DRIVING UNDER THE INFLUENCE
Driving Under the Influence (DUI) investigations start in many ways. A driver may be stopped for a traffic infraction unrelated to DUI, such as speeding, and a DUI investigation follows. California drivers sometimes are pulled over for suspicion of DUI because of driving patterns such as weaving, driving too slowly, or rapid braking or acceleration. Some of the most common reasons police stop drivers, such as speeding, are not recognized as drunk driving patterns by the National Highway Traffic Safety Administration. Sometimes DUI investigations begin even though police had no valid legal reason to stop the driver.
To trigger a driving under the influence (DUI) investigation one of three things must happen: there must be an observed violation of the law, a driving pattern so suggestive of driving under the influence of alcohol or drugs so as to provide a reasonable suspicion that a crime has taken place, or a lawful roadblock. If none of these conditions are present, any evidence gathered during the traffic stop likely will be suppressed.
Driving Under the Influence prosecutions are typically driven by four different types of evidence: driving patterns, physical signs and symptoms, field sobriety test performance and chemical test results. The prosecutor's case is in trouble if there is an investigative failing in any of these four categories.
MISDEMEANOR VS. FELONY
The crime of Driving Under the Influence of alcohol and/or drugs (DUI) can be charged as either a misdemeanor or a felony. Driving Under the Influence is usually a misdemeanor. If there are aggravating circumstances, a DUI charge can become a felony. Aggravating circumstances can result from accidents and/or injuries, if minor children were present, a breath or blood sample refusal, extremely high alcohol levels, speeding or evading, if you are on probation, if it is your 4th DUI arrest, or if you had a prior felony DUI in the last 10 years. If proven true, aggravating circumstances will increase the punishment such as jail time, increased fines and/or loss of driving privileges. The law allows The Law Offices of Bruce Richland, PC to appear for our clients charged with misdemeanor DUI; you will not have to appear in court. This bonus is not available in a felony DUI.
The difference between misdemeanor and felony DUI rests primarily with the punishment that can be imposed upon conviction. Misdemeanors allow for a maximum of one year in county, or local, jail. Felonies expose a person to state prison. Most first-time DUI cases result in zero jail. If there are aggravating circumstances (see above), even if you are not charged with a felony, the prosecutor and/or the judge may want to send you to jail. If this is your 2nd DUI within 10 years, the law allows the prosecutor to insist upon at least 96 hours in jail. If this is your 3rd DUI within 10 years, the law allows the prosecutor ask for a minimum of 120 days in jail. A fourth DUI within 10 years can become a felony with a potential state prison sentence.
There are alternatives to having to go to jail. California is famous for its sentencing alternatives, for example:
Electronic Monitoring (House arrest): An ankle bracelet, with or without a sensor that detects alcohol, to monitor a person’s whereabouts. Electronic monitoring programs offer flexibility by sometimes allowing a person to leave the home for reasons including, work, alcohol education programs, shopping, religious services, etc.
Community Service: Community service is generally not physical labor, and is available, especially for people with physical limitations (and as an alternative to fines).
Cal Trans/Graffiti Removal: Physically demanding work, such as picking up trash on the freeway, or, removing graffiti. Some jurisdictions allow beach clean-up or neighborhood beautification.
Work Furlough: Work at your job during the day, and return to housing at night. Keep your job.
Sober Living Programs/Drug Rehabilitation: Alternative to jail for those dealing with alcohol or drug addiction. Time spent in program can count as time spent in jail.
Court fines can add up to more than $1,500, for your first DUI. A court ordered alcohol program will cost at least $500. The driver’s license reissuance fee is $125. Insurance companies use this as an excuse to increase their rates. There can be restitution payments ordered where property damage and/or physical injury has occurred. Many jurisdictions charge for policeman, fireman and paramedics who respond to the scene of a DUI and provide services. You need to challenge the charges to avoid this financial hardship.
Those under 21 have additional issues upon an arrest and conviction of DUI, and the consequences can be very tough. California has a zero tolerance for those under 21 years of age who drink and drive. Drivers under the age of 21 can suffer the same DUI charges as those over 21. An underage drinker who then drives faces an automatic license suspension. The DMV (Department of Motor Vehicles) will want to take away your license for 1 year. However, there are exceptions to this suspension based upon establishing a critical need to drive for school and/or work. These exceptions are very limited, but you need to present this to the judge in order to avoid losing your license.
YOUR DRIVING RECORD
The DMV looks back 10 years to determine if you have any prior driving under the influence, or related, charges. If so, there are increased, or enhanced, penalties. If you received a DUI in another state it can be used against you, as well. A DUI will put two points on your driving record. A Hit & Run DUI will add 5 points. If you receive 4 points in one year, 6 points in two years or 8 points in three years, the DMV will seek to suspend your license for at least 6 months. You need to fight to save your license.
SAVE YOUR LICENSE
After being arrested for DUI, in addition to the criminal charges you are facing, an administrative hearing with the Department of Motor Vehicles must be scheduled or the DMV will automatically suspend your license to drive 30 days later. This hearing must be requested within 10 days of that arrest. This will put stay, or hold, on any action against your driving privilege and you can drive, legally past the 30 day cut-off (assuming there are no other licensing issues outstanding). The hearing will allow you to fight the DMV and fight to save your license.
If you do nothing, the DMV will automatically suspend (i.e., take away) your license for 4 months on a 1st DUI. At the very least, The Law Offices of Bruce Richland, PC will arrange for a restricted license that will allow you to drive for work. If you prevail over the DMV, you can avoid any action against your license. On a 2nd DUI, the DMV will try to suspend your license for 1 year. On a 3rd DUI, the DMV wants to revoke your license. If you’re a charged with refusing or failing to complete a breath or blood test, the DMV wants to take away your license for a minimum of 1 year. If you don't fight them, you can't win.
If you do not reside in California you must take an approved course in California if you ever want to drive legally while there. The court can be satisfied with a program from another state but the DMV will insist you take the California version in order to drive while in California.
You must fight the DMV to save your license. If you don’t try, I won’t happen.
OUT OF STATE RESIDENTS
If you reside outside of California, but are charged with misdemeanor DUI while in the Golden State, you do not have to appear in court. The court does not look down upon you because you are not there, and they don’t praise you for being able to hire your own attorney. Be aware, however, that The Interstate Driver's License Compact allows the sharing of information between various states. If there isn't a timely request for a hearing entered with the Califonia DMV, the California DMV action will be reported to your home state and your license will be suspended there, even if you never intend to return to California. The law allows The Law Offices of Bruce Richland, PC to contact the court and DMV and appear for our clients charged with misdemeanor DUI.
Cases involving driving under the influence of drugs are prosecuted like DUI cases involving alcohol. The issue is whether the drug causes enough mental or physical impairment at the time of driving. It does not matter whether the drug is legal and/or lawfully prescribed. It is possible to be convicted of driving under the influence of any substance that causes a person to be unable to safely operate a motor vehicle. Unlike alcohol cases, there is no “automatic” limit involving drugs. The prosecutor will try to introduce evidence related to driving, objective symptoms, field sobriety tests and chemical test results, if not refused.
WHY FIGHT YOUR CASE
There are many reasons to fight your DUI case. Most of them are technical. Maybe the officer didn't have a good reason for stopping you. That can make the evidence collected, inadmissible. Perhaps the breath machine was miscalibrated or the person administering the test wasn't qualified, and your .09 is really a .07. Medically speaking, if the blood sample is fermented or clotted, it produces a falsely high reading.
When the BAC may be arguably supported, and reads .08 or higher at the police station, what does that prove about the level at the time of driving? It is not illegal to be at or above a .08 at the police station. They have to prove the level was above the legal limit at the time of driving. It is often the case that someone with a BAC above the legal limit at the time of testing was below the legal limit at the time of driving. This is due to inherent delay in the absorption, distribution, and elimination of alcohol in the human body. These issues can only be explored if you fight your case.
Why fight your case? There's your driver's license, professional license, car, job, family...
- When someone is arrested for diving under the influence of alcohol, they are offered a choice of a blood or breath test. If arrested for driving under the influence of drugs, they are offered a choice of a blood or urine test.
- Field sobriety tests are voluntary.
- Lawful substances can create artificaially high alcohol levels.
- Body temperature can affect the breath test results.
- Blood samples can ferment, and create artificially high alcohol readings.
- It takes one hour for each standard drink to be “burned off” or eliminated from your body.
- According to the breath machine manufacturer, there is a margin of error in breath-testing equipment.
- The arresting officer is required to continuously observe a person for fifteen minutes immediately prior to administering the breath test.