There are two different charges one can receive for a DUI - 23152 (a) and 23152 (b) of the vehicle code. (a) is for driving under the influence, that is the charge that makes it illegal to drive under the influence of alcohol, drugs or a combination of the two. It has nothing to do with the blood alcohol level, one can be a complete lightweight and have a blood alcohol of 0.04% which is half the legal limit, but if you were driving recklessly you can be arrested and convicted of 23152 (a). (b) makes it illegal to drive with a blood alcohol level of 0.08% or higher. This particular charge has nothing to do with how one is driving. For instance you can be pulled over for a burnt out taillight and officers can determine you were at or above 0.08% blood alcohol level to be charged for 23152 (b).
When pulled over one must be aware of one's Miranda rights. Once an officer begins to question you by asking questions like “have you been drinking?, “how much?” and “where are you coming from?” these types of questions can be very incriminating if answered. Even if you are not advised of your rights you can still exercise your Fifth Amendment which stops one from self-incriminating. By telling the officer how many drinks you’ve had when pulled over is not going to help your case, and it will hurt you if you have to go to trial. Instead, just politely decline to respond. What is required for you to do is to provide your driver’s license, registration and proof of insurance.
Once you have provided your driver license, registration and proof of insurance you can politely decline to a field sobriety test. One can legally refuse since the test can be used against you later on. (Field sobriety tests include asking one to follow a penlight with your eyes, walking a straight line or repeat after the officer) Although you have an option to refuse a field sobriety test you do not have the option of refusing a chemical test. The breathalyser is most common test used to measure blood alcohol content. If you refuse you will have your license suspended. It is important to not panic if the BAC is over the legal limit. These tests are routinely challenged in court because they can register inaccurate readings.
There are two ways to prove that you were under the influence:
1) You were involved in an accident.
2) Your “bad driving” (such as swerving into another lane, failing to obey a red light) or ability to drive safely was 'impaired,' so that you weren’t as cautious or alert as a completely sober driver would have been in similar circumstances.
Remember . . .
- It is important for one to stay calm even if you have been drinking.
- Keep your hands visible at all times preferably on the wheel.
- Stay in the car unless you are told otherwise
- Cooperate even if you are convinced that you are sober, your time to battle the arrest will come later, after you have talked to an attorney. (Be sure to get in contact with an attorney ASAP)
- A police officer must have 'probable cause' to pull you over. Typically, this means you must commit some offense under the Vehicle Code. An officer cannot simply wait outside the bar, watch for people going to their cars, and pull them over: that is not a valid probable cause. If the officers pulled you over without probable cause, you need a lawyer to file a suppression motion to get the illegally obtained evidence thrown out.