Avoiding a DUI

By Carl Simons

The best way to avoid being arrested for driving under the influence is actually rather simple: Take a cab. Sure, they may be pricey, but if you are arrested for driving under the influence, it will literally cost you thousands of dollars in fines, attorney's fees and increased insurance rates. California has little tolerance for people who drive under the influence simply because each year, thousands of people are injured and killed by drunk drivers.

You can legally operate a motor vehicle with alcohol in your system —technically you must be at .08 percent or above to be considered DUI. However, if you are operating a motor vehicle and you have any measurable amount of narcotics (recreational or prescription) in your blood, you are also DUI. There is no minimum amount requirement, and the test given will show narcotics that you have ingested up to three or more days prior to the date of the test.

Before getting behind the wheel of an automobile, listen to your intuition. At this time of year, DUI arrests are usually at their peak. If while at a holiday party, you consumed more than two drinks or any other substances, have someone else drive. If you still choose to drive and have contact with the police, it's best to treat them with respect. Remember, officers are enforcing the laws, they do not make the laws, and they are the ones that make the decisions to ticket you, arrest you or let you go.

In order for an officer to make initial contact with you, they are legally supposed to have “probable cause,” which is legalese for a “reasonable” belief that you have committed some type of legal offense or vehicle code violation. Probable cause is not a difficult burden to overcome—it can be anything from speeding (even one mile over the speed limit), excessive lane changes (easily described as “weaving”), a missing front license plate or a burned-out taillight.

Once officers makes contact with you, they are determining what other types of offenses may have been committed. Legally, they may question you or do a “plain view search” of your vehicle—anything within sight is fair game (i.e. the bumper or roach in the ashtray).

You are under no legal requirement to speak with them. In fact, anything you say or do prior to your arrest can be used against you. However, if an officer requests that you take a blood, breath or urine test, you must not refuse to take the test, or you run the risk of losing your license for a year or more.

Most people are familiar with their Miranda rights—but what most of us believe about Miranda is incorrect. Not being read your Miranda rights is insufficient grounds for dismissal of any case against you. Miranda only comes into play once you have been arrested, and only has to do with what evidence the prosecution may or may not use against you at trial. Officers generally gather their case against you prior to your arrest, therefore anything you say after your arrest is relatively unimportant in their prosecution of their case against you.

If you are arrested for a DUI, it's extremely important that you contact an attorney immediately to discuss your options. In a nutshell, you have two actions going on against you: one by the criminal court and one by the DMV, who will try and have your driver's license suspended. In the DMV matter, you have only 10 days from the date of arrest to act upon the DMV suspension or your license will be automatically suspended. Your court matter is a separate and independent action from the DMV matter, and your court date will usually be scheduled four-six weeks after your intial arrest.