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DUI Overview & FAQ

In the state of California, DUI (driving under the influence) is a criminal offense that involves serious legal consequences.  The common mistake that too many people make after being charged with DUI is not taking the charges seriously.  When a person has been charged with DUI, he/she needs to be aware that a conviction can lead to life altering legal consequences such as large monetary fines, jail time, mandatory DUI classes & AA meetings, IID (ignition interlock device), probation and more.  Additionally, a person may lose his/her driving privileges for a long period of time.  With the legal penalties being so great, a person must not take the risk of treating DUI charges lightly.  Therefore, it is imperative to place every effort into the best defense, which begins with hiring the right DUI Defense Attorney. 

Attorney Ashley Amerio is a former DA and has prosecuted and defended numerous cases up to trial.  She has the experience you need to obtain the best result in your case.  She has helped countless people in California fight their DUI charges both in and out of Court.  She prides herself on providing exceptional legal representation and going the extra mile to fight and preserve the rights of each and every client.  The Amerio Law Firm treats each and every case with personalized attention and the outcome of your case is important to us.     

Each year, nearly 200,000 people are arrested for DUI in California.  Unfortunately, this statistic very well may affect you or someone you love! 

Many people charged with DUI have never been in trouble with the law and have no criminal record whatsoever, making him/her completely unaware of the DUI process and his/her rights.  If that person is you or a loved one, YOU MUST take steps to preserve your rights and your defense by hiring a qualified defense attorney.  Having a skilled DUI defense attorney on your side is critical to your case.  Attorney Ashley Amerio understands DUI charges will greatly impact your life and that your case demands prompt attention.   At the Amerio Law Firm, we will review your situation and provide you with direction and valuable legal insight that will positively impact the outcome of your case.  If you or a loved one has been charged with DUI, contact the Amerio Law Firm for the personalized & aggressive representation your case demands in and outside of Court.

CAUTION: TOP 10 MISTAKES AFTER BEING ARRESTED FOR DUI!

1. Not taking the matter seriously.
   DUI charges will follow you for the rest of your life if you are convicted. Just the increase in your insurance rates could cost you thousands of dollars.
2. Not hiring an attorney.
   The law is complex and you need skilled representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a dead-bang loser!
3. Hiring an attorney based on the amount of the fee alone.
   The prosecution has nearly unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow her to put the necessary time and effort into your case to counter the prosecution. 
4. Not complying with driver's license laws.
   You could lose your right to drive for good.
5. Driving after your license has been taken away.
   This is an additional misdemeanor on your record and the fines are almost equivalent to the fines associated with a DUI!
6. Not taking full advantage of your constitutional rights.
   Consult your attorney before you waive any right!
7. Taking the prosecutor's first offer.
   The first offer is not a bargain!  The DA wants to get rid of your case as easily and as quickly as possible, with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the prosecutor prove its case.
8. Failing to appear in Court.
   The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.
9. Discussing your case with someone other than your attorney.
   Anything you say to anyone can be used against you by the prosecutor.
10. Believing that after consulting with a few attorneys, you can handle your own case.
    You need legal counsel both in and out of Court to build your defense and negotiate on your behalf.  The prosecution does not usually bargain with pro se offenders.

WHAT IS A DRIVING UNDER THE INFLUENCE?
DUI is defined as driving while under the influence of drugs and/or alcohol; or driving with a blood alcohol concentration that is 0.08% or higher.  Once you have been arrested for DUI, you will likely be charged with two criminal offenses.  The first offense is driving while impaired by drugs and/or alcohol.  This offense is based upon the person’s inability to properly operate a motor vehicle due to being impaired by the consumption of drugs and/or alcohol.  The second offense, known as the “per se” offense, revolves around your blood alcohol concentration (BAC).  If your blood alcohol concentration is 0.08% or higher, you are considered to be too impaired to properly operate a motor vehicle in the eyes of the law.  Consequently, if your BAC is above a 0.08% and you are caught driving, you will be arrested and charged with driving under the influence.   

WHAT ALERTS LAW ENFORCEMENT TO PULL SOMEONE OVER FOR DUI?
There are many driving patterns that may alert law enforcement to pull you over for DUI.  The following is a list based on research conducted by the National Highway Traffic Administration that often alerts law enforcement that you may be DUI (in descending order of probability):

1.  Turning with a wide radius
2.  Straddling center of lane marker
3.  "Appearing to be drunk"
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off

While speeding is not a symptom of DUI, it leads to numerous traffic stops and may result in a DUI case. Most officers, however, note that they will only stop you for speeding if you are ten or more miles per hour over the posted limit. If you have been arrested for DUI, contact the Amerio Law Firm!

WHAT IS THE OFFICER LOOKING FOR DURING THE INITIAL CONTACT AFTER I AM PULLED OVER?
Officers receive training at a police academy and subsequent training classes that teach the traditional symptoms/signs of intoxication are the following:

1. Flushed face
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Nervousness
5. Sweating (on the face)
6. Slurred speech
7. Fumbling with wallet trying to get license & registration
8. Failure to comprehend the officer's questions
9. Difficulty when exiting vehicle
10. Staggering, stumbling or difficulty walking
11. Swaying when standing still
12. Leaning on or reaching towards the car for support
13. Combative, argumentative, jovial or other "inappropriate" attitude
14. Soiled, rumpled, disorderly clothing
15. Disorientation as to time and place
16. Inability to follow directions
17. Yawning or falling asleep

IF STOPPED BY AN OFFICER AND HE ASKS ME IF I’VE BEEN DRINKING, WHAT SHOULD I SAY?
In that situation, you are not required to answer potentially incriminating questions.  Please BE POLITE. For example, "I would like to speak with my attorney before I answer any questions," is a good reply.  Even if you don’t feel “drunk”, the law does not require you to be drunk to be charged with a DUI.  Some people who have a BAC above 0.08% don’t feel much of the effects of alcohol, but under the law you still cannot drive.  Therefore, it’s better not to answer this question when pulled over after drinking.

WHY DID THE OFFICER ASK ME TO FOLLOW A PENLIGHT WITH MY EYES TO THE LEFT AND RIGHT?
By asking you to follow the penlight, the officer is conducting a field sobriety test.  This particular test is called the "horizontal gaze nystagmus" test, a relatively recent addition to DUI field sobriety tests used in DUI investigation.  The officer uses the penlight to attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation).  If the eyes begins to jerk prior to 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The eye’s ability to smoothly track the penlight (or finger or pencil) is also a factor, along with the angle of onset of the nystagmus (eye jerking).  This field sobriety test has proven to be subject to a number of different problems.  One of which is an officer’s lack of medical training/ability to recognize nystagmus and accurately estimate the angle of onset. Because of this, and the fact that the medical community does not accept the test, it is not admissible as evidence in many states. Unfortunately, California allows the test as evidence and it is widely used by law enforcement in the early stages of a DUI investigation (usually before one is asked to exit the vehicle).  At the Amerio Law Firm we believe there are problems in the reliability of this test and may be successful in discrediting this test in your case!

WHAT SHOULD I DO IF ASKED TO TAKE FIELD SOBRIETY TESTS?
The 5th Amendment of the United States Constitution protects your right to not incriminate yourself by answering certain questions.  Additionally, you do not have to participate in field sobriety tests that will likely incriminate you.  This does not mean to be rude to the officer.  Please always politely decline the field sobriety tests.  

There is a wide-range of field sobriety tests, commonly known as (FSTs).  Different agencies (i.e. CHP, Sheriff’s dept, Police dept) use different tests.  Some of the most common tests used in California include:

1. Preliminary Alcohol Screening Device (PAS or device you blow into on the side of the road)
   ***Please note this test is different than the chemical breath test taken at the jail!!!
2. Horizontal Gaze Nystagmus
3. Walk-and-Turn
4. Heel-to-Toe
5. Finger-to-Nose touch
6. One-leg stand
7. Alphabet recitation
8. Rhomberg, also known as modified position of attention
9. Finger-to-Thumb touch
10. Hand pat
11.  and others.

In California, most officers will administer a battery of about four to six tests.  Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any of the Field Sobriety Tests (FSTs). The reality is that officers have usually made up their minds to arrest you before they even administer the FSTs.  Then, the tests are administered simply to provide the officer with additional evidence in their case against you.  Therefore, in most cases a polite refusal may be the best thing for your case. To learn more about refusing Field Sobriety Tests, contact the Amerio Law Firm today!

I PASSED MY FIELD SOBRIETY TESTS, WHY WAS I STILL ARRESTED FOR DUI?
FSTs are not tests you can pass or fail.  Instead, the officer takes notes on how you complete the tests and whether or not you complete the tests.  For example, the officer will note that you swayed while completing the rhomberg test.  These details all serve as “signs of impairment”.  Then, all the officer’s notes are compiled in his report, which is used against you in your case to show “signs of impairment”.  Simply completing the tests does not mean you passed.  It usually means you have given the officer the opportunity to note different signs of impairment observed while you were completing the FSTs.  The reality is that when you are asked to participate in FSTs, the officer has probably already made up his mind to arrest you for DUI.  When a driver is asked to complete FSTs, the situation usually ends with an arrest. 

SHOULD I AGREE TO TAKE A CHEMICAL TEST? WHAT HAPPENS IF I REFUSE?
In most circumstances, you should not refuse a chemical test.  DMV will impose a 12-month suspension of your driver’s license for refusing to submit to a chemical test!

Additionally, refusing a chemical test (blood or breath) may result in the following:

1. Your driver's license will be suspended for a period of 12-months by DMV even if:
1. you are not charged with a DUI
2. the case against you is dismissed
3. you are found not guilty of the DUI


2. The “refusal” will be added to your case as an enhancement, the minimum punishment is increased and it is used against you as evidence of “consciousness of guilt" in your Court case and with DMV. 

DO I GET TO CHOOSE WHETHER I WANT TO TAKE A BLOOD OR BREATH TEST?

YES!!! YOU HAVE A RIGHT TO CHOOSE WHICH TEST YOU WANT TO TAKE.

If you are arrested in California for DUI, you are supposed to be given a choice of a breath or a blood test.  Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems, often rendering them unreliable.  Thus, if given a choice and if you are confident that you are below the legal limit of 0.08%, a blood sample is the wise choice.  A breath test, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit. At the Amerio Law Firm, we can answer any further questions you may have regarding chemical tests.
 
WHAT IS A CHEMICAL BREATH TEST?
A breath alcohol test is a test that is administered by law enforcement to obtain a person’s blood alcohol concentration (BAC).  A person’s BAC result reveals the amount of alcohol you have in your blood stream at the time of the test.  If your BAC is 0.08% or higher, you are considered too impaired to safely operate a motor vehicle, according to California law, and will be arrested for DUI.

Please note that there are two types of breath tests.  One is an FST (PAS device) and the other is a chemical test (Breath Instrument).  The PAS device (Preliminary Alcohol Screening Device), is a hand-held device you blow into on the side of the road.  It is an FST that you are not required to take.  On the other hand, the Breath Instrument you blow into at the jail is a chemical test that you must take, if you elect not to submit to a blood test.

WHAT ARE MIRANDA RIGHTS?
If you are arrested for a criminal offense, you must be read your Miranda Rights.  Your Miranda Rights include the right to remain silent, right to an attorney or one appointed to you if you cannot afford an attorney .  This means you have the right to have an attorney present before you answer ANY questions, aside from your name!  In most cases, you should NOT waive this right.  It is better to have any attorney present when answering questions since your answers will likely be used against you in your case! 

THE OFFICER NEVER READ ME MY MIRANDA RIGHTS, CAN I GET MY CASE DISMISSED?
The officer is supposed to advise you of your Fifth Amendment Miranda Rights once you are under arrest.  Sometimes, however, they do not. If the officer fails to give you a Miranda Warning, the consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest against you in your case.

CAN I DRIVE THE DAY AFTER I WAS ARRESTED FOR A DUI?
After you are arrest for DUI and released from jail, you should be given a pink sheet that is your Notice of Suspension and temporary driver’s license for 30 days.  There are ways to extend this 30 day period.  Contact the Amerio Law Firm for more information on how to do this.

The notice informs you of your right to request an Administrative Hearing with the California Department of Motor Vehicles (DMV) to avoid the suspension of your driver’s license. 

CAUTION:  From the time of your arrest, you only have 10 days to schedule your Administrative Hearing with the DMV, or you waive your right to a hearing.  If you fail to request a hearing within 10 days, your driver’s license will automatically be suspended for a period of time determined by the California DMV.  Therefore, you should contact the Amerio Law Firm immediately after your arrest!

PLEASE NOTE: If you are a licensed in another state, the action taken by California DMV in DUI cases usually affects your out-of-state license.  Contact the Amerio Law Firm today for more information in your license suspension. 

HOW CAN THEY TAKE AWAY MY LICENSE IF I’M PRESUMED INNOCENT UNTIL PROVEN GUILTY?
Unfortunately, it’s completely unfair, but it’s the law.

In California, the "per se" statute provides for immediate confiscation of your license if your breath test result is above the legal limit or if you refuse to submit to a chemical test.

CAN I REPRESENT MYSELF? WHAT CAN A DUI ATTORNEY FOR ME?

You can represent yourself, but this is rarely done and not recommended.  In spite of the myriad of information available from different sources, including the internet, experience in defending DUI cases facilitates the best outcome in a DUI case. 
  
DUI is a very complex area of law with increasingly harsh consequences. There are many complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

Attorney Ashley Amerio is an experienced DUI attorney who will review your case for potential issues, file the appropriate motions to suppress evidence, compel discovery of all the evidence, including, calibration logs & maintenance records, have blood samples independently analyzed, or obtain expert witnesses.  Additionally, your case will be negotiated for the start for a possible reduced charge or reduced sentence.  At the Amerio Law Firm, you will be represented at your Administrative Pro Se (DMV hearing) to contest your license suspension.  All cases are different so it's important that you discuss your case with an attorney at the Amerio Law Firm as soon as possible where we can secure your defense for the best possible outcome of your case. 

THE AMERIO LAW FIRM’S GLOVEBOX LIST

1. BE POLITE.
2. DO NOT ANSWER ANY QUESTIONS, OTHER THAN NAME, ADDRESS, LICENSE, REGISTRATION & INSURANCE (PROVIDE THE DOCUMENTS).
3. DO NOT AGREE TO HAVE YOUR EYES TESTED/FOLLOW A PENLIGHT OR ANY OTHER OBJECT SUCH AS A PENCIL.
4. DO NOT AGREE TO BLOW INTO A HANDHELD BREATH TESTER (PAS device).
5. DO NOT AGREE TO PERFORM ROADSIDE TESTS (FSTs).
6. DO CONSENT TO A CHEMICAL TEST (BLOOD OR BREATH) AT THE JAIL.