Know Your Rights If You Get Pulled Over on Suspicion of DUI in California

Jun 29

A Disclaimer:  The legal information in this blog is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in California.

First, you should never drink and drive, not only for the criminal and civil sanctions you will face if you are caught, but because of the hazard it poses to the safety of yourself and others.

However, if you are pulled over on suspicion Driving Under the Influence (DUI) in California it is important to know your rights.  One ofPolice - Drunk Driver the most basic rights that many people forget is their right to remain silent.  Remember, your protection against self-incrimination is not just a California right; it’s guaranteed by the Constitution under the 5th Amendment.  It’s easy to say things that are self-incriminating when you are nervous.  If a police officer pulls you over and starts asking you questions, you can always politely decline to answer.  Remember to be courteous and non-antagonistic when you say this.  Police officers are just doing their job and have likely dealt with many difficult individuals during their shift (especially if it is late at night on the weekend!).  Although you don’t have to answer any questions, you must get out of the car and present your driver’s license, registration, and proof of insurance if the officer requests it.  Beyond this, you have the right to remain silent both before and after arrest.

The next thing you have the right to do (or not to do) is decline any field sobriety test.  This includes any verbal tests, such as saying your alphabet backward, or physical tests, such as walking a line or touching your nose.  In addition, you can refuse the Horizontal Gaze Nystagmus (HGN) test.  This is the test that the officer administers when he pulls out a pen light, shines it in your eyes, and asks you to “follow the light.”  It is designed to detect involuntary jerking of the eyes (Nystagmus) which may be a sign of alcohol in a person’s blood.  What the police officer is doing during field sobriety tests is gathering information which can be used against you later if you are charged with DUI.  Many of these tests are extremely subjective, and any subjectively negative result will likely be used as evidence in court.  However, it is important to weigh your options in refusing field sobriety tests.  Even though your choice to remain silent may not be used as evidence against you in court, your refusal to submit to field sobriety tests can be (of course, a refusal will be better than failed field sobriety tests!).

In addition to the field sobriety tests mentioned, you are also not required to take the Preliminary Alcohol Screen (PAS) Breath Test unless you are under 21 or are on probation for a DUI conviction (if either of these cases apply, you must take this test when asked by a police officer).  Many people think that the PAS field breath test is required under California’s “implied consent” law, but it is actually voluntary.  Although implied consent does require you to submit to a “chemical test” if you are suspected of Driving Under the Influence of alcohol or drugs, the PAS Breath Test is not one of these tests.  It’s only AFTER you are arrested that you will be offered a breath test as one of your options to satisfy the implied consent chemical test requirement.

Which really brings me to my next point:  If you do exercise your right to remain silent and/or refuse field sobriety tests, there’s a pretty decent chance that you will be arrested, so gear up for it.  Once arrested, you are REQUIRED to take a chemical test to determine your alcohol level if the officer asks for it.  If you refuse this test, you will automatically lose your license for one year and will probably forced to take a chemical test anyway.

Don’t despair.  Even after you are arrested and the officer requests a chemical test, you still have options.  Your first option is to take a breath chemical test.  The breath test can be administered rapidly, is documented right away, and leaves little room to dispute a possible charge in the future.

Your second option is to take a blood chemical test.  This option is much better for several reasons.  The first is that it will take some time to administer.  The police officer will have to arrest you, take you to a hospital or police station, and have your blood drawn.  Once your blood is finally drawn, it will have to be tested in a lab.  Many things can go wrong in a lab such as bacteria growth, contamination, switched samples, etc.  All of these factors can make any result unreliable.  If you do end up going to court for a DUI charge, your defense attorney can ask for a re-test of your blood by an independent laboratory and the results may be different than the original test.   However, if you decide to do a breath test, there is nothing to re-test later on if you are charged with a DUI, and the results which were gathered at the time of arrest are final.

Don't Drink and Drive The blood test also forces the arresting police officer to compile a much more objective account of your arrest than he might otherwise.  Since is usually several weeks until the results of your blood test are available, and the officer must submit a report of the incident in the mean time, he is more likely to report only the most conservative account of what he observed before and after your arrest.  On the other hand, if you take a breath test, the results will be available right away.  If it shows that your blood alcohol is above the legal limit, the officer is much more likely to take note and emphasize elements in his report that will lead to a DUI conviction (you seemed to be “swerving” when pulled over, your speech was “slurred,” you “smelled like alcohol”).  Although the officer’s statements might be the result of bias, they are damning evidence if brought to trial for a DUI.   Because of this, if you are arrested and given the choice between a blood or breath test, it is both your right and to your benefit to choose a blood test.

The only exception to your right to choose between a blood and breath test is if these tests are not available for some reason (which is both rare and unlikely).  If this happens, a urine test will be required.

 Take-Home Messages

  • If an officer pulls you over, you have the right to politely decline to respond to questions (your 5th Amendment right against self-incrimination).
  • You must get out of the car and present your driver’s license, registration, and proof of insurance if the officer requests it.
  • You are not required to take any field sobriety test.  This includes:
    • The Horizontal Gaze Nystagmus (HGN) test ( the light pen test)
    •  The Preliminary Alcohol Screen (PAS) Breath Test (a breath test is only a required option AFTER you are arrested)
    • Verbal tests (say the alphabet backward etc.)
    • Physical tests (walk the line, touch your nose, etc.)
  • Only AFTER you are arrested on suspicion of Driving Under the Influence (DUI) are you required to submit to a “chemical test.”
  • You have the right to choose between a chemical blood or breath test
    • Always choose the blood test

Remember, you should never drink and drive, but you should always know your rights.

The best way to avoid any DUI charge is to have someone else drive if you have been drinking.   Always designate a driver or take a taxi home if drinks are involved.

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Got a traffic ticket in California?  Eligible for traffic school?  Check out The On-Line Traffic School, Inc. at  http://www.onlinetraffic.com/Driving CarIts courses are quick and easy and allow you to take everything online without ever setting foot in a classroom!

For a more humorous spin on traffic school in California, you can also go to Defensive Driving for Dummieshttp://www.defensivedrivingfordummies.com/state/california/ .

If you end up getting stuck with a DUI charge in Nevada or Las Vegas and are eligible for a DUI course, check out the following online programs:

 

City of Las Vegas First Offender DUI Program

Both of these courses have the convenience of being 100% online and let you avoid the hassle and embarrassment of taking a classroom DUI course in-person!

2 comments

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