Anyone suspected of driving under the influence in California maintains certain rights, which, if an arrest is made, they will be advised of. Those rights include the right to remain silent and the right to legal counsel.
Right Not to Self Incriminate
The reason a person has the right to remain silent and the right to legal counsel is to help preserve that person’s right not to incriminate him or herself. A person who submits to police questioning and who attempts to speak with police without legal counsel is considerably more likely to make a self incriminating statement than the one who says nothing and lets his or her attorney handle police contact.
However, when a person is arrested and suspected of DUI in California, that person is not guaranteed the right to have legal counsel present during the administration of a chemical test.
Three Types of Chemical Tests
The amount of drugs or alcohol in a person’s system can be determined through chemical testing. The three tests generally available to suspects of DUI are blood, breath, and urine. These tests are typically administered in a police or medical facility, never by the side of the road. Implied consent laws state that failure to submit to chemical testing can result in the loss of driving privileges and certain other charges. During the administration of these tests, a person is not guaranteed the right to have legal counsel present, but that does not mean that all of his or her other rights should be abandoned.
Chemical Tests v. Field Sobriety Tests
Chemical tests are far different from field sobriety tests. Chemical tests use complex medical instruments and controlled procedures to determine an accurate reading of the amount of drugs or alcohol in a person’s body. A field sobriety test, on the other hand, is used to help police gain probable cause, which is a reasonable inference that a DUI has been committed, and further evidence that can be used against the suspect in trial. Field sobriety tests like the walk and turn, finger to nose, and portable breathalyzer tests are not conclusive tests for determining the precise amount of alcohol in a person’s system and can be refused by individuals who are asked to take them. Field sobriety tests are completed before an arrest is made, to determine if an arrest and further investigation is warranted, while chemical tests are completed after an arrest is made and after the person has been notified of the charges he or she is facing.
Field sobriety tests can always be refused, chemical tests, because of implied consent laws, cannot be refused.
In extreme cases, usually following an accident where somebody has been killed, a blood sample can be taken by force if the suspect refuses to provide one voluntarily.
Never the End of a Case
Just because a person is forced into a chemical test, it does not mean that the person’s entire legal defense has evaporated. Even if a chemical test is completed, the suspect should still remain silent and should still wait until legal counsel is secured before dealing with investigators.
In the face of an unfavorable result, a skilled DUI defense attorney may still be able to negotiate a relatively favorable legal outcome for the suspect.