Perhaps the most common question I receive about DUI’s is what to do if your stopped? Many believe there are magic bullets that will prevent them from being charged. Clearly, short of drinking and driving in the first place, the best way I can respond to such questions is to inform people of the rights and responsibilities in such situations. Most people have no idea of what their rights are and therefore they do not properly exercise them.
Since DUI in California is one of the most technical areas of the law, I will try to address the procedures, rights and issues from when one is stopped through the arrest itself. It goes without saying that this is just a cursory review and does not encompass all of the rights, details and issues that may arise.
Although drivers are sometimes stopped for “erratic” driving or “straddling lanes,” often one is pulled over for a minor traffic infraction. This usually involves an improper lane change, speeding, red light or some other traffic violation. The officer needs probable cause prior to initiating the stop.
Everyone is aware that the officer will ask for license and registration and that one must present that to the officer. But depending on the time of day, the location and facts, the officer may believe the driver was drinking and proceed to ask questions like: “where are you going?” “where were you coming from” and “did you have anything drink?" It is at this point that people are not aware of what they are or are not required to do.
In California, you are not required to make any statements to the police. Short of presenting your license and vehicle information, you are not required to answer any of the above questions or make any other statements. Often, police are waiting for incriminating statements from the driver in order to justify the administration of field sobriety tests (“FST’s”). For example, if a driver responds by saying “yes officer, I had a few beers” then there is cause already to have the driver exit the vehicle and request the FST’s. On the other hand, if a driver politely refuses to make any statements the officer will have to justify cause from his observations (e.g. odor of alcohol, bloodshot eyes, erratic driving etc..) and other facts as to the suspicion of drinking. All of which are considerably less reliable and accurate than incriminating statements made by the driver himself. In short, one is well within their rights to politely refuse answering any questions and let the officer proceed without any such information.
Field Sobriety/Preliminary Alcohol Screening Tests
If an officer has established cause to detain for suspicion of DUI, he will generally ask the driver to exit the vehicle and perform a variety of FST’s. These range from the “one-leg stand” ; the “walk and turn” test; the horizontal gaze nystagmus (following the finger with your eyes).
The first and most important issue to realize here is that there is no statutory requirement to submit to FST’s in California. Simply put, you are not required to submit to such tests and you may politely refuse. There are no enhanced penalties for refusing the FST’s and although case law is unsettled in this area, defense counsel will generally be successful in suppressing the prosecutions evidence of a refusal to submit to such FST’s should the matter proceed to trial.
The officer may also ask for the driver to blow into a Preliminary Alcohol Screening device (“PAS”). This is a small pocket size device generally administered at the scene of the stop to determine if there is alcohol in the breath. There is no statutory authority requiring a driver to submit to a PAS test if he/she is not on probation for a prior DUI and is 21 years of age or older (drivers under the age of 21 are required to submit to the PAS test or lose their license for a year if they refuse. The various legal issues facing these under age drivers will not be addressed herein). In fact, the law specifically states the officer will advise the driver that such a test is not required and that one does not have to take it. Of course, if a driver does submit to a PAS test and it reads .08 or above, the officer will have cause to believe you were driving under the influence and will take you to the station for further chemical testing.
So what does this all mean? That one doesn’t have to submit to any tests at all and wont be charged with a DUI? No!…in Part II, we will look at what happens from this point on. What chemical tests will be required at the police station; the consequences of refusing those tests; as well as the procedures and penalties for a DUI in court as well as with the Department of Motor Vehicles.