Our society takes an extremely harsh view of impaired driving. Numerous studies have established that the EXCESSIVE consumption of alcohol, among other substances, can severely diminish your ability to operate a motor vehicle. The essential issue to consider is not the fact that a driver has been drinking, although it is never wise to drink and drive, but the percentage of alcohol present in that driver's blood stream at the moment he was driving. In California the prosecution must prove a simultaneous NEXUS between the act of (1) driving an automobile while (2) under the influence of alcohol or drugs. In the case of DUI - Alcohol, this requires the people to establish that the accused had a Blood Alcohol Content (BAC) of .08% by volume. The fact that a driver has consumed alcohol is only an indication that he may have the essential (BAC); however, a toxicology report is always necessary in order to gauge the amount of alcohol absorbed into the blood. Once consumed, alcohol is either moving into or out of the blood stream and as a result the (BAC) is a moving target.
In California, a driver impliedly consents to having his Blood Alcohol Content tested upon arrest for having violated California Vehicle Code Section 23152 (a) or (b): Driving While Intoxicated (D.U.I.). The laws of California require a driver to submit either a blood, breath or urine sample in order to have the (BAC) established. The urine test has become somewhat unusual, since the procedure is more problematic for law enforcement, and therefore is rarely available. However, a driver must be presented with at least two alternatives and has the option to decide which test he will take. This selection naturally causes some confusion among drivers, as to what alternative is in their own best interest. We would like to offer this brief checklist in order to assist you when faced with this difficult decision.
WHAT NOT TO DO IF YOU'RE PULLED OVER
5 Rules of the Road
This is a question I have been asked at untold many dinner parties and over my morning cup of double shot café latte, down on Garden Street. The answer depends upon what substance you may have either ingested or smoked and when that was done in relation to the test being administered. As we have already discussed, the human body is always in the process of either absorbing or eliminating alcohol and other substances from the blood stream. With that in mind, I would like to offer the following keys to remember. If followed properly, these simple “rules of the road” will assist you in preserving a number of good defenses and prevent law enforcement from building an insurmountable case against you.
FIRST: I cannot emphasize how important it is that you be compliant and respectful with law enforcement. Always be pleasant and compliant with the requests being made of you by members of the police, short of allowing them to intrude upon your rights. Remember, from the moment you are approached by members of the police, this matter is headed toward your arrest.
Please refrain from trying to talk your way out of the situation in which you find yourself. Everything you say is an invitation to be recorded as a part of the officers’ report.
NEVER...NEVER...NEVER...NEVER...under any circumstances should you reply once the officer asks "How many drinks have you consumed?" This is the beginning of an investigation and you would do better to cordially reply: "I'm sorry officer, but under the advise of my attorney, I MUST refuse to answer any more questions." So, try not to “volunteer” or “talk too much” while courteously answering the questions posed to you.
SECOND: ALWAYS refuse to engage in the series of Field Sobriety Tests (FST) offered by members of law enforcement. Your performance upon these test are not likely to result in your being allowed to leave. In fact, your performance on these “stupid human tricks” will be observed and reported on in the least complimentary fashion by law enforcement. When asked to perform the series of evaluation by police, you should politely say:
“I’m sorry officer, but under the advice of my attorney, I respectfully refuse.” You should say this in a pleasant manner with an eye toward preventing the officer from acquiring evidence which will be damaging to your defense.
THIRD: You are not required to take the Preliminary Alcohol Screening (PAS) test and should ALWAYS refuse unless the alcohol consumption took place less than twenty minutes prior.
Implied consent does not require a person of legal drinking age to submit to a test prior to having been placed under arrest. However, it is always a good policy to be friendly and agreeable with law enforcement. So, if the officer requests that you submit a sample into their (PAS) device along the roadside, politely ask the officer “Am I under arrest?” If the officer says anything other than a definitive “Yes”, you should reply:
“I’m sorry officer, but under the advice of my attorney, I respectfully refuse.” You should say this in a pleasant manner with an eye toward preventing the officer from acquiring evidence which will be damaging to your defense.
Alcohol will take at least twenty minutes to begin accumulating in the blood stream and as a result the (PAS) will not provide an accurate assessment of your (BAC). Additionally, the (PAS) does not include a “slope meter” and for this reason is not admissible as definitive proof of intoxication at trial. It truth, the (PAS) is solely devised to assist law enforcement in accumulating evidence which will incriminate you. So, unless you are below the legal drinking age, where refusal is not permitted, you should NEVER take the (PAS) prior to being placed under arrest.
NOTE: Recent technological advancements in the field of blood alcohol measurement may soon result in the introduction of a device know as the Electronic Preliminary Alcohol Screening device (EPAS). This device has the added advantage of including a “slope meter” and can be administered in the field by law enforcement. Since the device includes the “slope meter” it will be admissible to prove (BAC) at trial. HOWEVER; you are still entitled to refuse prior to being placed under arrest.
FORTH: You should ALWAYS request a urine or blood test after being placed under arrest by law enforcement. The reason for this is that the police officer will have only limited evidence with which to write out his police report. You have already deprived him of the (FST) and (PAS) evidence with which he would ordinarily write out a report. By refusing to submit to the Breathalyzer / Intoxilyzer, you will again have deprived him of evidence he would normally have detailed in a police report. The lab results from a urine or blood test will take weeks to develop and therefore, the police officer will be forced to submit his report with only the limited evidence obtained along the roadside.
In addition, the urine and blood samples must be preserved in order to allow a defendant to submit them to an independent laboratory. Many times, the independent laboratory will return results which differ from those obtained by the police. This can have a tremendous effect upon your ability to defend an accusation of having driven while intoxicated.
FIFTH: If under the influence of drugs, it is ALWAYS in your best interest to submit either a urine or blood test, since the level of intoxication is very difficult to determine. Without the breath test, officers will be unable to determine if you have had anything to drink. Absent that certainty, the officer will write a police report which is “wishy washy” and inconclusive about what substance you may have been using. This type of report is ripe for a challenge at trial.
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California State Bar # 242899
