Do I have to do the field sobriety tests?
No. The California Implied Consent law requires that you submit to a blood, breath, or urine test. It does not require you to perform field sobriety tests. Performing the field sobriety tests only provides the prosecution with more evidence that you were under the influence of alcohol.
Do I have to do the breathalyzer?
It depends. If you are referring to the Portable Alcohol Screening Device (PAS) that is mounted in the trunk of the police vehicle or the handheld breathalzyer, the answer is usually no. However, if you are under the age of 21, you do need to perform the PAS test.
If you choose not to do the PAS test you need to be very clear that you are not refusing to take a test at the station. The California Implied Consent law requires that you submit to a blood, breath, or urine test. You must submit to one of these types of tests at the station or you will be charged with a refusal, which will result in the suspension of your license for 1 year and the prosecutor may be able to use this evidence as “consciousness of guilt” at trial.
Should I take the field sobriety tests and/or breathalyzer?
You should only take the field sobriety and/or PAS test if you are confident that you can pass them. If you haven’t been drinking, you should take the tests to prove that you have not been drinking. Otherwise, the officer will likely arrest you and take you to the police station where you will then give a breath or blood sample. California law requires that you submit to a blood, breath, or urine test. Refusal to submit to one of these tests will result in a 1 year suspension of your driver’s license and the prosecutor may be able to use this evidence as “consciousness of guilt” at trial.
I blew under .08% on the breathalyzer, can the police still arrest me?
Yes. Even you blow under the legal limit of .08%, the police officers can and usually do still arrest you. If the police officer suspects that you are under the influence of drugs he may request that you provide a blood sample at the station. If the blood test reveals that you were under the influence of drugs, the prosecutor may charge you with a DUI.
In addition, you can still be charged with a DUI under California Vehicle Code 23152(a), which only requires that were under the influence of alcohol, drugs, or the combined influence and not able to operate your motor vehicle with the same care and caution of a sober person. That means if you only blew a 07%, but the prosecution can show bad driving, you can still be convicted of a DUI.
Don’t the police have to read you your Miranda Rights when they pull you over?
The police are only required to read your Miranda Rights in the case of a custodial interrogation (when you are arrested and then questioned). That means if the police have not arrested you, they can ask you questions without reading you your Miranda Rights. Remember, you have the right to remain silent. You must give them your license, registration, and proof of insurance, but you don’t have to answer their questions. You must also agree to submit to a breath, blood, or urine test. Failure to agree to perform one of these tests, may result in a refusal allegation, which carries a 1 year license suspension. You do not have the right to speak with an attorney before deciding which test to take.
What is the pink piece of paper the officer gave me after I was arrested for a DUI?
After you are arrested, the officer typically takes your license and gives you a pink piece of paper. That piece of paper is your temporary driver’s license and also has instructions on how to request a DMV hearing. The temporary license is valid for 30 days unless you request a DMV hearing. If you want a DMV hearing, you must request a hearing with 10 days of your arrest or your right to a hearing may be waived. Requesting a DMV hearing and requesting a “Stay” will enable you license to remain valid pending the outcome of the DMV hearing.