California DUI Information

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California Drunk Driving Laws

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California Drunk Driving and DUI Defense Help and Information

When someone is arrested for DUI, there are really two separate cases being prosecuted against the accused:

1. The criminal court case that can result in jail, fines, an ignition interlock device being installed in the car, alcohol education classes, community service, impounding the defendant’s vehicle, or a combination of these things, depending upon the facts of the case; and
2. The DMV case, where the driver’s license can be taken away.
   

Criminal Court: Basic DUI Law-Misdemeanor and Felony DUI

In order to convict a person of DUI, the prosecutor must prove beyond a reasonable doubt that the accused drove a vehicle while under the influence of alcohol, drugs, or both; or, that the accused drove a vehicle with .08 or more, by weight, of alcohol in the blood. This gives the prosecutor two bites at the same apple; a conviction under either law counts as a DUI.

A DUI case may be charged as a felony (meaning the punishment can be a term in state prison for a minimum of 16 months) where someone is injured, or where the accused has three or more prior DUI convictions. (Note that certain related charges, such as “wet reckless” driving may count as a prior DUI conviction for this purpose. These prior violations must have happened within seven years of the new charge to count against the accused as a prior conviction.)

Remember, there are two ways to be convicted of DUI:

1. Failing to operate a vehicle with the same caution characteristic of a sober person under the same or similar conditions (being an impaired driver as the result of drinking or taking drugs); or
2. Driving a vehicle while having .08 or more, by weight, of alcohol in the blood.

So, how do prosecutors convict people of driving while intoxicated? The evidence typically falls into one of three broad categories: Driving Pattern, Field Sobriety Tests, and Chemical Tests.

Driving Evidence

Police Officers, CHP Officers, and Sheriff’s Deputies are all trained to look for signs of mental or physical impairment to detect possible drunk drivers.

The National Highway Traffic Safety Administration (part of the Department of Transportation) has produced a guide for detecting drunk drivers at night. These are the 20 signs that officers look for when determining whether to investigate for DUI:

• Turning with wide radius
• Straddling center of lane marker
• Appearing to be drunk (based upon posture, gestures, etc.)
• Almost striking object or vehicle
• Weaving
• Driving on other than designated roadway
• Swerving
• Speed more than 10 miles below legal limit*
• Stopping without cause in traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in a lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

*NOTICE- SPEEDING IS NOT ONE OF THE TOP 20 CLUES OF DUI This is powerful in the hands of a competent defense attorney if your DUI came from a traffic stop for speeding only!

Field Sobriety Tests

These are not really tests at all; rather, they are physical agility exercises that are subjective in nature, and designed for the accused to fail.

Most people don’t realize that these tests are optional… and the officers who give them sure won’t tell you, but they are. You are perfectly free to politely refuse to take the Field Sobriety Tests in their entirety.

These “tests” may include the following:

• Nystagmus: The officer will position an object (such as a pen) 12 inches away from the driver’s face, and move the object from side to side while watching the subject’s eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.
• Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.
• Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.
• Finger to Nose: This test requires the suspect to place his or her feet together while standing straight with eyes closed, and bring the index finger to the nose as ordered by the officer. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.
• The Rhomberg Balance Test: The accused assumes a position of attention, closes their eyes, tilts their head back, and estimates 30 seconds. The officer is looking for the inability to stand still or steady, body or eyelid tremors, opening eyes to maintain balance, swaying (either front to back or side to side), muscle tension, or statements made by the accused. The officer is also testing the suspect’s internal clock, which will usually be slow in the case of alcohol or depressants, or fast in the case of stimulants.

Other Field Sobriety Tests include finger tapping, hand clapping, counting backwards, or reciting the alphabet.

These are supposedly tests that are designed to check “divided attention”, a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer’s satisfaction, and pay the price with a DUI arrest.

One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer is supposed to advise the suspect that the test is voluntary. These PAS tests do not comply with Title 17 of the California Code of Regulations and the results should therefore not be allowed into court.

The most important thing to know about the Field Sobriety Tests is that a skilled California DUI defense lawyer will know how to handle them in court.

Besides these Field Sobriety Tests, the officer investigating a possible DUI will be looking for physical signs and symptoms of intoxication, such as slurred speech, red and watery eyes, an odor of an alcoholic beverage, someone who is unsteady on their feet, or that fumbles with their driver’s license.

It seems to matter little to most officers that they have never heard the accused speak before or since; that red and watery eyes can be caused by fatigue, cigarette smoke, or contact lenses; that the odor of an alcoholic beverage is meaningless (ever smell someone’s breath after they drink a six-pack of O’Douls?), and that being unsteady can be caused by nervousness (remember what it feels like to see those red-and-blue lights in the rear-view). It takes an experienced DUI attorney to point this out to a jury effectively, and if an officer is asking you to take the Field Sobriety Tests, you are probably going to need one, no matter how you think you did on them.

Chemical Tests - Blood, Breath, Urine

Once a person is placed under arrest for driving under the influence of alcohol or drugs, they are to be told that they have a choice of chemical tests that they must take. According to California’s “implied consent” law, the person arrested has a choice of taking a blood or breath test if the arrest is alcohol related, or taking a blood or urine test if the arrest is drug related. There is no right to take a urine test for alcohol related DUI, unless it is suspected that the driver has a combination of alcohol and drugs in their system. There is no right to consult with a lawyer prior to taking the test.

Title 17 of the California Code of Regulations sets out the requirements for proper chemical testing in California. Where these standards are violated, the result of the test is unreliable, and should not be the basis for a DUI conviction.

Where the sample is blood or urine, your defense lawyer can and should get the sample tested by an independent laboratory.

Where the accused refuses to take a blood, breath or urine test, this refusal can be used as evidence that the accused was conscious of their guilt. The DMV will also use this refusal to suspend or revoke the suspect’s driver’s license and the refusal can also be used to enhance the punishment in the event of a conviction.

Punishment in Criminal Court

The punishment that the court can impose is set by statute, but can result in up to one year in county jail for misdemeanor DUI, or even several years in state prison for felony DUI.

There are certain aggravating factors that can result in an increase in punishment beyond the statutory minimums. These include having prior convictions for DUI or related offenses, speeding while DUI, having a child in the car, having a blood alcohol level that is .20 or higher, or refusing to submit to a chemical test.

Any punishment imposed by the court is separate from the license suspension or revocation by the DMV If the court orders a driver’s license restriction, that restriction will begin as soon as the DMV’s restriction ends. They do not run concurrently.

Also, as to any fines, keep in mind that in addition to the base fine amounts described below, the court will add assessments that significantly increase the amount that is owed. The base fine amount will triple when all other mandatory costs and fees are added.

In general, a conviction will result in the following punishment:
First Offense: If the court grants informal, unsupervised probation, there are two options. Both require a base fine ranging from $390 to $1,000, and attendance at a 3-month alcohol/drug education program (a 6-month program is required if there is a BAC of .20 or higher, or if there is a chemical test refusal).

• Option A: 48 hours to 6 months in jail, and a 6-month driver’s license suspension; or,
• Option B: A 90-day driver’s license restriction allowing for driving for work and the alcohol/drug program only.

Without probation, the court may impose 96 hours to 6 months in jail, a $390 to $1,000 base fine, and a 6-month driver’s license suspension.

Second Offense: With unsupervised probation, there are two options, both carrying a base fine of $390 to $1,000, plus either:

• Option A: 10 days to 1 year in jail, and a 2-year driver’s license suspension; or,
• Option B: 96 hours to 1 year in jail, an 18-month (or 30-month) alcohol/drug education program, and a driver’s license restriction for the duration of the program allowing driving only for work and the program.

Without probation, the court may impose 90 days to 1 year in jail, a $390 to $1,000 base fine, and a 2-year driver’s license suspension.

Third Offense: With unsupervised probation, the court will impose a sentence of 120-days to 1 year in jail, a base fine of $390 to $1,000, a 3-year license revocation, and an 18-month alcohol/drug education program if one was not done before.

Without probation, 120-days to 1 year in jail, $390 to $1,000 base fine, and a 3-year license revocation.

Fourth or subsequent Offense: If probation is granted, 180 days to 1 year in jail, a base fine ranging from $390 to $1,000, a 4-year license revocation, and an 18-month program if one has not been done before.

Without probation, the court could sentence anywhere from 6- months to 1 year in county jail, or 16 months, 2, or 3 years in state prison; a base fine of $390 to $1,000; and a 4-year driver’s license revocation.

If you or someone you care about stands accused of DUI, please call on an attorney in your area before you even consider pleading guilty.

Remember, any punishment imposed by the court is separate from the license suspension or revocation by the D.M.V.

Alternative Sentencing

Even in the case of a conviction, it is possible for a skilled Southern California DUI lawyer to obtain alternatives to jail for their clients. Alternatives to jail include Electronic Monitoring, Work Release or Work Furlough, Alcohol or Drug Rehabilitation, or Sober Living. Each of these options should be fully explored, and a decision reached based upon the individual facts in each case.

• Electronic Monitoring: This is also known as “House Arrest,” and involves wearing an ankle bracelet that electronically monitors the whereabouts of the wearer. Usually, arrangements can be made for the wearer to go to work or school, so long as they are home by an appointed time.
• Work Release: This involves working at a site determined by the Probation Department. The participant works there during the day, and gets to go home at night to sleep.
• Work Furlough: This option allows the participant to keep their own job; however, they return to a dormitory-style facility to sleep at night. They are released to go to work during the day.
• City Jail: Also known as “private jail” or “weekend jail.” Many local police departments operate a City Jail program. Participants check themselves in to the police station, and usually spend the night there, to be released sometime the following day.
• Alcohol or Drug Rehabilitation: Sometimes a DUI or drug-related arrest is merely the unfortunate symptom of an underlying addiction issue. While this is certainly not the case in every instance, some people who are arrested for these types of cases can best address this as an alternative to jail. A skilled defense attorney will know how to obtain this type of relief for their clients, and prevail upon a judge to allow this as an alternative to custody and fines.
• Sober Living: For those that are multiple offenders, or have a drug or alcohol problem that has not responded to past attempts at treatment, sober living is sometimes the best alternative. These are houses, both for men and women, where all of the residents are sober. The structure of each house will vary, but residents are usually required to attend a 12-Step meeting daily, participate in house groups and functions, and perform a household chore. In addition to allowing the participant to avoid a lengthy jail stay, sober living environments have helped many improve the quality of their lives.

DMV Hearings and Punishments

A request for a DMV hearing must be made within 10 days of the arrest. A DMV Hearing Request form must be filled out and faxed to the DMV in order to preserve your rights. If there is no request made within 10 days, the driver’s license will be suspended/revoked 30 days from the date of arrest. The length of time of the suspension will depend upon how many DUI convictions the arrestee has suffered in the preceding seven years.

Issues at the DMV Hearing depend upon whether the accused took a chemical test (breath, blood, or urine) or not.

If a chemical test was taken, the issues are:

• Did the officer have reasonable cause to believe that the accused was driving a motor vehicle in violation of the drunk-driving laws (Vehicle Code Sections 23152 or 23153)?
• Was the accused lawfully arrested?
• Was the accused driving a motor vehicle when she or he had .08 or more, by weight, of alcohol in their blood?

If a chemical test was not taken, the issues are:

• Did the officer have reasonable cause to believe that the accused was driving a motor vehicle in violation of the drunk-driving laws (Vehicle Code Sections 23152 or 23153)?
• Was the accused lawfully arrested?
• Was the accused told that their driving privilege would be suspended for one year, or revoked for two or three years, if they refused to submit to, or failed to complete, a chemical test?
• Did the accused refuse to submit to, or fail to complete, a chemical test after being requested to do so by a peace officer?

DMV Penalties

These penalties relate to persons over 21 years of age, who were not operating a commercial vehicle.

• First Offense: Where a chemical test was performed, and the results show a BAC of .08 or more, the DMV will suspend the driver’s license for four months. Where a chemical test is refused, the DMV will suspend for one year. In a first time DUI case where a chemical test is taken, a restricted license may be obtained after one month of suspension. Please consult an attorney for details on obtaining a restricted license.
• Second Offense (within 7 years of prior offense): Where the chemical test is performed, and results are .08 or greater, DMV will suspend for one year. Where chemical test is refused, two-year revocation.
• Third Offense (within 7 years of prior offenses): With chemical test resulting in .08 or greater, two-year revocation; with refusal, three-year revocation.
• Fourth Offense (within 7 years of prior offenses): The punishment is the same, whether a chemical test is taken or not. In either case, there is a four-year revocation of driving privileges.

Take note: these license suspensions/revocations are separate and apart from any action taken by the court; these are only the California DMV’s punishment. Curiously, the courts have no problem imposing double punishment in the field of DUI law; that is, both the court and the DMV are taking the person’s driver’s license in separate processes related to the same event.

In any other area of the law, this would be considered double jeopardy. With DUI’s the court considers the court’s suspension to be punishment, but the DMV’s suspension to merely be an administrative sanction. Tell that to the person who just suffered an “administrative sanction.” As far as they are concerned, it is a punishment.

Also, be aware that any suspension or revocation imposed by the court does not usually start to run until after the DMV suspension is over with. That means that these suspensions run consecutively, not concurrently.

If you have any questions about the DMV suspensions, or any other aspect of DUI defense, please contact a Southern California DUI lawyer in your area that is experienced in defending DUI cases.

California DUI Information

Expert California DUI Lawyer

California Drunk Driving Laws