People who have been charged with a California DUI always ask whether it’s possible to get the case reduced to a wet reckless. They often ask this question without even knowing what the difference is between a DUI and a wet reckless, except that it’s a reduced charge. While it’s true that it is a reduction to a DUI charge, there are a number of other differences.
The wet reckless if the first of several reductions that are sometimes offered in lieu of a DUI. The wet reckless is usually offered when the flaws in the prosecution’s case are relatively small. For example, the wet reckless is often offered when the chemical breath or blood test shows that the driver’s blood alcohol content is at a 0.08 percent or close. Further reductions may be offered when there is no chemical test and/or there is little evidence that the driver was “under the influence. Rather than risk losing at a trial, the prosecutor may offer a wet reckless or another reduction merely to secure a conviction.
If, however, the problems in the prosecution’s case are more than minor, the prosecutor may offer to reduce the DUI charge to a “dry reckless” or an “exhibition of speed.” Discussions on these, I’ll save for another day.
Unlike these other charges, the wet reckless can only be offered as a reduction. In other words, a prosecutor cannot file a criminal complaint with a wet reckless listed as a charge.
If the wet reckless is offered as a reduction and a DUI defendant accepts the reduction, they’ll be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23105.5 which reads, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”
Simply put, a defendant who is convicted of a wet reckless is deemed to be guilty of reckless driving involving alcohol.
Now that we’ve clarified exactly what a wet reckless is, let’s talk about the benefits of it.
Well, first off, it’s not a DUI. There is an obvious stigma attached to a DUI conviction and a wet reckless simply isn’t a DUI.
Another benefit to a wet reckless reduction is that there are no mandatory sentencing enhancements. In other words, if a person is convicted for a second-time DUI within 10 years, they face a minimum of 96 hours in jail. If a person is convicted for a third DUI within 10 years, they face a minimum of 120 days in jail. However, when a person is convicted of a wet reckless when they’ve suffered prior DUI convictions within a 10 year period, there is no mandatory minimum jail sentence. If however a person suffers a DUI conviction within 10 years of a wet reckless conviction, the wet reckless will be used to increase the sentencing enhancements of the current DUI and subsequent DUI convictions.
Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.
The last advantage to a wet reckless conviction is that it does not trigger a 6 month driver’s license suspension with the DMV. It should be noted, however, that a license may still be suspended through the DMV’s admin per se suspension which occurs if a person does not request a DMV hearing within 10 days of their DUI arrest or they lose their DMV hearing. Therefore, the only way to completely avoid any license suspension following a DUI arrest is to request the DMV hearing within 10 days of the arrest, win the DMV hearing, then get the DUI charge reduced to a wet reckless.
Over the years, I’ve written about DUI’s on a variety of transportation methods, from a Zamboni to a Power Wheels to a canoe. Although I’ve written about a DUI on a horse before, it has been quite a while and is definitely due. Is there any surprise that this story comes from never-dull state of Florida?
A Florida woman rode her horse on a highway drunk, police say. She was charged with a DUI
November 4, 2017, Washington Post — Nothing’s unusual in Florida, a sheriff department spokesman said Friday. But some things — like a woman arrested this week for allegedly riding a horse while drunk down a busy highway — are still surprising.
Around 3 p.m. Thursday, a passer-by saw Donna Byrne, 53, on the horse looking confused and possibly in danger and notified officers, according to her arrest affidavit. Sheriff’s officers found Byrne on Combee Road near North Crystal Road in Lakeland, about 35 miles east of Tampa. She smelled of alcohol and had red watery eyes. When she dismounted from the horse, she staggered from side to side.
Byrne had ridden the horse for a 10 to 15-mile stretch from Polk City, said Brian Bruchey, a spokesman for the Polk County Sheriff’s Office.
Byrne is being charged with driving under the influence while operating a vehicle — which in her case was a horse equipped with a saddle and bridle. She is also charged with animal neglect for putting the horse in danger of being injured or killed.
“We haven’t had a horse DUI that I’m aware of. We’ve had incidents of bicycle DUIs and motorcycle DUIs, so this was a different kind of thing.”
Whether an intoxicated person on horseback can be charged with a DUI or DWI varies from state to state.
In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior.
The issue was a hot topic in Montana in 2011, when the state’s department of transportation aired an advertisement featuring a horse picking up its owner after a night of drinking at the bar. In Montana, horseback riders can’t be arrested for driving under the influence, because state law’s criteria for a vehicle in a DUI excludes devices moved by “animal power.”
Several criminal defense lawyers in Florida interviewed by The Post are skeptical of whether the DUI charge will hold up in Florida court. Thomas Grajek, a Tampa attorney who specializes in DUI cases, said he thinks Byrne can’t be charged with a DUI because Florida law states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers. Grajek said that, if anything, someone riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.
Officers arrested Byrne after conducting a sobriety test, during which Byrne registered blood-alcohol levels of .157 and .161, twice the state’s legal limit of .08. The horse was taken to the Polk County Sheriff’s Animal Control livestock facility, officers said.
“The road she was stopped on was a very busy road,” Bruchey said. “Of course, if somebody hit the horse, then that person would be in danger. And (Byrne) was a danger to herself.”
The Polk County State Attorney’s office could not be immediately reached for comment. Bruchey, the sheriff’s department spokesman, said the officer who arrested Byrne thought he had sufficient probable cause to consider the horse a vehicle.
“I can tell you it’s going to be interesting if (the DUI charge) goes through,” Bruchey said. “The way sheriffs look at it, the woman put a saddle and bridle on this horse and was riding it to get from point A to point B. For all intents and purposes, we look at that as a vehicle.”
Byrne’s criminal history includes five felony and ten misdemeanor charges, consisting of cruelty to animals, drug possession, probation violation and criminal traffic, officers said. She could not be reached for comment.
While there may be questions as to whether Byrne will actually be prosecuted and convicted under Florida law, as the article stated, California fully recognizes DUI on a horse. In fact, California Vehicle Code section 21050 states, “Every person riding or driving an animal upon a highway…is subject to all of the duties applicable to the driver of a vehicle…”
I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court Justice in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence:
“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”
Granted, the courts bend over backwards to support the police and uphold convictions. But just when you thought it couldn’t get any more ridiculous, along comes the Louisiana Supreme Court…..
Washington Post, Nov. 2 – When a friend says, “I’ll hit you up later dog,” he is stating that he will call again sometime. He is not calling the person a “later dog.”
But that’s not how the courts in Louisiana see it. And when a suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.
The ruling by Louisiana’s high court…clarified that requesting a canine attorney need not cause the police to stop questioning someone.
Not a joke. It’s an actual decision by a state supreme court right here in the U.S.
(Thanks to attorney Steve Oberman of Knoxville, Tn.)
This story is disturbing to me not just because it occurred in my hometown of Long Beach, but because it exemplifies the partiality with which prosecutors and police treat DUI’s of those whom they have a working relationship with versus everyday citizens.
Prosecutors have decided not to prosecute Long Beach Councilwoman, Jeannine Pearce with domestic violence nor driving under the influence in a June 3rd incident involving her former chief of staff, Devin Cotter.
District attorney declines to charge Long Beach Councilwoman with drunk driving, domestic violence
October 26, 2017, Los Angeles Times – Prosecutors have decided not to charge Long Beach Councilwoman Jeannine Pearce with domestic violence or driving under the influence in connection with a June clash with her former chief of staff.
But a district attorney’s memo detailing the decision also raises questions about the Long Beach Police Department’s response to the June 3 incident involving the councilwoman and Devin Cotter.
In its initial statement, the Police Department said it received a call for assistance from the California Highway Patrol about a possible drunk driving incident on the shoulder of the 710 Freeway in Long Beach at 2:40 a.m.
The city’s officers smelled alcohol on Pearce, who admitted to drinking that night, according to the district attorney’s memo. A field sobriety test conducted about 4 a.m. showed she was mildly impaired.
But the memo said a test of the councilwoman’s blood alcohol level was not conducted until 4:20 a.m., nearly two hours after the CHP called. At that point, the test showed Pearce had a blood alcohol level of 0.06%, under the legal limit of 0.08%, the memo said.
The testing device used on Pearce was unreliable, the prosecutor’s memo said. A department toxicologist had recommended it not be used a month before the incident. Additional tests were not performed, according to the district attorney’s memo.
A police spokesman said in a statement that officers initially investigated whether domestic violence had occurred when they arrived, interviewing Cotter and Pearce before realizing that the councilwoman had been drinking. At that point, the officers called for a colleague who is a certified drug recognition expert to investigate, Sgt. Brad Johnson said in the statement.
He said the testing device had been “tagged to be replaced but was not removed from its storage cabinet. The officer who retrieved the device did not realize … and unfortunately used it during the DUI investigation.”
Police at the scene saw Cotter with swelling, redness and a cut to his head and cuts to his hand, according to the district attorney’s memo. Pearce at one point had shoved Cotter, causing him to fall to the ground, the memo said.
Prosecutors ultimately decided that Pearce, who was first elected to the City Council in 2016, could argue she was defending herself when she shoved Cotter.
Pearce said she could not immediately comment. Cotter could not be reached for comment.
I can tell you that, had this been an average Joe Schmoe driver, it would not have ended up in a refusal to file DUI or domestic violence charges.
Many DUI cases are filed everyday where the blood alcohol content is below the legal limit or a breathalyzer is faulty. While it may have been true that Pearce was under the limit at the time of the test and that the breathalyzer was inaccurate, had it been a regular member of the public, charges for driving under the influence would still have been filed and prosecutors would have left it to the defendant their attorney to dispute the results.
The same thing can likely be said for the refusal to file domestic violence charges. If prosecutors declined to prosecute domestic violence charges when anybody “could argue [they were] defending [themselves],” then they’d never prosecute anyone. And believe me, in the many domestic violence cases I’ve handled, not once has a prosecutor dropped a case because a person “could argue that they were defending themselves.”
So now let me ask you: Is this a coincidence?
Let’s imagine a common DUI scenario.
A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.
Which test should the driver choose? Breath or blood?
The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.
The blood test, however, is not infallible. See my previous post:
Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.
Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:
Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.
Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.
Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.
Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.
Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws. Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.
While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.
As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”
If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?
At least one country says no.
Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:
Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says
October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.
The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.
"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.
"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."
The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.
"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.
In many countries drugs are illegal and drink-driving laws differ between jurisdictions.
Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.
The NTC also recently released guidelines on driverless car tests across the entire country.
Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.
"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.
Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.
I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.
Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.
This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.
Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.
“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.
According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.
Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.
As of last week, a revocation of Bettcher’s license was pending.
Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.
So what would it have taken for Bettcher to have his license permanently revoked had he been in California?
The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.
If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.
A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.
Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.
I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.
Many people know that the legal blood alcohol content limit is 0.08 percent and that if caught driving with a 0.08 percent or more, they will face the penalties associated with a DUI. Few people however know that if they are caught driving with a blood alcohol content that is much higher than the legal limit, they face additional penalties.
The mandatory minimum punishment for a first time DUI conviction in California is $390 plus penalties and assessments, which are like court taxes and will increase the overall amount to about $2,000, three years of summary (informal) probation, and a three-month DUI program called AB-541.
The first consequence of a driver having a high blood alcohol content, beyond the mandatory minimum penalties mentioned above, is that they must admit to having a high blood alcohol content. The prosecutor may include in the criminal complaint a “special allegation” that the driver’s blood alcohol content was high. In addition to pleading guilty to the DUI itself, as part of a plea deal, prosecutors often want the driver to admit on the record that the special allegation that their blood alcohol content was particularly high.
A driver may also be facing a longer DUI program. AB 762 is a six-month program and AB 1353 is a nine-month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18-month program called SB 38, but it is reserved for people who have been convicted of one or more California DUI’s within the past 10 years.
Another additional penalty that a person faces after a California DUI conviction with a high blood alcohol content is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.
The prosecutor might also offer a Hospital and Morgue (HAM) program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.
Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.
Lastly, a person may actually have to serve jail time. Whether a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.
A driver with a particularly high blood alcohol content may face one, all, or a combination of any of the abovementioned increased penalties. Other, less frequent penalties, such as a SCRAM device or an ignition interlock device, may also be included. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.
It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana. The continuing problem, however, is: How do you prove that a driver is, in fact, under the influence of marijuana?
Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment. The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests. These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
Court: Roadside Drunken Driving Tests Not Valid for Pot
Boston, MA. Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.
The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.
But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.
The justices said there is currently no reliable scientific test for marijuana impairment.
Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.
Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test. This, however, has been proven to be highly unreliable. See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.
(Thanks to Joe)
How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.
So can a personal breathalyzer prevent a DUI? I don’t see why not.
Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.
As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.
Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.
Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.
It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.
Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI. A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”
Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.
Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.
You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.
Sometimes clients or potential clients send me messages on public forums like Facebook. Shockingly, the messages include incriminating statements or even admissions of guilt. I have to remind them that the internet is like Las Vegas in that what goes on the internet, stays on the internet and that it can be seen by anyone, including the police and prosecutors.
A Michigan woman found this out the hard way when she posted about her DUI collision on social media.
The woman was driving under the influence of alcohol when she collided into another vehicle. Following the collision, she fled the scene to a nearby hotel which had a computer and she immediately began posting about the incident.
Officers tracked her down to the hotel. The front desk attendant told the officers that the woman had come in, said that she had been in a collision, and that she had been drinking.
The officers then then tracked down the computer that the woman had been using. The woman had closed neither Facebook nor the Facebook messages that she had sent a friend. Lo and behold, there was a message from the woman to her friend detailing the DUI-accident.
A later breath test revealed that the woman had a blood alcohol content of 0.12 percent. It was also discovered that her license was expired. She was booked on charges of driving under the influence, operating a vehicle with an expired license, and leaving the scene of an accident causing injury.
It wouldn’t surprise me if the Facebook message will be used against the woman in court.
Ok, so the officers in this instance didn’t discover the incriminating social media information as you might’ve expected, namely scanning pages hoping to come across incriminating information. That doesn’t change the point I’m trying to make.
Keep your mouth shut…and your fingers off the computer.
The Fifth Amendment exists for a reason and is useless unless it is exercised. It doesn’t matter whether you’re guilty or innocent. Exercising your right to remain silent is about protecting yourself and your rights.
Not only will statements made to police be used against someone in a DUI case, or any criminal case for that matter, but also the information they post on social media.
Being a criminal defense attorney for close to eight years now, I’ve known prosecutors and law enforcement agents to search Facebook and other social media platforms for information that might incriminate people. If found, that information is often used as evidence in a criminal case against the person.
If you are arrested on suspicion of driving under the influence, simply tell the officers that you respectfully decline to answer any questions without a lawyer present. Bear in mind that officers do not need to read you the Miranda Rights before they start asking question during a DUI stop. If you are arrested and charged, do not discuss the matter with anyone, either online or in person, to anyone but your attorney.
This past week, I came across a video on Facebook of a news report on a Georgia police officer who had been arresting sober drivers on suspicion of driving under the influence of marijuana. After posting the video to my own Facebook page, I decided to do some research.
Apparently, Cobb County, Georgia police officer Tracy Carroll made headlines in May of this year when a number of his DUI of marijuana cases were dismissed after it was discovered that those he arrested were stone-cold sober.
The video of Carroll’s arrest of Katelyn Ebner can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594976&type=video&title=RAW%20-%20Katelyn%20Ebner%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home
Ebner not only spent the night in jail, but spent thousands of dollars trying to prove that she was innocent even though a blood test revealed that she did not have any illegal substances in her system.
Carroll, a “drug recognition expert,” can be seen and heard having the following conversation with Ebner:
Officer Carrol: “I’m going to ask you a question, okay? When was the last time you smoked marijuana?”
Ebner: “Oh, I don’t do that. I can give you a drug test right now.”
Officer Carroll: “You don’t smoke marijuana?”
Ebner: “I do not, no.”
Officer Carroll: “Okay. Well, you’re showing me indicators that you have been smoking marijuana, okay?”
I wonder what exactly those indicators were that Officer Carroll had to go through such intensive training on to identify.
The International Association of the Chiefs of Police give the title of “drug recognition expert” to officers who have completed training on being able to identify when a person is under the influence of drugs based solely on their observations.
Officer Carroll’s not-so-accurate crystal ball also landed Princess Mbamara in jail on suspicion of driving under the influence of marijuana when, in fact, she too was sober.
Mbamara’s arrest can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594904&type=video&title=RAW%20-%20Princess%20Mbamara%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home
Princess Mbamara: “You’re arresting me because you think I smoke marijuana?”
Officer Carroll: “I think you’re impaired by cannabis, yes, ma’am.”
Princess Mbamara: “Sir, I don’t smoke weed! Is there a way you can test me right now?”
“I remember my lawyer trying to talk about a deal…I was like, ‘I’m not taking a deal. I didn’t do anything! I want more than just a deal – I want more than just a dismissal; I want my life back. Can you reverse time? If you can go back in time, then that’s what I really want,’” said Mbamara.
If you are as infuriated as I was when I watched these videos, you’ll be even more infuriated to know that Mothers Against Drunk Driving (MADD) actually awarded Carroll and other officers for the number of DUI arrests they made. Forget about the fact that a number of Carroll’s arrestees were, in fact, innocent. Who knows how many others weren’t as lucky as Ebner or Mbamara. An arrest means nothing without a conviction. Remember that old phrase, “innocent until proven guilty?” MADD doesn’t care about that as they continue to incentivize officers arresting people who may not actually be driving under the influence.
And let’s go back to that “training” to become an “drug recognition expert.” Clearly, it’s a load of expletive, notwithstanding Cobb County’s outrageous claim that the training makes the officer’s determination more reliable than a blood or urine test. Let’s be honest, the officer’s “determination” is no more than a hunch.
Let me be perfectly clear: An officer’s hunch that a person is under the influence of drugs does not amount to the legally required probable cause needed to make an arrest. Arresting someone because of an officer’s hunch is an abuse of power.
A California driver is being held on homicide charges for allegedly driving under the influences and striking an off-duty Modesto Police Department sergeant who was riding his bike.
According to investigators, 38-year-old Sgt. Michael Pershall was riding his bicycle on Tuesday evening when he was struck from behind by a vehicle. The vehicle then crashed into a fire hydrant. The driver of the vehicle, 32-year-old Matthew Gibbs of Modesto, California, was subsequently arrested on suspicion of driving under the influence.
Gibbs was booked into the Stanislaus County Jail and is being held without bail.
Court records show that Gibbs was arrested for a misdemeanor DUI in 2015. That case, however, was dismissed.
Gibbs is facing a homicide charge as well as two charges of DUI causing injury.
Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Gibbs faces.
Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.
California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Malice can be expressed or implied, and implied malice is present when the circumstances attending the killing show an abandoned and malignant heart.
So what does that mean?
Simply put, implied malice is when a person knowingly engages in an act that is dangerous to human life with a conscious disregard for human life.
The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.
Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”
While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.
Gibbs was only arrested for a prior DUI, but never convicted. Therefore, there’s a good chance that judge never gave Gibbs the “Watson advisement.” Thus, if the prosecutor wants to charge Gibbs with murder, they must find some other way to prove that Gibbs knew it was dangerous to drive while under the influence and that he ignored that danger.
A little over a week ago, two drivers were arrested for driving their all-terrain vehicles while under the influence of alcohol.
George Mooshian, 47, and Randy Hoisington, 55, both of Newport, New Hampshire were driving their ATV’s while under the influence of alcohol when Mooshian drove his ATV off of the trail and into a tree. Hoisington, who was following behind Mooshian, attempted to avoid colliding into Hoisington and rolled his ATV.
Both ATV operators were flown to the hospital for serious injuries.
Fish and Game officials responded to the incident and determined that speed and alcohol were contributing factors in both collisions. Also, neither driver was wearing a helmet at the time of the collisions.
Mooshian and Hoisington were arrested on suspicion of operating a OHRV (off-highway recreational vehicle), which is another name for an all-terrain vehicle.
Although this particular incident happened in another state, someone in California can also be charged with a California DUI for operating an ATV while intoxicated.
For those who take to the dunes or off-road trails on their ATVs, it is not uncommon to pack a cooler of beers as refreshments. To the surprise of many riders, if the beer is consumed before hopping aboard the ATV, it could land them in jail on California DUI charges.
For purposes of California DUI law, an ATV is a motor vehicle. Although California DUI law requires that a person drive a “vehicle,” California Vehicle Code Section 670 defines a “vehicle” as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”
Because ATV’s are considered vehicles, drunk drivers of ATV’s are subject to the same penalties as those who are arrested for a California DUI in their vehicle; probation, up to 6 months in jail, up to $1,000 in fines, and other possible penalties.
Does it matter if the drunk ATV driver is not on a public road way? Unfortunately, no.
Off-road trails and sand dunes are considered public roadways for the purposes of California DUI law. The California Court of Appeals in the case of People v. Malvitz concluded that the legislative intent of California DUI laws was that they extend beyond the public roadways to anywhere in California including private off-road trails or dunes.
I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances). See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?, New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.
The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.
Scientists Still Seek a Reliable DUI Test for Marijuana
July 30, 2017. NPR – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…
A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…
Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.
Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.
In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.
"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.
The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.
Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.
So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…
The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired. After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:
Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.
So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….
An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.
This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher. In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.
But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right? And isn’t that the important thing?
Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.
States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.
In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the vehicle.
In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.
Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.
When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.
For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.
Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.
So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.
You may have already seen the video. A California teen livestreamed herself driving drunk and crashing the vehicle that she was driving. The collision killed her younger sister. The teen driver, Obdulia Sanchez, pleaded not guilty to gross vehicular manslaughter and number of other felony offenses this past Wednesday.
18-year-old Sanchez of Stockton, California was filming herself behind the wheel of a 2003 Buick with her 14-year-old sister, Jacqueline and another 14-year-old girl in the back seats. The video showed Sanchez dancing to music as she was driving moments before the collision. The accident itself was caught on the camera as the footage shows the inside of the vehicle as it rolled. Moments later, Sanchez shows her sister’s body with fatal head injuries.
“Hey, everybody, if I go to f***ing jail for life, you already know why,” Sanchez told viewers of the livestream. “My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”
Neither girl in the back seat were wearing seatbelts and both were ejected. Manuela Seja, the surviving passenger suffered severe injuries to her right leg.
It was later determined that Sanchez’s blood alcohol content was 0.10 percent.
According to the District Attorney’s Office, Sanchez was charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.
“The behavior demonstrated both prior to and after the incident, as documented by the defendant’s own recording, is disturbing and shocking,” Deputy District Attorney Harold Nutt said in a statement. “The Merced County district attorney’s office will do everything in its power to see that justice is done in this matter.”
On Wednesday, Sanchez appeared on video for her arraignment where her public defender, Ramnik Samrao pleaded not guilty to all counts on her behalf.
After the hearing, Samrao told reporters that Sanchez “feels absolutely terrible.” Although Sanchez admitted to killing her sister in the video, Samrao maintains that it is unclear whether a crime was committed. “We don’t know that she was drunk, that’s the allegation,” he said.
Sanchez is being held on $560,000 bail and, if convicted, faces up to 13 years and eight months in a California state prison.
I understand how the video can make it easy to rush to judgment about Sanchez or what her fate should be. However, we must to remind ourselves that one of the cornerstones of our criminal justice system is the notion that everyone is innocent until proven guilty. If Sanchez is guilty, the system needs to take its course before she is, in fact, deemed guilty. Then, and only then, can she be punished for what she did.
In the latest news from the front lines of the "War on Drunk Driving"….
Suspected Drunken Driver Can Be Busted in Own Driveway
Detroit, MI. July 25 – The Michigan Supreme Court says a driveway is no refuge for a drunken driver.
The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property.
Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit.
Jon Ibanez and I have posted in the past about the dangers of "distracted driving" — that is, driving while using a cell phone, reading a map, putting on makeup, etc. See, for example, Jon’s recent post Is Distracted Driving as Dangerous as Drunk Driving?. And over 12 years ago I commented in Drunk Drivers vs Distracted Drivers on a wide range of research concerning the relative dangers of using cell phones while driving, such as:
A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003). Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them…The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers.
Yet, our legislators’ continuing fixation with alcohol — largely fueled by MADD’s political influence — has resulted in ignoring the ultimate goal of saving human life.
This appears to finally be changing….
Washington’s New DUI-E Law Takes Effect Sunday
Spokane, WA. July 18 – ….The DUI-E law, for driving under the influence of electronics, outlaws holding a cell phone at any time while driving, unless you’re calling 9-1-1 in an emergency. The law even prohibits picking up the phone at stoplights. The first ticket for an DUI-E will cost you $136. Get a second ticket within five years, and it’ll cost $234. The new law also tickets drivers $99 for grooming, smoking, eating or reading while behind the wheel. (Governor) Inslee says that in many cases a distracted driver is more dangerous than a drunk driver.
"When you are driving with a cell phone, you are a more dangerous driver than if you’re driving drunk with a .08 alcohol level," said Governor Inslee. He continued by saying this is a situation we deal with on a daily basis.
While this is encouraging, the news article continues with an observation by law enforcement that highlights the drunk vs distracted double standard:
Spokane County Sheriff’s deputy Craig Chamberlain says the new law isn’t meant to punish people. "The bottom line with the new changes in this law is that we want folks to be safe on the roadway."
So…the new distracted driving laws aren’t meant to punish people — only to make the roads safe? Then why do our drunk driving laws continue to be focused on punishment — of admittedly "less dangerous" drivers?
(Thanks to Joe.)
An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”
The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.
Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI case?
All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.
Thus, was we have the Miranda Warnings.
So, when must law enforcement actually read a person their Miranda Warnings?
Courts have held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.
When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.
Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.
Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.
It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.
So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”