1. Do I Have to Answer Police Questions When I Am Stopped?
NO! The right to remain silent exists whether or not you are under arrest. The only difference is, when you are under arrest, law enforcement is required to advise you of that right. In a regular traffic stop or any other encounter when you are not – at the moment – under arrest, they are not required to tell you that you can [and should] remain silent.
When the officer approaches the window after a traffic stop, be prepared with your driver license, registration, and proof of insurance. Hand all three to the officer.
Keep your hands in clear sight. The steering wheel is the best place for your hands. Don’t fidget with them, and don’t dig around in bags or pockets or compartments – basically, don’t put your hands in a place the officer cannot see them.
If he or she asks you if you why you were stopped, the answer is: “No” – and that is true. You don’t know what the officer is thinking or his or her rationale for the stop. You might THINK you know, but you don’t KNOW, so the true and correct answer is “no.”
When the officer attempts to engage in small talk, remember this: THERE’S NO SUCH THING AS SMALL TALK! Every question the officer asks has a purpose.
The most common way the officer will start with the strategic small talk is: “Where are you coming from?” or “Where are you headed?” …and they seem harmless enough; they are not. These questions are designed to 1) put you at ease; make you feel like it’s just a couple of pals talking, and 2) open you up to answering more questions.
While it may feel weird – and it will not please the officer – the only answer to the small talk questions is this: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
Be prepared, the officer is not going to be amused. He or she will immediately assume an indignant posture and tone and, either aggressively or condescendingly, the officer will suggest that you are making more of the situation than necessary. No matter what the officer says or how he or she says it, remain calm, polite, professional, and respectful.
The officer may go so far as to say that you are required to answer questions; you are not. The only answer to any question from that or any other law enforcement officer is: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
If the officer suspects DUI, he or she will ask a question akin to: “Have you been drinking tonight?” Your response: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
The officer will have you step out of the car. Some might say that you should ask whether you are being detained and on suspicion of what crime. I have mixed feelings about that, because one way or another, you are most likely going to end up out of the car, so why escalate the situation? Maybe you could ask one time and comply anyway. If the officer is wearing a digital audio recorder (DAR), the question and answer will be recorded.
The officer might say something to make you think you are making things more difficult. You are not. The officer might say something to get you to think that if you just answer some questions, he or she will send you on your way. They won’t. If they can arrest you, they will.
“I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
2. Am I Required to Perform the Field Sobriety Tests (FSTs)?
NO! When law enforcement officers direct you to perform the so-called field sobriety tests, they are not required to tell you that you can decline without penalty. The FSTs are completely optional for drivers who are 21 years or older and not on DUI probation.
The officer will tell you that he “needs” to do “some tests” to “make sure you are safe to drive.” First of all, the officer only “needs” food, water, and shelter; he “wants” you to do some “tests” so he or she can have an even better reason to arrest you – which he or she is already likely to do.
“Thank you, officer. However, the FSTs are optional, I am over 21 and not on DUI probation, so I will respectfully decline to perform any.” That is what you say.
The most common FSTs will have you walking an imaginary line, tilting your head back and touching your nose, and holding one leg out in front of you. Decline all of them.
The officer will, at some point, shine a light in your face and ask you to follow a pen or a finger with your eyes. Decline that one, too. It’s a trick. They are not looking for whether you can follow the pen or finger; they are looking for horizontal gaze nystagmus (HGN). HGN is an involuntary jerking of the eyes at a particular angle. While there are countless causes of HGN, law enforcement is only trained that alcohol is a cause and – whether they see it or not – they will claim it is there.
Be prepared, when you invoke your right to remain silent and don’t answer questions, and when you decline the FSTs, the officer will, more likely than not, arrest you. If here or she does, you must understand this: THEY WERE GOING TO ARREST YOU ANYWAY! The only difference is, now you have given them much less circumstantial evidence to use against you later.
3. Am I Required to Blow into the Preliminary Alcohol Screening Device (PAS)?
NO! Just like the FSTs, the PAS is completely optional for drivers who are 21 years or older and not on DUI probation.
PAS devices are not very reliable, and most machines do not keep a record. The officer can pretty much make up a number. I am not suggesting that they would, but they could, and you have seen the videos of officers bending the law.
4. Am I Required to Submit to a Chemical BAC Screening Test?
YES…and NO. In California, when you sign for and accept a driver’s license, you essentially give your “implied consent” to provide a chemical breath or blood sample for the purpose of detecting alcohol or drugs IF you are lawfully arrested for DUI.
If you refuse to provide a sample, and the stop is deemed lawful, the Department of Motor Vehicles (DMV) will suspend your driver’s license for a year. So, no, you don’t have to give a sample, but if you don’t the consequence is severe.
To count as a refusal, it’s not enough for the officer to simply tell you that you are required to submit t a chemical test and for you to refuse. Chemical Test Refusals (CTRs) are actually quite technical. The officer must expressly offer you a breath and blood test and allow you to choose. If you refuse both, the officer must expressly inform you that you are required to submit to a chemical alcohol test, that if you refuse your license will be suspended for a year, and [this is where they frequently mess up] after they have read the entire refusal admonition, they MUST offer BOTH breath and blood test again before they can call it a refusal.
Understanding that your license could – and likely would – be suspended for a year, the decision to refuse is entirely yours. I, personally, do not recommend it.
5. Should I Do the Breath or Blood Test?
Whether to give a breath or blood sample after being arrested for DUI on Long Beach is another personal decision. Each has its pros and cons, and one is not necessarily better or worse than the other; they are just different.
The breath test is usually the quickest and easiest to do. Whatever jail or station the arresting officer takes you to will have one or two machines there. The actual chemical test breath machines tend to be pretty reliable and their results almost always hold up in court.
A skilled Long Beach DUI lawyer will know to attack how the test was performed, who performed it, when or whether the machine was properly maintained and calibrated, etc., by requesting all of the data, logs, and records for the machine used as well as the training and qualifications of the officer who performed the test.
Also, the breath machines – at least for now – cannot detect marijuana or other drugs. If you have reason to believe that something other that alcohol may be found in your system at the time of testing, a chemical breath test may be the way to go.
On the other hand, chemical breath machines do not maintain the sample. Once you give the sample, it is gone forever, never to be retested. Furthermore, if there was a question about the veracity of the result or how it was documented, there would be no way to prove that the sample was yours. While that is a very unlikely scenario, a good criminal and DUI defense lawyer would want you to try to consider every possibility and prepare for it.
Blood tests involve needles. That, right there, is reason enough for many people to say no to a chemical blood test after a DUI in Long Beach. However, if you are someone who doesn’t mind a little needle stick, blood tests have some distinct advantages.
I like the fact that the sample is maintained and can be retested if needed. A blood sample can also be tested for DNA to prove [or disprove] that the sample is yours. Other issues about the sample can also be examined by a defense expert, such as the preservative used, the method and technique used for testing, how the sample was handled, etc. These are all areas a skilled DUI lawyer in Long Beach can examine and try to attack.
As described above, the fact that other substances can be detected could create additional issues in a Long Beach DUI case. Likewise, blood tests tend to be pretty accurate and that is not necessarily a good thing for the defense of a DUI case. Also, blood tests take longer to perform, they require more paperwork, and usually result in more time in custody before they send you home.
Ultimately, whether to give a breath or blood sample comes down to what YOU want to do in the moment.
6. What Happens When I Get Arrested for DUI in Long Beach?
As it is with a DUI arrest anywhere in Southern California and beyond, the entire affair is confusing, disorienting, and scary. It’s not something that you plan for; it is one of those things that is just happening before you know it. The most important thing you can do is STAY CALM!
Getting agitated and combative during a DUI arrest is like Chinese Finger Cuffs: the harder you resist, the tighter they hold on. There is no benefit or advantage to being combative or resistant during a DUI arrest. In most cases, the officers are not going to hurt you and they – like you – just want to get through it and go home.
If you are stopped by police and arrested for DUI in Long Beach or anywhere else, just follow instructions; stand where they tell you to stand, do what they tell you to do, and go where they tell you to go. You do not have to like them, but it is in everyone’s best interest that you remain calm and respectful – and DO NOT ANSWER QUESTIONS!
Once you are placed in handcuffs, they will seat you in a patrol car and drive you either to a station or a hospital for testing. Ride quietly. Don’t ask questions about when you will be out or what happens next or how bad is it going to be; none of the answers will allay the fear you will be experiencing, and you open yourself up to a dialogue that could end up harming your case.
The officer, especially the CHP, may be very friendly. The CHP is very well trained to keep suspects calm by being friendly. The officer is not your friend. He or she has one goal: to gather the evidence necessary to secure a DUI conviction against you. Silence is your best defense. Don’t be rude or aggressive in any way. Remember, the officer is just doing a job. Just be politely quiet and respectful.
Lastly, please understand that no matter how clever or skilled you think you are with your words, you are never going to talk your way out of a DUI arrest. If a law enforcement officer has it in their mind to arrest you, THAT is what is going to happen. You are not going to negotiate your way out. You are not going to cry your way out. You are not going to threaten your way out. You are not going to beg your way out. And, if you are employed in a profession that may lend itself to some perceived “courtesy,” the worst thing you can do is play that card. Asking an officer for “courtesy” to let you avoid a DUI arrest is basically asking a law enforcement officer, who is being recorded, to do something unethical or illegal and THAT is not going to happen. Maybe somewhere else, but not in Long Beach. Worse yet, that request could and likely will come back to haunt you when your employer gets wind of it.
7. What is a DUI Lawyer in Long Beach Going to Do?
A skilled and determined DUI lawyer in Long Beach will make sure you don’t get screwed by the system. Many DUI cases may seem simple and even slam dunk from the outside. However, when you look closely at each of the individual pieces necessary for a DUI conviction in criminal court, a skilled DUI lawyer will see vulnerabilities in every case. He or she will examine everything, starting with the probable cause for the stop and every little thing that happened afterward: Who did what? How were they trained? How was it documented? Did they follow procedure? Can their credibility be challenged? The list of questions seems endless.
Some DUI cases are not simple at all: What if you were not in the car when the police arrived? What if you were not the driver? What if the test was done improperly? What if…any of a thousand different factors suggest that you are not guilty? A skilled DUI lawyer in Long Beach will know just what to do with those individual pieces; how to take advantage of your good facts and law enforcement’s errors.
If nothing else, your DUI lawyer should bring you the peace of mind that comes with knowing that every possible thing was done to either get rid of the case or minimize the consequences. For many, the peace of mind alone is worth the cost of a DUI lawyer. There is much comfort to be had in knowing that you can just pick up the phone and talk to someone about your case; that someone is handling it while you go about your business – trying not to think about it.
8. What is the DMV Going to Do?
After you are arrested for DUI in Long Beach or anywhere in Southern California, the law enforcement agency that arrested you will take you California driver license and give you a pink piece of NCR paper that is your temporary license. Some officers will tell you what to do next, others won’t say anything about it. You need to know that the pink temporary expires 30 days after the arrest unless you request an extension.
You will only have 10 calendar days after a DUI arrest to contact the DMV Driver Safety Office (not the regular branch) and request a hearing and a “stay of suspension.” Your DUI lawyer should handle all of this for you if you hire him or her in time. The DMV will take your name a driver license number and schedule a hearing – usually about a month or two later. They will ask whether you want to have the hearing in person or by telephone. I think it’s a better idea to request an in person hearing and your DUI lawyer can switch it is he or she sees fit. Most get done by telephone but requesting in person helps ensure that the hearing stays local. The stay of suspension just means that your driving privilege will remain in effect until after the hearing.
The DMV hearing itself is something of a kangaroo court. The entire purpose – the only penalty they can impose – is to suspend your driver license. The hearing officer is also the prosecutor and rules on his or her own objections as well as the defense’s. The only issues at hand in the DMV hearing are:
1) Did the officer have probable cause to stop or contact the driver?
2) Was the driver lawfully arrested?
3) Did the driver have a BAC of 0.08% or higher at the time of test.
That’s it. Those are the only things the DMV considers and they usually just believe whatever the officer writes down. In seven of ten cases, the officer is never called to testify. The sad reality os that most DMV hearings are lost before they are started.
However, there are several potential advantages to even the utterly unwinnable DMV hearings. Chief among those advantages is that the Defense gets a look at the reports and other evidence long before the prosecutor in criminal court does; your DUI lawyer will be able to begin considering and possibly strategizing a defense before the prosecutor even knows that case exists. Another distinct advantage of the DMV hearing process is that, in certain cases, the Defense has an opportunity to examine/cross examine the officer(s) under oath and without all of the restrictive rules of evidence in criminal court. Your DUI lawyer may have an opportunity to lock the officer(s) in to statements that could help the Defense case later in criminal court.
Lastly, from time to time, a good DUI lawyer will be able to exploit one critical weakness in the DMV’s case and win!
9. How Much is a DUI in Long Beach Going to Cost?
From the get-go, legal fees alone can run anywhere from $2,500 to $5,000 and even higher depending on the lawyer. Generally, $3,500 is the average fee. Keep in mind, these are flat fees, meaning that your DUI lawyer in Long Beach should not be charging by the hour. Be very, VERY cautious about hiring a DUI lawyer that charges by the hour. At $350.00 per hour, you can bet that your DUI lawyer is going to spend more than 10 hours on your case.
The flat fee should include everything the lawyer does; motions, research, letters, phone calls, office meetings, all court appearances, including jury trial. Defense expenses outside the attorney’s fees could include expert witnesses and analysis, creating exhibits for trial, and maybe a private investigator. Your DUI lawyer will know whether any of these are necessary and he or she should never incur an expense without asking you first.
Other DUI costs include fines and mandatory court fees that could total over $2,000. Then there are the classes that cost money, community labor or service that costs money, and other requirements like a victim impact panels and hospital/morgue visits that cost money. It is not out of the ordinary for a DUI in Long Beach to cost upwards of $6,000 - $8,000 when it’s a said and done.
10. Can I Avoid a DUI?
Yes. Don’t drink and drive. There are too many viable alternatives. Uber, Lyft, taxis, designated drivers, even discount hotel sites on the internet. There simply is no reason to drink and drive…even if you “feel fine.” Then again, as a wise judge once said: “you never have to worry that you have had too much [to drink] if you have not had any at all.”
A Skilled DUI Lawyer in Long Beach is Waiting to Hear from You
A DUI arrest is a prime example of how bad things happen to good people. If you or a loved one is facing DUI charges in Long Beach, call the Long Beach DUI Attorney at 562-206-2012 for a free, confidential, no obligation consultation. Even if you never hire us, it will be our pleasure to discuss your case with you.