DUI? REFUSE THE FST OR BREATH TESTS (READ HOW HEREIN)
Feb. 8, 2015
Most readers of CV Weekly do not realize that the Breath test at the scene and (FST) Field Sobriety Tests (finger to nose, walk the line and balance) are OPTIONAL. Most lawyers do not know this either so do not feel bad. It is probably the least publicized law and it is obvious why. The breath test at the scene, unless you are on probation, is an elective/optional test, as are the FST’s but you do then have to take a chemical test if the officer suspects you of consuming alcohol.
We used to have our choice of Blood, Breath or Urine, however the Urine Test was eliminated as an option a few years ago. This is because it was not accurate… though police testified for years that it was accurate. Thus we are left with the Blood test. I always advise my clients and the readers of my weekly legal column in the CV Weekly, to politely ask for the BLOOD test. This means you will be taken to the police station or hospital for a blood draw.
Since the results will not be known for weeks the police will book you into custody. If you had been drinking enough to be a little buzzed then RSO or CHP would probably have booked you anyway after your breath test. However, either way, you will be released after 4-6 hours. This is the amount of time they assume is necessary for you to sober up.
A driver stopped and offered DUI tests should be cooperative and politely say that their attorney is Dale Gribow and he has advised them not to talk without calling Dale Gribow for permission (of course they will probably not let you call me). Explain “you have been advised these Field Sobriety Tests and the Breath Test at the scene are optional. If that is correct Mr. Officer, then I elect not to take them (unless the driver is on probation). Then explain that you are happy to cooperate with law enforcement and take a blood test.” In this regard please cut the card out at the bottom.
After the driver bails out of jail or gets an OR release they should call a local DUI attorney. The attorney, not the driver, must request the DMV hearing within 10 days. The driver received a pink piece of paper which is a Temporary License good for 30 days. This is in exchange for the California Driver’s License which was taken when arrested.
In my office I have the driver sign a 977 waiver of their personal appearance. This allows me to appear for the driver without their ever going to court… unless there is a trial. This way the drive does not have to be embarrassed by going to court and running into friends let alone spending many days in the courtroom…waiting. In my firm we also have the client sign an OR paper which says the driver promises to appear in court if requested by the judge.
By requesting a DMV hearing and a STAY (freeze), the license remains good until after the results of the hearing. IF the license is suspended it is for 4 months and you are not allowed to drive at any time. The driver should however go to DMV and request a DMV Identification Card as it will be needed during the next few months.
A DUI kicks in two proceedings, the court and DMV. Unfortunately here in the CV we do not have adequate transportation as is the case in NY or SF. When your license is suspended there is almost no chance of getting a restricted license to drive from the California DMV. Your license is a necessity in the desert but it is just gone. Our laws are tougher out here in the CV than in many other parts of California. The courts in Indio even demand Jail on a first offense DUI with a low reading.
Please do not ruin your holidays!
DON’T DRINK AND DRIVE, CALL A TAXI or UBER………IT IS A LOT CHEAPER THAN CALLING ME!
If you have any questions regarding this column or ideas for future columns please contact Dale Gribow, Attorney at Law at his NEW number 760-565-0533.