Free DUI Lawyer In California

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:

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:

Field sobriety tests on DUI suspects are so popular that they sometimes show it on TV as bloopers. But seriously, why are these tests called divided attention tests and is there an incidence here in Antioch, California that a person who was really drunk has passed more than one of the field sobriety tests?

Cain

Antioch, CA

Field sobriety tests (FST’s) are categorized as standardized and non-standardized. Standardized FST’s are those commonly used by police officers in a DUI investigation and are approved by the National Highway Traffic and Safety Administration. As we may all understand, standardized FST’s are psychophysical tests that require assessment of a DUI suspect’s appearance and condition, ability to follow instructions, as well as balance and coordination. These tests are often called Divided Attention Tests because they require the DUI suspect to concentrate on more than one thing at a time. He/she would have a divided attention between mental and physical tasks.

There may be an incidence already in Antioch, California that a person who was really drunk has passed more than one of the standardized FST’s but according to studies, a person who is under the influence of alcohol may perform one of the standardized FST’s but rarely more than one. If a person is under the influence of alcohol, he/she is likely to make certain predictable mistakes while attempting to do the FST’s.

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:

I have been living here in San Diego, California almost all my life. We cannot avoid sometimes that after partying the whole night, we need to drive ourselves home with a little alcohol in our system. I know some people who have already been charged with DUI, most of them don’t get away with the tough penalties. But just in case, how can I be arrested for DUI?

Alice

San Diego, CA

Living in San Diego, California could mean a busy life. But sometimes, you can get away with it by having a party with some drinks. If you really can’t avoid drinking and driving on those occasions, it would be unfortunate if you get caught and charged with DUI.

A person is charged with DUI if he/she exceeds the legal limit of .08% blood alcohol content (BAC). Usually, the BAC of the person accused of DUI is used to determine guilt. In California, an arrest for DUI can be made at any blood alcohol level. Some counties routinely prosecute people with BAC levels below .08%. More often, the decision of the patrol officer to arrest drivers depends upon the performance on the field sobriety tests (FST) and the driving pattern (speeding, weaving, an accident, etc). A police officer could arrest for simply being under the influence of alcohol or drugs with no reference to the driver’s BAC level at all. The District Attorney would then file a 23152(a) CVC charge, which is simply DUI. Again, this will likely be based on the police officer’s observations of your driving pattern and performance on FST.

Reader’s Question:

My husband was charged with DUI here in California. He insists that he never drive drunk. He is diabetic and according to his attorney, if he experiences hypoglycemia, he may look like drunk. Is it true that the breath test conducted can clear him?

Diana

Daly City, CA

Police officers in California have no inherent skill and little training in detecting levels of intoxication. They are actually psychologically predisposed in a drunk driving investigation to “see” what they expect to see, disregarding any alternative explanations.

One of those possibilities is that if a diabetic experience hypoglycemia or low blood sugar levels. Symptoms of this include poor balance, staggering, slow and slurred speech, impaired motor control, flushed face, disorientation and drowsiness which are also the typical symptoms of alcohol intoxication. If this is the case, the driver will look and act like a drunk driver to the police officer and will fail any “field sobriety tests”.

A breath test will not clear him. Breathalyzer use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the “methyl group” in its molecular structure. The machine assumes that the compound is “probably” alcohol. One of the thousands of compounds containing the methyl group which can register as alcohol is “acetone”. A by-product of hypoglycemia is a state called “ketoacidosis”, which causes the production of acetone in the breath. This means that the Breathalyzer will read significant blood alcohol levels on a diabetic’s breath where there may be little or none.