At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 523-7878

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What Rights Do I Have After A DUI Arrest In Marin County?

Once the officers or officer lets you know that you are under arrest for DUI, once they slap those handcuffs on you, you have constitutional right before and after. There are some very important ones, you have a right to remain silent and not say anything. Making statements to an officer is not a good idea. If they want address and things like that, name, that’s okay, but talking to them about the facts of the case is a bad idea. But you do have the right not to talk anymore about it once you’ve been arrested. If they do arrest you, at that point, if they want to ask anymore probative questions about the case itself, they are supposed to Mirandize you, but they don’t have to before they make the decision to arrest.

When we talk about rights, in California, there is a law that says that you are required to take a chemical test, if arrested for a DUI. That’s a blood or a breath test. You get to choose which of those tests you take. If one’s not available, you are required to choose the other. If you do not agree to take either, the police will do a forced blood draw. They will get a warrant from a judge and have your blood drawn. So it is a good idea, in these cases, to agree to one test or the other. If you have illegal drugs in your system or prescription drugs that may have increased the impairment with the alcohol, a breath test would probably be a better idea than a blood test for you. If you want more defenses in a DUI case that may go to a trial, a blood test will give the attorney, the experienced attorney, more areas to work with because there are so many things that can go wrong in a blood test.

That is typically what I would advise people to do. There can be problems with the admonishments, and there can be problems with the actual drawing of the blood. The blood is supposed to be drawn in a medically approved manner, and there’s a lot to that. The draw itself needs to be done in a sterile way, and there can be contamination that can come across the blood draw site, which is typically on the underside of your arm. That is something that can be looked at. Also, just the way that the sample is collected, whether or not they shake or invert the tube or tubes that have the blood is important. A number of times we can look at the chain of custody—the way the blood is transported, the way it will sit in the mailbox in Marin County, especially northern Marin going up to Sonoma County, those are hot mailboxes and those postal trucks are not necessarily air-conditioned.

It can take a while for them to test the blood, and a lot of things can go wrong. If there is any contamination in the blood, they get the micro-bacteria, and that increases the blood alcohol level. That’s something that is critical to understand in fighting these cases, especially because we see in cases, for example, if someone is blowing maybe a 0.08 on the preliminary alcohol screening test, and then the blood test comes back, and it’s much higher or if they didn’t have much to drink at all but their blood test is at or over the limit, that can be an indication of contamination in the blood.

Unfortunately, most people don’t know this before they get a DUI, but maybe it can help people who might get in trouble in the future, or if you need to advise friends. You really want to be careful with this, because the problem with refusing a case is that you’re going to lose your license for a year on top of they’re going to charge you with the DUI, and try and convict you of a DUI. This means you’re facing all the additional penalties as well. The problem with the refusal allegation is if you don’t win the hearing at DMV or in court, you’re looking at a year of no driving, instead of what is typically a month of no driving, followed by 5 or more months of work restricted driving in to and from the DUI School.

Can I Consult With An Attorney Prior To Making A Decision On The Chemical Test In Marin County?

Unfortunately, you do not have the right to talk to an attorney to advise you as to whether you should take a test, or which test you should take. You’re supposed to be given one phone call from jail, but at that point, it’s after any testing happened, so you don’t need to call the attorney from jail. Typically, people aren’t even allowed to call from jail. After you get out, wait until normal hours to call your attorney. Don’t call the attorney at 5am. You can always call my office, and my service will pick up 24×7. They will take a message, and as soon as I am able to, I will call you back, or text you to let you know when I can call you back.

It’s important to leave a good number to reach you out, and also an email address, so I can email people as well. But again, if you are in jail, or even out on the street, the cops do not let you contact an attorney, and they don’t have to. You do need to choose one test or the other, and we talked about in which circumstances it would be better to do which type of test.

For more information on Rights After DUI Arrest In Marin County, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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