Do I Have The Right To An Attorney When Asked To Take A Chemical Test?
In California a person does not have the right to an attorney before they decide either which test to take or whether or not a person should even take a test which is kind of unfair but that’s just the state of the law and it’s been that way for quite some time. An officer generally informs the person that they do not have the right to consult with an attorney before they try to take the test. If a person then decides to refuse to take a test, a few things can happen. One is where the officer will then and this is where people really get tripped up, the officer will say that if you refuse to take a test, you’ll spend an inordinate amount of time in jail before you’ll be released. The threat of remaining in jail is oftentimes used by officers to compel an individual person arrested to take a breath or a blood test.
That is not really fair nor is it oftentimes accurate. On the other hand, the flipside of that is that the officer will say that if you do take a breath test, we’ll know the results right away and you’ll be released very shortly after they’ve finished processing the person. Oftentimes that’s not true either. We’ve heard of situations and represented people where they’ve been in jail for a day or a day and a half before they are finally released. The officers, more often than not, in my opinion use either the threat of staying in jail longer or the indication that a person will be released shortly after they take a breath or a blood test to encourage a person to take a breath or a blood test.
Sometimes police officers try to dissuade a person from taking a blood test indicating that if a person wants to take a blood test, the officer will say fine but it’ll be quite a long time before we know the results of the blood test so you may not be able to be released until then. That’s not accurate either because the police don’t know the results of the blood test. Blood draws get taken by the officer if there is a blood test done at the station because many jurisdictions call in a phlebotomist, a person who draws blood and is licensed by the state to draw blood. Then, the phlebotomist, like a nurse will take the blood and put it in a vial that’s provided by the police officer and then the police officer will take it back to the station. Usually, the next business day the blood will be delivered to the crime lab.
In some counties it could take up to a week and in other counties it could take up to two months or longer before the results are even known. Sometimes police officers just don’t want to deal with a person anymore and they just want them to take a breath test and be done with it. If they do a blood test it takes longer because either they don’t have a person to draw blood at the station and some jurisdictions are actually calling for a phlebotomist or maybe even nurses to draw blood on the scene. It’s just more paperwork and more time for the police officer so they oftentimes want to subtly or not so subtly discourage a person from choosing a blood test.
Now if a person refuses to take a breath or a blood or urine depending on if it’s a drug case, the officer then has two choices. First, they just process the person right there as if it’s a refusal or they can obtain a warrant from a judge who is on call or on duty and usually this is done electronically and it doesn’t take long at all. Most of these electronic warrants are already pre-printed, pre-filled out and all they do is plug in the specifics of the particular client, name, and specific brief facts and then the warrant is executed, electronically transmitted. The officers can then take what’s called a forced blood draw. A forced blood draw will still result in a person being charged with a DUI refusal and sometimes they even have the results of a blood test with a refusal case.
Getting a warrant for misdemeanor DUIs as of today, are relatively a new procedure compared to years ago when it wasn’t clear whether they needed a warrant. Some jurisdictions actually held a suspect down and had a nurse or a phlebotomist come and stick a needle in the arm and draw the blood.
What Is The Process After Someone Has Either Submitted To Or Refused A Chemical Test?
Once a person gets out of jail they actually should call us right away. We’ve been in the public domain for so long and our number has been out there that people know to call 888-4-TOP-GUN even before they are getting pulled over. From time to time we’ll get calls from people who are being pulled over and want to know what to do. But when somebody gets out of jail, we should be called as soon as possible so that we are able to capture all the relevant defense information, give our client the relief that all is not hopeless, all is not lost, just because they are arrested for DUI it doesn’t mean that they will be convicted of DUI. It doesn’t mean they are going to lose their license, it doesn’t mean they are necessarily going to jail, all kinds of things because most people who get arrested have never been arrested for DUI before and they are absolutely devastated by the experience.
The things that go through their mind are loss of job, loss of freedom, loss of their driver’s license, loss of their reputation and various other things including future being tarnished, loss of advancement. So by calling us, we understand all these things and we could give them the straight story as soon as possible so they don’t have to stress over this needlessly over a long period of time. Sometimes people are so depressed over being arrested for DUI that they just don’t want to deal with it. That’s absolutely the wrong thing to do. We often get calls from family members who have a loved one or a relative who is in jail and this happens usually when it’s a felony DUI. Being prosecuted for felony DUI in California can be a life altering event not only for the person arrested and everybody else involved including the family members but the criminal charges can be very overwhelming.
There is a different type of bail structure for different types of offenses and so what we are oftentimes able to do at different levels, misdemeanors, felony, felony with great bodily injury that we are able to assist them in getting to a bondsman as soon as possible so that they could be able to post bail and get their loved ones and family members out of jail as soon as possible. That’s the biggest and most important thing that should happen when somebody is arrested for DUI and bail is set. So we would recommend contacting us right away because we provide immediate relief. On the other hand oftentimes people are released on what’s called OR which stands for Own Recognizance. That means the person doesn’t have to post bail, it’s just a promise to appear in court. Usually on first offenses where there is no serious or aggravating facts or factors that a person will be able to leave without posting bail.
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