What Happens When You Get Stopped?

Understanding What Typically Happens in an Orange County DUI Stop Is Something that Every Motorist Should Know

DRIVING UNDER THE INFLUENCE IN ORANGE COUNTY

Its late at night and you are driving home along a California freeway with your spouse or a few friends in the car when you see the flashing red lights in the rear view mirror. You know you had a couple of glasses of wine with dinner or was it three? so the panic sets in. At this point it is too late to do anything about the alcohol that is in your system; however, the question remains whether or not the officer will arrest you for driving under the influence. The answer to that depends, in large part, on how you perform on the field sobriety tests the officer is likely to ask you to perform. Most motorists panic when pulled over and questioned about drinking and driving. Even if you are completely sober you may become nervous and perform poorly on the SFSTs. Understanding what typically happens in an Orange County DUI stop is something that every motorist should know. When Can the Police Stop You? In the United States we have certain rights guaranteed to us by the United States Constitution. One of those rights is the right against unreasonable searches and seizures enumerated in the Fourth Amendment. The extent to which your Fourth Amendment rights actually protect you from a search and seizure depends on what or where the police wish to search. Your home, for example, remains relatively well protected by the Fourth Amendment; however, your vehicle doesnt enjoy the same protection. The Supreme Court of the United States, or SCOTUS, is charged with interpreting the Constitution and its applicability to specific circumstances. SCOTUS has made it clear that we have a lesser

expectation of privacy when operating a motor vehicle on a public roadway than we do in our home. Therefore, a law enforcement officer can legally stop and search your vehicle much easier than he/she can enter and conduct a search of your home.

Though the police are legally required to have reasonable suspicion that criminal activity is, or was, taking place in order to legally stop you, they are not actually required to have reasonable suspicion that you are drinking and driving to effectuate a stop. In fact, an officer can use a pretextual stop that ends up in a drunk driving arrest. A pretextual stop is one in which the officer uses a pretext, such as a broken brake light or a loud muffler, to stop a vehicle that the officer believes might be operated by a drunk driver. In short, although an officer must have reasonable suspicion that a law has been broken to stop your

vehicle, the offense for which the officer pulls you over may have nothing to do with the real reason for the stop. How Does a Minor Offense Turn into A DUI? So to recap an officer can pull you over for the most minor offense imaginable, all the while operating under the subjective suspicion that you are drinking and driving. So how does that initial stop for the brake light or loud muffler become an arrest for DUI? The standard for searching your vehicle, or for searching your person, is raised once the purpose of the initial stop is over. For an officer to continue to hold you, question you, or conduct tests to determine if you have been drinking the officer must have probable cause. Legally, this is a higher standard than reasonable suspicion; however, the distinction is one your defense attorney will worry about if you are ultimately arrested for DUI. Note that DUI checkpoints are not considered a stop for purposes of this discussion. Because they are not considered to be a stop, an officer doesnt even need reasonable suspicion to briefly detain you for the purpose of looking for drunk drivers. There are constitutional requirements the police must satisfy before they can set up a DUI checkpoint. There are defenses to a DUI checkpoint stop. What Happens Next? Field Sobriety Tests Regardless of why you were originally stopped, if the officer suspects that you are under the influence of alcohol or drugs the next step will likely be to ask you to take a number of field sobriety tests, or FSTs. Due to the seemingly endless number of law enforcement reality televisions shows, most people have seen FSTs performed on someone else before. They appear simple enough; however, even if you are not drunk they can be harder than they look to complete error free. Most people get nervous and may fail to listen well to the instructions. Other

factors such as the weather, road surface, the clothing you have on, fatigue, prescription medication, or physical limitations can impact how well you perform on the FSTs. An officer may use both standardized and non-standard FSTs. Standardized FSTs are those that have been approved by the National Highway Transportation Administration, or NHTSA, and include: Horizontal gaze nystagmus test (HGN) the most often used FST because of its proclaimed level of accuracy when properly administered, the HGN test is conducted by the officer using an object (usually a pen) and moving it from the center of your field of vision to the side and back. The officer is looking for nystagmus which is an involuntary bouncing of the eye that occurs when under the influence of alcohol. The more your eyes bounce the higher the likelihood that you have been drinking. One-leg stand this test requires you to stand on one leg with the other leg pulled up about six inches for a count of thirty. You are required to count out loud while performing the test. Your arms must remain down at your sides and cannot be used for balance during the test. Walk and turn for this FST you are told to walk a straight line heel to toe for nine steps. After step nine you must pivot and return along the same line. Again, your arms cannot be used for balance and must remain at your sides. Taking too few or too many steps, failing to pivot properly, or swaying while you walk can count against you on this test. Whether you pass or fail a FST is decided by the officer. Although there are administrative guidelines that are intended to be used when determining if a motorists passes or fails a FST the decision is really a subjective one made by the

officer. Along with the standard FSTs the officer may conduct other FSTs and/or may ask you to take a portable breath test. This device is essentially a mini breathalyzer that measures your blood alcohol content, or BAC. The results of a portable breath test are not admissible in court but can be used for probable cause to arrest you for DUI. Chemical Tests Do You Have to Take One? If you fail the FSTs and the officer formally places you under arrest for DUI the next stop is typically the station or jail for a chemical test. At this point we would normally reach yet another level of protection that would require the officer to obtain a warrant before requiring you to submit to a chemical test; however, because California has an implied consent law a warrant is not required. In short, the implied consent law means that you gave your consent to submit to a chemical test when you chose to obtain your California drivers license. You do still have the right to refuse a chemical test but refusing comes with an automatic one year license suspension if it is your first refusal. In certain situations, such as when a motorist is unconscious because of a collision or extreme intoxication, a blood test may be performed in lieu of a breathalyzer. Chemical Test Results What Do They Mean? Results from a chemical test will help in the prosecution of your case; however, they are not required to find you guilty of DUI in California. California Vehicle Code Sections 23152(a) (b) and (e) read as follows: (a) It is unlawful for any person who is under the influence of any alcoholic beverage to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

(e) It is unlawful for any person who is under the combined influenc e of any alcoholic beverage and drug, to drive a vehicle. What should be clear by reading these code sections is that operating a motor vehicle while under the influence of alcohol or drugsis a crime regardless of your BAC level. Defending a California DUI Arrest The consequences of a DUI conviction are often far-reaching and may linger for years. Therefore, it is in your best interest to defend a DUI charge when possible. An experienced California DUI attorney will analyze everything from the initial reason for the stop to the procedures followed when the chemical test was administered looking for possible defenses. If you have been charged with a DUI in California, it is imperative that you go over the facts and circumstances of your stop and arrest with an experienced defense attorney to determine what legal options you may have to prevent a conviction and/or lessen the impact of your arrest.

California Vehicle Code, Section 23152 AVVO, The California DUI Stop, Probable Cause in a Nutshell National Highway Traffic Safety Administration, Standardized Field Sobriety Testing