Driving Under the Influence cases are a different from other types of cases because we as licensed drivers have waived an important right at the time that we get out driver’s license.
As a retired law enforcement officer and prosecutor I’ve handled very type of DUI case and can advise you on your best course of action.
The frequently asked questions below should be helpful in answering your questions about your DUI case.
WHAT ARE MY RIGHTS IN A DUI CASE?
If you are stopped and the officers asks you to step out of your car to do some tests – Roadside Sobriety Tests – you are not required to do these tests.
Yes, certainly cooperate if ordered out of the car but politely tell the officer that if they believe that you are under the influence that you should be arrested and you want a blood test. Politely tell the officer that you choose NOT to answer any questions that they may have.
Yes, this can result in your arrest but understand that the questions and the tests that the officer wants to ask and conduct are designed to provide evidence to be used against you. All too often I read arrest reports where people have essentially convicted themselves with their answers and roadside sobriety tests.
Even if you are reading this after your arrest and realize that you made a mistake by answering questions and doing the road side sobriety testing – you need to call an attorney. There is a lot of information that an attorney can provide that will assist you through the subsequent court and DMV process.
ARE MY RIGHTS DIFFERENT IN A DRIVING UNDER THE INFLUENCE CASE?
First of all, never, ever, physically resist an officer. However, you are not required to answer self-incriminating questions. Certainly the officer has the right to ask for and be handed your driver’s license, vehicle registration and proof of current insurance on the car that you are driving.
BUT, you are not required to answer questions such as “where are you going”, “what time did you last have a drink”, “do you feel the effects of what you drank” or other questions. These questions are designed to incrimiinate you and prove your guilt. You are not required to answer them.
While it is a very difficult thing to do, it is your right to tell the officer – politely – that you chose not to answer their questions nor take any roadside sobriety tests and if you are to be arrested you ask that you be arrested and you request a blood test.
WHY A BLOOD TEST?
This is one of the tests that you agreed to take when you got your driver’s license and it is by far the most accurate of all of the blood/alcohol tests that you are required to take.
The problem with breath tests is that after the test there is no sample that I can have retested if there is a question about your blood/alcohol level.
Also, it saves confusion about testing. The officers often use a Preliminary Alcohol Screening device (PAS) which is not legally required for you to take; then later administer the required test. People get confused believing that they already gave a breath test (PAS) and refuse the legally required test. This results in an automatic driver’s license suspension of one year.
Simple solution – always ask for the blood test.
CAUTION NOTE – if you have drugs, legal or otherwise, they may show up in a blood test but not a breath test. Think about this before you demand a blood test. Yes, it is illegal to drive with even prescription drugs in your system, if it effects your ability to drive safely.
WHY DID THE OFFICER TAKE MY DRIVER’S LICENSE WHEN I WAS ARRESTED?
The officer is required to do this IF you have just been arrested from driving under the influence of alcohol. The pink paper that you received from the officer is a Temporary driver’s license that is only good for 30 calendar days from the date of your arrest.
Read the Temporary License very carefully. It will tell you that unless you demand a DMV hearing within 10 calendar days, that your driver’s license will automatically be suspended for 6 months.
IMPORTANT – Call me before your 10 days is up so that I can explain your DMV rights to you. The 11th day or after will be too late to request a DMV hearing even if you believe that your arrest was not legal. Do not wait until after your first court appearance. If you call DMV it has been my experience that they will tell you that you don’t need a hearing. Demand a hearing! When you call me I’ll explain why scheduling a hearing may be important to your case.
NOTE – If you call DMV to schedule a hearing, they will tell you that you don’t need one. Don’t accept this and let them know you want a hearing. Also, Public Defenders typically do not get involved with DMV hearings.
IF I AM CONVICTED WHAT WILL HAPPEN TO ME?
To get a more complete answer you should call my office to schedule a free telephone or office consultation. But within this small space I’ll give you a short summary of the possible consequences for conviction of a first offense.
Automatic driver’s license suspension
- A minimum of 2 days in the county jail – more depending on your blood/alcohol level
- Fines of up to $2000 and in some cases more
- Up to 3 years of formal probation
- Minimal 3 month DUI First Offender’s Classes which you have to pay for
- Insurance rate increase for years to come
- There may be additional consequences if you are on currently parole, probation on another case, or you have a prior DUI conviction within the last 10 years
I WAS ARRESTED WITHIN THE LAST 10 YEARS FOR A DUI, WILL MY CASE BE DIFFERENT?
Under current California law if you were convicted of a prior DUI in any state within the past 10 years, there are more severe consequences:
- Increased jail time
- Possible increased fines
- Possible more formal probation
- Automatic one year driver’s license suspension
- 18 months of DUI classes
Without question, if you have a prior arrest or conviction for DUI, including a Wet Reckless, call my office. The consequences can be serious if you try to do this on your own. Call my office and schedule a telephone or office appointment. Even if you decide that you can’t afford an attorney, I think that you will find that the information that you are provided, free of charge, will be helpful to you.
I HAVE A COMMERCIAL DRIVERS LICENSE IS MY CASE DIFFERENT FROM NON-COMMERCIAL DRIVERS?
Yes. Due to federal licensing laws you can anticipate an automatic one year commericial driver’s license suspension. No question that you will not be able to continue in your current employment if it requires that you have a commercial driver’s license. There are no options for restricted driver’s licenses to allow you to work.
Without delay, as soon as you can, call my office so that we can talk about your options. There are few, but you need to know them and what to anticipate from DMV and the court.
DO I NEED AN ATTORNEY AND HOW MUCH DO THEY CHARGE?
DUI cases can be confusing and at times very technical. Minimally you should ALWAYS consult with an attorney about the court and DMV process. I do not charge for a consulation on DUI’s although some attorneys may charge.
FEES – Every case is different and may be charged as a felony or a misdemeanor. Felony cases are more complex and attorneys typically do charge higher in these cases. Misdemeanor cases not involving injury to passengers, other vehicle occupants or private property damage are less complex and often attorney’s fees may be as low as $1000. However, some attorneys will charge an additional fee may be charged for a DMV hearing.
BE CAUTIOUS OF ATTORNEY SOLICITATIONS that arrive in your mail after your arrest. Many of these firms charge $2500 or more, they do not include DMV hearings and they do not personally handle your case. Many of these firms contract with local attorneys to actually handle your case for a fraction of what you paid for representation.