Law Office of

​David Dastrup


DUI Defense

Traffic-Criminal Defense

Criminal Defense

DUI Arrest

Driving with Blood Alcohol Content  0.08% or Greater

Driving Under the Influence of Alcohol

A DUI arrest is a shocking and frustrating experience. You are not alone and we can help.

Criminal charges for driving under the influence of alcohol usually start from a small situation. For example, most DUIs start with a traffic stop for a suspected minor infraction of the California Vehicle Code. If the traffic stop is in the evening, the police officer will ask the driver if they had any alcohol to drink, even if there is no initial indication of alcohol.

If a driver admits to drinking any alcohol, the officer will instruct the driver to step out of the vehicle. This is what is called a DUI detention. The detention is not an arrest, but it feels the same because you are not free to leave.

If the driver says they did not drink, the officer smells alcohol through the driver-side window, the officer will ask the driver to step out of the vehicle. Even if the driver states that they had nothing to drink because they are the designated driver for a passenger in the vehicle who did drink, the police will still detain the driver to start a DUI investigation. This detention is supposed to be brief. But it is always uncomfortable, whether from being interrogated by police or, if at night, from standing out in the cold when not dressed to be outside.

Once a person is up and walking, officers are deciding, if not already, that they are going to arrest the person for DUI. A Los Angeles County Sheriff's Deputy will watch for the slightest sway or unsteady gait, for bloodshot watery eyes or slurred speech. One of the most important indicators police are trained to look for is an indication of alcohol in the blood system based on how the driver's eyes are able to follow a finger or pen in front of their face. CHP officers will check the eyes for lack of smooth pursuit, whether there is a stop-and-go movement of the eyes tracking a pen, or finger, instead of the eyeballs smoothly following the path of the pen.

There are other field sobriety tests, “FST,” that Torrance Police officers will conduct. Most people feel they passed the FSTs, from a commonsense point of view. However, the police are gather facts against you, trying to show that the totality of the circumstances demonstrates that the driver was intoxicated while driving. The officers are writing down every little detail that helps them get that extra notch on their belt for another DUI arrest.

Regardless of the field sobriety tests, police will take note if a driver admits to having several drinks and then driving. Making such an admission of drinking and driving usually is not freely provided by drivers–at least the driver does not feel it is. However, being detained and asked questions by an LAPD officer or other armed officer can be intimidating. Most people feel like they are forced to answer questions from the police. Nonetheless, because it is a traffic stop and or brief detention, law enforcement officers, whether Manhattan or Redondo Beach Police, or police in Orange County, California, are not required to give Miranda warnings before asking the question, "Have you had anything to drink?" or any other DUI investigation question. Not until you are arrested and are in custody, do they have to Mirandize the driver before interrogating the arrestee.

Once a California Highway Patrol officer has decided to detain the driver for a DUI investigation, they will conduct the field sobriety tests, as mentioned above. These include small balance or instructional tests that seem simple. For example, there is a walk-and-turn test that involves walking heel to toe, and a one leg balance test. Once the CHP officer claims to have observed several small deviations, such as missing steps, not counting the right way, etc., she will decide she has probable cause to make the DUI arrest.

To strengthen their investigation, before arresting someone for a DUI, the officer will ask the driver if they would like to take a breath test. If the person declines, they will still arrest. If the person submits, even if the alcohol is below .08% BAC, blood alcohol content, they will probably still arrest for unsafe driving while under the influence of alcohol.

The roadside handheld breath test measures blood alcohol content. The driver blows into the device. In theory, the device measures the amount of alcohol being eliminated by the lungs from the blood. The alcohol in the air is presumably from the lungs. The measurement, in theory, can be translated into BAC, blood alcohol content. To avoid risk of alcohol not from in the lungs, Los Angeles Police officers are supposed to watch for 15 minutes to make sure the person is providing a clear breath sample.  However, a person blowing into the device could give a false reading if they have alcohol fumes in their mouth from their stomach or particles of food. There are other problems, too, with these devices. Some people have trouble blowing hard enough or if the device is not properly maintained may not give an accurate reading or may not work properly at all. If it does not give a reading, police officers often yell at the detainee, accusing them of not blowing hard enough. However, these devices simply do not work all the time.

Regardless, by the time a breath test is being conducted, the officer has probably already decided that they are going to make an arrest. It usually does not matter what the results are of the roadside breath test as to whether the arrest will occur.

It is possible that if a person takes the roadside breath test and the BAC is low, that might, on rare occasion, increase the chance of not being arrested and charged with a DUI misdemeanor. (For example, I did have a [Beach Cities] police case where my client was driving a golf cart without seatbelts and rolled through a stop sign. My client admitted to drinking beer. The police did a thorough DUI investigation but the handheld breathalyzer showed low blood alcohol. They released my client with only an infraction ticket–no DUI arrest. Again, this is not common.) In hindsight, some people wish they would have submitted to the roadside breath test and other regret submitting.   

Rejecting the roadside breathalyzer is different than refusing to submit to a chemical test after being arrested. The pre-arrest breath testing device is called a preliminary alcohol screening device, PAS. The post-arrest testing is called a chemical test, the results that count for the DMV and criminal case.

The post-arrest test may be another breathalyzer, usually a larger device at the police station. The other option is a blood draw, an intravenous shot/needle in the arm to withdraw blood. (Note that refusing a chemical test after being arrested for an alleged DUI can have serious consequences even though it can avoid evidence for the prosecutor’s case–but this is for another discussion.)

The police will submit the blood alcohol results and their police report of the DUI investigation to the Driver Safety Division of the California Dept. of Motor Vehicles and the local prosecutor. The prosecutor may be for the county, like the Los Angeles District Attorney, or for a specific city, like the Hermosa Beach City Prosecutor. The prosecutor uses the police report to build the DUI case.

There are two different criminal charges for essentially the same DUI, California Vehicle Code sections 23152(a) and CVC 23152(b). Subsection “a” reads, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” A breath test is not required for this section. The prosecutor has to show impaired driving, simply put, unsafe driving because of drinking alcohol–no breath test is required. In contrast, subsection “b” reads, “It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. . .” Here, there must be a test that specifically measures the quantity of alcohol in the blood.

Where the case is filed, which courthouse, depends on where the DUI arrest occurred and which prosecutor is handling the case. A DUI arrest by Long Beach Police Department, LBPD, will be filed by the Long Beach City Attorney at the Governor George Deukmejian Courthouse in the County of Los Angeles. The court serves the County of Los Angeles for the surrounding area. The court happens to be in the City of Long Beach. However, the court is a State of California, County of Los Angeles building. The DUI cases at this court, for example, involve various law enforcement agencies, including LAPD, LA County Sheriff, Signal Hill Police, LA Harbor Police, CHP, etc. The surrounding areas served by Long Beach Courthouse include Signal Hill, San Pedro, LA Harbor, unincorporated areas of LA County, Harbor Gateway, and other areas.

Your attorney will navigate the court system for you. DUI cases can be complicated and vary greatly. Now is the time to get legal defense for your DUI. Call Dastrup Law at 310-817-5899.  

(310) 817-5899

​​California Criminal Defense Attorneys