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1. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
2. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
3. What should I do if I’m asked to take field sobriety tests?
4. Should I agree to take a chemical test? What happens if I don’t?
5. Do I have a choice of chemical tests? Which should I choose?
6. The officer never gave me a Miranda warning: Can I get my case dismissed?
7. What crimes will I be charged with?
8. Can I represent myself? What can a lawyer do for me?
9. What defenses are there in a DUI case?
10. What is the punishment for drunk driving?
11. What will it cost to get a lawyer?
12. What is a sentence “enhancement”?
13. What is a “rising BAC defense”?
14. What is “mouth alcohol”?
15. What other tips should I know to minimize my risk of being convicted of DUI/DWI?
16. How can I calculate my blood alcohol?

Question:
If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?

Answer:
You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you had one or two beers is not necessarily incriminating – it is not typically sufficient to cause intoxication – and it may explain the odor of alcohol on your breath.

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Question:
Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

Answer:
In California, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

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Question:
What should I do if I’m asked to take field sobriety tests?

Answer:
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails”. Thus, in most cases a polite refusal may be appropriate.

Recently, many states have begun following the federally – approved (National Highway Traffic Safety Administration) “standardized” field sobriety tests. These consist of a battery of three tests:

• Heel-to-Toe (also referred to as “walk-and-turn”)
• One-Leg Stand
• Horizontal Gaze Nystagmus

All other field sobriety tests are disapproved. And unlike non- standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively – that is, a numerical score is assigned according to specific errors, or “clues”.

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Question:
Should I agree to take a chemical test? What happens if I don’t?

Answer:
There are three adverse consequences to refusing to submit to a breath or blood test (or urine if neither is available or if drugs are suspected):

• Your driver’s license will be suspended for one year rather than 4-6 months; if this is a second offense, the suspension is for two years. Unlike a suspension for having over .08% blood-alcohol, there is no possibility of obtaining a work-restricted license.
• A refusal, if alleged in the complaint, carries a mandatory minimum jail sentence.
• The fact of refusing can be introduced into evidence at trial as evidence of “consciousness of guilt”. Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.

Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing.

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Question:
Do I have a choice of chemical tests? Which should I choose?

Answer:
In California, you are supposed to be given a choice of blood or breath testing. Urine testing can be required if neither blood nor breath is available, or if the officer reasonably suspects the presence of drugs. If a breath test is chosen, the officer is supposed to advise you that, because a breath sample will not be saved for later reanalysis by the defense, you are entitled to a second test of blood; many officers, however, fail to provide this information.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate is urinalysis. If you’re given a choice, choose the breath test.

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Question:
The officer never gave me a Miranda warning: Can I get my case dismissed?

Answer:
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state’s “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.

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Question:
What crimes will I be charged with?

The traditional offense is “driving under the influence of alcohol” (DUI), or in some states, “operating while intoxicated” (OWI), or “driving while intoxicated” (DWI). In recent years, however, 48 states have also enacted a second, so-called “per se” offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. California is one of those states. The defendant can even be convicted of both, but can be punished for only one.

If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.

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Question:
Can I represent myself? What can a lawyer do for me?

Answer:
You can represent yourself – although it is not a good idea. “Drunk Driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? A qualified drunk driving defense attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

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Question:
What defenses are there in a DUI case?

Answer:
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

• Driving Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
• Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
• Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
• Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may affect admissibility of the test results – as well as the license suspension imposed by the motor vehicle department.
• “Under the influence”. The officer’s observations and opinions as to intoxication can be questioned – the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Too, witnesses can testify that you appeared to be sober.
• Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness and/or the defense can hire its own forensic chemist.
• Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
• Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the driving (see question #13). Again, a number of complex physiological problems are involved here.
• Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
• License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles.

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Question:
What is the punishment for drunk driving?

Answer:
This varies from jurisdiction to jurisdiction and can become quite complex depending upon the facts of the individual case. Generally speaking, and without any “enhancements” (see #12), the table provided below should give you an idea of the penalties that can be expected. Additional punishments may include community service, ignition interlock devices, AA meetings and/or impounding of the vehicle. It is also important to note that a DUI arrest stays on your driving record for 10 years and the state DMV has estimated that you may spend upward of $5,200 on a first offense in total fines and insurance increases alone.

POSSIBLE PENALTIES & PUNISHMENTS IN CALIFORNIA:

* Treatment programs may not be required; however, the DMV will not reinstate your license without proof of completion of a treatment program.

** Your vehicle may be impounded at your expense and the court may order the forfeiture or sale of that vehicle.

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Question:
What will it cost to get a lawyer?

Answer:
This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner in a small rural community may charge only $1000; a DUI specialist with a national reputation may charge up to $15,000 or more, depending on the facts. Generally speaking, you can expect to pay $3000 to $7500 for an experienced and reputable DUI attorney to represent you in a first-offense drunk driving case, DMV license suspension hearing included. In addition, the fee may vary by such other factors as:

• Is the offense a misdemeanor or felony?
• If prior convictions are alleged, the procedures for attacking them may add to the cost.
• The fee may or may not include trial or appeals.
• Administrative license suspension procedures may also be extra.
• The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance – to be applied against hourly charges.
• Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.
• Whatever the fee quoted, you can ask for a written agreement. Make sure you understand all the terms.

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Question:
What is a sentence “enhancement”?

Answer:
California law increases the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

• A child was in the car at the time.
• The defendant was traveling 20 or 30 miles over the speed limit at the time.
• The blood-alcohol concentration (BAC) was over .20%.
• The defendant refused to submit to a chemical test.
• The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level and impose longer license suspensions).
• The existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, if special circumstances exist, murder charges.

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Question:
What is a “rising BAC defense”?

Answer:
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING – not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit – but his actual BAC AT THE TIME OF DRIVING was below.

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Question:
What is “mouth alcohol”?

Answer:
“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

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Question:
What other tips should I know to minimize my risk of being convicted of DUI/DWI?

Answer:
1. You should contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety.
2. Always be polite and respectful to the police officers. How you are perceived by a jury is extremely important.
3. Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.
4. Make a detailed list of all the events before being stopped and up to the point of being released from custody.
5. Retain an experienced DUI defense lawyer. Only an experienced DUI defense attorney will be able to spot and navigate through your favorable issues or facts and present them to a prosecutor, judge or jury.

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Question:
How can I calculate my blood alcohol?

Answer:
Showing estimated percent of alcohol in the blood by number of drinks in relation to body weight. This percent can be estimated by:

1. Counting your drinks (1 drink equals 1 ounce of 100-proof liquor, one five ounce glass of table wine or one 12-ounce bottle of regular beer).
2. Using the chart below and under number of “drinks” and opposite “body weight” find the percent of blood alcohol listed.
3. Subtracting from this number the percent of alcohol “burned up” during the time elapsed since your first drink.

DUI Possible Penalties

This figure is .015% per hour. (Example: 180 lb. man – 8 drinks in 4 hours / .167% minus (.015×4) = .107 %)

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