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Law Firm of Aaron Bortel

DUI Cases: General Rules


Because many individuals are stopped for suspicion of DUI, knowing what to do in the situation and the rules associated with such stops can help a person strengthen his or her defense if he or she is arrested for DUI. This information comes straight from an experienced DUI attorney.

Right to Remain Silent

It is during questioning by a law enforcement officer, that the defendant’s right to remain silent takes effect. While he or she may be required to provide some information, this requirement is usually limited in scope. It may only include the defendant’s name, driver’s license, registration and proof of insurance. It is of utmost important to avoid answering questions that may incriminate the defendant, questions that could lead to admission that the driver has consumed alcohol or drugs rarely helps his or her case.

Sobriety Checkpoints

A person may be stopped at a sobriety checkpoint that is implemented to enforce drunk driving laws. There are certain procedures that must be followed in order to establish a valid checkpoint. Some jurisdictions require law enforcement agencies to publish the intended location of such checkpoints. Individuals in these areas can check for such locations before venturing out. Their DUI defense lawyer may also investigate if the proper protocol was followed in implementing the checkpoint.

Field Sobriety Tests

In a field sobriety test, a law enforcement officer instructs the defendant to complete specific tasks while the law enforcement officer monitors the defendant for signs of intoxication, such as involuntary eye movements, balance, motor function and the ability to follow instructions. The goal of the sobriety test is to find the defendant to have failed in order to have a probable cause needed to arrest him or her without a warrant. Generally, a person is under no obligation to complete these tests. In addition, he or she cannot be punished for refusing to take these tests. In states where the tests do not have to be validated by scientific or medical evidence, the risk for an officer to improperly interpret the test results generally outweighs any benefit of taking them.

Portable Breath Tests

In performing roadside test, some states use a portable breath test. Like the field sobriety test, the objective is the same, to gather evidence to ultimately use against the defendant. These tests and the devices used to perform the test are generally much less reliable than other breathing machines and testing procedures. Many states do not penalize citizens who refuse to take such tests since their accuracy is often skewed.

Chemical Tests

Chemical test usually includes breath, blood and urine tests. The criminal defendant is allowed, in some jurisdiction, to decide which test he or she will take. The blood test typically yields the most accurate result. However, each test is subject to errors that can affect its accuracy, such as using an alcohol wipe before drawing blood, mixing up samples, breathing too hard into the device or other problems. Refusing to take such a test may result in additional or separate penalties.

Implied Consent

Many states have implied consent laws that establish that every driver provides consent to take a chemical test in the event that he or she is stopped by law enforcement. If the defendant refuses to take such a test, he or she may face license suspension, points on his or her driving record and potential other penalties. Some defendants choose to refuse such tests because they know that it is harder to defend someone who has failed such a test. However, refusal may be a separate crime in the jurisdiction and can also be used as evidence presented to a judge or jury as a showing of guilt.

License Suspension

At the time of arrest, a person’s driver’s license may be confiscated, a temporary driver’s license will then be issued. In order to prevent the suspension of the driver’s license, he or she might request an administrative hearing. This proceeding is often treated separately from the criminal aspect of the case and deals solely with the repercussions of a person’s license. This may anywhere from a few months to more than a year to a lifetime restriction.

Penalties

The penalties for a DUI conviction vary by jurisdiction. Possible penalties include jail time, probation and community service, or the requirement to attend alcohol or drug treatment counseling and the installation of an ignition interlock device.

Right to Legal Counsel

A person charged with DUI has a right to legal counsel. However, law enforcement generally does not have to stop an investigation in order for a person to receive legal counsel. A defendant can contact a lawyer once arrested to learn about possible ways to defend against the case.

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About the Author

Aaron Bortel is a Lawyer in the San Francisco Bay Area. He’s been a Criminal Defense attorney for over 25 years whose practice is dedicated exclusively to DUI law. He has offices in Marin County and San Francisco and defends his clients in all Bay Area Courts and at DMV.