Typical DUI Scenario

Dave Defendant is an executive at a life insurance company. He just got promoted, and the head of Human Resources decided that Dave deserved a dinner party in his honor.

After the party, Dave saw that Lisa, a co-worker, looked a bit drunk and could tell she wouldn’t be safe driving home. Feeling responsible in his new position, he offered to drive her home. Lisa accepted, knowing she shouldn’t drive.

Dave shouldn’t have either. But he’d been drinking wine slowly and steadily throughout the evening, and didn’t feel “really” drunk, just a little “buzzed”. So they climbed into Dave’s Acura and headed for Lisa’s house.

On the way, Dave tried to put in a new CD he’d just gotten as a gift. He dropped the disc onto the floor and ran his fingers around to find it. In doing so, he swerved a little out of his lane. This caught the attention of Deputy Dan, a police officer stationed at the side of the highway.

Deputy Dan flipped on his lights and sirens and went after Dave. It took a while for Dave to realize that Dan was signaling him to pull over, but he finally did. Dave got out of the car and held onto the door for balance. He was really feeling it now.

Deputy Dan got out of his car and approached Dave. He saw that Dave’s eyes were bloodshot, watery and drooping. Dan decided to ask Dave to perform some Field Sobriety Tests. These include the Horizontal Gaze Nystagmus, Finger-to-Nose, Walk and Turn, One-Leg Stand tests. All these tests are designed to test your motor skills and they help the officer form an opinion as to whether you are under the influence of alcohol or drugs.

After completing the tests, Dan asked Dave to perform a breathalyzer test. Dave blew into the machine several times. At that point, he was handcuffed and taken to jail. While at the jail, he was given a choice between blood and breath tests. When Dave was issued a California Driver’s License, he agreed to provide a sample of his breath or blood upon demand of a police officer after a lawful arrest. This is called “Implied Consent”.

Dave chose a blood test. After the sample was collected, Dave was booked and then released several hours later. Should Dave hire an Orange County drunk driving lawyer?

The Stop

The first question a lawyer will want to answer is whether there was a lawful stop. Under Dave’s circumstances, the stop may not have been lawful because Dave didn’t swerve out of his lane, merely within it. Under California law, intra-lane weaving isn’t necessarily sufficient cause for a police officer to stop and detain someone under suspicion of drunk driving.

The Officer’s Observations

Deputy Dan thought that Dave’s eyes looked bloodshot and watery. This phrase is the single most commonly used terminology in all of these cases. The officer’s subjective (personal) belief that watery and red eyes indicate drinking, is not supported by scientific research. Dave could have been tired, his eyes could have been irritated from nearby smokers on the bar patio. He could have been wearing contact lenses.

Police always note these symptoms. They always note that the person had an unsteady gait, needed to hold onto the car for balance and couldn’t perform Field Sobriety Tests without missing steps or failing to follow instructions. In some cases, the police penalize a driver for merely repeating the instruction given to him, as if this proves the driver is drunk.

The P.A.S. Breath Test

The P.A.S. test, or Preliminary Alcohol Screening test measures the concentration of alcohol in the breath. These test results are often incorrect. The machine may be in poor working order, not calibrated, or the officer may not know how to use it properly. There are many issues that may affect its proper use.

The Blood Test

When Dave chose to have his blood drawn, he narrowed his chances of avoiding a guilty plea. Blood tests, no matter what you hear, are far more reliable than other chemical tests. The lab doing the testing takes the vial, adds some chemicals and analyzes the results. If the sample were contaminated, or if the lab only tested blood serum, the results could be in error. That is why a knowledgeable drunk driving lawyer in Orange County will perform blood splits. Part of the original sample is sent to an independent lab and is re-analyzed. If there is a different result, you may have a defense.

The DMV Hearing

What most drivers don’t understand is that there is a separate, parallel, unrelated action taken by the DMV after your arrest.

The officer will take your license from you the night of your arrest. He will give you a pink piece of paper. That paper says that you have 30 days to drive before your license is suspended for four months. That paper also says that you can request an administrative hearing within 10 days from the date of the arrest. This hearing takes place before a hearing officer who acts as both Judge and prosecutor.

Even if a drunk driving attorney in Orange County has your charges reduced or dismissed, the DMV may take your license. Only an acquittal or finding of factual innocence as to the .08 charge will help you with the DMV. You must fight the hearing very hard. And if you win the DMV hearing and later plead guilty or are found guilty by a jury, the DMV will suspend your license anyway. That is why hiring an experienced Orange County criminal DUI defense attorney is so important.

Remember: The first rule of criminal law is this: if you don’t fight it now, you can’t fight it later. You must request a hearing and request it in writing. This can be done by telephone or by fax. You simply write your name, driver’s license number, date of birth and a request for a hearing and fax it to the DMV driver’s safety office. In Orange County, that office is located in Irvine.


There are many ways to successfully challenge the DUI charge. If you don’t hire the right lawyer, one who knows what to look for, you may as well plead guilty at the arraignment and save your money for the fines. Orange County drunk driving attorney William M. Weinberg will turn over every fact to find a defense. You’ll have the confidence that you chose the right lawyer to fight your case.

Orange County DUI Lawyer Blog - DUI

Anyone who is arrested should contact an experienced Orange County DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.

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