DUI Arrest: Should I Refuse a Blood or Breath Test?

As a
practicing DUI defense lawyer in Orange County one of the most common questions I’m
asked is “should I refuse to take a blood test or breath test if I’m arrested for DUI?” The answer is an unequivocal “no”.  Let’s be clear here, I’m not talking about the
“voluntary” breath test the officer usually asks the driver to take during a
DUI investigation. This voluntary breath test, called a “preliminary alcohol
screening” test or PAS for short is a different story. I recommend that a
driver NOT take this breath test. By the way, although the California Vehicle Code
specifically requires that a police officer conducting a DUI investigation tell
the driver that the test is voluntary and that the driver is under no
obligation to take the test, many officers do not tell the driver of the
voluntary nature of the test.

The DUI
officer usually asks the driver to take this PAS test after the driver has
submitted to several field sobriety tests—which, by the way, are also
voluntary. And, as any qualified DUI Attorney in Orange County will tell you, if a driver declines
to take the PAS test, the officer will likely arrest the driver for DUI. The
reason for this is that once a driver has been arrested for DUI the driver is
now obligated under California’s implied consent law (Vehicle Code Section23612) to submit to either a blood test or breath test to determine the driver’s
blood alcohol content. This post-arrest test is MANDATORY and virtually all DUI defense lawyers recommend submitting to it.

If a driver
refuses to take a blood or breath test after being arrested for DUI the driver
will suffer harsh consequences. This is why DUI Attorneys recommend taking the test. A “refusal” will, by law, result
in a one-year suspension of the driver’s driving privileges. This one year
suspension does NOT allow for a restricted license. Moreover, although a first
offense DUI in Orange County usually does not result in jail time, a refusal subjects
the driver to a mandatory 48-hour jail sentence. A second-offense refusal
results in a two-year driver’s license suspension with no eligibility for a restricted
license and a mandatory four-day jail sentence. A third-offense refusal gets a
driver a three-year license revocation without any restricted license and a
mandatory 10-day stay in the ORANGE COUNTY JAIL.

If you are
arrested for DUI it is important to remember that you do not have the right to
consult with your DUI lawyer before agreeing to take the
mandatory blood or breath test. Once the officer arrests you he or she must
give you a proper advisement of your obligation to take the blood test or
breath test as well as the consequences of a refusal to do so. Most officers
read this admonishment off of a card they carry. Once the officer advises you
of the obligation to take the test you really only have one chance to either
agree or refuse. If you refuse to take the test initially, then that is all
that is needed to prove a refusal, even if you later change your mind and agree
to take the test.

While there
can be a benefit to refusing to take a blood or breath test—that the DA does
not have solid evidence of what your blood-alcohol level was at the time of
driving—this benefit is somewhat offset by the fact that you refused. You see,
at trial the fact that you refused to take a test can be used as evidence to
show that you KNEW you were too impaired to drive. So, while your Orange County DUI lawyer can avoid a conviction for driving
with a blood-alcohol level above 0.08%, (Vehicle Code 23152(b)), the jury is
still likely to convict you of driving a vehicle while impaired (Vehicle Code 23152(a)).
Conviction of either offense is a conviction of DUI.

If you need
help with a DUI arrest call The Law Offices of EJ Stopyro today at (949)
559-5500 for a free and confidential consultation with an experienced DUI
attorney. You can also go to our website at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.

DUI Arrest: But I Passed The Field Sobriety Tests

As a DUI defense Lawyer with many years of handling DUI cases in the Orange County courts, I’ve talked to
thousands of people about their DUI arrest. One belief that the majority of
people arrested for DUI have in common is that they passed their field
sobriety tests—usually
with flying colors. In fact, they are often upset at the fact that the officer
arrested them for DUI after they performed SO WELL on the field sobriety tests.

But what
people don’t understand and most Orange County DUI Attorney’S know, is that they are being graded on specific
behavior (cues) that they are not aware of. For example, when a police officer
has a driver perform the “walk and turn” field sobriety test, the driver is
asked to walk nine steps heel-to-toe, turn around, and walk nine steps back.
But what the driver isn’t told is that the officer is looking for “indications
of intoxication” or “”cues” such as whether there is a gap between the driver’s
toe and heel on any step of this “heel-to-toe” walk. If the driver raises
their hands AT ALL while walking the line, this too, is a cue. If the driver
“steps off” the line, which is often an imaginary line, then this too is a cue
to impairment. And if the driver doesn’t look continuously at their feet while
walking and turning, then this is also a failing grade on this field sobriety
test. 

All of the
field sobriety tests that a DUI officer asks you to perform will have a set of
cues that the officer is looking for. The one-legged stand, the Rhomberg test
(head tilt), nose touch, and even the horizontal gaze nystagmus test (follow
pen with eyes) have a list of cues. Since most of the driver’s who take field
sobriety tests weren’t even aware that they were being graded on these cues
they believe they passed the tests. But when their Orange County DUI defense Lawyer gets the police report it inevitably
shows “poor” performance on the field sobriety tests—usually exhibiting two or
more cues of failure.

But even
doing very well on the field sobriety tests doesn’t mean you wont be arrested.
Field sobriety test evidence is NOT necessary to convict a driver of DUI. You
see, there are actually two ways for the DA to convict you of a DUI. One way is
to prove that a driver is too impaired by alcohol, drugs, or a combination of
alcohol and drugs, that the driver wasn’t able to drive a motor vehicle as well
as a sober person. To convict a person of DUI using this theory, the DA usually
relies heavily on the field sobriety tests as evidence of “impairment”.
However, the other way for the DA to convict you of DUI is to prove that you
had a blood-alcohol level of 0.08% or more while driving. This is typically how
most people are convicted. So the field sobriety evidence is usually not
important if the DA has a strong case that you are over a 0.08%.

If you’ve
been arrested for a DUI call The Law Offices of EJ Stopyro today at (949)
559-5500 for a free telephonic consultation with an experienced Orange County DUI Defense Attorney. You can also visit our website at www.ejesquire.com. We have offices at 32072 Camino
Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627.