If your brother was arrested for DUI suspicion in Anaheim, California but at an illegal roadblock, the evidence against your brother, including field sobriety tests and chemical tests, may be excluded, even if the evidence shows that he was indeed intoxicated above the legal limit. The evidence could be excluded by filing a motion to suppress. This is a formal and written request to the judge for the evidence be excluded from consideration by the judge or jury at trial. Your brother’s DUI lawyer can certainly look into this and file a complaint that the police procedures in the DUI arrest violated your brother’s Fourth Amendment right to be free from unreasonable searches and seizures.

Reader’s Question:

What do you think is the first thing that my sister should do after being arrested for DUI here in California? We are all laying out things we would have to do to help her out.

Quentin

Anaheim, CA

After having arrested for driving under the influence can be a life altering experience. A lot of people are not sure of what to expect when they find themselves faced with DUI charged. DUI offenders are most often unprepared that’s why they easily make mistakes that can cause them money, time and even their freedom. The fact that we have to face is that most people are actually not familiar with California DUI law and do not have the legal experience to avoid critical mistakes.

Since your sister has been arrested or charged with DUI in Anaheim, California, the first thing that she should do now is to contact an experienced DUI attorney. The DUI attorney would provide her with valuable information and advice to protect her long-term interests from the very beginning of the legal process. A DUI attorney can do many things for their clients that their clients cannot do for themselves.

Reader’s Question:

It would seem fortunate that even though I have risked drunk driving so many times, I have never been caught by a police officer here in California. I try so much not to do it but it seems unavoidable and maybe I would still keep on doing it until I get caught. If I will be stopped for a DUI suspicion, what are the things that I would have to keep in mind?

Marty

East San Gabriel Valley, CA

If you get arrested for DUI in California, the worst thing you can do is aggravate the situation by incriminating yourself or doing something that can possibly make the charges against you heavier.

You have to keep in mind that you should discuss your case with the arresting officer and limit the information you give to what is necessary. This would include your name, permanent address, birthday, etc. Don’t answer any questions related to the arrest and don’t tell them if you have been drinking, how much alcohol you consumed, if you were driving the vehicle, etc. You have to exercise your right so remember that you have the right to speak to an attorney before you say anything to the police.

Stay calm and don’t resist even if you think you are innocent because everything that you say or do can be used against you. Don’t attempt to run and always keep your hands where the arresting officer can see them. Contrary to popular belief, you can actually refuse to take any chemical test (blood alcohol content or BAC test) until you have spoken to your attorney. You also have the right to set up an additional privately-administered test upon your arrest, while you are detained in the police station.