Did you know:
- Law enforcement cannot stop your vehicle based on a mere suspicion of illegal behavior.
A law enforcement officer must have probable cause in order to justify the stop of a motorist. This means there must be a legitimate and legal reason for stopping you such as: commission of a traffic violation, a disabled vehicle, an accident, or a lawfully organized sobriety checkpoint. Illegal stops are challenged in the criminal court and can result in the dismissal of your case.
- If law enforcement stops your vehicle without a legitimate and lawful reason, it is possible to have your entire case dismissed.
Under the 4th Amendment of the United States Constitution, you have the right to be free from unreasonable searches and seizures by the government. When an officer stops a driver on the road, the stop is considered a warrantless seizure. If defense counsel seeks a dismissal of your case based on warrantless seizure, the prosecutor must then prove to the court that the seizure was legally justified and lawful. This is usually done at a hearing called a Motion to Suppress Hearing. If the prosecutor cannot prove the lawfulness of the stop at the hearing, the evidence obtained as a result of the unlawful seizure is thrown out of court and the case is usually dismissed.
- You have the right to refuse the roadside breath test known as the PAS (Preliminary Alcohol Screening) test.
The PAS test is a Field Sobriety Test (FST) used by law enforcement officers as an “investigative tool,” typically used before you are arrested, to tell them if alcohol is present in your system. The device used is a little, hand-held black box that a person blows into to determine presence of alcohol in the blood. The device will show a number that presumes a true blood alcohol content (BAC). The test result can be inaccurate for many, many reasons. For this reason, a person may legally refuse the PAS test. Yet, law enforcement rarely informs a driver that they may refuse this test. Despite problems with accuracy the PAS test result is often be used against a person to support a conviction. Note: In a few situations, such as a rising blood alcohol defense (when there is recent drinking), this test result can help your defense.
- REFUSAL – A driver does not have the right to refused breath or blood test after being arrested for DUI.
Under California’s implied consent law, when you obtain a California Driver’s License, you consent to provide a chemical test in the form of a breath or blood test, and in some cases, a urine test, when you are arrested under suspicion of drunk driving. You can refuse to perform these tests, but failing to perform them (you must be given a choice of two), will result in an automatic suspension of your driver’s license and additional penalties in court. Note: the PAS (Preliminary Alcohol Screening test) is NOT included in this requirement and may be refused.
- You have the right to avoid a Sobriety Checkpoint.
It is absolutely legal for you to avoid a Sobriety Checkpoint so long as you do not break the law in order to do so. For example, if you commit an illegal u-turn in order to avoid a checkpoint, you will likely be stopped because of the traffic violation. But, if you turn around legally, or take another road for purposes of avoiding the checkpoint, it is absolutely within your legal rights to do so. Law enforcement cannot stop you based on this avoidance.
- After you have been arrested, you have the right to retain an attorney.
If you cannot afford to hire an attorney, you will be provided with a Public Defender when you appear in court for your arraignment. Note: Your right to an attorney does not mean that you can refuse a chemical test until you have spoken with your attorney.
- You do not have to pay for bail to be released from custody for a misdemeanor DUI arrest.
When a person is arrested for DUI, it is the policy of law enforcement to hold you in custody for up to 8 hours for a standard first DUI offense, and up to 12 hours if you are extremely intoxicated. The arrested person will be released thereafter without having to post bail.
- You have the right to a DMV hearing to challenge you license suspension SO LONG AS the hearing request is made within 10 days following your arrest.
- You may continue to drive after your 30-day temporary license expires.
In order to secure your privilege to drive from DMV, you must have requested the administrative hearing to contest the suspension within 10 days of your arrest AND request a “stay” of the suspension on your driver’s license. DMV will then send you a new temporary license that can be valid pending the proceedings against you. There are no restrictions on the temporary license.
- You have the right to have your DUI expunged or dismissed from your record.
A person convicted of a misdemeanor DUI, or a felony DUI that has been reduced to a misdemeanor, has the right to apply for an expungement after probation has ended. Note: an expungement does not seal the record from view, but does allow you to answer “no” on certain employment applications that ask, “Have you ever been convicted of a crime?” Consult your criminal attorney for advice regarding eligibility and restrictions.