DUI FAQs (page 2)

Does the officer have to read me my Miranda rights?

If a police, sheriff, or California Highway Patrol officer pulls you over for suspicion of driving under the influence, the officer can ask you questions as part of their attempt to determine if your ability to drive is impaired by alcohol or drugs. Before and during this questioning, the officer does not have to advise you of your Miranda rights. But it is also your right to not answer any questions that an officer puts to you during this period of preliminary investigation. It is only if you are going to be placed under arrest and formally interrogated that you have to be told your Miranda rights, which include the right to remain silent and the right to an attorney. If placed under arrest, it is in your best interest - and it is your right - to refuse to answer questions and to demand representation by an attorney.

What if the police investigation does not follow the required rules?

Generally, any evidence that the police obtain as the result of an investigation that does not follow the correct procedures can be challenged and, in legal terms, suppressed. When evidence is suppressed, the District Attorney cannot use it as part of their attempt to get a conviction in your case. As your DUI defense lawyer, I can file a Penal Code section 1538.5 motion (usually referred to as a motion to suppress) in which I review the facts of the investigation and argue that the evidence was obtained illegally and should be thrown out, or not allowed to be used by the prosecution. For example, if the police pull you over for a broken tail light, without evidence of erratic driving, and see nothing in the vehicle (like an empty bottle) what would indicate that you have been drinking, they cannot begin searching your vehicle. If they do begin a search without an indication - or a reasonable suspicion - of criminal activity, we can challenge any evidence they find as part of the search and argue to have it suppressed.

What types of field sobriety tests (FSTs) do police use when they suspect someone of DUI?

The National Highway Traffic and Safety Administration (NHTSA) has determined that there are three field sobriety tests (FSTs) that they classify as “standard” and will be used most often if you are pulled over for DUI. The walk and turn would require you to walk in a straight line for nine steps putting one foot in front of the other heal to toe while counting off each step. After nine steps you would have to pivot and walk back along the line in the same manner. Police will look for evidence that you lose your balance, count the steps incorrectly, or start or stop at the wrong time. A second type of FST is the horizontal gaze nystagmus in which the officer would check for abnormal eye movements caused by consumption of alcohol or drugs. In this test the office would hold an object like a pen about twelve inches from your eyes and have you follow the object has he or she moves it side to side. The types of unusual eye movement they would be looking for include jerking eye movements and an inability to follow the object in a smooth and even manner. The third standard test is the one-legged stand. In this test you would be asked to raise one foot off the ground and then count from one-thousand and one to one-thousand and thirty. Officers would look for evidence that you cannot maintain your balance or count off the numbers incorrectly. If any of these tests are not completed satisfactorily, the officer would then most likely administer a breath test to determine if your blood alcohol content (BAC) is 0.08% or higher.

Are there other types of field sobriety tests (FSTs)?

Police will sometimes use other FSTs, though these are considered non-standard and therefore less reliable indicators of your ability to drive. Examples of these non-standard FSTs are holding your arms out wide and trying to bring your finger forward to touch your nose, counting backwards, saying the alphabet, or tilting your head back while standing with your feet close together to see if you lose your balance.

Can the reliability of field sobriety tests (FSTs) be challenged?

Yes, it is possible to challenge the reliability of field sobriety tests depending on your physical condition and the circumstances under which the tests were done. For example, if you have a physical limitation, are overweight, or are elderly, you might have difficulty performing the FTSs. Weather conditions like wind or cold can similarly limit your ability to perform these physical tasks. You might also be taking a prescription medication that makes it difficult to do these types of tasks. It is also possible that tight clothing can limit your movement and thus make it seem that you are in someway impaired. As you DUI defense attorney, I can challenge the field sobriety tests if any of these situations apply.