These frequently asked questions are intended to provide basic information about common issues that arise in DUI cases. If you have questions or would like to speak with an experienced DUI attorney about your case, contact California criminal defense attorney Elliot Silver today for a free consultation.
Call Silver Law Firm today at (510) 995-0000.
Does a police officer need probable cause to pull me over for suspicion of driving under the influence?
No. The police do not need probable cause to make a traffic stop in California, but they must have reasonable suspicion. Reasonable suspicion is a lower standard than probable cause, it requires an officer to have specific and articulable facts to support their belief that a crime is taking place.
In many DUI cases, the initial traffic stop is triggered by a traffic violation or a driving pattern that is consistent with drunk driving, such as speeding, tailgating, swerving, driving without headlights, erratic braking, and disobeying traffic signals.
For example, if an officer observes that you tail a car for an extended period of time and that you aggressively follow it from lane to lane, dangerously making turns and lane changes, you may be pulled over for an initial traffic stop. If the officer observes what they believe are signs of intoxication, they will conduct a roadside DUI investigation that could lead to a DUI arrest and charges.
What signs do police officers usually look for during a roadside DUI investigation?
Reasonable suspicion is only sufficient to justify a brief traffic stop, so the officer will look for what they consider to be objective signs of intoxication in order to proceed with a DUI investigation and testing to substantiate further detention. According to the police, some objective symptoms of intoxication include:
Bloodshot, red, or watery eyes
Smell of alcohol on your breath
Impairment of motor skills; e.g. fumbling with wallet or unable to locate documents
Additionally, the police officer is likely to ask whether you have been drinking and any admission that you have consumed alcohol can be used as evidence against you. It is important to remember that you are not required to answer police questions regarding your drinking. You should not answer any questions until you speak to a DUI attorney.
What constitutes a DUI offense in California?
In California, a person commits a DUI offense if they:
Are 21 years old and older and operate a passenger vehicle with a Blood Alcohol Content (BAC) of .08 or higher
Operate a commercial vehicle with a BAC of .04 or higher
Are Under 21 years old and operate a motor vehicle with a BAC of .01 or higher
Operate a motor vehicle while under the influence of alcohol regardless of BAC. Under the influence of alcohol means that your physical or mental abilities are impaired to the extent that you cannot drive as a sober person of ordinary prudence would under the same or similar circumstances.
Operate a motor vehicle while impaired by prescription medications, over-the-counter medications, a controlled substance, or marijuana.
Do I have the right to refuse a field sobriety test?
Yes. You can refuse a field sobriety test and you should in most cases. You are not required to submit to a field sobriety test. There are three standardized field sobriety tests (FSTs): horizontal gaze nystagmus, walk-and-turn, and one-leg stand. The National Highway Traffic Safety Administration (NHTSA) claims that these tests are reliable and an objective means for determining whether an individual is intoxicated. Research indicates that these exercises are flawed junk science and produce inaccurate results.
Unlike refusing a DUI chemical test (blood, urine, or breath), there are no legal penalties for refusing to perform FSTs. However, the officer may use other evidence of intoxication, such as the smell of alcohol or slurred speech, to determine whether to arrest you for a DUI.
What happens if I refuse to submit to a DUI chemical test?
The DMV will suspend your license. Per California’s implied consent law, any person driving a motor vehicle is deemed to have consented to a blood or breath test after being lawfully arrested for a DUI. However, you may still refuse. But, if you refuse to take a chemical test after being lawfully arrested for a DUI in California, you will face penalties, such as:
One-year license suspension for a first offense
Two-year license revocation for a second offense within past 10 years
Three-year license revocation for a third or subsequent offense within the past 10 years
If you refuse, the cops will still get your blood. They will get a warrant to draw blood anyway. If you refuse a blood or breath test and the officer obtains a sample with a warrant, you will still face a license suspension. Sometimes, it takes so long for the warrant process that the alcohol blood content may not be reliable anymore to indicate your alcohol level at the time you were driving.
Before consenting to any chemical test, you should seek legal assistance from an experienced DUI lawyer at Silver Law Firm. Attorney Elliot Silver will evaluate your situation and help you make the best decision under the circumstances and contest the validity of the DUI chemical test results.
I’ve been arrested for a DUI. Do I need an attorney?
Yes. After you have been arrested for a DUI, you will need to obtain legal counsel as soon as possible. An experienced California DUI lawyer can represent you to challenge the DMV administrative suspension of your driver’s license, minimize the likelihood of a conviction, and challenge the reliability of FSTs or chemical test results.
The legal system can be overwhelming, especially those facing false or damaging criminal charges. That is why it’s important to have an attorney on your side who understands your concerns and is dedicated to helping you.
California DUI attorney Elliot Silver has more than 22 years of legal experience and is committed to providing the most aggressive defense possible for his clients. He understands how to build an effective defense strategy and will do everything possible to protect your future and freedom. He has defended countless clients facing DUI charges and will work to achieve successful results in your case.
The arresting officer issued me an Order of Suspension and Temporary License. What is that?
At the time of your arrest, the police officer will typically confiscate your driver’s license and issue you an Order of Suspension/Revocation and Temporary License. The temporary license is valid for 30 days.
You have 10 days from the date of arrest to request an administrative hearing with the California DMV. To preserve your ability to drive, it is critical that you contact an experienced California DUI attorney as soon as possible after arrest. Criminal defense attorney Elliot Silver will work to save your driver’s license from immediate suspension or revocation, so contact him today.
What is the difference between the DMV process and my criminal case?
A DUI arrest results in two separate actions – administrative action against your driver’s license called an Administrative Per Se (APS) hearing, and criminal DUI charges. The APS process deals solely with your driver’s license and does not reach the issue of guilt or innocence. The outcome of the DMV hearing will not impact your criminal case.
Criminal penalties resulting from a DUI conviction (e.g. incarceration, fines, license restriction, probation) are independent from the driving privilege sanctions imposed by the DMV under APS.
Your ability to drive is critical. A suspended or revoked license will make your life very inconvenient. Working with a knowledgeable DUI attorney as early as possible will help win the battle in the administrative and criminal proceedings.
What are the penalties for a DUI?
The penalties for a DUI in California depend on two primary factors – whether it is your first, second, third, or subsequent DUI offense, and whether any sentencing enhancements apply. Generally speaking, criminal penalties increase with each subsequent DUI conviction. If convicted, the possible DUI penalties include, but are not limited to:
Jail or prison time
Driver’s license suspension
Required attendance at DUI school
Installation of interlock ignition device on your personal vehicle
What is a sentence enhancement?
Sentence enhancement laws either permit or require a court to increase the punishment for an offense when certain aggravating circumstances apply, or because of a prior conviction. In California, the following factors can lead to a sentence enhancement for a DUI conviction:
Prior DUI conviction within the last 10 years
Excessive speeding (20 mph over the posted speed limit on surface streets, or 30 mph over on freeways)
Child endangerment (DUI with a child under 14 years of age in the vehicle)
Refusal to submit to chemical testing
BAC of .15 or higher
Causing a car accident that results in personal injury or property damage
Does California have any alternative incarceration sentencing options for DUI cases?
Being convicted of a DUI doesn’t necessarily mean you’ll spend time behind bars. There are several alternative incarceration sentencing options for those convicted of DUI in California. Some of the most common alternative sentencing options in California are community service, Sherriff’s Work Programs, electronic monitoring or house arrest, alcohol/drug rehabilitation, and sober living programs. If you have been charged with a DUI, attorney Elliot Silver will explore alternative sentencing options and help you obtain the best possible outcome in your case.
What types of defenses are available in a DUI case?
Defense options for your DUI charge will depend on the specific facts of your case. There are many ways your attorney will defend you in court, so it is important to know some of the arguments they can make on your behalf. Some of the most commonly used defenses in DUI cases are:
The field sobriety tests are not reliable
Lack of reasonable suspicion to make the initial traffic stop
Lack of probable cause to make arrest
Inaccurate chemical testing
Unconstitutional DUI checkpoint
You were not driving
California DUI lawyer Elliot Silver has years of experience defending individuals charged with DUI offenses. He is passionate about protecting his clients’ rights and freedoms, and will argue every possible angle to get the best outcome in your case.
How can Silver Law Firm help with my DUI case?
If you have been arrested for or charged with a DUI, California DUI defense lawyer Elliot Silver can help. He knows how to challenge DUI evidence and will fight to protect your rights throughout the criminal process. He will be your best resource in and out of the courtroom, and he has the experience, knowledge, and dedication to mount an effective defense strategy in your case.
Contact Silver Law Firm today at (510) 995-0000 to schedule a free consultation.