Questions About DUI in San Diego
Answers from San Diego DUI Defense Lawyers
California has strict
DUI laws and the penalties for DUI offenses are harsh. It is important for
all defendants to be aware of their rights and also know what to expect in the
DUI process. Our firm wants to provide you with a convenient FAQ to familiarize you
with all aspects of DUI crimes in California.
If you have been charged or arrested for any type of DUI offense, be sure
to speak with a
San Diego defense attorney from The Law Offices of Kerry L. Armstrong, APLC. We have years of experience
helping clients fight their charges, and we may be able to help you as well.
Can I legally refuse the intoxication tests?
The answer is "it depends." If you are 21 or older then you can
legally refuse the
field sobriety tests and the roadside Breathalyzer test. If you are under age 21; however,
you cannot legally refuse the roadside tests. After you have been arrested,
regardless of your age, you have to submit to a chemical test by law.
You do have the right to choose between a blood, breath or urine test,
but you have to perform at least one chemical test.
Should I request a DMV hearing?
You should request a
DMV hearing in order to fight against your license suspension. The results of the
hearing do not affect the charges you are facing in court, but it can
help you keep your license. With the help of a skilled attorney, you may
be able to challenge the evidence against you or the performance of the
If the officer did not give me a "Miranda" warning, can my case
Not necessarily. The arresting officer is supposed to give a 5th amendment warning after arresting you, but this is not required. If they
do not give the warning, they cannot use any answers that you give to
their questions, but that is the only consequence. More importantly, if
they do not warn you of the implied consent law in CA, then you have an
argument against your license suspension.
What are the penalties of a DUI?
The penalties vary depending on your offense and if you have any previous
DUI convictions. For a
first DUI offense, you may be facing: up to six months in jail, a fine of up to $1,500,
probation for up to five years, licenses suspension for up to four months
and up to six months of alcohol classes. If it is an aggravated offense or a
multiple DUI, the penalties may be harsher.
How long will my license be suspended if I refused to perform a chemical test?
If you did not take a chemical test, the arresting officer will take your
license on the spot and it will be
suspended for one year. If it is your second time refusing the test, your license
could be revoked for two years. If this is the third refusal, your license
may be revoked for three years.
Do I have to appear in court?
If you are not able to appear in court, your attorney can appear on your
behalf in most cases. You do not necessarily have to be present if you
are represented by a lawyer.
What is the "rising BAC defense"?
This is a defense that an attorney can make when fighting against your
DUI charges. The thought behind this defense is that it takes time for
alcohol to be absorbed in the body. It is against the law to have a Blood
Alcohol Concentration (BAC) level above the legal limit while driving.
However, oftentimes it takes about an hour to administer a test when arresting
a driver suspected of DUI. This means that when the test is administered,
the BAC may be different than when the person was actually driving. It
takes between 30 minutes and three hours for alcohol to be completely
absorbed into a person's system so while waiting for the test, the
BAC could rise. If your test results show that your BAC was .10%, there
can be an argument that it rose to that point after you were arrested.
Your BAC while driving could have only been .07%, and your attorney can
argue this point in court.
What does the term "mouth alcohol" mean?
This term refers to the presence of alcohol in your mouth when performing
a breath test. If a driver has mouth alcohol, the breath test results
will appear higher than normal results. The Breathalyzer machine assumes
that the breath starts from the lungs, but the existence of mouth alcohol
can create a discrepancy in the results. Some reasons that a person may
have mouth alcohol include: breath fresheners that have trace amounts
of alcohol, hiccups or burps can bring up vapors of alcohol from the stomach,
dental caps can capture alcohol, chronic reflux conditions and hiatal
hernias. If any of these reasons apply to your situation, your DUI attorney
can argue that the results of your breath test are inaccurate.
If you have further questions regarding the DUI process or would like to
discuss your unique case,
contact a San Diego DUI lawyer from our firm. The Law Offices of Kerry L. Armstrong, APLC has an online
case analysis form that you can fill out to get started. We may be able
to help you fight to have your charges reduced or even dismissed.