What do the police need in order to make a DUI arrest?
There are four basic types of evidence that the police need in order to arrest you for DUI. They are as follows:
1) Information of intoxication obtained from questioning the driver
2) Observations made that indicate intoxication
3) The failure of the driver to pass field sobriety tests
4) Chemical test results that indicate intoxication
Note that all four types of evidence do not need to be gathered in order for an arrest to be made.
Do I have to talk to the police if they stop me?
Under the law, you are only required to provide the police with your name, address, your driver’s license, vehicle registration, and proof of insurance. You do not have to answer any questions that do not pertain to any of these things. It is advisable not to answer any questions about whether or not you have had anything to drink or where you have been. Police officers are trained to engage drivers by asking questions so that they can determine whether or not particular signs are present, such as slurred speech, nervousness, and whether or not the smell of alcohol is present.
What is Implied Consent?
Any person who has a California driver’s license is presumed to have given consent to have his or her breath, blood, or urine tested when requested by law enforcement for the purpose of determining intoxication.
What happens if I refuse to Submit to a chemical test?
Under California’s Implied Consent Law, if you refuse chemical testing and are a first-time DUI offender, you face an automatic one-year suspension of your driving privileges. In addition, because you refused chemical testing, the courts generally will impose even greater penalties than if you had submitted to chemical testing and had a blood-alcohol-content level of .08%. Often, both judges and juries will look at a refusal as an “admittance of guilt.”
Should I refuse to take a chemical test?
Unless you consumed a great amount of alcohol and then drove and you are definitely very drunk, you should agree to chemical testing. The only reason you would want to refuse chemical testing is if your blood-alcohol-content was much greater than .08%; which then would result in enhanced penalties being imposed. That being said, the police are supposed to advise you that you have the right to choose between a breath and a blood test. It is always best to opt for the breath test because they are less reliable and subject to an array of defenses. If a breath test is not available, however, you will need to submit to a blood test.
What are forced blood draws?
When a driver refuses to submit to chemical testing, California courts have given the police leeway to conduct what are known as forced blood draws -- the taking of a blood sample by force. This is done either by holding the driver down or by threatening to do so. This right stems from the landmark case, Schmerber v. California (1966). In the Schmerber case, the court ruled that it is permissible for the police to take a driver’s blood by force without a warrant for chemical testing in order to determine if the driver is intoxicated. This may be done provided that the forced blood draw takes place after an arrest is made and in a medically approved manner by a trained medical professional.
If all guidelines are followed, then the forced blood draw will not constitute a violation of the driver’s Fourth Amendment right against “unreasonable search and seizure.” If proper guidelines are not followed when conducting the forced blood draw, the driver may be able to make a valid claim that his or her Fourth Amendment rights were violated.
Should I agree to take Field Sobriety Tests?
No! Unlike refusing to take a chemical test, there are no penalties that can be imposed for your refusing to take field sobriety tests. However, if you refuse to take field sobriety tests, the police will most likely find some other reason to make an arrest. This of course does not mean that you should agree to field sobriety testing. Most of the time, the police will ask a driver to submit to field sobriety testing so that they can establish probable cause to make an arrest or gather more evidence that the driver is intoxicated. Unless you are totally sober, you should refuse to submit to any such testing.
The police officer took my driver’s license when I was stopped. How do I get it back?
In California, when you are arrested for DUI, the police are required to take your driver’s license unless you are an out-of-state driver’s license holder. You have ten (10) days from the date of your arrest to request a hearing with the Department of Motor Vehicles (DMV). If you are successful at your hearing (i.e., it is determined that there is no basis for a license suspension or revocation), then the DMV will return your license to you. If you are not successful or you failed to request a hearing within this ten-day period, then your driver’s license will not be returned until your suspension or revocation period ends and you pay a $125 reissue fee to the DMV.
What happens at the DMV hearing?
It is important to note that the DMV hearing and any penalties that the DMV chooses to impose are separate from the court proceeding and the penalties that the court will impose. The California DMV does have the power to suspend, revoke, and restrict your driving privileges. The DMV hearing is your only opportunity to try and protect your right to drive. During the hearing, a hearing officer who is an employee of the DMV will review all of the evidence presented in order to determine whether or not your driving privileges should be suspended, revoked, restricted, or left alone. You do have the right to have an Orange County DUI attorney represent you at this hearing and it is in your best interest to do so.
Can I continue to drive before I have my DMV hearing?
As long as a request for postponement of your license suspension was made pending the outcome of your hearing, you are allowed to drive.
What is a “sentencing enhancement?”
If certain elements were present either at the same time of the arrest or occurred as a result of your drunk driving, you generally will be subject to “sentencing enhancements” (increased penalties) imposed by the court. The most common sentencing enhancement that Orange County courts impose is for a driver who is arrested for a subsequent DUI offense within a 10-year period. Other sentencing enhancements include:
- Child Endangerment – This sentencing enhancement is imposed when a DUI offender has a child who is 14 years of age or younger in the vehicle at the time of the offense. The enhanced penalties for this offense are: First-time DUI offense – 48 hours in jail, Second DUI offense – 10 additional days in jail, third DUI offense – 30 additional days in jail, and fourth DUI offense – 90 additional days in jail.
- DUI with a BAC of .20% or higher – This offense generally results in enhanced penalties that include additional fines and lengthier jail sentences.
- Chemical Test Refusal – This offense results in an enhanced penalty of a mandatory license suspension of one year for first-time DUI offenders.
- Speeding/Reckless Driving – When a DUI offender was traveling 20 to 30 miles above the posted speed limit and had a blood-alcohol-content (BAC) level of .08% or greater, the courts generally will impose this sentencing enhancement. The enhanced penalty is an additional 60 days of incarceration.
- Accident and/or Injury – When a DUI offender is involved in an accident, the courts generally will impose enhanced penalties that include restitution for property damage and injury. In addition, if injury to a third party occurred, then the DUI case may be classified as a felony, which could result in the DUI offender’s spending up to a year or more in jail and other enhanced penalties.
It is important to note that as with the actual DUI charge, the elements for the sentencing enhancements must be proven “beyond all reasonable doubt.”
What types of defenses do I have against my Orange County DUI charge?
The number of defenses that can be used in an Orange County DUI case are virtually limitless and are dependent on the individual case and the circumstances surrounding it. As highly-skilled Orange County DUI lawyers, we are quite knowledgeable in DUI defense and we will help you determine which ones will be best to use in your case. Some of the things that we look at when creating credible Orange County DUI defenses are:
- Was the stop legal? In order for the police to stop you legally, the police officer must have a reasonable and articulate basis to believe that you violated a traffic law or other law. They cannot stop you simply because you were weaving inside your lane.
- Were you actually driving while intoxicated? The fact that you might have been intoxicated, in itself, does not prove that you did anything wrong and were driving drunk. The prosecution will need to prove that you were in fact “driving” while intoxicated, which sometimes is not easy to do, especially if there were no witnesses or other evidence gathered.
- Did the police violate any constitutional provisions, state regulations, statutes, or other legal authority?
- Did the Police read you your Miranda rights? Upon arresting you, the police are required to read you your Miranda rights. If they fail to do so, our Orange County DUI lawyers will be able to get any incriminating statements that you made suppressed.
- Did the Police Comply with Proper Operating Procedures? When conducting sobriety checkpoints, administering field sobriety tests and chemical tests, and video taping suspecting DUI offenders, the police are required to follow proper operating procedures. If they fail to do so, then our skilled Orange County DUI attorneys often will be able to successfully argue that any evidence gathered should be suppressed and that the DUI charges should be dropped entirely.
- Did the police advise you of your right to refuse chemical testing? Although under California’s Implied Consent Law, you have already agreed to submit to chemical testing, the police must still advise you that you have the right to refuse and that if you do refuse, your driving privileges will automatically be suspended for one year. In some instances, the failure of the police to advise you of this right can result in the suppression of any chemical test result both in the court case and in the DMV’s case.
- How was the chemical test administered? When it comes to chemical testing, there are a number of different kinds of legal defenses that can be used. For instance, was the breath testing machine properly calibrated and in proper working condition? Did you hyperventilate just before taking the breath test (which can have an affect on the result)? Was the breath test administered in an area that was subject to radio frequencies? Was your blood drawn by a properly trained professional? Did the person who administered the blood test, use the proper amount of preservative and anticoagulant? Was your blood sample properly preserved in a refrigeration setting? All of these defenses and more can be raised when it comes to chemical testing.
- Did the police make a 15-minute observation of you before you took a breath test? California regulations require law enforcement to observe DUI suspects for a minimum of 15 minutes continuously prior to their administering the breathalyzer test. During this 15-minute period, the police must ensure that you do not consume anything, burp, hyperventilate, hiccup, or regurgitate. If you did any of these things just prior to taking the test, then the result can and most likely was affected. If the police failed to observe you continuously for 15 minutes before you submitted to the breath test, then doubt can be cast and the validity of the test result will be questioned.
- Rising BAC defense – The rising blood-alcohol-content (BAC) is a complex defense, but one that can provide successful results. As you know, your BAC reflects the amount of alcohol in your bloodstream. Now, while it is illegal to drive with a BAC of .08% or more, it is not illegal to have a BAC of .08% or more at the time you took a breath or blood test. When you drink alcohol, it will take your body between thirty minutes to three hours before it actually absorb the alcohol. This means that your BAC may continue to rise even after you were stopped and before you gave your breath or blood sample. Now because many DUI offenders are not given their chemical tests until a few hours after they were stopped, this means that the test result most likely is wrong. For example, assuming that your chemical test result showed that you had a BAC level of .9%, if your body continued to absorb alcohol for a while before you submitted to the chemical test, then your BAC at the time you were actually driving would have been only .06%.
Will I have to appear in court?
If you were charged with misdemeanor DUI, then most likely, our Orange County DUI attorneys can appear on your behalf. However, in some instances, it may be beneficial for you to go to court. Our Orange County DUI attorneys will advise you what is best for your case.
When am I entitled to an Orange County DUI attorney?
In California, the police can “detain” you and even ask you questions without your having an Orange County DUI attorney present. However, you are under no obligation to answer their questions, except those pertaining to your name, address, date of birth, driver’s license, etc. Under the law, you are legally entitled to an Orange County DUI attorney after you have performed and/or refused chemical testing and have actually been “arrested” for DUI.
Should I choose to have a Jury trial?
It truly depends on your case. Most often, it is better to opt for a jury trial rather than a bench trial; however, both options should be fully explored with your Orange County DUI lawyer.
What does it mean to plea to “wet reckless” rather than DUI?
This is a type of plea bargain that is sometimes negotiated as an alternative to a DUI conviction. A wet reckless plea is typically offered to those DUI offenders whose BAC levels were borderline illegal, no accident or injury occurred, and the DUI offenders did not have any prior DUI convictions. A wet reckless conviction typically results in lower fines, no jail time, and no DUI conviction on your record. However, if you are charged with a subsequent DUI offense, the wet reckless conviction can be considered as a priorable offense.
How long does the Orange County criminal court process take?
Every Orange County DUI case is different and the timeline does differ from one case to the next. Generally, however, unless you plead guilty at your arraignment hearing, then you can expect your case to take anywhere from three months or more. Complex DUI cases can take anywhere from six months to a year or more before they are resolved. After reviewing all aspects of your Orange County DUI, our Orange County DUI attorneys will be able to provide you with an estimated timeline.
Do I really need an Orange County DUI attorney?
As the saying goes, “a defendant who represents himself (or herself) in court, has a fool for a client.” It is never a good idea to try to handle things on your own. Orange County DUI laws are complex and a conviction can result in some really harsh consequences. In addition, there are a number of complicated procedural issues that most likely will arise that will need to be addressed. Even attorneys who do not regularly practice DUI law will have trouble addressing these issues properly. An experienced and knowledgeable Orange County DUI lawyer will know how to thoroughly investigate your case and be able to devise solid, effective and successful defenses that can help get evidence suppressed and possibly the charges dropped altogether.