Driving Under the Influence (DUI)
The best way to avoid a DUI is to not drink and drive even if you've had a small amount of alcohol and you are not impaired. If you smell like alcohol your chances of being arrested when you are pulled over are very high. Being arrested however for A DUI does not automatically result in a conviction or loss of your driver's license in California. Here are some things that you should know.
What is the police looking for in your driving?
Lane straddling, wide turning radius, weaving, swerving, drifting, almost striking object or vehicle, driving on other than designated highway, speeding or below the limit, stopping without cause in traffic lane, following too closely, braking erratically, signaling inconsistent with driving actions, slow response to traffic signals, accelerating or decelerating rapidly, headlights not being used.
What is the police looking for when they pull you over?
- Odor of alcohol on breath
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer's questions
- Combative, argumentative, jovial or other "inappropriate" attitude
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other "inappropriate" attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
The Police Encounter
You are not required to answer potentially incriminating questions. Politely refuse to answer any questions regarding the investigation without an attorney present. Let the officer know that you are aware Field Sobriety Tests (FSTs) are completely voluntary. Do not agree to perform any of theses tests. If you perform them, you may be arrested anyway. This is not an objective test and the officer will use the results against you in court. Politely refuse to do the field sobriety exercises. Although officers use a wide range of FSTs, there are only three federally-approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests.
These consist of a battery of three tests:
- Heel-to-Toe (also referred to as "walk-and-turn")
- One-Leg Stand
- Horizontal Gaze Nystagmus - The HGN test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical term for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go. This test is not accepted by the medical community however, it continues to be widely used by law enforcement.
Pre-Arrest - Preliminary Alcohol Screening - If you are older than 21, refuse to take a pre-arrest preliminary alcohol screening test. This is a portable on scene breath analyzer. This test is completely voluntary and you have the absolute right to refuse this type of breath test. Ask to go to the station for the real breath test.
Under the implied consent laws you have a legal obligation to take a chemical test this is a breath or blood test and you have a choice. If you choose breath, many jurisdictions permit you to have a second test of blood; this is because a breath sample is not saved and so cannot later be re-analyzed by your defense lawyer. A blood sample will be taken if requested after a breath test is given.
Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. I f you are confident that you are sober, a blood sample is the wise choice; Breath being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.
Do not refuse the chemical test. The consequences of refusing to submit to a blood or breath test are severe: They include license suspension, jail time, and the fact of refusal may be introduced into evidence as "consciousness of guilt".
Some police officers record or video tape the arrest, testing and/or booking process. Always be on your best behavior. Be polite and respectful to the police officers this will go along way in your defense and your release from custody. After a DUI arrest, the DMV must be contacted within 10 days to stop the suspension of your license from going into effect. You must request a hearing. It is imperative that once arrested for a DUI, you hire an experienced DUI lawyer. CALL US: 1-
CALIFORNIA CRIMINAL AND DEPARTMENT OF MOTOR VEHICLE PENALTIES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS (VEHICLE CODE SECTION 23152)FIRST OFFENSE within 10 Years
96 hours to 6 months in jail, $390 to $1000 fine, and a 6 month license suspension. Attendance at a 3 month, 6 month or 9 month alcohol/drug program, a fine of $390 to $1000, plus either: (A) 48 hours to 6 months in jail; or (B) for arrests prior to September 20, 2005, a 90-day license restriction. Under option (A), the Court may also suspend your license for 6 months. Under either option, your license shall be suspended for 6 months if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. As a result of the court conviction, the DMV will suspend your license for 6 months, but a restricted license may be available. Probation of up to 5 Years.
SEPARATE DMV PENALTIES: .08 or greater 4 month suspension
Refusal: 1 year suspension
SECOND OFFENSE within 10 years
90 days to 1 year in jail, $390 to $1000 fine, and a 2 year license suspension. A fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail and a 2 year license suspension; or (B) 96 hours to 1 year in jail, an 18-month or 30-month alcohol/drug program, and for arrests prior to September 20, 2005, a license restriction allowing driving only for work and alcohol/drug program for the duration of the program. However, your license shall be suspended for 2 years if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. Installation of interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be available after the first year of suspension. Probation of up to 5 years.
SEPARATE DMV PENALTIES: .08 or greater 1 year suspension
Refusal: 2 year revocation
THIRD OFFENSE within 10 years
120 days to 1 year in jail, $390 to $1000 fine, and a 3-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years .
SEPARATE DMV PENALTIES: .08 or greater 3 year revocation
Refusal: 3 year revocation
FOURTH or Subsequent offense within 10 years
16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; $390 to $1000 fine, and a 4-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years or parole of up to 3 years.
SEPARATE DMV PENALTIES: .08 or greater 4 year revocation
Refusal: 4 year revocation
DEFENSES TO THE DUI ALLEGATION
There are many potential defenses to a DUI charge given the complexities of the alleged offense:
For a free consultation with LA Attorney Avi Zvulun, call 818.720.5288 or 888.333.2636 Toll Free or contact us online.