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.