DUI FAQs

Frequently Asked Questions About DUI Charges

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Is my breath test accurate?

Breath tests do not directly measure blood alcohol concentration ("BAC") the way a blood test might. Instead a breath test measures the alcohol in one's breath and a mathematical formula called a partition ratio is used to convert the result into a blood alcohol concentration. If the breath testing instrument is not calibrated or operating properly, the instrument can produce an incorrect BAC result indicating that you are over the legal limit. Moreover, there is a margin for error with this conversion process that can lead to a BAC result over the .08% legal limit even though one's blood alcohol was actually lower than the legal limit. For a more complete discussion of this topic, please visit our breath test accuracy page. In order to know if there was a breath test error in your case, contact the San Mateo County DUI defense attorneys at Ahmed & Sukaram, Attorneys at Law today.

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What if I was never read my Miranda rights?

District Attorneys and judges frequently cite the United States Supreme Court case, Berkemer v. McCarty (1984) 468 U.S. 420, for the proposition that a roadside DUI investigation is not a custodial situation and therefore that an officer does not need to read a defendant the Miranda advisement. However, Berkemer is distinguishable because it did not address the modern day DUI investigation where highly trained officers ask the driver a series of twenty one (21) standardized pre-field sobriety test questions geared toward eliciting incriminating responses regarding his or her alcohol consumption and ability to drive. Yet, regardless of whether the court agrees that Miranda rights are required to be given at the roadside, they are certainly to be given following the driver's arrest (i.e., while being transported to jail and beyond). If the officer fails to advise you of your Miranda rights after your arrest, everything that you say in response to the officer's interrogation can potentially be excluded from trial. At Ahmed & Sukaram, Attorneys at Law, we can help fight to keep your "admissions" (which is amongst the most damaging evidence against you) out of your trial.

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What if the cop told me he needed me to take the breath test to determine whether to let me go or not?

The roadside breath test is not a mandatory test. Before you are given a roadside breath test the officer is supposed to advise you that it is a voluntary test. Although an officer's failure to provide this advisement does not lead to exclusion of evidence (i.e., breath test results) under federal law and accordingly under California law (See, Proposition 8), it is not uncommon for judges to exclude this evidence from trial due to an officer's failure to provide the advisement. Moreover, given that a driver is not required to submit to a roadside breath test, just like other field sobriety tests, it doesn't make much sense to provide the officer and the district attorney with additional evidence to be used against you at trial if you don't think that you will pass a breath test. If you did take a roadside breath test, contact the Redwood City DUI defense lawyers at Ahmed & Sukaram, Attorneys at Law to explain to you how to challenge your roadside breath test results.

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What if I passed all the field sobriety tests?

While you may think that you passed all of your field sobriety tests the officer may have wrote in his or her report that you did not. Field sobriety tests are judged hyper-technically to focus on your alleged inability to perform these "divided attention tests." The officer will not indicate in his or her police report how you performed well by walking in a straight line touching your heel to your toe. Instead, the officer will write how you took the wrong number of steps. An experienced San Jose DUI defense attorney like those at Ahmed & Sukaram, Attorneys at Law can present to the jury how the officer's biased judging of your field sobriety tests actually mask your true performance on the field sobriety tests.

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What if the cops just started to search through my wallet?

There is a vast difference between voluntarily providing your license from your wallet and having the officer take your wallet and search it. If you did not consent to have your wallet searched, the Fourth Amendment to the Constitution protects you against "unreasonable search and seizures." The officer generally must have "probable cause" or your consent to search through your wallet. If you are stopped merely for suspicion of an alcohol related DUI, the officer does not have sufficient grounds to search through your wallet. If the officer finds contraband in your wallet, like cocaine or methamphetamine you may have a defense. Redwood City DUI defense attorneys, Ahmed & Sukaram will let you know if there is a way to keep bad evidence out of your trial.

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Does it matter that the officer did not tell me that I did not have to perform field sobriety tests?

While the officer must follow very specific procedures in terms of explaining how the field sobriety tests are to be performed including demonstrating certain aspects of the test, the officer is under no obligation to tell you that you do not have to perform the tests.

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What do I do if I just got a DUI and need to drive to work?

You can apply for a restricted license that allows you to drive to and from work and during the scope of employment. In order to get a restricted license from the DMV after a first time DUI arrest, you need to pay DMV for a restricted license and show them: (1) proof of enrollment in a First Offender Program; and, (2) an SR-22.

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Why should I fight my case at the DMV?

The number one reason to request an Administrative Per Se ("APS") Hearing and a stay on the suspension of your license pending the hearing is to win the hearing. By fighting and winning your hearing you will avoid your license from being suspended. In addition you can cross-examine the officer at the APS Hearing and obtain a record of the proceeding. This record can later be used to prepare for trial and to impeach the officer at trial. Santa Clara County DUI defense attorneys, Ahmed & Sukaram, Attorneys at Law can help you to challenge your case at the DMV and help you win.

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Am I going to go to jail if I get a DUI?

Even with a first DUI offense there is mandatory jail time for a conviction. With each subsequent DUI that you receive the jail time that you face increases. A felony DUI can land you in state prison. There are sentencing alternatives to jail that Palo Alto DUI defense lawyers, Ahmed & Sukaram, Attorneys at Law can help you to obtain in your case. Contact us today to explain to you your options.

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What should I say if the officer asked if I have been drinking?

Sometimes those stopped or arrested for DUI make incriminating admissions because they think cooperating might encourage the officer to go lenient. In reality, any incriminating information you provide increases the probability you will face a DUI arrest. The best policy is to politely tell the officer "I would like to talk with my attorney before answering any questions."

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What jail time will I face if this is my second or third DUI conviction?

Many counties insist on between 10 and 60 days of jail for a second DUI conviction. The sentence becomes much more serious for a third DUI conviction. Many counties insist on 6 months to a full year in county jail for a third DUI. Given the severity of these consequences, it is important that you contact Oakland DUI defense regarding how to best approach your multiple DUI defense. It may be possible to keep you out of jail entirely even for a third DUI.

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I was very nice and cooperative with the officer so won't that keep me from being charged with DUI?

While it is always a good idea to be "polite" to a police officer if you are pulled over, the officer will never be persuaded not to arrest you for DUI because you were polite and cooperative. Rather, if you cooperation extends far enough to included incriminating statements, you may make matters worse by cooperating. A polite request to speak to an attorney before answering any questions is probably a better approach.

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I took other illegal drugs will they show up on my breath test?

Illegal narcotics will not show up on a breath test. However, the officer can ask you to submit to a breath test to establish the lack of presence of alcohol in your system. If an officer believes that he or she observes objective symptoms of impairment in the driver and the breath test shows a 0.0% of alcohol in the driver's system the officer may have probable cause to arrest the driver for DUI drugs. Following this arrest, the driver is obligated to provide a blood or urines sample to the officer or face a one (1) year administrative suspension of his or her driver's license from the DMV.

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What does BAC stand for?

BAC stands for blood alcohol concentration. BAC measures the amount of alcohol in one's blood by a percentage based on milligrams of alcohol per deciliter of blood.

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Can a cannabis card help me get out of a DUI?

A cannabis card will not help you avoid a DUI conviction. Even if you have a lawful prescription for a drug from your doctor or are lawfully using an over the counter medication, the fact that you are taking the medication lawfully is not a defense if your driving ability is impaired by the drug.

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I have a bad hip (other injury, or handicap) and the officer still had me perform field sobriety tests, is that right?

The officer can ask you to perform the test even if you have a disability that might impede your ability to do so. However, an experienced Bay Area DUI defense attorney is going to inform the prosecutor, judge and jury that you had a physical limitation that interfered with your ability to successfully perform the field sobriety test. Your attorney will aggressively argue that the result of field sobriety tests should not be relevant because the results reflect no more than your physical limitations. An aggressive Alameda County DUI defense lawyer will also attempt to undermine the officer's credibility by showing he was more interested in trying to get incriminating evidence than discovering the truth.

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I only had two drinks and the officer said that I blew a .10. Is that possible?

Not all people metabolize alcohol at the same rate, and such factors as body weight, for example, may impact how much alcohol must be consumed before resulting in a .10 BAC. The blood or breath test also may be inaccurate. Palo Alto DUI defense lawyers, Ahmed & Sukaram, Attorneys at Law may be able to challenge the blood or breath test on a number of grounds that may show the test was not accurate.

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My BAC was less than .08% and I am still charged with a DUI; how is that possible?

California has a zero tolerance policy if you are under 21 and drink and drive. An underage drinker is in violation of the law if they have ANY measurable amount of alcohol in their system when driving. If you are an underage drinker and have any detectable amount of alcohol in your system you will be subject to a civil penalty and automatic one year license suspension. If any underage driver has a BAC of .05-.07%, the driver will also be guilty of an infraction and subject to a $100 fine on a first offense. This is in addition to the one-year license suspension for violating the zero tolerance law.

Alternatively, a driver under 21 or over 21 can be charged with a DUI even if they blew less than .08% because the district attorney may only be charging the driver with a generic DUI (Vehicle Code 23152 (a)). Or, the district attorney can be charging both a generic DUI and per se DUI (Vehicle Code 23152(b)) and arguing that based upon "retrograde extrapolation" that the driver was driving with greater than .08% BAC at the time of driving.

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I didn't take a blood, breath or urine test; what is going to happen to me?

California has an "implied consent" law, which requires you to submit to chemical testing (such as blood, breath or urine tests) if you are suspected of DUI. Although you can refuse a chemical test, this will result in the automatic and mandatory suspension of your driver's license. Refusal of a chemical test may even be considered to be an admittance of guilt. In addition, even if you are found "not guilty" after your DUI trial, your license will still be suspended.

It is important to distinguish between an implied consent breath test and a roadside breath test. Contact San Mateo County DUI defense lawyers, Ahmed & Sukaram, Attorneys at Law to explain to you your rights.

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The officer was waiting outside of the bar or club to pull people over before giving me a DUI; can he do that?

Officers can and often do wait outside bars or clubs that serve alcohol to pull over people they suspect of being DUI. The officer cannot pull you over "just because" you were at the bar or club though. The officer must still have some other basis for the initial stop such as a busted tail light or erratic driving.

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I just drank a beer or shot right before getting pulled over for a DUI, so won't that make the breath test reading of my BAC higher?

Most road side breath testing instruments do not have slope detectors and therefore cannot tell whether the alcohol that it is reading is from residual mouth alcohol or deep alveolar air. Breath testing after the recent consumption of alcohol can lead to inaccurately high breath test results because of residual mouth alcohol. San Jose DUI defense attorneys, Ahmed & Sukaram, can explain to you and the jury the impact of residual mouth alcohol on a breath test.

Moreover, Santa Clara County DUI lawyers, Ahmed & Sukaram can explain to you and the jury how breath testing during the absorptive phase and can result in an artificially inflated BAC.