What Should I Do If I Am Pulled Over For DUI?

This post is written for the benefit of those who are not currently facing a prosecution for drunk driving.  If you are looking at an upcoming Court case this article will do little to assist your defense. However, for anyone is interested in knowing the best way to interact with a police officer if you are pulled over and had been drinking earlier in the night, this article is right up your alley.  Very rarely does a lawyer give free advice on fighting a DUI but this information can help you to avoid being arrested in the first place, or if you are, significantly improve your chances of beating the case in Court.  Here is what you need to know:

1. The Red Lights in Your Mirror

You see the lights in your rear view mirror and begin to panic, don't, you should keep your cool and not show signs of nervousness.  Excessive nervousness or furtive movements will only make the situation worse. Slow down and Find a safe place to pull over, if the officer is directing you over a loud speaker, follow those directions.  Once you are stopped begin to collect your essential documents ( proof of insurance, license and registration) so that you have them ready and do not have to fumble with them while the officer is hovering over you.  Caution:  if your documents are not readily available do not panic.  The last thing you want to do is begin moving about the vehicle looking as though you may be trying to hide something or reach for a weapon.  Some believe it is best to not make any movements while the officer is approaching for fear that the cop may believe you are reaching for a weapon.

2. Initial Face to Face Contact

Once the officer is at your window this is where your actions can determine if the contact escalates into a full blown DUI investigation or you are simply warned, written a ticket and sent on your way.  Law enforcement is trained to look for "cues" to indicate a person is impaired by alcohol or drugs.  This observation begins when they immediately see you and lasts throughout the contact.  Cues can includes seemingly innocuous behavior but when viewed in the totality of the circumstances can become quite incriminating in a Court of law.

I Want To Hire An Attorney For My DUI But Do Not Have The Retainer, What Can I Do?

Fighting a DUI takes skill and expertise, that is why most folks decide to hire a lawyer to help them.  The problem is many people do not have the full amount of the retainer to hire a Law Firm, what can be done?

Many people do not know that they have a Constitutional right to hire the attorney of their own choosing if it can be done with reasonable probability.  In other words, you do not have to be stuck with a public defender if you have the means to hire private counsel.  Here is a step by step process on what you should do:

First, consult with the attorney you wish to hire.  Get the facts about what the cost will be and how payment can be made.

Second, figure out how you can make the payments and what must be done to get the necessary funds to hire the lawyer for your DUI case.

Third, on your Court date ask the Judge for time to hire private counsel.  This is your right and the Judge must allow a reasonable period of time for a person to hire their attorney of choice.  Be sure to have the details ready if the Judge asks how you intend to accomplish the engagement.  Give the Judge a specific name of a lawyer if he asks and be ready to tell the Court how much time you need and why.  Most Judges will allow a 30-45 day continuance if you appear to be sincere about your efforts to hire private counsel.

Once you obtain the continuance contact the prospective Law Firm and advise them of the new Court date and set an appointment to come in and retain the attorney when you have secured the necessary funds.

How To Get Your License Back After A DUI Arrest In California

Anyone arrested in California gets there license confiscated and cannot get it returned until they go through a DMV hearing or wait until the suspension is over.  In CA if you are a first offender and took a chemical test the suspension is 4 months.  If you hired an attorney and you had a blood alcohol level of .08 or higher he or she will tell you a way to get your license back without having to wait the full 4 months.

 Here is how you can get reinstated early, after you wait 30 days after the suspension:

First, get enrolled in a first offender DUI school called an AB541 class, they are all over the state and you can click here to find a class in your area.  DUI schools in California.
Tell the program provider that you wish to "self enroll" in the first offender DUI program for DMV purposes and that you have not been ordered to enroll from a Court, nor have you been convicted in the criminal Court.  They may want to see a current DMV printout called an H6 that you can get from any DMV office.  Call the program ahead of time and ask if you will need the H6.  You can also tell them that your attorney instructed you to enroll in the particular class therefore an H6 is unnecessary.

Next, get an SR22 which is a formal proof of insurance, for more information on this process visit our article on preparing for a DMV hearing.

Lastly, pay the required reissue fees with the DMV.

Once you have done all of these things you can get your license back to drive for work and school, it will remain restricted for up to 5 months.

Can I do an Online DUI School in California?

The answer depends upon the type of Court and DMV resolution in your case.  If your attorney was able to work out a reduction than in most cases, yes.  However, in certain cases you must attend an in person DUI class approved by the state, inside the boundaries of California.  For example, if you were convicted of VC23152 a or b and have a California license and live within the state you must attend an in person class in CA.  However, if you live outside Ca and do not have a Ca license you can usually get away with an online as long as the Court approved it in advance.

Here is an example of a recent case:  The defendant was arrested in Los Angeles for VC23152 and went to Court.  The Judge ordered completion of an AB762 class because his blood alcohol level was .17.  Through negotiations with the prosecutor, they agreed an online class was OK because he lived out of state and did I not have a California drivers license.  The 1650 waiver process was explained.  He provided a certificate of completion of an on line AB762 class which was filed with the Court and that satisfied the Court requirements of completion of a DUI/DWI program.

Make sure that whatever class you do, that it will provide you a certificate of completion that meets the requirements of the specific class you were ordered to complete, for example:

12 hour, SB 1176 class
3 month AB 541 class
6 month AB762 class
9 month AB 1353 class
18 month SB38 class

Here are a couple online DUI class providers that offer CA classes:

Tom Wilson DUI schools

Ari Novick DUI schools online


Be sure to get advance approval from the Court before starting an online DUI/DWI class.  Remember, these web based schools are not approved by CA DMV but may satisfy your Court requirements.  Check with you attorney before beginning.

What Is SCRAM?

In recent years Judges and prosecutors in DUI cases have been imposing a SCRAM condition for many second and third time offenders.  The SCRAM System is a passive, non-invasive tool that reliably and continuously monitors and measures alcohol consumption 24 hours a day, 7 days a week for an extended period. It is based on transdermal alcohol detection and measures alcohol excreted through the skin in the form of constant, unnoticeable perspiration.

SCRAM Bracelet or Anklet. This tamper- and water-resistant bracelet or anklet contains an analog and a digital component that are attached to the offender using a durable strap (a custom engineered polypropylene blend). The strap houses electronic circuitry that allows the analog and digital sides to communicate.

Some people have reported problems with the product and therefore there are some instances where the device may give false results. The reliance of transdermal alcohol testing on an electrochemical sensor ensures that false positive readings due to organic hydrocarbon solvents or contaminants do not occur. Moreover, because it measures alcohol through the skin, this technology will not produce false positive readings due to the presence of mouth alcohol.  For example, Some foods (e.g., chocolate donuts, certain types of breads) can produce endogenous (internally produced) alcohol. This alcohol is unlikely to be produced in sufficient quantities to result in a positive reading on a transdermal alcohol measuring device. For example, an article published in the Journal of Analytical Toxicology reported that an individual would be required to consume 3 lbs of bread to reach a BAC equivalent to that of a single 12 oz beer with 4% alcohol. As such, “the likelihood of anyone testing positive for alcohol from cooked bread consumption, let alone becoming intoxicated, is therefore remote” (Logan and Distefano 1998, p. 183). Similarly, certain medical conditions, such as diabetes, can also result in the internal production of alcohol. Individuals with diabetes are prone to vascular diseases in the extremities and are potentially at greater risk of discomfort and potential adverse side effects as a result of wearing the SCRAM bracelet. At this time, it is recommended that individuals with diabetes not use SCRAM. 

Why Is It Taking So Long For My Blood Test Results?

As a DUI Lawyer for the past 21 years I am asked many questions by my clients.  Among the most common is why does it take so long for a blood test result to come back?  The answer is the blood vial in a DUI arrest is not tested at the hospital, jail or clinic where the blood was collected.

The blood sample is sent to a forensic laboratory where the testing is done.  In Los Angeles County, including Torrance, the blood or urine sample is sent to the Sherriff's LASD County Crime Lab in Downey where it is tested among other samples submitted.  In Kern County the vials are tested by the District Attorney Crime Lab in Downtown Bakersfield.  The process of getting the vial from the arresting agency to the lab involves transportation and preservation issues unique to the state evidentiary and regulatory rules.  Once at the lab there is a system of identification, sampling, testing and retesting that takes days if not weeks to accomplish due to the backlog of criminal laboratories and lack of sufficient funding.

Obviously, other tests for crimes such as rape, murder, and other serious felonies are given priority.  Although the blood testing for Drunk Driving cases are typically done within 2 weeks, the official reports which include a review by a senior toxicologist, will usually delay the reporting time to about 30-45 days.  In drug cases the reporting time can be longer since the specific drug needs to be tested twice, once for qualitative results, ie.  Is the drug present within the sample?  Then again quantitatively, ie.  What is the actual concentration of the drug?

The delay in the reporting of the results vary but you must remember that in a misdemeanour DUI prosecution the District Attorney has a full year to file charges.  In a felony case the DA has 3 years or sometimes more.  Therefore, if there is no result of the blood or urine then the prosecution and Court will usually ask for another Court Date.

Once the result of the state's test is reported it is possible to have the blood or urine retested by a private independent lab.  This process can again take 30-60 days or longer and can cost upwards of several hundred to thousands of dollars or more depending upon the type of testing requested.

The Cop Never Read My Miranda Rights, Will My DUI Case Be Dismissed?

Having practiced DUI for more than 20 years I can honestly say this is the number one asked question by my clients.  The short answer to the question is most likely no.

Let me start by saying Miranda Rights mean the cop must tell an arrested person they have a right to an attorney and the right to speak to that attorney before answering any questions.  But why is this question the number one question asked?  Well, fundamentally it is due to the fact that in most movies and TV shows when a person is arrested the cops read them their Miranda rights so there is a misconception that Miranda is required in any case where a suspect is arrested, that is simply not the law.

Here is what California law states when it comes to the mandatory reading of Miranda rights in a DUI or any other criminal case:  First, the suspect must be told he or she has a right to a lawyer before they are questioned and prior to making any statements only if they are "in custody" which means there liberty is restrained in a significant way and they are not free to leave.  Second, Miranda is only required when the police intend to interrogate a suspect, meaning they intend to ask them questions that are intended to illicit an incriminating response. So, there is a two prong test before Miranda must be read.

Let's, apply that 2 prong rule in a DUI or drunk driving arrest:  First, a person is definitely in custody because they are handcuffed and placed in the back of a patrol car so this part of the two prong test is satisfied.  However,  the second prong is generally the issue,  this is where the test often fails.  The suspect must be in custody at the time the officer intends to question them about the crime.  In most cases, after arrest the officer no longer questions them about the facts of the crime, for example how much have you had to drink, etc.  Although the officer did ask many incriminating questions it was likely before the suspect was placed under arrest so therefore Miranda was not required.  In short, if the cop places you under arrest for DUI but does not further question you about the facts of the case, other than routine booking information, then Miranda is inapplicable.

There may be instances where Miranda could be implicated in a DWI case.  For example, if the cop arrests you and subsequently questions you about the crime to get you to make incriminating statements then your rights could be violated.  Here's an example, the officer arrests you, places you in handcuffs then sits you in the back of the police car and asks you how much you had to drink, where you drank and the times you drank the alcoholic beverages.  Here, Miranda is required because he asks the questions after you were arrested.  Cops know that the law would require the reading of rights in this instance so they most always ask the incriminating questions before placing you in handcuffs.

What if the cops did violate your Constitutional rights by violating Miranda?  What is the remedy?  In short, it is suppression of the incriminating statements, not dismissal of the charges.

There is one type of DUI case where Miranda is almost always required, it is one involving drugs rather than alcohol.  Here's why:  In drug cases the officer that arrests you will usually call out a DRE or drug recognition expert to further assess you for drug impairment.  Because the situation involves an arrest prior to the DRE being called out Miranda is required.