1. Am I required to do the “field sobriety tests”?
NO! Law enforcement officers are not required to tell you this, but the so-called “field sobriety tests” (FSTs) are completely optional for drivers who are over 21 years old and not on DUI probation.
You cannot be arrested or have your license suspended because you declined the optional FSTs.
In fact, the FSTs are not really tests at all and they are not used to determine whether you are DUI, they are used to gather evidence against you. In many cases, especially with the CHP, the officers will have you perform the FSTs out of view of their dashboard cameras so there is nothing to contradict what they write about them in their reports. Rest assured, they will write that you failed to perform each of the tests as explained and there will be no video evidence to the contrary.
2. Am I required to blow into the Preliminary Alcohol Screening (P.A.S.) device at the roadside?
NO! Just like the FSTs, if you are over 21 years old and not on DUI probation, the P.A.S. is completely optional.
As it is, the P.A.S. device is notoriously unreliable and officers really only use it to gather more evidence against you.
You cannot be arrested or have your license suspended because you declined the optional P.A.S. test.
3. Am I required to answer police questions?
NO! You have an absolute right to remain silent.
“Where are you going?” and “Where are you coming from?” and “Have you been drinking?” are just a few of the questions you can expect the police to ask. When they do, “I am not answering any questions without a lawyer present” is a legal and appropriate response. Remember that ANYTHING you say can and will be used against you.
They may say that, since you are not under arrest, you are required to provide information. That is not true. If they ask for your license, registration, and proof of insurance, you are required to provide that to them, but you are not required to answer any questions.
You cannot be arrested or have your license suspended because you declined to answer any questions without a lawyer present.
Of course the officer will be angry with you, but that is what it is.
4. Am I required to submit to a CHEMICAL Alcohol Test (either breath or blood)?
YES! If, and only if, you are arrested and taken into police custody for alleged DUI, you must submit to the chemical test of either your breath or blood. If you refuse, the DMV will suspend your driver license for a full year AND the refusal can be used against you in trial to prove consciousness of guilt.
It is essential, though, that you are arrested for DUI. If you are arrested for something other than DUI, such as drunk in public or disorderly conduct, you are NOT required to submit to any testing.
5. What happens after I am arrested for DUI?
REMAIN CALM! The first and most important thing to remember is to remain calm.
Assuming nobody was injured, you may be simply booked and released, like at a DUI checkpoint, or you may be taken to jail and released after you sober up. You may or may not be required to post bail.
During the booking process, they will ask a number of questions regarding your identification. Produce a valid form of identification and confirm your name, age, date of birth, and correct address.
They may try to ask you other questions under the guise of “the booking process,” such as where you were going, where you were coming from, and if you had been drinking. You have an absolute right NOT to answer those types of questions. I suggest you respond by saying that you will not answer any questions without your lawyer present. If they continue to ask questions, you should continue to invoke your right to remain silent and your right to have a lawyer present during questioning. Don’t let them bully you.
You may be placed in a cell alone or with others; either way DO NOT DISCUSS YOUR CASE WITH ANYONE!
- Remain silent
- Do not resist or fight with police
- Follow instructions
- Be cooperative and polite
6. What about the DMV hearing?
In most cases, the police will take your driver license and issue a pink temporary license that is valid for 30 days after the arrest. If you fail to request a hearing at the DMV within 10 calendar days of the arrest, your license will automatically be suspended when the pink temporary expires.
It is imperative that you (or your lawyer) contact the DMV Driver Safety Office to request a hearing within 10 calendar days of the arrest. At the same time, your lawyer will secure an extension of the temporary license so it will not expire in 30 days and your lawyer will also ask for the reports and other evidence to be used against you in the hearing.
Your DUI lawyer should include representation before the DMV at no additional cost.
It is important to know that the DMV hearing process is entirely rigged and completely unfair. The hearing officer is also the prosecutor; they are not lawyers; they do not understand or care at all about the rules of evidence and they tend to believe that everything the police say is true. It is not uncommon for DMV hearing officers to twist evidence, manipulate context, and even lie in order to support their pre-ordained decision to suspend your license.
Although it is more likely than not the defense will lose at the DMV hearing, it does provide an advantages early look at the evidence against you and, in some cases, affords your lawyer an opportunity to cross examine the arresting officer on information that may be valuable in criminal court.
7. Can I get a restricted license?
Generally, yes, but it depends on the specific facts of your case. If you are a repeat offender or if there were injuries or a fatality or if you refused the chemical tests, your license could (and likely will) be suspended outright with no restricted license available.
However, if you are eligible for a restricted license, you can go to the DMV after the first 30 full days of the suspension and present your SR22 insurance, your enrollment in a DUI class, and pay the fee to get a restricted license. The restricted license allows you to drive to and from work, in furtherance of work, and to & from your classes.
8. Will I have to install an interlock device?
Maybe. Whether you will be required to install such a device depends on the facts of your case, the county in which you were arrested, and your DUI history.
9. What happens to my car?
The police could choose to lock your car where it is for you to retrieve later or they could have it towed and impounded, in which case you will have to spend hundreds of dollars to get it out.
10. Can I avoid a DUI?
YES! DON’T DRINK AND DRIVE!
Even if you feel fine after a couple of cocktails or beers or wines with dinner, all you need is for some other jackass to rear-end you and have the police respond. Once the police contact you, even if the accident or incident was not your fault, you can be arrested for DUI.
I promise that, if Uber or a Taxi cost $500 or $1,000 or $5,000 to get you home, it is still way cheaper than a DUI.
