Can I get a DUI even though I feel I passed field sobriety tests in California?

Can I get a DUI even though I feel I passed field sobriety tests in California?

Answer by Phil Hache

Question: Can I get a DUI even though I feel I passed field sobriety tests in Los Angeles, California?   Techinically I was pulled over in Reseda.   The officer pulled me over for speeding.  I was going a bit over the speed limit but I don’t think I was drunk or anything.  The officer asked me a few questions and asked me to get out of the car.  I asked why? (not in a rude way, but, was curious).  He said that he smelled alcohol on my breath.  He asked me if I had been drinking before that and I said that I had earlier, but just a few drinks earlier that day.

Anyways, he then had me do a bunch of tests….touch my nose…stand on one leg…walk and turn around, etc.  I feel like I did great on the tests.  He then asked me to do a breath test.  I asked if I had to, and he said no.  So I said  no…then he arrested me!   If I would have known he was going to arrest me I would have said okay to the breath test.

I then did a breath test at the police station, but I don’t know the results.  He wrote DUI with a .08 on my ticket.  I am assuming this means my breath test result after I was arrested was a .08?

Answer: Yes, you can be charged with a DUI even if you feel you performed well on the Field Sobriety Tests (FST’s).  First, the officer may not have reported your performance of the field sobriety tests to reflect the way you felt you performed them.  Secondly, often times officers will arrest someone if they smell alcohol and someone refuses to do a Preliminary Alcohol Screening test, which is the breath machine that is offered prior to arrest.

Depending on your drinking pattern, it is often better to not submit to a Preliminary Alcohol Screening test (unless you are on probation for another alcohol related conviction, or you are under 21 years old, in which case there can be additional penalties for refusing to take a Preliminary Alcohol Screening test.

Often, the Preliminary Alcohol Screening test (P.A.S. test) result will be used against you as further evidence that you were at a .08 or higher, depending on what the results come back as.

If you would have performed the PAS test and blew around a .06 or higher, depending on the officer, it is likely he would have arrested you anyways.

People often ask me “Should I blow into the PAS machine even though I am over 21 years old and not on probation?”   There are a lot of variables to consider.  As a rule of thumb, I prefer clients to have not blown into the machine when defending their case, as I find that the results are usually more damaging than good.  But that is not a 100% rule.

Finally, just because the officer wrote .08 on your ticket does not mean that your Breath test result at the station was a .08 BAC.  Usually the officer will just write VC 23152 (b)  .08, meaning that your BAC level is .08 or higher, so you can be charged with VC 23152(b).

It is important to hire a DUI attorney who is familiar with defending DUI cases to help assess the strengths of your case, and defend you.  Feel free to call me at (818) 336-1384 for a free consultation  if you would like to discuss your situation further.


Phil Hache

DUI Defense Attorney
Los Angeles, including Van Nuys and the San Fernando Valley