From the “Your Lawyer Sucks” Series - The Instagram Lawyer
Estimated Read Time: 4-5 Minutes
Reviewed by Attorney Nate Gjesdal
March 1, 2024
This is the first blog I’ll post highlighting things I see other attorneys say or do that, in my opinion, should be a red flag when choosing who you want to represent you in court.
I’ve greatly enjoyed online content from other attorneys. James Sexton, a divorce attorney out of New York, puts out hugely entertaining content sprinkled with invaluable advice about partnership and marriage.
Others, however… well, they may end up being a subject of this blog series.
I’ve seen a so-called “DUI Expert” on Instagram tell his viewers to “Refuse ALL tests! Do not take a blood or breath test!” This made me cringe, because here in California, this advice could cost a person their driver’s license.
What you need to know, and what a police officer is required to advise you of if stopped for suspicion of DUI, is that you MUST take a chemical test. When you got a driver’s license in CA, you agreed to take a blood or a breath test to determine whether you are driving under the influence of drugs or alcohol.
If you refuse to take all tests, two things may happen:
One, the police officer may get a judge to sign what’s called a McNeely warrant, authorizing police to draw your blood, by force if necessary.
Two, the DMV may suspend your driver’s license for a minimum of one year. No restricted license, no options to drive. You simply will not be able to drive, at all, for one year.
Now, it’s important to differentiate between what we refer to as “tests”. And it’s a little confusing to folks who don’t do this for a living.
Police officers will usually offer a driver the option to take a Preliminary Alcohol Screening test. The officer may say “You can help me determine whether you’re safe to drive if you blow into this device”. This first breath test is 100% optional, and it’s a bad idea to agree to it. Agreeing to the preliminary breath test gives the officer more data points to put in his or her report, which police will use to support the idea that you were driving under the influence. These additional data points will give the prosecution’s expert toxicologist what they need to do a calculation called “Retrograde Extrapolation” to show a jury that you were driving while intoxicated. If you refuse this optional test, the prosecution’s expert can’t do this calculation - which gives us another way to attack the prosecutor’s case.
It’s also a good idea to refuse to participate in the Field Sobriety Tests. We don’t need to deep dive into these tests, but they may include walking in a line, standing on one leg, touching the tip of your nose… these tests are designed to be failed by everyone, including sober people. In nearly 15 years of DUI litigation, I’ve seen exactly one police report where the officer wrote “This driver completed all tests without mistakes.” The other roughly 2,000 DUI cases? The officer concluded that the driver was intoxicated, due to mistakes made on those optional tests. Again, it’s a bad idea to agree to them.
Finally, we come to the mandatory, “evidential” test. At this point, if the officer believes you have been driving under the influence of drugs or alcohol, you will be informed of both your obligation to complete a test, and your right to retain a blood sample for independent testing at a later point in time. This is the test you must take, or the DMV will suspend your license. Now, the question I get asked a lot - “Should I do blood, or should I do breath?” The short answer is - it depends. In many cases, a breath test is done right there, at the scene of the traffic stop, or wherever police contacted you. Electing to take a blood test, most of the time, means that you’ll be transported to a jail or hospital to have a blood sample taken. This is additional time that a person’s body might be processing alcohol, meaning depending on when the alcohol was ingested, blood alcohol levels are either rising, or falling. See? Every case is unique, so there is no “right” answer - other than, take the test, give me a call, and we’ll look through the facts of your case to fight it at both court and the DMV.
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