DUI Cases

The laws and Supreme Court decisions concerning "drunk driving" have changed radically over recent years. The person arrested today in California for driving under the influence of alcohol and/or drugs ("DUI", also referred to as "DWI" — driving while intoxicated) faces bewildering procedures and potentially devastating punishment — punishment that can be more severe than in some felony cases.
After the person is initially stopped or contacted by the police (possibly at a "sobriety checkpoint"), he is asked incriminating questions without any Miranda advisement of rights and without any right to consult with an attorney. He is then subjected to a series of "field sobriety tests" under physically and emotionally difficult conditions — tests which are nearly impossible for most people to perform well. He may then be given a hand-held "PAS" (preliminary alcohol screening) breath test; the officer almost always fails to advise the suspect that he is not required to submit to this test (unless he is under 21).

After the arrest, the suspect is then required to submit to breath or blood testing, usually at the police station — and, again, without any right to speak with an attorney. Contrary to popular belief, the breathalyzers used by the police are inaccurate and highly unreliable and many officers administering them are unfamiliar with proper procedures. If the suspect refuses, or if the police feel he is not cooperating to their satisfaction, blood can be forceably drawn; whether blood is drawn or not, a refusal will trigger a mandatory jail sentence and a one-year license suspension. If the breath test is over .08%, or if there is a blood sample withdrawn or a refusal reported, the police will confiscate the suspect's license and issue him a notice of suspension and 30-day temporary license.

The individual now faces two battles. First, he must deal with a criminal prosecution in the court where he will be charged with driving under the influence of alcohol (or, possibly, driving under the combined influence of alcohol and drugs). If the breath or blood test was .08% or higher, he will also be charged with the so-called "per se" offense: driving with .08% blood-alcohol. Amazingly, he can be convicted of both offenses, although he can be punished for only one (the punishments are, however, identical). Properly defended, the criminal charges will involve several court hearings; if represented by counsel, however, the individual should not have to appear at most of these.

Second, the accused must deal with the administrative license suspension. If the breath test was over .08%, or if there was a blood sample withdrawn or a refusal reported, the police will confiscate the suspect's license and issue him a notice of suspension and 30-day temporary license. A first offense DUI involves a four-month suspension; a refusal or a second offense within ten years triggers a one-year suspension. These suspensions can be successfully contested by an experienced DUI attorney, but it is critical that the individual or, preferably, his attorney, CONTACT THE DMV WITHIN 10 DAYS OF THE ARREST. The importance of this cannot be overstated; absent a timely request, there will be no hearing and the suspension will automatically take effect 30 days after the arrest.

Similar laws and procedures exist for boating under the influence of alcohol (also referred to as "DUI boating" or "drunk boating"). See "California DUI Boating: Boating Under the Influence of Alcohol" at this website.

These criminal and administrative proceedings can be effectively handled by an experienced attorney who specializes in blood-alcohol analysis and drunk driving cases. It is an unfortunate fact, however, that many general practitioners or general criminal attorneys attempt to represent clients with little or no training or experience in this very complex field — and the results are predictable.

davidmnisson@sbcglobal.net