Orange County, CA Criminal Defense Law Blog

Monday, November 24, 2014

I’ve Been Pulled Over by the Police. What Do I Do?

If you’ve been pulled over by a police officer for suspected DUI, act and speak professionally. Do not be angry or yell at the officer. Do not complain about that important meeting you’re missing or that you really want to go home. Do not do or say anything that may be interpreted by the officer as a threat. You do have rights that need to be protected, but being confrontational is not the way to go.

Detained But Not in Custody

During a traffic stop you are considered “detained” which means you are not “in custody” but also not free to go. 

• The officer is not obligated to read you your Miranda rights at this point. If asked questions about whether you have been drinking and how much, your answers can be used against you. 
• You have the Fifth Amendment privilege against self-incrimination and can refuse to answer questions. 
• What you must do is provide your driver’s license, registration and proof of insurance. You’re under no obligation to answer questions that may incriminate you.

The No Win Situation: Field Sobriety Tests

The officer may ask you to perform some field sobriety tests. 

• These tests are voluntary and interpreting your performance is extremely subjective. 
• They are supposed to test motor skills, divided attention and information retention. 
• If the officer decides that you failed the tests, he or she could testify in court that you were unable to satisfactorily perform these tests. 
There are many potential issues that can impact your performance, whether you’re intoxicated or not. 
• You don’t know what these tests are and have never done them before. 
• There are flashing police lights, traffic driving by, you are nervous, you are hoping no one who knows you sees you, you do not hear or understand the instructions. 
• If you ask that instructions be repeated or there was one mistake, the officer could decide you failed the test.
If asked to take such tests, politely say no and state they are too subjective and not mandated by state law.

The next step could be a request to take a roadside breath test known as a PAS (preliminary alcohol screening, commonly known as a breathalyzer). If you are on probation for a DUI conviction or are under 21, you must submit to that roadside test. Otherwise, it is another field sobriety test you can refuse to take. 

If you submit to the test and the result is over 0.08%, it may provide the probable cause to arrest you. If you do not submit, the officer must decide if there is probable cause to arrest you or not. If there is no probable cause, you cannot be lawfully arrested and any subsequent chemical test and blood-alcohol result could be excluded from evidence by the court at trial.

Probable Cause and Tests

If there is probable cause to arrest you, you are required by law to submit to a chemical test, either by breath or blood. 

• Breath test results are more easily disputed in court because your breath cannot be preserved. 
• With a blood test, you have a right to have the samples retested by an independent lab to determine the accuracy of the government’s test results. 
• If you refuse the chemical test after being lawfully arrested for DUI, you can still be forced to have blood drawn from you. The results can be used against you in court and it could increase the punishment for refusing the chemical test. 

If you’ve been pulled over, you should refuse to answer questions that may incriminate you and refuse to take field sobriety tests.  But if you are arrested, take the blood test and hope for the best. If you’ve been charged with DUI in Orange County, California, it’s not something to take lightly. Contact The Law Offices of Mark Raymond McDonald at (949)460-6421 or (800)595-8159 for a free consultation.


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