When it comes to criminal law, alcohol does not mix well with driving. Drivers should know that it is illegal to drive while under the influence of alcohol, which California defines as having a blood alcohol concentration that is greater than 0.08 percent. It can also be illegal to possess an alcoholic beverage in a vehicle, depending on where the beverage is and what has been done with it. Violating the open container law in California is not as serious as being convicted for DUI, but the consequences can eventually add up to more serious penalties.

Defining Open Containers

An open container violation can occur if a police officer notices a container in plain view inside of a vehicle or discovers it during an authorized vehicle search. California law deems an alcohol container to be open if:

• The top has been opened
• A seal has been broken
• The container is partially or totally emptied

The officer does not need to catch you drinking the beverage or driving the vehicle to issue a citation for an open container violation.

A person who gets into a vehicle accident may panic and flee the scene before police arrive – especially if they fear that the officer may arrest them for a crime such as driving under the influence. A hit-and-run charge involving personal injury or death can be a misdemeanor or a felony, depending on the severity of the injuries and the circumstances of the accident. The same applies to DUI with injury and DUI vehicular manslaughter charges. The penalties become more severe when you combine a DUI charge with a hit-and-run charge. However, California is trying to fix a loophole in its criminal code that can benefit people suspected of DUI who flee an accident.

Hit-and-Run vs. DUI

It is difficult for prosecutors to prove that someone charged with a hit-and-run was also under the influence of alcohol or drugs at the time of the accident. It may be hours or days before the defendant is arrested for the hit-and-run, by which point there is no longer chemical evidence of DUI. While a hit-and-run is still a serious charge, consider the difference in penalties:

• A felony hit-and-run causing basic injury carries up to three years in prison, and a felony hit-and-run causing serious injury or death carries up to four years in prison.
• A felony DUI with injury carries up to six years in prison, and a felony DUI manslaughter with gross negligence carries up to 10 years in prison.

Thus, a drunk driver who commits a hit-and-run could receive a lesser punishment than if they had remained at the scene. California legislators recently proposed a law that would increase the maximum prison sentence for a hit-and-run resulting in death to six years.

There is a price to pay if you are convicted of driving under the influence of alcohol or drugs. Many people think of the possibility of jail time and the likely loss of their driving privileges, but there is also a monetary cost to a conviction or even being arrested. A DUI conviction in California costs between $10,000 and $15,000 on average, with the cost going higher depending on the severity of the charge and other circumstances. The cost includes fees that are directly related to your conviction and expenses that can be tied back to the conviction:

1. Fines: Punishment for a DUI conviction includes a fine, which can be from $390 to $1,000. The fine for a DUI conviction involving an injury can go as high as $5,000.
2. Court Fees: On top of the fine, the court will charge an administrative fee to help pay for its operating expenses. The exact amount will vary by court, but the fee can be more than $1,000.
3. Victim Compensation Fee: Those who are convicted of DUI in California must pay a fee to the California Victim Compensation Fund, even if no one was injured during their incident.
4. Legal Fees: The best way to prevent a DUI conviction and to avoid the related fees is to hire a criminal defense attorney. However, you will need to pay the attorney for their services.
5. Vehicle Towing Fees: After you are arrested on suspicion of DUI, your vehicle will be towed and impounded at your expense. Paying to get your vehicle back will likely cost hundreds of dollars.
6. Ignition Interlock Fees: The court may order you to install a breath alcohol ignition interlock device (BAIID) on your vehicle as a condition for allowing you to drive. A BAIID costs drivers an average of $70 to $100 per month, including the initial installation fee and ongoing maintenance fees.
7. Class Fees: Many people convicted of DUI must attend classes on the dangers of drunk driving, which can cost several hundred dollars.
8. License Reinstatement Fee: Applying to reinstate your driver’s license after it has been suspended will cost $125.
9. Insurance Increases: Your auto insurance provider will likely increase your rate because you will be viewed as a higher-risk client. The increase could cost thousands of dollars over several years until you are able to establish a record of safe driving.
10. Lost Wages: Attending court for your DUI case will likely interfere with your work, causing you to miss time. If you are convicted of DUI, you may lose your job, especially if your job requires you to drive.

There are other potential costs that do not apply to every case but could be expensive, such as having to post bail or an accident victim filing a lawsuit against you.

Contact a Richmond, California, DUI Defense Attorney

The cost of a DUI case will go down considerably if you can prevent a conviction. Schedule a free consultation with a San Francisco DUI defense lawyer at Burglin Law Office, P.C., by calling 415-729-7300.

When trying to prove whether or not a driver was intoxicated at the time of their arrest, video footage from the scene can be compelling evidence. Instead of relying on individual testimony, the court can see the circumstances leading up to the arrest and how the officer and arrestee behaved during the incident. If you have been charged with driving under the influence in California, you need to obtain available video recordings from your arrest to determine whether they would be helpful evidence during your case.

How to Obtain Video

Many police officers are required to have dashboard cameras on their vehicles and body cameras on themselves. Unfortunately, the state will not automatically provide this evidence to you for the purpose of your defense case. Your defense attorney must submit a discovery request with the court to obtain the video evidence. If the prosecution refuses to turn over the video, you will need to file a formal discovery motion to force them to comply.

There may be video evidence from a surveillance camera for a nearby property that recorded your DUI arrest. To obtain this video evidence, you will need to file a subpoena with the video’s owner.

A conviction for driving under the influence of alcohol or drugs is costly for anyone, but commercial vehicle drivers have even more at stake. You may lose your career as a commercial driver with a DUI on your record. Even being arrested on suspicion of DUI will disrupt your employment and put your job in jeopardy because of the automatic administrative driver’s license suspension. Challenging your license suspension and criminal charge is critically important for commercial drivers who want to protect their livelihoods.

What Qualifies as a Commercial Vehicle?

People who operate commercial vehicles in California must have a commercial driver’s license (CDL). A Class B license allows you to operate large trucks, which are any vehicles that weigh more than 13 tons or three tons if they have three axles. A Class C license allows you to operate other commercial vehicles, including school buses, vehicles carrying more than 10 passengers, double trailers, and vehicles transporting hazardous substances.

Additional Consequences for Commercial Drivers

A person operating a non-commercial vehicle can be charged with DUI if they have a blood alcohol concentration of 0.08 percent or greater or are deemed to be impaired because of alcohol or drug use. If you are operating a commercial vehicle, the BAC limit is lowered to 0.04 percent. Whether you are charged while driving a commercial or non-commercial vehicle, there are serious consequences for your CDL:

A 51-year-old man from Porterville, California, was recently sentenced to life in prison following his conviction for an incident of driving under the influence of alcohol that resulted in the death of a 1-year-old boy. A Tulare County court had previously found the man to be guilty of second-degree murder, which is the most serious criminal charge someone can face when they are accused of a DUI fatality in California. As opposed to DUI manslaughter, a DUI murder conviction requires the prosecution to prove that the defendant acted with malice. A second-degree murder conviction has a minimum of 15 years in prison. There are several aggravating factors that likely caused the defendant to receive the maximum prison sentence allowable for this conviction under California law:

1. Reckless Driving: According to reports of the incident, the defendant caused the crash by attempting to pass the victim’s vehicle. He was driving at a high speed and crossed over two solid, yellow lines in order to use the left lane of oncoming traffic. At the same time, the victim’s vehicle was making a left turn into a private driveway.
2. Hit-and-Run: Following the collision that crushed the victim’s vehicle, the defendant reportedly attempted to flee the scene on foot. Bystanders at the scene followed him, allowing police to apprehend him. Along with second-degree murder, the defendant was convicted of felony hit-and-run that resulted in death or injury.
3. Multiple Victims: Besides the infant who died, two women in the vehicle were injured. One woman suffered serious injuries that required extensive treatment.
4. High Level of Intoxication: According to a blood alcohol concentration test, the defendant has a 0.13 percent BAC two hours after the incident. This is well above the 0.08 percent BAC limit and left little doubt that he was impaired at the time of the incident.
5. Prior Convictions: On the date of the incident, the defendant was still on probation for a 2015 DUI conviction. He had also been convicted for DUI in 2000 and 2010. Prosecutors often use prior DUI convictions when pursuing a second-degree murder conviction because it proves that the defendant was aware of the consequences of driving under the influence of alcohol.
6. Human Element: When deciding on the length of a prison sentence, a judge will consider the circumstances of the case and the likelihood that the defendant may repeat the offense. The fact that it was an infant who was killed in the incident likely affected the judge’s decision. The mother read a statement during the sentencing hearing that spoke of the profound impact of her son’s death and asked for the maximum sentence because she claimed the defendant had not taken responsibility for the incident or shown remorse. Given that this was his fourth DUI conviction, the court likely agreed with her.

Contact a Sonoma, California, DUI Defense Attorney

Every defendant in a DUI trial is entitled to a skilled defense attorney, even if all of the evidence seems to point against them. If a not guilty verdict seems unlikely, the attorney can still help the defendant get a fair sentence. A San Francisco DUI defense lawyer at Burglin Law Offices, P.C., will represent you and your best interests during your trial. To schedule a free consultation, call 415-729-7300.

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When charged with driving under the influence of alcohol or drugs, the defendant’s goal is to be acquitted or have the charge dismissed or reduced. Prosecutors may offer a reduced charge before you go to trial if you agree to not contest it. For a DUI, this could be reducing an aggravated DUI to a standard DUI or a standard DUI to reckless driving. A DUI charge that has been reduced to reckless driving is commonly called a “wet reckless” because it is reckless driving that acknowledges that alcohol was involved. A wet reckless conviction is favorable to a DUI conviction, but there are still consequences.

Advantages

In California, a wet reckless conviction often results in lighter penalties than a DUI:

• A reckless driving conviction can include up to 90 days in jail, a fine of $145 to $1,000, one-to-two years of probation and no mandatory driver’s license suspension; and
• A first-time DUI conviction can include up to six months in jail, penalties of as much as $2,300, three-to-five years of probation and a six-month driver’s license suspension.

A wet reckless conviction has lower maximum penalties and no minimums in some cases. You may be able to continue driving without any restrictions or the need to install an ignition interlock device on your vehicle. You will have a reckless driving conviction on your criminal record, but a DUI conviction would look worse in a background check and possibly hurt your chances at employment and obtaining a loan.

California had time to prepare for the legalization of recreational marijuana since voters passed Proposition 64 in November 2016. Even before that, there was legalized use of marijuana for medicinal purposes. However, California has yet to answer an important question related to recreational marijuana use: How much marijuana must a driver have in their system in order to be legally impaired? Drivers know that the legal limit for alcohol is a 0.08 blood alcohol concentration and approximately how much alcohol they can consume before they reach that limit. California drivers and police officers can only guess how much marijuana is needed to make someone legally impaired, which puts marijuana users at a disadvantage when they are trying to be safe drivers.

Uncertain Answer

To be fair, it is difficult to quantify the point at which marijuana in a person’s body impairs a driver’s function enough to be a violation of DUI laws. The scientific consensus is that tetrahydrocannabinol (THC) levels are the closest equivalent to BAC levels, but THC can linger in a person’s body for weeks after marijuana use, by which point any impairing effects have subsided. Amongst the states that have legalized recreational marijuana, only Colorado has created a THC limit. Prosecutors in that state can bring DUI charges against a driver who has five nanograms of active THC in their blood. Still, Colorado says that officers should primarily rely on observational signs of impairment when determining whether to arrest someone for DUI.

Upcoming Studies

California officials have recognized their lack of knowledge about the relationship between marijuana use and impaired driving. California recently enacted a law that authorizes the California Highway Patrol to conduct a study of the effects that marijuana has on driving. The Center for Medicinal Cannabis Research at the University of California, San Diego, is also researching driving under the influence of marijuana. Through controlled tests involving drivers with different levels of THC, researchers hope to understand:

There are several modes of transportation others than cars and trucks that are illegal to operate while under the influence of alcohol or drugs. You could be charged for being under the influence while operating a boat, riding a motorcycle, or even riding a horse. Then there is the criminal offense of cycling under the influence. Unlike many other states, California has a separate law that addresses CUI offenses. The consequences are not as severe as being convicted for driving under the influence, but it is still not a conviction that you want on your criminal record.

Charge and Penalties

The rules of a bicycle traffic stop are similar to stops involving motor vehicles:

• Police are allowed to stop anyone who they reasonably suspect may be under the influence;
• The officer will look for signs that the cyclist is intoxicated, such as bloodshot eyes, slurred speech, and lack of balance;
• The officer will ask questions to better understand the cyclist’s condition;
• The officer may arrest the cyclist if they have probable cause to believe the cyclist is legally intoxicated; and
• The blood alcohol concentration limit for a cyclist is 0.08.

Cycling under the influence is a misdemeanor offense, punishable by a $250 fine. There would be no jail time, but the conviction would remain on your criminal record. People younger than 21 who are convicted of CUI may lose their driving privileges for a year or be prohibited from applying for a driver’s license for a year.

Driving under the influence in California applies to more than just alcohol. You can be charged with DUI for being under the influence of drugs. The penalties for DUID are the same, including fines, a driver’s license suspension, and possible jail time. Many people associate being under the influence of drugs with getting high from recreational drugs such as marijuana. However, drugs can include legally prescribed and over-the-counter medicines. Police will not excuse your impaired driving simply because you have a prescription for the drug.

Side Effects

Many prescribed drugs can cause side effects that may impair a user’s ability to drive, such as drowsiness or dizziness. These medicines include:

• Pain relievers;
• Sleeping pills;
• Antihistamines;
• Decongestants;
• Antidepressants; and
• Medical marijuana.

Some people are more susceptible to these side effects than others. When starting a new medication, you should keep track of its effect on you to determine whether it is impairing your vision, motor skills, or ability to stay attentive. You should also heed warnings about mixing the prescription with alcohol because it may worsen the side effects.

The consequences of a conviction for driving under the influence can follow you across the U.S., despite the fact that the conviction originated in one state. California is one of 45 states that are members of the Driver License Compact – an agreement in which states are required to share information about convictions for traffic offenses and to enforce the punishments instituted by other states. If you are a California resident who was convicted of DUI in another state, California is obligated to enforce punishments such as a driver’s license suspension. The same obligation applies if you are a resident of another state in the DLC and are convicted of DUI in California.

California Rules

Though all members of the same compact, each state has its own laws regarding what qualifies as a DUI offense and what the punishment for a conviction will be. California will enforce other state’s DUI convictions as long as they comply with California’s own rules. California will not enforce another state’s DUI conviction if:

• The offense would not have violated California’s DUI laws;
• The other state enforces DUI laws differently than California; or
• The description of the offense does not match California’s definition of DUI.

For instance, Utah recently lowered its blood alcohol concentration limit to 0.04. California would not enforce punishment for a DUI conviction if the offender’s BAC was below 0.08.

Silence has been the prevailing wisdom when stopped by a police officer on the suspicion of a crime such as driving under the influence. By not saying anything, you avoid potentially incriminating yourself with your words. The Fifth Amendment to the U.S. Constitution gives you the right to refrain from answering a question that may incriminate you, and the Miranda Rights that police must read after your arrest starts with “You have the right to remain silent.” Defense attorneys have long argued that silence cannot be portrayed as an admission of guilt during a case. However, a California Supreme Court ruling in 2014 determined that a defendant’s silence after a DUI stop could be used against him in court.

People v. Tom

In the case of People v. Tom, the defendant was charged with gross vehicular manslaughter while intoxicated after being involved in a fatal car collision. During the trial, the prosecution mentioned that the defendant had not asked the responding police officers about the condition of the occupants of the other vehicle before his arrest. The prosecutor argued that the defendant was silent because he either knew he was guilty of DUI or had a reckless disregard for the safety of others. The jury convicted the defendant, who appealed in part because he claimed his silence should not have been allowed as evidence of his guilt. The California Supreme Court ruled that the prosecution was within its right to present that evidence because:

• The defendant had not been read his Miranda Rights at the time of his silence; and
• A suspect must expressly invoke his or her right to remain silent.

What It Means

Your right to remain silent and avoid self-incrimination is always available, but the circumstances can determine whether the court will presume that you were invoking that right. The court will look at:

California lawmakers are trying to follow Utah’s lead by becoming the second state in the U.S. to lower its blood alcohol concentration limit from 0.08 to 0.05. Utah enacted the change to its driving under the influence of alcohol law at the end of 2018. California wasted little time in proposing a bill that would make the same change. Even if this bill fails to pass through the assembly, lawmakers may continue to propose this legislation until enough of their colleagues join them. Proponents of lowering the BAC limit claim that it will discourage drunk driving and reduce the number of DUI fatalities. However, opponents argue that the change would punish more drivers while doing little to save lives. There are three points that support this argument:

1. Low Level of Impairment: Statistics on drunk driving fatalities consistently show that the average BAC for drivers is around 0.15, which is almost double the current legal limit. There is no statistical evidence that proves that drivers whose BAC is between 0.05 and 0.08 are a significant cause of driving fatalities. Instead, scientific studies have concluded that drivers show greater signs of impairment when they are using hands-free phones than when they have a BAC of 0.05. Hands-free phone conversations are not only legal but considered more responsible than other forms of distracted driving.
2. Ease of Reaching Limit: Your gender, age, and weight can determine how much alcohol you must consume to reach the BAC limit. Women and people who weigh less tend to be more affected by alcohol, and older people need longer to metabolize the alcohol in their bodies. A woman who weighs 120 pounds could reach a 0.05 BAC after little more than a 12 oz. beer or a 5 oz. glass of wine. A 200-pound woman would be legally intoxicated after two such drinks. Even a 240-pound man could have a 0.05 BAC after three such drinks.
3. Creating More Offenders Than Threats: The BAC limit is an estimate of what amount of blood alcohol will make someone legally impaired. There are drivers who show no signs of impairment when their BAC is at 0.08, let alone 0.05. However, police may stop drivers for reasons that are unrelated to their ability to drive. If the officer suspects alcohol consumption and performs a BAC test, the driver may be charged with DUI despite not being a danger to others on the road. Lowering the BAC limit will increase the frequency of these types of arrests.

Contact a San Francisco DUI Defense Lawyer

A DUI conviction has serious consequences, such as a driver’s license suspension, fines, and possible jail time. A Napa, California, DUI defense attorney at Burglin Law Offices, P.C., can protect you against DUI charges and penalties. To schedule a free consultation, call 415-729-7300.

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The California State Legislature has proposed a law that would institute harsher penalties for people who have been convicted for driving under the influence multiple times within a 10-year period. The law would create a mandatory felony conviction for certain repeat offenders, instead of giving the courts the option of a misdemeanor conviction. The law would also extend the length of time that a convicted offender’s vehicle could be impounded. If the law passes, these penalties would make DUI defense even more critical for those being charged.

Felony Charges

Under the current law, four or more DUI convictions within 10 years can be a misdemeanor or felony offense. The proposed law states that:

• Five or more DUI convictions within 10 years would be a felony offense; and
• For a person previously convicted for a felony DUI, a subsequent DUI conviction within 10 years must be a felony, instead of choosing between a misdemeanor and a felony.

The main difference between a misdemeanor and a felony conviction is the possible jail time. A court cannot sentence a person convicted for misdemeanor DUI for longer than a year in jail. A jail sentence for a felony DUI can be as long as three years. A felony conviction can also affect an offender’s ability to obtain employment, loans, housing, and professional licenses.

The implied consent law in California gives a police officer permission to perform a blood alcohol test on you after you have been arrested on suspicion of driving under the influence of alcohol or drugs. Refusing the test will result in an automatic suspension of your driver’s license and enhanced penalties if you are convicted. A police officer will offer you two ways to take the test: a breath sample or a blood sample. The officer cannot force you to give a blood sample without a warrant.

Opting for the Blood Test

A DUI attorney will advise you not to submit to any chemical tests, but many people fear the consequences of not complying. When given options, most people choose the breath test over the blood test because it is less invasive. There are situations in which the police will insist on a blood sample:

• The officer will want a blood sample if he or she suspects you of being under the influence of drugs;
• The officer may not have the equipment available to take a breath sample; or
• Your respiratory problems may prevent you from providing an adequate breath sample.

Even with the implied consent law, California requires a police officer to obtain a warrant if he or she wants to force you to submit to a blood test. However, there are exceptions to the law, such as if you are unconscious and receiving medical attention. An officer may claim that he or she could not receive a warrant in a timely manner and needed an immediate blood sample to be able to measure your blood alcohol concentration at the time of the incident.

California will enact a statewide ignition interlock device program for all driving under the influence convictions starting at the beginning of 2019. The state has been running a pilot IID program since 2010 in Alameda, Los Angeles, Sacramento, and Tulare counties. Courts in the rest of the state have issued IIDs as part of DUI sentencing on a case-by-case basis. The new law will make IIDs mandatory for most convictions. IIDs are costly and sometimes troublesome for users but may be preferable to having a restricted or suspended driver’s license.

What is an IID?

An ignition interlock device is an alcohol breath tester that is installed inside your vehicle. You are responsible for at least part of the cost of having the device installed and maintenance fees. With the device, you must provide an alcohol-free breath sample in order to start the vehicle and will be required to provide additional breath samples:

• 10 to 15 minutes after you start driving; and
• Every 45 minutes after that.

You will have about six minutes to provide a breath sample when you receive an alert while driving. The device will not shut down your vehicle if you fail a breath test while driving, but it will notify the court of the failed test. Failing a test, attempting to tamper with the device, or having someone take the test for you can result in the suspension of your driving privileges.

The California Highway Patrol encourages civilians to report drivers that they suspect may be under the influence of alcohol or drugs. For instance, police recently arrested a Petaluma man for suspicion of DUI based on a tip from a civilian who saw the man allegedly swerving all over the road before stopping at a restaurant to have an alcoholic drink. The tip gave police cause to question the man and conduct sobriety tests, which allegedly showed that the man had a blood alcohol concentration that was three times the legal limit. DUI defense attorneys debate prosecutors about when a civilian tip creates enough reasonable suspicion to conduct a DUI stop.

Anonymous Tips

A DUI arrest may have been unlawful if police stopped a driver based solely on a tip from an unreliable source. Citizens who identify themselves to the police are more likely to be reliable because police assume that a person who has given his or her name is unlikely to make false accusations. Courts have ruled that anonymous tips can also create reasonable suspicion for a DUI stop. The California Supreme Court established a four-part test to determine whether an anonymous tip can justify a DUI stop:

• The caller must have witnessed the alleged crime;
• The caller must be able to describe the dangerous driving behavior and the appearance of the vehicle;
• The anonymous caller must sound reasonably credible; and
• The police officer must reasonably conclude that he or she is stopping the same vehicle that the caller described.

Defense Strategies

A police officer did not have reasonable suspicion to stop you for DUI if the caller was not credible and the officer did not witness any suspicious behavior. You can directly question the credibility of the caller if you know his or her name. If the tip was anonymous, you may still be able to identify the caller if the 911 call center had caller ID. You should also obtain a recording of the call to determine whether the information given was accurate and detailed enough to create reasonable suspicion. Evidence of your alleged DUI is inadmissible in court if the officer was not justified in stopping you.

Driving under the influence by itself has potentially serious penalties if you are convicted. Having a child with you in your vehicle at the time of your alleged DUI incident will aggravate the charge and the penalty. You are liable for the safety of any passengers, but prosecutors may charge you with child endangerment if they believe that you put a child at risk by driving impaired. Because it was likely your child in the vehicle, you have both your freedom and your parental rights at stake during your case.

DUI with Child

California law defines a child in a DUI case as someone who is younger than 14. The child passenger did not need to be in danger for prosecutors to charge you with DUI with a child. If the court rules that you were guilty of DUI, the child’s presence in the vehicle is enough to prove the aggravated DUI charge. A DUI with a child conviction includes mandatory jail time. How long you must stay in jail depends on whether you have any previous DUI convictions on your record. You would be sentenced to:

• 48 hours in jail if it is your first DUI;
• 10 days in jail if it is your second DUI in 10 years;
• 30 days in jail if it is your third DUI in 10 years; and
• 90 days in jail if it is your fourth DUI in 10 years.

Two days in jail is less than the maximum jail sentence you can receive for a first-time DUI conviction without any aggravating factors. However, first-time DUI offenders can receive probation instead of jail time, while DUI with a child guarantees you time in jail.

The driving under the influence of drugs evaluation process is increasingly important in California because of the recent legalization of recreational marijuana. Most California Highway Patrol officers have received training to identify signs of drug-related impairment, but fewer officers are certified to recognize which drug may be impairing the driver. Being accused of using an illegal drug may have different consequences than being accused of using marijuana. Many law enforcement organizations follow a 12-step drug recognition process that the International Association of Chiefs of Police endorses:

1. Breath Alcohol Test: The arresting officer must first determine whether the suspect is under the influence of alcohol. The officer can request a drug recognition evaluation if the breath test is negative but the officer believes the suspect is impaired.
2. Interviewing the Arresting Officer: A drug recognition expert (DRE) starts his or her evaluation process by asking the arresting officer about the subject’s appearance and behavior.
3. Preliminary Examination: The DRE examines the suspect to determine whether factors other than drugs could be affecting the suspect’s condition and if the suspect needs immediate medical attention.
4. Eye Test: The DRE administers the horizontal gaze nystagmus and vertical gaze nystagmus tests.
5. Divided Attention Tests: The DRE conducts several field tests to evaluate the suspect's balance and ability to follow multiple directions at once.
6. Vital Signs: The DRE checks the suspect’s blood pressure, temperature, and pulse.
7. Dark Room Examinations: The DRE uses various lighting conditions to determine whether the suspect’s pupils are dilated or constricted.
8. Muscle Tone Check: The DRE checks the suspect’s muscles to see if they have become rigid or flaccid.
9. Check for Injection Sites: The DRE looks for any marks on the suspect’s body that may indicate the injection of a drug.
10. Suspect Interview: The DRE asks the suspect whether he or she has used drugs and details regarding the drug use.
11. Conclusion: The DRE decides whether the evidence suggests that the suspect was impaired by drugs and attempts to identify the drug that is responsible.
12. Toxicology: Chemical test results will later confirm whether the DRE’s evaluation was accurate.

Responding to Drug Evaluation

Most of the steps in the drug recognition evaluation process are subjective tests. Factors other than drug use can explain the symptoms that the DRE is looking for. Even the presence of a drug in your body does not prove that you were impaired. Refusing a drug recognition evaluation is in your best interest, though it may result in further penalties. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can protect you against DUI charges related to drugs or alcohol. To schedule a free consultation, call 415-729-7300.

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The name “field sobriety test” makes these exercises sound more official and clinical than they actually are. FSTs help police officers guess whether a driver may be impaired by using subjective exercises, such as the horizontal gaze nystagmus, walk-and-turn exercise, and one-leg stand. An experienced criminal defense attorney has many ways to refute the results of an FST if the prosecution tries to use them as evidence in a driving under the influence case. The defenses center around the many flaws with FSTs:

1. FSTs Are Naturally Subjective: The accuracy of a test depends on a consistent application of the test and measurable results. Officers use FSTs as suggested exercises to help make judgments. They have discretion in the ways they administer FSTs and can draw different conclusions from the same results, depending on their experience and training. FSTs are not meant to provide empirical evidence of a person’s intoxication.
2. The Subject Does Not Have a Baseline Result for the FST: An officer conducting an FST is looking for universal symptoms that suggest impairment. However, the officer is assuming how the subject would perform on the test under normal circumstances. A person’s normal physical condition will affect his or her ability to walk straight or maintain his or her balance.
3. Many Factors Can Affect an FST: Subjects do not perform an FST in a controlled environment that allows for unbiased results. The levelness of the ground and the time of the day can both affect how someone performs. A subject may have more difficulty maintaining his or her balance on a sloped surface or seeing where he or she is walking when it is dark. The subject is also likely to be tired because most DUI stops occur at night.
4. The Subject Is Feeling Stressed: An officer may misinterpret confusion or mistakes during an FST as signs of impairment by the driver. The subject is likely nervous because of the traffic stop, even if he or she is not under the influence of an intoxicating substance. Stress distracts people when they are listening to instructions and can cause them to make mistakes that they normally would not make.

Dealing with FST Results

You should not agree to take an FST, and police cannot require you submit to one. You would risk providing evidence for a DUI case against you. An officer may choose to arrest you on suspicion of DUI if you refuse an FST, but the prosecution must provide other evidence of the offense. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can contest your DUI charges when the prosecution lacks credible evidence. Schedule a free consultation by calling 415-729-7300.

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