In our July 2010 issue we carried an overview of DUI laws. This column details a plan of action should you be arrested.

If pulled over for Driving Under the Influence (DUI), remember that you should not do the Field Sobriety Tests (FSTs) and or the Preliminary Alcohol Screening (PAS) device, the roadside breath test.  If arrested, however, you must submit a breath or blood sample. Refusal will result in a one-year license suspension for the first DUI and longer suspensions for subsequent offenses.

Upon arrest, the officer will take your driver’s license and give you a pink paper that is your temporary license for thirty days until the suspension begins. The paper is also a notice that you have only ten days to request a hearing to contest the suspension. The hearing is the only way to avoid a license suspension.

The hearing will be in an office with a hearing officer, typically a senior DMV employee, and will be recorded on tape. The officer will have the police report and the official breath or blood test results. The hearing is to determine if

• the police reasonably believed that you were driving under the influence,
• you were lawfully arrested, and
• the chemical test was properly conducted and indicated that your BAC was 0.08% or greater.

If any of these elements fail, the officer must reinstate your license. Sounds good, but a typical hearing consists of the officer reading the police report aloud and establishing the elements without live testimony. Your best chance at winning is hiring an attorney who knows what he or she is doing.

Apart from the DMV aspect, criminal prosecution can lead to the penalties described in my last column.    Fighting the criminal case focuses on whether the police stopped you legally and whether your BAC was actually 0.08% or greater at the time you were driving.

An attorney can challenge the traffic stop with a motion to suppress evidence that, if successful, will exclude the officer’s observations and get your case dismissed.

Challenging the government’s evidence of intoxication requires going to trial. Many defense strategies exist depending on the individual facts of your case. For example, if you drank immediately before driving, you may have a rising blood defense. This is that your BAC was below 0.08% when you were stopped because the alcohol had not yet been absorbed into your blood.

Whether or not to hire a lawyer is a serious question. Hire a lawyer if you think that you were stopped illegally, or if you are sure that you were not under the influence. In any case, talk to a DUI attorney and get their advice.

Naresh Rajan is an attorney in San Mateo County. Email nrajanlaw@gmail.com

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