If you are arrested and charged with DUI, the potential consequences are numerous. You can
face a fine, incarceration, and a loss of your driver’s license for a year or more. It is important to
meet this serious charge head-on, and that includes seeking out an experienced Santa Barbara
DUI defense lawyer to represent you.
A recent DUI case from Orange County is useful for many reasons, including shining a light on
what the law does (or does not) require you to do, and what obligations the law places on the
officer who stopped you.
The case involved J.T., a driver parked in the drive-thru entrance of a San Clemente fast-food
restaurant at 2:30 a.m. The deputy suspected that the driver was under the influence, as he
allegedly exhibited an odor of alcohol, slurred speech, and an unsteady gait.
The deputy had the driver perform various field sobriety tests. One thing many drivers don’t
know is that field sobriety tests are voluntary under California law. You cannot be punished for
refusing to perform a field sobriety test (or tests.)
J.T., however, did not refuse and performed the “one-leg stand” test, the “walk-and-turn” test,
and a “horizontal gaze nystagmus” test. He did not do well on these tests.
The deputy arrested the driver and sought to do a chemical test. (While field sobriety tests are
voluntary, chemical tests aren’t. Refusal can trigger a one-year driver’s license suspension and,
if you’re convicted of DUI, your refusal “will result in a fine and mandatory imprisonment.”)
One option you do have, however, is selecting the type of chemical test — either a breath test or
a blood draw. J.T. chose the breath test. However, the deputy didn’t have the proper device to
administer a breath test. The deputy asked the two other officers at the scene, but they didn’t
have an appropriate device, either. He put out a radio call for a device, but he got no response.
The deputy told the driver that the breath analysis device was unavailable and asked the man to
take a blood test. The driver refused. On the basis of that refusal, the Department of Motor
Vehicles imposed a one-year driver’s license suspension.
No Proof of Unavailability = No Statutory Refusal of Consent
The crux of J.T.’s case was what constitutes “unavailability” under Section 23612 of the
California Vehicle Code. That statute says that, if a driver’s preferred chemical test is
unavailable, failing to submit to another method is considered a “refusal” that triggers the one-
year license suspension. If not, the DMV is not entitled to suspend that driver’s license.
The Court of Appeal concluded that the undisputed facts of J.T.’s case failed to prove
unavailability. The Orange County Sheriff’s office has a substation in Dana Point (roughly 5
minutes from the arrest scene,) and another in San Juan Capistrano (10 minutes away.) The
California Highway had a field office in San Juan Capistrano. The deputy, however, did not
contact any of these offices in search of a breath device. He also didn’t check with his
supervisor. Under those facts, the DMV didn’t prove unavailability, so it could not suspend the
driver’s license.
DUI cases often are fact-intensive, and multiple factors may play a role in determining the
outcome. Putting on your best defense requires a keen understanding of the specific facts of your case, in-depth knowledge of the law, and familiarity with what the District Attorney’s Office
looks for in assessing and pursuing a DUI case. At the Law Offices of Tristan Verburgt,
we offer our clients all of those things. Attorney Verburgt is a former prosecutor who knows firsthand the way that the prosecution goes about tackling DUI cases, and the best ways to optimize outcomes for DUI defendants. To put one of our knowledgeable and diligent Santa Barbara DUI defense attorneys on your side, contact us online or call (805) 220-3923.
by Ohava