for Your Rights
At Thomas Tears, Attorney at Law, we are committed to helping people in Santa Ana and throughout Orange County to protect themselves against the harsh consequences of an arrest. One of the most common types of cases that our clients bring to us is charges of driving under the influence (DUI). Very often, we find that most of the evidence in the case was voluntarily provided to the police officer by the client. Most people simply do not know how to handle a DUI stop.
They frequently say and do things that make it easy for the law enforcement officer to conclude the investigation with an arrest and set the case up for a conviction. Whether you have been arrested for DUI and want a better understanding of the situation or if you have never been arrested and are simply looking to arm yourself with the information you need to protect your rights, take the time now to read through our guide to surviving a DUI stop.
The first thing to know is that drinking and driving is not illegal. This may be contrary to what you have heard all of your life, but again, it is not against the law to drink and drive. If you did have a drink or two before getting behind the wheel, this fact may make you feel guilty when you are being questioned during a traffic stop, and this guilty conscience may prejudice the outcome of the traffic stop. It is important to maintain a calm confidence during any encounter with the police, and in the context of a DUI stop you should remember that you have not necessarily broken the law. It is not necessarily illegal to drink and drive, but what is illegal is to:
To convict you of DUI, the state must be able to prove that you are guilty of either one of the above. During the traffic stop, the law enforcement officer will be looking for any signs that you may be under the influence, and any and all questions and requests will be directed at getting you to say or do things that can be used as evidence of your guilt.
It is imperative that you exercise your right to remain silent. You do not have to tell the officer where you are coming from, where you are going, whether you have been drinking or anything else beyond providing basic information to identify yourself. The officer will try to pressure you into talking, and most people do talk because they don’t want to appear rude or guilty.
Fortunately, your Fifth Amendment right protects you against being compelled to answer the officer’s questions, and the fact that you are exercising this right cannot be used as evidence against you. It is especially important to plead the Fifth during a DUI stop, because the officer will be using “divided-attention” questioning in an attempt to incriminate you. Divided-attention questioning involves a series of questions in rapid succession and on different topics.
The purpose of such questioning is designed to fluster or confuse the suspect, making him or her appear to be impaired. Questioning is also intended to reveal whether the suspect’s speech is slurred, if his or her breath has an odor of alcohol, and whether the person displays a guilty demeanor when responding to questioning. Furthermore, if the driver admits to the fact that he or she is coming home from a bar or party, this can be used as evidence.
The key to success in handling a DUI stop is to strike a delicate balance between appeasing the officer and defending your rights. While it is true that you have a right to remain silent, belligerence or arrogance in exercising this right may provoke the officer to ordering you out of the vehicle and eventually placing you under arrest. Be polite at all times throughout the encounter, while still maintaining a firm insistence that you do not wish to answer the officer’s questions.
If you feel pressured, you may state that you want to speak with your attorney, at which time you can contact us 24/7 to consult about the situation and receive our guidance concerning what to do next. Early in the stop, and at frequent intervals throughout, ask the officer if you are being detained or if you are free to go. If the officer does not have reasonable suspicion or probable cause to continue the investigation, he or she must allow you to leave. Hopefully, you will be free to go at this point and can continue on your way.
It may not be possible to avoid an arrest, but there are steps you can take to limit the amount of evidence that the officer can accumulate against you. The officer may request that you step out of the vehicle in order to perform the series of roadside field sobriety tests. Do not agree to take the tests. They are not scientifically objective, and even many sober people fail them for various reasons. Inform the officer that you do not accept the validity of the field sobriety tests and that they are not required under state law. The officer may arrest you at this point; if he or she does, you were probably going to be arrested anyway. Taking the tests will rarely prevent an arrest, and will normally only provide additional evidence to support a conviction in court.
You are not legally required to take the field sobriety tests, but you do have to submit to a chemical test of your breath or blood. Under California’s “implied consent” law, your driver’s license can be automatically suspended if you refuse to submit to a breath or blood test. As soon as the test is complete, however, you should demand to be released so that you can go to a hospital and get an independent test done. The toxicology equipment and procedures used by law enforcement in taking and analyzing samples are often flawed, and having an independently analyzed sample can make the difference between an exoneration and a conviction.
The next thing to do after an arrest is to contact the Department of Motor Vehicles within 10 days to request an administrative hearing to contest the driver’s license suspension which is automatically triggered by a DUI arrest. If you do not take this step, your license will be suspended regardless of whether you beat the charges in criminal court. Next, contact us at Thomas Tears, Attorney at Law for a confidential consultation. You need a Santa Ana criminal defense lawyer on your side as early as possible to guide you through the rest of the process and fight to defend your rights.