Driving Under The Influence: The Basics

"Have you had anything to drink tonight?"

Driving under the influence or "DUI" is one of the most common criminal charges filed in our courts today. For some, it's a momentary lapse in judgment that should not derail their entire life. For others, it could indicate a need to get some drug or alcohol treatment. There are also people who are wrongfully charged with DUI because of problematic investigations. But despite the stigma, most people who get arrested for a DUI are not "bad people."

Usually, when someone is detained for a DUI, they go ahead and ask you a bunch of questions about your evening and do roadside testing known as "field sobriety testing." The officers will make it seem like this is all routine and that they don't have ANY opinion about whether you've been drinking, but in actuality they are playing you.

 

They know you still think you're getting out of this, so they're using that hope to get you to aid them in collecting evidence against you. But you have the RIGHT to (politely) refuse to answer those questions or to do those tests, and it does not help you to do them--even if you do relatively well, the officer will just testify to what you did wrong and characterize it as poor performance anyway. 

Let's talk about some DO/DO NOT's when you're stopped for DUI:

  • You DO have to pull over whether or not you think you have broken the law.

  • You DO have to comply with any lawful orders of the police, such as asking you to step out of the vehicle.

  • You DO NOT have to answer questions that may possibly incriminate you once you've identified yourself and provided ID/license/registration documents (you can't give false/misleading information though - when in doubt, say you want a lawyer and then STOP talking!)

  • You DO NOT have to consent to a search of your vehicle or person unless you are on probation, PRCS, or parole.

  • You DO NOT have to complete requested "field sobriety testing" other than a post-arrest chemical test. (More on that in a moment.)

So what happens when you refuse to participate in the pre-arrest roadside dance?

 

Click, click. The cuffs go on you. You might be thinking, what gives, Ms. Jensen? Did you WANT me to get arrested? Well, no. But more often than not, the officer decides they have "probable cause" to arrest before even administering the field sobriety tests. So you were already going to get arrested - at least now you have stopped providing subjective "evidence" that the officer will use to claim your guilt at trial. 

By the way, it is usually only after your arrest that you will hear the so-called "Miranda advisement" or "Miranda warning." This statement, which you've probably heard a million times on TV and movies ("you have a right to remain silent...") came from a landmark case years ago that recognized that police officers used overwhelming pressure in the form of aggressive questioning tactics. To protect against coerced confessions, the courts established a rule that the police must advise a person of their rights when they intend to

begin a "custodial interrogation." Two big important components: custody, and interrogation (questioning). So the cops are not going to give you this advice if you answer all their questions before they arrest you. Which is... why they ask the incriminating stuff first. And if they do give you this advisement, listen to them when they say "anything you say can AND WILL be used against you." They ain't kidding. Shush.

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If there was one time you want to be mistaken for a mime, it might be in the back of a patrol car.

So you've just been arrested, now what?

 

Typically the officer will then inform you that you are required to take either a blood or breath test upon notifying you of your arrest. Unfortunately, if you are like many Californians whose lifestyles depend on having a driver's license, you will probably want to go ahead and take this test so that you don't get a lengthy suspension just for refusing. The first time you refuse that post-arrest test, the penalty is a year suspension (compared to a likely 6 month suspension if you are convicted of a first-time DUI). A second refusal is double that. If you refuse, the officer has to get a warrant if they want to get an involuntary sample against your will, but these days, it may not take as long as it used to for them to get the warrant.

If you opt for the breath test, the officer will sometimes administer this right there in the field depending what equipment he has. Or he may take you to a nearby jail or police station to do the test on a larger piece of equipment. Either way, the process for collecting your breath samples is largely the same. The officer should prepare a clean mouthpiece and have you provide two samples of "deep lung" air. The officer is supposed to wait a few minutes between the samples, and they have to make sure the device is working properly (and someone has to be able to say the thing is calibrated correctly to measure alcohol concentration accurately). The officer ends up with a little receipt with your BAC numbers on it. They may or may not tell you what you blew.

If you instead chose a blood test (or refused, and they got a warrant), the officer will need to bring you to someone (usually a registered nurse or a phlebotomist) who is qualified to draw blood for a forensic sample. They will draw your blood into a vacutainer and send it out for testing. Usually, the testing agency will provide the blood test kit so that they know exactly what is in the vacutainer other than the sample (preservatives). They will later run your sample through a gas chromatograph or "GC" machine at a lab. Sounds fancy and full of science, but in reality, it looks like the nightmare child of a printer and a sewing machine.

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I am probably full of human blood. I am also low on toner.

After the test

Once you've been tested, you are likely going to be taken to the jail for the night. You may get "cited out" (where you don't have to post a bond), or you might have to try to get ahold of a bail bondsman. The bail on a DUI misdemeanor usually isn't that high. If you can't make bail at all, though, there's usually a good chance the jail or the judge will release you anyway, but it can take a few days longer than you might like, so some people post a bond. You're typically going to have to fetch your car from a towing company which will also run you a little bit of cash, and you don't want to wait because many towing companies charge storage fees by the day.

AND NOW FOR SOMETHING EXTREMELY, EXTREMELY IMPORTANT:

Too many people find out too late that they have only TEN (10!) days from their arrest to put in a request for a hearing so that their license is not automatically suspended.

 

The officer confiscates your license when they arrest you. But they give you a temporary license. That license will keep you on the road for 30 days from your arrest. But after only 10 - barely enough time to wrap your head around the arrest, your license will automatically get suspended by the Department of Motor Vehicles (DMV) unless you take action to prevent it. 

Why is this?

Well, you have legal rights that are attached to the issue of whether you can be found guilty in a court of law. But driving has long been considered a "privilege" and not a "right." So DMV has a separate power to take away that driving "privilege" called the admin per se law. Basically, the officer sends them a form explaining that there were certain factors which led them to have probable cause to arrest you for a qualifying* DUI offense, and DMV uses that to administratively suspend your license. It's not a conviction, but it does do away with your license.

*If you were arrested for driving under the influence of a drug, DMV is unlikely to seek to suspend your license in this admin per se proceeding.

So you need to act right away to let DMV know you want your hearing. This will delay the suspension so that a qualified attorney can look over the police reports and other documents prepared in connection with your arrest and examine your potential defenses. 

A court conviction can also result in suspension of your license, but sometimes you can negotiate for a "wet reckless" that doesn't involve suspension, at least not by the court. The DMV and the court act independently of one another, so the state effectively gets two chances to fight you for your driving privilege. It's important that you take this situation seriously so that you don't get blindsided when you are suddenly unable to drive, and there are ways to try to keep you on the road, or get you back on the road as soon as possible.

What happens in court?

If you are convicted of a DUI, sometimes an overly zealous prosecutor will want jail time, but for a first offense without aggravating circumstances (i.e. a bad accident or an extremely high blood alcohol concentration), you are more likely to be able to work out custody alternatives, such as a grant of probation requiring you to comply with certain terms and conditions during the time you are on probation 

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(often three years). There are certain state-mandated requirements such as a DUI school and victim impact panels that might be imposed, but depending on the circumstances, it may be possible to negotiate a plea to alternative charges that avoid some of those requirements.

If this is your second or third offense, if your BAC exceeds 0.15% or higher, or if the case is a felony by virtue of being your fourth offense or involving bodily injury, or you have a prior felony DUI, then things are a little more serious. Multiple offenders can at minimum expect longer DUI classes and county jail time, and those charged with felony offenses may be at risk of serving prison time, although judges and prosecutors may be willing to consider more lenient options in situations where the person is actively seeking and engaging in substance abuse treatment.

Some jurisdictions will also consider filing more serious charges (such as child abuse/endangerment) if they are alleging that you drove under the influence with kids in tow. This can elevate what might otherwise be a standard-issue DUI to a more serious, prison eligible offense. But driving under the influence may not always automatically amount to child endangerment, so having a skilled attorney look at the facts can be critical.

What about my job?

It's also important to consider whether a DUI conviction can negatively affect your employment. Not all jobs are impacted by a DUI conviction, but some employers will consider terminating you if you are unable to drive or if you have a misdemeanor conviction. It's important to think about how the charges can affect your job before you decide how to handle this situation.

So, should I hire an attorney?

Yes - there is no one-size-fits-all advice. You could spend hours on the internet reading websites like this and still not be nearly prepared with all the information you need to competently protect yourself in a criminal case. Attorneys are somewhat notorious for their favorite expression: "it depends." For good reason: so many cases are very fact-specific. One seemingly small difference can completely change a case.

Hiring an attorney is sort of like seeing a doctor: sometimes, they can easily fix things for you, and other times, they are there to help you navigate what is likely to be a bumpy road to recovery. But in the vast majority of cases, and I mean vast, you are better off with that guide than going it alone.

If you are charged with a driving under the influence charge in Shasta County, including the areas of Redding, Anderson, Palo Cedro, Shasta Lake City, Cottonwood, Happy Valley, or if you are in Tehama County (Red Bluff), Trinity County (Weaverville), or nearby counties in the North State area of Northern California, don't delay in seeking the services of a skilled attorney to get you the help you need to protect yourself. I offer a free initial consultation to discuss your situation.