It was a great day for you. You brought in a new account for your firm, or your hard efforts at work were finally recognized. A son or daughter did well at a school sporting event, or graduated with honors. Perhaps it was simply the end of a long week of good hard work, or one filled with home related stress. Regardless, you decide to go to your favorite watering hole and have a few drinks.
All too often a few drinks turn into a few too many, but nonetheless you insist on driving.
Driving away from the bar or restaurant you see the flashing red lights of local law enforcement.
A quick stop is followed with stern questioning by the officer, including the time honored phrase of “have you been drinking tonight?” You are put through the paces of field sobriety tests, and many times a field breathalyzer test.
If the officer concludes you are driving drunk, a trip to the county jail is arranged and from there a formal blood alcohol test is performed. Depending on many factors, including your age and claimed level of your blood alcohol, you will watch your driver’s license and privilege to drive disappear. Embarrassing telephone calls are made by you to secure your release. A court date and the legal process are now in your immediate future.
My wife and I have handled literally hundreds of DUI cases. There are a number of common questions that we are asked. These include is it illegal to drink and drive? Can I be guilty even though I felt fine to drive? How do I save my license to drive? Should I just plead guilty? What do I do?
DUI in California
In California the term “drunk driving” is actually a misnomer. This is because the law prohibits something quite lesser than this. Here in the land of the free what is prohibited is driving under the influence of alcohol or drugs, or their combination, or driving with an excessive blood alcohol level (BAC).
Under the law it is not necessary to show that you were intoxicated or drunk. Euphemisms for being under the influence include “buzzed,” “toasty,” “high” or similar such phrases. Once it is shown that you are under the influence you have violated the law, regardless of how much you consumed.
Another set of laws prohibit driving with an excessive BAC, regardless of your state of sobriety.
What a minute, you say. Didn’t they have to show you were under the influence? The answer is no, if you are driving with an excessive BAC. Thus, law enforcement can get you in one of three ways: driving under the influence; driving with an excessive BAC, or both. And it gets better: if your BAC is excessive, they can use that as evidence to try and prove you were under the influence at the time of driving.
Many people ask whether it is illegal to drink and drive. In the absence of impairment or excessive BAC, it is not. While the better practice is to have a designated driver, for purposes of a DUI case it is not enough to merely show that you consumed some alcohol and then drove.
What about figuring out if you are close to the BAC limit? The DMV has a chart on their website which can help you determine how much you had to drink in relation to your body weight as a rough calculation of when you are approaching the danger zone. However, this is not foolproof.
(See http://dmv.ca.gov/
The Stop and Arrest.
So, what happens during a typical DUI stop and arrest? First, the officer must have probable cause to stop you. This can occur if he or she sees driving that suggests impairment. Many times, however, law enforcement will use a simple vehicle code violation such as a burnt out tail light or speeding, or failure to use a turn signal, as the reason to stop you. In the absence of sufficient probable cause the stop is unlawful and all evidence may properly be suppressed as a result of the search and seizure violation.
Once stopped, if the officer believes drug or alcohol impairment is present, they will require you to perform a series of field sobriety tests (FST’s). These are tests which involve balance and coordination tasks to, in theory, help determine if you are under the influence. Some of these tests are legitimate tools, whereas the claimed science of others is in dispute. Only experienced DUI practitioners will know which is which.
FST’s present a Catch-22, because most people have never performed these tests and will likely never be able to perform them as well as the officer. Also, many people have physical limitations which can cause the tests to show false results. The time, place and conditions of the FST’s can also skew their results. Thus, if you do have a problem with balance or coordination due to physical injury or disability it would be wise to let the officer know this. The officer may also ask you to submit to a field breathalyzer, or “PAS” device test.
Upon you arrest you will be required to submit to a chemical test to determine your BAC. The tests employed if alcohol is suspected are generally a blood test or a formal breathalyzer test at the station. Urine tests are generally used if drug use is suspected. The law requires that blood samples be taken in a certain way. The breath test will likely be done by the arresting officer.
There are scores of text books on the validity of the tests and how they may relate to the BAC at the time of actual driving
License Suspension
If your BAC was excessive the officer will take your license and, in the absence of prevailing at a DMV administrative hearing, you will lose your privilege to drive for a substantial period of time. If you refuse a chemical test, your privilege to drive will be gone for even longer.
One question is what do you do when the officer takes your license in a DUI case? You are entitled to an administrative hearing in front of the DMV and you may have counsel of your choosing appear to defend you. However, strict guidelines exist as to when you must request this hearing and a failure to do so will result in forfeiting this right. The time lines and manner in requesting such a hearing are contained on the paperwork the officer gives you when your license is taken.
Can I fight the license suspension? The answer is yes, and you may elect to fight this on your own or with the attorney of your choosing. It is beyond the scope of this article to list all the potential defenses and strategies available, but suffice it to say there are a number of them.
Going to Court
Regardless of what happens with the DMV, going to court can be a frightening concept. If you cannot afford to hire your own attorney you may request the office of the public defender, and be assigned an attorney selected by that office. Conversely, you may decide to hire your own attorney and be represented by the lawyer of your choosing.
Should you just plead guilty? A common question is what can be guaranteed if you are represented by counsel. In our view about the only guarantees that can be given is that if you plead guilty then you will be found guilty. Each case is unique and has its own set of facts and circumstances. There is no “one size fits all” when it comes to DUI cases. Indeed, many innocent people are wrongfully charged and must prevail in court. Many cases resolve for lesser offenses during the plea bargaining process. It is only after a thorough review of your case can a proper strategy is formulated.
If you do plead guilty or are found guilty after trial, you will see that it is an expensive proposition as you will be hit with a large fine, likely a mandatory DUI school, and jail time. Insurance rates will go up, as will the blood pressure of your spouse or significant other. In the end, the best advice we can give is this: if you drink, get someone else to drive, whether that is a friend, a designated driver or taxi. The time and money spent on these alternative drivers will be well worth it.
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At Petty and Warshawsky, they are proud to protect clients throughout Solano County with a defense that never rests. They recognize how daunting it can be to face criminal charges and are fully prepared to help their clients with hard-hitting and relentless assistance that will work towards defending their legal rights and protecting their future. No matter whether their clients have been criminally charged for a drug crime, if they have a child that is facing a charge for a juvenile crime or if they have been slapped with assault charges, a Solano County criminal defense lawyer from their firm will relentlessly fight to defend their legal rights. They know what is on the line and will do everything possible to help clients with creative and high-quality assistance when it is needed most. Contact them as soon as possible to discuss your case and all legal options by calling at 888-527-2446 or by visiting the firm's website at http://www.solanocountycriminaldefense.com.
