How Is DUI Defined Under California State Law?
DUI has different definitions depending on the facts involved in a particular case. A general definition of DUI is when someone is driving under the influence of alcohol, a drug, or their combined influence and they are unable to operate a vehicle in the manner of a sober person. For adults, Penal Code section 23152(b) prohibits operating a vehicle with a blood alcohol content (BAC) of .08 or higher. The law presumes that you were above .08 at the time of driving if a blood test taken within three hours of your arrest is .08 or higher. This is a rebuttable presumption because there may be reasons that your BAC is .08 or higher, such as recent drinking of alcohol, belching, vomiting, faulty equipment, etcetera. If you are an adult with a commercial driving license, then the blood alcohol content limit goes down to .04 and the same presumption applies. If you are an adult but less than 21 years old, the blood alcohol limit is .05.
A person on probation for DUI with a blood alcohol content of.01 or higher will also be charged with a crime and you could also be charged with a DUI even if your BAC is not 0.08 or higher. This is because alcohol affects the ability to drive a motor vehicle with the caution of a sober person under similar circumstances. Under these circumstances, you can be charged with a violation of Penal Code section 23152(a), which does not require a BAC of .08 or higher. A person can also be charged with a DUI for driving under the influence of drugs. It’s important to note that that this is not limited to illegal or “street” narcotics. For example, marijuana has recently become legal to use in California but you still can’t drive under the influence of this particular drug.
People might think DUI only includes drugs such as heroin, methamphetamine, or cocaine. But it also includes legally prescribed and over-the-counter medications that affect a person’s ability to operate a motor vehicle. Some examples of these drugs can include Xanax, Ambien, or any other sleeping medication, and even some strong cough syrups. As long as it affects your ability to drive the motor vehicle, prescription medication is not an excuse; in fact, most prescriptions will say not to operate a motor vehicle. The presence of drugs in your system and all the surrounding circumstances will be used to determine whether you are driving under the influence.
What Happens After Someone Is Pulled Over On Suspicion Of Being DUI?
Being pulled over for DUI starts the moment you see police emergency lights behind you. If you’ve been drinking anything, it’s a good bet that law enforcement is going to conduct a DUI evaluation. That evaluation had already started before you were stopped. Law enforcement had likely been following your vehicle for some time and making note of your driving characteristics; speed, ability to stay in your lane, and any other factors they might want to consider. They may have stopped you for a minor traffic violation such as failing to stop at a stop sign or running through a red light. When you’re stopped, the officer will approach your window. They’re evaluating everything to support their already established suspicion that you were driving under the influence.
The usual procedure is for the officer to ask for your license and registration. The officer will note your speech, whether your eyes are red, bloodshot, or watery. They’ll note if there is an odor of alcohol and whether it is strong, moderate, or mild. If the officer detects any of these factors they will ask you to get out of the car and will pay special attention to your coordination. When you hand the officer your driving credentials, the Officer will be watching for fumbling, whether you have trouble getting it out of your wallet, if you could not locate it, or maybe you dropped it. All these minor factors are considered when determining if you can safely operate a motor vehicle based upon something called divided attention tasks. The officer will ask you a series of questions which are designed to assess your sobriety and also to foreclose any possible defenses. It’s important to note that citizens are not required to answer any questions, so don’t. Short of your name and address you can, and should, politely tell the officer, that you won’t answer any questions without a lawyer.
They may ask, “Have you been drinking?” People always lie about when they started drinking when they stopped, and the amount that they drank. Even, if they tell the truth the officers are going to believe they lied! The moment you say you’ve had only two drinks, they won’t believe you. In fact, the lie generally hurts your defense more than it helps. It’s better to say nothing and wait for the BAC test results. You will also be asked to perform a series of field sobriety tests, FST’s, to assess your coordination and your ability to perform divided attention tasks. Divided attention means to the ability to do a number of different things at once, which is what we do when we drive. The results of the FST’s will be assessed to determine whether or not you can perform the task of driving. You are not legally required to do these tests. You can, and should, say, “I choose not to do the field sobriety test.”
You’ll be offered the option of completing a voluntary breath test. You may and should refuse to give a breath sample on the voluntary breath test. They will tell you that you’re not required to do it but that it will help them assess whether or not you’re under the influence. But even though it is voluntary, the DA will still use it as evidence against you. If you are arrested the officer will tell you that you must complete either a breath test or a blood test. If you refuse to do this test then your license will be suspended for one year whether or not you were driving under the influence.
The law in California for having a driver’s license means that you have given implied consent to testing your blood and breath. You are required to submit to a mandatory blood or breath test if you are arrested for driving under the influence of alcohol. This is not the voluntary test but the “evidential test”. You are required to complete this test. You may refuse to do it but refusal will result in a one-year driving license suspension. The police will then likely get a search warrant and do an involuntary blood draw. The result is that they will still get your blood and you still lose your license for a year.