With the holiday weekend at hand, law enforcement agencies are utilizing all the resources at their disposal to curtail the negative effects of Driving Under the Influence of both drugs and alcohol. DUI cases are amongst the highest volume of cases filed. With the recent enactment of Proposition 64, law enforcement agencies are looking to crack down on marijuana DUI cases. The following is an outline of the progression of DUI cases and addresses some of the most frequently asked questions that people have.
This is in no way intended to constitute legal advice for any specific case. Most attorneys will offer a free consultation to discuss your case specifically. But this overview can be very beneficial background knowledge as you enjoy your holiday festivities.
DUI cases are usually looked at in three stages: the stop, the arrest, and the chemical test.
INITIAL OBSERVATIONS AND STOP
Absent unusual circumstances, law enforcement officers need a reason to stop you. Law enforcement officers are required to be able to articulate why they stopped you. Depending on who you speak to, this can be referred to as probable cause, reasonable suspicion, articulable suspicion, or simply a justification. In California, the Penal Code, Vehicle Code, and Health and Safety Code are the most relied upon in criminal cases. However, there are a lot more local, state, and federal justifications for a stop. If a stop cannot be justified, then a motion to exclude everything after the stop should be filed with the court. At a stop, you are required to present your identification, registration, and proof of insurance.
There is an exception for checkpoints. The courts have consistently ruled that checkpoints serve an important public safety interest and have upheld the constitutionality of checkpoints. The courts have also set very specific requirements for checkpoints. If the requirements have not been complied with, then all evidence that is obtained because of the checkpoint should be excluded.
OBSERVATIONS AFTER A STOP
Law enforcement officers are trained to continuously be on the lookout for evidence of criminal activity. Things as subtle as body language, movement, speaking patterns, odors, perspiration, etc. are consistently referred to in the testimony of law enforcement officers. Their training and expertise carries a lot of weight in court proceedings. Law enforcement officers are also trained on specific questions to ask that elicit information that can be detrimental to you. Asking where you’re coming from, what you ate, and the times of your activities are common questions that present trouble for defendants in DUI cases. Aside from presenting your identification, registration, and proof of insurance, there is no legal requirement to answer any questions asked by law enforcement. There are certain exceptions for juveniles and others with specific legal orders.
On this note, many people fail what is commonly referred to as the “attitude test.” Many encounters with law enforcement are escalated because of attitudes; both on the part of law enforcement, and the citizens that they encounter. You can respectfully refuse to participate in questioning by either remaining silent, or by telling the officer, “I respectfully exercise my right to remain silent.” There is no need to lecture the police officers on their duties, your rights, or how they had no right to stop you. If you feel you are being mistreated, you can ask the officer for a supervisor to report to the scene. Do not become combative, insulting, or unnecessarily delay the process. Ending the encounter quickly is in the best interest of you and law enforcement officers.
FIELD SOBRIETY TESTS
If a law enforcement officer develops a suspicion that you have been driving under the influence of drugs and/or alcohol, then the officer may ask you to participate in Field Sobriety Tests. These tests include, but are not limited to: walk-and-turn, one leg stand, HGN (Horizontal Gaze Nystagmus), finger to nose, and the Romberg test. The officers are trained and tested on the implementation and observations during these tests. Most attorneys, myself included, advise their clients NOT to participate in these Field Sobriety Tests. The tests are heavily criticized and rarely present evidence that is favorable to an accused. The tests are completely voluntary and there is no legal requirement that you participate in the tests. If you do not wish to participate in the Field Sobriety Tests, simply tell the officer, “I respectfully refuse to participate in ANY field sobriety testing.” (note the continued use of the prelude: “I respectfully…” it goes a long way!)
The Preliminary Alcohol Screen (PAS) is a handheld device that officers use during DUI investigations. The officers will ask you to blow into this device and a numerical value will appear that indicates your estimated Blood Alcohol Concentration (BAC). Contrary to popular belief, this is a field sobriety test and is NOT what is commonly referred to as a chemical test (discussed below). Using the PAS device is completely voluntary, just like the rest of the Field Sobriety Tests, and participation is not advised.
If an officer develops probable cause that you have been driving under the influence of drugs and/or alcohol, then the officer will place you under arrest. Usually, the officer will tell you that you are under arrest, advise you of your Miranda rights (finally!), and will ask you to participate in a chemical test. If the officer is placing you under arrest for a DUI of alcohol then you will have a choice between a blood or a breath test. Breath tests cannot be preserved or re-tested, so most attorneys (myself included) advise their clients to do a blood test. For drug DUIs, there may be a choice between a blood or urine test.
The chemical test is a mandatory test. If you refuse to take the test, there are additional penalties in court AND the DMV can automatically suspend your license.
Interpretation and analysis of the chemical test results require both legal and scientific expertise. This is one of the MANY reasons that seeking an attorney as soon as possible is highly suggested.
If you have been arrested or charged with a DUI, you should consult an attorney immediately. Facts that may seem inconsequential can have large legal significance. DUI arrests result in legal proceedings in court and administrative proceedings with the DMV. There are also strict timelines that must be adhered to in order to preserve your rights.
Many times, people ask if they should hire an attorney, or use the services of the Public Defender. The common misperception is that a retained attorney will not have a significant impact on the outcome of a DUI case. Having been an employee of the Public Defender’s Office, I know that the office is staffed with incredible, highly qualified, and very skilled attorneys. Some of the best attorneys and the best legal minds in the world are Public Defenders. That being said, the Public Defender’s Office cannot assist someone with a case until the office has been appointed. Usually that occurs at the arraignment after criminal proceedings have commenced. Private attorneys can enlist the assistance of investigators and support staff as soon as they are retained. Private attorneys can negotiate with the issuing departments of the prosecutorial offices in hopes of avoiding charges ever being filed. Any competent legal advisor will tell you that the sooner you act the better. Also, the Public Defender’s Office does not handle DMV administrative proceedings. Usually this happens before the criminal proceedings begin.
Hiring the right DUI attorney is never a bad investment!