Assuming the driver does not make any statements, does not take the Field Sobriety Tests or the PAS test as discussed in Part I, what happens?
Detain the Driver/Transport to the Station
There are good cops, bad cops, and a whole host in between. The fact that a driver is exercising his rights and not cooperating will frustrate them, but they will proceed with their investigation. If the police suspect drunk driving (based on their observations) then they will detain the driver and transport him to the station for chemical testing.
Whereas there is no requirement for most to submit to the FST’s and PAS test, California’s implied consent law states that a driver, if stopped and requested by police, will consent to a blood or breath test as part of DMV’s issuance of a drivers license in the first place. If the driver refuses to submit to a valid chemical testing request, his driver’s license will be suspended for 1 year by DMV. There are also enhanced criminal penalties for such a refusal as part of the court process. (a discussion of Refusal in more detail will be the subject of Part III).
Accordingly, when transported to the police station the driver will have a choice of a blood or breath test to check the blood alcohol content (“BAC”). Contrary to popular belief, one is not entitled to speak to an attorney at this point. Nor will Miranda rights be read as both of these have been held inapplicable at this stage of a DUI investigation.
If one opts for the blood test, it must be administered in a certain acceptable manner. Since the result may not be known for several weeks, the driver will be booked, charged with a DUI and given a court date. Often, the driver may only find out the results of such blood test when he or his attorney appear on the first court date.
Most people opt for the breath test. It is less accurate than a blood test but provides immediate results. Generally, the test involves the driver blowing into the machine twice to get a BAC reading. If the reading is a .08 or above, the driver will be booked, charged with DUI and given a court date. Furthermore, ones California driver’s License will be confiscated and he will be issued a temporary license good for 30 days from the arrest. The driver then has ten (10) days from the arrest to contact DMV and request a DUI hearing and a stay of any suspension until after the hearing is completed. If the driver fails to request a DMV hearing within 10 days, the temporary drivers license issued to him will expire after 30 days from arrest and his privilege to driver a motor vehicle will be suspended.
In Part III, we will look at the consequences of a “Refusal” to submit to chemical testing in more detail.