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What Happens If You Are From Out of State, But You Are Charged With DUI In California?


Interviewer: Do you have people calling and saying, “I requested an attorney, but they won’t give me one.” Does that come into play very often?

Aaron: It does because a lot of people think that they have the right to an attorney when they are pulled over. Unfortunately, because there are different rules in different states, clients who are from out of state refuse to do a chemical test because the cop said they do not have the right to an attorney.

They think, “Wait a minute, I do. When I had a DUI in my state, or my friend did, a lawyer told me there was a right to an attorney. I don’t believe this cop. I don’t believe what they are saying. I don’t believe what their partner is saying. I don’t believe what their supervisor is saying.”

So the driver refuses to take a chemical test; and all of a sudden, their privilege to drive in California is going to be suspended for a year unless we can win a DMV hearing.

Interviewer: In terms of taking the breathalyzer test at the station, when does this become an issue? Do people say,” I want an attorney beforehand.” When is that said?

Aaron: It is often said at all different points. I usually see it when the cop arrests someone and then gives the person the choice to test. They say you have to do a breath test or a blood test. “I need to talk to an attorney about that,” says the person. Then, the officer will say, “You don’t get to talk to one.”

The police are supposed to read them an admonishment, which they have. It basically says what your rights are and that you are not allowed to refuse a test if you have been arrested for a DUI.

There is something called implied consent. Basically that law says when you signed to get a license in California, when you filled out the form and signed your name, you implied consented that if you are arrested for DUI in California you will take a breath or a blood test.

There also used to be a urine test, but now it is just breath or blood. A problem comes up when someone is from out of state. They did not sign the implied consent. Yet, the courts have said they are subject to the laws in California, when they are driving in California. Unfortunately, a lot of people get the short end when they are from out of state and try to assert rights they may have in their state.

I also see, sometimes from the beginning, someone will say they want a lawyer. The cops say, “Well, you don’t get a lawyer.” So I see people respond, “Well look, I am not saying anything. I am not going to talk to you.” That is fine. Actually, that can be helpful because they are not doing anything the cops can really use against them.

If you do not talk, they cannot use it against you. They can try and use that as an admission of guilt. However, at the point they eventually say, “Okay, you are under arrest for a DUI,” you have to choose a chemical test.

If you continue to not say anything or choose a test, then they will put you down as a refusal. After they read you the admonishment, you have to be careful.

By Aaron Bortel

Aaron Bortel

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