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The Top Three Things to Consider When Stopped For A DUI

A DUI arrest in San Diego County or the State of California (VC 23152(a)(b), VC 232152(d), VC 23152(e), VC 23152(f)  has serious consequences. For example, license suspension, and up to six months in county jail. The court may also impose an Ignition Interlock Device (IID) on the vehicle, which requires the driver to blow into a device to test for alcohol before the vehicle will start. A SCRAM bracelet, which does not allow for any alcohol consumption, and must be worn at all times, may also be imposed. There are numerous fines, Public Work Service, an insurance increase, and a probationary period if convicted. With the consequences so severe, here are three things that should be considered if stopped for DUI:

  1. Field Sobriety Tests: These tests are optional and will only strengthen the law enforcement case for the arrest and the district attorney’s case for a conviction. Furthermore, these tests are usually recorded, and very few people look great, even when sober, taking these very difficult tests. FSTS include the Horizontal Gaze Nystagmus Test – involuntary jerking as the eyes move towards the sides. Walk and Turn Test, One-Leg Stand, Stand and Balance, and the Preliminary Alcohol Screening Test (PAS). These FSTS are optional, and one should consider the risks and benefits before taking these tests.
  2. Statements: Statements about drinking – time started, what type of alcohol was consumed, where and when, or when drinking stopped will likely be incriminating and used against you. 5th amendment rights and Miranda protections typically do not apply during the investigatory stage of a DUI. The officer’s report will, undoubtedly, the state he or she smelled alcohol on initial contact, noticed red and watery eyes, and slurred speech. So any statements that corroborate these observations will not be helpful.
  3. Chemical Tests: Chemical Tests Refusals – not taking the blood, breath, or urine test– will increase the penalties if convicted. There may be legitimate reasons for not taking a chemical test; for example, an unlawful arrest, which means the arrest lacked probable cause; officer induced confusion regarding the test, which may involve not advising clearly about the consequences of a chemical test refusal; and due to an injury, not caused by alcohol or drugs, the test was unable to be taken.

These are a few issues that may be considered when investigated for DUI. Contact Kern Law, APC today if you have been arrested or charged with a DUI. We will attack every aspect of the DUI case and provide a free, confidential consultation.

A lot of people assume they have quite a few constitutional protections when it comes to DUI stops (detentions).  For example, some assume that if the police stop their vehicle and start asking questions, they have the 5th amendment right against self-incrimination; and therefore, do not have to respond to any questions without first receiving their Miranda warnings.

Unfortunately, the US Supreme Court has disagreed, holding that the brief nature of traffic stops and the fact that that is typically held in a public place obviate the need for Miranda warnings.    The court has held that the person in the vehicle being asked questions is not in custody and is not being interrogated – both of which are needed for Miranda to apply.

What about the actual stop?   Are there not 4th amendment protections that we all enjoy?  The answer, of course, is yes.  Police need to have reasonable suspicion to stop a vehicle for DUI.  Some reasons officers use to justify the stop involve the following:

  1. Traffic violation
  2. Erratic or unusual driving
  3. Equipment violation
  4. Suspect the car was used in a crime
  5. DUI checkpoint.

Once the stop has occurred, the detention of the vehicle must only last as long as it takes to confirm or dispel the reason for the stop.  Typically, once the officer has made contact with the driver, they immediately start looking for signs of alcohol – red eyes, slurred speech, the smell of alcohol, etc.

If the officer suspects the driver is DUI, they will ask him or her to step out of the vehicle and perform a field sobriety test, which is typically made up of three tests.   These tests are optional and purely subjective – which means don’t do them.  The officer may also request the driver to take a PAS test (preliminary alcohol screening).  This test is also optional, and not recommended.  The officer will use the FSTs, PAS test, and other observations made by him or her to find probable cause to justify the arrest for DUI.