The ABCs Of DUI Defense: A guide for those arrested
by James Farragher Campbell, ESQ.

About The Author
Forward | Introduction | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5

CHAPTER ONE: YOUR ARREST And THE CHARGES

It can happen at any time and at any place. You are driving along and, all of a sudden, behind you are blazing red lights from a police car. You stop and the nightmare begins. All of a sudden you are no longer in your world, the cops are now in charge, and it’s scary.

If you have been arrested for the first time, I am sure you will admit it was a devastating experience. You were probably treated as a “common criminal”. While you certainly don’t think of yourself as such, this is the viewpoint of most police officers. It is also likely to be the viewpoint of most prospective jurors. Remember, the police see criminal conduct on a daily basis and, after a while, they become somewhat blasé about the personal experience you have undergone.

The police officer probably came up to your car, asked you some questions and told you why he or she stopped you.

Your lawyer will definitely need to know any statements you made to the police as they will, in all likelihood, be used against you in court to prove the necessary elements of the charges. All of this information is valuable. You should do your best to recall in exact detail everything that took place and try to recall all police contact leading to, during and following your arrest.

After the initial contact with the police officer, you were asked to exit your car and perform what are called “Field Sobriety Tests.”

It is important at this point to understand that these supposed tests are actually not “tests” nor do they have anything to do with “sobriety.” They are nothing more than exercises that may help the officer determine if, in his opinion, you are under the influence to the extent you cannot safely operate an automobile.

Some states use the Standardized Field Tests adopted under the National Highway Traffic Safety Administration. These tests have been developed to provide the officer with certain scores or cues that they can observe and record to guide them in their determination of whether or not to arrest you.  However, these NHTSA tests are not used in California.

When the police officer decides to make an arrest for DUI, he or she is actually saying: “In my opinion, I think this person was driving under the influence.” What will be on trial is the officer’s opinion.

DUI is the only criminal offense since the Salem witch trials which amounts to a crime of “opinion”. All of the evidence which will be used against you in court will be circumstantial evidence; and it will be geared to support the officer’s opinion that you were under the influence.

From a legal standpoint, your lawyer will analyze your detention (the stop) and the arrest to determine whether there was legal probable cause to support either. This is one of the very first legal issues that will be explored by DUI defense counsel. Your contact with the police is of great importance to your lawyer in structuring your defense. The legality of the arrest will also come into play before the DMV as an issue that must be proved in order to sustain a license suspension.

Certain legal rules govern the arrest process and your lawyer will analyze the controlling law to determine if a valid legal arrest has taken place and what remedies exist if you were not legally arrested. Again, this affects both the criminal court case as well as the DMV case. The details of the arrest are important for many different legal reasons; and, your lawyer will be looking to legal defenses which may flow from the arrest process itself, either substantively or procedurally, that will block the prosecution.

In a DUI case, an arrest can be made in one of two ways: 1) an on-view arrest; or 2) after an accident where the police did not actually see the driving. The on-view arrest is how most DUI arrests are made. This occurs when a police officer sees you commit a crime in his or her presence and immediately apprehends you for that offense. The second manner of arrest is an exception to an on-view arrest in California DUI cases. If the police come upon an accident scene, or if other statutory exceptions are met, then they can make an arrest for a DUI even though they did not actually see you driving. Sometimes this same situation of “no observable driving” may occur if you are stopped along the roadside and the police happen to come upon your car. In this situation, there exists a better chance that Vehicle Code Section 40300.5 (the exception to no observable driving) will not apply to aid the police.

In some situations, you may have come upon a sobriety check point, or “roadblock.” Here, very strict constitutional rules apply as to the legal validity of the check point. Your lawyer will carefully analyze the conditions and implementation to determine whether or not a constitutional challenge to the roadblock exists.

WHAT IS THE CHARGE?

A Complaint will later be filed by the district attorney’s office and the Complaint will state in legal language the exact charges you face in court. The Complaint is the name given to the paper setting out the alleged violations of law. The Complaint is the legal document that brings you to court and starts the legal process against you.

Usually in a DUI case, you will be charged with two separate criminal offenses:
Section 23152 (a) of the California Vehicle Code, driving under the influence; and,
Section 23152 (b) of the California Vehicle Code, driving with a blood alcohol level of .08% or higher.

Let’s look at both of these charges because they will most likely be the criminal charges you will have to face and defend against in court.

Section 23152 (a) is driving under the influence. The offense is basically defined under California law as “driving a vehicle while you are under the influence of any alcoholic beverage and/or a drug.” The essence of the offense is that you were unable to safely operate your vehicle because you were impaired due to alcohol and/or drugs. Please keep in mind that a charge of “driving under the influence” is not the same thing as “drunk driving.” You do not have to be drunk in order to be convicted of driving under the influence.

Section 23152 (b) is defined as “driving at or above the legal blood alcohol limit of 0.08%.” This offense is different than the (a) count above in that it does not matter how well or poorly you were driving the vehicle, just that you were at or above the limit.

If you are found guilty of both charges, you can only be punished for one of the crimes because your actions only constituted one continuous act. But, to get out from under the DUI consequences, you have to beat both of these charges.

If you were at a high blood alcohol level (0.15% or higher) the DA could also file an enhancement to the above charges which could result in a harsher sentence, if convicted.

Other enhancements are also likely if you have prior convictions; if you were driving in excess of 100 mph; if you had young children in the car under 14 years old; or if, you refused to take a chemical test to determine your blood alcohol level. 
A typical criminal complaint looks something like the following:

go to page 2 | back to top