FAQ - California DUI Attorney

Do I have a right to speak to a California DUI attorney if I am contacted or stopped by a California DUI police officer?
No.

In California, you have no right to consult with a California DUI Lawyer upon being stopped, contacted, arrested or before deciding whether to submit to chemical testing (choice of required California DUI blood test or implied consent California DUI breath test at the station or jail).

You do have the right to remain silent (even if the California DUI officer does not tell you so).

You may polite refuse to speak to the California DUI officer.

You are only required to provide the California DUI officer with your license, registration and insurance (upon request).

You should be given the opportunity to contact a California DUI attorney after completion of the California DUI paperwork.

Do I politely refuse if asked to take California DUI field sobriety tests?
Yes.

In California, there are a number of voluntary California DUI field sobriety tests (FSTs) aka acrobatics or gymnastics, including heel-to-toe, finger-to-nose, one-leg stand, eye test aka horizontal gaze nystagmus test, alphabet, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. (These are different from California's required, implied consent test - blood or breath test.)

Most California DUI officers will try to use a set battery of these subjective and manipulative tests and begin without fairly telling the suspect these tests are optional or voluntary.

Unlike California's implied consent chemical test, where refusal to submit may have serious consequences, you are not legally required to take any of the California DUI Field Sobriety Tests (FSTs) including the hand-held (Preliminary Alcohol Screening or PAS) blow test gadget in the field which is by statute voluntary.

California DUI officers usually make up their minds to arrest when they give the California DUI FSTs; the California DUI tests are simply additional California DUI evidence, which the suspect usually "fails".

A polite refusal to perform these California DUI acrobatics is usually wise. http://www.sandiegodrunkdrivingattorney.net/ttips.html

Why did the California DUI officer try to get me to follow a penlight with my eyes to the left and right?

This is the "horizontal gaze nystagmus" test, a huge development in California DUI cases.

The California DUI officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is a medical term for a distinctive eye oscillation). If this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. In reality, it only tests for some presence of alcohol.

The smoothness of the eye's tracking the penlight (or finger or pencil) is a factor, as is the type of jerking when the eye is as far to the side as it can go. There are numerous non-alcohol explanations for same or similar symptoms.

This California DUI field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the medical community does not accept the test, this DUI test is not admissible as evidence in many states.

California allows the pseudo/unscientific test as evidence to show presence of alcohol. It is widely used by California DUI police.

San County County DUI Law Center believes it is one of the least reliable California DUI tests and may be successful in discrediting this California DUI test.

What is a California DUI officer looking for during the initial detention or contact?
Purported signs of intoxication taught at pro-prosecution California DUI police academies include:
1. Flushed face
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Slurred speech
5. Fumbling with wallet trying to get license
6. Failure to comprehend the officer's questions
7. Staggering when exiting vehicle
8. Swaying/instability on feet
9. Leaning on car for support
10. Combative, argumentative, jovial or other "inappropriate" attitude
11. Soiled, rumpled, disorderly clothing
12. Stumbling while walking
13. Disorientation as to time and place
14. Inability to follow directions
There are many non-alcohol reasons which can fairly explain the above purported signs.

If I refuse to take a California DUI blood or breath test, is the consequence a 12 to 24 month driver's license suspension?
Yes. There are potential, major California DUI effects:
1. Your driver's license could be suspended for a period of twelve to twenty-four months. (This may be true even if you are found not guilty of the California DUI charge.)
2. The fact of refusal to submit to a California DUI blood or breath test can be introduced as "consciousness of guilt" in your California DUI court case.
3. Your California DUI lawyer then must offer other reasons for the purported refusal.
4. Even though you refuse, the California DUI officer may perform a forced blood draw and use those California DUI blood test results against you. Your California DUI attorney then must defend both: a) the refusal and b) the blood test results.

Do I have a choice of California DUI chemical tests?
Yes. When a person is arrested in California for DUI, he or she is supposed to be given a choice of a breath or a blood test. The officer is required by law to perform the California DUI test one chooses.

Can I represent myself? What can a California DUI attorney do for me?
You cannot really competently represent yourself in these extremely complicated cases(except in very unusual circumstances and only upon special application and sufficiently supported by a working knowledge of California DUI law).

Why? Because: "A person who represents himself or herself has a fool for a lawyer."

California DUI a specialized area of law with increasingly harsh California DUI consequences. There are many complex procedural, evidentiary, constitutional, sentencing and administrative license California DUI issues.

An experienced California DUI attorney can review the case for California DUI defects, suppress California DUI evidence, compel discovery of such California DUI items as calibration / maintenance records for the California DUI breath machine, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for any California DUI trial, contest the California DMV administrative per se license suspension, and otherwise challenge one's California DUI case in many possible ways.

California DUI cases are different so it's important that California residents contact a California DUI attorney as soon as possible.

What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus area. If mouth alcohol is present during a California DUI breath test, then the California DUI results will be falsely high.

Mouth alcohol can be created or caused in many ways: Regurgitation of Gas, belching, burping, hiccuping, re-ingestion of alcohol, or vomiting within 15 minutes before taking the California DUI test could bring contaminated vapor from alcoholic beverages still in the stomach up into the mouth and/or throat area. Dental bridges and dental caps may trap alcohol. Chewing tobacco or gum may trap tiny or micro particles of alcohol. http://www.sandiegodrunkdrivingattorney.net/Things-other-than-alcohol.html A chronic "reflux" condition from gastric disorder or a hiatal hernia may cause elevated California DUI BAC readings.


What possible defenses are there in California DUI & DMV cases?
Possible California DUI / DMV defenses in a given California drunk driving case are almost limitless due to the complexities of the offense and must be determined only by one's experienced California DUI / DMV defense attorney.

California DUI / DMV defenses may include but are not limited to the following:
1. Driving Issues: Impairment is insufficient. The California DUI prosecution must also prove that the person was actually driving. This may be difficult in may cases including but not limited to accidents when the officer arrives after driving has completed, there are no witnesses as to who was the driver of the vehicle, e.g.
2. Lack of Probable Cause: California DUI evidence will be suppressed if the California DUI officer did not have legal and sufficient/competent factual cause to (a) stop or contact, (b) detain, and/or (c) arrest.
3. Breath Test Defenses
4. Blood Test Defenses
5. California DMV Defenses
6. Other California Defenses

What are California DUI police looking for when fishing for drunk drivers on California's roads?
Always drive carefully. Stay off the cell phone. Leave the CD player alone.

The following is a list of purported signs or pseudo-"symptoms" (in descending order of purported probability) that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
1. Turning with a wide radius
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off
While speeding is not a symptom of a California DUI, it leads to many traffic stops and may result in a California DUI case. Many California Drunk Driving officers, however, note that they will only stop you for speeding if you are ten or more miles per hour over the posted limit. Most California DUI reports so note. If you have been arrested for drunk driving in California, you have a chance to complete a report while it's fresh in your mind today at www.SanDiegoDrunkDrivingAttorney.net/survey.