This page will include the following topics:
- THE INITIAL STOP
- SYMPTOMS AN OFFICER LOOKS FOR
- THE OFFICER NEVER READ ME MY RIGHTS (Miranda)
- WHY TWO CHARGES?
- WHAT NOW?
The Initial Stop:
If you were only stopped for a minor traffic infraction, can this give the officer probable cause to arrest you for driving under the influence? YES
The original reason the officer stopped you need not be related to driving under the influence. In fact, routine stops for broken taillights, out-dated registration or even cracked windshields have been upheld as sufficient cause for officers to detain individuals and then to check symptoms for driving under the influence. In any given case, however, there may be grounds to have the case thrown out by the filing of a motion to suppress the evidence based upon an initial bad detention.
Symptoms an Officer Looks For:
Certain symptoms seem to show up consistently. The following are some examples of what officers look for even when pulling a driver over:
- Odor of alcohol on breath or person;
- Red, watery or bloodshot eyes;
- Slurred speech;
- Fumbling with wallet to get license and/or registration;
- Staggering out of the vehicle;
- Failure to respond to officers directions; and
- Swaying or stumbling.
The Officer Never Read Me My Rights (Miranda):
Although you have certain rights upon being arrested, if you are not advised of these rights by the officer upon your arrest, the case will most likely not be thrown out. What is more likely is that the prosecution will not be able to use any of your answers to questions the officer asked you after having placed you under arrest.
Why Two Charges?:
Most individuals charged with driving under the influence of alcohol are charged with violating both sections 23152(a) and 23152(b) of the vehicle code.
VC 23152(a) is the traditional offense of driving under the influence of alcohol and/or drugs. Basically, it means that regardless of the amount of alcohol you consumed, the alcohol affected your ability to drive such that you were not able to drive like an ordinary, reasonable, prudent person who had not consumed any alcohol.
VC 23152(b) is the “per-se” offense. If your alcohol level is above .08%, you would be guilty regardless of how well you may have been driving. However, even though you may be charged with or even convicted of both, you can only be punished for one.
Generally speaking, conviction for a first offense will involve the following:
- $2,000.00 fine;
- License restriction;
- “Driving Under the Influence” alcohol program for approximately 60 days;
- Mother’s Against Drunk Driving (MADD) lecture; and
A conviction may also involve public work service for high blood alcohol levels, restitution in accident cases and increased penalties for prior convictions including jail, license suspension and ignition interlock devices. Also, most individuals will find that the biggest financial cost of conviction will be from increased auto insurance rates. Depending on your driving record and how long you’ve been with your company, there is the potential they may drop your coverage.
After being charged with driving under the influence (DUI), you have only 10 days to contact the Department of Motor Vehicles (DMV) to set up an administration per se hearing. This will stay the four- month license suspension. The DMV hearing and suspension are completely separate from any punishment the court may later impose.
At the DMV hearing, the only questions the hearing officer will decide are:
- Did the officer have reasonable cause to believe you were driving under the influence of alcohol or drugs?
- Were you placed under lawful arrest?
- Were you driving a vehicle when you had .08% or more by weight of alcohol in your blood?
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We can help answer your questions and…may be able to save you from additional headaches.
If you have been arrested or charged with a crime, don’t hesitate to call an attorney who can advise you and help you through the uncomfortable proceedings.
(Note: Laws vary from state to state. The legal discussions contained herein are general in nature, but some of the concepts apply only to California law. The law in your state may be different. You should never attempt to analyze the legal ramifications of your own case. Always consult an attorney immediately if you believe you may have a legal problem).
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