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Four Steps to Defend Against a DUI in San Diego

Four Steps to Defend Against a DUI in San Diego

DUIs, VC 23152(a) and VC 23152(b), in San Diego County are very common and significantly impacts those arrested. The question is often asked, “What should I do if I am stopped for DUI”? The answer is long and complicated, but there are four things to consider if you are stopped on suspicion of DUI.


If you are stopped for a DUI, caselaw states the law enforcement agency must have reasonable suspicion. This means the officer must have specific facts they can articulate that the person stopped has committed a crime, is committing a crime, or is about to commit a crime. This information is necessary to justify the stop. The stop cannot be based on a hunch, curiosity, or rumor. In the DUI context, this typically means the driver is alleged to have committed a traffic violation, involved in a traffic accident, or their driving evidences impairment.


Once the party has been stopped, a detention now occurs. The officer can now investigate the reason for the stop. The detention cannot last any longer than is reasonably necessary to investigate the purpose of the stop. If the detention is unduly prolonged, it now becomes an arrest and must be supported by probable cause. If it is not supported by probable cause, any evidence obtained by the unlawful arrest may be inadmissible in court. FSTs are administered during the detention. The purpose of FSTs is to gather additional evidence to support the probable cause to make an arrest. FSTs, including the Preliminary Alcohol Screening Test (PAS), are optional. They do not have to be performed.


Once the officer determines there is probable cause to make an arrest for DUI, he or she will request a chemical test – blood, breath, or urine. VC 23612, also known as implied consent, requires the officer to inform the arrested person of the consequences of refusing a chemical test. If the admonition (VC 23612) is lawfully performed, and the party willfully refuses to take a chemical test, he or she may lose their license for up to one year or more.


The US Supreme Court has determined that chemical tests in the DUI context are searches. Therefore, they require a warrant or exception to the warrant – emergency or consent, for example. Most DUI arrests are made without a warrant. If there is no emergency or consent, and the implied consent admonition was unlawful, the blood or breath result may be inadmissible in court. Implied consent (VC 23612) is not the same as Fourth Amendment consent. Therefore, just because someone has complied with the officer’s admonition to take a chemical test, it does not determine that those results will be admissible in court. Consent must be voluntary. If the consent was not knowingly made, coerced, or simply a submission to lawful authority, it is not voluntary and any evidence that results may be inadmissible in court.

At Kern Law, APC we have represented clients accused of DUI since 2004. If you have been arrested for DUI, contact my office today. We provide a free, confidential consultation.