After seeing so many television shows and movies involving arrests, booking into jail, and courtroom dramas, we have a lot of information about how the legal system operates. However, what makes for good TV is not the same as what happens in real life. There are a lot of misconceptions about drunk driving arrests in California.
Even if you get your information from a friend or relative who has had a few driving under the influence (DUI) arrests, it does not mean that the same thing will happen in your case. If you want to know the reality of what happens after you get arrested for a DUI, talk to someone who has successfully represented drivers facing a DUI in Oakland and the East Bay.
Most Common Myths About an Oakland DUI
It is no surprise there are common myths and misconceptions about DUIs because we hear them so often. We may get ideas about drunk driving laws from TV shows, or from a "friend-of-a-friend" story. Many of these ideas are based on half-truths or information that has changed over the years. Some examples of misconceptions about drunk driving arrests in California include:
- I'm under the limit so I can't get a DUI.
- You can trick a breathalyzer by hyperventilating.
- I can pass a field sobriety test so I'm not drunk.
- Sobriety checkpoints are unconstitutional.
- I have a prescription for marijuana so I can't get a drug DUI.
- The police didn't read me my rights so I can get off.
- The penalties for a DUI aren't that bad.
Under the Limit DUIs
"I'm under the limit so I can't get a DUI."
You can still get a DUI in California if your blood alcohol content (BAC) is under 0.08. There are two ways to get convicted of a DUI in California. The first is to have a BAC of 0.08% or higher. This is known as a per se DUI, where you are in violation just because of your blood-alcohol level, even if you were driving perfectly safely.
For the other type of DUI, "it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." This means the driver's mental or physical abilities are so impaired that they are no longer able to drive a vehicle with the caution of a sober person.
Even if you have a BAC of 0.07 or 0.06, if there is evidence that you were unable to drive safely, you could still get a DUI. This evidence may include dash cam footage showing you were swerving or crossing the center line or a police report stating you smelled of alcohol and had slurred speech. A jury could use this information to determine you were impaired, even if you were not over the limit.
Tricking a Preliminary Alcohol Screening (PAS) Device
"You can trick a breathalyzer by hyperventilating."
There are all kinds of misconceptions and misinformation about breathalyzers, chemical breath tests, and ignition interlock devices (IIDs). These devices test an individual's breath to calculate their BAC. Many of these "tricks" do nothing at all other than give you false confidence you will be able to avoid a DUI arrest.
Hyperventilating may make you pass out but it won't likely do much to change your breath test results. Other tricks that don't work include sucking on a penny, holding your breath, chewing gum, or smoking a cigarette.
Another myth is that if you pass a breathalyzer, you are free to go. A PAS device is just used for roadside tests and you can be arrested for a DUI regardless of your results. If you fail the breath test, it can give probable cause to support your arrest. If you pass the test but show other signs of impairment, the police can still arrest you.
Field Sobriety Tests Are Not Proof of Impairment
"I can pass a field sobriety test so I'm not drunk."
Like PAS tests, standardized field sobriety tests (SFSTs) are not the sole factor police use in determining impairment. In California, you don't even have to perform the tests if you don't want to. Given how inaccurate these tests can be, you may not want a negative test to be used to show evidence of your impairment.
If you fail the field sobriety tests, the police may use that information to justify making an arrest and later testify that you were impaired. If you pass the SFSTs, you can still be arrested. These tests are not 100% accurate. Just like a sober driver can still "fail" the tests, an impaired driver can pass them.
DUI Checkpoints are Legal in California
"Sobriety checkpoints are unconstitutional."
Sobriety checkpoints are not used in every state. In some states, roadside checkpoints have been found to be unconstitutional under state law. For example, sobriety checkpoints are against the state constitution in places like Michigan, Oregon, and Washington. However, courts in California have found that sobriety checkpoints are legal, as long as they meet certain criteria.
Prescription Drug DUIs
"I have a prescription for marijuana so I can't get a drug DUI."
Just because you have a prescription does not mean you can drive impaired. If your prescription medication impairs your ability to drive safely, you can get a drug DUI. Many people are arrested for prescription drug DUIs every year even though they didn't know their medication would impair their ability to drive. Before driving on a new medication, make sure you understand how the drugs affect you and your ability to drive.
Miranda Rights Warnings
"The police didn't read me my rights so I can get off."
Miranda rights are important in some types of cases, such as when the police are interrogating someone accused of murder. However, Miranda is rarely an issue in drunk driving cases. In most DUIs, the prosecutor has evidence to show the driver was impaired and doesn't rely on police questioning. In most California arrests, the police will read you your rights anyway but if they don't it may not help your case very much.
California DUI Penalties and How a Lawyer Can Help
"The penalties for a DUI aren't that bad."
- Possible jail time
- Fines and fees
- Community service
- Driver's license suspension
- DUI school
Once you include higher car insurance rates, a first-offense DUI can end up costing $5,000 to $10,000.
If you want to avoid fines, probation, DUI school, and higher insurance rates, talk to a DUI defense attorney about how to fight the charges. An experienced attorney can review your case and let you know your legal options to take your case to court and avoid a criminal record.
Lynn Gorelick has more than 39 years of East Bay DUI defense experience and understands how much is at stake after a DUI arrest. She understands how to approach the individual facts of each case for the greatest chance of success in keeping her clients out of jail. If you are facing DUI charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.