The Arrest- The DUI Arrest


In General:

We divide a DUI arrest in California into two phases.  The first, and most important phase is commonly called “the stop”.  Put simply, did the police officer have a constitutional purpose (i.e. a “reasonable and articulable” purpose) for stopping your car?  If not, then the officer had no right to “detain” you.  And if you can demonstrate that there was no grounds for the stop, then you are well on your way to challenging the entire DUI charge and seeing it thrown out of court.

If you can demonstrate that there is no constitutional basis for the stopping of your car, then you can move to have the entire case thrown out of court by means of a “suppression motion”.

After the stop of your vehicle, the next phase is for the police officer to determine if there is probable cause to arrest you.  This is where field sobriety tests and the roadside blow (called a PAS test) come into play.

The Stop:

The police do not have a right to simply stop anyone’s car to see if they are DUI.  Rather, the cops must be able to demonstrate that they had a reasonable and articulable purpose for stopping your car.  It could be something as trivial as a rolling stop at a stop sign, expired registration tags, or a broken tail light.  As long as there is a law that you are violating, the cops can stop your car.

However, if they did not have a right to stop your car, then everything that they saw or learned after the stop is inadmissable in court.  Here are some examples of successful suppression motions we have brought in the past.

  1. Tinted windows:  Client was stopped by the cops for having front-side tinted windows.  But front-side tinted windows are not, in and of themselves, against the law.  If the windows have a minimum light transference of 88%, then the windows are legal.  What the cop should have said, but failed to, was that the windows were tinted too darkly or so dark that he couldn’t see inside the cab of the car.  But because he said that he stopped my client simply because her windows were tinted too darkly, the case was thrown out of court.
  2. Rolling stop at a stop sign:  Client made a complete stop but the cop said she didn’t.  Video in the cops car showed she did!  Case dismissed.
  3. Illegal left hand turn at an intersection:  Vehicle code provides that you have to signal when making a left-hand turn unless there is no traffic in the area.  Cop stopped client for failing to signal at an intersection at 2 am on a weeknight when there was no traffic in the area and the cop was over 1,000 feet behind the client’s car.  Case was dismissed.

The DUI Arrest:

While you are being “detained” the police officer will first note if there are any “objective signs” of intoxication.  Typical signs include bloodshot watery eyes, slow slurred speech, unsteady gait, odor of alcohol, argumentative attitude, sloppy dress (as if you were inebriated), etc.

At this point, the officer will ask to see your driver’s license and registration. They may also ask you questions such as “Have you been drinking?” You have the right to refuse to answer. If the officer believes that you may be under the influence of alcohol or drugs, the officer will then ask you to step out of the car.

After the stop, the officer will monitor your behavior. Almost always they will indicate in their police report that you had “slurred speech, bloodshot eyes, and the smell of alcohol on your breath”. (This language is so commonplace, that many defense attorneys joke about it as it is almost always placed in the police report almost automatically.) An open container in the vehicle is another indicator.

DUI arrest – The Field Sobriety Tests

After stopping your car, asking questions and watching your behavior, the cop will move on to field sobriety tests (FSTs).  Field Sobriety Tests are voluntary. Typical field sobriety tests (FSTs) include:

  • HGN Test
  • VGN Test
  • Leg lift
  • Walk and Turn
  • Nose touch
  • Rhomberg Balance Test
  • Hand Pat
  • Finger Dexterity
  • Alphabet (verbal)
  • Alphabet (written)
  • Counting backwards

You cannot be punished for refusing a field sobriety test.  You also have a right to refuse the PAS test (roadside breath test). However, chemical tests, which include a more sophisticated breath machine than the one a police officer will have in the squad car, occur later and are not voluntary. If you refuse to take a chemical test, your license will automatically be suspended. You do not have to submit to a field sobriety test if you don’t wish to. If you agree to submit to the test, the officer will evaluate how you performed. In most cases, you are better off refusing to take the field sobriety test as you may fail, even if you are innocent. Field sobriety tests are not, in and of themselves, proof that you were intoxicated. It is generally advised that people refuse to take the field sobriety tests, even if they are innocent, as they may fail and give law enforcement a reason to suspect that you were driving under the influence.

Before the officer can arrest you, he or she must have probable cause. “Probable cause” is a reasonable belief that you were driving while under the influence of alcohol and/or drugs. There is substantial case law on the issue of what constitutes probable cause. For example, simply swerving within your lane, negligently operating your vehicle, or driving slowly has been held not to constitute probable cause for an arrest for DUI.

Once the officer takes you into custody, they must read you your Miranda Rights. These Miranda rights include (1) the right to remain silent, (2) the admonition that anything you say can be held against you in a court of law, (3) the right to consult an attorney, and (4) the right to have an attorney appointed for you if you cannot afford one.

Chemical Test

If you are determined to be driving under the influence you will be arrested and taken to the police station or jail for booking, chemical testing and processing. During booking and processing you will be fingerprinted, photographed and asked for your name and date of birth. Personal property on your person will also be removed, inventoried and stored. At this point, you will be administered a chemical test. The officer will give you the choice of a blood, breath or urine test. Sometimes all three tests are not available, in which case you will be given an option to take whatever tests are available. If you refuse to take the chemical test the DMV will automatically suspend your driver’s license.

If your blood alcohol concentration is found to be 0.08% or higher you will be considered to have been driving under the influence.

At this point, after the booking process and chemical test is complete, you will be required to post bond before you can leave the police station or jail. Your automobile may also be impounded at that time.  dui arrest in California