What should you do if you see the police’s flashing lights behind your car? It can be a stressful situation, and it’s helpful to know what to do in advance, so you’ll be prepared in case it happens.
What the law says
In California, there are two charges that could potentially apply to you if you’re pulled over for drunk driving.
One is 23152(a) and the other is 23152(b) of the California Vehicle Code. The (a) charge applies if someone is driving under the influence of drugs, alcohol, or a combination of the two. This charge isn’t tied to a particular blood alcohol level. Anyone that’s driving badly and has alchohol or drugs in his or her system is subject to this DUI (driving under the influence) charge.
The (b) charge is tied to a specific blood alcohol level—in the state of California, it’s .08% or higher. This charge doesn’t necessarily involve any bad driving—for example, you could be pulled over because your headlights aren’t working properly, and if the police officer smells alcohol on your breath and checks your levels, you could be charged with DUI.
Consequences of these DUI charges
Both of these charges carry equal weight in terms of punishments and points on your permanent record. It’s possible to be charged with both DUI counts, but they will eventually be combined and just one DUI charge will appear on your record.
California’s implied consent law
There’s a state law that indicates that if you apply for a driver’s license, you implicitly give your consent to submit to chemical tests if you are arrested for driving under the influence.
What to do?
Now, when you get pulled over, it’s important that you stay as calm as you can and pull over to the side of the road slowly and safely. When you’re pulled over during a traffic stop, you’re considered “detained”—which means that you’re not free to go, but you’re not in custody. Since you’re not in official police custody, the officer is not required to read you your Miranda rights, but they do apply. Your Fifth Amendment privilege against self-incrimination also applies, though police officers won’t ever advise you of these rights during a traffic stop. It’s solely up to you to be proactive about protecting yourself.
The Spanish Inquisition begins…
Most police officers will immediately begin asking incriminating questions like, “have you been drinking, and how much? “do you feel drunk?” “did you notice that your breath smells like alcohol?” You don’t have to answer any of these questions. It’s completely optional.
You are required to provide your driver’s license, registration, and proof of insurance, but answering questions isn’t required.
Field Sobriety Tests are Extremely Subjective
The officer will likely then ask you to do some field sobriety tests, which are also optional. California law does not require people who are stopped by police to perform these tests. Consider politely declining doing them because they are very subjectively interpreted, and any little deviation from perfection is often considered a sign of intoxication. As calmly as you can, explain that the law doesn’t require you to do them.
Next Up: Chemical Tests
Then the police officer will move on to the chemical test part. The first stage is a roadside breath test called a PAS (preliminary alcohol screening). If you’re currently on probation for a DUI conviction or if you’re under 21, you will be required to do this test.
But if you’re not on probation and you’re over 21, consider refusing the test. If the test shows that your blood alcohol level is over .08%, the officer will have enough probable cause to be able to arrest you.
If the officer doesn’t have field sobriety test or chemical test results, he or she will have a much harder time coming up with a probable cause to be able to arrest you.
If an officer arrests you without having a firm probable cause, any subsequent chemical tests may be excluded by the court in your trial.
If you are arrested, then the law requires that you submit to a chemical test. You may choose between breath and blood. Breath tests have a larger margin of error that may work in your favor in court, but breath is impossible to preserve. Blood, on the other hand, may be retested by an independent laboratory if you fear the government messed up the test.
Whatever you do, make sure you respect the 10-day window!!!
If you are arrested and the chemical test has indicated your blood alcohol level to be above the legal limit, or the officer suspects that the blood test will come back as .08% or above, your driver’s license will be revoked immediately. You’ll receive a temporary 30-day license, and after 30 days, your license will be suspended for 4 months by the DMV.
Warning: you’ll only have 10 days from the date of your arrest to request a hearing with the DMV to challenge the automatic suspension of your license. If you miss that window, you’re completely out of luck. You’ll just have to wait to drive again in 4 months.
As soon as possible after you’re arrested, make sure you call the best lawyer in the Upland, California area—Law Offices of Torrence L. Howell. Your case will be given top priority, and Law Offices of Torrence L. Howell will do everything in his power to defend you. He can represent you in all DUI court proceedings, including DMV suspension hearings, so make sure you call 909-920-0908 immediately if you’ve been arrested for DUI in Southern California.
