by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction.
Today’s episode will focus on your legal rights in California when a police officer suspects you of driving under the influence of alcohol—the last of a three-part series on your rights when you get pulled over. Here are a few tips to avoid a DUI (driving under the influence) conviction in California.
First, the most effective way to avoid a DUI conviction is simply not to drink and drive. If you have any doubt as to whether you are OK to drive, don’t. Take the bus, call a cab, or call a friend. If you drive drunk, you will lose, at best, your license. At worst, you will lose your own life, and possibly take the lives of others.
Second, remember to be polite to police officers. You gain nothing by being belligerent.
Third, obey officers’ commands. Officers may order you to get out of the car, and refusing to do so can get you arrested. As I mentioned in the first episode, you do not have to speak to the officer. But, you must get out of the car and present your license and registration.
If the officer has noticed signs of intoxication such as weaving across lanes or alcohol on your breath, the officer will likely want to conduct field sobriety tests on you. Field sobriety tests are coordination exercises that are very difficult to perform properly if you are under the influence of alcohol. They range from simply following a light with your eyes to standing on one leg for a short time. The officer will be looking for signs of intoxication.
But, here’s the tip: you are not required to submit to field sobriety tests. You may simply tell the officer that you do not wish to participate. You are not required to explain why. But, your refusal to take the tests can give an officer one more reason to arrest you. Also, your refusal can be used against you in court. This is different from your choice to remain silent when an officer asks you questions. That cannot be used against you in court. But, your choice to refuse to participate in field sobriety tests can.
When choosing whether you should take the tests, here are few things you should know. First, the tests are designed to spot signs of physical intoxication. If you have had nothing to drink, taking the tests is probably a good idea. You are likely to perform them well, and the officer will feel comfortable letting you go because you are not drunk and are not a danger to yourself and other drivers.
But, field sobriety tests are not always accurate. Some tests are naturally difficult for people to complete when totally sober. If you perform poorly for some reason other than alcohol, it will still appear to the officer that you are drunk. Officers in California are trained to identify the mistakes you make, not necessarily to identify the things you do well.
If you have been stupid enough to drink and drive, then taking the field sobriety tests will only provide more evidence against you for when you are arrested and charged with DUI. So, don't take them.
Next, let’s discuss alcohol testing. In California, you are required to submit to either a blood or breath test for alcohol. Officers are technically required to inform you that you may choose between the two tests, but they rarely do. If you refuse to take one of these tests, you will likely lose your license for a year, even if you are completely sober.
The officer might ask you to take a breath test immediately, but the test is merely a preliminary alcohol screening, and is not the breath test you are required to take. You may refuse to take this breath test without losing your license. In fact, the preliminary alcohol screening device is not very accurate for a variety of reasons. If you have had anything to drink, it is best not to take this test. Just be sure to tell the officer that you would like to refuse this preliminary screening test only and that you will submit to a blood or breath test at a police station.
At this point, the officer will likely arrest you if you have showed any signs of intoxication. After being arrested, the officer will take you to a police station where you must then submit to a breath or blood test.
There is no universal advice about whether to choose the blood test or the breath test. But, here are a few things to consider:
A blood test is more accurate, and the blood sample can be retested for even greater accuracy. But, submitting to a blood test means that a blood sample must be drawn. If you are nervous around needles, do not take the blood test. Also, taking a blood sample can take a long time, especially if the police have to wait to find a technician or a nurse who is licensed to take your blood. A breath test is much faster and less intrusive. Rather than giving a blood sample, you just blow into a machine. But remember, drinking and driving is illegal and stupid.
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.
You can send questions and comments to firstname.lastname@example.org. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
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