I RECENTLY WAS ARESSTED FOR MY 2ND DUI. I WANTED TO KNOW MY CHANCES OF A FAVORABLE OUT COME?

I DROP OFF MY FRIEND AND CONTINUED TO MOMS HOUSE. I STOP AT A RED LIGHT, I STARTED NIDDING OUT I WAS AWAKEN AND BOOKED WITHOUT MY MIRANDA RIGHTS READ TO ME I WAS ASK TO LIFT EITHER FOOT OFF THE GROUND 6 INCHES I INFORMED THE OFFICER I WAS NOT ABLE TO DO THAT. THE OFFICER DID NOT PROFORM ANY OTHER TEST I WAS ARRESTED FOE DUI.

Asked on June 8, 2009 under Criminal Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You don't need to have a blood test to get a DUI charge. 

In California, the criminal case filed against DUI/DWI defendants consists of two different counts. The first count, known as the “per se” charge, concentrates on whether the driver’s blood alcohol content (BAC) was .08 percent or greater. 

The second count focuses on whether the driver was under the influence of drugs to the extent that they are "unable to drive their car with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances."  This is the legal standard for being considered under the influence of alcohol or "DUI" in California courts.  The way to determine this is through a "field sobriety test".  There are several types, your test was to try and stand on one leg.  This is not really a test at all; rather, it is a physical agility exercise that is subjective in nature.  It is designed to check "divided attention", a critical skill in operating a motor vehicle.  Here, the officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.  Most people don't realize that these tests are optional and the officers who give them sure won't tell you, but they are.  You are perfectly free to politely refuse to take any field sobriety tests in their entirety.

As for your Miranda rights, most people assume that officers are required to read Miranda whenever they make an arrest.  That’s actually not true.  For a DUI, there are actually two conditions that must be met before the officer is required to read you your Miranda rights.  The first is that are placed under arrest. The second—which most people don’t know—is that the officer continues to interrogate you.  Remember, Miranda rights are meant to inform you that you don’t have to answer any questions the officer asks you.  The legal reasoning behind these two conditions is that, if you’re not being asked any questions, then there’s no need for you to know your Miranda rights.  Any statement voluntarily made before any police questioning can later be used against you.

This area of the law is very technical.  You should consult with an attorney experienced in these type cases; they will be well versed in putting forth the most beneficial DUI defense.  Under your facts there may be some way to get the charge dropped or reduced.

As for what penalties you can expect for a second DUI, I've provided a link for you: http://www.1800duilaws.com/california-dui-attorney/california_dui_penalties.asp

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

In most cases, a DUI stop and arrest don't involve the sort of "custodial interrogation" that makes reading the Miranda rights necessary.  This includes the physical field sobriety tests, which are considered more in the nature of investigation.  The police found you asleep behind the wheel, out on the street, and you haven't mentioned anything that suggests a violation of your rights.

I'm not a California lawyer, and I don't have all the facts of your case.  DUI is a serious offense, and even more so if it is a second violation. You should have an attorney in your area defend you on this charge.  One place to look for counsel is our website, http://attorneypages.com


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