California DUI Tips
When questioned for DUI before arrest, you are not in custody for the purposes of Miranda Warning. If you politely refuse to answer any of the cop's questions concerning the DUI investigation, either before or after the arrest, then there won't be any statements that can be used against you in court.
Field Sobriety Tests are completely voluntary. If you perform them, you may be arrested anyway. It may be better not to give the cop evidence that will be used against you in court. You can politely refuse to do the Field Sobriety Exercises. Refuse to take the preliminary alcohol screening test.
If you are older than 21, the test is voluntary and you have the right to refuse this type of breath test. When given a choice of blood, breath or urine test after arrest, choose a urine test if it is available. It is the most unreliable; however, the officer may only offer a blood or breath test. If no urine test is available, choose a breath test. The breath machines are not 100% accurate and there are many possibilities for error.
See California DUI & Drunk Driving Defenses to San Diego County Breath Test. If in another city or state such as Wilmington North Carolina make sure to contat a Wilmington North Carolina Attorney. Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety. Always be polite and respectful to the police officers. How you are perceived by a jury is extremely critical. Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.
Make a detailed list of all the events before being stopped up to and including being released from custody. Retain an experienced DUI/DMV defense attorney to represent you. Only an experienced DUI/DMV defense attorney is able to spot your favorable issues and present them to prosecutor, judge , jury, or DMV hearing officer. Remember, the best way to avoid a DUI conviction or DMV suspension is to not drink and drive.
Purchasing a Portable Breath Tester will also assist you in determining your alcohol level before you drive. Unfortunately, the way our laws are going, even if you've had only a small amount of alcohol and you are not impaired, as long as you smell like alcohol your chances of being arrested are very high.
However, being arrested for DUI does not automatically result in a conviction or loss of your driver's license. Protect your rights and save your license. The above Top 10 tips are designed to provide accurate and authoritative information. It is not designed to render legal opinions.
California DUI - Driving Under the Influence of Drugs - California DUI Lawyer arguments re: Sleep Driving
California DUI is a general intent crime, except that driving requires volitional movement of the vehicle which means specific intent. For a general intent crime, mistake of fact is a possible defense. Mistakenly sleep driving may be a defense to a California DUI. A California Drunk Driving Lawyer can ask a California DUI jury to be instructed, for example: If defendant made a reasonable and actual mistake as to a fact, and if that fact were as the defendant believed, then the defendant would be not guilty.
A DUI Attorney in your area should be easy to find. A good attorney or firm will spend money on advertising and this shows that they are successful in thier particular niche. Spending money to generate business and visibility like news paper ads and good Law Firm SEO practices proves they are experts in their field and are the right ones to hire for your case.
(The defendant does not have the intent required and must be found not guilty.) A California Drunk Driving Attorney may argue a California DUI - Drugs case, depending on the facts, as follows: A person may have an actual and reasonable belief that the drug would be out of her or his system and not effecting her or him after X hours as indicated by her or his doctor. The doctor told her or him not to drive for X hours.
The prescription information says to designate X hours to sleep and use caution when driving. So if that were in fact true, the prescription was out of her or his system and would not effect her or him. Accordingly, a California DUI Attorney may argue defendant should be not guilty as she or he did not have the required intent. Involuntary intoxication may be based on an unanticipated reaction to medication taken as lawfully prescribed. The recent urging of stronger warnings about medications such as Ambien gives strength to the argument.
Some recommendations include not taking the sleeping aid until you are actually home and ready to go to bed, and do not mix it with any other RX or alcohol. Some people take the medication before they drove home, figuring it would take time to kick in. A California DUI Lawyer may present researchers showing that people have varying rates of metabolism and tolerance. If a person is "sleep driving" then she or he is unconscious - this is a separate and distinct defense under Penal Code Section 26 (Four), below. Penal Code Section 26: All persons are capable of committing crimes except those belonging to the following classes: One--Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.
Two--Idiots. Three--Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. Four--Persons who committed the act charged without being conscious thereof. There also have been California DUI Law reports of persons home alone, drinking. Long-term users who have had similar sleepwalking experiences, but not sleep-driving to their knowledge.
They generally have no valid excuse for being out on the road when they were. They retired to bed for the night and later were arrested with very little post-arrest recollection of the specifics of being stopped by the police, other than the image of lights. Consult a possible expert: e.g. Stanford Sleep Disorder Clinic at Univ. School of Medicine. Expert's bottom line conclusion: Person's driving not purposeful - lacked volition and an involuntary manifestation of sleepwalking. FDA Requests Label Change for All Sleep Disorder Drug Products The U.S. Food and Drug Administration (FDA) requested that all manufacturers of sedative-hypnotic drug products, a class of drugs used to induce and/or maintain sleep, strengthen their product labeling to include stronger language concerning potential risks.
These risks include severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event. “There are a number of prescription sleep aids available that are well-tolerated and effective for many people,” said Steven Galson, M.D., MPH, director of FDA’s Center for Drug Evaluation and Research.
“However, after reviewing the available post-marketing adverse event information for these products, FDA concluded that labeling changes are necessary to inform health care providers and consumers about risks.” In December 2006, FDA sent letters to manufacturers of products approved for the treatment of sleep disorders requesting that the whole class of drugs revise product labeling to include warnings about the following potential adverse events: Anaphylaxis (severe allergic reaction) and angioedema (severe facial swelling), which can occur as early as the first time the product is taken.
Complex sleep-related behaviors which may include sleep-driving, making phone calls, and preparing and eating food (while asleep). FDA has been working with the product manufacturers over the past three months to update labeling, notify health care providers and inform consumers of these risks. Along with the labeling revisions, FDA has requested that each product manufacturer send letters to health care providers to notify them about the new warnings.
Manufacturers sent these letters. In addition, FDA has requested that manufacturers of sedative-hypnotic products develop Patient Medication Guides for the products to inform consumers about risks and advise them of potential precautions that can be taken to keep them from having to call a personal injury attorney South Carolina if they have an accident in that area. Patient Medication Guides are handouts given to patients, families and caregivers when a medicine is dispensed. The guides will contain FDA-approved information such as proper use and the recommendation to avoid ingesting alcohol and/or other central nervous system depressants.
When these Medication Guides are available, patients being treated with sleep medications should read the information before taking the product and talk to their doctors if they have questions or concerns. Patients should not discontinue the use of these medications without first consulting their health care provider. Although all sedative-hypnotic products have these risks, there may be differences among products in how often they occur.
For this reason, FDA has recommended that the drug manufacturers conduct clinical studies to investigate the frequency with which sleep-driving and other complex behaviors occur in association with individual drug products. The medications that are the focus of the revised labeling include the following 13 products: Ambien/Ambien CR (Sanofi Aventis) Butisol Sodium (Medpointe Pharm HLC) Carbrital (Parke-Davis) Dalmane (Valeant Pharm) Doral (Questcor Pharms) Halcion (Pharmacia & Upjohn) Lunesta (Sepracor) Placidyl (Abbott) Prosom (Abbott) Restoril (Tyco Healthcare) Rozerem (Takeda) Seconal (Lilly) Sonata (King Pharmaceuticals) For California DUI Lawyer information on sleep disorders and sedative hypnotic products, go to: http://www.fda.gov/cder/drug/infopage/sedative_hypnotics/default.htm; www.fda.gov/womens/getthefacts/sleep.html and /or www.nhlbi.nih.gov/health/dci/Diseases/inso/inso_whatis.html.
California DUI Attorney - Cell Phone Interference
To be safe, all cellphones and other transmitting devices should be turned off within at least 30-35 feet of any California DUI breath test machine or California DUI Preliminary Alcohol Screening breath test. Unless these precautions are made by California DUI police, there exists the serious risk of frequency interference, causing one's California drunk driving breath test machine result to not be reliable or accurate. There are a number of different cellular systems in use in California.
In order of possible cellular interference, they are AMPS and D-Amps (analog), CDMA Code Division Multiple Access (digital) and TDMA Time Division Multiple Access (digital). Analog is obsolete technology but it is still being used. TDMA is easily the worst as it can easily inflate readings on most California DUI breath test machines.
The cellphone is transmitting SID signals (Signal Identification Data) at regular intervals to maintain communication with the nearest cellsite when not receiving cellphone messages. Possible cellphone interference increases when receiving voice or text because it is then in two-way communication to verify handset identity.
That exchange takes place before the phone even rings and if there is a CDMA/TDMA phone near to an in-use landline phone or e.g. a computer speaker system, one can often hear the reply pulses sent by the phone before it rings. This strong source of invasive Radio Frequency Interference (RFI) makes any California breath tests conducted under those circumstances extremely suspect and seriously questionable. Most RFI detectors are quite crude as they cannot detect at cellular frequencies or produce unreliable results.
Even the more regarded Draeger 7110 MKIII C (a purportedly superior machine not even used by San Diego DUI police) can be affected as it will produce erroneous responses when a TDMA phone is operated nearby. A problem is that the RFI detector simply does not detect all Radio Frequency (RF), no matter what the power or frequency. Normal radio traffic or FM or AM radio does not set off the detector.
There further may be a threshold level for power or frequencies at which the RF detector aborts the California DUI breath test. There was a study by Digital Corporation, done for CMI, the maker of San Diego Police Department's Intoxilyzer machine. That study included various documents showing when the RF detector is essentially blind at various frequencies. Undetected RF can be generated by internal components that are old or wearing out, such as the chopper wheel motor and the cooling fan motor. RF has the potential for altering the accuracy of the machine.
That is why the California DUI breath test manufacturers attempted to build detectors as part of its machines. Prosecution experts cannot produce valid studies to determine the sensitivity of the California DUI breath machine's RF detector. Studies show undetected RF actually artificially doubles the California DUI breath test machine's readout.
Therefore, all cellular and other transmitting devices should clearly be switched off or in flight mode within at least 30-35 feet of any California DUI breath test machine. Otherwise, the California drunk driving breath test number is probably not reliable and accurate. Consult a California DUI Attorney for assistance with this possible California drunk driving defense issue.
"If I don't agree to do field sobriety tests, is this "consciousness of guilt" of a California DUI?"
California DUI FST's are voluntary. There is no statute requiring a person -suspected of a California DUI - to perform field sobriety tests. Even a person suspected of committing a California DUI has a constitutional right to remain silent and not to incriminate himself or herself.
It is not "consciousness of guilt" for a person to refuse to perform voluntary field sobriety tests offered by a California DUI police officer who suspects the person of driving drunk . But exercising the right to not perform FST's may be considered by the California DUI police officer in determining whether or not he or she has probable cause to arrest a person suspected of a California DUI . Refusal to submit to the required chemical test (blood or implied consent breath test) is something different.
That can be a statutory refusal and may be considered as consciousness of guilt, if the facts so warrant. [A driver arrested for a California DUI may have a good reason for refusal to submit to a chemical test e.g. officer-induced confusion, or interference with the person's ability to hear & understand the officer's required chemical test refusal admonition.]
Marvin v. DMV (1984) 161 CA 3d 717, 720, a DMV case containing dicta often misrepresented by a California DUI prosecutor who may have failed to read the entire case, states in pertinent part: "In the course of his continued investigation, it was reasonable for the officer to seek a field sobriety test of the drunken driver suspect. And when the suspect, plaintiff Marvin, refused the field sobriety test, additional evidence of her guilt appeared.
Such has been held to be evidence of a consciousness of guilt. In People v. McGinnis (1953) 123 CA2d Supp. 945 [267 P2d 458], the court was also concerned with the refusal of a suspected drunken driver to submit to a sobriety test. It was concluded that such a refusal was conduct tending to show a consciousness of guilt, and that it was therefore admissible in evidence against the suspect. (To the same effect see People v. Zavala (1966) 239 CA2d 732, 740-741 [49 CR 129]; People v. Conterno (1959) 170 CA2d Supp. 817, 831 [339 P2d 968]; Witkin, Cal. Evidence (2d ed. 1966) The Hearsay Rule, § 515(e), p. 485.) In the case before us the officer had observed plaintiff Marvin's erratic driving, he then detected a strong odor of alcohol about her breath and person. And when, added to that evidence, was her refusal to submit to a field sobriety test, reasonably interpreted as a consciousness of guilt, there was patently probable cause for her arrest. It becomes the function of this court on the uncontroverted evidence to determine, in light of the whole record, whether there is substantial evidence tending to support the finding of the superior court, and in considering this question we must view the evidence most favorably to the finding.
( In re Roderick P. (1972) 7 Cal.3d 801, 808 [103 Cal.Rptr. 425, 500 P.2d 1]; People v. Johnson (1980) 26 Cal.3d 557, 576-577 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Applying this rule, we find no substantial evidence supportive of the superior court's finding of a lack of probable cause for plaintiff Marvin's arrest. It becomes unnecessary to determine whether probable cause for plaintiff's arrest existed before her refusal to take the sobriety test." In these case, there is no reference to the voluntary nature of FST’s, nor of one’s constitutional right to remain silent when in the custody of the California DUI police, merely consciousness of guilt when one declines the California DUI police directive to perform California FST’s.
These two ancient cases merely contain dicta indicating that a legal position of consciousness of guilt based on failure to perform FST's may be tenable. A California DUI police officer should admit: (a) that there is no California Vehicle Code section that requires field sobriety tests, (b) that there is no California Penal Code section that requires Fst's, (c) that there is no law that requires a person to do FST's, and (d) if heaven forbid the officer would be suspected of a California DUI, the officer could exercise his right to not perform these acrobatics or gymnastics.