your legal rights & dui

1. you have the right to probable cause for police checks.

Your actions must warrant substantial cause for suspicion. In California, the detaining police officer must identify and substantiate specific observations or reason(s) to pull you over and check you. When testifying in DUI Jury Trials, San Diego police officers commonly state they observed the DUI -DWI defendant speeding, driving too slowly, making unsafe or erratic lane changes and illegal or overly wide turns, abrupt and jerky stops, weaving, tailgating, driving the wrong way on one way streets or in opposing traffic lanes, swerving, lane straddling, and narrowly missing a collision or other road hazard as probable cause for the traffic stop.

In many DUI court cases, an experienced defense lawyer can achieve a motion for suppression of evidence ( such as chemical test results, possession of controlled substances, open containers, incriminating statements, etc.) if the arrest was preceded by a traffic stop that lacked legitimate and justifiable probable cause.

Sobriety checkpoints in San Diego County are exempt and not subject to probable cause law, allowing police officers to set up roadblocks in the interest of "public safety". The law states the police must implement a random method of selection for "checking" motorists for impairment, such as every fourth car, or all cars merging from the right lane, etc. to ensure the stops are nondiscriminatory in nature (ie; not based on race, age of driver, make of vehicle, or other prejudice).

San Diego Sobriety Checkpoints, or DUI Roadblocks, must be preceded by advanced public notice, such as a press release or media broadcast, must not unreasonably impede traffic, inconvenience or detain drivers at length, or endanger safety. By law, the checkpoints must provide an alternate route, or turnaround lane, for motorists to opt out and avoid the roadblock.

2. you have the right to remain silent. do so!

EXERCISE THIS RIGHT! DON'T PROVIDE UNNECESSARY INFORMATION TO BE USED AGAINST YOU! Always refrain from answering any question or volunteering information that does not pertain to your identity, ( name, date of birth, address) your vehicle registration, car insurance, and legal right to drive. This is the only information the law requires you to provide to police officers or any other person involved in your arrest, chemical testing, or incarceration, including phlebotomists.

California laws DO require you to identify yourself, verify your current address, and provide documents concerning your vehicle registration, proof of insurance, and drivers license...but that's IT!

Exercise your right to remain silent, as anything you say, other than what is required by law, will inevitably be used against you if you are charged with DUI. The less you say, the better.

Always be polite and courteous, but inform the officer that you choose to not answer any questions other what is required by law.

You are NOT required to disclose where you have been, where you are going, or what you have been doing...including whether you have consumed any alcohol and or drugs. Nor do you need to disclose your occupation, your living habits, why you are driving, what you have eaten, or any other question not relating to your name, address, vehicle registration, insurance, and drivers license.

If you have stated you do not wish to provide more information than is required by law, and questioning persists, you may choose to respond by asking "am I free to leave now?". If you are still questioned further, you might respond "would you like to see my drivers license again?", or "would you like to see my vehicle registration again?", etc.

Don't make the mistake of trying to talk your way out of an arrest. It won't work, and you'll hate yourself later.

The cops aren't not your buddies, regardless of how understanding or sympathetic they might seem, REMAIN SILENT! You don't need to lie, and you don't need to not lie. Don't say anything. It's your right.

Remember to always be cooperative and respectful, yet firmly reserved. Don't be fooled into thinking that if you just "explain" you only had "two" drinks, the officer will give you a break because you were "honest" and a "nice guy". They stopped you for a reason, and if they even detect you may have had a drink, they'll want to take you to jail...that's their job.

3. you have the right to counsel. request to speak to a lawyer

ASK TO SPEAK TO AN ATTORNEY AS SOON AS POSSIBLE! "You have the right to speak to an attorney, and to have an attorney present during questioning. If you cannot afford a lawyer, one will be appointed for you."

If you are arrested and taken into custody on DUI - Drunk Driving charges by San Diego police, your right to speak to a lawyer will not be granted until AFTER you submit to the mandatory chemical tests administered at the Police Station or medical facility where you are transported. Failure to submit to a blood or breath alcohol test, or "chemical test refusal", once in custody, will enact an automatic forfeiture / suspension of your driver's license under California's "implied consent" laws. Implied consent does not apply to roadside field sobriety tests or PAS; Preliminary Alcohol Screening (a handheld portable breathalyzer device administered at roadside during a police traffic stop).

Denial of access to attorney counsel prior to submitting potentially incriminating evidence ( chemical - BAC test results ) in criminal arrest cases applies in San Diego DUI - DWI - Drunk Driving cases almost exclusively, sometimes referred to as the "DUI exception to the Constitution". Minors under 21 years of age MUST comply with all tests, including the field sobriety tests and the handheld breathalyzer tests ( PAS ) administered roadside under California's Zero Tolerance laws.

Once you have submitted to a chemical ( blood or breath alcohol ) test, you will then be allowed a phone call to contact an attorney, bail bondsman, or family member to act on your behalf.

4. you have the right to refuse roadside field sobriety tests

DON'T CONSENT TO ROADSIDE GYMNASTICS AND ALPHABET GAMES! You have the right to decline eye coordination ( horizontal gaze nystagmus ) tests, balance and performance ( one leg stand, walk and turn ) tests, and should politely decline to recite the alphabet backwards or in any other sequence. You are not legally required to count numbers, touch your nose, stare at a pen or pencil, or hop on one foot.

Reliability and accuracy of field sobriety tests, or sfst's, are considered dubious and notwithstanding in a court of law. Submitting to roadside acrobatic exercises will not help you avoid arrest or challenge your DUI case. Always decline in a manner that is respectful and noncombative. You might state "I prefer not to, thank you".

5. you have the right to refuse portable breath tests at roadside

DON'T CONSENT TO BLOW INTO A PORTABLE ALCOHOL SCREENING DEVICE! BE SURE TO NOT CONFUSE THE PAS ( PRELIMINARY ALCOHOL SCREENING ) DEVICE, A PORTABLE HANDHELD BREATHALYZER ADMINISTERED AT ROADSIDE, WITH THE MANDATORY SUBMISSION TO CHEMICAL TESTS REQUESTED AT THE POLICE STATION OR MEDICAL FACILITY AFTER YOU HAVE BEEN TAKEN INTO CUSTODY.

If you are asked to take a roadside breathalyzer test, our San Diego DUI Lawyers recommend declining the optional test. If you are then told you will be taken into custody if you do not submit to the test, request to take the test AT THE STATION. "Refusal to Submit to a Chemical Test" is a DUI Penalty Enhancement. Under San Diego's implied consent laws for all licensed drivers, refusal to submit to mandatory testing will result in an automatic suspension/forfeiture of your Drivers License and increased penalties and fines.

An unlicensed driver with a revoked or suspended drivers license or prior DUI conviction might think they have nothing to lose by refusing a chemical test. San Diego Police often take "forced blood draws". It is also lawful for police in California to take blood samples without consent from incapacitated, unconscious and deceased motorists when an accident is involved.

6. you have the right to post bail

YOU ARE ENTITLED TO A BAIL HEARING IF YOU ARE IN JAIL FOR DUI You have the right to reasonable bail set by the Court, proportionate to the severity of the crime, and commensurate with your ties to the community, criminal record, and presumed "flight risk".

California DUI convictions, whether a first or multiple drunk driving offense, carry a mandatory minimum of 48 hours incarceration.

If you are facing first time charges, with no outstanding warrants, prior convictions, or failures to appear, you could be released on your own recognizance ( OR ). You are entitled to appear before a magistrate of the court for a bail hearing within three business days, or 72 hours, from the time of your arrest, excluding weekends and court holidays.

7. you have the right to a speedy, fair court trial

YOU ARE CONSIDERED INNOCENT UNLESS PROVEN GUILTY BEYOND A REASONABLE DOUBT You have the right to review the charges, and be provided a copy of the prosecution's case against you. You have the right to an attorney for your defense, and if you cannot afford a lawyer, the court will appoint one for you.

8. you have the right to subpoena & cross examine witnesses

YOU HAVE THE RIGHT TO TAKE THE STAND AND TESTIFY ON YOUR OWN BEHALF You have the right to present evidence and subpoena, question, confront and cross examine witnesses using the power of the Court. If you have not retained an attorney, the court will grant you you a continuance to retain defense counsel. You have the right to plead the Fifth Amendment and refuse to testify at your hearing. You have the right to have your case heard by a Jury, and to plead not guilty, guilty, or nolo contendre, which is "no contest" and absolves you have any civil liability or law suit arising from your crime if it is charged as an infraction. In felony DUI cases, you are entitled to a preliminary hearing within ten court days following the date of your plea or arraignment, whichever is later.