DUI Frequently Asked Questions

1. Why should I hire an attorney?  
If you have been arrested and charged with DUI, it is always in your best interest to hire an attorney to represent you. The two immediate advantages to hiring an attorney are that you may never have to appear in court, and if hired within 10 days of arrest we can request a hearing so you can drive pending the outcome of your case. California DUI laws are complex, and require the attention of an experienced attorney. An attorney familiar with DUI law can guide you through the entire legal process, help you file important documents, and provide you with sound advice and practical options.  Furthermore, a good attorney will personally review your case, interview witnesses, collect compelling evidence, and challenge aggressive prosecutors looking to punish you for your actions. When you retain the services of a skilled attorney, you not only protect your best interest, but you also increase your chances of obtaining a successful result as well.

2. Will I go to jail for a first time DUI offense?
It depends on the circumstances surrounding your case. Generally, for a first-time DUI offense, most people are not required to serve time in jail. Generally jail time can be avoided with other sentencing alternatives. However, if you are responsible for an accident that resulted in serious property damage, injury, or death, you most likely will have to serve some time in jail, regardless of whether it’s your first DUI offense or not. In addition, if you are charged and convicted of multiple DUI offenses, your chances of serving time in jail will increase.  

3. Will I lose my driver’s license?
As soon as you are arrested for DUI, the police officer will confiscate your driver’s license and issue you a temporary driving permit that is good for 30 days. You then have 10 days following the date of your arrest to schedule an administrative hearing with the California Department of Motor Vehicles (DMV). Once the hearing is requested within 10 days of arrest, you may continue to drive pending the outcome of the hearing. This hearing gives you and your attorney the opportunity to challenge the suspension of your driving privileges and try to get them reinstated. If the DMV representative rules in your favor, then your driving privileges become effective immediately. If the representative rules against you, your driving privileges will remain suspended for an amount of time specified by the DMV representative.

It should be noted that even if you get your driving privileges reinstated at the DMV hearing, you can still lose them if you are found guilty at your criminal trial. The best way to increase your chances of keeping your driver’s license is to hire an experienced attorney to represent you at the hearing and at your trial.

4. What are the legal penalties for DUI?
Common penalties for a DUI offense include monetary fines, probation, possible time in jail, alcohol treatment programs, driver’s license suspension, community service, DUI school, and a mark on your permanent record. These penalties will increase if you caused an accident, or if you are charged with a second, third, or fourth DUI offense. In addition, your insurance costs are likely to increase and your vehicle will probably be impounded. Furthermore, a DUI conviction can lead to job loss, a damaged reputation, and limited future opportunities.

5. What is BAC?
BAC is an acronym for blood alcohol content, or blood alcohol concentration. BAC refers to the amount of alcohol in a person’s blood after consuming alcoholic beverages. In California, it is illegal to drive or operate a car if your BAC is at or above 0.08%. If a driver is under the age of 21, he/she cannot drive or operate a car with a BAC at or above 0.01%. Any person caught driving with a BAC above the legal limit will be arrested and charged with DUI.

6. What actions indicate to police officers that a person is driving under the influence?

Typical actions that indicate a person has been driving under the influence of drugs or alcohol include:

• Wide turns
• Swerving
• Weaving in and out of lanes
• Straddling two lanes
• Speeding
• Driving unusually slow
• Inconsistent speeds
• Abrupt changes in driving patterns
• Braking the car too often
• Sudden or erratic braking
• Failure to follow traffic laws and signals
• Rolling or blowing a stop sign
• Rolling or blowing a red light
• Tailgating
• Drifting
• Driving with no headlights
• Illegal turns
• Hitting or closely avoiding another vehicle or property
• Driving on the wrong side of the road

7. What are some signs police officers usually look for after pulling a driver over on suspicion of DUI?

There are certain physical and behavioral characteristics that indicate to police officers that a person is driving under the influence of drugs or alcohol. These characteristics include:

• Slurred speech
• Scent of alcohol on the breath
• Glazed or bloodshot eyes
• Loud, offensive, or argumentative behavior
• In ability to follow directions or respond to questioning
• Flush appearance
• Fumbling, stumbling, swaying, staggering
• Disheveled appearance
• Open containers of alcohol in the car

8. Can I refuse to take a chemical test (breathalyzer test, blood test, urine test)?
AFTER ARREST- In California, when you apply for a driver’s license you are required to sign an agreement to submit to a chemical test if arrested for suspicion of DUI, this is known as the implied consent law.  If arrested for DUI you must submit to a chemical test. Failure to submit to a chemical test will result in a one year suspension of your driver’s license, separate and apart from the Criminal aspect of the case.

PRIOR TO ARREST- Under the Fourth Amendment to the United States Constitution, you are not required to blow into the breath machine before being arrested for DUI.   However, if after you arrested for DUI you must submit to a chemical test or risk losing your license for one year.

Even if you are found “not guilty” in court, refusing to take a chemical test after arrested for suspicion of DUI may result in serious legal consequences, including the automatic suspension of your driver’s license for up to one year, an increase in monetary fines, and potentially more time in jail. Furthermore, refusing to take a chemical test will be used as evidence against you in court.

While you are required to take a chemical test after arrested for suspicion of DUI, you do have the option of choosing which type of chemical test you would like to take. Therefore, if you would prefer to take a blood test over a breathalyzer test, or vice versa, you could request that without fear of legal repercussion. Generally, people suspected of driving under the influence of drugs are required to take a urine test or blood test. However, breath samples cannot be retested, only blood samples.

9. Can I refuse field sobriety tests?
You are not legally required to take a field sobriety test. Unlike a chemical test after arrested for suspicion of DUI, you can refuse to take a field sobriety test without fear of legal repercussion. In fact, it is probably in your best interest to avoid doing so. These tests are extremely subjective and designed for failure. Furthermore, at this point, most officers have already decided to arrest you. If you take a field sobriety test and perform poorly, it gives the prosecution more evidence to use against you in court.

10. Are breath machines always accurate?

No, they’re not. There are a number of factors that could cause a breath machine to malfunction or give an inaccurate reading, such as human error, radio frequency interference, mouth alcohol contamination, dentures, machine defect, inexperienced use of the machine, or the driver’s diet. For these reasons, many attorneys argue that since breath machines are not 100% accurate at determining BAC levels, they should not be relied on in trial as evidence against a person charged with DUI.

11. Are field sobriety tests an accurate and fair way to determine BAC?
Field sobriety tests are unfair way to gauge a driver’s level of intoxication. Almost all attorneys agree that field sobriety tests are subjective, prone to inaccuracies, and designed for failure. There are number of factors that could cause a person to perform poorly on a field sobriety test, including nervousness, fatigue, a pre-existing illness or physical disability, the type of footwear the driver is wearing, weather conditions, road conditions, age, weight, natural lack of coordination, etc.

12. What should I say to a police officer if I’m pulled over for DUI?
If you are pulled over on suspicion of DUI, you are not legally required to answer any questions or make any statements to the police. In fact, it’s in your best interest to remain silent until you can speak with an attorney. When a police officer asks you questions, he/she is looking for anything that can be used as evidence against you in court.  Therefore, it is not only wise, but also within your legal right to simply say, "I choose silence or I invoke the Fifth Amendment."

13. What are my Miranda Rights? Are the police required to read them to me?
Miranda rights only apply to questioning AFTER arrest.  Prior to arresting you, the police are not required to Mirandize you. When you are arrested for DUI, the arresting officer is required to recite your Miranda Rights if the officer wants to question you further. Miranda Rights inform people of their right to remain silent, right to an attorney, and the right to have an attorney appointed if he/she cannot afford one on their own. However, many people mistakenly believe that if a police officer does not read them their Miranda Rights then all of their charges will be automatically dropped and the case dismissed. Unfortunately this is not true. However, when an arresting officer fails to read you your Miranda Rights, any answers or information you gave them at the time of your arrest cannot be used as evidence against you in court.

14. Can I fight my DUI arrest?
Yes, and you should. Just because you were arrested and charged with DUI, does not mean it was warranted or done lawfully. If you took a breath or field sobriety test, there may be defenses we can use to challenge your arrest.  Both breath tests and field sobriety test are subjective, prone to human error, and not 100% accurate. An experienced DUI attorney can evaluate your arrest, question the validity of these tests, and challenge the results in court. Furthermore, if the arresting officer acted unlawfully or did not have probable cause to arrest you, then that is also grounds to challenge your DUI on a constitutional basis, and have the evidence against you thrown out of court.

15. Can you guarantee results?
It is unethical for any attorney to guarantee the outcome of a case. If you speak with an attorney that guarantees results, it should be taken as a warning sign that the attorney is unethical, unprofessional, or not legitimate. At Gutierrez Curtis Gutierrez, LLP we can guarantee that we will treat you with respect, and that we will exhaust all possible resources to protect your rights, and try to get your DUI charges reduced or dismissed to the best of our ability.