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Practices > Riverside and Orange County DUI Lawyers > DUI FAQs

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THE DUI PROCESS & COMMONLY ASKED QUESTIONS

Getting stopped by a police officer and being accused of drinking and driving can be a very scary thing. Many good citizens with no criminal record experience this every day. WILL & WILL, LLP is here to help you understand what has happened to you, and what lies ahead.

Why Was I Stopped and/or Contacted by a Police Officer?

There are many different reasons you could have been contacted by a police officer. Some examples are: speeding, weaving in and out of your lane, having tinted windows, having expired registration tags, missing a front license plate, being in an accident, etc… Someone could have also reported seeing you driving erratically to the police, or leaving a bar, restaurant, or party under the influence and getting behind the wheel of a car. There are so many possibilities for why you were contacted by a police officer. That's why we're here. WILL & WILL, LLP reviews all police reports to determine whether stopping you was done legally!

What Were All Those Tests I Was Given?

When a police officer suspects that you may have been driving under the influence, he or she will ask you to step out of the car to perform a series of optional field sobriety tests (FST's). There are many reasons you may have been suspected of driving under the influence. Some examples are: the manner in which you were driving, slurred speech in talking to the officer, the odor of an alcoholic beverage emitting from your breath or person, having bloodshot/watery/red eyes, etc… As a result, you may have performed FST's such as, but not limited to, the alphabet test, the Rhomberg test (where you count to 30 with your eyes closed and head tilted back), the finger to nose test, the walk and turn test, or the standing on one leg test. An officer might have also chosen to check for horizontal gaze nystagmus (HGN) by shining a penlight in your eyes.

What is Horizontal Gaze Nystagmus (HGN)?

The "horizontal gaze nystagmus" test is a relatively recent development in DUI investigation. The officer is attempting to estimate the angle at which your eye begins to jerk or oscillate back and forth by asking you to follow the penlight from one side to the other. If this so-called “jerking” of the eyeball occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. Some officers even contend that they can estimate your exact blood alcohol concentration by what angle of onset this begins at. The smoothness of the eye's tracking the penlight is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it can be thrown out as inadmissible evidence in many states. It continues, however, to be widely used by law enforcement.

The following cross-examination comes from the book Drunk Driving Defense, 5th Edition, by Lawrence Taylor and is an excellent example of how to deal with the officer when he's on the stand testifying about the HGN test in a drunk driving criminal case. Click here for sample…

Why Did The Officer Ask Me Questions About What I Ate and When I Slept?

In trying to determine whether he/she thinks that you may have been driving under the influence, the officer will ask you a series of questions to establish what is commonly referred to as a drinking pattern. Such questions relate to when you last ate and what you had, when you last slept, for how long you slept, when you may have had an alcoholic drink, how many you may have had, over what period you consumed the drinks, etc… The answers given to these questions coupled with your height, weight, etc… will help determine whether your resulting blood alcohol level coincides with what you may have told the officer you had to drink…in short, they want to see if you lied to them.

What Was That Machine I Blew Into After the FST's?

You were probably asked to submit to a preliminary alcohol screening (PAS) device. THIS IS NOT A REQUIRED CHEMICAL TEST UNDER CALIFORNIA LAW. You should have been advised by the officer that the portable breath testing machine is an optional test that you had the right to refuse to take. If you did take this test, in many cases it can be kept out of a trial as inadmissible evidence since it is not recognized as a legal chemical test under California law.

Why Was I Arrested?

An officer uses the following factors to determine whether, in their opinion, you were driving under the influence:

• Driving pattern (weaving, speeding, accident, etc...)

• Objective symptoms (slurred speech, odor of alcohol, etc…)

• Performance on Field sobriety tests

• Intoxication Interview & Incriminating statements ("I only had two beers")

• Chemical test results – The Breath or Blood Test (Urine tests are only given in California when breath or blood are not available.)

What is The Law Relating to Chemical Tests?

In California, if you are arrested for DUI, you MUST submit to a chemical test at the detention center. You may choose whether to submit to a breath test, or a blood test . The refusal to submit to either of these gives law enforcement the right to force a blood draw from you. Furthermore, refusing to submit to a chemical test under California law can result in harsher penalties later…especially with the DMV.

After the Arrest…What Happens Now?

Upon your release, you will be given a citation or ticket, with a date to appear in court at the bottom. This is your arraignment date, the first appearance in the criminal action against you. Between the date of your release and the arraignment date, the prosecutor's office will be reviewing your case and filing charges. In some counties, the ticket itself can constitute the complaint (document that sets forth the charges against you). In others, the district attorney or city attorney's office will file what is commonly referred to as a “long-form complaint” against you. The complaint, in either form, is the legal document that brings you to court and starts the criminal process against you.

Usually in a standard DUI case, you will be charged with two separate criminal offenses:
Section 23152 (a) of the California Vehicle Code, driving under the influence; and,
Section 23152 (b) of the California Vehicle Code, driving with a blood alcohol level of .08% or higher.

If you find yourself with other DUI related charges, such as Section 23153 of the California Vehicle Code, driving under the influence causing injury, don't worry, we're here to help with all types of situations.

What About My License?

Besides the courts, the DMV is another entity you have to worry about. After being arrested for DUI, you will most likely have a license suspension issue with the DMV. You have ten (10) days from the date of your arrest to reserve a DMV hearing. This is not a criminal proceeding. It is a civil hearing before an administrative agency, the California DMV, regarding the status of your license. The matter before the DMV will be brought under the Administrative per se suspension law. Hiring WILL & WILL, LLP to represent you in your criminal matter means you get experienced representation in front of the DMV as well. We will argue for you at the DMV hearing and establish a transcript of the officer's testimony to help us fight your criminal case as well. It is a win-win situation for you!

What Can WILL & WILL, LLP Do For Your Criminal Case?

Once we've spoken to you and gotten the facts of your case, we will get started on reviewing the evidence that the prosecution claims to have against you. At your arraignment, we will tell the court how you intend to plead to the charges (not guilty), and we will receive a copy of the police report. Nothing else can be done at an arraignment. If you have already been arraigned without the help of an attorney, do not worry. You always have the right to bring an attorney in to represent you at any stage of your case. Once we are hired to fight for you, we will immediately begin combing every detail to see if there's any procedure that was not properly followed. Specifically, we are looking to whether there was a lawful stop, and if the officer did everything in the manner he/she is supposed to. Thereafter, if there's a motion to file to try and get your case dismissed, we'll do it. If not, we will be looking at what viable defenses there are to winning your case.

What Lies Ahead? How Long Will My Case Take?

After the arraignment, your case will go into its pre-trial stages. Most cases will settle, or resolve, during pre-trial and therefore never have to go to a jury trial. Thus, the pretrial stage of your case is very important in trying to argue for a dismissal or negotiate a plea agreement. WILL & WILL, LLP always uses their best efforts to do everything they can to get you a reduced charge and lesser penalties. During the pre-trial stages, we are trying to gather any and all evidence that the prosecution may have against you, and to argue the merits of your case to attain the best outcome for you, our client. How long the process takes depends on several factors such as the cooperation of the prosecutor, the calendar of the courts, etc… In general, however, your case can take as little as 2-3 months or longer if necessary.

What if I Don't Want to Take The Offer?

In the event your case cannot settle and was not dismissed through a pre-trial motion, we should be ready to proceed to trial. At this point, we will have obtained all of the discovery out there and can formulate your best trial defense strategies.



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