DUI

Question:
Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test? 

Answer:
In California, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

Question:
What is the officer looking for during the initial detention at the scene? 

Answer:
The traditional symptoms of intoxication taught at the police academies are:
 
* Flushed face 
* Red, watery, glassy and/or bloodshot eyes 
* Odor of alcohol on breath 
* Slurred speech 
* Fumbling with wallet trying to get license 
* Failure to comprehend the officer's questions  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
 
Question:
What should I do if I'm asked to take field sobriety tests? 

Answer:
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.
Recently, many states have begun following the federally-approved ( <http://www.nhtsa.dot.gov/> 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
 
All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively — that is, a numerical score is assigned according to specific errors, or "clues".
 
 
Question:
Should I agree to take a chemical test? What happens if I don't? 

Answer:
There are three adverse consequences to refusing to submit to a breath or blood test (or urine if neither is available or if drugs are suspected):
 
* Your driver's license will be suspended for one year rather than four months; if this is a second offense, the suspension is for two years. Unlike a suspension for having over .08% blood-alcohol, there is no possibility of obtaining a work-restricted license.  A refusal, if alleged in the complaint, carries a mandatory minimum jail sentence. 
* The fact of refusing can be introduced into evidence at trial as evidence of "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.
 
Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing. Question:
Do I have a choice of chemical tests? Which should I choose? 
Answer:
In California, you are supposed to be given a choice of blood or breath testing. Urine testing can be required if neither blood nor breath is available, or if the officer reasonably suspects the presence of drugs. If a breath test is chosen, the officer is supposed to advise you that, because a breath sample will not be saved for later reanalysis by the defense, you are entitled to a second test of blood; many officers, however, fail to provide this information.
Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate is urinalysis.

Question:
The officer never gave me a Miranda warning: Can I get my case dismissed? 

Answer:
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.
 
 
Question:
The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent? 

Answer:
Agreed, it is blatantly unfair. But the law in California provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.
WARNING: Be aware of a 10-day deadline for calling the  <http://www.dmv.ca.gov/> California DMV to request a hearing on the suspension and to get an extension of the temporary license.

Question:
What is the punishment for drunk driving? 

Answer:
This varies from jurisdiction to jurisdiction and can become quite complex depending upon the facts of the individual case. Generally speaking, a first offense with no "enhancements" (see #16) will involve a fine of about $1700, a 90-day license restriction (in addition to the DMV suspension), attendance at a DUI school for 3, 6 or 9 months and probation for three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices,  <http://www.alcoholics-anonymous.org/> AA meetings and/or impounding of the vehicle.

Question:
What is a sentence "enhancement"? 

Answer:
California law increases the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
 
* A child was in the car at the time. 
* The defendant was traveling 20 or 30 miles over the speed limit at the time. 
* The  <http://www.duicentral.com/drunk_driving/blood_alcohol_level.html> blood-alcohol concentration (BAC) was over .20%. 
* The defendant refused to submit to a chemical test. 
* There was property damage or injury. 
* The defendant was under 21 ("zero tolerance" laws commonly require a much lower blood-alcohol level and impose longer license suspensions).
 
The existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, if special circumstances exist, murder charges.

Question:
What is a "rising BAC defense"? 

Answer:
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. 
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below.

Question:
What is "mouth alcohol"? 

Answer:
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings

Question:
What defenses are there in a DUI case? 

Answer:
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

* Driving Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle. 
* Probable cause. Evidence will be suppressed if the officer did not have legal cause to(a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues. 
* Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time. 
* Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department. 
* "Under the influence". The officer's observations and opinions as to intoxication can be questioned — the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober. 
* Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness and/or the defense can hire its own forensic chemist. 
* Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results. 
* Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here. 
* Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc. 
* License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's  <http://www.dmv.ca.gov/> department of motor vehicles.