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Common DUI Questions
Q: Do I have to be “drunk” to be charged with a DUI?
A: Being “drunk” is subjective. Individuals have different tolerance levels to alcohol depending on their height/weight, female versus male and other factors. As well as, tolerance to alcohol at very high levels due to alcoholism. Many people don’t even think they’re “drunk” while driving.
The actual legal standard in DUI cases is whether you were operating a motor vehicle while under the influence. Rendering you impaired to safely operate a motor vehicle.
In California, if your blood, breath or urine test reveals a blood alcohol content (BAC) of .08 or higher, you are presumed to be under the influence. You can then be charged with two offenses:
1) Vehicle Code section 23152(b), Driving with a Blood Alcohol Level of .08 or Higher;
2) Vehicle Code section 23152(a), which means that even if your test result is less than the .08 legal limit you can still be charged with a DUI. Also, some reasons include bad or erratic driving, failing Field Sobriety Tests (FST’s), the police officer’s observations of anything from alcohol on your breath, slurred speech, unsteady gait, etc. after you are pulled over.
Q: What about if I used drugs (illegal including medical marijuana) but didn’t drink alcohol, can I still be charged with a DUI?
A: Yes. Vehicle Code section 23152 expressly states that a person can be arrested for a DUI whether under the influence of alcohol, drugs or a combination of both.
Q: Can I be arrested for DUI just because I had prescription medication in my system when I was stopped?
A: Yes. Prescription medication can and do impair a person’s ability to operate a motor vehicle just as much or more so than illegal drugs (depending on dosage). If you inform the police officer that you have taken prescription medication, you will undoubtedly be told (not asked (see below) to submit to a blood test. Also, if you submit to a official breathalyzer (see below) and your BAC test result is under the .08 legal limit, police officers routinely then suspect that you may be on illegal drugs or medication and ask you to submit to a blood test as well.
Q: Do I have to perform field sobriety tests (FST’s) if the police officer asks me to?
A: No. You are under no legal obligation to perform any “field sobriety tests.” Most of these tests you may be asked to perform have little to no evidentiary value and are highly subjective. Consequently, most police reports are written in such a way to support the police officer’s suspicion you may be under the influence of alcohol and exaggerate how “poorly” the person supposedly performed FST’s to provide a basis why you are then arrested for a DUI.
Additionally, FST’s are commonly performed on the side of the roadway which can be an uneven surface (meaning sloped or at a slant) which can impair your performance. Women, in particular, may have issues such as having to perform balance/walk a straight line tests with or without their high heels on.
Even the count to 30/estimate 30 seconds or repeat the alphabet tests can be skewed due to your agitation/nervousness over having to perform such tests particularly with cars passing by.
In stead of telling the officer, “I know my rights, I don’t have to do FST’s (which will lead the officer to conclude that you have an “attitude” and everything he sees/hears from that point on will be negative in the report he or she writes about you being under the influence of alcohol), the best thing you can do is politely inform the officer of any medical conditions you have which may impair your ability to perform the tests (but NOT what medications you were prescribed in treatment for those medical problems).
In any case, if you refuse to perform FST’s, such refusal cannot be used as evidence against you in court.
Q: Do I have to submit to a field breathalyzer at the scene of the stop?
A: No. You are under no obligation to submit to a field breathalyzer (commonly referred to as a PAS test) when asked to do so by a police officer at the scene where your vehicle was stopped. Consequently, that device is commonly used by police officers to see if you have alcohol on your breath, which is NOT the same as alcohol in your blood stream, and is another tool in their arsenal to support their suspicion that you are DUI but which you are not required to take.
However, you are required to take a blood or breath test (authorized and properly calibrated device recognized by the State of California) at the police station or if transported to a hospital after you are arrested for suspicion of DUI.
Q: Will my license be suspended on a first time DUI?
A: Yes, if you fail to schedule a hearing with the Department of Motor Vehicles (DMV) within 10 days of the date of your arrest if your BAC is .08 or higher. Either you (or your attorney) must schedule a hearing in order to contest a suspension of your driver’s license. Otherwise, whatever determination is made by the DMV official will result in your license being suspended. At that juncture, you’ll have no recourse but to file a costly Appeal. No one should try to handle a DMV hearing without an attorney.
DMV Administrative Per Se Hearings (APS) are similar to a “Kangaroo Court”. You will automatically be presumed “guilty”. The “hearing officer” will admit all documents into evidence. However, there are rules of Evidence that preclude such documents from being considered. Also, other legal defenses require that an experienced attorney who knows how to raise the defense. Lastly, to what evidence is required in support of the same.
Q: What about if I used drugs (illegal including medical marijuana) but didn’t drink alcohol? Can I still be charged with a DUI?
A: Yes. Vehicle Code section 23152 states a person can be arrested for a DUI whether under the influence of alcohol, drugs or a combination of both.
Q: I was not given a choice of BAC tests and instead I was only offered a blood test. Is this legal?
A: Under a California Supreme Court decision in the early 1960’s, a police officer or blood technician can not only require you to submit to a blood test, they could even force you to do so. Unless of course such force “exceeds the bounds of reasonable conscience”. As well as, there were many Appellate Court decisions afterward that upheld the use of excessive force. That was the case until the U.S. Supreme Court decision in 2013 that forcible withdrawal of blood against a person’s will is unconstitutional.
Nowadays, a “duty judge” may be called in the middle of the night to grant the police officer/blood tech to draw your blood. This tactic makes the process appear more “legal”.
The best thing to do is not resist. Failure to submit to a blood test can lead to a one (1) year suspension of your license.
Q: My license is suspended but I need to drive to work. Can I get a restricted license?
A: Yes. If this is your first DUI, you will be precluded from driving for 30 days. However, once the initial 30-day suspension is over, the DMV will issue you a restricted license. However, you must be enrolled in a Drinking/Driving program (AB541). This will allow you to drive during term of the license restriction.
If this is your second DUI, you will not be permitted to operate a motor vehicle for 1 full year. If you are enrolled in an 18-month second offender Drinking/Driving program, the DMV will issue you a restricted license. However, that is only after you’ve completed one full year of the 18-month program.
Q: I’ll lose my job if I have to keep coming to court on my DUI case. Is there anything you can do to help?
A: Absolutely. If you retain The Law Office of John Karas, we will make all appearances on your behalf, without you’re presence.
We will negotiate a much better plea deal than what a prosecutor offers “pro pers” (people who represent themselves). Certainly better than what the Public Defender’s Office can get.
If you accept a plea deal, we can appear in court on your behalf. So you don’t have to take time off from your schedule.
Q: I don’t think the stop was legal. The police didn’t read me my rights? What can you do to help?
A: First, whether the stop was “legal” is something an experienced attorney can determine. He should review the police report(s) and other supporting documents that will be used. Many stops by police officers are “pre-textual”, meaning they had a “hunch” you’re under the influence. Primarily because you were driving late at night, or coming out of a bar.
We can file Motions to Suppress evidence on behalf of clients (many DUI attorneys don’t). If successful, all of the evidence will result in the DUI charges being dismissed.
When the police fail to read you your rights (referred to as a “Miranda”) it’s a little trickier. Consequently, the officer might say he stopped you for a traffic infraction to conduct a “routine traffic stop”.
However, if you are detained (not free to leave after a citation could have been issued) and asked further questions about whether you’ve been drinking that night and, if so, how much, asked to perform FST’s, perform a PAS test (see above), etc., then the detention can be considered “custodial” in which case your statements without a Miranda Warning be given can potentially be suppressed.