1. What is a good enough reason for the police to stop me to investigate whether or not I am driving under the influence?
"Probable cause" is the term most used to satisfy the court standard in this regard. One definition of probable cause is that the officer must have a "reasonable suspicion," based on something unusual that is actually observed about the way a person is driving. This is a VERY LOW standard and it can be satisfied by virtually anything which appears out of the ordinary and that might be a sign of a driver being under the influence. In addition, during holiday seasons, police officers typically set up field sobriety checkpoints where they routinely stop every driver who passes through the checkpoint on a random basis. These checkpoints do not require the officer to observe anything suspicious about a person before stopping and investigating someone, but they must satisfy other standards such as advance publicity and random nature of the person selected for the stop.
2. What other factors tend to influence whether an officer will make a DUI arrest?
Other factors include the officer's age and experience (younger officers are more likely to make the arrest than let it slide); the officer's personal use of alcohol is inversely related to the level of enforcement (the less the officer drinks the more likely the arrest); specialized training in DUI means more arrests; specialization in duty assignment (those assigned to traffic beat or night detail) are more likely to make the arrest; interestingly just being near the end of the duty shift makes it less likely for the arrest to be made (could be the extra work involved in making the arrest and report is unappealing to an officer at that time); bad weather conditions seem to increase arrests as the officers may be more aware of the increased need to drive with full facilities; as you may expect- the suspect's cooperation and positive attitude often contributes to less arrests; the suspect's race may have an impact as officers seem to arrest more when the suspect is not of their own race; the suspect's age also plays a role as the younger the suspect the more likely the arrest seems; lastly the suspect's sex apparently plays a role in that females are less likely to be arrested that males.
The fact alone that there was an accident involved is enough to merit harsher penalties in most courts. If you leave the scene of an accident prematurely, you could additionally be charged with "hit and run". If an injury resulted from the accident, you could be charged with a more serious "DUI Producing Injury" charge (leading to more jail time and a one year license suspension) or even felony DUI charges exposing you to state prison.
4. Will my case be charged as a felony or a misdemeanor?
Most first time DUI cases without injuries are misdemeanor cases (punishable by less than one year in jail). Factors that elevate DUI charges to felony level (which would expose you to state prison) are if an injury resulted, or if your record shows three or more alcohol related driving convictions within a 10 year period of time, or if you have a single felony conviction on your record within ten years. A high alcohol level by itself typically will not warrant felony charges being filed.
While it is true that, next to the chemical test, observation of your driving pattern is an important piece of evidence of the government, the lack thereof does not automatically spell dismissal of the case. In many situations, such as the officer coming upon a disabled vehicle or someone just sleeping in the car, the officer's first investigative task is to determine if the vehicle had been recently driven and if you drove it. Driving, and who was driving, can be shown by circumstantial as opposed to direct evidence. Some of the indicia of recent driving include a hood feeling warm to the touch, the location of the vehicle, statements by you or witnesses. That you were driving can be implied circumstantially by the seat adjustment, who owns the vehicle, possession of the keys, statements (easy to see why it can be important not to volunteer information). So, while lack of the observation of you driving can weaken a case for the prosecution, and in some cases prevent a prosecution, the importance should be analyzed on a case-by-case basis.
6. If the police ask me if I have been drinking, what should I say?
What you should not do is deny drinking. The police will most likely have already smelled the odor of an alcoholic beverage on your breath so to deny drinking will only label you a liar in the officer's mind. If the odor is coming from the car itself or your clothes then by all means explain what had happened (spilled drink, etc), but if the odor is from your breath saying you had a few drinks does not serve as an admission you are drunk and will explain the odor on your breath. Of course, another option is to respectfully decline to answer the question.
7. What are the police looking for when they are out searching for DUI drivers?
The National Highway Traffic Safety Administration (NHTSA), part of the Department of Transportation, has produced a guide for watching for possible drunk drivers. These are the 20 driving patterns NHTSA has published as "cues" officers look for when determining whether to stop a vehicle for possible DUI. The driving patterns are listed in descending order of probability
Turning with wide radius (65%)
Straddling center of lane marker (65%)
Appearing to be drunk, based upon posture, gestures, etc. (60%)
8. What do the police look for after they get me out of the car?
The most commonly observed behavior and appearance characteristics of someone under the influence are odor of alcohol on the breath, bloodshot and watery eyes, and slurred speech. These "big 3" traits are encountered so often that the typical police report prompts the officer to record his or her observations in these three specific areas. Many officers will report seeing the "big 3" out of habit whether or not they are actually observed.
Officially, the typical symptoms of intoxication taught to police officers are:
Flushed face
Red, watery, glassy and/or bloodshot eyes
Odor of alcohol on breath
Slurred speech
Fumbling with wallet trying to get license
Failure to comprehend the officer's questions
Staggering when exiting vehicle
Swaying/instability on feet
Combative, argumentative, jovial or other "inappropriate" attitude
9. Should I take field sobriety tests (FSTs) if I'm asked to by the police?
No. Although the police will never tell you, you do not have to take any of the FSTs. Indeed, the FSTs are commonly used to make the police case against you stronger. You may think you are doing well as you perform the tests however when you finally see the police report you will normally find the police failed you on each test for various reasons. Many times the officer's decision may seem quite picky. Be polite and tell the officer that you've been advised by your attorney, if you are ever stopped, to refuse the FSTs.
If you do decide to take the FSTs, you should be aware that there are about 20 different balance and coordination tests that qualify as FSTs. These tests range from the ones most people are aware of (walk the line, touch your nose, recite the alphabet), to more obscure tests such as stand on one leg, hand pat, and finger count. Most officers use 3 to 5 of these FSTs in their DUI investigations. There are only 3 FSTs that have been federally approved by the National Highway Traffic Safety Administration: One leg stand, Walk the line (heel to toe), and Horizontal Gaze Nystagmus.
Of all the above tests, the nystagmus test merits a closer look because of its quasi-scientific nature. The officer will ask you to follow a penlight, tip of a pencil or even the tip of his or her finger as the "target" is moved slowly from in a horizontal (left to right) line, you must keep your head still. The officer will try to estimate the angle at which he or she observes an involuntary bouncing or jerking of the eye as it tracks the target. If the bouncing or jerking is observed prior to 45 degrees it supposedly indicates a blood alcohol level of .05% (or greater BA the sooner it is observed).
However the nystagmus test is fraught with problems, not the least of which is the officer's inability to accurately estimate the angle of onset. Further, a number of people have nystagmus naturally, and others will display the symptom readily after an accident.
10. Why did I have to blow into a device on the street and still have to take a blood or breath test later?
More and more police agencies are following the lead of the Highway Patrol and using Preliminary Alcohol Screening Devices (PAS) as a final "FST" to obtain a blood alcohol sample on the street before the "official" test given at a later time. The officers are supposed to tell you the test is voluntary and if taken you still have to take the "official" blood or breath test at a later time. The only time you must take the PAS is if you are under 21 years old, otherwise you can refuse it like any other FST without fear of additional penalties. Note that although the PAS will give a blood alcohol reading, which will be duly noted in the police report (most judges are now allowing the PAS result into evidence at trial), the officers usually won't tell you the result on the street for fear you may then resist arrest, requiring force.
11. What about the different tests that the police can use to determine my blood alcohol?
There are three main ways the police use to determine your blood alcohol:
Drawing a sample of blood from your arm;
Obtaining a urine sample;
Obtaining a breath sample by having you blow into a machine called a breathalyzer/or intoxilizer.
You have the choice of which one of these three tests you will take, although recently the law has been changed to allow the urine test to be discontinued by the police because of the problems associated with it. The only time your ability to choose which test you take can legally be restricted is if one test is somehow unavailable, you must then take the other. The officer is required to tell you of your options however the decision as to which test you take is up to you. Quite often officers will try to pressure or browbeat a person into taking the blood test because this is the most accurate test for the prosecution to use against that person in court. You do not have the right to refuse to take any test. Legally, the officer has the right to hold you down and have a blood technician forcibly draw a blood sample from your veins. In practice this rarely happens except in serious cases where an accident is involved which caused death or serious bodily injury because the police do not want to risk legal action resulting from a force induced injury. Instead, if you refuse to take a test, your driver's license is automatically suspended for one year, unless you win at the DMV license suspension hearing. Also, if you decide to go to trial, the jury will be told that you refused to take the test and the judge will instruct the jury that they can consider your refusal as evidence that you knew you were guilty and did not want to take the test to provide the prosecution with strong evidence of your guilt.
12. When should I agree to take a chemical test and when should I not?
This is a tricky question. A lot of attorneys advise to always take the test to avoid the higher penalties. Others say never take the test to deny the government their most important piece of evidence. My thought is unless you think you are incredibly drunk (over three times the legal limit), take the test. If you believe you are approaching four times the legal limit refuse the test because of the additional penalties a judge may impose for such a high blood alcohol level. That said, since it would be next to impossible for you to accurately predict such a high blood alcohol level, your best bet is to take the test.
Remember, the mere fact of refusal may be introduced as evidence during trial to establish "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.
The police are supposed to offer only a blood or breath test, unless neither is available in which case a urine test is possible.
Analysis of a blood sample is generally the most accurate, while breath machines are susceptible to a number of problems. Therefore, if you are confident that you are sober, a blood sample is the wise choice, otherwise take the breath test. Remember, only with the blood test is a sample secured for later retesting at an independent laboratory if you or your attorney sees fit to do so.
14. What does a refusal of the breath or blood test mean?
As a first time offender a refusal of a the breath or blood test could result in a one year suspension of your drivers license and cause the imposition of higher fines and/or other penalties in the court case. There is no driving for that one year, not even any work related driving.
The reason for the higher penalties is many times the lack of a breath or blood test weakens the government's case. With no blood alcohol number to rely on the government can usually only proceed on the allegation of impairment as supported by the officer's observations. Of course, the judge or jury may believe the reason why you refused the breath or blood test was because you thought your drinking put you over the limit and didn't want to provide evidence to the police.
If this is your first DUI offense, and you have not been arrested before, and no one was injured in most counties, actual jail is not required. Most counties will agree to a jail alternative for first offense DUI such as weekend trash pick up (anywhere from 2 to 10 days). However, an experienced attorney may be able to keep you out of even the weekend duty and resolve your case in a favorable manner such as keeping the DUI off your record. If this is your second arrest within 10 years, the chances for jail dramatically increase, with some counties mandating actual jail time.
16. How can the police take my driving license if I haven't been convicted?
The issue of taking away someone's license without due process of law has been allowed by the courts because driving has been deemed a privilege, not a right. Further, the DMV proceedings take place in a civil venue not a criminal one. While this may seem like legal hairsplitting, this is the state of the law in California.
You are not entitled to an attorney until after you have performed the breath or blood test for the police. In California, the police can "detain" you and even ask you incriminating questions, without giving Miranda rights, all without counsel.
18. If I was drinking and driving, aren't I automatically guilty?
It is NOT against the law to drink and drive. It is illegal to drive while impaired so that you cannot drive with the caution of a sober person under like circumstances, and even then, the prosecution must prove these facts beyond a reasonable doubt to a unanimous panel of 12 people.
The police are usually biased in their viewpoints, however, luckily, their subjective opinion is not necessarily an accurate statement of fact and often subject to challenge and review. Significantly, studies have shown that even properly trained officers' subjective opinions of impairment and/or intoxication levels are typically no better than 50/50 in determining whether a person is "under the influence" through the use of normal "field sobriety tests." Keep in mind it is much more difficult to prove someone under the influence than "drunk," which is an easier task.
20. The bottom line is I was driving, I got arrested, and the test showed that I had been drinking - What can be done for me?
In many cases, the reason behind the stop of your car and reliability of the test results are susceptible to challenge in court. Police officers write hundreds of reports a week and often fail to include details which, when properly investigated, provide a legal defense for the stop and possible the administration of Field Sobriety Tests and blood or breath tests. Further, even if we cannot show there was a problem with the machine, it is often possible to show the results are not reliable and that errors and/or mistakes can be made, and therefore a reasonable doubt may exist as to the accuracy of the test result in a particular case.
21. Does the charge of drunk driving require you to be actually drunk?
No, the term "drunk driving" is inaccurate; the crime in actuality is driving under the influence.
It used to be that a drunk driving charge meant the person accused needed to be shown to be "drunk" in the way all of us commonly understand the word - intoxicated. But today, intoxication as we know it is not required for one to be guilty of drunk driving. During the last twenty-five years public outcry against the toll of injury and death which drinking drivers inflict has changed the laws concerning drunk driving radically making the crime easier for the prosecution to prove and punishments much more severe. So in criminal law, DUI now means operating a vehicle with considerably less alcohol in your system than what we customarily recognize as being enough to make a person drunk. As a matter of fact the legal standards of being under the influence only means "you can no longer operate a vehicle with the caution characteristic of the sober person under like or similar circumstances".
When the evidence "seems" overwhelming, is when you need an attorney dedicated to drunk driving (DUI) defense in order to make sure that every possible issue and defense is explored before you contemplate accepting an offer to settle, and then to minimize the penalties you face.
The bottom line is I was driving, I got arrested, and the test showed that I had been drinking - What can be done for me?
In many cases, the reason behind the stop of your car and reliability of the test results are susceptible to challenge in court. Police officers write hundreds of reports a week and often fail to include details which, when properly investigated, provide a legal defense for the stop and possible the administration of Field Sobriety Tests and blood or breath tests. Further, even if we cannot show there was a problem with the machine, it is often possible to show the results are not reliable and that errors and/or mistakes can be made, and therefore a reasonable doubt may exist as to the accuracy of the test result in a particular case.
23. Can my case be dismissed because I was not read my Miranda rights?
Your case may not be dismissed, however, any statements you made may not be used against you, which will weaken the government's case. More important than not being advised of your Miranda rights, is the officer's failure to advise that you have a choice between the breath and blood test. This failure may be a complete defense in getting your license back from the DMV.
24. Why should I choose a lawyer who practices only DUI law?
Just as lawyers have focused in certain areas of the law, certain lawyers have focused in extremely specialized areas, such as driving under the influence (DUI) defense. Because of the complex, technical, and scientific nature of drunk driving (DUI) cases, it is extremely important to have a lawyer who knows the very specific and detailed scientific and legal basis of the government's case (even better than the government's own attorneys do).
Significantly, there are defenses available to almost every set of facts in a DUI case, depending upon the specific type of evidence in each case. The trick is knowing what to look for and how to use those facts in creating a defense to the allegation of driving under the influence. A DUI attorney can examine the details of your case for problems such as, but not limited to: securing and reviewing maintenance and calibration records for the breath or blood machine you chose; having your blood sample independently analyzed; suppressing items of evidence; and obtaining expert opinions to help you.
25. What is the difference between a criminal defense lawyer and a DUI lawyer?
You would not go to a dermatologist or a urologist if you felt chest pains, even though both of the doctors received general training in ailments of the chest. Rather, you would go to a cardiologist. Unfortunately, many people facing serious criminal charges simply do not realize that like doctors, lawyers have different "specialties" and have specialized training and experience in those areas of the law.
Many lawyers handle criminal defense cases only for the excitement and novelty of the case and use civil cases, such as divorce, business transactions and wills, as the main source of their income. This criminal defense practice may be satisfactory if you are fighting a traffic ticket, but is not adequate if you are fighting for your freedom or your driver's license!
It is important to understand that driving under the influence (DUI), unlike theft crimes and other generic criminal offense are inherently complex legal matters rooted in very detailed scientific research and documentation which is not readily known by all lawyers.
A true DUI lawyer should have the experience of being a former DA and should have gone to jury trial at least 50 and hopefully closer to 100 times. The DUI lawyer should attend and teach state seminars on a regular basis, thus keeping up to date on all of the current issues in the field. Further, a DUI lawyer should be trained in the operation of breath testing equipment and field sobriety tests in the same manner as the officers arresting his/her clients.
The short answer is yes, you are allowed by the Constitution to represent yourself in a criminal proceeding. First the judge must question you, and if he or she deems you qualified, you can represent yourself. However, as the old adage says: those who represent themselves always have a fool for a client . The judge will advise you that you will be up against an experienced prosecutor and will be getting no additional help.
27. What are the potential defenses in a DUI case?
Potential defenses in a drunk driving case are almost limitless due to the complexities of the offense. However, most can be broken down into the following:
Driving: the prosecution must prove the defendant was driving at the time the offense was committed . If there are no witnesses to your driving, the prosecution must prove this essential fact using both direct and circumstantial evidence.
Probable Cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest.
Statements/Miranda: Incriminating statements may be suppressed if warnings were not given during a custodial interrogation.
Implied consent warnings: If the officer did not advise you of the consequences of refusing to take a blood or breath test (a one year suspension of your license among other things), or gave it incorrectly, this may be a defense.
"Under the influence": The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, the subjective (and predisposed) nature of what the officer considers as "failing".
Blood-alcohol concentration, including "the rising blood alcohol defense." (See below for definition). Specific problems with the blood alcohol testing equipment include:
BREATH TESTS: The problem with the breath machine is that it assumes a person is of "average" physiology and metabolism, when in fact most people vary widely from that norm. As such, most breath machines that register many chemical compounds found on the human breath assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood. However, in actuality, this ratio varies widely from person to person (and within a person from one moment to another). The machine actually measures the methyl group in the alcohol compound, and not specifically alcohol. Of this methyl group there are hundreds if not thousands of compounds that also contain this group, of which hundreds have been well documented on human breath Other problems include burping within 15 minutes of testing, which can put the alcohol from the stomach into the mouth producing a false high reading. Radio frequency interference can also result in inaccurate readings. As far as testing during the absorptive phase, the blood, or breath test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 to 90 minutes complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can often cause inaccurately high test results.
BLOOD TESTS: The blood machine (gas chromatograph) is considered much more accurate and reliable than the breath machine. Still there are well-known problems with fermentation of the sample (inadequate preservative in the test tube and/or lack of refrigeration), coagulation problems, lack of sterilization, contamination by using an alcohol-based sterilization agent, and problems with the chain of custody of the blood sample.
URINE TESTS: There were so many documented problems with the urine test that it was officially discontinued in 2000. Nowadays, the only time a urine test is given is if the blood and breath tests are both unavailable, or drugs are suspected in the defendant's system. To produce a valid urine sample there should be a test void of the bladder and a sample produced some 20 minutes later that is actually tested. There are other problems associated with the urine test, however since it is rarely encountered those will not be examined in this website.
28. How can alcohol present in the mouth cause problems for the breath machine?
Mouth alcohol is any alcohol remaining in the mouth, which can cause a falsely high reading on a breath machine. If you burp, hiccup, vomit, or have a reflux condition, alcohol from your stomach can be brought up in to the mouth. Also if you have dental problems (weak gums, bridges, caps) food can become trapped which can then absorb alcohol thus producing a false high on the breath machine. Finally, breath mints, fresheners, mouthwash, cough syrups and cold medications have alcohol in them, which can adversely affect the breath machine.
Rising blood alcohol (BA) is a scientific analysis of the rate at which alcohol is absorbed and distributed by the body. Basically, if you have one drink and your blood alcohol is tested at various intervals, you will see that over a period of time the alleged BA will rise, eventually level off and after more time decrease as the natural result of elimination. So, if your have one drink at 1:00 a.m., get pulled over at 1:05 a.m., and get tested at 2:00 a.m., your blood alcohol at the time you are tested will likely be significantly higher than it was at the time you were driving. You see, it takes time for the alcohol in your stomach to be absorbed into your system (the more greasy or fatty food in your stomach the slower the alcohol is absorbed into your blood- anywhere from 30 minutes to 3 hours) so that it eventually will affect your ability to drive. If your last drink is "for the road" (recent to your being stopped by the police), your over-the-limit blood alcohol test result may be higher than your actual blood alcohol level at the time you were driving. The beauty of the rising blood level defense is that you are not saying the machine was working improperly or the result was wrong, just that at the time you were driving your blood alcohol level was not yet over the legal limit.
30. Can medical issues present a defense against DUI?
Absolutely. There are many medical issues (such as diabetes, gastric bypass operations, gastric reflux conditions, a number of pre-existing ailments that require medication, eyesight problems, etc.) that can be used to help obtain a dismissal or reduction of charges. In many cases, medication actually exaggerates the effects of alcohol. These conditions usually require a letter and/or medical records from your doctor explaining the severity and duration of the medical condition.
Most counties increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within 10 years of the current offense. Other common enhancements include:
A child (14 or under) was in the car at the time.
The defendant was traveling 20 or 30 miles over the speed limit at the time (this mandates a minimum 60 day jail term).
The blood-alcohol concentration was over .20%. (Although many judges add penalties if the level gets over .14% or .15%).
The defendant refused to submit to a chemical test (makes you subject to a one-year suspension-2 years if this is your second offense within 10 years-and no right to drive to work with this suspension).
There was an accident involving property damage or injury (with property damage the court becomes concerned with restitution or making sure the victims have been compensated)
The defendant was under 21 ("zero tolerance" laws commonly require a much lower blood - alcohol level, and impose a year long license suspension).
Personal injury caused by drunk driving can elevate the offense to a felony.
A death can trigger manslaughter or even, in California, murder charges.
32. What are the penalties for "drunk driving" in California?
CALIFORNIA CRIMINAL AND DEPARTMENT OF MOTOR VEHICLE PENALTIES FOR DRIVING UNDER THE INFLUENCE CRIMINAL SENTENCES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS (VEHICLE CODE SECTION 23152)
OFFENSE
MINIMUM AND MAXIMUM SENTENCES WHEN PROBATION IS GRANTED (3 TO 5 YEARS PROBATION TERM)
MINIMUM AND MAXIMUM SENTENCES WITHOUT PROBATION
FIRST Offense within 7 years
Two options, both requiring attendance at an alcohol/drug program, a base fine of $390 to $1000, plus either: (A) 48 hours to 6 months in jail; or (B) a 90-day license restriction. Under option (A), the Court may also suspend your license for 6 months. Under either option, your license shall be suspended for 6 months if the offense occurred in a vehicle which requires a class 1, 2, A, or B license.
96 hours to 6 months in jail, $390 to $1000 base fine, and a 6-month license suspension.
SECOND Offense within 7 years
Two options, both carrying a base fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail and an 18-month license suspension; or (B) 48 hours to 1 year in jail, an 18-month or 30-month alcohol/drug program, and a license restriction allowing driving only for work and alcohol/drug program for the duration of the program. However, your license shall be suspended for 18 months if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. Installation of interlocking device for up to 3 years.
90 days to 1 year in jail, $390 to $1000 base fine, and an 18-month license suspension.
THIRD Offense within 7 years
120 days to 1 year in jail, $390 to $1000 base fine, a 3-year license revocation, and an 18-month alcohol/drug program if you have not completed one before.
120 days to 1 year in jail, $390 to $1000 base fine, and a 3-year license revocation.
FOURTH or Subsequent Offense within 7 years
180 days to 1 year in jail, $390 to $1000 base fine, a 4-year license revocation, and an 18-month alcohol/drug program if you have not completed one before.
16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail, $390 to $1000 base fine, and a 4-year license revocation.
DMV PENALTIES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS
FIRST OFFENSE
.08 or greater Refusal
4 month suspension (possible restricted license for work purposes) 1 year suspension
SECOND OFFENSE Within 7 years
.08 or greater Refusal
1-year suspension, followed by 1-year restriction. Restricted work license available after a 90 day suspension with the installation of an ignition interlock device on any vehicle you own or possess. 2 year suspension
33. What is the worst that can happen to me in court and what is the realistic outcome?
If you are convicted of a first offense DUI, the worst case will involve a fine of approximately $3,000.00, a maximum of six (6) months in jail and a 3 to 6 month alcohol/DUI program and a 4-month license suspension. Additional penalties may include the installation of the interlock device (this device is installed onto you steering column and you must breathe into it, alcohol free, to start your car), the impounding and possible sale of your car, alcoholics anonymous meetings, and community service.
However a "typical" first offense DUI results in fines substantially less than $2000, three to five years of informal probation (no reporting necessary), a 90 day DUI/alcohol school (two hours a week in the evenings or weekends), a license restriction so you can drive for work purposes, and a jail alternative of two to twenty days (like picking up trash on the weekends).
34. Do most DUI cases that settle without having to go to trial include probation?
Unless you want to serve 6 months in jail on a first offense, you will be put on probation (usually court probation which is informal unsupervised probation) and must then fulfill certain requirements ordered by the court. One of those requirements is to enroll and successfully complete a drinking driver program, another is to pay a fine, also to do some sort of jail or jail substitute like weekend work program, finally included is a license suspension or restriction among other conditions (for instance sometimes AA meeting attendance, or impounding your vehicle for a period of time).
35. Can I legally have one drink and drive during my probation?
One common requirement of your probation is to drive with NO measurable amount of alcohol. In most counties they will give you a couple drink leeway, which means that you can legally drive with a blood alcohol level of up to 0.04 (half the legal limit if you are over 21 and not on probation). Remember individual courts may indicate that you may not drive with any alcohol in your system (some will order you to abstain from any alcohol, and stay out of establishments where alcohol is the chief commodity for sale), AND THEY MEAN IT.
36. What is the worst that can happen to my drivers license?
Consequences to your license vary with regard to whether you are charged with a first offense, second offense, etc. For a first time offense a six month suspension may be imposed, however if there was an injury involved, or a refusal to take the "official" blood or breath test, or a commercial license was involved, a one year suspension may be imposed. For a second offense, within ten years, the penalties range from a one year suspension to a lifetime revocation if a commercial license is involved. a restricted work license is available after a 90 day suspension with the installation of an ignition interlock device on any vehicle you own or possess. It is important to realize that, in most cases, there are two DMV actions working at the same time. The first is the Administrative Per Se (APS) which is the action that follows the police taking your drivers license and giving you a 30-day temporary (pink) license. The second is the "mandatory" action after the court notifies the DMV following a conviction. Unless you are able to avoid a conviction, either on the court or the DMV level, the license will be suspended. The question is for low long and whether a restricted (work license) is available. However, often the APS and mandatory suspensions can be minimized by running them concurrently.
38. What if I have an out-of-state drivers license?
If you have an out-of-state license, you still need to protect your right to drive in California, as well as your right to drive in your home state. If you are stopped in California with an out-of-state license, the arresting agency should not physically take your license. You will, however, be issued a pink 8" X 11" paper, which is your temporary right to drive for 30 days in California. To avoid suspension, you must request a hearing within 10 days, which is the same procedure as if you had a California license. However, most states belong to one of two Interstate Compacts in which DMV information is shared across state lines. Because of the Compact agreement, if a resident of one state gets convicted of any alcohol-related driving offenses in another state, the driver's home state will be advised. The type of action that the driver's home state will take will vary from state to state. Only Michigan, Wisconsin, Georgia, Tennessee and Maine do not currently belong to either Interstate Compact, however there are many cases where even these states have suspended or restricted an out-of-state drivers license based on the California suspension. If you have a prior conviction, many times the data is never imported to your California DMV record or, even if it is, the codes may not be recognized. The bottom line is often one may be able to keep the out-of-state license or not have a prior conviction recognized by the home state. If your home state does restrict or suspend your driving, your license will most likely not be reinstated until all suspensions and restrictions have cleared in California.
40. What happens if I drive on a suspended license?
If you drive on a suspended license you will be in violation of VC14601, a misdemeanor, which is punishable by a period of time in jail (or jail substitute) and a base fine of up to $1000 (not including penalties and assessments). Your car will also be impounded for up to 30 days for a first offense (this impound is imposed on the day of your arrest and is completed 30 days later regardless of your eventual guilt or innocence of the offense).
41. Can I get a restricted (work) license from the DMV?
If you are a first time offender and can show the DMV proof of insurance (the only proof of insurance the DMV will accept is the DMV's own SR-22 form) and proof of enrollment in an appropriate alcohol school, you may be entitled to a restricted license for 5-10 months, depending on the case, (which would let you drive to, from and during work and to and from the alcohol school), AFTER serving a term of suspension (usually 30 days). For second offenses, within ten years of another conviction, there is no driving for one year, except for medical emergencies. However a restricted work license is available after a 90 day suspension with the installation of an ignition interlock on any vehicle you own or possess.
Depending on your case and how it proceeds, the DMV may require you to file a SR-22 insurance form to avoid a suspension. The SR-22 is the DMV's own form and they will accept no other proof of insurance. When you request the SR-22 from your insurance company, a number of things will happen. It usually is the first notification to the insurance company that you have a DUI charge pending. Next, they will electronically (by e-mail) send the SR-22 to the DMV. Finally, they will notify DMV if you cancel coverage within three years and DMV will implement a suspension.
43. Does obtaining an SR-22 lead to more expensive insurance rates?
Surprisingly, not always like you might think. We refer clients (with NO kickbacks) to an insurance agent who has done research to prove to the insurance underwriters that those arrested and/or convicted of DUI actually drive safer than those without such a mark on their record, likely because they are scared to death about another police encounter. In light of his research, this insurance agent is consistently able to obtain low SR-22 rates for many of my clients, sometimes even lower than their pre-DUI rate.
If you want a license in California you will be required to show the DMV proof of financial responsibility (SR-22) whether you own a car or not. If you do not own a car you will be required to purchase a "non-owners" insurance policy. This type of policy is usually less expensive than the typical car insurance where you actually own the vehicle.
No, not necessarily. Some do, some don't. The insurance company's decision many times depends on factors, such as how long you have been with your company, what claims you have made and what your driving record is. If you are dropped you will be forced to "shop around" for a new policy. Most likely you will need to contact a "high risk" driver insurance company, and probably pay higher premiums.
Most companies will charge you a substantial increase in rates due to a DUI arrest/conviction. Again, this increase is dependent on your driving record, how long you have been with your company and type of coverage. On an average insurance rates increase anywhere from 25% to 100% for a period of three years (it could be longer) because of a DUI.
47. Do I have to show the DMV proof of insurance for three years?
Yes. Once you file an SR-22 with the DMV it stays on file for three years after the period of your suspension unless the policy is cancelled or stopped for any reason. If the insurance coverage is discontinued for any reason in that time period both the court and DMV will be notified.
An interlock device is a breath testing device that is wired to your vehicle's ignition. It has a mouthpiece and requires an alcohol free breath sample before the engine will start. The interlock then requires "rolling" breath samples (testing while the vehicle is operational) to ensure the subject is not drinking while driving. If the device detects a measurable amount of alcohol during a "rolling" test, the vehicle will not shut off for safety reasons, but will instead report the use of alcohol directly to the Judge and/or probation officer (it also reports any tampering). The interlock device is discretionary by the court for first time DUI offenses (the higher the blood alcohol level, or more aggravated the facts, the more likely) and mandatory on all second time offenses. The fees to install an interlock (and maintain calibration on a regular schedule) may reach thousands of dollars. One way to avoid the interlock is to divest oneself of ownership of any registered vehicles (to someone not living in the same household) and submit proof to the Court along with a request for probation modification. Hardship and employment exceptions to installing the interlock device are potentially available as well.
SCRAM® (Secure Continuous Remote Alcohol Monitor) is a tool that helps courts and agencies continuously monitor alcohol offenders to ensure they are not ingesting alcohol. It is a waterproof bracelet that is worn 24/7 around the ankle, typically from 30 to 120 days, and detects any alcohol in the blood system through the skin. The SCRAM device will report either alcohol violations or tampering directly to the court. The device is discretionary by the court and is often used for high blood alcohol cases (over .15%), or with those who have a previous record of alcohol related convictions. Many courts will use the SCRAM device to let defendants remain out of custody while their case is pending resolution, or after conviction as a condition for home detention in lieu of jail time.
50. Will a DUI conviction affect my ability to travel, especially internationally?
Although my office does not practice immigration law, thus the following information should be confirmed with an immigration attorney, my experience with clients who have a first time DUI conviction (with no injuries involved) is that the conviction does not typically hinder traveling across US borders. If you are compliant with your probation terms and there are no warrants for your arrest, there generally will be little, if any, delays. Entry into Canada is the exception as the Canadian border control takes a particularly harsh stand against DUI (which they consider felony conduct) posing potential travel problems.
The content of this website is for informational purposes only and is not to be relied upon as legal advice. Viewing this website does not create an attorney-client relationship with P. David Wool. Legal representation will only be established upon receipt of a legal services agreement and full compliance with its terms. The information contained on this website is based on current California state law only and can change over time. Laws vary from state to state. Do not rely upon the content of this website as legal advice. Contact a lawyer at once if you have a legal matter.
