DUI - DWI - DRUGS
CALIFORNIA CRIMINAL AND DEPARTMENT OF MOTOR VEHICLE PENALTIES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS (VEHICLE CODE SECTION 23152)Driving Under the Influence of Drugs VC 23152(a)
It is illegal to drive under the influence of any drug including many prescription medications. The best way to avoid a DUI is to not take any drugs or drink any alcohol and drive even if you've had a small amount and you are not impaired.Being arrested however for A DUI does not automatically result in a conviction or loss of your driver's license in California. Here are some things that you should know.
Punishments. The statutory punishment for a DUI conviction can be very severe. All of the penalties listed below are within the Court’s discretion:
These penalties do not include any suspension that may be carried out independently by the DMV.
FIRST OFFENSE within 10 Years
96 hours to 6 months in jail, $390 to $1000 fine, and a 6 month license suspension. Attendance at a 3 month, 6 month or 9 month alcohol/drug program, a fine of $390 to $1000, plus either: (A) 48 hours to 6 months in jail; or (B) for arrests prior to September 20, 2005, 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. As a result of the court conviction, the DMV will suspend your license for 6 months, but a restricted license may be available. Probation of up to 5 Years.SEPARATE DMV PENALTIES: .08 or greater
4 month suspension Refusal: 1 year suspension
SECOND OFFENSE within 10 years
90 days to 1 year in jail, $390 to $1000 fine, and a 2 year license suspension. A fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail and a 2 year license suspension; or (B) 96 hours to 1 year in jail, an 18-month or 30-month alcohol/drug program, and for arrests prior to September 20, 2005, 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 2 years 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. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be available after the first year of suspension. Probation of up to 5 years .SEPARATE DMV PENALTIES: .08 or greater 1 year suspension Refusal: 2 year revocation
THIRD OFFENSE within 10 years
120 days to 1 year in jail, $390 to $1000 fine, and a 3-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years .SEPARATE DMV PENALTIES: .08 or greater 3 year revocation Refusal: 3 year revocation
FOURTH or Subsequent offense within 10 years
16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; $390 to $1000 fine, and a 4-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years or parole of up to 3 years.SEPARATE DMV PENALTIES: .08 or greater 4 year revocation Refusal: 4 year revocation
DUI IMPAIRMENT REPORT
http://www.canorml.org/healthfacts/DUICreport.2005.pdfDEFENSES TO THE DUI ALLEGATION - There are many potential defenses to a DUI charge given the complexities of the alleged offense: CALL My offices for a free consultation 1-800-658-1500 Probable Cause for the stop- The evidence will be suppressed if the officer did not have legal cause to stop, detain and arrest the driver.
MIRANDA WARNINGS - Incriminating statements may be suppressed if warnings were not given at the appropriate time. Implied consent warnings - If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly. This may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
CHEMICAL TEST VALIDITY - There are regulations for blood-alcohol testing . The prosecution must prove that the blood or breath test complied with state requirements as to calibration, maintenance, etc. “Rising BAC defense"? - It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood or breath test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below."Mouth alcohol" vs. “Breath alcohol” ? "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
Mistakes To Avoid
Mistake: Not retaining an attorney to represent you. The number of people arrested and convicted for "Driving Under the influence" increases everyday. In fact it is very likely that you already know someone who has been convicted of a DUI. It is also very likely that they may tell you that getting an attorney didn't help them because they still got convicted and therefore you shouldn't get one - the public defender can just "plead you out." This is fine if you are willing to automatically give up your license for months, spend extra time (unnecessary) going to classes; maybe spend time in jail, and finally maybe picking up trash on the side of the road. A majority of this can often times be avoided by retaining an attorney, any attorney, who can challenge the District Attorney and who can present the weaknesses in their case - most cases have problems that the District Attorney does not wan to reveal.Mistake: Retaining the Cheapest attorney you can find.
A large number of attorneys will often send you mail that offers low rates for representing you - in fact it is not uncommon to see offers like "starting at $499.00." The problem with this kind of deal is that the price for services is not set. You can tell this because they use the word "starting." If that is the starting price then how much total will you spend - this is something they won't tell you unless you come in and meet them in their office. You would be better off to retain an attorney who is going to quote you a price that is constant and which includes specific items of work to be done - like a DMV hearing, negotiating the case with the DA, reviewing all discovery and including or excluding a jury trial. High quality, aggressive representation can be found for reasonable flat fees.Mistake: Not taking an arrest seriously
Many people do not realize the potential for problems when they ignore an arrest and the subsequent court dates. Ignoring a case and the court will result in the court issuing a warrant for your arrest. If this happens you could be placed into jail at anytime - without warning and because you failed to appear in front of the Judge on your own he will probably not be to willing to let you out until you plead guilty - which means you would have given up any opportunity to challenge the case against you.Mistake: Not retaining an attorney with 10 days of the date of arrest.
It is easiest to explain this by using a recent case as an example. A young gentleman was arrested for a DUI and did not retain an attorney nor did he set a DMV hearing within 10 days of the date of his arrest. As a result his license was suspended 30 days after the date of the arrest but before his first court date. This young man, after talking to several people, decided he should probably hire an attorney which he did before his court date. After his first court date he was then arrested for another DUI and driving on suspended license. As it turns out the case against the DMV could have easily been won (his first DUI was reduced to "3 one pointers") and as a result he would not have been facing a Driving on a suspended license charge.Challenging A DUI
There are several things that can be done to when challenging a DUI. The first of which is to set a DMV hearing within 10 days of the date of your arrest otherwise nothing can be done to save your license. Some cases rely on breath machine results while others rely on the results of a blood test. If you took a breath test you must realize that the "BA" reading could be inaccurate - very inaccurate. The machine is simply that, a machine. Have you ever heard the phrase "garbage in garbage out." If the operator was not properly trained or the machine was not properly maintained then you may have a basis to fight.If you blood was drawn in medically approved manner then it should be tested by an independent laboratory to see what result that independent lab derives. Many times the independent lab results vary widely from the results gathered by the government in their effort to convict you. Did the officer correctly perform the Field Sobriety Tests? Were you contacted by the police based on reasonable cause to suspect you were violating the law? Theses questions and many more can be asked by an attorney on your behalf and can sometimes lead to outright dismissal of cases. That is not to say that it will happen in your case, but how are you to know if you don't hire an attorney?
WHAT ARE THE POLICE LOOKING FOR IN YOUR DRIVING? Lane straddling, wide turning radius, weaving, swerving, drifting, almost striking object or vehicle, driving on other than designated highway, speeding or below the limit, stopping without cause in traffic lane, following too closely, braking erratically, signaling inconsistent with driving actions, slow response to traffic signals, accelerating or decelerating rapidly, headlights not being used.
YOU ARE NOW PULLED OVER AND DETAINED: WHAT ARE THE SYMPTOMS OF INTOXICATION THE POLICE ARE LOOKING FOR?
- Odor of alcohol on breath
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer's questions
- Combative, argumentative, jovial or other "inappropriate" attitude
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
These consist of a battery of three tests
- Heel-to-Toe (also referred to as "walk-and-turn")
- One-Leg Stand
- Horizontal Gaze Nystagmus - The HGN test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical term for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go. This test is not accepted by the medical community however, it continues to be widely used by law enforcement.
After a DUI arrest, the DMV must be contacted within 10 days to stop the suspension of your license from going into effect. You must request a hearing. It is imperative that once arrested for a DUI, you hire an experienced DUI lawyer. CALL: 1-800-658-1500 24/7 or collect at 310-888-8700.
