san diego dui legal facts & answers

Is BAC Testing Regulated in Caifornia DUI Cases?

In order for the state to successfully use information gathered from blood, urine or breath testing, it must be sure the test is accurate. Blood alcohol testing is a complicated and technical chore.

Because it is measuring small amounts of chemicals involved in a complicated chemical process, it is crucial for the state that the equipment be tested and calibrated frequently.

It must also ensure that whoever administers the test follows all procedures exactly. This means that the person must have proper training, and if the law calls for it, re-certification at appropriate intervals. Because the test must be given under optimum conditions, the officer must arrange these conditions. There are many technical reasons why a given test could be inaccurate. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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When are Charges are Filed in DUI Cases?

After you have been pulled over, your blood alcohol levels have been tested, and you are arrested, you will be booked and put either in jail or allowed the opportunity to bail out. Your vehicle has been impounded and you are confused. If you have not already asked to speak to your attorney, then once released, you should make a decision about hiring one. The consequences of a drunken driving charge are severe and can affect your life for many years to come. If you do not ask for an attorney or hire one, the state knows that you will likely plead guilty. This means that, even if they have problems with their case, they win. If you hire an attorney, the state may take a closer look at its evidence and perhaps drop the charges, though that is increasingly unlikely. An attorney may be able to plea bargain to a lesser charge. It is at this point that the case may go to trial. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What Should I Do if I am Stopped for DUI?

If you are stopped for drunken driving chances are that you were weaving, had some minor traffic infraction or a taillight out. If the officer suspects you are under the influence he/she will begin a standard series of questions used to determine your ability to operate the vehicle. You may then be asked to perform a series of physical challenges along the roadside. They may administer a breath test or transport you to the hospital for a blood test. Every jurisdiction has its own set of procedures. Your duty when stopped is to remain calm and polite. The police have a right to ask you to perform a blood test due to the implied consent law, which states that by accepting a license from the state, you also accept their terms regarding suspected drunk driving. You do have the right to a lawyer and should contact one as soon as you are able. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.For a Free Consultation, Contact Mr. Bickford Directly at 619-702-7400.

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What is the Maximum Punishment for a
First Time DUI Offense in San Diego?

In California, refusing to take a blood test can result in a stiffer penalty than if you had taken the test and failed, though some feel that refusing the test males fighting a conviction easier. The problem is, you may still lose your license for refusing the test. The penalties for first time offenses, when the blood alcohol test is not refused, range from: - four to eight month license suspension. - four days up to six months of incarceration - fine up to six thousand dollars. Any conviction of drunk driving is serious, because as long as it is on your record, a second conviction is just that much worse. Avoid drunk driving, use a designated driver or call a cab. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Should I Admit Drinking to Police?

One of the cardinal rules when dealing with the police is to be cooperative up to a point. You do not have to say anything to the police until you speak to your attorney. You will however be required to take a number of tests to determine if you are intoxicated. Under California law, you may decline these roadside tests, but, refusal to take the test may result in a stiffer penalty than if you took the test and failed. Some would argue that you would be able to better fight the conviction if the test were refused. You would still lose your license for refusing the test. Your best defense is to ask to speak with an attorney. Do not say anything else. The police will ask you questions repeatedly, just answer that you would like to speak with your attorney. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Don't I Have the Right to Consult with an Attorney
Before Taking a Field Sobriety Test?

Under California law, you may refuse a Field Sobriety test, but are not entitled to consult with an attorney before taking them. This could work to your advantage depending upon the circumstances of your drinking. It could also work against you. You must make a decision to either take the test or refuse. You must decide immediately with or without your attorney present. Unless the attorney was riding with you, you will likely have to make the decision without their advice. You do not have the right to a change of heart if you should refuse and later decide that you don't want your license suspended for that refusal. In the state's eyes, the decision is made. If you are being transported to the facility to have your blood tested then you will gain some time to decide. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is the Police Officer
Looking for at the Scene of the DUI Arrest?

If you have been pulled over for any reason, the police officer will be alert to any sign that you have been drinking. If they see any container, even old ones in the rear seat, they may suspect that you have been drinking. They will notice that your eyes are glassy and red. They will also be able to smell alcohol on your breath. There is no breath mint or home remedy that can stop the odor of any alcohol. It may be a minty fresh spearmint alcohol smell, but it is alcohol none the less. The officer will also look for slow reaction time and slurred speech. If you are asked to exit the vehicle, the officer will note any difficulty walking or general lack of coordination. At this point you may be asked to perform several challenges to determine your ability to operate a motor vehicle. And finally, you may be asked to perform a blood alcohol test. All of this information will be used by the state to make their case. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What are Field Sobriety Tests?

If you are stopped for suspected drunk driving, the officer on the scene may ask you to perform a series of tasks to determine your ability to operate a motor vehicle. Among the tests that might be performed is the typical "walk and turn" test. This test involves walking a straight line heel to toe without stumbling. You may be asked to extend your arms, close your eyes and bend your head back and then touch your nose with your fingertip. You may also be asked to recite the alphabet. Other tests involve the involuntary responses the body makes when under the influence. The officer may shine a flashlight into your eyes to see how fast the pupil dilates. In some jurisdictions, field sobriety tests are often filmed by a camera mounted in the patrol car and may be used against you in a court of law. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is a Horizontal Gaze Nystagmus or ^
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The penlight eye test is a simple physical test to determine if you are impaired. The officer will shine a penlight into your eyes and ask you to track the movement of the light with your eyes without moving your head. If you are impaired, your eyes will have difficulty following the light smoothly. If the eyes begin to jerk before they reach an angle of 45 degrees, then it is likely that you are impaired, but it is not a certainty. Police Officers frequently administer this test poorly and administering the test properly requires excellent training and good conditions for an accurate reading. The test is not considered proof of intoxication in many states and is often only used to indicate if the subject should be given a blood test. More than likely the test will be only one of several possible field sobriety tests you will be asked to perform. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney. For a Free Consultation, call 619-702-7400.

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May I Refuse to Take a Field Sobriety Test?

Recent Supreme Court rulings have allowed the police to force you to take a blood test if they feel the need, but in practice, force is rarely used. Instead, California has developed punitive laws that may cause you to lose your license for a longer period if you refuse the test than if you take it and fail. In California, you may be asked to make an immediate decision about taking the blood test. A refusal will result in a 1 year suspension or revocation. Some people believe that fighting a DUI is easier if you refuse the test, but that will depend on many factors. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Do I Have a Choice Between a Breath Alcohol Test
or a Blood Alcohol Test if
I'm Suspected of Drunk Driving?

In California, the arresting officer must tell you that you have the right to choose between different types of tests for alcohol. This usually means the choice between a Chemical Breath test, or a blood test. You will probably be given a series of field sobriety tests, such as walking a straight line and reciting the alphabet before being asked for a more scientific analysis. In some states you will be asked to perform a breathalyzer which measures gases in the breath. These results are susceptible to numerous problems, including false positives from people with diabetes and those who have worked with volatile chemicals. If you are offered a choice of tests, it is generally agreed that blood tests are the most accurate. If you have had only one drink, a breath test will show an immediate result and the police may let you go. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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I Was Not Read My Legal Rights
nor Given a Miranda Warning!
Will my California DUI Case be Dismissed?

Will your case be dismissed if the police fail to read you your rights? Probably not. The Miranda rule was initiated to prevent police from intimidating defendants under questioning. If you are not, then you will still be prosecuted if the prosecution feels there is enough material evidence without the information elicited by police questioning. Then there is the problem of proving that the police did not do something. Proving a negative is very difficult. Plus, if you are found to be impaired, you may be read your rights and you may say that you understand your rights, but you may not remember the fact. In short, do not rely upon a failed Miranda warning to get you off the hook. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Why Am I Charged With Two Crimes
Stemming from My San Diego DUI Arrest?
Do I have Two Different Cases to Deal With?

In an effort to expand their anti-drunk driving arsenal; California has enacted separate laws that prohibit both driving with a level over point zero eight (.08) and driving under the influence. This enables the prosecution to still charge you with a crime if your driving abilities were not apparently impaired as is required when charged with driving under the influence. Example: You and your buddies are out for a drive. You are stopped and test out at over the legal limit of point zero eight (.08). Your sober buddies testify that your driving was not impaired. You may still be prosecuted for the mere act of driving with a blood alcohol level of point zero eight (.08). You can still argue that the test was inaccurate, or that the officer was improperly trained in order to counter that charge. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Why is my Drivers License Revoked?
What is a Notice of License Suspension?

In California, there are two ways of losing your driving privileges. The first is a suspension. This is the lighter of the two. It means that the state has temporarily withdrawn your right to drive. There is a fixed period in which the license is suspended and upon successful fulfillment of all of the court's requirements, the license is reinstated. A revocation of a license is the removal of the right to drive without automatic reinstatement at the end of a specific period. It is usually permanent until after a certain period of time when you may apply for a new license. The circumstances of the revocation may come into consideration when you reapply for your license. The California Department of Motor Vehicles will hold an administrative hearing before your license is revoked. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What if I Represent Myself in
Criminal Court on DUI Charges?

While it is possible to represent yourself in a drunk driving case, it is not recommended. There are many complex issues involved in a successful defense, many of which are technical in nature and require considerable training. This is particularly true in a DUI case, requiring an attorney with special training in DUI Defense. Knowledge of court procedure is also crucial to an effective defense. An attorney will have the advantage of experience with the various judges who might try your case. While lady justice is blind, the judge isn't. Every judge is different. If you have prior offenses, an attorney might be able to strike a prior if certain requirements are fulfilled. Again, this is a highly technical move and requires experience. If you should make it to trial, an attorney will be highly experienced in the jury selection process and will make the appropriate peremptory challenges. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What are the Penalties for
Drunk Driving in San Diego, CA?

California has a different set of punishments for the same offense. You can be sure that the punishment will increase for every conviction. A first conviction may include probation and a license suspension for as little as 30 days. If you refuse a blood alcohol test, you may be punished more than if you had taken and failed the test. In some cases, the punishment is twice that of a DUI conviction. For a second and third offense, the number of days the suspension is in effect increases. Your license may be revoked. If a fatality results from an accident in which the driver at fault is found to be legally intoxicated, then the driver may be charged with a felony requiring mandatory jail time. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What are the Laws Concerning
Drinking & Driving in San Diego County?

One of the requirements in California, is that the person in the car actually be driving the car. If there is any question as to who it was in fact driving, there may be room for reasonable doubt. The police will try to establish at the scene who was driving. If they pull up behind a car and actually see who is driving the car, then there is little doubt that the driving defense will not work. Many people think that if they can only outrun the police and make it home, they can act innocent. This is a mistake with potential disastrous results. If you do run and then are caught, you will only compound the charges and the penalty against you. And, more importantly, you will endanger the lives of innocent people. Never try to evade the police. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What are my Miranda Rights?

An acquittal due to failure to Mirandize, or read you your rights, is often the fare of television courtroom dramas, but the truth is such an occurrence is rare. Police officers are trained and retrained in proper procedures involved in an arrest. Each officer carries a Miranda card from which they will read, even if they feel they have memorized the warning. Even if you feel you were not properly read your rights or that they were forgotten altogether, the case will not be thrown out. Only the information gathered by direct questioning by the police prior to reading the warning will be unusable. Failure to Mirandize is usually not the best defense in a drunk driving case. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is an Implied Consent Warning?

The main principle behind the state's right to ask for a chemical test to determine your blood alcohol level is the implied consent law. It states that anyone with a driver's license automatically consents to testing. No one has the absolute right to operate a vehicle. Every state has an implied consent law. Supreme Court rulings have decided that police may forcibly take your blood in order to test your blood alcohol levels, though on a practical level, that rarely happens. Most states rely on statutes that make refusing to test even more punishing than taking the test and failing. In California, you make a choice between the type of test you wish to take. Many experts agree that the least accurate is urinalysis. If this test is available, be sure to ask for it. If the facility only has blood testing, then you must use that type of test. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is Driving Under the Influence?

"Under the influence" means that your judgment and physical ability to operate a vehicle are impaired. In some states, in order for one to be convicted of driving under the influence, the state must prove that you were incapable. If your passengers testify to your sobriety and independent witnesses testify that you did not appear to be under the influence, then the state's case will be more difficult to prove. This will be especially true if your blood alcohol level is just above the legal definition for intoxication. If your attorney can raise doubts about the validity of the test itself, the persons administering the test or other technical problems in combination with your apparent sobriety, then the state may be hard pressed indeed to make its case. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is Blood Alcohol Concentration, or BAC?

Blood alcohol concentration is the percentage of alcohol that is in the blood at the time of testing. This is the key. In many states, your blood alcohol levels must be at a certain level at the time you were driving. There are several types of tests: breath analysis, urinalysis and blood analysis. The most accurate test is the blood analysis, yet it can have many problems with accuracy. Due to the variance between people's metabolisms, one level may mean a different level of impairment than another. The prosecution realizes these variances and generally wants a blood alcohol level significantly above the legal level of intoxication. If the accused did not appear to be intoxicated, the accuracy of the test may be challenged. There are many other technical reasons for challenging the blood alcohol test. In other words, it is not written in stone. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is a "Rising BAC" Defense?
Can it Help Me Win My DUI Case?

The human body is slow to absorb alcohol into the system. If you drink three fast drinks and then get into a car, your blood alcohol levels at the time you are actually driving may be below the level that the state considers legally intoxicated. But after you are stopped, you may spend an hour being transported and processed before taking a blood test. By this time, the blood alcohol level has risen to a legal definition of intoxication though you are no longer driving a vehicle. If witnesses at the scene testify that you did not appear to be under the influence, that is, you were not impaired, then the prosecution will have a difficult time proving that you met the legal definition of impairment. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Testing During the Absorptive Phase

The absorptive phase is the period when the body is actively absorbing alcohol into the bloodstream. Alcohol is absorbed in the stomach, the upper intestine and the lower intestines. The rate of absorption is the highest while in the upper intestine. In about one hour, ninety percent of the alcohol will have been absorbed into the bloodstream.

The rate of absorption varies considerably from individual to individual. It also will vary according to the contents of the stomach at the time drinks are ingested. If you are tested during the absorptive phase, then the results of the test may be inaccurate. As there are many technical issues involved in blood alcohol testing-all of which can be challenged in court, an attorney with specialized training in DUI Defense will most likely be your best advocate. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What is Retrograde Extrapolation?

One of the fancier methods the prosecution and the law uses to determine your blood levels at the time you were driving is retrograde extrapolation. This is a mathematical calculation of what your blood alcohol levels must have been when you were driving, given its current levels. This type of calculation is often made when blood alcohol levels, at the time of testing, are lower that expected. It is used to suggest that your levels must have been higher when you were driving. Because everyone's metabolism is different and because the amount of food in your system can change the rate of absorption, retrograde extrapolation is very suspect. It is important to challenge such suppositions. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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How Will a DUI Case Affect my Car Insurance?

Because of computerization of records and the ever increasing number of laws designed to combat drunk driving, the likelihood that an alcohol related ticket could escape your insurance company's notice is dwindling. In some cases, your company may not notice your ticket for some time. If they do not have a regular review process or the state does not have an automatic notification law on the books, you could simply not say anything and hope for the best. Just be sure to renew on time and make no changes either in carrier or in the policy itself. If your company does find out, they may drop you either immediately or at the end of your policy term. If you cannot get insurance from another carrier, then you may be able to use your state's high-risk pool. The rates are very high and the coverage basic, but it will let you keep your license. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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How Can I Avoid a DUI Conviction in California?

Avoiding a drunk driving charge is the easiest thing in the world. Don't drink and drive. Is it that hard? Get a friend to be the designated driver. Take a cab to where you plan to spend the evening and leave in a cab. Some cities have instituted special fare cabs or even free cab rides to help cut down on the death and suffering that drunken driving causes. If you are stopped by the police, and are found to be intoxicated, they will take you in. If there is some doubt that your were actually impaired or you know that you had only a couple of drinks then there may have been an error made while testing your blood alcohol concentration. They may not have followed proper procedure or the device may not have been calibrated correctly. You may have a different metabolism, or if you are diabetic, you will often give a false positive reading. There are many reasons why they may be in error, and you should not be punished for their mistake. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Should I Hire a Lawyer to defend
my Drunk Driving Case?

The defense of a driving under the influence charge is a difficult and technical undertaking. There are many advantages an attorney experienced in this type of law can bring to the case. If you are arrested and do not get an attorney, you will be at the mercy of the authority's decision making process from the beginning to the end. If during the course of an investigation, there are irregularities, things that could cause the charge to be thrown out, it is certain the police, prosecution and court system will not tell you about it. You may never know that the irregularity even happened. If you have prior convictions for drunk driving you should definitely consider an attorney. They know how to ask that priors be stricken, thus possibly lessening the punishment should you be convicted. Without a lawyer, most DUI's are convicted. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What will Happen at my
First Court Appearance on DUI Charges?

Your first court date will be an arraignment where you will enter a plea of either guilty, not guilty or no contest. Remember, you can always change your plea later to guilty or no contest. It will not be necessary for you to have an attorney present at the arraignment, though it would probably be wise. If you cannot afford an attorney, it is at the arraignment that such issues are discussed. The court will either appoint an attorney or will give you a financial disclosure form that you can fill out and take to the Public Defender's Office. It is important to fill out the form correctly or you may be charged with perjury, a very serious crime. If you are found to have the ability to pay for an attorney, you will be required to pay for the legal services of your Public Defender. If you have not already arranged bail, the court will probably release you on your own recognizance, unless this is not your first appearance or it is a felony charge. You will also be given an opportunity to ask for a jury trial. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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How do I Enter a Plea to the Court?

Entering a plea is easy at the first court date-not guilty. Why not guilty? Because you can always change your plea later to guilty or no contest. When you enter this plea, you will need to clear up other business. If you do not have an attorney at this time, you may ask the judge for additional time to speak with an attorney. After you enter your plea of not guilty, your attorney can investigate the facts of the case and speak with your prosecutor about a plea bargain of it seems to be the best course. Your attorney may even recommend that you plead guilty or no contest, if the facts warrant. But if there is any reasonable doubt to be found in this case, then your attorney will make every effort to win your case. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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What are the Legal Consequences
of a DUI Conviction?

The legal consequences of a conviction for drunk driving are often severe and getting worse with each passing year. Punishments are different in every state, but all usually involve suspension of your license and at least probation. The length of the suspension and probation a first offense can range from a few days to a year. The second conviction means tougher penalties, longer suspensions and even revocation of your driver's license. Revocation means that your license will not be automatically reinstated. You will need to apply for your license. In California, you may not reapply for a certain period of time. If your insurance company finds out about the conviction, your insurance rates may skyrocket. They may even drop your coverage altogether. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.

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Is DUI a Leading Cause of Death in the U.S.?

Driving while intoxicated is one of the ongoing tragedies of a highly mobile society.

We all must spend a significant amount of our lives on public roads where anyone with a gassed up car can hit the road.

This includes anyone who is under the influence of drugs or alcohol. Statistics show that drunk driving is a leading killer in the United States and that one-third of all drivers involved in a fatal accident were impaired. For young people who may feel a certain sense of invulnerability, the physics of traveling at high rates of speed in a large metal container that weighs thousands of pounds may not impress them, but chances are, they will either have direct or indirect experience earlier in their lives that will. To avoid this leading cause of death, support education effects and always call a cab or have a designated driver when you are intoxicated.

Thousands of innocent lives can be spared. The information contained in this message is general and should not substitute for the advice and counsel of a licensed DUI attorney.