IF YOU DRINK AND DRIVE
July 16, 2020
If you did not heed my warning to not drink and drive and take a Taxi or Uber and you got a DUI then you need to know the following:
A DUI in California kicks in two sets of events... Court and DMV. The California Department of Motor Vehicles, or DMV, begins a process of suspending your driver's license and you only have 10 days calendar days to request a hearing.
Procedurally, when you are arrested for a DUI, the police under the STOP AND SNATCH LAW, will take your driver's license away. You are then given a “White” 8X10 temporary driver's license.
Your license is confiscated by the police when you either fail or refuse to take a PAS chemical test (breathalyzer or blood test). The officer at the scene will issue a Pink 8X10 “Order of Suspension” which is good for only 30 days.
If the officer smells any alcohol he will administer Field Sobriety Tests aka FST’s which are optional. The optional Preliminary Alcohol Screening test (PAS) at the scene, uses a small portable breath machine. The PAS test is NOT the same as the more accurate Big Breathalyzer at the station.
I suggest clients say they understand the FST’s and Breath test at the scene are voluntary and thus they opt not to take them. Then they should explain that they are happy to cooperate with law enforcement and take a Blood test at the Station.
The breath test reading of .08 may not be accurate because the police did not properly calibrate the machine regularly and or have a properly trained operator per Title 17 of the California Code of Regulations. Eating gum, mints or lozenges before taking the test sometimes gives false positives. Acid reflux, being diabetic or on a high protein diet may also cause inaccurate results.
Remember the other FST tests: shining a flashlight in your eye, walking the line, finger to nose etc. are all optional at the scene.
This “Pink” paper (license) suspends your driver's license and gives you the right to drive with it for 30 days. The police officer will send your Driver's License to the Sacramento DMV for destruction. DMV issues a White temporary license, good until suspended by DMV. If your lawyer does not request a STAY (freezing the suspension) then after 30 days your license will be suspended.
A Stay delays suspension until a hearing date is set and a ruling received. Your license is always good UNTIL you get a notice from the DMV saying it has been suspended.
A DMV hearing is statutory and thus if you have .08 or higher the odds are you will lose, and it will stay on your record as a prior for 10 years. If you are under 21 you cannot have any alcohol on your breath.