Search and Seizure - Your Rights

I spoke with Seniors at a local high school recently.  They had studied the protections against unlawful search and seizure in the Constitution and their teacher asked me to review their personal rights during a traffic or suspected DUI stop.

Of course, these rights apply to everyone and can be a good reminder for each of us, and for our family and friends.  These are things to review when we are sober, when we are not scared or anxious because law enforcement has pulled us over, when we don’t feel the indignation of our civil rights being violated, and when we can make a deliberate plan.

The things to know:

  1. When you invariably get the question, “Do you know why I pulled you over?” the answer is “No, officer.”  You don’t need to help law enforcement make their case against you.
  2. Previous to being arrested, an officer has to ask your permission if he wants to search your car. “Can I search your car?”  Your answer, “Respectfully, no.  You may not.”
  3. If the officer suspects you of drinking, she will often ask you to take a breath test. This can include a PAS test done on the side of the road or a breath test back at the jail. In a vast majority of cases, you should refuse these breath tests and wait to take a blood test. Why?  Blood tests are more accurate.  Your attorney can have the blood sample retested.  And, the time it takes to travel to the jail/hospital and get your blood drawn will allow your BAC (blood alcohol concentration) to change.  [Note: The only time you should take a breath test instead of a blood test is if you have drugs in your system.]
  4. Do take the blood test. If you refuse this test, there are fairly certain and very serious consequences from the DMV.
  5. Unless you are certain you have no alcohol and no drugs in your system (this includes prescription drugs that alter your ability to drive), you should politely decline to answer any questions an officer asks you. You can also politely decline the field sobriety tests (FSTs).  If the officer suspects that you are driving under the influence, he will arrest you…but this requires law enforcement to gather information without your aid and assures your protection.
  6. Be respectful. Be firm.  Stay calm and quiet.
  7. This is NOT the time to correct the officer’s misunderstandings. This is NOT the time to argue with the officer.  This is NOT the time to get angry and give the officer additional qualities such as “belligerent” or “resistant” or “combative” to add to her report.


Don’t fight your case on the side of the road.  You never win there.


Uber/Lyft Instead of a DUI

Getting a DUI can be incredibly expensive, without even considering the possible property damage and long-lasting injury to self and others.  It is estimated that a standard 1st DUI (with no accident) will cost $10,000, before increased insurance costs.  (For a more detailed list of the costs and consequences of a DUI, click here.)

But there is an immediate alternative to this expense in ride-hailing apps.  If you have alcohol or drugs in your system, request an Uber or Lyft ride.  From downtown Sacramento to Roseville or Elk Grove on a weekend night, the ride costs $23-31. To West Sac, the ride is a mere $12.  Any one with an Uber/Lyft account can request a ride for themselves or others (18 or older).  You can get your friend home safely, instead of hoping he actually was unimpaired as he drives away from your night out.  It will save lives, it will save reputations and $25 versus $10K is a deal anywhere.

While we teach our kids, our friends, and ourselves how to drink safely and how to always have a travel plan in place before we drink, let’s also have a safe, easy, inexpensive “Plan B” – to get home and to avoid a DUI.

Also realize that these rides can help those we love get out of dangerous or uncomfortable situations.  If someone is on a date or at a party where someone else is their ride, they can order an Uber/Lyft and leave if they feel in danger of sexual violence or feel uncomfortable with the legal choices being made.  Ride-hailing is a safe, quick way out.

In this season of graduations, celebrations, retirements and summer festivities, help set up ride-hailing accounts for those you love.  You can attach them to pre-paid cards (that allow funds to be added) or you can give Uber Gift Cards.  We should use these services and encourage others to do the same, rather than to ever risk driving impaired.

If you, or anyone you care for is arrested for a DUI, contact my office anytime day or night – immediately.  Mistakes happen, but that mistake can only be complicated by not reaching out for immediate aggressive representation.

Cost of a First DUI


One of the first questions out of every client’s mouth is, “What is this DUI arrest going to cost me.”  A DUI conviction can be very expensive, depending on the facts of your case.  Below is a break down of the typical costs of a first DUI.

Costs of a standard 1st DUI with no accident is estimated at $10,000 before increased insurance costs.  This is how that estimate breaks down and can be variable for each case:

Court fines and penalties  – approx. $2500 (includes restitution fund)

3 – 6 month DUI class (depending on BAC) –  $700 – $2000

SCRAM device (if ordered) – $40/day (typically for 6 months in high BAC cases)

Work project or home detention $80 – $120 to sign up

(alternate to in-custody time)  $40 – $80/day (depends on the case: min 2 days; max 6 months)

Ignition Interlock Device (IID) – $100/month (minimum 5months is standard)

Attorney fees  – $2000 – $5000

DMV license reissue fee  –  $135

Towing/impound fees  – $1000 – $2000

(depending on if they choose to keep the vehicle for 30 days)

Increased automobile insurance costs  –  Variable; often rates increase by 33-60% or more per year for the 10 years that the points stay on your record

Bail – $500-$5000  (required in some local counties)

Other consequences:

  • No jail time typical on 1st DUI
  • 6-month driver’s license suspension (As of 2019, you are entitled to a restricted license as soon as the DMV takes action.)
  • A DUI shows as a misdemeanor conviction on your record. (The conviction can be expunged after a few years, but the points remain on your DMV record for 10 years.)
  • If you are under 21 years of age, any measurable amount of alcohol in your system results in a one-year license suspension, with no restricted license available*

*Driver’s under 21 establishing a “critical need” for a restricted license can go through a separate application process that is subject to full DMV discretion.

If you have been arrested for a DUI, or for any crime, do not hesitate to reach to contact us at any time.

What to do at a DUI Checkpoint

Under state and federal constitution law, California law enforcement perform 2,500 + DUI checkpoints annually. Officers are stationed to check drivers for signs of intoxication and impairment. The likelihood that you will be stopped in a California DUI checkpoint is high. Being prepared to handle the situation will allow you to maintain your rights and freedom. Here is some help.

By law DUI checkpoints should be publicly announced or posted. With dates and possibly even times of day. As a driver nears a checkpoint, in progress, there should also be adequate signage and informative cones, lights, or officers directing traffic.

Your Right to Avoid the Checkpoint

It is legal to avoid a DUI checkpoint all together. You have the right to choose a different route if it is available. While most checkpoints are systematically placed for convenience and effectiveness this may be harder in certain situations. While you have the right to choose another route or road, you must do it lawfully. Very often, saturation patrols are conducted in the vicinity of a checkpoint itself.

These officers are restrained by the standard of probable cause, but will pull you over for an unlawful U-turn, speeding, lighting issues (at night), or license plate discrepancies, ext. Beware of these conditions before you decide to avoid a checkpoint.


Let’s say that you have decided to pass through the checkpoint. As you proceed to the checkpoint, either guided by cones and signs, or officers, prepare to stop and show proof of license. Remember that stops are often systemic to maintain legality. They may also be stopping every car, or they may stop vehicles in a pattern (for example every third, fifth, or tenth).

Law requires the checkpoints to be brief and to the point. Maintain your hands on the wheel and be polite, as the officers should be as well. They may ask some basic questions. Be polite and honest. Being transparent and honest will speed up the stop.

As you proceed through the stop, remember that other officers are on patrol in the area. Manage your speed and lane changes, etc. This will ensure that you have a good experience before, during, and after the DUI checkpoint. The best rule of thumb for a successful DUI checkpoint experience is don’t drink and drive. This is the best standard for avoiding any legal action.

If you do need legal assistance, contact the Law Office of Byron Roope.

First Time DUI Offenders, What to Expect

Experiencing a DUI arrest for the first time can be confusing and it can be hard to understand what rights you still have. Knowing the basics of California DUI law and proceedings can be helpful in the outcome of your case and freedoms. Here is some help.

Being Pulled Over

As soon as you are pulled over for a DUI the officer will want standard documentation – driver’s license, insurance, and proof of registration. You will most likely be asked to perform a breath or blood test, an officer will request these tests under probable cause. Refusing to perform these test can be problematic. License suspension, financial, and legal action can mount as you refuse to be tested. California law allows for three types of testing: Breath, blood, and urine in specific situations such as someone taking anticoagulants for heart conditions, or who have hemophilia.

DMV Action

An officer will confiscate and send your license to the DMV. This is done with a notice of suspension or revocation form and a sworn police report. The DMV will then conduct an administrative review including the following elements: an examination of the officer’s report, suspension or revocation order, and test results.

You have the right to dispute the license suspension with the DMV, through a hearing within 10 days of the incident. Contacting an attorney as soon as possible is ideal in a DUI situation. Every incident is unique and you will only benefit in having representation and legal guidance in your corner.

Possible Penalties

Understanding the penalties for a DUI are critical. Listed here are the penalties you should expect if you are found guilty of a DUI:

  • Up to 6 months jail time
  • Up to $1,000 fine before penalties and assessment
  • License Suspension from 30 days to 10 months
  • Interlock ignition device, IID, in some counties

First offenses for DUI can categorized in two ways, not having a prior at all, or not have a prior within 10 years under California law. Facing DUI charges and a possible conviction, especially for the first time are best handled with the guidance and representation of a lawyer. For additional facts and possible legal representation contact an attorney here.

DUI in California

When a person is arrested for a DUI in California, they are generally charged with two offenses: California Vehicle Code Section 23152(a) and California Vehicle Code Section 23152(b).  Although both are typically charged (when alcohol is used), they are both separate offenses.

California Vehicle Code Section 23152(a) states: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” A person violated this code section when they are impaired by drugs or alcohol. The impairment is different for each person and can occur at differing BAC levels. For example, a person who is an inexperienced drinker may only have a blood alcohol level of .06%, but could potentially still be in violation of California Vehicle Code Section 23152(a) if they are impaired.

This same applies for a person who is under the influence of drugs, prescription or otherwise. A person may not be used to a particular drug in their system, and while another person may not be impaired with that drug in their system, the inexperienced user may still be impaired.

California Vehicle Code Section 23152(b) states: “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This section makes no mention of drug use, and only concentrates on a person’s blood alcohol content. While a person may feel unimpaired at a .11 percent blood alcohol level, this code section draws a hard line in the sand, making it a violation to have a blood alcohol level of .08% or more while driving, regardless of tolerance.

While tolerance is not a defense to a violation of California Vehicle Code Section 23152(b), it does not make it irrelevant in a DUI case. Depending on the blood alcohol level, as well as the conduct at the stop, we can potentially use that information to get a case reduced to a lesser charge, or even dismissed.

Violating Vehicle Code Section 23152(A) or 23152(b), whether it is because of alcohol or drugs, is a misdemeanor in California unless; It is your fourth or subsequent offense, you have a prior felony conviction for driving under the influence, or your driving causes an injury to a third party.

If charged as first time misdemeanor DUI the penalties can include; three to five years of summary (informal) probation, up to six months in county jail, fines between $390-$1000 plus penalties and assessments, a three, six, or nine month alcohol education class, a six to ten month license suspension, which may be converted to a restricted license.

If you are charged with a second or third misdemeanor driving under the influence allegation, the penalties can be greatly increased. Most counties require a minimum mandatory jail time for a second offense of 96 hours, and 120 days for a third offense.  Additionally, the court will order an 18 month alcohol education class.

If charged as a felony the penalties can be; sixteen months, 2 years, or 3 years in California State prison, fines between $390-$1000 plus penalties and assessments, a four year California license revocation, a designation as an “Habitual Traffic Offender” with the California DMV, which increased greatly your penalties if convicted of driving with a suspended license.

The above penalties only apply to felony DUI’s without injury. If an injury occurs, the total prison time may go up dramatically, as well as the possibility of a strike being assessed against your record.


Driving With a Suspended License

In California, your privilege to drive may be taken away under many different circumstances.  If taken away, and then caught driving, you can be convicted of driving with a suspended license.  You can be arrested, and face the possibility of jail time. The severity of these penalties will depend on the reason your license was originally suspended.

Suspension Because of a DUI

When arrested on suspicion of driving under the influence (Vehicle Code Sections 23152a and 23152b) your license can be suspended. This suspension occurs either due to an administrative suspension by the DMV after 30 days, or due to a conviction of either 23152(a) or 23152(b). This can cause two different suspensions and, consequently, two different vehicle code sections which can be used to prosecute  a person for driving with a suspended license.


A citation for violating California Vehicle Code Section 14601.5 comes when a person is driving on a suspended license due to an administrative suspension from the DMV after a DUI arrest.  The DMV suspends your license 30 days after an arrest for violating vehicle code section 23152(b).  You may contest this arrest, but only have 10 days to request a hearing with the DMV.

If convicted of driving on a suspended license in violation of CVC 14601.5, you can face mandatory jail time, thousands of dollars in fines, and a probation term of up to five years.


A person is charged with violating California Vehicle Code Section 14601.2 when they are driving a vehicle and their license is suspended due to a DUI conviction.  A violation here carries a minimum of 10 days of jail time, potentially thousands of dollars in fines, a probation term, and the possibility that an ignition interlock device would be required to be installed.

Suspension for Unpaid Tickets/Failure to Appear – 14601.1

The DMV may also suspend a person’s license if they fail to appear in court, or have unpaid traffic tickets.  This vehicle code section is different from 14601.5 and 14601.2 in that it carries with it the possibility of jail time, fines, and a probation term, but can also be an infraction, meaning you cannot face jail time or probation if it is deemed an infraction by the court.  Often we can negotiate a resolution for an infraction for a fine only for clients charged under this code section.

14601.3 – Habitual Traffic Offenders

The DMV may suspend a person’s license if they are deemed a habitual traffic offender.  This generally occurs when a person receives too many points in certain time period while their license was already suspended.  This occurs when a person receives two or more two point serious driving related crimes (such as violations of Vehicle Code 23103 Reckless DrivingVehicle Code 23152 Driving Under the InfluenceVehicle Code 23109(c) Exhibition of Speed, any Vehicle Code 14601 section, or any other two point vehicle code violation), three or more one point violations (including speeding, running a stop sign, failing to stop at a limit line [running a red light], or any other one point violations), or three or more accidents where someone was injured or the property damage totaled at least $750.00.

The penalties for a first conviction of driving on a suspended/revoked license due to Vehicle Code Section 14601.3 are: a mandatory 30 days in jail, a fine of $1000, plus penalties and assessments, possible probation for one to five years.

If convicted for a second violation of driving on a suspended/revoked license due to Vehicle Code Section 14601.3 are: a mandatory 180 days in jail, a fine of $2000, plus penalties and assessments, possible probation of one to five years.

When cited for any driving on a suspended license code sections it is important to know what code section you are cited with and what you are facing. Just because you are cited for one section does not mean you should plead to that charge. Often a charge can be reduced or dismissed depending on the circumstances of the case. An attorney who knows the law and the local courts can generally get you better results than the initial offer from the Judge or District Attorney’s Office.