Facing Down a DUI Charge

It’s every driver’s nightmare: You’re tooling down the road and, suddenly, red and blue lights flash behind you. Hopefully, there’s no reason to be concerned. But if an officer believes you’re under the influence, you may be looking at an arrest. If you’re facing a DUI charge—whether warranted or not—here’s what to know.

How They Build a Case

Law enforcement officers need to establish reasonable suspicion to pull them over. This is done by watching for traffic violations such as driving slower or faster than other traffic, straddling lanes or weaving in and out of lanes. In California, drivers can also get pulled over for weaving inside their own lane if it continues for a prolonged period of time or in a pronounced manner, says Orange County-based criminal defense attorney Chris McCann. 

“It’s not a traffic violation, but an officer could say that it’s a reasonable suspicion of a DUI such that they could stop you and detain you and conduct a DUI investigation,” he says.

After pulling over a suspicious driver, officers may conduct field sobriety tests and administer a breath test. Both are voluntary. “Pre-arrest, you don’t have to do any of those tests—the field sobriety tests or blowing into the portable device,” McCann says. But post-arrest, they’ll give the option of breath or blood. “And you shouldn’t decline that one because they can get a warrant and draw your blood by force, which isn’t pleasant.”

They also may make observations about the person’s behavior and appearance, such as bloodshot eyes, slurred speech or smelling of alcohol. The legal limit for blood alcohol content in California is 0.08%. 

Since cannabis was legalized in California, McCann says he has seen more marijuana DUIs. “They go up every year.” 

There are currently no approved field sobriety tests for marijuana, and no established legal limit. Because of that, officers rely on traffic violations, perceived conduct during a traffic stop and behavior that is caught on body cameras worn by officers to make arrests. 

“There may be red, bloodshot, watery eyes, bad driving … the proof is in the pudding,” says McCann.

Dealing With Two Agencies 

After getting charged with a DUI, a person will have to interact with the court system as well as the Department of Motor Vehicles, which is “different than any other case, criminally,” says Whittier criminal defense attorney Anthony Arzili. 

That’s because an arresting officer will confiscate a person’s driver’s license and issue them a temporary license. The person will then need to request a hearing at the DMV within 10 days of the arrest date. If they fail to do that, they risk the suspension of their license.

A DMV hearing is typically more straightforward than a court hearing, says Arzili, with a DMV representative reviewing whether the person was driving the vehicle at the time of the arrest, if the officer had cause to pull them over and arrest them, and if there’s evidence of blood alcohol above 0.08%. 

“At the DMV, it’s very black-and-white as far as whether you did it or you didn’t,” says Arzili, “as opposed to the court, which has a lot more gray area.” It’s possible to be guilty at the DMV and not in court, as well as vice-versa, he adds.

DUIs Can Be Challenged

Many drivers don’t realize they can challenge a DUI. One of the most common ways to do so, Arzili says, is questioning whether the arresting officer can prove who was behind the wheel. 

Additionally, if several hours passed between a driver being pulled over and a test being administered, it’s possible to argue that the alcohol entered their bloodstream during that intervening time. 

McCann adds that he often examines the validity of the traffic violation for which a client was pulled over. 

“The first thing I look at is: Why did the officer stop you?” he says. “Was there really a valid vehicle code violation or reasonable suspicion of one? That’s why dashboard camera videos can be very helpful.”

Without a valid reason for the stop, the evidence can be thrown out leading the prosecutor to dismiss the case, McCann adds.

The penalties for driving under the influence of alcohol or marijuana are largely the same. For a first offense, a driver will receive probation for approximately three years, be required to attend a DUI educational class for three to nine months, and pay fines between $390 and $2,000. 

Los Angeles County also offers the Hospital and Morgue Program, in which a person found guilty of a DUI tours a hospital and a morgue to see the effects of impaired driving firsthand,  then writes an essay about their experience. 

“It’s an educational thing. It’s been going on for a long time, and I think it’s been pretty effective,” says Arzili. “I’ve had repeat clients, and most of them say that it’s the one thing that really got their attention.”