Do You Have to Consent to Roadside Sobriety Tests?

This week we’re going to discuss DUIs – the laws and procedures that are triggered when someone is arrested for driving under the influence of alcohol or drugs. We’re going to speak with Aaron Bortel, a San Francisco attorney and expert on DUI law. Aaron is also a member of Nolo’s Lawyer Directory. Most people call it “drunk driving” and in some states it’s referred to as “Driving While Intoxicated” or “DWI,” but you don’t have to be intoxicated or “drunk” to be convicted of this crime. For that reason, the offense we’re discussing is commonly known as “Driving Under the Influence” or ‘DUI.’

In most states, a first time DUI offense will usually result in some jail time, a large fine – usually more than $1,000 -- and a driver’s license suspension. The maximum sentence for a first offense is usually six months or a year in jail and that varies from state to state. Second and third offenses often result in jail sentences of several months to a year. In California, A DUI conviction counts as a second offense or third offense if the prior convictions occurred within ten years. This is what is known within the world of DUIs as priorability – whether an offense counts as prior offense.

In addition to the penalties I mentioned, insurance companies often cancel (or drastically raise rates) for drivers convicted of a DUI. And a DUI charge stays on a driving record for many years.

The procedure for enforcing DUI laws usually begins when a police officer observes someone driving improperly, perhaps weaving in out of lanes of traffic, or speeding. After stopping the car, the officer observes the driver, for indications of alcohol or drug impairment, for example, slurred speech, red eyes, dilated pupils, flushed face, a strong alcoholic beverage odor on the driver’s breath, or unsteadiness after the driver gets out of the car. The officer may request a roadside coordination test – also known as a field sobriety test which may involve the driver balancing or walking.

If the officer reasonably suspects that driver is under the influence, the driver will be arrested. And after the arrest, comes a crucial test -- either a breath or a blood test.

We asked DUI attorney Aaron Bortel whether it’s ever in a driver’s best interest to refuse to take this test.

AARON BORTEL: It‘s a tough one to defend, let’s put it that way. You’re better off not refusing the test in most cases.

NOLO: What’s the legal basis for requiring this test?

AARON BORTEL: When we sign up to get our license, we sign something where we impliedly consent to take a chemical test after being arrested for a DUI. The test that you’re required to do is the evidential test that’s either a blood test or a breath test which is usually at the station. The officer is required to tell you if you refuse to do the blood test or evidential breath test that you will lose your license for a year.

After the arrest, the driver’s license is taken away and usually, the driver’s car is impounded. The police officer will also be required to send a form to the DMV notifying them of the arrest.

A decision must be made as to what charges will be brought against the driver. In California, for example, driving under the influence can lead to two misdemeanor charges -- Driving Under the Influence or Driving While Blood Alcohol is 0.08% or higher. But the driver can also be charged with Felony DUI, a very serious charge that can send the driver to prison for over a year and possibly up to five years.

NOLO: We asked Aaron Bortel for an explanation of Felony DUI.

AARON BORTEL: If you add on an injury to another you’ve got a felony. It’s that injury. Now the degree of injury is usually what determines whether or not they will charge it as a felony or a misdemeanor. It can be to someone in another vehicle, or a pedestrian or someone in your own vehicle. There you’ve got felony DUI.

NOLO: Occasionally, famous people are arrested for DUIs and it makes the news. This week, actor Mel Gibson was arrested after driving over 85 miles per hour, almost twice the legal speed limit. The idea of an intoxicated person doing double the speed limit seems frightening to the average driver. Does the speeding affect the DUI charge?

AARON BORTEL: I feel the same way that you do that yeah, it is a lot scarier when someone is going that much faster and I think that is treated much more severely by the prosecutors. Prosecutors do not like speeding cases. I’m not talking ten or twenty miles an hour over the speed limit but when they start seeing double the speed limit, doing ninety, one hundred on the highways and freeways, they get a little more upset and what happens there is that they are less likely to reduce charges.

What they did not do here, was that they did not add on an enhancement where if he were convicted for doing 20 miles an hour or greater [over the speed limit] on a highway which also includes surface streets and were convicted he would be looking at a minimum 60 days in jail.

NOLO: Under California law, a driver under the influence whose speed on surface streets exceeds the posted limit by 20 mph is eligible for an additional factor or enhancement and, if convicted, would lead to a minimum of 60 days in jail for the driver. So, why wasn’t Mel Gibson charged with an enhancement?

AARON BORTEL: That’s a big question in the DUI community right now. Most prosecutor offices that I’ve dealt with would not hesitate, y’know more than thirty, more than forty miles an hour over the speed limit, they will do it.

NOLO: There were many other elements reported in the Mel Gibson DUI case including belligerency, threatening of an officer, and the fact that an open bottle of tequila was found in the car. Although to a layperson, the presence of an open bottle of tequila may seem like damning evidence, it can also be used as part of the defense which may argue that the effects of the drinking from the open bottle – since they were so close to when the driver was stopped -- may not have affected the driver … but it may have affected the evidential test given later, when the driver’s blood alcohol level has risen. In other words, defense attorneys sometimes argue that an open bottle raises doubt as to whether the driver was over a .08 at the time the driver was stopped. That aside, however, the conventional thinking for most DUI cases is that a properly administered test that results in a reading substantially higher than .08 -- and in Mel Gibson’s case, .12 – will most likely result in a conviction. So what would a first time offender like Mel Gibson face in a California court? How much is the fine? And is there jail time?

AARON BORTEL: It depends on the county, but I’d say usually it’s between $1400 to $1700. That’s a typical fine. Sometimes they have to do a little community service. But your standard first offense DUI will give you in most counties -- they’ll usually give you two days in jail which can be done picking up trash on the Sheriff’s work program so you don’t actually spend the night in jail. You show up in the morning, [they] give you an orange vest, [you] pick up trash on the road. Some counties are more harsh than others. It’s my understanding that L.A. county is not one of those.

NOLO: Aaron Bortel also explained that in addition to a minimum of 2 days in jail, and license suspension by the DMV, a first time offender would also face three years probation.

Depending on the county, drivers accused of DUIs can in some cases can plea bargain. Bortel explained that some counties, for example, Marin County, north of San Francisco have a reputation for not entering into plea bargains in DUI cases. In other California counties, drivers may plea bargain in appropriate cases to lower counts known as wet reckless, for example, – a lesser offense than a DUI but it still counts for determining priorability. Or a driver may plea bargain to what is known as a dry reckless which is not a priorable offense.

As public opinion has gathered against drunk driving over the past few decades, drivers have found it harder and harder to plea bargain? Aaron Bortel concurs.

AARON BORTEL: I think everything in DUI law has gotten tougher since I started practicing in the early nineties. Mothers Against Drunk Driving has had a big push for many years to make the laws tougher. The law’s gotten a lot tougher not just in fines going up, but the sentencing has gotten much tougher, priorability – number of years – has increased. It used to be that it was seven years – if you got a second DUI within seven years [in California] it would count as a second offense. Now it’s ten years.

Aaron Bortel, like many DUI attorneys, often attempts to help clients get into alcohol programs and begin a recovery. But does an arrest and conviction affect drivers so much that they really change their behavior?

AARON BORTEL: They learn a lesson. Because they are often having to go to a DUI school their insurance rates go way up. Their licenses are suspended or restricted. Those kind of things happen. And those are what make most people learn their lesson and not put themselves in that situation again.

NOLO: That’s all we have time for this week. Thanks so much for listening. Much of the background information I used is derived from two books, Fight Your Ticket and Beat Your Ticket, both by attorney David Wayne Brown.