Know Your Rights Concerning DUI in San Diego
California DUI & Your Legal Rights
1. YOU HAVE THE RIGHT TO PROBABLE CAUSE:
The police officer must have had probable cause to pull you over, detain, question, test, and subsequently arrest you. He or she must be able to state specific behaviors or conditions that he or she observed you demonstrating as justifiable reason to have warranted further investigation. Common allegations made by arresting officers during cross-examination include speeding and erratic driving claims, vehicle code violations such as inoperative or defective equipment ( ie, broken windshield, burned out headlight, faulty brake lights, etc. ), and violation of traffic laws, such as failing to signal prior to making a turn. A good DUI attorney may be able to successfully motion for suppression of any evidence obtained after an unjustified stop, such as blood test results or contraband found during a search of your vehicle, if police cannot substantiate probable cause.
The exception to the above probable cause factor is an increasingly common occurrence in San Diego termed “authorized sobriety roadblocks”. These checkpoints are reported to be a regulatory measure that promotes San Diego public safety, but the officers must use a random and nondiscriminatory method of selection, such as every fourth car, or some other predetermined system for detaining motorists. An exclusion to the probable cause law requires validation by provision of advance public warning, warning lights preceding the checkpoint, and an available turnout for drivers who opt to avoid the sobriety checkpoint.
2. YOU HAVE THE RIGHT TO REFUSE A FIELD SOBRIETY TEST:
If a Police Officer assumes he or she has probable cause to pull you over and then suspects you of drunk driving in San Diego, they will likely ask you to step out of your car to perform a variety of field sobriety tests. You have the right to refuse these tests.
If you are age 21 or over, you also have the right to refuse to be subjected to a portable PAS ( Preliminary Alcohol Screen) device test, used to measure your breath alcohol concentration. However, you MUST submit to a jail house blood or breath alcohol test upon request.
Do not confuse the field testing methods for the chemical tests that are mandatory if you are under arrest for DUI in San Diego. A failure to cooperate with a blood or breath alcohol test is considered a DUI “refusal” enhancement which imposes more severe penalties and driving privilege restrictions.
3. YOU HAVE THE RIGHT TO BE ADVISED OF YOUR MIRANDA RIGHTS:
Whether you are an adult U.S. citizen or a national of another country, you are entitled to certain rights if placed under arrest and taken into police custody. Prior to being questioned by any arresting or law enforcement officer, he or she must advise you that:
You have the right to remain silent
Anything you say can and will be used against you in a court of law
You have the right to have a lawyer present while you are questioned
If you cannot afford an attorney, one will be appointed to you
The above statements constitute your Miranda Rights, as set forth and guaranteed to you by the United States Constitution, so long as your presence is not deemed a threat to public safety. If these warnings are not disclosed to you at the time of your arrest, your attorney may motion that any statements you made to police in the absence of being read your rights, be suppressed and made inadmissible as evidence against you in court. Failure to be read your Miranda Rights does not automatically call for a dismissal of your case. Any information you choose to volunteer to police without being questioned, nor read your rights, will not be applicable to these provisions.
4. YOU HAVE THE RIGHT TO REMAIN SILENT:
Police Officers may ask you how many drinks you have consumed, as well as, or opposed to, the amount and time of any food you have eaten. You have the right to refuse to answer these, or any other questions, by exercising your Fifth Amendment right to remain silent. Although you are required by law to answer questions relating to your identity, it is our very strong opinion and advice that when facing arrest on criminal charges, you won’t hurt your case by saying too little.
5. YOU HAVE THE RIGHT TO MAKE A PHONE CALL:
If you are taken into custody, you have right to access and use of a telephone to contact someone about your situation and whereabouts.
6. YOU HAVE THE RIGHT TO SPEAK TO AN ATTORNEY:
You are under no obligation to respond to any questions, with the exception of establishing your identity, without first speaking to an attorney. Nor are you obligated to submit to field sobriety tests (walk and turn, horizontal gaze, etc.) without having an attorney present. If you agree to voluntarily give up your rights to remain silent, and you state that you understand the implications of such a waiver, you can then be legally interrogated without an arbitrating attorney present. If you agree to being questioned without counsel, and then rescind your agreement, interrogation must stop as soon as you state that you want a lawyer. If the questioning continues after you have requested the assistance of an attorney, but you continue to talk, your statements and answers can be used against you. The United States Constitution guarantees that any person accused of a crime be afforded the right to qualified legal counsel experienced in criminal law. If you cannot afford an attorney to defend you, one will be appointed to you.
7. YOU HAVE THE RIGHT TO A BAIL HEARING:
You have the right to post bail and be released from police custody until the DUI charges against you can be proven in court. The bail amount will be determined by several factors, including the nature and severity of your crime, any prior offenses, and whether you are considered a flight risk. A bail bondsman may facilitate your release, usually for a non-refundable fee of 10% of your total bail amount. You can post your bail yourself, and be reimbursed once you have appeared at your court hearings. The law presumes you are guilty of the charges, for the purposes of setting the bail or release amount, according to a set schedule of charges.
8. YOU HAVE THE RIGHT TO A FAIR AND SPEEDY TRIAL:
You are considered innocent until you are proven guilty. You have the right to cross-examine any witnesses or evidence being used against you. Blood Alcohol Concentration tests taken at the time of your arrest must be saved and made available to your attorney for independent testing and analysis. You have the right to be arraigned without unnecessary delay – usually within three court days – after being arrested. You will appear before a judge who will officially advise you of the DUI charges against you at your first court hearing.
9. YOU HAVE THE RIGHT TO CALL WITNESSES ON YOUR BEHALF:
You have the right to subpoena and present testimony from any witnesses or evidence that support your not guilty plea. You have the right to take the witness stand on your own behalf, or to decline by exercising your Fifth Amendment right to remain silent.
10. YOU HAVE THE RIGHT TO PROPER SEARCH PROCEDURE ADHERENCE:
Body Searches: If you are arrested in San Diego, an officer can search you, without a warrant, for weapons, evidence, or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs, or violence unless police reasonably suspect you are concealing a weapon or illegal goods. If you are booked and jailed, you may undergo a full body search, including body cavities.
Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe that it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason, such as a broken tail light, they can take any illegal goods that are in plain sight.
If you, your home, or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.
If you have been arrested for drunk driving, driving under the influence, DUI or DWI in San Diego, your case will benefit greatly with the experienced legal advice and assistance of a specialized San Diego drunk driving lawyer or San Diego DUI attorney. Call the DUI Law Offices of G. Cole Casey, APC, 24 hours a day at (619) 930-5490 to begin protecting your rights TODAY