Law Office of Sean G. Erenstoft

By:  Sean Erenstoft, Esq.

           
Who doesn’t drink and drive?  As a criminal defense attorney, I handle more DUIs in one year than all other crimes combined.  It’s not because I specialized in this area of law, it’s just the most common misdemeanor we suffer as a community.  

What most people don’t realize is that it takes only one drink to be DUI.  In its truest sense, a DUI is simply that, Driving Under the Influence.  The legal limit is .08% of alcohol by volume in your blood but, technically, you can be DUI with .01% if you are cited with driving wrecklessly with ANY amount of alcohol in your system. 

Besides being cooperative when the local Sheriff pulls you over, what else can you learn from this ex-prosecutor that now toils in the court system trying to keep offenders out of jail?  First of all, nobody ever passes the field sobriety tests (FSTs).  If an officer has it in his mind that you have been drinking, no amount counting backwards, walking a straight-line or bribery is going to make the officer let you go. 

The fact is, there is no legal obligation to participate in the field sobriety tests performed roadside when you are stopped for DUI.  I can’t tell you how many cut-and-paste police reports I have viewed stating that my clients couldn’t stand, walk, or talk.  Simply put, cops know how to write a report that sticks.  And what are you going to do, spend thousands of dollars trying to convince a jury that you were sober enough to do a pirouette, and sing a show-tune?  No.

In California, your obligation is to take one of two blood alcohol tests.  The first is a breath test in which you breathe into a machine that calculates your blood alcohol content (BAC).  The other is a blood test.  The purpose of the preferred blood-test is to ONLY test blood alcohol and drugs.  It’s preferred because the blood test renders a sample that your attorney is capable of requesting and testing by an independent company.  A significant variation, or any variation at all, may be used to contest the validity of the test result offered by the crime lab without constituting an admission that you had been drinking.  On the contrary, the breath test does not render a sample you can cross-examine in court. 

It is also important to insist on your 5th Amendment right to remain silent concerning whether you have been drinking.  Unless you watched them distill the vodka you drank, you can’t honestly admit to drinking vodka.  Yes, it came from an Absolute bottle, but it’s not your obligation to vouch for the watered-down swill you paid cash for.

Also know that you are not going to spend any appreciable amount of time in jail for a first-time DUI.  Bail bonds are offered to the meek who can’t wait to get out of jail before they are sober.  DUI inmates are a liability to the County and are released as soon as they are sober.  Don’t get fooled into hiring a bail bondsman for a couple thousand dollars when the jailor was really going to release you in a matter of hours anyway.

When you are released, you will be issued a ticket and your plastic license will be replaced with a pink paper temporary license to drive.  You will want to insist on a DMV hearing to ensure a timely return of your driving privileges.  This is something your attorney can arrange for you; but make sure you do so within ten (10) days or you will lose your rights to appear before the DMV to fight against a license suspension (now 6 months for a first-timer).

While it is never advisable to drink and drive, avoid doing so at 1:30 a.m. when cops are looking for DUI offenders.  And if you are caught, call me to discuss the quickest way to get your license back.  In many instances, you may never have to appear in court.

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