The Five Do's

Do Provide Basic Identification Information

Imagine that you’re on a jury hearing how a motorist responded to a LEO’s request for identification. You would doubtless think more highlyof a cooperative citizen who provided basic information while politely insisting on constitutional rights.

Feel free to give the officer your name and address. If you are pulled over in a car, you should also provide your driver’s license. Have it ready and your window rolled down by the time the LEO approaches your car.

Do Remain Calm and Controlled at All Times

You must assume you are being videotaped from the moment the LEO pulls behind your car.

The officer may try to bait you to get you to lose your temper or otherwise react to questioning. Don’t fall for it.

Remember that you are on trial from the moment those red and blue lights go on. A jury may very well see everything you do on a bright Technicolor screen.

Do Understand the Test You "Have" to Take

What Implied Consent Requires

Technically there is no test you must consent to take if you are willing to suffer the consequences of refusing to consent.

Under California’s implied consent law, any person who drives in California "is deemed to have given his or her consent to chemical testing of his or her blood or breath..." (Vehicle Code section 23612.)

What is a "Chemical Test"?

"Chemical testing" means an evidential breath or blood test regulated by Title 17.

Implied consent requires a urine test under two circumstances: (1) if no blood or breath test is available and (2) if an officer suspects you are under the influence of drugs.

The implied consent law does not require you to take a PBT or PAS test at the scene of the stop.

What if I Refuse?

If you refuse to take a chemical test as requested by a LEO, a blood sample may be forcibly taken from you.

If you refuse to take the chemical test, DMV will suspend your license for one year (unless you reverse the suspension at a DMV hearing).

In your court case, the prosecutor may be able to use your refusal as evidence that you were conscious of your guilt and refuse the test to prevent evidence from being taken against you.

If you are ultimately convicted of DUI in court, there is a mandatory jail sentence tacked on to any other sentence you may receive (48 hours first offense).

Beware the Portable E-PAS Machine

While it is true you do not have to take the PBT or PAS tests at the scene, there is now a portable chemical test available that can be given during the traffic stop itself.

Until January 1, 2004, it was easy for a motorist to tell the difference between the evidential test he ‘has’ to take and the preliminary tests he can refuse because the only evidential tests available were done at the County Jail or Sheriff’s Substation.

In 2004 Santa Barbara County started using a new portable evidential test machine, so motorists now may be asked to satisfy the implied consent testing at the scene of their traffic stop.

This portable machine is the Draeger Alcotest 7140, and it goes by the acronym ‘E-PAS’ for Evidential Portable Alcohol System.

To add to the confusion, the E-PAS machine can be used as a preliminary device instead of a full-fledged evidentiary test. Be sure if you consent to the E-PAS that you verify it is the chemical test version that will satisfy implied consent. If it isn’t, you will still have to take a chemical test, and the officer will end up with two tests to use against you.

Do Choose a Blood Test if You’re Confident You are Below the Limit

Blood tests are performed by gas chromatography, the most reliable of the chemical tests. If you are absolutely convinced you are below the legal limit (especially if you have had nothing to drink), you are best choosing a blood test because a legal BAC result would be the most difficult to challenge in court.

A motorist who was convinced he was over the limit would probably want to choose a urine test. The urine test is the easiest to challenge in court because it is the least reliable, but it is rarely an option for a motorist in Santa Barbara.

The breath tests are generally easier to challenge in court than a blood test.

Do Insist on Speaking to your Attorney before Answering any Other Questions

You have the right to speak to an attorney once you are placed into custody. However, the definition of “custody” is a fluid one, and there is no reason to guess at when that moment might be.

Simply tell the officer politely that you insist on speaking to your attorney before answering any questions.

If you are given one phone call, don’t waste it on calling your boss to tell her you’ll be late for work. Use it to call a qualified DUI attorney. He or she can arrange to make all the other calls you need, as well as arranging for you to be released on bail.