If you have been charged with a DUI you are probably feeling nervous, ashamed, concerned and you likely have many questions. DUIs are the most common offense charged in California. An experienced criminal defense attorney can answer all of your questions and put your mind at ease. In most DUI cases you will never see the inside of a jail again!
Driving Under the Influence is probably the most common offense that people are charged with. Driving under the influence can be charged in two ways and most people are charged in both ways. Vehicle Code Section 23152 (a) makes it unlawful for any person to drive while under the influence of alcohol or drugs or both. Vehicle Code Section 23152 (b) makes it unlawful for any person to drive with a .08 blood alcohol or above. Therefore, even if you are caught driving with a blood alcohol below .08, you may still be lawfully charged and convicted of a DUI if you are unable to operate a motor vehicle safely.
The first section, Vehicle Code Section 23152 (a) deals with impairment. If the DA believes they can prove that you were impaired by either drugs or alcohol even if your blood alcohol is not at .08 or above, you can be charged with DUI. The DA’s office will file cases even if the blood alcohol content is .06 or .07.
The second section, Vehicle Code Section 23152 (b) makes it unlawful for an individual to drive with .08 blood alcohol content or above.
It is unlawful to drive a commercial vehicle with a .04 blood alcohol content or above.
It is unlawful for a person under the age of 21 to drive with a .01 blood alcohol content. A minor convicted of driving under the influence will automatically have their license suspended for one year. Exceptions are extremely rare.
PENALTIES FOR DRIVING UNDER THE INFLUENCE:
The penalties for a first DUI include fines, attendance in an alcohol class; The class is either three, six or nine months for a first offense which is determined by the blood alcohol content and three years of informal probation. Informal probation, also known as summary probation, is a period of time within which the six month maximum sentence for a first DUI is essentially hanging over your head. If you violate any laws, other than infractions, during your probationary period the court can impose any or all of that time. If you are caught driving with any measurable amount of alcohol in your system, which means ANY alcohol, during the probationary period, you will be in violation of the terms and conditions of your probation and you could be sentenced to jail. Some courts require attendance at one MADD (Mother’s Against Drunk Driver’s) panel.
Second and Third DUIs involve much greater penalties including possible jail time, longer license suspensions, longer classes, vehicle impundment and the installation of ignition interlocking devices. Fourth DUIs are felonies. DUI’s involving injuries can also be charged as felonies depending upon the extent of the injury. Any accident from a DUI resulting in death can be charged as manslaughter or murder.
FIELD SOBRIETY TESTS:
Field Sobriety Tests are the tests administered by law enforcement when you are stopped by the police for a DUI. They include following an object with your eyes to determine whether there is any “nystagmus”. This is basically the wiggle of the eye. The presence of nystagmus indicates the presence of alcohol in the system, although not the amount. Other tests are administered which test motor skills. You do not have to consent to taking these tests.Many people believe that they can perform their way out of a DUI. However, if you have been drinking it is best not to answer any questions or perform any tests until you are taken to the station to give a breath or blood test. Politely decline to perform the FSTs and ask to be taken to the station to take a breath or blood test.
Preliminary Alcohol Screening also known as PAS involves blowing into a handheld device. This test will tell the officer what your blood alcohol content is. You also do not have to consent to this test. Again, politely decline and ask to be taken to the station to take a breath or blood test.
All information obtained during the performance of these tests is evidence that will be used against you.
If you fail any or all of these tests you will be taken to the police station, sheriff’s department or CHP office to perform either a breath or blood test. Refusal to consent to either of these tests will result in a one year license suspension. You can choose which test to take however, if you are unable to complete one, you must take the other to avoid having a “refusal”.
A conviction for driving under the influence will stay on your record for ten years. Any subsequent DUI conviction during that ten year period will be considered a second, third, fourth, etc.
It is important to know that an officer must have a legal reason to stop you. An officer must then have reasonable cause to believe you are under the influence of alcohol in order to conduct a DUI investigation. The officer will almost always report that they detected a strong odor of alcohol, noticed that the individual had red watery eyes and slurred speech.
If you are convicted of driving under the influence with a child in the car you may be charged with child endangerment.
If an accident occurs while driving under the influence the penalties are increased depending upon the nature and extent of the injuries.
DRIVING UNDER THE INFLUENCE OF PRESCRIPTION MEDICINE:
It is unlawful to drive under the influence of prescription medicine if it impairs your ability to drive a motor vehicle in any way.
DRIVING UNDER THE INFLUENCE OF MEDICINAL MARIJUANA:
It is unlawful to drive under the influence of marijuana even if you have a prescription for medicinal marijuana.
The DMV determines whether an individual’s license will be suspended as the result of a DUI. You must contact the DMV within 10 days of being arrested for a DUI to schedule a hearing to determine whether your driving privileges will be suspended in order to avoid an automatic suspension 30 days after your arrest. The DMV determines whether you were lawfully arrested, whether the officer had reasonable cause to believe you were under the influence and whether you were driving with a .08 blood alcohol at the time of driving. If they determine that these three issues have been satisfied you will receive written notification from the DMV advising you of the dates of your suspension. It is possible to obtain a restricted license within 30 days. An experienced criminal defense attorney can advise you about this.
WHY SHOULD I HIRE A LAWYER?
If you or a loved one have been charged with a DUI it is important to consult with an experienced criminal defense lawyer. Although DUIs are very common, they are also very complex cases. There are many very technical and scientific issues in a DUI case. There are many things that a lawyer may be able to do with your case that you would not be able to do if you represented yourself. There are many possible defenses to DUIs. There are also other preliminary issues about the arrest and testing procedures that a lawyer is trained to deal with. You should always, at least, consult with an experienced criminal defense lawyer when facing DUI charges.
WHY SHOULDN’T I JUST GO WITH THE PUBLIC DEFENDER?
Public defenders generally have anywhere from 20 to 35 cases per day. They do not have time to spend with you talking about your case. You will not meet your public defender until you go to court so you will not be able to ask any questions until you get there. Many public defenders who handle DUI cases are brand new lawyers. Although there are many excellent public defenders you do not get to choose which public defender will represent you. Public Defenders cannot represent you at the DMV hearing.