DUI TASK 2: Make notes about your arrest

It is important that you make notes about what happened during your arrest before you forget.

Make notes of what the officer said and did to you, and preserve any other evidence that helps you.  For example:-

  • Before you were pulled over, how much and what did you drink?
  • When did you drink, and over what period of time? (e.g. from 7 pm to 9 pm).
  • Did you eat while you drank?  For example, did you eat a meal?
  • Did the officer tell you why were you pulled over? (Speeding, running a red light, swerving, etc.)
  • Were there any witnesses to your arrest and were there witnesses to your drinking?
  • Was an officer with you for the 15 minutes right before you blew into the breath machine at the police station, closely observing you?
  • Did you vomit, burp, smoke, or drink anything just before blowing into the breath machine?
  • Did the officer do or say anything unusual or inappropriate?
  • Was the officer young and inexperienced and being trained by an older officer?
  • Did you take any photos of anything that supports your side of the story?

Note and write down all potential evidence that can help you in court and for your DMV hearing.

Blood Alcohol Content

See BAC Calculator to make a rough estimate of what your blood alcohol level may have been at the time of your arrest.  Sometimes the police officer will have told you what your breath machine results were, sometimes not.

Blood results can take a few weeks get the results.  Your police report is the best source to get your BAC results.

FAQ

Police

Can I be under the limit and still get a DUI?

Yes, your blood alcohol level may be under the .08 limit, but the police can still charge you with a DUI if the arresting police officer believed your driving was impaired due to your consumption of alcohol or drugs.  This is according to:-

California Vehicle Code VC 23152(a)

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

The DUI law in California has 2 parts:-

VC 23152(b) Driving with a level of .08 or higher –
If you take a blood or breath test and your result is .08 or higher you will be charged with violating this DUI law.

VC 23152(a) This part of the DUI law in California states that you are not allowed to drive under the influence of alcohol or drug or both.

Under the limit DUI

This is an opinion crime which means if the officer thinks in his opinion that you are under the influence of alcohol or a drug he can arrest you for a DUI in accordance with VC 23152(a). This law gives the officer the power to arrest you even if you have a breath or blood result under .08. If the officer feels you have been drinking and driving and he believes you are under the influence he can arrest you for a DUI. The officer will usually consider the following to form his opinion:

  • Your driving
  • Your physical symptoms (speech, eyes, breath, etc.)
  • And your performance on the Field Sobriety tests

Definition of  Driving Under the Influence

A person is considered under the influence of an alcoholic beverage, drug, or combination of alcohol and drugs when his/her physical or mental abilities are impaired to such a degree that he/she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.

VC 23152(a)

If you blow a breath result under .08 you can still be charged with a DUI if the officer believes in his opinion you are under the influence of alcohol i.e. you are impaired by alcohol as this law allows people to be charged with a DUI even if they have a breath result under .08 such as .07 or .06.

If you refuse to take a breath or blood test you can still be charged with a DUI under this law (VC 23152(a)) if the officer believes in his opinion you are under the influence of alcohol and impaired.

If the officer suspects you have consumed a drug (the drug can be legal or illegal) and the drug has affected your ability to drive you can be charged with a DUI under this law (VC 23152(a)) if the officer believes in his opinion you are under the influence of a drug and impaired.

In summary, this law has given the police a lot of power as they can arrest and have someone charged with a DUI based simply on their opinion. If the officer thinks in his opinion you are under the influence of alcohol or a drug you can be charged with a DUI even if your breath or blood result is under .08 and you can be charged with a DUI even if you refused to take a breath or blood test.

How do I get a copy of my Police Report?

It is usually difficult to get your police report from the police before your court date.

Your Police Report is available :-

  • On your first court date. This court date is listed at the bottom of the ticket you were given.
  • If you request a DMV hearing, you can request the DMV to send the Police Report to you approximately 10 days before the DMV Hearing.
  • If you were involved in an accident and California Highway Patrol (CHP) officers arrested you, you can obtain your accident report from the CHP station listed on the bottom of your pink temporary license that was given to you.

About your Police Report

The Police Report usually includes the OFFICER’S STATEMENT which is a special document sent to the DMV with very important information in it:

  • Breath Machine print out of your breath alcohol results
  • Information on your driving
  • Information on Field Sobriety Test Performance

Read more about Obtaining and reviewing a copy of your Police Report

Breath machines
What’s the difference between the breath machine I blew into at the side of the road and the breath machine I blew into at the police station?

Preliminary Alcohol Screen device (PAS device)

hand held breath machineUsually after you have done some field sobriety tests after you got pulled over, the officer will bring out a handheld breath device that he will get you to blow into. This handheld breath machine is called a preliminary alcohol screening device (PAS device for short). Under the law it is described as a field sobriety test which the officer can use to detect the presence of alcohol in you.

Under the law, blowing into this device is supposed to be optional; the officer must tell you that you can refuse this test, unfortunately officers usually never tell you it is optional to blow into this device and they will make you blow into it. After you blow into it; they almost always will not tell you your results.

Breath machines at the police station

breath machineThe results of the PAS device at the scene of your arrest are not as accurate as the breath machines at the police station that you might have blown into. Prosecutors give more weight to the breath results from the machines at the police stations. However, if the breath results from the PAS device are lower than your breath results from the machine at the police station, you can argue that your blood alcohol rose after driving and you potentially have a rising blood alcohol defense, especially if your results are near .08.

BAC (Blood Alcohol Concentration)

Drinking alcohol affects your Blood Alcohol Concentration (BAC).

By DUI laws in California, it is illegal for any person to operate:

  • A motor vehicle with a BAC of 0.08% or higher.
  • Any vehicle requiring a commercial driver license (with or without a commercial driver license issued to the driver), with a BAC of 0.04% or higher.
  • A motor vehicle with a BAC of 0.01% or higher, if the person is under age 21.
  • A motor vehicle with a BAC of 0.01% or higher at any age if the person is on DUI probation.

See BAC Calculator to estimate the concentration of Alcohol in your blood based on how much you have been drinking.

The Officer never read me my rights

California DUI & Miranda rights

The law requires that you be informed of the following rights when you are in custodial interrogation:-

  • Your right to remain silent
  • Your right to an attorney
  • And what you say can be possibly be used against you in court.

These are your Miranda Rights.

This basically means that when you are handcuffed and the officer is asking questions that can possibly incriminate you he must inform you of your Miranda Rights listed above.

If the officer is asking you questions while you are in your car or before he has handcuffed you, this is usually considered an Investigative Interview and he does not have to tell you your Miranda Rights.

Failure to read your rights

Unfortunately, officers rarely read people their Miranda Rights in DUI arrests, and their failure to read you your rights does not prevent your breath or blood results from being used against you. A violation of your Miranda Rights can only result in excluding statements you made to the officer only if a Judge believes you were in custodial interrogation and you did not waive your rights. The officer’s failure to read you your rights will not affect your DUI case except in rare cases.

DUI Refusal

dui refusal

 Refusal Alert!

If you refused to take a breath test or blood test at the police station when you were arrested for DUI, even if you tried blowing into the breath machine, you face a one-year suspension of your license with absolutely no chance of getting a restricted license to drive to work during this suspension. If you have prior DUIs then you face a longer suspension also with no chance of getting a restricted license:-

  • A 2-year revocation is imposed for a second offense (within 10 years)
  • A 3-year revocation is imposed for a third or subsequent offense (within 10 years).

You must win your DMV hearing in all refusal cases to get your license back and avoid this strict punishment. The courts have no power over your license in refusal cases which means even if you go to trial and win, it will not affect your license status. You must win your DMV hearing to get your license back.

Please note, a refusal to take a mandatory chemical test at the police station is different from a DUI checkpoint refusal to breathe into the handheld breathalyzer device at the roadside which is an optional field sobriety test. See breath machines FAQ.

Implied consent law

California law says that anyone with a California license driving in the state of California has given their implied consent to taking a chemical test if a police officer suspects they have been drinking and driving.  If a police officer requests that you take a breath or blood test at the police station to determine your blood alcohol level, then you must take a test.

This means that if you are pulled over by a police officer and he thinks you have been drinking alcohol you get to choose but you must either take a breath test at the police station or submit to a blood test and give a sample of your blood to determine how much alcohol is inside your body. If a breath or blood test is not available, you must provide a urine sample. By having a license you have already consented to take this chemical test. (Unfortunately, no one knows about or understands this implied consent law.  See California Veh Code 23612).

Consequences of a refusal

If a police officer pulls you over and suspects you have been drinking and driving, and he says you must take a breath or blood test and you refuse to take a breath or blood test you face some very serious punishment for refusing to take a chemical test. By refusing to take a test, you face:-

  • A one-year license suspension of your license with no chance for a restricted license to drive to work. That’s one year of no driving at all!
  • In court, you also face greater punishment such as a 9-month DUI class instead of a 3-month DUI class normally ordered for a first-time DUI
  • You possibly face 48 hours in jail for not taking a chemical test.

There have been cases where people have tried blowing into the breath machine and when no result is obtained, officers sometimes get impatient, accusing you of not blowing hard enough, and they say that you have refused to take a test without telling you that you face a 1-year license suspension and a minimum of 48 hours in jail from the court for refusing to take a test.

How to save your license

If the officer accuses you of refusing to take a test, the only way to save your license from being suspended for one year is to request a DMV hearing and to win this DMV hearing. You are entitled to a DMV hearing even if you refused to take a test. In a refusal case, the DMV has complete control of your license. This means even if you have a jury trial for your DUI and the jury finds you not guilty of the DUI it will not change the outcome of the DMV hearing concerning your refusal to take a test.

If you are being charged with a Refusal of a test by a police officer, you are facing a one-year suspension of your license and additional punishment in court.  It is imperative that you immediately request a DMV hearing to try and save your license from being suspended for one year.

Control of your license

The courts have no power over your license in refusal cases. The DMV hearing completely controls what happens to your license in a refusal case: if you win the DMV hearing your license will be returned and will not be suspended for one year. If you lose the hearing your license will be suspended for one year and you are not eligible for any restricted license that would allow you to drive to work. It is a one-year hard suspension allowing no driving at all not even to work.

So Refusal cases are very serious and you must get a DMV hearing to fight these allegations.

Field Sobriety Tests

Definition: The Standardized Field Sobriety Test (SFST) is a battery of 3 tests performed by a police officer during a traffic stop in order to determine if a person suspected of impaired driving is intoxicated with alcohol or drugs. The 3 tests that make up the SFST are the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Developed in the 1970s, these tests are claimed to be scientifically validated, and are admissible as evidence in court in a majority of states including California.

Other sobriety tests which have not been standardized by the National Highway Transportation Safety Administration (NHTSA) can be included by the police officer, such as finger-to-nose, alphabet recitation,  DUI Rhomberg balance test (eyes-closed, head tilted back, estimate passage of 30 seconds), etc.

The intended purpose of the tests

The tests are intended to help officers make decisions about whether or not to arrest suspected impaired drivers.  However, in reality, the police often use these tests for the purpose of providing “evidence” to support the officer’s opinion of intoxication.

The tests are optional

California drivers are not legally required to take a Field Sobriety Test.  Taking the test is optional and you can politely tell the officer, “No thank you, I do not want to take the test”. However, the arresting police officer is unlikely to inform you of this fact.

How reliable are these tests?

Evidence of reliability

The National Highway Traffic Safety Administration (NHTSA) sponsored research beginning in 1979 that lead to the development of the Standardized Field Sobriety Test (SFST). The tests were designed to help officers make arrest decisions at and above the 0.10 percent blood alcohol concentration (BAC).

Since then, many states, including California, have lowered their BAC limits to .08 percent and further studies have been conducted to validate the tests.  See footnote for some detail. As a result, police and court officials have confidence in these tests.

Evidence of unreliability and invalidity

While police like using the tests, some critics say the tests are unreliable. Dr Sturgeon Cole, a retired professor from Clemson University, says the tests are designed to fail.  He is concerned that “There are no norms and there is no average score.  We have no idea what an average person can do on one leg doing heel to toe.”  He also says that even when conducted correctly, the tests give officers an indication of intoxication which is only 26% better than chance (or randomly guessing). After studying these tests for decades, he is convinced they are neither valid nor reliable.

See www.duistopped.us/field%20sobriety%20tests%20are%20they%20designed%20for%20failure.pdf for details of a study titled “FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?” In this study, it was found that “Even without [any] alcohol, the number of errors made by individuals performing the field sobriety tests was sufficient for officers to judge that the [completely sober] individuals had had too much to drink.”

Whatever your opinion on the reliability of the tests, bear in mind that the 3 tests comprising the Standardized Field Sobriety Test are considered reliable by judges and are admissible as evidence in court in California.

The following 40-second CNN video shows some live Field Sobriety Tests being performed including doing an eye test (following the light with their eyes) walking the line, and standing on one foot.

 

See also:-

Footnote:

In 2006, Anacapa Sciences, Inc. of Santa Barbara, California was commissioned to conduct a study to validate the accuracy of the SFST battery to discriminate above or below 0.08 and above and below 0.04 percent blood alcohol concentrations. (BAC of 0.04 is the national standard for Commercial Driver License holders).  Their study was based on the collection of data by seven experienced officers of the San Diego Police Department’s alcohol enforcement unit.  As documented on this NHTSA page, the results were as follows:

  • Overall, officers’ decisions were correct in more than 91% of the cases at the 0.08% BAC level
  • At 0.04 BAC or above, the officers’ estimates were accurate in 80 percent of cases overall

Excluded from this report were BAC levels below 0.04.

 

See FAQ Category = Police

 

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