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Your DUI Rights

Know Your California DUI Rights:

Most DUI – driving-under-the-influence – arrests are made at night. The alleged offenders are detained because the police may have seen them driving in a manner that justifies a detention for questioning. The police must be able to point to specific facts that show that the behavior deserved investigation. These typically will include erratic driving, violating vehicle laws, like high beams that shine into oncoming traffic, or defective vehicle equipment. Unless the police have a valid reason for stopping you, an experienced Oceanside DUI lawyer may be able to bring a motion to suppress any evidence obtained later (i.e., blood test results, police observations).

The exception to this law is authorized sobriety road blocks, where the police don’t have to show that a specific suspected violation was the reason for the stop. You can be stopped at such a road block because it is designed as a regulatory device to promote public safety, like an airport search. Nevertheless, the law does provide that nine guidelines must be met in order to conduct a valid roadblock, including: advance public warning, warning lights of the checkpoint, and an available turnout to avoid the checkpoint.

Assume you are legally detained and are asked to step from your car to perform field sobriety tests, you may refuse these tests. Be aware that these tests assist the officer in a determination of your sobriety, as do your driving pattern, attitude, and any blood-alcohol test results. If for some reason you are unable to perform certain tests (i.e. physical disability, high heels, sloped roadway, etc.), be sure to explain this to the officer. Should you be requested to recite the alphabet, you might want to insist instead to write it on paper and sing it so there is a record of your ability to recall, a sobriety consideration. You may be asked how many drinks you had, as well as how much you’ve eaten and when. You may refuse to answer these questions. The prosecution calibrates your blood-alcohol level at the time of driving based on this type of information. You may exercise your Fifth Amendment right to remain silent; however, you must answer questions relating to your identity.

The newest device used to establish probable cause to arrest is the PAS (Preliminary Alcohol Screen) device. It’s a hand held portable breath test. You may refuse this test if you are over 21 years old, but must submit to a jail house blood or breath test. Urine tests are no longer used because of their unreliability. Don’t confuse the field test verses the jail tests.

If the officer determines there is cause, you may be placed in the police car and taken to the police station for the choice of a blood or breath test. If you fail to cooperate, you may be considered a “refusal” and additional DUI penalties will result if you are convicted. The present legal rate of intoxication is a level of .08 as of January 1, 1990. This level is determined in large part from the blood or breath tests.

Once you have finished the tests, you are photographed and given the right to telephone someone. Sometimes the police will allow you to be released to a sober relative, or you can have a bail bondsman obtain your release, usually for a 10 percent fee of your bail amount. You can post your entire bail if you have it and save the 10 percent.

The prosecution process now begins. If convicted, you may face a variety of DUI penaltiesincluding financial and other penalties including the loss of your driving privilege if you fail to call theDMV within 10 days to schedule an APS (Admin Per Se) hearing. See my article Know Your California DMV Rights for more information!

Hiring an experienced Oceanside DUI lawyer can help you protect your rights and your driving privileges.

California Criminal Penalties for Driving Under the Influence

(California Vehicle Code Section 23152 / 23536)

Work Restricted California Driver License


If you are under 21 and are arrested for DUI, you face a DMV (civil) Administrative .01 Blood Alcohol concentration standard (California Vehicle Code 13390), as well as a court (criminal) per se .05 Blood Alcohol concentration standard (California Vehicle Code 23140-23143) an infraction. Note, should the blood alcohol concentration greatly exceed .05 and approach a .08, the District Attorney may elect to file the case as a misdemeanor DUI. Please note, that a conviction of California Vehicle Code 23140 is still two (2) points for DMV negligent operator purposes (California Vehicle Code 12810(d)(2).

There are ways to obtain a critical need license. Speak with a licensed Oceanside DUI lawyerand Juvenile defense lawyer for more information.

PLEASE DON’T DRINK AND DRIVE. But if you should be detained for a possible violation, be aware of your legal rights.