Your rights if pulled over for DUI

Posted by on May 5, 2016 in #DUIdata | 0 comments

Your rights if pulled over for DUI

Obviously, first and foremost, I promote safe driving.  Calling an Uber or a taxi is always the best way to go if you feel impaired in any way, or think you’d be even close to a level of impairment.  However, if you are pulled over, you have rights.  And you have a right to exercise those rights.

Know your rights if police pull you over for DUI, as it can make or break your defense.

Yes, you do have rights…even if pulled over for a DUI.  Many people make their case against themselves by speaking to the cops, so here is a quick list of your rights to protect yourself:

You do NOT need to speak with the police.

No, you do NOT need to speak with the police.  You have the right to remain silent, and any and all admissions will be used against you.

The big admissions for DUI arrests answers to “How much have you had to drink tonight?” and “Are you the driver?” or “Where have you been driving from?”  That can be used against you, whether you’re truthful or not.  This also includes any answers to “have you taken any drugs?”  Most officers are not trained to evaluate Drug DUIs, and most of their investigation and findings are from your answer to this question.  You have the right to keep quiet and not incriminate yourself.  But keep in mind, if you wish to remain silent, you must say so.

You do NOT need to perform field sobriety tests.

No, you do NOT need to perform any field balance or mental tests.  With an emphasis on the NOT.  None, nada, zero.

This includes the “eyeball test” that officers usually perform while you’re seated in your car.  You have a right to NOT do any of these tests.  Keep in mind, these tests have not been truly scientifically validated, and most persons with no alcohol cannot pass these tests.  Chances are, you’re nervous and will fail all tests.  Which will absolutely be used against you for a criminal prosecution.

You do NOT need to blow into the pre-arrest breath machine.

No, you do NOT need to perform the pre-arrest, handheld breath test (although for this one, some exceptions apply, like if you are over 21 and not on DUI probation).

This is the breath test police offer you before arrest.  This test usually does not help you, as this device cannot measure your alcohol level with scientific certainty, and can only give more evidence against you for a DUI conviction.  The California Vehicle Code 23612(i) gives you the right to refuse this test, and your refusal of this pre-arrest breath test cannot be used against you in DUI trial.

If you are arrested for DUI in California, you must do either a breath or blood test.

Yes, if you are arrested for DUI in California, you must do either a breath or blood test per our implied consent law (although there has been some recent case law about this).

If you refuse this test, police will usually get a warrant and force a blood draw.  If the refusal can be proven against you, DMV will suspend for a harsher period and there can be more punishment on the criminal court side.

The big questions I get asked about being arrested for DUI in San Diego:

These are big questions I get asked about being arrested for DUI in San Diego:

  1. How do you tell Police you are refusing these questions or tests?  Simple, you can say: “I’d like to speak with my lawyer.”  Even though you don’t have a right to a lawyer for a mere traffic detention, that’s an appropriate response.  ”I’m not doing any field sobriety tests, I’m not answering any questions, and I will do either a blood or breath test after arrest (unless you chose to refuse this too).”
  2. Should I do the breath test or blood test?  While we cannot give legal advise unless you’re our client, I can say attacking breath testing in California got more difficult with the November 21, 2013 California Supreme Court decision People v. Vangelder.  In general, blood testing can be more reliable, if drawn and tested properly.  But if you have done any drugs, either prescription or non-prescription, a blood test may report those drugs where a breath test would not.  However, in general in San Diego, usually the labs will test for alcohol first, and if they get an alcohol reading of a 0.08 or more, they will generally NOT test for drugs unless the Police specifically noted something in your file about drugs.

This applies to California law.  Different state law may apply to different states obviously.

Should you or a friend/family get arrested, you may want to keep a bail bond number handy: www.AllergicToHandcuffs.com; (619) 512-4111

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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