Frequently Asked Questions
Have you have been charged with a DUI? Is you license in jeopardy because of a DUI or a medical impairment such as age, diabetes or epilepsy? This DUI FAQ answers some of the more basic questions that people usually have when they are arrested.
The site breaks down into three categories:
1. The Law. Check out the categories section on the right side of the site to navigate to any DUI topic that you want.
2. Videos. We are building a library of up to 30 videos covering every area of DUI law in depth. These videos are for laypersons.
3. Links and Resources. Contains everything from the 10 Day Hearing Request form to interactive DMV tests and the most important DMV links you will need to deal with your DUI.
4. Talk back to us. We are interested in hearing your comments. You can reach us on our Contact page.
The good news is that things may not be as bad as you think. However, you must act promptly and intelligently in order to preserve your rights, and your license.
Do I have to be under the influence of alcohol in order to be charged with a DUI?
No. Under Vehicle Code §23152(b) you can be charged with a DUI if you register a blood alcohol content of 0.08% or higher. Not all people are “under the influence” at .08. This is called a “per se” law. Some people have a higher tolerance for alcohol. Their driving is not impaired even with a BAC of 0.08% or higher. Some people give false readings when their breath is tested. People have registered 0.08% or higher after eating spicy meals, siphoning gasoline from their gas tank, chewing nicotine gum, or even burping before taking a breath test.
Can I be charged with a DUI if my BAC is lower than 0.08%?
Yes. Under Vehicle Code §23152(a), you can be found “under the influence” even if your BAC is lower than 0.08%. Some people’s driving ability is impaired even if their BAC is lower than 0.08%. The district attorney will always charge you with both Vehicle Code sections. This gives the DA an additional opportunity to get a conviction.
Why Do I Need a DMV Hearing (even if I am going to plead guilty?)
Will my license be suspended if this is my first arrest for DUI?
Yes, if you fail to schedule a DMV hearing within 10 days of your arrest. Click here for a Request for a Hearing form. Make sure that you do this immediately or have your attorney do it for you.
Should I hire an attorney or use a public defender? Reasons for both!
Do I have to make court appearances if I have an attorney?
What is the law regarding license suspension for a first offense DUI?
The police officer asked me to take a field sobriety test (“FST”) at the scene and I refused. Will this hurt me?
No! You have an absolute right to refuse this test under the Constitution, and your refusal cannot be used against you in a court of law. A field sobriety test usually involves a variety of different tests such as walk and turn, arms raised in the air, touching your nose with your eyes closed, breathing into a breath machine, etc. These tests are notoriously inaccurate. The breath machine that an officer will use in the field is especially inaccurate, not only in terms of the accuracy of the machine itself, but also in terms of the manner in which it is administered. This is different from a chemical breath (or blood or urine) test, which is administered at the police station, hospital or at the jail. You must agree to submit to this test or your license will be automatically suspended. (See below)
What is the difference between a chemical test and a field sobriety test?
A field sobriety test (which can include blowing into a machine to test your breath) is always taken at the scene of the stop. You have an absolute right to refuse this test. A chemical test will be offered to you after you have been arrested. If you refuse to take a chemical test, your license will be suspended. With a chemical test, you will be offered a choice of blood, breath or urine tests. You have the absolute right to choose between these tests in any situation unless it is unreasonable to offer you one of the choices. Failure to give you this choice may cause the test results to be inadmissible as evidence against you at the time of trial.
If my license is suspended I will not be able to drive to work and I will lose my job. Is there anyway that I can get around this?
Yes. If this is your first DUI, and you are convicted or enter a plea of guilty or no contest, you will be prevented from driving anywhere and for any reason for 30 days. However, if you enroll in a Drinking/Driving program, and have your insurance agent file an SR-22 (proof of insurance) with the DMV, then after the 30 day time period has passed, you can have a restricted license issued to you that will allow you to drive to and from work, as well as drive during the course of work, and to and from the Drinking/Driving program during the remaining period of your license suspension. If this is your second DUI you are prevented from driving for a full year. However, if you are enrolled in 18-month second offender Drinking/Driving program, you will be issued a restricted license like the one described above only after you have completed one full year of the 18-month program.
What is my next step?
Your first step is to make sure that your right to a DMV hearing (and to a driver’s license) has not been lost. In most cases, you are required to schedule a DMV hearing within ten days after the date of your arrest (in the case of a DUI) in order to avoid an automatic license suspension. Your attorney can do this for you if you haven’t already taken care of it. Your next step is to consult with an attorney. Most attorneys will give an initial consultation, free of charge. You should always ask for, and receive, an initial free one-hour consultation before you hire an attorney. Before you meet with your lawyer, write out your questions. Bring a pen and notepad. Prepare for this meeting by writing down any questions that you will have before the meeting occurs.
Why do I need a specialist in DUI cases? Won’t a regular criminal defense attorney be sufficient?
The laws governing DUI’s are complex and highly technical. The normal rules governing the presumption of innocence do not apply in DUI cases. DUI attorneys must have a thorough knowledge of DUI science (specifically as it relates to chemical tests, whether breath, blood or urine), experience in handling DMV administrative per se hearings (where the rules are arcane and sometimes confusing) as well as experience in trying cases in court. Few criminal attorneys have the time to keep current with all of these different areas unless they specialize in this area.
Will I have to appear in court?
If you hire an attorney, and your DUI is a misdemeanor, you may never have to appear in court. In many cases, your attorney can appear on your behalf.
I am not charged with a DUI. However the DMV has suspended my license because of my age or some other medical condition. What are my chances of keeping my license?
The DMV may restrict, suspend or revoke the driver license of a driver for a medical reason such as: a serious memory disorder (such as alzheimers), diabetes mellitus or lapses of consciousness such as epilepsy. They can also suspend or revoke your license based on your age and the determination that you can no longer drive safely. If this happens, you must request a hearing immediately. Read the material that is on this website relating to senior drivers or drivers with medical impairments or call us for a free consultation to learn more.
DUI Priors- What constitutes a prior? How are priors treated differently from first offense DUIs?
What is “expungement”?
If you are convicted of a misdemeanor and you have completed at least half of your probationary term, you could be eligible for “record” clearance” or “expungement”. What happens is that you are allowed to withdraw your guilty or no-contest plea and enter a new plea of “not guilty”. With record clearance, your case is considered “dismissed” pursuant to 1203.4 of the Penal Code. For more information on how to achieve this, give us a call and we will be happy to answer your questions as to how to get this done at no charge.