~ Driving Under the Influence OF ALCOHOL (DUI) OR WHILE IMPAIRED (DWI) ~

       Getting arrested for driving under the influence, or as most people know it, Drunk Driving or DUI, is at best a bad experience and at its worst, a nightmare.  We know from firsthand experience, because we’ve been there, too.        

       There are two primary statutes that apply in driving under the influence cases for adults, California Vehicle Code §§ 23152 and 23153.  Section 23152 is typically charged as a misdemeanor, meaning that the maximum punishment that can be imposed is imprisonment that does not exceed one year in jail and that will not be served in a State or Federal Prison.  Section 23153 is usually charged as a felony, typically when an accident occurred where someone, other than the driver was hurt, no matter how minor.  A felony means that the maximum punishment that can be meted out is one or more years in jail to be served in a State or Federal Prison.        

       California Vehicle Code § 23152, reads, in part that:  

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article …, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subpision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.  This subpision shall not apply to a person who is participating in a narcotic treatment program …

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle …

In any prosecution under this subpision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

       Many, if not most people aren’t aware that the legal limit for operating a non-commercial motor vehicle in California is 0.08% of blood alcohol by volume, which is a technical way of saying that you can have no more than 0.08% of alcohol in your system and still be “legal” to drive your car, ride a motorcycle, operate a boat or even ride a bicycle.  If you have a license to operate a commercial vehicle (truck or bus driver), the limit is even lower at 0.04% and if you’re under 21 years of age, the limit is 0.01%.  The surprising thing is how quickly you can reach 0.08%, or even exceed that limit.  In fact, according to the California Department of Motor Vehicles (DMV), if a person who weighs 210 pounds or more has four 4-ounce glasses of wine, or four 10-ounce glasses of beer or four 1 ¼ ounce mixed drinks containing 80-proof liquor within an hour, they will exceed the legal limit to operate a motor vehicle.  If you’re petite and weigh 90 to 109 pounds, one drink can do it.  So, as you can tell, it’s not hard to reach the legal limit, despite the fact that you may feel entirely sober and thus safe to drive. People who consume alcohol on a regular basis often don’t feel “under the influence,” despite the fact that they are over the legal limit to operate a motor vehicle according to California law.

      Most people we represent had no idea that the Field Sobriety Tests (FST) the Police Officer asked them to take on the side of the road, usually late at night and occasionally in high heels, was completely voluntarily and that they could have and should have politely declined to do so.  In reality, the FST is often the most difficult problem we have to deal with when representing clients arrested and accused of driving under the influence.  Please be clear, a FST is a test that the officer asks you to take on the side of the road, it is not a chemical test such as a blood test or breathalizer test, typically given at the police station - chemical tests are mandatory and your license will be suspended if you refuse to take a chemical test.  Your license will not be suspended for declining to take a FST.

~ FIELD SOBRIETY TESTS ARE DANGEROUS AND SHOULD BE DECLINED ~

    The National Highway Traffic Safety Administration (NHTSA), a part of the Federal Department of Transportation, has developed a “standardized” set of FST, which are comprised of the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn (WAT) test and the One Leg Stand (OLS) test.  The NHTSA would like to believe that these tests are always administered and evaluated in a standardized manner, so that a Police Officer can better evaluate whether someone is driving while impaired.  Unfortunately, as we will discuss below, the test results are highly subjective and in the end, it’s going to be your word against the arresting officer’s word if the case ever goes to trial.

       The Horizontal Gaze Nystagmus test looks for an involuntary jerking of the eye that naturally occurs as people move their eyes from side to side.  Normally, your eyes will “jerk” when your eyes are rotated further to the left or right, called a “high peripheral angle”.  When someone has been drinking, their eyes may begin to “jerk” sooner and at what is known as a “lesser peripheral angle” than might otherwise occur.  If this is starting to sound somewhat subjective, join the club because that’s exactly what we believe, too.  The NHTSA also believes that someone who has consumed alcohol will often have difficulty smoothly tracking a moving object with their eyes, like a pen or flashlight.  In this test, the officer will hold a pen (or other object) in front of your face and move it left and right while observing a person’s eye movement.  The officer is specifically looking for three distinct indicators that the person undergoing the test is impaired in some way, which could be from alcohol impairment, the use of barbiturates, seizure medications, PCP (phencyclidine), various inhalants and other central nervous system depressants.  If the person’s eyes cannot follow the moving object smoothly, if one or both of their eyes clearly “jerk” when they are at the extreme left or right side or if the eye begins to “jerk” within 45 degrees of the normal center point of the eye, then the officer has been trained to consider each of those events as “clues” that you’re under the influence of something.  If four or more “clues” appear, regardless of which eye the “clue” occurred in or what the “clue” was, then the NHTSA believes (and thus the officer believes) that you likely have a blood alcohol level of 0.08% or greater (or you are under the influence of some drug).  According to the NHTSA’s own webpage, their “research found that this test allows proper classification of approximately 88 percent of suspects”.  What that tells us, however, is that their test is wrong at least 12 percent of the time, which is technically speaking, a statistically significantly amount of time for the purposes of defending our clients who are arrested or accused of driving under the influence.

       The next two “standardized” NHTSA tests are called “pided attention” tests, in that they require you to listen to instructions that are given by the police officer and then perform a physical test.  Not surprisingly, the NHTSA states that both of these tests “are easily performed by most impaired people.”  The first of these two tests is called the “Walk and Turn” test, where a person is instructed to take exactly nine (9) steps in a straight line, placing the heel of one foot against the toe of their other foot as they progress.  At the end of the nine steps, a 180 degree turn must be made (using only one foot) and nine more steps are then taken in the same manner.  While this test is being administered, the officer will be looking for eight different signs of “impairment”.  The different “signs” include the inability to maintain balance while the test instructions are being given, if the test is started before the instructions are finished, if the test taker has to stop walking to regain their balance, if the heel of one foot does not touch the toe of the prior foot, if one or more of the steps are not made in a straight line (usually the test is given so that you have to walk along some clearly defined line on the ground), if the person has to use their arms to maintain their balance, if the test taker does not make a proper turn using just one foot and if the wrong number of steps are taken.  Little or no consideration is given for foot or leg injuries, physical balance problems because of some health reason or the fact that you might be wearing stiletto heels and a short party dress in 40 degree weather and shaking like a leaf during the test.  The NHTSA states that their research has indicted that 79 percent of the people who make two or more mistakes during this test will have a blood alcohol level of 0.08% of higher.  What this tells us as experienced Criminal Defense Attorneys is that at least 21 percent of completely sober people will fail this test (according to the NHTSA’s own research) and that the test is thus horribly flawed.

       The second of the two “pided attention” tests is the One Leg Stand test, where a person is instructed to stand with one of their feet raised approximately six (6) inches off the ground while they count out loud by thousands of a second.  For example, while standing with your foot held off the ground in front of you, you count out loud, one thousand-one, one thousand-two, one thousand-three and so on until the officer finally tells you to put your foot back down.  While you are performing this test, the officer should be timing the test for 30 seconds to compare your count with the actual time.  During the test, the officer is looking to see if you lower your foot to the ground, use your arms for balance, hop to maintain balance or if you are swaying in any direction during the test.  The NHTSA believes that 83 percent of the time when two or more “clues” are present that the test taker has a blood alcohol level of 0.08% or greater.  Again, as you can no doubt tell, we believe that any test that is inaccurate 17% of the time is not only a dangerous test, but one that we can work with if we have to take your case to trial.

Police officers frequently administer FSTs, other than the “standardized” tests developed by the NHTSA, which can prove to be even more problematic.

      Officer giving PAS TestAs part of their FST, the officer may ask that you blow into a hand-held breath testing Passive Alcohol Screening device, which is used by law enforcement to preliminarily measure your blood alcohol content (BAC).  This is called a PAS test and the testing devices are made by several manufacturers, including Intoximeters, Inc.  If you are 21 years of age, or older, you can politely decline to take the PAS test as most of the PAS devices lack the sensitivity to give results that are admissible in a Court of law.  If you decide to take a PAS test and are ultimately arrested, know that both the District Attorney and the DMV will attempt to use the results from the PAS test to further support their case, despite the fact that the results are not reliable enough to be admitted into evidence during a trial.  

       If you’re under 21 years of age, you must agree to take the PAS test if the officer asks you to take one and if you decline, the DMV will suspend your license for at least one (1) year.  If the PAS test indicates that your blood alcohol concentration is at least 0.01% and less than 0.08%, the officer will inform you that your license is going to be suspended by the DMV (for at least one year).  If the officer believes that you can safely drive yourself home, the officer will issue you a temporary license and will allow you to drive pending your DMV license suspension, which will go into effect in 30 days.  If, on the other hand, your BAC is 0.08% or greater, you are subject to arrest.  The officer may also allow you to retain your driver's license, depending on the officer.

       If you are under 21 and the PAS test device is not available for some reason, or if you are 21 years old or older, you must agree to submit to a chemical analysis of your blood alcohol content.  When you signed your application for a driver’s license, you specifically agreed to submit yourself to a chemical analysis of your blood alcohol content when requested by a police officer.  Specifically, under California Vehicle Code § 23612, every person who drives a motor vehicle on the California roads is deemed to have given their “implied consent” to the testing of their blood alcohol content.

       Vehicle Code § 23612 states, in part that:

(a) (1)

(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140 [a driver under 21 with a BAC of 0.05% or greater], 23152 [BAC of 0.08% or greater or under the influence of a drug (a misdemeanor)], or 23153 [BAC of 0.08% or greater and / or under the influence of a drug and a person other than the driver was injured as a result (a felony)].  If a blood or breath test, or both, are unavailable, then paragraph (2) of subpision (d) applies.

 

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

 

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.

 

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 [reckless driving] … that resulted in a conviction, or if the person’s privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353 [refusal to take a chemical test], 13353.1 [refusal of a driver under 21 to take a PAS test] …

(2)

(A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.  If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test.  If a blood or breath test, or both, are unavailable, then paragraph (2) of subpision (d) applies.

 

(B) If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.

 

(C) A person who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence.  The officer shall state in his or her report the facts upon which that belief and that clear indication are based.  The person has the choice of submitting to and completing a blood or urine test, and the officer shall advise the person that he or she is required to submit to an additional test and that he or she may choose a test of either blood or urine.  If the person arrested either is incapable, or states that he or she is incapable, of completing either chosen test, the person shall submit to and complete the other remaining test.

(3) If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood, breath, or urine, the person has the choice of those tests that are available at the facility to which that person has been transported.  In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those tests that are available.

(4) The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

(5) A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle.  A person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a peace officer.

(b) A person who is afflicted with hemophilia is exempt from the blood test required by this section.

(c) A person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test required by this section.

(d)

(1) A person lawfully arrested for an offense allegedly committed while the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153 may request the arresting officer to have a chemical test made of the arrested person’s blood or breath for the purpose of determining the alcoholic content of that person’s blood, and, if so requested, the arresting officer shall have the test performed.

 

(2) If a blood or breath test is not available under subparagraph (A) of paragraph (1) of subpision (a), or under subparagraph (A) of paragraph (2) of subpision (a), or under paragraph (1) of this subpision, the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person’s blood.  If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

(f) If the peace officer serves the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle, the peace officer shall take possession of all driver’s licenses issued by this state that are held by the person. The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of arrest.

(g) (1) The peace officer shall immediately forward a copy of the completed notice of suspension or revocation form and any driver’s license taken into possession under subpision (f), with the report required by Section 13380 [a sworn statement made by the officer regarding the grounds for their belief that the arrestee was DUI and that all of the required procedures were followed], to the department.  If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory.  The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest.

 

 

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs.  The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test.  The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.

       As you can tell from your review of § 23612, if you are under 21, you must take a PAS test or your license will be suspended.  If you are 21 or older, you can decline to take the PAS test and we believe that you should, along with politely declining to take any other roadside FST as well.

        If, however, you are lawfully arrested for a DUI, you must submit to a chemical test of your breath or blood.  If you are suspected of driving under the influence of drugs, a blood or urine test will also likely be requested by the arresting officer and you must submit to one of those tests as well.  While it is entirely permissible to decline to take a PAS test, you simply cannot decline to submit to the other tests (usually administered at the Police Station or a hospital depending on the type of test you elect to take or that is required).  If you took the PAS test, you still cannot refuse to take the additional test(s).  Simply put, taking the PAS test is not good enough.  If you refuse to take a chemical test, your license will be suspended (as discussed below).

       If you’re under 21, you must also submit yourself to a blood, breath or urine test (where applicable) if the arresting police officer requests one and if you refuse, your license will be suspended for refusing.

       It is important to know that while you “appear” to have a right to select a blood or breath test, your right to select a test is not absolute and has some significant limitations.  In reality, if push comes to shove, take a test, even if it’s not the one that you want to take.  Chances are that even if you are ultimately found guilty of DUI, the punishment will be far lower than refusing to take a chemical test.

      In California, most arrests for DUI involve alcohol consumption, although a recent study has indicated that driving under the influence of some drug has risen considerably.  As such, the arresting officer will usually offer you the choice of taking a breath test or a blood test as those tests have been scientifically proven to accurately measure a person’s BAC (blood alcohol content).  Urine tests are no longer offered as a first option, as it has conclusively been shown to be an unreliable measurement of BAC.  A urine test may, however, be requested if drug impairment is suspected.

        If you submit to a breath test and the results of your breath test are lower than 0.08%, the officer may also require you to submit to a blood or urine test if the officer has any reason to suspect that you might have been driving under the influence of drugs or a combination of drugs and alcohol.

       In reality, you only have a choice of a test if the Officer says you have a choice.  Declining (or refusing) to take one test in favor of another test is a dangerous proposition and may result in the officer reporting to the DMV that you refused to take a chemical test.  Regardless of whether you are right, or not, this will be a difficult scenario to defend.  As such, we recommend that unless you absolutely know § 23612 inside and out, that you submit to whatever test the officer tells you to take.  For example, if you demand to take a urine test and drugs are not suspected by the officer, then that can be considered a refusal.  If you demand a blood test and a licensed phlebotomist is unavailable, that can be considered a refusal.  Alternatively, if you demand to have a breath test and the officer suspects that you were driving under the influence of some drug, the officer may simply consider that a refusal as well.  In each of these situations, you have placed yourself at serious risk of having your driver’s license suspended for at least one year and have also made the defense of your criminal matter more difficult as well.

        The California Department of Motor Vehicles publishes an Alcohol Impairment Chart, which can be found by clicking here

      If you were arrested for driving under the influence of any substance in Orange County, California and you elected to provide a blood sample, the results of your test can be found by clicking here to be directed to the Orange County Sheriff’s Department Crime Lab website.  Their site will open in a seperate window.

        Their website looks something like this:


BLOOD ALCOHOL RESULTS

 

Welcome to the Orange County, California Blood Alcohol results page.  (En Español)

 

To retrieve the Blood Alcohol level you need the six-digit vial number and the subject’s last name.

 

The vial number is on the kit insert provided by the arresting officer when the sample was taken.  If you do not have this number, you must contact the arresting agency.

 

Please allow 10 days for the Blood Alcohol result.

 

Vial Number:   ___________   Example: 123456

Subject's Last Name: ___________  Example: Smith

[] Sample Collected more than 10 Days Ago

  

Orange County Sheriff-Coroner Department OC Crime Lab

Blood Alcohol Results (Retrieved on 9/01/2012 08:36:40 AM)

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

Vial Number: 045324

Last Name: JONES

Blood Alcohol Level: 0.17%

It is unlawful to drive in the State of California with a Blood Alcohol level of 0.08% or greater.

 

Contact the District Attorney if you have further questions.

 

This web page is used to retrieve blood alcohol results only.  The information made available is restricted to samples obtained from driving under the influence of alcohol arrests in Orange County, California during the last 6 months.

 

~ IMPORTANT DUI INFORMATION FOR FAA CERTIFICATED PILOTS ~

       If you're a certificated pilot, licensed by the Federal Aviation Administration, there are specific reporting requirements set forth in Federal Aviation Regulation § 61.15 (14 CFR 61.15) that you must be aware of and follow in the event that you are convicted of driving under the influence of alcohol or drugs, or both.  For specific information about those requirements and your obligations under the FARs, click here now.

~ DEPARTMENT OF MOTOR VEHICLE HEARINGS AND LICENSE ACTIONS ~

       For information about the DMV Administrative Hearing process, which is an administratice law process that the DMV is required to undetake, prior to suspending your driving privileges when you have been accused of driving under the influence of drugs or alcohol, click here .  This process is also utilized in cases where a driver accumulates too many "points" during a proscribed period of time because of tickets or accidents and for various other reasons.  The DMV Administrative Hearing process is a unique and extreme challenging process, especially given that your driving privileges can be at stake.  Because of the high risk that your driver's license may be suspended or revoked, it is important to hire an attorney like Don Werno, who has the knowledge and experience to properly defend you before the DMV.  For a free consultation or to discuss how we can help you with your legal problem, call us today at (714) 542-4466 and remember, consultations are always free.


 

To view the list of crimes by code section (Statute), please click here.

To return to the list of California crimes in alphabetical order, please click here.

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