Illinois police recently pulled over a suspected drunk driver (DUI). Why did they suspect her? She had a 15-foot tree stuck in the grill of her car.

According to police, the front airbags of the car had been deployed, presumably when the car hit the tree. Additionally, the driver smelled of alcohol and failed the field sobriety test. She was then booked with a DUI offense.

DUI and Field Sobriety Tests

Most often, police will not have a tree to alert them to a potential drunk driver. Instead, they will look for common tell-tale signs – swerving in and out of lanes, inattentiveness, or belligerent driving. If the police suspect you of driving under the influence, chances are you will be pulled over and asked to take a field sobriety test.

Field sobriety tests (FSTs), are a series of exercises designed in theory to test balance, coordination, and divided attention (the ability to do two things at once). They include 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.

Frequently, officers have already made up their minds to make an arrest when they give the FSTs and will administer them simply to merely support their assumption that the suspect will inevitably “fail.” Though The National Highway Traffic Safety Administration has created certain minimal field sobriety tests to ascertain whether a citizen is actually legally intoxicated, many officers either fail to use the tests or misuse them in the field. Contrary to what many drivers believe, FSTs are not legally required and you may decline to take them with no adverse legal consequences, whereas refusal to submit to chemical tests may have serious consequences.

A problem often seen the with procedures utilized when administering the breath test is the violation of Title 17 of the California Code of Regulations which mandates that the individual being tested be continuously observed by the officer for a minimum of 15 minutes prior to the test. This requirement can be easily overlooked by an officer eager to proceed with an arrest. Additionally, Title 17 sets forth other requirements for California DUI chemical testing and a violation of any of these leaves the BAC result open to question.

In California, you do not have the right to consult an attorney before deciding whether to submit to a field sobriety test, however, you can politely decline these tests. You are not legally required to perform these tests, which may be a good idea. An officer, being human, may have a subjective view of the tests and thus determine that you have failed even if your results were average. This evidence can then be used to help convict you of DUI. Be aware, however, that if an officer genuinely suspects that you are intoxicated, he is highly unlikely to merely walk away.

The next step might be a Preliminary Alcohol Screening (PAS) test, utilizing the breath test, which is an often used pre-arrest chemical test. It is one of the most common tests that police officers use to identify driving under the influence. It is also used post-arrest. Prior to your actual arrest, you may refuse to take a breath test. If you are concerned that your blood alcohol level may be high, you may consider taking a breath test so that there is a possibility of impeaching the results later.

In the event that you are lawfully arrested for a DUI, you are bound by law to allow the police officer to administer a chemical test to determine your BAC.

California’s “Implied Consent Law” requires you to submit to chemical testing if you are arrested for driving under the influence and the arresting officer has probable cause to believe you are driving under the influence.

Upon being arrested, you are often given a choice of blood or breath tests. Breath tests are fairly reliable, but the results can be unreliable for a variety of reasons. Breath analyzers don’t actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly.

Blood tests are the most accurate of the tests. Because a blood test is the most accurate, you should choose it if you are confident that your blood alcohol content is below the legal limit. If you give a blood sample, the sample must be preserved according to specific rules so that it is available to your attorney for independent testing and analysis later.

You cannot be forced to submit to a chemical test. However, upon refusal, your California Driver’s License will be suspended for a one-year period by the Department of Motor Vehicles, regardless of the outcome of your DUI case. You have the right to a hearing to contest this suspension and must request this hearing within ten (10) days from the date of you arrest.

Drunk Driving (DUI) Charges

Drunk driving charges are serious and carry serious consequences. While penalties will vary from case to case, here is a break-down of the sentencing guidelines and what you face if you are convicted of driving under the influence.

First DUI Conviction

For a first DUI conviction in California, a person receives:

  • Jail-time for no less than 96 hours and no more than 6 months.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • Suspension of driver’s license for six months. A court may grant a temporary restricted license. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • Depending on the circumstances of DUI, a first time DUI offender may also be required to install an Ignition Interlock Device. This will be done at the offender’s own expense.

For a second DUI conviction in California, a person receives:

  • Jail-time for no less than 90 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • Suspension of driver’s license for 1 year. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • Depending on the circumstances of DUI, a first time DUI offender may also be required to install an Ignition Interlock Device. This will be done at the offender’s own expense.

For a third DUI conviction in California, a person receives:

  • Jail-time for no less than 120 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • An offender will be considered a “habitual traffic offender” by the state for 3 years following the conviction.
  • Suspension of driver’s license for 2 years. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • An offender might be able to apply for a restricted driver’s license, but installation of an Ignition Interlock Device may be required.This will be done at the offender’s own expense.

For a fourth DUI conviction in California, a person receives:

  • Jail-time, prison or both, for no less than 180 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • An offender will be considered a “habitual traffic offender” by the state for 3 years following the conviction.
  • Suspension of driver’s license for 3 years. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • An offender might be able to apply for a restricted driver’s license, but installation of an Ignition Interlock Device may be required. This will be done at the offender’s own expense.

If you are arrested and convicted of a DUI in California, a judge will typically apply a set of minimum and maximum sentencing guidelines. A judge will also weigh the specifics of your case in addition to previous convictions.

Illegal in California

It’s important to remember that while driving in California, the following is illegal:

  • Drivers under 21 are not allowed to transport or carry unsealed beer, wine,or liquor in their vehicle when they are driving alone. Exceptions can be made for work-related driving.
  • Drivers under 21 are not allowed to drive with a blood alcohol concentration level (BAC) of .01 or higher.
  • Drivers under 21 are not allowed to consume alcohol in any form, including cough syrup, and prescription drugs.
  • Any driver, regardless of age,is not allowed to drive with a BAC of .08 or higher. This is a standard BAC measurement used by all states to establish that a driver is impaired.
  • The driver of any vehicle that requires a commercial driver’s license may not drive with with a BAC of .04 percent or higher.
  • A driver under 18 is not allowed to drive with ANY measurable blood alcohol concentration.
  • Repeat offenders are not allowed to drive with a BAC of .01 or greater.

These drunk driving laws are similar to many other DUI laws across the United States.

Working with a Criminal Defense Lawyer

If you are facing a DUI conviction, you’ll want to work with a criminal defense lawyer that handles DUI cases. Once you and your attorney have discussed the specifics of the allegations you are facing, you will be informed about the strengths and weaknesses of your case, including the risks of conviction and punishment that you face. A defense attorney will be able to negotiate a plea deal or decide to move forward with a trial, while constantly working to ensure your best interests.

The criminal defense lawyers at Daniel Perlman Law in Los Angeles will put our experience to work for you. We believe every defendant has the right to a zealous defense. We offer free initial consultations and will usually quote a flat fee that will cover all the services necessary for your case, including trial. To schedule a free consultation with one of our Los Angeles criminal defense lawyers, call 877-887-4541 or contact us by e-mail.

Daniel R. Perlman, Esq.
Law Offices of Daniel R. Perlman