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Frequently Asked Questions about DUI in California

When you can be arrested for DUI?

Without a warrant, a peace officer may arrest a person when the officer has reasonable cause to believe that the person had been driving under the influence and when any of the following exists:

a)      The person is involved in a traffic violation

b)      The person is observed in or about a vehicle obstructing a roadway

c)      The person will not be apprehended unless immediately arrested

d)     The person may cause injury to himself or herself or damage property unless immediately arrested

e)      The person may destroy or conceal evidence of the crime unless immediately arrested

The legislature intended this section to be interpreted broadly. As such, courts have normally interpreted this section to include arrest made in public and those at the motorist home. If the police officer has reasonable cause that the motorist has committed a driving under the influence violation, the officer can arrest the motorist in public. If the police officer has reasonable cause that the motorist has committed a driving under the influence offense and has retreated to her home, the officer may enter the home, without a warrant, and arrest the motorist.

If the officer lacks probable cause that the motorist was driving under the influence and the motorist is currently in her home, the officer can still approach the home and ask to talk to the motorist. When asking to interview the motorist, the officer cannot assert that she has the right to enter nor can she state that the motorist must talk.

Furthermore, reasonable cause is defined as whether there is sufficient information to warrant a person of reasonable caution that a crime has occurred and the person to be arrested committed the offense. The arresting officer only needs reasonable cause and not proof beyond a reasonable doubt that the motorist will be convicted of driving under the influence. There is no set test but is based on a totality of the circumstances. The officer can take any factors into consideration in determining if the motorist was driving under the influence or not. For example, an officer responded to a car accident. Witnesses stated that the motorist was swerving and ran at extreme speed. The witnesses also described the motorist, the motorist’s car, and what direction the motorist was driving. After two hours of investigation, the officer surveys the neighborhood and discovers a car with similar model, color, and scratch markings. The officer knocked on the door and was met by the motorist. The motorist appeared to be drunk and had slurred speech. Under California law, the officer had reasonable cause to arrest the motorist for driving under the influence.

Can I be stopped and arrested for DUI even if the vehicle was not moving?

A peace officer may arrest a person when the officer has reasonable cause to believe that the motorist had been driving under the influence of an alcoholic beverage or any drug or under the combine influence of an alcoholic beverage and any drug when any of the following exists:

a)      The person is involved in a traffic accident

b)      The person is observed in or about a vehicle that is obstructing a roadway

c)      The person will not be apprehended unless immediately arrested

d)     The person may cause injury to himself or herself or damage property unless immediately arrested

e)      The person may destroy or conceal evidence of the crime unless immediately arrested.

Under California law, a valid driving under the influence stop and arrest requires the motorist “to drive a vehicle,” which means evidence of volitional movement of a vehicle. A police officer may not lawfully arrest for driving under the influence if the motorist’s vehicle is lawfully parked and the officer did not observe the vehicle move. For example, a stalled truck park legally on the highway was not properly stopped by peace officer.

But driving a vehicle is not a substantial test. The determinative test is whether there was any “slight movement.” For example, rolling a vehicle for fifteen (15) to twenty (20) feet in an officer’s presence is considered “driving.” Furthermore, shifting the transmission from parked into drive and moving a few inches once the motorist saw a police officer constitutes driving. Under California law, “driving” within the driving under the influence statute includes situations where intoxicated individuals actively asserts control over vehicle and takes every step necessary to resume travel along public road.

Furthermore, there are instances where a parked car can constitutes driving under the influence. Under some circumstances, the courts will assume that the motorist was driving under the influence when the positioning of the vehicle creates a presumption that there is no other way for this vehicle to be in this position than for the motorist action. For example, motorist’s vehicle was parked on the shoulder and the left wheel tire was intruding into one of the other lanes. Officers walked up to the vehicle and saw the motorist sleeping behind the wheel with his lights and air conditioner on. The court concluded that there was enough circumstantial evidence to constitute that the motorist was driving. The court concluded that there was ample evidence that the motorist was driving on the public highway at a time when he was intoxicated. Parking on the side of the road with the left rear tire on another lane combined with the driver sleeping behind the wheel was sufficient evidence for driving under the influence.

It should be noted that using circumstantial evidence only applies when the motorist is committing a traffic violations. If the motorist was legally parked on the shoulder, circumstantial evidence is inadmissible. If the motorist was committing a traffic violation while parked on the shoulder, then circumstantial evidence is admissible.

 

Do I have the right to talk to an attorney before I give a sample?

In a civil proceeding for suspension of a person’s driving privilege under the California Implied Consent law, a driver does not enjoy the right to consult with counsel, or to have counsel present, before deciding to submit to the chemical tests prescribed by the statute inasmuch as such tests do not violate one’s right against incrimination, nor one’s right to be free from illegal searches and seizures, nor one’s right to counsel.

A motorist only has the right to counsel with an attorney if the right is attached to one of the other Amendments (i.e. Fourth and Fifth Amendment). A motorist’s Fifth Amendment Self-incrimination clause is not violated when giving a sample. The Fifth Amendment self incrimination clause bars against compelling communications or testimony but compulsion which makes a suspect or accused the source of real or physical evidence does not violate it. But to compel a person to submit to testing to determine guilt or innocence on basis of physiological response violates the privilege against self-incrimination. Blood drawn from a hospital by a physician is neither “testimony” nor “evidence related to some communicative act or writing” by him and was admissible because it did not violate the privilege against self incrimination. Only blood was taken and analyzed. The motorist is not forced to talk to testify. The blood evidence, although incriminating product of compulsion, is neither the motorist’s testimony nor evidence relating to some communicative act or writing by the motorist, and does not violate the self-incrimination clause. Since the motorist is not entitled to the self-incrimination clause, not Six Amendment right to counsel attaches.

Moreover, a motorist’s Fourth Amendment Search and Seizure clause is not violated when giving a sample. The Fourth Amendment prohibits unreasonable searches and seizure. At its core, the Fourth Amendment prohibits arbitrary intrusion by police. Withdrawing blood from a motorist for alcohol analysis is a “search” and is dependent upon the “seizure” of the person. Moreover, the Fourth Amendment prohibits compelled intrusions into body for blood to be analyzed for alcohol if the intrusion is not justified in the circumstances or are made in an improper manner. The Fourth Amendment also prohibits compelled intrusions into body for blood to be analyzed for alcohol content if intrusions are not justified in the circumstances or are made in an improper manner. To collect samples from a motorist’s body, a warrant is normally required, but there is one exception; emergency. The fact that alcohol starts to diminish shortly after drinking and the reasonable expectation that the time used in applying for a warrant would allow for the alcohol to be destroyed inside the motorist body, constitute an emergency. Furthermore, if the extraction of the sample was in a medically appropriate manner, the sample is admissible into evidence. Because there is no illegal search and seizure, the right to counsel does not attach.

It should be noted that right to counsel might make the sample inadmissible. If the officer gives the motorist the Miranda warning and simultaneously tells her that she does not have the right to counsel before giving a sample, the confusion might exclude the sample. There is no possible way to determine if the motorist consented to the sample knowing that she would not receive counsel or said “yes” believing that she would get counsel before sampling.

 

Do I have to give a blood or urine sample?

If the motorist is lawfully arrested and the arresting officer has reasonable cause to because that the motorist was driving under the influence, the motorist might be required to give a blood or urine sample. Under California law, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of her breath, blood, and urine.

If the arresting officer has reasonable cause that the motorist is driving under the influence of alcohol, the officer shall inform the motorist that she has the option of taking either a breath or blood test. If the motorist requests one test over the other (i.e. requests a breath test but refuses a blood test), the officer shall comply with the request. But the officer is not limited to the requested. If the motorist consents to the test but not comply with the officer’s instruction, the officer may request the motorist to take another test. The second test is allowed only if the officer shows a sufficient need. Sufficient need occurs when the motorist does not cooperate by providing samples for breath test, motorist had ample time to complete the test, percentage of alcohol in motorist’s blood was diminishing, officer had reasonable cause to believe the motorist was intoxicated, and the test was performed in a medically approved manner.

It should be noted that a police officer is required to inform the motorist about the different kind of test (breath, blood, and urine). But if the officer fails to do so, this noncompliance does not violate the Fourth Amendment. Furthermore, motorists do not have the right to be told about the three tests (breath, blood, and urine). If the motorist was told about one test and later consented to it, the motorist is deemed to be informed.

There are circumstances when consenting to the test is inadmissible evidence. Using threats or fear to force a motorist to submit to a test can made the blood or urine sample unlawful. But this only applies under certain circumstances. Warnings that if the motorist refuses to give a sample, she could lose her driver license is not enough to make the samples unlawful. Courts normally reasoned that the officer is informed the motorists about applicable law. Thus, the warning was giving information and allowing the motorist to decide the consequences of her refusal. Illegal warnings are those which use unlikely consequences or harm to a person for refusing to give a sample. For example, threats such as “if you won’t give me a sample, you’ll be place in prison for an indefinite amount of time” or “I’ll kill you if you won’t give me a sample” would make the sample illegally obtained.

It should be noted that a blood/urine test is applicable even when the motorist is unconscious or incapable to refuse. But the officer has to show a sufficient need. In these situations, the officer has to show that the circumstances required the testing, the test was done at a medically approved facility, and there is reasonable cause to believe that the motorist was driving under the influence of alcohol.

Do I have to submit to a field sobriety test?

Once a peace officer arrests a motorist for driving under the influence, the officer may ask the motorist to submit to a field sobriety test. The motorist is not required to submit to the test.


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