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DUI Frequently Asked Questions

Field Sobriety Tests or Standardized Field Sobriety Tests (FSTs or SFSTs) are optional if 21 years or older.

Many folks are unaware that, if you are 21 years or older and under investigation for DUI, the law does not require that you to take the FSTs or SFSTs.  However, if you are under 21 years, the failure to take these tests can result in a one year license suspension.  The roadside breath test [Preliminary Alcohol Screening Device (PAS)] is currently considered a FST.

Police allowed to lie:

A common misconception is that police are not allowed to lie to get your confession.  This is simply untrue -- lying a part of their job. Police are trained and skilled liars when it comes to obtaining confessions.  The best advice is to choose a chemical test (blood, breath, or urine) when requested (as required by law), then ask for an attorney, and shut up.  Keep in mind YOU are not allowed to lie to police -- it does not work both ways.

DMV is a Seperate Proceeding:

You must request a DMV License Suspension Hearing within 10 calander days of your arrest [in Sacramento (not locally)] or you will automatically lose your license -- regardless of what happens in court -- for four months to life depending on you charges, driving record, and driving status.


Plea Bargain:

A plea bargain usually involves a criminal defendant pleading guilty or no contest to a lesser offense (or to a lesser number of the charged offenses) in return for a lesser sentence.

Harsher Sentence for Invoking Rights Prohibited:

Judges often give defendants who lose at trial harsher sentences.  But this practice is prohibited by the case law:

“In our opinion a defendant who pleads not guilty and avails himself of the right to trial cannot be said to have presented a frivolous or bad faith defense even though he presented no evidence on his behalf or, if he presents evidence, even though such presentation is without merit. ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal, . . .' (§ 1096; See People v. Wells, 33 Cal.2d 330, 346 [202 P.2d 53].) This presumption must be weighed by the trier of fact along with all other evidence in arriving at a verdict or decision, and where the facts in the case are doubtful the presumption is sufficient to turn the scales in favor of an acquittal." (People v. Hill, 77 Cal.App.2d 287, 293 [175 P.2d 45].)

Accordingly, the presumption of innocence not only exists at the inception of the trial but continues throughout the trial to the conclusion. (People v. Fitzgerald, 14 Cal.App.2d 180, 195-196 [58 P.2d 718]; People v. Barquera, 154 Cal.App.2d 513, 517 [316 P.2d 641]; People v. O'Brien, 106 Cal. 104, 105 [39 P. 325].) It is apparent, therefore, that the presumption of innocence in criminal law carries with it a "built in" defense which negates frivolity or bad faith since, unless it is overcome by proof of guilt to a moral certainty and beyond a reasonable doubt, this presumption is sufficient, in and of itself, to acquit a defendant. (See People v. Yeager, 194 Cal. 452, 486 [229 P. 40].)

We point out, furthermore, that the right of a defendant in a criminal case to rely upon the presumption of innocence is recognized by the emphasis given a defendant as to his concomitant right not to testify. Accordingly, comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt is forbidden as violative of the Fifth Amendment of the federal Constitution. (Grffin v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].)

In sum, and in view of the foregoing, we think it is clear that by increasing the penalty in the case of a defendant who chooses to rely on the presumption of innocence, to put the state to the test of proving its case, and to assert his right to a jury trial, one is in effect penalizing a defendant who asserts rights to which he is entitled. (See 66 Yale L.J. 204, 217-218, 221-222.)”See People v. Morales, 252 Cal. App. 2d 537, 546 (Cal. Ct. App. 1967)

“...there can be no question but that an accused cannot be punished by a more  [*937]  severe sentence because he has unsuccessfully exercised his constitutional right to stand trial rather than to plead guilty.” See Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969) and Weathington v. Wainwright, 486 F. Supp. 934, 937 (S.D. Fla. 1979)

“It is well settled that to punish a person for exercising a constitutional right is ‘a due process violation of the most basic sort.' The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice ; thus, [our Supreme Court has] stated that ‘only the most compelling reasons can justify any interference, however slight, with an accused's prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.'  ‘A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.'”  See In re Lewallen, (1979) 23 Cal.3d 274, 278–279 [152 Cal. Rptr. 528, 590 P.2d 383 and In re Edy D., 120 Cal. App. 4th 1199, 1202 (Cal. App. 2d Dist. 2004).

Attorney Robert Hamilton

My name is Robert Lee Hamilton and I'm a California DUI, Criminal Defense, Personal Injury and Landlord-Tenant Lawyer.