At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 886-6333

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DUI LawsHow Is A DUI Defined Under California State Law?

In California, DUI stands for driving under the influence. Driving under the influence applies to both alcohol and drugs. Typically, when someone is arrested for a DUI that only involves alcohol, the driver is charged with two separate vehicle code violations. The first vehicle code violation is section 23152(a). Section 23152(a) means that the authorities need to be able to prove that the person was driving the car while under the influence. In other words, it basically means that the person was impaired at the time that they were driving, and that has been defined in many different ways. Also, there’s a jury instruction that states that the driver was not driving with the care and caution of a sober person.

The other vehicle code section that you get charged with when arrested for a DUI involving alcohol is vehicle code violation section 23152(b). Section 23152(b) is the “per se” law that states that a person with a blood alcohol concentration (BAC) level of .08% or higher at the time of driving has committed a crime.

There are other offenses that you could be charged with and arrested for. For instance, you could be charged and arrested for the combined influence of alcohol or drugs, or just drugs. The drugs can be illegal drugs, prescription drugs, or any kind of drugs that cause impairment.

What Happens after Someone Is Pulled Over On Suspicion Of DUI?

When someone gets pulled over for weaving, speeding, erratic driving, having their lights on, cutting someone off, or another reason, it’s supposed to be for a violation of the vehicle code. Once an officer pulls someone over, they need to do an investigation before they arrest the driver. The officer will typically approach the driver’s side window, or the passenger’s side window, and try to get a sniff of the air in your car. They want to see if they can smell the odor of an alcoholic beverage. Sometimes, they get that from other passengers who may be in the car. But, once they smell that odor, or if you tell them that you’ve had something to drink, they will ask you to step out of the car and conduct a field sobriety test. A field sobriety test is not mandatory. You can decline it if you do so politely and respectfully.
Do not give them any additional evidence that you have been drinking or doing drugs. You don’t need to give them that information, but be polite about it. If you agree to do the field sobriety tests, there are three standardized tests. The test includes the horizontal gaze Nystagmus test where they run a finger, pen, or flashlight side-to-side in front of your eyes. It’s supposed to be a 90 second test. However, they usually don’t take that long. They will also have you do the walk and turn test, also known as the heel to toe, which is nine steps out, a turn, and nine steps back while keeping your hands at your side and counting your steps out loud. The third test is called the one leg stand. The one leg stand requires you to hold one leg six inches off the ground with your foot parallel to the ground. Your hands have to be at your side, and while looking at your foot, you’re counting out loud until you’re told to stop. They time this for 30 seconds. They’re looking to see if you put your foot down, hop, sway, or miscount.

They’re looking for anything that shows that you are not properly performing the test. They don’t tell you the scoring system for any of these tests, but the results are put into a police report, which they will use later. In most cases, when they’ve gotten you out of the car, regardless of whether you agree to the tests or not, they will ask you to do another voluntary test called the preliminary alcohol screening test. They will ask you to blow twice into a handheld device to see if you have a BAC of 08% or higher.

If your BAC is at least .08%, or even slightly under, especially if there’s been an accident with injury, they will cuff you, put you in the car, and place you under arrest for DUI. Once they’ve arrested you for DUI, they will ask you to choose between a breath test or a blood test. A breath test can be done at the scene, at the jail, or police station. A blood test in California is usually done at the jail or police station. They’ll have a phlebotomist come in, or have it done by a phlebotomist or nurse at a hospital. Once you’ve chosen that task, it will be conducted. Sometimes people refuse tests. But the problem with refusing a chemical test is that you’re likely to lose your license for one full year with no restriction or interlock. You won’t be able to drive for one full year.

Refusing a test in California may be advisable if you don’t need that license for the next year. However, refusal is probably not the best option in most cases it results in losing your license for a year.

More Information

For more information on DUI cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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