DUI-- Driving Under the Influence

*** IF YOU ARE ARRESTED FOR A DUI, YOU OR YOUR ATTORNEY MUST REQUEST A DMV HEARING WITHIN 10 CALENDAR DAYS TO PLACE THE SUSPENSION ON HOLD AND GET A LICENSE HEARING.

Driving Under the Influence of Alcohol or Drugs (DUI), is sometimes incorrectly referred to as drunk driving. The term "drunk driving" is not correct, because under California law and under the laws of most other states, a person does have to be "drunk" in order to be guilty. The proper terms and code sections are discussed below, along with an explanation of their elements.

Driving Under the Influence can involve the use of alcohol or drugs, or a combination of the two. The drugs can be illegal drugs, or even legal medications. The basic principle is that it is illegal for a person to drive a motor vehicle in California if their ability to safely operate that vehicle is impaired to a significant degree by any substance, legal or illegal. Moreover, contrary to the belief of most lay people, a person can be legally under the influence of alcohol, even at levels below .08.

Driving Under the Influence can have some serious legal consequences including the loss of your driving privileges, fines, alcohol treatment programs, probation, and/or jail. If you are charged with a DUI, you should consult a lawyer immediately. We can assist you with proper legal representation and criminal defense including the administrative license revocation issues with the DMV. If you have been charged with driving under the influence, you should consult a lawyer to make sure your interests are  protected.  For a free consultation CONTACT OUR office anytime. We are waiting to hear from you! Call toll free 707-367-3941; 559-228-2378; 800-455-2005 or email support@californialegalgroup.com

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There are TWO CASES for every DUI Arrest

There are essentially two different cases that are brought against you when you are arrested for a DUI. First, there is the DMV case (Department of Motor Vehicles case) - this is where your driver's license may be taken away from you. Second, there is the criminal case - this can result in jail time, fines, classes for alcohol education, community service, impounding your vehicle, getting an ignition interlock device installed in your vehicle, or a combination of these things. It all depends on the facts of your individual case.

California DMV Hearing

If you have been arrested for a DUI, you must request a DMV hearing within 10 days of the arrest. If you do not do so, your license will be automatically suspended or it will be revoked 30 days after your arrest.

The DMV proceeding is very different from the criminal courtroom proceeding. These hearings are much more informal, and they are run by a Driver Safety Office (DSO) Hearing Officer, who is an employee of the Department of Motor Vehicles (this hearing is not run by a lawyer or a judge). The standard of proof in DMV hearings is a "preponderance" of the evidence, which is a much lower standard than what is used in criminal court.

DMV hearings can be very technical, and the chances of a person winning without legal help are very low. The DMV is not concerned with your personal life, and it does not make a difference to them if you need to drive to work or school. The documentation that is given to you after being arrested for a DUI can be confusing, and it does not clearly explain that a hearing must be requested in a very short period of time (10 Days).

Important Factors for the California DUI Criminal Case

After the DMV hearing, the accused person must face the criminal proceeding. The Drunk Driving penalties in the state of California are set forth by statute and can be very complicated. The basic statute allows for a range of possible DUI sentences, but there may be modifications to the sentence based on the following factors:

• Having a prior conviction within the last seven (7) years
• Speeding 20 mph (or more) over the speed limit at the time of the DUI
• Having a child under the age of 14 in the car at the time of the DUI
• Having a blood-alcohol reading of over .20%
• Refusing to submit yourself to chemical testing

Within the range that is set forth by statute, the sentence in a DUI case will be affected by such factors as:

• The various facts of the case
• The policies of the prosecutors and local courthouse
• The weaknesses or "holes" in the case, as uncovered by the defense attorney
• The reputation of the defense attorney

It is important to note that the results of the breath, blood or urine test will be a factor in determining the charges that will be brought against you and the possible sentences. If you were driving with a blood-alcohol level of over .08%, then there has been a DUI offense. Please remember, however, that the DUI laws relate to the blood-alcohol level at the time of the driving, and not at the time of the test. This is a very important difference that may be used in your favor. It is also important to understand that the tests - particularly the breath tests -- are unreliable and therefore susceptible to attack by an experienced DUI / DWI attorney.

Contact a DUI / DWI Attorney

DUI lawyers know which arguments work and which ones don't. If your DUI attorney can get your charge reduced from a felony to a misdemeanor, it is considered a major win. In fact, he or she may be able to get your case dismissed, which is the ultimate goal.

If you have any questions or would like to speak directly with a DUI attorney regarding your charge of driving under the influence, please do not hesitate to call us at  707-367-3941; 559-228-2378; 800-455-2005. If you prefer, you may e-mail the firm, or fill out the form on the Contact Us page of this website, and a lawyer will be in touch with you.

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CALIFORNIA STATUTES AND CODES:

D.U.I. CALIFORNIA VEHICLE CODE  23152

(a) 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.

(b) 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.

VEHICLE CODE SECTION 23152(a) - IMPAIRMENT

This section prohibits driving a "motor vehicle" under the influence of alcohol or drugs, or a combination of the two. It prohibits a person from driving a vehicle while under the influence of any substance that impairs their ability to drive with the care of a normal sober person. That includes otherwise legal medications, including prescription or over-the-counter medications, if the substance causes impairment. This also includes marijuana, even if the person has a medical marijuana certificate. The extent to which marijuana in small doses impairs a person‘s ability to drive is the topic of heated debate among experts in the field. As with legal medications, even though a person may have a medical marijuana certificate from a doctor, it does not allow a person to drive if the marijuana impairs their driving.

Increasingly, this section is being used by Prosecutors to charge and attempt to convict people with tested blood alcohol levels below .08, even with no drugs in their system. The theory is that individuals may be too impaired to drive at blood alcohol levels registering below .08. It is a current trend for crime lab toxicologists to indicate that in their opinion individuals can be too impaired to drive at levels as low as .05, and that all individuals are too impaired to drive at levels as low as .08, regardless of their size and drinking history.

The use of even legal medications and drugs can result in a DUI if the substances cause impairment. If there is a DUI involving a drug or narcotic that is illegal, it leads to an additional violation of California Vehicle Code section 11550. This section prohibits being under the influence of a controlled substance, whether driving or not.  

 VEHICLE CODE SECTION 23152(b) - .08% OR HIGHER

This section prohibits driving a "motor vehicle" with a tested blood alcohol level of .08 or higher. This section is plagued with difficulties. First, the tests used are often inaccurate, and  vary in their readings from person to person. Even the blood tests are often inaccurate, as they do not use the same testing procedures as blood tests performed by medical professionals. Second, the tests cannot determine a person‘s blood alcohol level at the time of driving, which is the important point in time. 

To ensure your rights are protected, Contact us Anytime. Call toll free 1-800-455-2005 or 707-367-3941; 559-228-2378 or support@californialegalgroup.com

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BLOOD ALCOHOL LEVEL AT THE TIME OF DRIVING

An issue that commonly occurs in DUI cases concerns the issue of an individual's blood alcohol level at the time of driving, which is the important point in time in a legal sense.  A person is not and cannot be tested at the time of driving therefore, the test of an individuals blood alcohol level  occurs at some later time, often much later. In some cases, such as those involving accidents, the blood alcohol testing may occur several hours later.

The problem with later testing is that an individual's blood alcohol level does not remain constant. Ones blood alcohol level rises and falls over time.The rate at which a individual's blood alcohol level rises and falls depends on the circumstances in which the alcohol is consumed, and the individual's own unique metabolism. Factors affecting the process include whether an individual has currently eaten, and the manner and rate in which the alcohol was consumed. Additional factors include the person‘s sex, height, weight, body type, history of drinking, and several other factors that may or may not have an affect on the results.

RISING BLOOD ALCOHOL LEVEL: The issue of blood alcohol level at the time of driving can be affected when the person is tested and their blood alcohol level is continuing to rise. A person‘s blood alcohol level can be below the legal limit at the time of driving,(which is the legally important time), but have risen to a level above the legal limit by the time that they are tested.  This is likely to occur when an individual has a drink and soon after consuming the beverage comes into contact with the police. That individual’s blood alcohol level may continue to rise for well over an hour.

Additionally, police officers may misstate the drinking history reported by the driver; and driver’s themselves, for a variety of reasons, underreport their drinking and state that it has been several hours or longer since consuming their last drink. In actuality, the truth in the circumstance, in these situations, would help their defense since the inaccurate reporting as to when they last consumed a drink makes it appear as though a rising blood alcohol scenario is not involved.

BREATH TESTING

Breath testing is an inaccurate method of testing blood alcohol level, which is the important issue. Alcohol level on the breath itself has no effect on a person, as it is only when alcohol enters the bloodstream, which takes it to the control centers of the brain, that a person becomes affected. The desire for an immediate and simple testing method, without the messy extraction and storage of body fluids, has clouded the collective judgment of those in law enforcement. Officer can wrap up cases quickly, and have the results when they make an arrest and write their reports, and can tailor those reports accordingly. I have seen cases wherein officers misread the results, yet the physical observations of the defendant in their reports corresponded with what they believed to be the readings.

Several companies now market breath-testing devices to law enforcement, and exaggerate the reliability of those devices. Some even claim that their devices can eliminate the possibility of false positives due to incorrect sampling, or the reading of substances that mimic and appear to be alcohol, when they in fact are not. 

All breath-testing devices are basically inaccurate, even when reading within the allowed margin of error of the machine. There is an inherent allowed margin of error of ± .01, even if the machine is "reading accurately". Furthermore, there is a difference in the way that breath machines read different people who otherwise have the same blood alcohol level. This is based on such factors as sex, weight, body type and additional factors.

BLOOD TESTS

Blood testing is also plagued with problems. The methodology of a blood test taken for DUI purposes  is much different than that a doctor or hospital would adhere to. After drawing and storing the blood, the sample is then tested by using a type of breath device. This breath device extracts only molecules of the blood sample, and then blows it through the testing device. Additionally, blood tests can be flawed due to spoilage of the sample. Mainly, as spoilage occurs, it produces alcohol and the alcohol content of the blood sample rises accordingly thereby causing the alcohol to rise in the vial/tube the blood sample is stored in.

In order to prevent the above scenario, a preservative must be mixed with the blood sample. Ordinarily, this is done by using vials with preservative already added. However, there are cases in which there is an insufficient amount of preservative added and the blood spoils. Furthermore, the officer must remember to shake the blood once it is drawn and enters the vial/tube. It is essential that the blood is shaken in order to mix the preservative with the blood. Many police officers are unaware of this, and fail to do it.

In order to ensure your rights, you should speak with a DUI Attorney immediately. If you have any questions or would like to discuss your case with a DUI attorney, please do not hesitate to call us at 707-367-3941; 559-228-2378; 800-455-2005. If you prefer, you may e-mail the firm, or fill out the form on the Contact Us page of this website, and a lawyer will be in touch with you soon.

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UNDER 21/ JUVENILE DUI - VEHICLE CODE SECTION 23140

While they can still be charged with all of the other DUI offenses, there are additional and specific DUI laws that apply to drivers who are under 21 year of age at the time of commission of the offense. The limit is lower, and the consequences are more severe. Moreover, the court procedure is often different, with fewer rights available to the charged driver.

California Vehicle Code section 23140 provides that such drivers can be punished for blood alcohol levels of .05% or above. The offense is an infraction, as opposed to a misdemeanor or felony, resulting in the loss of the right to a trial by jury. The penalty for a first offense is only a $100 fine. The most important part, however, is that there is a mandatory 1-year driver‘s license suspension. The driver may apply for a critical needs restriction to allow limited driving within that year.

DUI WITH INJURY

Driving Under the Influence which results in injury to another person, including a passenger in the DUI driver‘s own vehicle, is an enhanced form of DUI. This offense is what is called a "wobbler", meaning that it can be charged either as a felony, which potentially carries a state prison sentence, or a misdemeanor, in which the maximum sentence is one year in a county jail. How the offense is charged generally depends on the policy of the jurisdiction where the offense is committed, and the extent of the injury. Other factors may also come into play, such as whether the blood alcohol level was much higher than the legal limit, the number of injured parties, and whether the driver has a record of prior DUI or other serious convictions.

DUI PENALTIES

The penalties on even basic first-offense DUI cases are severe. The law provides for possible incarceration of up to 6 months in the county jail, a fine of $390-1,000 plus penalty assessments and court costs, impoundment of the vehicle used for up to 6 months, installation of an ignition interlock device on the vehicle for up to 3 years, a driver‘s license suspension, and completion of an alcohol education program. The penalty assessments and court costs approximately quadruple the base fine, so that the totals generally range between $1,475 and $1,850. The length of the alcohol education program varies according to blood alcohol level.

Under the new law, there are two possible driver‘s license suspensions. A 4-month suspension can result from the DMV‘s own internal APS procedure, separate and apart from any action as a result of what happens in court. If the person is convicted of a DUI offense in court, then the DMV imposes a second 6-month suspension. The two suspensions do not necessarily run at the same time.

For SECOND DUI offenses occurring within 10 years of a prior offense resulting in a DUI conviction, there is a legal minimum of 96 hours and a maximum of up to 1 year in the county jail. Many jurisdictions now attempt to impose minimums of 60-120 days in jail on second offenses. This is in addition to the fines, vehicle impoundment, ignition interlock device, and alcohol education program. There is a driver‘s license suspension of 2 years or longer, the actual length depends on how the matter is handled.

Third DUI offenses, occurring within 10 years of the commission of 2 prior DUI offenses resulting in DUI convictions, there is a legal minimum of 120 days in jail. Many jurisdictions now attempt to impose minimums of 6 months or more in jail. This is in addition to the fines, vehicle impoundment, ignition interlock device, and alcohol education program. There is a driver‘s license revocation of 3 years or longer, the actual length of which depends on how the matter is handled. 

On fourth DUI offenses, occurring within 10 years of the commission of 3 prior DUI offenses resulting in DUI convictions, the offense is a "wobbler". This means that it can be charged as either a misdemeanor, carrying up to 1 year in county jail, or a felony, carrying up to 3 years in state prison. Most jurisdictions charge the offenses as felonies, and seek state prison sentences. (This is in addition to the fines, license revocation, etc.)

The California DMV penalty schedule below reflects California's minimum driving under the influence consequences, and not indicative of possible drunk driving aggravations, or DUI penalty enhancements, such as chemical test refusal or DUI with minor passenger under 14 years of age in vehicle, etc. If there were special circumstances surrounding your DUI arrest, your punishment for driving under the influence could be more severe.

If you have any questions or would like to speak directly with an  DUI attorney regarding your charge of driving under the influence, please do not hesitate to call us at 800-455-2005; 707-367-3941; 559-228-2378. If you prefer, you may e-mail the firm, or fill out the form on the Contact Us page of this website, and a lawyer will be in touch with you as soon as possible.

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California DUI washout periods

The washout period for a DUI to count as a second offense is if the date of the first DUI arrest fell within ten years of the date of the second drunk driving offense. If less than ten years has elapsed between arrests, it will count as a prior.

Standard Alcohol Conditions: California Vehicle Code 23600

In addition to specific sentencing & penalties for each subsequent DUI offense itemized in the below penalty charts, the Standard Alcohol Conditions handed down by the court will also apply:

I.  You are not permitted to drive with any measurable amount of alcohol detectable in your blood

II.  You must submit to a drug and/or alcohol test at any time when requested by a peace officer

III. Refrain from committing any motor vehicle violations while under the influence of alcohol or drugs.

IV. Drive only if properly licensed and insured.

 California DUI Penalty & Fine Charts

FIRST DUI OFFENSE:

THIRD DUI OFFENSE:

FOURTH AND SUBSEQUENT DUI’S

DUI offenses occurring within 10 years of a prior felony DUI offense in any form, can also be charged as felonies, and typically are in most jurisdictions. In addition, any DUI offense in which someone is injured can be charged as a felony, and often are in most jurisdictions.

For more detailed information please feel free to CONTACTUS FOR A FREE CONSULTATION. Call us toll free anytime 707-367-3941; 559-228-2378 or 800-455-2005 or leave your information on the Contact page and someone will contact you shortly

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This website is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that laws change quickly, and visitors should always insure that legal information is accurate before relying on it. The above information applies the law of the State of California. The law in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting.

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