Articles Posted in The DUI Stop


In my last post, I discussed your rights when you are pulled over for suspected driving under the influence of alcohol. As I discussed in that post, you are free to decline the field sobriety tests but whether you stumble on those tests or don’t submit to them at all, if the officer believes you are under the influence of alcohol, he or she will arrest you for DUI. At that point, your rights are diminished. You must submit to the chemical test for blood alcohol content (BAC), which will most likely involve blowing into a breathalyzer device. If you decline to submit to this test, you will still be under arrest and subject to more severe penalties.

At the time of your arrest for DUI, you will be required to surrender your driver license. The arresting officer will provide you with a temporary paper license that is goof for only 30 days at which time your license may, and most often will, be suspended by the DMV. In a later post I will discuss the license suspension process. You will obviously not be allowed to drive your car and unless there is a sober person who is immediately available to drive your car, your car will be towed and impounded. You will have to pay a hefty impound fee to recover your vehicle. And you will get a ride to the police station in the back of a police car.

(This post applies only to persons over the age of 21 or who are not on probation for a previous DUI.)

What should you do if you are stopped while driving a vehicle and the cop suspects you are driving under the influence of alcohol? The laws that govern a DUI stop provide you with less rights than you would have during an ordinary police contact. The premise underlying this diminished due process on a DUI stop is that driving on California roadways is a privilege, not a right, and therefore you are not afforded all the protections provided in the Constitution. But you still have certain rights when you are stopped on suspicion of DUI.

When you are pulled over for suspected driving under the influence, you are considered detained and you are not free to go. Even though the officer has not yet read you your “Miranda rights,” which is not required until you are arrested, your right to remain silent is triggered at the time of the detention. You must provide the officer with your driver license (and car registration) but beyond that you do not have to answer the officer’s questions. As with any police detention or arrest, your best approach is to be politely cooperative and provide your identification, but to let the officer know that you wish to remain silent.

If you have been arrested for DUI in Orange County, California, you need a lawyer who can protect your rights and who will make sure that your rights are not violated. Orange County is considered very strict when it comes to driving under the influence and they take it very seriously.

It is understandable that you are probably feeling afraid, confused and angry about what has happened and what you may be facing as a result of your arrest. The whole process of being arrested, taken to jail, fingerprinted and photographed is embarrassing and scary and we are very sympathetic to that. But, the reality of the situation is that a conviction of DUI can have very serious consequences. However, having an experienced attorney can help to mitigate the severity of those consequences.

There are many possibilities that can be challenged in an arrest and potential conviction for DUI. An aggressive defense attorney will raise those challenges, and look for those challenges to see if they apply to your situation. Closely reviewing the police report, viewing any video and listening to audio can sometimes reveal inconsistencies in the police officer’s report and/or testimony.

Here are some tips you may want to consider if you are ever pulled over for driving under the influence.

You should always know exactly where your driver’s license, car registration and proof of insurance are. As we all know, whenever you are pulled over by a police officer, you are always asked to produce these three items. If you have been drinking, and you are fumbling around looking for your registration or proof of insurance in your glove box, police officers use this, as “evidence” that you were in some way impaired. If you cannot find your wallet or driver’s license, that will also translate negatively in the police report. The police report will be written in such a way that it looks like you were too intoxicated, or impaired to some extent, to produce the requested items without difficulty. So if you know you are going out and plan on having a drink or two, be sure to be prepared so it doesn’t appear that you are intoxicated if you are unable to find your registration or proof of insurance immediately, when in fact it may just be that your glove box had too much clutter and it took a minute or two to find them.

When you are signaled to pull over by a law enforcement officer, be sure to do so immediately and in a safe manner. You should roll down your window and keep your hands on the steering wheel. Once the officer approaches the car, he or she may ask you if you know why you have been pulled over. They obviously know why they pulled you over, and more likely than not, it’s to find out whether or not you have been drinking. However, they may use some minor violation as an excuse to do so. So when you are asked, “Do you know why I stopped you?” remember, you do not have to answer any questions. You may simply respond by saying “Why?” The officer may then tell you why they pulled you over. Or, the next question may be “have you been drinking” or “have you had anything to drink tonight?”

Reasonable suspicion and Probable Cause

It may come as a surprise to most people that police officers are not required to have probable cause to pull someone over. All that is necessary is that the officer has a reasonable suspicion that a crime has been or is about to be committed. So, it is easy to conclude that police officers can, and do, pull people over anytime they are suspicious and just want to check it out.

But, most police officers do pull drivers over based on probable cause. Probable cause basically means that there are sufficient facts and circumstances that have lead the officer to believe that a crime has been or is being committed. The more basic examples of probable cause are simple traffic violations such as speeding, running a red light, failing to signal a turn or failing to completely stop at a stop sign. Although not serious in nature, any one of these traffic violations is all an officer needs to provide him with probable cause.

Police officers must have “reasonable suspicion” to pull over a person. Reasonable suspicion that a crime has been or is about to be committed is all that is necessary. However, having been a DUI Defense Lawyer in Orange County for many years has shown me that most stops are based on probable cause such as simple traffic violations and/or reckless driving. If an officer suspects a person is driving under the influence, but the person has not violated any traffic violation, the police officer must have a “reasonable suspicion” before the driver can be pulled over.

Once an officer has pulled an individual over, the officer may ask the individual to step out of the vehicle. If the officer based the stop on reasonable suspicion, he may detain the driver only long enough to confirm or dispel the officer’s suspicions. If the stop was based on probable cause, the officer may conduct a more thorough investigation.

A recent Supreme Court decision has upheld the lower standard of “reasonable suspicion” in State vs. Starkey. In that case, Starkey was arrested for driving under the influence of alcohol. The stop was based on the officer’s observation/opinion that Starkey was attempting to avoid the police patrol car. Starkey’s attorney filed a motion to suppress the evidence on the grounds that the officer lacked reasonable suspicion to stop Starkey. The circuit court granted Starkey’s motion and suppressed the evidence. However, the Supreme Court then reversed the circuit court’s decision and remanded the case for further proceedings.

In the Starkey case, the officer observed Starkey stopping and waiting until the officer was ahead and then turning. The Officer then turned and followed Starkey. Starkey made several attempts to avoid the officer and ended up going in a circle at which time the officer pulled Starkey over. The Supreme Court ruled that Starkey’s actions warranted “reasonable suspicion”. It is important to note that none of Starkey’s actions were illegal. The sole basis for the stop was the police officer’s suspicion. In my view, this is clearly a case in which an appeal was warranted and the Supreme Court’s reasoning for it’s decision to uphold the “reasonable suspicion” stop was weak at best.

Anyone who has been arrested for driving under the influence needs an experienced criminal defense attorney, specializing in DUI, who is familiar with the law as it relates to police officers and their duty to follow the law when it comes to stops and detention. A police officer that makes a mistake or fails to show “reasonable suspicion” can result in a charge of DUI being dismissed.

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