DUI Myths vs. Truths

By Jeffery Rubenstein

As we celebrate the holidays and the new year ahead, the Law Offices of Jeffery K. Rubenstein hope the information below on DUI investigations, arrest, and prosecution is helpful to keep you and your loved ones safe and healthy.

The law on DUI investigations is complex; there are different laws for specific types of investigations. Below are common myths vs. truths about the investigation, arrest, and criminal charges filed for DUIs:

Myth: If a person is being investigated for a DUI, that person should NEVER give any information to officers.

Truth: There are some questions a person must answer and others which are optional:

Field Sobriety and Preliminary Alcohol Screening Tests: A person is not required to complete field sobriety tests and/or a preliminary alcohol screening test (“PAS”) when requested by law enforcement UNLESS a person is:

on probation based on a conviction in criminal court for DUI/Driving with a blood/breath alcohol content of .08% or higher,

on probation with the DMV for driving under the influence of alcohol and refusing a chemical test and/or driving with a blood/breath alcohol content of .08% or higher,

on probation with the DMV for being under the age of 21 and driving with a .01% of alcohol in their system, and/or

on probation with the DMV for driving a commercial vehicle with .04% or more of alcohol in their system.

Evidentiary Chemical Test:

A person is required by law to provide either a breath or blood test if arrested for a DUI.
The California DMV can suspend a person’s driving privileges for one full year without the ability to drive (even to work, driving their children to school, going to the market) if the DMV finds there is sufficient evidence (not beyond a reasonable doubt) to prove:

  1. The person was lawfully stopped by law enforcement
  2. Law enforcement had sufficient probable cause to believe the person was under the influence of alcohol at the time of driving, and
  3. The person refused a breath and/or blood test when asked by officers.

Myth: If a person does not provide a breath or blood test after being arrested for a DUI, they will not have enough evidence to criminally press charges.

Fact: The prosecution can, and usually does, file criminal charges against an individual who they feel they can prove beyond a reasonable doubt is guilty of a DUI; even if there is no breath or blood test result to show the person was driving above the legal limit.

Filing Charges: The prosecution can charge driving under the influence of alcohol (or drugs, or both) and add a special allegation that the person refused to submit to a chemical test.

Consciousness of Guilt: In the prosecution of a DUI, a person’s refusal to provide a breath and/or blood test can be used to show “consciousness of guilt”, meaning the person did not provide a sample of their breath/blood because they felt they were under the influence and/or above the legal limit.

Forcible Blood Draws: If a person refuses a breath or blood test, law enforcement may request a warrant from a judge to obtain a blood sample from the individual against that person’s consent. Evidence related to the forcible blood draw can (and usually is) used against the person during criminal prosecution.

Myth: Police must read your “Miranda Rights” after arrest.
Truth: The only time law enforcement must legally advise a person of their “Miranda Rights” is when police want to ask a person who has been arrested questions and that individual is in custody. It is not uncommon for a person to be arrested and not questioned by police afterwards. However, if police want to speak with someone who is arrested AND in custody, law enforcement must advise the person of their “Miranda Rights” for any statements made by the person to be legally admissible in court.

Myth: If a person has a valid driver’s license outside the state of California and the California DMV suspends their driving privileges, the individual can still legally drive in California.
Truth: If the California DMV suspends a person’s driving privileges in California, that person must comply with the California DMV’s rules while driving in California, even if an individual has a valid license in a different state.

Remember, always be polite, and this holds true for any legal investigation.

If you or someone you know needs assistance with a DUI or their driving privileges in California, please contact the Law Office of Jeffery K. Rubenstein at (310) 477-2100.

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