What should you do if you are pulled over for a DUI? Here are some tips if you are pulled over for a DUI: - Be polite
- Decline to take any field sobriety tests (see below)—taking such tests are not required by law
- If you are under 21, do not admit that you had anything to drink
- Unless you are under 21, decline to take any handheld or portable breath test—these are not required by law
- Agree to the required chemical test (blood test if confident you are under .08%).
- Make sure your attorney calls the DMV Driver Safety Office within 10 days and demands a hearing to contest your license suspension. Click the following link to find out where your local DMV office is located: http://www.dmv.ca.gov/fo/fotocds.htm
Field Sobriety Tests Field sobriety tests (FSTs), are a series of exercises ostensibly designed to test your balance, your coordination and your ability to do two things at once. Many of these tests have been used by law enforcement. The most common are: - Standing on one leg
- Walking a line and then turning
- Following a pen or finger from side-to-side with your eyes (Nystagmus)
- The Rhomberg balance test (standing with your head tilted back and eyes closed and then indicate when 30 seconds have passed)
- The hand-pat (while standing with the left hand outstretched, palm up, you must pat the top and bottom of that hand with the other while counting “One, Two, One, Two…”)
- Touching your finger to your nose
- Touching your fingers to your thumb
- Reciting the alphabet
You are not legally required to perform these tests, and you will not suffer any adverse legal consequences if you decline to do so. These tests are designed for you to fail and give the officer more evidence to justify arresting you, so you do not have a legal incentive to comply with an officer’s request for you to perform any Field Sobriety Test.
The Standardized Field Sobriety Test (SFST) is a battery of three tests developed by the National Highway Traffic Safety Administration (NHTSA). They are administered and evaluated by the police officer to obtain validated indicators of impairment and establish probable cause for arrest. The three tests of the SFST are:
- The Horizontal Gaze Nystagmus (HGN)
- The walk-and-turn
- The one-leg stand
HGN Testing
The Horizontal Gaze Nystagmus test measures the extent that your eyes flicker back and forth while following a moving object such as a pen, a finger, or a small flashlight. The theory behind this test is that someone under the influence of alcohol will have difficulty following the object and that the eye flicker will occur early while a person who is not under the influence will be able to track the object further. However, HGN test may indicate other substances besides alcohol such as seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
Divided Attention Testing
The walk-and-turn test and one-leg stand test are “divided attention” tests. They require a person to listen to and follow instructions while performing precise physical movements. The theory behind the test is that a person under the influence of alcohol will have difficulty with tasks requiring his attention be divided between simple mental and physical exercises.
In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. During the test, the officer looks for “indicators” that would help give the officer probable cause for an arrest. These indicators include the following: - Lack of balance while listening to the instructions
- Beginning before the instructions are finished
- Stopping while walking to regain balance
- Does not touch heel-to-toe
- Uses arms to balance
- Loses balance while turning
- Taking an incorrect number of steps
For the one-leg stand test, you are instructed to stand with one foot approximately six inches off the ground and count aloud by thousands until told to put the foot down for 30 seconds. Like the walk-and-turn test, the officer, here, looks for “indicators” to justify the probable cause needed for an arrest. The indicators for the one-leg stand test include:
- Swaying while balancing
- Using arms to balance
- Hopping to maintain balance
- Putting the foot down
Both the on-leg stand and walk-and-turn tests are designed for you to fail and to support an officer’s contention that he had probable cause for an arrest. The problem with the Standardized Field Sobriety Tests is that many sober people would not be able to complete the tests without exhibiting many of these indicators. Preliminary Alcohol Screening (PAS) In addition to Field Sobriety Tests, many police agencies use a portable device to do roadside breath testing. These PAS units are hand held devices that supposedly give a very rough indication of your blood-alcohol concentration and are only to be used to help the officer determine if he has probable cause for an arrest. Unless you are under 21, you do not legally have to submit to a PAS test.
Chemical Testing
If the officer decides that he has probable cause that you were driving under the influence, he will arrest you and take you to the police station for chemical testing. Unlike the Field Sobriety Tests and PAS, chemical testing cannot be refused without serious consequences. The types of chemical testing available in California are blood test, breathalyzer, and urinalysis. If you refuse to submit to chemical testing, you may suffer the following consequences: - Your driver's license will be suspended for one year rather than four months with no possibility of a work-restricted license (two years for a second offense).
- If the prosecutor alleges a refusal in the complaint, you will be facing mandatory jail time.
- Refusing can be introduced into evidence by the prosecutor as evidence of "consciousness of guilt".
If you are sure that you are under 0.08, then choose the blood test and make sure the sample is saved. In California, the police are supposed to offer you a choice between a blood test and a breathalyzer test, so even if they forget to inform you of this choice, demand that they use the test of your choosing. Contact an Attorney If you are arrested for a DUI in California, you must contact an attorney immediately. A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. If you have been arrested for DUI, contact San Diego DUI defense attorney Michael Owens by e-mail or call (619) 291-4949 to schedule a free consultation. |
