Should I refuse to submit to the field sobriety test?

You are not legally required to take a field sobriety test. I would recommend that you respectfully decline to take the field sobriety test. Remember, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety test in a polite and courteous manner.

Note that being asked to submit to chemical tests to determine your blood alcohol concentration [BAC] is different. If you have been arrested and you refuse to take a chemical test when asked, there can be serious consequences, including loss of drivers license for a year.

 

Do I have the constitutional right to speak to an attorney before I have to take a field sobriety test?

In the State of California, as in the majority of the states, your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in custody.

States vary from having the right to consult an attorney when being arrested to having the right to counsel when considering whether or not to submit to a chemical test.

If at any time during the officer's stop, you believe you need an attorney, I believe it is always good policy to ask for an attorney. Listen to what the officer says in response to your request for an attorney. This response could be very important if he misrepresents what the law is to you. This information could go to reflect upon the officer's credibility and could be used to impeach the officer at trial.

What is the punishment for drunk driving?

The punishment for drunk driving varies. However, generally speaking, a first conviction will usually result in a fine, a license restriction, requirement that you attend an alcohol course for some specific period of time and informal probation for probably 3 years. If there are any "enhancement factors" present, even on a first offense, then a short jail sentence may be required. An example of "enhancements" would be 1) excessive speed, i.e., 20 to 30 miles per hour over the speed limit, 2) a minor present in the car when the arrest took place, 3) a blood alcohol concentration [BAC] over .20%, and 4) physical injury. This is not an exhaustive list, but just a few of the "enhancements" to give you a rough idea of what they are and how they could affect a first offense.

For second or subsequent offenses, jail will almost always be ordered in addition to a substantial fine, community service, possible ignition interlock devices, up to and including the impounding of the vehicle. A new wrinkle has been introduced recently in that I have noticed some judges are ordering even first offenders to a stint of community service at the county morgue.


If the police officer asks me if I have been drinking, how should I respond?

If the officer asks you if you have been drinking, your answer will play a significant factor in the officer's decision to arrest you, and in the prosecution's case against you. I believe such questions are accusatory in nature and you should respectfully decline to respond in a polite and courteous manner. I would suggest you respond, "I would like to speak with an attorney before I answer any questions". It must be remembered that the officer does have a right to certain information which the courts consider routine questions. For example, your name, your address and your date of birth. When the officer inquires about drinking, however, ask for an attorney as described above. The officer will then probably say you do not have a right to an attorney and ask you to answer the question. At this point, I think your best course of action would be to respectfully decline to answer. An experienced drunk driving attorney will give the jury good reason for declining to answer the question.
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Should I consent to a chemical test to determine my blood alcohol concentration?

In the State of California, as in almost all states, a driver is required to submit to a chemical test of his blood, breath or urine upon request of the police officer. The consequences of refusing vary from state to state, though in the State of California the following adverse consequences can occur:

- Your drivers license will be suspended by the Department of Motor Vehicles for 1 to 3 years depending upon the circumstances and whether or not you have prior DUI convictions. This drivers license suspension may even be upheld if you are subsequently found not guilty of the drunk driving charge.

- In the trial of the drunk driving charge in a court of law, your refusal will in all probability be introduced by the prosecution as evidence of your consciousness of guilt. However, a competent drunk driving defense attorney will offer other reasons for your refusal. The decision to refuse a chemical test is one not to be made lightly.

Submitting to a chemical test that you feel will produce evidence of a high blood alcohol concentration must be weighed against the consequences for refusing to submit.


Which chemical test should I choose?

In the State of California, as in many states, the police officer will offer you a choice of breath, blood or urine tests. In some areas, urinalysis may not be an option and you must choose between tests that are available. You do not have a right to choose urinalysis and then try to argue it's their problem that they didn't have it available. You will lose that argument. The officer will in all likelihood treat you as having refused to submit to testing, and all of the adverse consequences associated with a refusal will occur. See discussion of consequences of refusal in Question and Answer #4.

If you choose a breath test, at the completion of the test ask the officer for a second test of either blood or urine so that your defense attorney can run an independent test to compare the results against the breath test.

It is important to remember, that if you are concerned that there may be any substance in your body, other than alcohol, then by all means select only breath and do not take a second test of blood or urine.

The most accurate test is a blood test. The next most accurate test is breath and the least accurate is urinalysis. If you are sure of your sobriety, then choose blood. If you are concerned about your state of sobriety, I would choose a urine test when available.


 I have been charged with drunk driving (DUI) as a result of smoking "marijuana". Is my case hopeless because of the drug use?

Not at all. I have never lost a marijuana DUI. Typically if you chose a breath test and no alcohol is detected, the officer will then insist that you submit to a urinalysis or blood test. Remain polite and courteous to the officer. Submit to the test as requested by the officer. Any attempt to resist can result in the blood being taken from you forcefully. You don't want to do this for your own safety.

You need to understand the mechanics of the human body and how it processes marijuana. Over time, your body converts the cannabis in marijuana to 'THC'. The THCs are called metabolites'. The type of THC in a blood or urine test allows an expert to determine a specific time frame in which marijuana had been ingested. A Delta-9 THC means there are active elements in the blood. A 11-nor-Delta-9 THC means there are no active elements in the blood; i.e. NOT UNDER THE INFLUENCE. Only an expert can determine the existance of the THC level. Further, even if Delta-9 THC is present you need to determine the nanograms present in the blood.


What will it cost to defend a drunk driving charge?

The cost of defending a drunk driving charge varies greatly based upon the experience of the attorney. There is no way to gauge a range of fees other than to say that a general practitioner may charge you as little as $1,000, whereas a well known drunk driving attorney may charge upwards of $10,000 or more, depending on the facts of the case.

When I say the attorney may charge more, there are various factors that need to be considered: 1) Are there any prior convictions, 2) Can those convictions be attacked or set aside on constitutional grounds? 3) Was the drunk driving charge a misdemeanor or a felony, and was anyone injured? 4) Will the case require an expert witness?

In addition, if a blood or urine test was conducted then an independent analysis of the blood or urine must be done. This is done to verify the percentage of alcohol present and to determine if the prosecution sample was properly handled and preserved and whether it became contaminated in any manner. All of these factors are taken into consideration by a competent drunk driving defense attorney when discussing your case with you.

Lastly, make sure you and your attorney have a firm understanding and agreement of what the fees and costs are going to be. Have that agreement placed in writing and signed by both yourself and the attorney.


Should I get a lawyer? Why can't I represent myself?

You certainly have a right to represent yourself. I would warn you of a very old legal maxim that goes, "He who represents himself has a fool for a client." Let me put it differently, let's assume that you had a need for an appendectomy. Would you go to the store and buy a do-it-yourself appendectomy kit and try and remove your own appendix?

Of course not. A drunk driving charge requires an expert drunk driving attorney. Someone who is familiar with the analysis methods, evidentiary issues, and constitutional issues which will be faced in a drunk driving trial.

If you are going to seriously defend yourself against a drunk driving charge, you are going to need an experienced drunk driving attorney.
How do you determine what kind of attorney you need? The attorney who prepared your Will, the attorney who handled your divorce, the attorney who handled your personal injury or worker's compensation case will probably not be the attorney you need. The best way to find a qualified attorney, is to ask questions of that attorney, and establish his qualifications. It is the intent of this website to give you some information that will enable you to ask the right questions of the attorney so that you can use your best judgment when selecting an attorney to represent you. The attorney you select must be someone who you have confidence in, who can communicate with you, can communicate with the court, and understands the complex issues presented in a drunk driving case.



You are an out-of-state resident who has been charged with DUI (Driving Under the Influence) in California. What do you do? What can California do to you?

The state of California can do plenty, even if you are not a resident. Since there now exists interstate cooperation between motor vehicle departments, you can lose your privilege to drive in your home state.

Here is how it works, under the Federally mandated Interstate Compacts, motor vehicle departments in other states must recognize a California suspension to drive. If you lose your privilege to drive in a California courtroom or have the privilege suspended by the California DMV, you can lose your privilege to drive anywhere from four months to as much as two years. The length of suspension will be dependent on such factors as prior convictions or refusal to take a blood, breath or urine test to determine one's blood alcohol concentration.

I recently had a client from Georgia who took what he thought was a breath test in the field. It turned out that he was unfamiliar with Preliminary Alcohol Screening Test, as used in California, and refused additional tests when he got to the police station. He refused on the ground that he had already taken a breath test in the field and in Georgia you only have to take one test. The California DMV was going to suspend this client's privilege to drive for one year for refusal to take a chemical test. We were successful in preventing the one year suspension.

What this client from Georgia received is what you need: advice and assistance from an experienced, competent, knowledgeable DUI defense attorney. Being from another state does have its own problems, but, many times tourists get a break, depending on the circumstances. A non-California resident can get their privilege to drive back without completing a DUI program.