The wind blew sand in my eye and I got a DUI
Q: Leaving Stagecoach the wind blew sand in my eye. I swerved and the police stopped me and arrested me for a DUI? Is that legal? It doesn't seem fair! Steve R, Los Angeles
A: The police need only have probable cause or a reasonable cause to approach you. If you commit a traffic infraction like weaving, swerving, speeding or an unsafe lane change then they can investigate. During the investigation if they smell alcohol they can investigate further to determine if you are Driving Under the Influence. If they, for instance, see what looks like a dead body in the back seat they can investigate for a possible murder. If they see a bag of drugs on the back seat they likewise can investigate to determine if they are illegal etc. In other words it does not make any difference what they find/see that is illegal, as long as the police had a legal right to stop/approach you to observe it.
Once they have the right to investigate then if a breath test shows the amount of alcohol is enough for a DUI arrest (i.e. .08) they then can take you to the Indio Jail. Before doing so the cops will normally ask you to perform Field Sobriety Tests such as; walk the line, finger to nose, following the officer's finger or pen, balance tests etc. Ironically ALL THESE TESTS ARE OPTIONAL. You can politely say you are willing to take any test that is mandatory and if it is optional then you OPT not to take the test.
Then they will ask you to take a breath test at the scene and if you are .08 or higher they can arrest you for DUI. The Preliminary Alcohol Screening Test (PAS) breath test is also OPTIONAL. You would then request a Blood or Breath test at the station...this is mandatory and a failure to comply is a REFUSAL and you will lose your license for 1 year.
In Riverside County the Police/DA will cite and file on .07's. This is arguably not enough to be under the influence on its own. Of course you can be under the combined influence of alcohol and a DRUG...even a prescriptive drug. Many RX's have a warning on the label not to operate heavy machinery when taking the drug and not to mix with alcohol. This is not a reference to a tractor but rather a car.
The bottom line is that it does not make any difference why the officer stops you as long as the initial stop is legal. It is your poor luck that you got wind/dirt in your eye which caused you to swerve. This brought you to the attention of the police and they can then legally investigate.
DON'T DRINK AND DRIVE, CALL A TAXI...IT IS A LOT CHEAPER THAN HIRING ME!
Dale Gribow has been "Rated" TOP LAWYER by Palm Springs Life Magazine from 2011-2019 and has a Superb AVVO Legal Rating by his fellow attorneys. Dale Gribow has been Man of the Year 7 times including the City of Palm Desert and the City of Hope and Dale Gribow Day has been declared 4 times. He is the only attorney appointed in December 2013 to the Coachella Valley Association of Government's Public Safety Ad Hoc Blue Ribbon Committee addressing Drunk Driving. This group consists of the police chiefs from every city and the mayor of each city as well as the Sheriff of Riverside County and the head of the CHP and Border Patrol. In addition Gribow is the only attorney asked to be part of the Clinton Foundation's Clinton Health Matters Committee addressing Drunk Driving. Gribow is also one of the founders of Shutdown Drunk Driving formed upon the death of his client who was recently killed by a drunk driver while jogging. 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.