The DMV APS process is tough on driver’s accused of DUI. In most cases, this is warranted, given the serious nature of DUI cases. Sometimes, however, the DMV goes beyond being hard on DUI drivers and crosses the line by making improper rulings or denying a driver rights that the law affords to the accused.
If the DMV makes an improper ruling at an APS hearing, the driver effected by that hearing has two avenues of appeal: the internal DMV process and a Writ of Mandate from the Superior Court.
Internal DMV Appeal:
The internal DMV Appeal process must be initiated within a short period of time following the adverse APS decision. It involves a review of the documents presented at the hearing, and a review of the audio recording of the proceedings. The DMV sends the files to its headquarters in Sacramento, including a copy of the CD that contains the recording of what was said at the hearing. The internal DMV appeal review will only look at the evidence presented in the APS hearing. No additional evidence, statements or opinions will be looked at. The review is looking for legal or factual mistakes that the hearing officer made. An example of a factual mistake would be the hearing officer making a determination that the driver’s blood alcohol concentration was at or above 0.08% at the time of driving. If the hearing officer is mistaken about a critical fact like this, the internal DMV appeal should catch it and correct the error. An example of a legal error is: the hearing officer applies an improper law or rule to the driver’s case. Again, the internal DMV appeal process is designed to catch this.
Writ of Mandate: Court Appeal
If the internal DMV Appeal doesn’t work, drivers can then seek relief in the appropriate Superior Court in the county they currently reside in. The process starts with the filing of a “petition” for the writ, which is a essentially a court order that will over turn the DMV’s adverse ruling. Once the petition is filed, the court will set a trial setting schedule, where the parties meet and confer to discuss possible settlement and to set the calander for the hearings that involve the writ before the court. An “opening brief” is the next document that the driver would file: it will lay out the legal and factual arguments the driver wants the writ court to review. The DMV is represented by the office of the California Attorney General, and is tasked with filing an “opposition” brief that attacks the arguments laid out in the driver’s petition and opening brief. The driver is allowed to file a “reply” which is meant to answer the issues raised in the DMV’s opposition brief.
The writ court will then review the papers and issue a ruling. If the driver loses, they can appeal to an appellate court to review the decision of the writ court. This step is the step of last resort and is very expensive and time consuming.
DMV appeal reference links:
Writ of Mandate: A writ of mandate is a fairly complex legal tool that involves a higher court ordering a lower court or administrative body to do a particular thing, or un-do a particular thing. In the context of APS rulings, the writ that the driver would seek would be an order to the DMV administrative body to un-do a driver’s license suspension. DMV internal appeal: The DMV internal appeal is often the first avenue of attack when fighting an adverse DMV decision
Knowing what to do during a DUI stop can mean the difference between going home that night, or going to jail and facing criminal charges. Here are some tips to ensure you have the best chances of survival if you are stopped by law enforcement.
What you’re trying to accomplish:
Your goal is simple: go home without going to jail. If you act in the appropriate manner, and know what to say, you can increase your chances of going home instead of going to jail. If being taken to the station is inevitable (sometimes cops are jerks), your next steps involve invoking as many rights as you have so as to not make the situation any worse. You are required to be cooperative with law enforcement and not interfere with their duties. This DOES NOT mean you have to waive any rights you have. Here are some important rights you have during any DUI stop:
-You have the right to remain silent
You are required to give law enforcement your driver’s license, and to furnish them with proof of valid insurance during traffic stops. You are not required to answer any other questions. Do not discuss where you’re going to, where you’re coming from, if you have had anything to drink, or anything else. Be polite but firm. Do not answer questions when you have the right to remain silent.
-You DO NOT have to perform the “field sobriety tests”
Field sobriety tests are optional, not mandatory. You do not have to follow the officer’s finger as he wavies it in front of your face. You do not have to walk on his imaginary line or stand on one leg. The road-side field sobriety tests are not mandatory and will not help you in any way. Officers will watch your performance and look for any little, minor, deviation and exaggerate it to make you look impaired.
As an example, police reports often say “suspect was unable to stand for the full 30 seconds on one leg. Based on this, I formed the opinion that the suspect was too impaired to safely drive” or similar descriptions, even if driver who performed the test successfully for 28 seconds. The officer who is reviewing your performance during the test isn’t going to give you the benefit of the doubt, and he isn’t going to overlook minor discrepancies or deficiencies. Don’t walk into this trap. Don’t do any field sobriety tests. This means:
-No HGN (where you follow the officer’s finger)
-No Walk the Line
-No One Leg Stand
-You only have to give them the breath test or blood test at the station
DO NOT blow into the PAS screening device at the side of the road. DON’T. It is only going to be used against you. You are only required to submit a PAS sample for law enforcement if you are on DUI probation. Otherwise, you don’t have to perform the PAS test. You will, however, have to blow into their Breathalyzer at the police station, if you are arrested.
Blood or Breath?
Each test has its pro’s and con’s.
If you were arrested for a marijuana DUI in Los Angeles, a DUI lawyer that is knowledgeable in these cases is the first person you need to speak with. DUI cases involve legal and scientific defenses that can be used to beat the charges. Marijuana DUI cases have similar legal defenses to the more typical “alcohol” related DUI cases:
-Attacks on Police Procedures
-Attacks on evidence (foundation, hearsay, authentication)
-Attacks because of Probable Cause Issues(This link also has information on alcohol related scientific defenses.)
The scientific defenses in DUI cases, however, differ from alcohol DUI defenses. First and foremost, there is no “legal limit” with respect to how much THC (the active ingredient in marijuana) is in the driver’s blood. With alcohol related DUI’s, if the driver’s blood alcohol level is at or above 0.08% alcohol content, the driver is by law guilty of CVC23152 (b), the common “Drunk Driving” law that is used to prosecute those drivers.
With Marijuana, there is no legal limit. Drivers in marijuana DUI cases are typically charged under CVC 23152(a) or CVC 23152(f). To attack charges under CVC 23152(a), defense lawyers will look at scientific defenses as well.
-was there really “bad” driving vs. a driver momentarily swerving to avoid a pot hole or a similar type of situation
-was there observed symptoms of drug impairment (red eyes, issues with eye “nystagmus” (an involuntary twitching of the eye caused by drug use)
-Scientific attacks on the blood testing (if it was done in this case) challenging labaratory equipment, personnel training and testing protocols
For more information, speak with an experienced Marijuana DUI Lawyer. Or check out this page about: Marijuana DUI.
DMV hearings are an important part of any DUI case in the state of California. Starting in 1990, the California DMV was given special authority by the state’s legislature to remove DUI drivers from California’s roads. The goal was and is to reduce the number of accidents caused by impaired drivers on California’s roads.
Administrative Per Se: the “Legal Limit” and the DMV.
The DMV hearing protocol was created from an initiative to allow the DMV to suspend driver’s licenses based on the driver having a blood alcohol content above 0.08%. “Per Se” means “in itself” in legal parlance. For DMV hearings, the concept works like this: if someone is shown to have a blood alcohol level at or above 0.08%, in itself that shows impairment to a dangerous level. If the person was caught driving with alcohol in their system at a dangerous level, the DMV should be allowed to take them off of the road. This was the genesis of California’s DMV APS hearing process.
Before the APS hearing process, the California courts were responsible for taking drunk drivers off of the road. Activist groups that fight against DUIs were concerned that cases that go to court can drag out for a long time, leading to a potentially dangerous situation where drunk drivers were allowed to continue to drive on California’s roads while their case dragged on. The APS hearing process dramatically accelerated the suspension of DUI drivers’ licenses.
The nuts and bolts of a DMV hearing for a DUI case:
The DMV APS hearing process starts when the officer arrests the driver. The driver will be asked to submit a chemical sample of their blood or breath for analysis. If the sample is above 0.08%, the driver’s case will be referred to the DMV for their APS process.
The driver will be given a pink document (With “APS” in the upper corner) that describes the next steps for the driver. (If the driver refuses to provide a chemical sample, a “Chemical Test Refusal” case is initiated, with much more harsh treatment from the DMV.
Scheduling and Attending the Hearing:
The driver has only 10 days from the date of the arrest to schedule their hearing. If the driver fails to schedule a hearing, the DMV will automatically suspend the driver’s license without a hearing. It is advisable for the driver to request an in person hearing as opposed to a telephonic hearing.
The Penalties for a 1st Offense DUI in California:
Jail time is a real possibility in DUI cases. Although its rare for first time DUI offenders to be given jail, it can happen in bad cases. For 2nd or 3rd DUI’s, jail time is mandatory if the driver is convicted of violating CVC 23152 or CVC 23153. The amount of DUI jail time given depends on the nature of the DUI case: The more serious the case, the more likely jail-time will be imposed. For more serious cases, such as those involving injuries, state prison terms ranging from 2 years to life in prison (for “Watson” type cases that involve a fatal accident). To avoid jail time, a DUI attorney can help you get home confinement/electronic monitoring or other alternatives to jail time.
In stead of jail, it is common for 1st offense DUI in California cases to involve probation. Probation is an alternative to jail time that a court imposes, where the defendant is warned that if they violate any other laws during the probation period, they risk jail time for their conviction. In Los Angeles county DUI’s, the Los Angeles Sheriff’s Department Probation Unit can supervise probationers.
A DUI case involves large fines that vary depending upon the county where the DUI took place. A DUI lawyer will know how reduce the fines depending on the facts of the case. A DUI lawyer should also know how to have the driver get community service instead of fines.
Drivers license suspension for 1st offense DUI cases in California.
Both the DMV and the court have their own license suspension mandates…
DMV license issues
For the DMV, a 1st offense DUI penalty is a 4 month driver’s license suspension. In order to get a restricted license during this 4 month suspension (allowing the driver to drive to and from work) the driver must enroll in alcohol education classes, and install an ignition interlock device on their car. A DUI lawyer will know how to apply for the restricted license.
Court Penalties license issues
For the court penalties, a 1st offense DUI driver is looking at a 6 month license suspension, fines, probation and possible jail time.
What is the difference between the DMV license suspension and the Court license suspension?
The DMV will suspend your license automatically if you do not contact the DMV for a DMV hearing. If you lose at the hearing, the DMV will suspend your license for 4 months. The court will not suspend your license unless you are convicted at trial, or plead guilty to a DUI. The court suspension can only take effect after conviction. A DUI lawyer knows how to have both the court suspension and the DMV suspension run “concurrently,” allowing you to get your license back as quickly as possible to let you drive to and from work.
What can a lawyer really do for me in a DUI case?
A DUI lawyer will help a client get the best possible outcome in their case. Some cases can be won in a trial, other cases can be won in pre-trial motion hearings (such as motions to suppress evidence), other cases have facts that are more difficult to defend, and may not be ideal for trial, but the client can still benefit from a dedicated DUI lawyer negotiating with the court and the prosecution for the best possible outcome.
DUI lawyers can go to court and the DMV for you, so you don’t have to miss work or other obligations.
DUI lawyers know how to reduce the fines, penalties, and other consequences in DUI cases.
How much is this going to cost?
A DUI is an expensive situation to deal with. The fines, fees, and penalties the court imposes add up to a couple thousand dollars. An ignition interlock device, alcohol classes, insurance rate increases and fees the DMV imposes add to this amount. A DUI lawyer will know how to minimize these costs as much as possible.
The Field sobriety tests used in DUI cases are designed to help law enforcement detect drunk drivers and objectively gauge their impairment. They accomplish this by testing a person’s motor skills, balance and coordination and ability to divide attention.
If a person is not impaired by alcohol, they should do well on these tests. If a person is impaired, they should do poorly on these tests. The main tests that are used in DUI cases are the:
Horizontal Gaze Nystagmus
Horizontal gaze nystagmus is a condition where the muscles in the eye twitch due to alcohol impairment. This twitch is call “nystagmus” and is apparent when the person stands at attention and looks with a “gaze” upon a stimulus that is moved across the horizon. While the stimulus is moved, the eye will exhibit a slight twitch (nystagmus) as the muscles in the eye twitch.
Walk the Line “Heel to Toe” Test
The “Heel To Toe” test is primarily a test of balance, but it also tests coordination, ability to listen and remember instructions(during the instruction phase) and division of attention. If someone is impaired by alcohol, they cannot properly balance.
During the test, the driver is instructed to walk along an imaginary line. Instead of walking normally, the driver is told step each step with the heel of the front foot placed directly in front of and touching the toe of the rear foot.
Stand on One Leg
Another Field Sobriety Test is the Stand on One Leg Test. The stand on one leg test primarily tests balance and a person impaired by alcohol will fail the test if they cannot stand on one leg for the prescribed 30 seconds. As with the other FST’s, the stand on one leg test also tests the person’s ability to listen, remember and comply with instructions. The theory here is a person who is impaired by alcohol will not be able to remember or comply with instructions.
Field sobriety tests done in DUI cases have some major accuracy issue. Among the issues are the conditions that these tests are done (which are not ideal for scientific tests), the problems with officer bias (officers basically looking for reasons to fail the test) and “failing” signs that can stem from the driver’s nervousness and not impairment.
The DMV Hearing process was established to get drunk drivers off of the road quickly. Started in 1990 by a California legislative mandate, the “Administrative Per Se” process is a civil administrative process that has some very important differences between it and criminal court.
The differences between a DMV Hearing and a Court Hearing
-Full Evidence Code/Procedural Safeguards to ensure accurate, only reliable evidence is used
Understanding the differences between the court process and the DMV APS process is the first step in successfully defending a DUI at the DMV.
After a DUI arrest, a driver has only 10 days to contact DMV in order to reqeust a hearing on the matter. If the driver fails to contact DMV (or fails to hire a lawyer and have the lawyer contact DMV) the DMV will automatically suspend that person’s license. Make sure you don’t let your licese get automatically suspended, call a DUI lawyer and fight back in your DUI case.
First steps a DUI lawyer takes in fighting the DMV.
A DUI lawyer will contact the DMV and make sure a hearing for your case is scheduled. This is an important first step to preserve your drivers license. The DUI lawyer will call the nearby DSO (Driver Safety Office) and make sure the appointment is set up.
Then, the DUI lawyer will collect evidence for your case. This includes witness reports, police reports, evidence of blood or breath tests, any traffic tickets associated with your case and other information like this to make sure you get your chance to win the DMV hearing.
What the DUI lawyer does with this evidence.
Using the evidence gathered, the DUI lawyer can apply a defense that works in cases like yours. Most cases involve common DUI defense strategies, or theories that can be applied to the present case.
Common winning strategeies include:
-Lack of probable cause for the initial police stop.
-Lack of proper admonitons or warnings by police to the driver.
-Improper or flawed police field sobriety tests procedures.
-Improper or flawed medical evidence collection.
-Improperly filled out or incomplete DMV paperwork, including the DS367 form.
Armed with these common strategies, a DUI lawyer will chose the best one depending upon your case. A winning DMV strategy is one that most closely matches the facts in your case.
Call 213-400-0358 to speak with a DMV lawyer who fights for DUI drivers to make sure their rights are protected.
When hiring a DUI lawyer, keep in mind what you want from them. What are your biggest concerns ? What can they do to address these concerns? Why are they the best lawyer for your your case? In this post we’ll discuss the things you should be aware of when choosing a DUI lawyer.
What is your biggest concern?
This is perhaps the most important factor in determining which DUI lawyer you should hire. What are your major concerns? What can this lawyer do for them? Does the lawyer listen to your concerns and show you that they have 1. Dealt with cases like yours and 2. Can tell you how they will address your concerns.
Are you a commercial driver (facing a total license suspension for all types of commercial operations) that absolutely cannot lose your license or else you’ll lose your job? Or are you someone who can make due with a restricted license allowing you to only drive a personal vehicle to and from work?
If you’re in a career where any type of license suspension or restriction will result in a permanent job loss, you want to work with an experienced lawyer who has represented commercial drivers and knows how to best handle their cases.
Are you facing 2nd DUI charges? 2nd DUI’s in California carry mandatory jail time. If jail time is a worry for you, consider hiring a DUI lawyer who knows not only how to beat cases at trial, but who also knows alternative sentences (such as home confinement or sheriff’s work release) if a trial doesn’t make sense in your case or if you simply do not want to endure a jury trial.
Reviews vs. Results:
The internet has numerous attorney reivew sites, but in the end reviews are not as important as results. Results are what count. Results cannot be bought (unlike some review sites which can be manipulated). Results cannot be faked or hacked. Results from a lawyer are won in court and at the DMV. Period. Ask the lawyer you consult with about recent case results they have achieved. Check out our real case results here.
Reviews: The Good and the Bad
The internet has so many outlets now for business reviews. Websites like yelp, facebook, google, avvo and others have ways for customers to rate reviews of businesses. Relying on reviews alone can be misleading. Why? Its simple human nature that if someone is upset with a business or the service they provided, they are much more likely to leave a bad review or complain than a person satisfied with the service they received. Leaving a review takes time and energy. Most people simply won’t bother to take the time or energy to leave a good review…. but angry people seem to find the energy and are all too enthusiastic to leave bad reviews.
Be careful of businesses with a crazy amount of reviews:
Unlike a restaurant review, where the customer is talking about a meal they ate, criminal defense lawyer reviews are completed by people that have been charged with a crime. Think about it for a minute: if you were charged with a crime and criminally prosecuted, would you want to tell the world about it? Even if your lawyer did an excellent job? Many people hire outstanding lawyers who get outstanding results for them and will simply not make an online review out of fear of being embarrassed by the situation.
Be wary of attorneys that have a well above average number of reviews…. If an attorney stands out by having 3 or 4 times the number of reviews that is average for other lawyers in their area…something doesn’t add up its not likely all of those reviews are legitimate.
Go with your gut feeling
If your gut says this lawyer isn’t for you.. keep looking. Look for a lawyer who is straightforward and honest, not one that is trying to scare you or tell you what you want to hear. You have to be comfortable with the attorney you are hiring to represent you.
A DUI case involving an accident is probably the single worst type of DUI case in terms of not only the tragic human cost, but also the potential punishment an accused DUI driver faces and the effect an accident has on mounting a successful defense in a DUI case. Most DUI cases are prosecuted as misdemeanors in the state of California, but some cases are treated as felonies. (In fact, approximately 40% of ALL criminal prosecutions in California involve DUI in some way). DUI cases can (and often do) become felony cases when there is an accident involving serious injuries to accident victims.
CVC 23153: DUI involving an injury accident and how to best defend against this charge.
California’s Vehicle Code has a section dealing with DUI related accidents. CVC 23153(a) states:
“23153. (a) It is unlawful for a person, while under the influence
of any alcoholic beverage to drive a vehicle and concurrently do any
act forbidden by law, or neglect any duty imposed by law in driving
the vehicle, which act or neglect proximately causes bodily injury to
any person other than the driver.”
As you can see, causing an accident while impaired is a serious crime in California.
Felony DUI: Great Bodily Injury and how to fight felony DUI charges
A DUI will be prosecuted as a felony when there is an accident, caused by the impairment of the drunk driver, that causes great bodily injury to someone other than the driver. If these conditions are met, a prosecutor in California can (and often will) charge a driver with felony DUI.
Accident caused by impairment:
In building a defense for a DUI related accident case, the first step is to determine if the accident was in fact caused by the impairment of the driver or caused by something else. For example, if a drunk driver is involved in a collision that was actually caused by someone else, a felony DUI cannot be charged. A common example of this goes like this: A driver has a few drinks at a bar and leaves to drive home. While driving home, another driver runs a red light and causes a serious collision at an intersection with serious injures effecting several people. Even though this situation involved a drunk driver, an accident and seriously injured people, the driver will not face felony DUI charges because his impairment did not cause the collision: the other driver did. In a felony DUI cases, this is a very strong defense that can be used to help the driver facing felony DUI charges.
In every DUI case, the driver faces criminal court consequences, and DMV consequences. (Other consequences can also effect the driver, depending on the nature of the events leading up to their arrest and what type of career they have). With respect to the DMV consequences, they result after the driver is taken through the “APS” process. “APS” is an abbreviation that stands for “Administrative Per Se” and is the term used to describe the DMV’s special, statutory procedures in dealing with someone accused of driving under the influence of alcohol.
DMV APS Proceedings: Step by step with the help of a DUI Lawyer.
The DMV APS proceeeding starts the moment the driver is stopped by law enforcement. During DUI enforcement stops, the driver will be questioned by law enforcement and if they suspect the driver is under the influence of alcohol or drugs, they will conduct a DUI field investigation. During the field investigation, the law enforcement officer involved is very likely filling out a “DS-367” form and using this form to guide them during the investigation. The DS-367 is the most important document in the APS process: it has all of the information that the DMV uses to determine if an APS driver’s license suspension is warranted.
The driver will be placed under arrest and given a pink document that will serve as their temporary driver’s license. The plastic license the driver just relinquished, and the DS-367 will be forwarded to the local DMV Driver Safety Office. If the driver does not take steps within 10 days of the arrest, the will face an automatic license suspension. The license suspension will take effect 30 days after the arrest (giving the DMV enough time to conduct an internal review of the driver’s file to determine if a suspension is warranted.)
DMV APS Hearings: What happens if the driver asks for a hearing?
The APS hearing process is a legal proceeding at the DMV driver safety office where the DMV makes a determination if the driver’s license should be suspended. In cases where a timely hearing request is made, the DMV will not suspend the driver’s license until the hearing is concluded. During the hearing, the driver can present a defense and confront and cross examine the witnesses and case against them. This differs from the DMV’s internal review, where the driver does not get to make any defense or have any input whatsoever.
DMV APS Proceedings Reference Links: DMV APS Proceedings: The California DMV has put together information regarding DMV APS hearings. DMV Hearings Expanded information discussing the DMV hearing process in DUI cases
DUI involving marijuana: The unique scientific and legal challenges of marijuana DUI cases.
DUI involving marijuana, in the state of California, has been made a criminal act under the California Vehicle Code. CVC 23152 has been amended in recent years to criminalize the act of driving a car under the influence of drugs, or under the influence of drugs and alcohol in a combination. The legal challenges associated with DUI involving marijuana stem from understanding exactly which types of conduct are in fact illegal and which are not.
These challenges extend to understanding (and finding a valid defense) the extent to which law enforcement can and cannot conduct drug DUI or DUI involving marijuana investigations, privacy rights and the proper role of blood testing in these cases and understanding the legal arguments that can keep this evidence from ever seeing the inside of a court room.
Scientific Issues in DUI involving marijuana cases: The science of marijuana DUI impairment.
The scientific challenges associated with defending DUI involving marijuana cases come from two different areas: Analyzing how marijuana effected this particular driver and understanding the basics of attacking blood testing and the “science” (which is mostly bunk science) in marijuana cases.
Individuals drivers and individual responses to marijuana:
When defending a DUI case from prosecution, a defense lawyer understands that the important issue is whether this particular driver was impaired, not some other driver, or subjects in a random scientific study (or even worse, the “average” driver, whatever that means.) Because of this important fact, a defense can be built by simply pointing out the differences between the driver facing criminal prosecution and the “average” driver or person that marijuana studies are based on.
-What level of THC is needed to make this particular driver impaired?
-How does THC effect this particular driver, not the “average” person
-How much THC was actually in this person’s system?
General Attacks on Marijuana Impairment when defending DUI cases:
Defenses that attack the “generalities” of marijuana impairment don’t focus on the individual driver, but rather focus on the lack of scientific consensus regarding how marijuana effects people in general. Generalized Marijuana DUI defenses will also attack:
-The scientific admissibility of evidence in court if the DUI case goes to trial
-The foundational requirements that are needed to legally establish the evidence
-Issues related to the accuracy, veracity and authentication of the proffered evidence that is sought to be introduced into evidence
The California Highway Patrol (“CHP”) is California’s largest law enforcement agency. For a DUI lawyer, they are the most common “adversary” (a silly choice of words, but true to a certain extent) and are responsible for the majority of DUI arrests and prosecutions in the state of California. Unlike many other states, the state of California does not have a “State Police” or a “State Bureau of Investigation,” it has the Highway Patrol. On top of general traffic enforcement duties, the CHP handles security for the governor and high level state officials, regulating commercial trucking, investigating serious fatal accidents on California’s roadways and of course, their single biggest task: DUI enforcement.
What does the California Highway Patrol do to enforce California’s DUI laws?
Saturation Patrols: “Looking for Trouble”
The CHP’s primary DUI enforcement modality is through saturation patrols, where officers are sent on patrol to look for signs of impaired driving. You probably notice a big increase in the numbers of CHP cars on public roads during holidays. You are in fact seeing saturation patrols as they canvas the roads looking for impaired drivers.
DUI Checkpoints: “Stop, in the name of law”
DUI checkpoints are the second most commonly carried out DUI enforcement operation by the CHP. The state of California has more DUI checkpoints set up throughout the year than any other state in the U.S.
Officer Training and Equipment: “High Tech DUI Enforcement.”
The CHP has a huge budget for training and equipment to allow its officers to conduct DUI investigations. This training can lead to better enforcement, more accurate assessments of a person’s condition in the field and ultimately safer roads as real drunk drivers are taken off of California’s roads.
DUI cases involve the DMV and a criminal court prosecution. For people who are not naturalized citizens of the U.S., a DUI criminal conviction can have an effect on their immigration status. Why? Because the U.S. Government wants to prevent individuals with certain criminal histories from immigrating to the U.S. as a way to protect the public and to welcome only suitable, law abiding people into the U.S.
Steps in any DUI Case:
In any DUI case, a DMV process will start when the driver is stopped by law enforcement. Officers will give the driver a temporary license document and take their plastic license. If the driver does not have a license, the officer will simply give the driver the “temporary license” document which also acts as a notice of pending DMV proceedings against the driver.
In criminal court, a DUI driver will face either felony or misdemeanor charges. For immigration purposes this can be very important. One garden variety misdemeanor DUI is not going to have the same consequences as a felony DUI case involving an accident with injuries. This is due to how the law treats DUI cases with injuries. When someone is injured as a result of someone else’s impaired driving, the result is treated as a violent crime. These cases are charged as felonies and expose the driver to serious state prison time. On top of that, the driver can also face denial of immigration status, exclusion from the U.S. and deportation.
Factors that are looked at when determining how immigration consequences are delt:
In the context of immigration, the impact a DUI conviction will have on a person’s immigration status can depend on:
-The number of DUI’s the driver has
-The driver’s other criminal history (if any)
-The length of jail or prison given in a DUI case
-Whether the driver faced felony or misdemeanor charges
DUI and Immigration Resources:
http://www.ilrc.org/files/documents/ilrc-ca_chart__notes-2013-03_05.pdf This .pdf was compiled by a non-profit legal research and aid entity that discusses the various possible outcomes for immigration cases and how they can be effected by criminal convictions.
How to avoid 2nd offense DUI California jail time:
Avoiding 2nd DUI Jail Time in California is important because California has mandatory jail time for second offense DUI’s.
90 days to 1 year in county jail(per charged count), is the statutory jail time prescribed by the California Vehicle Code if a person is convicted of a 2nd DUI offense within 10 years of their first offense.
In fact, California Vehicle Code Section 23540 makes jail time mandatory in 2nd DUI cases. This means someone with a 2nd DUI conviction will go to jail unless they can successfully fight their case or are able to take the necessary steps with the help of a DUI lawyer.
The three most common ways to avoid jail time for a 2nd DUI are:
-Alternative Sentences (such as home confinement or electronic monitoring)
-Beating the case itself, either at trial or at a pre-trial hearing based on a legal defense or procedural defense.
Each of these option is discussed below.
Under California law, the penalties for a 2nd DUI include:
-A minimum of 90 days of jail time (under CVC 23540) and a maximum of 1 year per count charged. (Jail time can be reduced if the driver is granted probation (see below.)) Often DUI cases involve a charge under CVC 23152(a) *AND* CVC 2352(b). The possible jail time a person can recieve is based on the number of charges they face. This means a person facing a 2nd DUI case involving two charges can potentially face a maximum 2 years in county jail. (Up to 1 year per charge.)
-Lengthy court ordered probation, mandatory installation of an ignition interlock device, alcohol education classes and fines from the court
Often a 2nd DUI is not an intentional act by the driver: its a mistake, and its not uncommon. Approximately 80% of people who get a DUI get a 2nd DUI sometime in their lives. Unfortunately, this mistake has serious consequences unless the driver involved does something about it.
3 strategies that work in avoiding 2nd DUI Jail time in California:
If you’re facing 2nd DUI charges, you should know there are three ways to avoid mandatory jail time if you’re convicted. A DUI lawyer should be very familiar with these strategies as a way to avoid jail. These strategies are:
–Probation (in some cases, the amount of jail time can be reduced to 96 hours)
–Alternative Sentencing (such as home confinement or electronic monitoring)
–Successfully defending the case by winning at trial or pre-trial motions
How much Jail time is given for 2nd DUI California Jail sentences?
California Vehicle Code 23540, is harsh when it comes to 2nd DUI Jail time in California, with a statutory minimum of 90 days county jail time being imposed.
Often the prosecutors in 2nd offense California DUI cases request more jail time than the statutory minimum and if the judge in the case agrees more jail time is a very real possibility. It is not unheard of for prosecutors to seek 120 days of jail time.
For 2nd offense DUI cases with aggravating circumstances, more jail time will be given. Some cases are treated as a felony with up to 4 years in state prison. Those cases usually involve serious injury to other people where there is an accident as a result of the 2nd offense DUI on the part of the defendant. Therefore, it is important to learn how to avoid jail time for 2nd offense DUI cases.
2nd DUI Probation: How a DUI lawyer uses probation to avoid 2nd DUI jail time:
There is good news and bad news when it comes to 2nd DUI probation. The good news is it is a very useful way to avoid jail time and keep a person out of jail for a 2nd DUI. The bad news is this: it is not automatic and not every judge will grant probation for DUI cases.
Factors the judge looks at:
-The driving record of the defendant
-The facts of the 2nd DUI case: was there an accident, were there injuries
-Whether the driver has remorse for what happened
A DUI lawyer will understand how to put the best case forward to the judge and convince the judge to grant probation, even if the facts of the case aren’t very good for the driver.
Unlike a first offense DUI, a 2nd DUI carries mandatory jail time and a longer license suspension. The law in California requires jail time for someone convicted of a 2nd DUI within 10 years of their prior DUI. The law that mandates jail-time for 2nd DUI drivers is CVC 23540, which states 90 days is the minimum jail sentence that can be imposed for someone convicted of a 2nd DUI. This means a 2nd offense DUI in California will result in jail-time unless your lawyer can help you beat the charges, or arrange alternates to jail.
Avoiding 2nd Offense California jail time by winning the case.
2nd offense DUI cases are just like first offense DUI cases; they involve the same defense strategies and tactics if the defendant decides to fight their case. There are factual, evidential, scientific and legal defenses available in all DUI cases, including 2nd offense DUI cases that involve jail time.
If the decision is made to fight the case with everything available, a thorough case review will be conducted by the DUI lawyer involved in the case, with a detailed analysis of the facts of the case and the evidence. The lawyer will review the police reports, accident reports (if any), blood or breath testing evidence, calibration of the instruments used, witness statements (if any) and any other facts surrounding the 2nd DUI offense.
With this thorough review, the lawyer will determine if one of the common, successful DUI defenses can possibly win the case. This would include:
-Attacking the police lack of probable cause for the initial stop
-Showing scientific errors with the blood or breath testing done.
-Arguing against the reliability of Field Sobriety Tests, which are notoriously inaccurate in DUI cases.
The case may be won in a pre-trial setting, through an evidence suppression hearing where tainted or improperly collected evidence is excluded from trial in the DUI case.
Electronic Home Confinement to avoid Jail-time for a 2nd DUI in California
An attractive alternative to jail time is electronic home confinement. This means the defendant will serve their jail sentence at home, with a gps bracelet (usually worn on the leg) on to verify they are in fact home. They have restricted freedom of movement and are allowed to go to and from work in a limited geographic area.
There are two downsides to electronic home confinement:
-It is expensive
-The person has to serve the ENTIRE sentence
But electronic home confinement has its positive aspects as well:
-The person doesn’t have to end up in jail
-The person can still go to work
-The person can take care of their family
Examples of 2nd DUI cases involving jail time in California:
Jack is stopped for driving 80 mph in a 65 zone. The CHP officer who stopped Jack notices something odd about Jack. Jack’s eyes are red and watery, and he smells like alcohol. After conducting a field investigation, Jack is brought to the station where he blows 0.12% into the breath testing machine. Jack is charged with two charges: CVC 23152(a) and CVC 23152(b). Because he faces two charges, he faces a minimum of 90 days of county jail, and a potential maximum of 2 years in county jail if the judge in his case sentences him to time consecutive.
Jack decides to plea “no-contest” to the charges and is able to demonstrate to the court that he is remorceful and has learned from his experience. Because he was cooperative with law enforcement and his case didn’t involve any aggravating factors (like an accident or a very high blood alcohol level) the judge in Jack’s case decides to lower the penalty from 90 days jail time under CVC23540 to the statutory minimum of 96 hours under CVC 23542.
Bill was stopped for “lane straddling,” which is driving in two lanes at the same time. Bill refuses to submit a breath test or a blood test after being lawfully arrested for DUI. Because the prosection does not have a chemical test to charge Bill under CVC 23152(b), he faces only one charge under CVC 23152(a). Bill faces up to 1 year of jail time for the underlying charge, and an “enhancement” of potentially more jail time if he is also convicted of refusing to submit to a chemical test.
Because Bill refused to submit a chemical sample to law enforcement, he might face additional penalties at the DMV, in the form of a longer license suspension. (See more about DUI Refusal cases here.)
Bill’s lawyer is able to show that the police officer who stopped Bill did not properly “admonish” Bill regarding the chemical test. As a result of this, all evidence of Bill’s “refusal” to submit a chemical test is excluded from court. Bill decides not to fight the underlying case because police car video in his case shows him driving very erratically. Bill’s lawyer is able to convince the judge to allow Bill to serve “home confinement” where Bill wears an electronic monitoring bracelet (on his ankle). Bill can still go to work and take care of his family.
Useful 2nd DUI in California Jail Time Links:
California DMV Vehicle Code 23542 This vehicle code section covers 2nd DUI probation and allows a judge to reduce the jail given to a convicted 2nd DUI driver from the statutory minimum 90 days to 96 hours if the driver qualifies for probation.
Los Angeles Home Confinement The Los Angeles County Probation Department administers home confinement and home detention programs in Los Angeles County.
Community Service In Los Angeles County, people facing jail time can often convert their jail time into community service or community labor, depending on how the judge in their case handles community service issues.
SCRAM Alcohol Monitoring SCRAM is an alcohol monitoring system that is worn by the person on their wrist. It senses alcohol secreting through the blood vessels and allows for people to prove sobriety by showing no alcohol in their system.
Los Angeles County Jail The Los Angeles County Jail is the facility where most 2nd offender DUI drivers face their jail time if they are unsuccessful in avoiding 2nd DUI Jail Time.
Unfortunately, one marriage statistic stands out among the rest. The statistic in question states that nearly 50% of the marriages in the US will end in divorce. Lawyers with years of experience in Los Angeles can tell you that there are many complex reasons why marriages tend to fail. One reason that stands out is a wife or husband being arrested for DUI.
When a divorce proceeding takes place because of a DUI – due to driving while on drugs, alcohol, or other intoxicants – it creates an unimaginable level of stress, complexity, and financial strain. We will attempt to explain how each situation will have a major impact on the lives of those going through a divorce.
Increased Divorce Complexity
Going through a divorce is difficult on its own for all of the various reasons that your marriage is coming to an end. But when you add DUI to the mix, it adds an additional level of complexity that will need to be addressed in a courtroom or mediation setting.
For starters, due to the nature of the crime, monetary issues will most likely arise because of this situation. The spouse being charged with DUI will need to pay fines imposed by the court, a criminal defense lawyer, and he or she will be required to pay for certain damages due to the destruction of personal property or personal injury.
When young children enter the picture, it can even increase the complexity of the situation even further. Since the spouse charged with DUI could potentially be a risk to young children, the non-DUI spouse very well may seek sole custody instead of joint custody because of this situation. And that will leave the spouse arrested for DUI out of the important decision-making processes regarding the health, education, and well-being of the children.
Increased Levels of Emotional Stress
Divorce lawyers immediately see stress levels rise in both spouses when one spouse is arrested for DUI. And as far as the spouse arrested for DUI is concerned, their levels of emotional stress following the incarceration often go through the gamut including depression, remorse, disappointment, regret, anger, and anxiousness to name a few.
The spouse that did not get arrested for DUI will also experience a wide array of emotions as well. The differing emotions include frustration, anger, disappointment, and more. And if the DUI spouse has a severe addiction like drug problems or chronic alcoholism, it’s often a major source of contention and a reason for ending the marriage.
Increased Financial Difficulty
DUI related criminal proceedings coupled with a divorce will most certainly lead to financial strain. The DUI costs alone are going to be very expensive. You’ll need to retain the services of a criminal defense lawyer, post bail, pay fines, and incur other related expenses. As you can tell, this financial strain will certainly add to the problems already existing in a rocky marriage.
Conclusion: DUIs and Divorce
It’s plain to see that DUI can certainly lead to divorce. To prevent this possibility, seek help from Alcoholics Anonymous, Narcotics Anonymous, individual therapy, marriage counseling and anything else that could help save the marriage.
Bail is money that is deposited with the court as a way to ensure a person who is charged with a crime returns to court for future hearings in their case. Without bail being imposed, some people who face criminal charges would be tempted to flee or avoid going to court in the hopes that their case would just “go away.” Because they have deposited money with the court, it is assumed they will return to make sure they get the money back. Prosecutors and judges often argue that bail is also used to “protect” the public. This argument is flawed for a number of reasons, and it incorrectly states the law when it comes to bail in criminal cases.
Our bail law comes primarily from California Penal Code sections 1268 et seq. This body of law was developed as a way to ensure the return of a defendant to court if they are facing criminal charges. The idea that a higher bail amount may be required as a way to “ensure public safety” is not a correct notion, but one that is often argued by prosecutors. If the judge reviewing a bail matter determines that the defendant is a public safety risk, the judge can refuse to allow for bail, as opposed to asking for a higher amount than they otherwise would. (It makes no sense, for example, that the public is protected if a defendant has to post $40,000 bail versus $25,000. If the defendant truly is a threat to the public, the judge should deny any bail amount.)
How much is bail in the average DUI case in Los Angeles?
For 1st offense DUI cases, most clients are released on their own recognizance, because the charges are misdemeanor in nature and often do not have aggravating circumstances that warrant additional bail. For 2nd offense cases, the minimum is set in the bail schedule. Often, bail is higher on 2nd DUI cases with accidents or injuries to parties involved because, rightly or wrongly, of a perceived threat to public safety.
The main purpose of bail is to ensure the defendant will return to court to face the charges against them. Actually, this is the only legitimate purpose for a court instituting bail, but often prosecutors and judges insist on bail for reasons of “ensuring public safety” because bail will supposedly reduce the risk of a person committing a new offense.
Behind these “stated” reasons for wanting bail in DUI cases, there is a more cynical view, held by many in the DUI legal field, when it comes to bail. Depending on the charges against the driver, bail can be as low as $0 to as high as $50,000 or more. Often, when I hear prosecutors trying to push bail on a person that clearly doesn’t have money, it appears to be a ploy to keep the person behind bars pending their day in court. While in jail, they are more likely to take any plea bargain that the prosecutor will offer, even if they could get a better outcome should they decide to fight the case. There’s no better negotiating tactic than telling someone “if you take this deal, you’ll be out in a few hours. If you fight your case, you can’t go to trial until February.” This can and does induce plea deals that otherwise wouldn’t have happened if the person was released.
How many DUI cases involve texting or using a handheld device by the driver? Not many, and the obsession law enforcement has with cellphone/texting while driving laws probably causes more harm than good.
Using a handheld device, like a cellphone, is similar to other activity that is allowed while driving a car. Is looking at a paper map any while driving any different than looking at google maps on your cellphone? Is talking on the phone much different than talking to a passenger while driving? Of course not…..these are similar activities that create a similar situation behind the wheel.
The kneejerk focus on technology and not the root cause of certain types of accidents is a shining example of government stupidity at the direction of ‘do gooders’ who aren’t really doing much.
When it comes to DUI cases, cell phones or texting while driving rarely is an issue. However, talking on the phone while driving does give law enforcement an excuse to stop you. In any DUI case, law enforcement needs to have probable cause or a justification for the stop.
-Enforcement stops (to enforce traffic laws)
-“Welfare” stops (to detetmine driver safety)
-Response to emergency calls
-Warrantless stops/Detentions of Drivers
Cellphone or texting while driving laws do not reduce accidents or make the road safer. They do, however, give law enforcement an excuse to stop motorists and initiate field investigations. If the driver has in fact, been drinking before driving, a DUI could very well result.Law enforcement already has enough tools at its disposal to stop you and arrest you for DUI. If you have been drinking: don’t drive. If you are silly enough to do that, don’t text while driving.
The consequences for a DUI refusal case are harsh in California: up to a 3 year license suspension from the DMV, and mandatory jail time from the criminal courts. DUI refusal cases involve a situation where law enforcement has lawfully arrested someone for DUI and requested them to give a chemical blood alcohol sample. The sample can be obtained through blood or breath testing. Under California law, a person is required to provide this sample to law enforcement or face the penalties. The issues and defenses to DUI refusal cases is discussed below:
What happens in a typical DUI Refusal case:
DUI Refusal cases involve a DUI arrest where the driver refuses to submit a breath or blood sample to law enforcement. This violates California’s “Implied Consent” law, that says a person implicitly consents to a chemical test if they are arrested for suspicion of DUI. The penalty for refusing to submit a chemical sample is harsh: the driver faces a minimum 1 year drivers license suspension. There are no exceptions, no “to-from work” allowances, no waivers. The DUI Refusal suspension is the most severe driver’s license suspension a DUI driver can face.
What does the DMV have to establish in DUI Refusal Cases:
The DMV has to establish there was a lawful arrest of the driver and that the driver, after being properly admonished, refused to submit a chemical test for their blood alcohol level.
In order for the DMV to suspend a driver’s license for 1 year due to a refusal, the DMV has to first establish that the driver was lawfully arrested. This means the driver was seen violating a vehicle code section or committing some type of offense to warrant detention by police. Other examples of justifications for arrest can be found in CVC 40300.5, such as being present at the scene of an accident with evidence that the driver was driving before the accident occured. If the police make errors in arresting the driver that render the arrest unlawful, the DMV cannot use the arrest and subsequent refusal as a basis for suspending the driver’s license.
If a lawful arrest can be shown, the driver must the be properly admonished. Admonishment is a fancy legal word for “warning” and in the context of DUI cases means the driver was warned that if they refuse to give a blood or breath sample, they would lose their license for 1 year and face criminal consequences including mandatory incarceration.
At first blush, a DUI investigation and case would see fairly straight forward: was the driver impaired by alcohol or drugs while driving their car? Although they seem simple, DUI cases are unique in that they present a number of complex legal, factual and scientific issues.
The Scientific issues in a DUI case depend on the scientific evidence gathered by police:
The scientific evidence against a driver in a DUI case starts at the first police encounter with the driver. Officer observations of the driver’s eyes, demeanor and coordination are the first clues of impairment. Next comes the Field Sobriety Tests: tests of dubious scientific validity and done under less than ideal conditions. Next comes the blood or breath testing, which is what most people think of when they think of a DUI investigation.
Officer observations of the driver:
In every DUI investigation, a law enforcement officer has an encounter with the driver. Often this is done at the side of the road, through the driver’s window as the officer first makes contact with the driver. The officer is trained to look for signs of impairment in the driver: red watery eyes, slurred speaking, the smell of an alcoholic beverage and similar cues.
In court, prosecutors are often giddy that the officer can testify about seeing these conditions and hold a near gospel respect for the “signs of impairment.” This respect is misplaced: The officer’s memory is often faulty, and many of the conditions observed by the officer have innocent explanations. For example, red watery eyes are a common condition for people suffering from allergies. Slurred or stuttered speaking can just as easily be explained by a nervous driver who has never been arrested before becoming frightened by the officer’s conduct.
Field Sobriety Tests: The bogus science of field “exercises” for DUI cases.
The National Highway Traffic Safety Administration (NHTSA) has developed a series of “field sobriety tests” that are really no more than silly parlor trick exercises that are used by law enforcement to trick and entrap drivers into performing ridiculous tests that are designed for failure.
After a detailed explanation to a jury, most jury members realize the Field Sobriety tests are nothing more than contrived exercises used to make a normal person look impaired. Most jurors, after carefully reviewing the evidence, give the FST’s little weight in court.
The rising BAC defense can be very effective, however juries can sometimes be swayed to ignore the science and convict a driver even in cases with a strong rising Bac defense. Why? The most common reason is an oversimplified view on DUI cases that goes like this: many people feel that if a person drinks alcohol, then gets behind the wheel, they are guilty of something. This viewis simple to understand and those peope that hold this view feel that they are doing justice by holding drunk drivers accountable in the most basic way.
The problem with this oversimplification is it punishes behavior that is not a criminal act. If everyone who had a drink and then drove a car was automatically guilty of a crime, every person who had a glass of wine with dinner at Olive Garden would be a criminal. That outcome is absurd, because those folks do not have a BAC above 0.08% while they were driving. Using the same standad (which is the law) a person on trial for DUI should not be convicted for DUI unless the prosecution can prove beyond a reasonable doubt the driver’s BAC was above 0.08%. In cases with a rising BAC defense, the proseation cannot show this and therefore the jury should acquit.
How to avoid jail-time for a DUI Probation Violation in California: What you need to know.
A DUI Probation Violation in California can result in jail-time, increased hours of community service, extension of probation or revocation of probation depending on the nature of the case.
For cases involving a 0.01% DUI Probation Violation, the DMV will suspend the driver’s license for 1 year with no “to-from work” exemption. This extremely harsh result means the driver cannot drive a car whatsoever. See our page that discusses how to handle 0.01% DUI Probation Violation issues.
Probation violations can be minor, or more serious depending on these factors:
-Prior DUI’s or other prior arrest record
-Prior probation violations
-Type of violation: Minor violations are for things such as missing classes or needing a few more days to complete community service. Major violations are for things like repeat DUI’s, driving on a suspended license.
Is jail-time possible for a DUI Probation Violation?
Yes, jail time is a real possibility for someone with a DUI Probation Violation in California. This is because a DUI conviction involves a misdemeanor criminal conviction with possible county jail time as a punishment. As part of most plea agreements, jail time is imposed on the driver and suspended by the court. This means the driver was sentenced to jail, but the judge decided to “suspend” or pause that and allow the driver to complete probation. If the driver fails to comply with the terms of probation, the judge can “un-pause” the jail time and impose jail.
If you are facing a DUI Probation Violation in California, there are things you can do to avoid going to jail.
What happens in cases involving DUI Probation Violation in California?
A DUI probation violation in California often results in jail time and other penalties including loss of license, fines, or additional alcohol education classes. Probation Violations are based on a person failing to comply with terms of their probation. The most common probation violations are:
-Being arrested for a 2nd DUI
-Failing to complete alcohol education classes or other similar Probation Requirements
-Failing to install an Ignition Interlock Device
-Driving on a Suspended Driver’s License
Penalties for DUI Probation Violations in California include:
-Driver’s License Suspension from DMV
-Additional fines or community service
Jail time is used as a deterrent in probation violation cases because the original imposition of probation was given by the court in place of jail time. When the violation occurs, the judge will often decide that the defendant wasn’t taking their probation seriously and that jail time should be given. The amount of jail time imposed depends on the nature of the first case (was it a Felony DUI, or a case involving aggravating factors such as a hit and run accident?), the nature of the violation (some probation violations are minor, such as forgetting to attend a class while others, like getting a 2nd DUI are more serious) and the length of probation that has been successfully completed.
Driver’s License Suspension from DMV
This is a very serious consequence for someone on DUI Probation. DUI Probation Violation License Suspension cases in California involve cases where the driver is stopped by law enforcement and found to have a blood alcohol level at or above 0.01%. In these cases (called zero tolerance cases) the California DMV will suspend a driver’s license for 1 year, with NO ABILITY TO DRIVE ANYWHERE, even to or from work.
What to do in DUI Probation Violation Cases:
The best defense is a strong offense when it comes to DUI Probation Violations in California. While someone on probation has limited rights, their rights are not completely stripped: a DUI lawyer will know what defenses someone on probation can raise to protect the rights they do have.
A DUI lawyer in Indio can discuss your case with you and show you how to beat the case.
Consequences for a DUI in Indio: DMV and Criminal Court.
Every DUI case involves DMV and criminal court processes that can effect the driver’s life.
DMV: DUI License Suspension
A DUI license suspension will be issued by the DMV automatically if you were arrested for DUI. This can be avoided if a request for a DMV hearing on the matter is made and you are able to defend against the charges.
In criminal court, the driver arrested for DUI can face felony or misdemeanor charges, depending on the nature of the case against them. Felony DUI cases are the most serious, but luckily are relatively rare. Most DUI cases are charged as misdemeanors, with up to 1 year of county jail as a possible penalty.
Indio is located in the Palm Springs area, in eastern Riverside County. Indio and its surrounding communities get a disproportionate number of DUI cases because of its proximity to major highways, and the fact that vacationing and party going drivers frequent the highways east of Los Angeles. Situated between the Colorado River areas, Las Vegas and the Los Angeles basin, the Indio area including the Cochella Valley are a spot where DUI arrests are frequent.
What can an Indio DUI Lawyer do?
An Indio DUI lawyer who is familiar with the legal and scientific defenses available in DUI cases will review your case and look for defenses that are useful in beating DUI cases. The most common defenses used are:
-Rising Blood Alcohol Level Defense
-Attacking Police Probable Cause for the arrest
-Attacking the accuracy of the blood or breath testing used
What is a rising blood alcohol level defense?
A rising blood alcohol level defense is a defense that shows the driver’s blood alcohol level was below the legal limit when they were pulled over. Due to absorption of the alcohol in the person’s system, the blood alcohol level rises to above the legal limit when they are later tested by law enforcement. This defense is useful in cases where the driver’s blood alcohol level is at or slightly above the 0.08% blood alcohol level.
How does attacking the probable cause of the arrest help a DUI defendant?
Law enforcement in the U.S. cannot simply stop people on a whim or a hunch. The law in California and indeed the rest of the country is clear: a warrantless detention by police is itself unlawful, unless the officer involved has probable cause to believe a crime is occurring. This means the officer must witness an actual violation occur, or circumstances that are narrowly defined in CVC 40300.5 to support a finding that probable cause existed.
For more information, call 213-400-0358 and speak with an Indio DUI Lawyer.
Useful Indio DUI Lawyer Links: Indio Superior Court, Riverside County This link is to the Riverside County Indio Courthouse, located in Indio, CA. Most DUI cases from Indio and the surrounding areas are heard at this courthouse. The map below shows the location of the Indio Courthouse:
What happens in a DMV hearing for a DUI case? The APS Process explained by a Los Angeles DUI Attorney.
In any DUI case, there are two important processes that a driver facing DUI charges should understand: the criminal court process and the DMV’s APS process. The APS (which stands for “Administrative Per Se”) is an internal DMV administrative process where the DMV can suspend the driver’s license of a person arrested for DUI in California.
The APS process starts when law enforcement gives the driver a pink “temporary” license and takes away their plastic “permanent” license. When this happens, the clock starts ticking for the driver to take action, or face an automatic license suspension from the DMV.
The driver has 10 days to request a hearing, otherwise the DMV will begin an automatic license suspension against the driver, which will start 30 days after the arrest and last anywhere from 4 months for a first offender DUI, to potentially a life time suspension for drivers with terrible driving records/multiple DUI offenses.
History of the APS process in California:
In 1990, the California legislature changed how DUI cases were handled by the DMV. Before the changes, the DMV did not suspend someone’s driver’s license for a DUI offense on its own: it had to wait until there was a criminal conviction before taking license action against the driver. With the changes to the California Vehicle Code in 1990, the DMV was granted authority to suspend someone’s driver’s license on its own through its internal “Administrative Per Se” hearing process. The APS process is not as complicated as it may seem, in fact it involves a much simpler analysis by the DMV when it looks at DUI cases. Perhaps the single biggest problem with the APS process is its watered down procedural rights: DUI drivers stand a much, much better chance winning in court than they do in the DMV’s APS process.
DMV Hearings for DUI cases: Reference Links.
California DMV APS process: PDF Information from the California DMV on how the APS process works and what needs to be done in an APS hearing. Avvo Information on DUI license suspensions and the DMV hearing process.
How to beat DUI Refusal Cases: Strategies that work in defending DUI cases with no blood or breath sample.
A “refusal case” is particular type of DUI case where the driver refused to give law enforcement a blood or breath sample. These samples are used by law enforcement to measure the driver’s blood alcohol content and are perhaps the most important prosecution evidence in a DUI case. Without the blood or breath test, prosecutors do not have a measurement of the driver’s blood alcohol content, making a charge under CVC 23152 (B) difficult if not impossible.
Even if no blood or breath test is given, a person can still be charged with driving under the influence under CVC 23152(A). Charges under “the A count” as it is known amongst lawyers simply require the prosectuion to show that the driver was impaired while driving. Examples of impaired driving are:
-Bad driving (swerving, speeding, illegal lange changes)
-Eye-witnesses seeing the driver drive on the wrong side of the road
In these cases, the lack of a blood or breath sample is overcome by prosecutors because the driving by the defendant is so bad it can be used to show impairment.
Special Penalties for DUI Refusal Cases in California: Longer DMV license suspension and Court mandated jail time.
The DMV is particularlly harsh with DUI refusal cases, with a mandatory 1 year license suspension for cases involving a DUI refusal. This occurs through the DMV’s APS process (the DUI administrative hearing process) that involves harsh penalties to drivers facing DUI charges. For 2nd DUI cases, the suspension is longer: 2 years of no driving. This includes “To/From Work” and ALL driving. A DUI Refusal case invovles NO DRIVING whatsoever during the suspension period.
In court, the driver faces an “enhancement” to the underlying DUI charge. If a person is convicted of DUI and the court determines they also refused to provide law enforcement with a sample, jail time is imposed by the court at no less than 48 hours and no more than 6 months.
How a Los Angeles DUI Attorney handles Drug DUI cases, including MDMA DUI.
MDMA DUI cases and other drug DUI cases are becoming more and more commonplace with the wider use of recreational and medicinal use of drugs like marijuana and MDMA. The body of law on DUI has been well developed over the decades, showing our collective experience with alcohol and the widespread and commonplace nature of alcohol DUI.
Drug DUI cases, such as MDMA DUI, are a relatively new development. Because of this, the law is catching up and there are calls for overhauling the DMV license suspension process and even calls for changing how the criminal courts handle drug DUI’s.
The DMV APS Process: No “Drug DUI” license suspension.
Perhaps the most important distinction between a drug DUI and an alcohol DUI is the DMV. The DMV currently has no process in place to handle drug DUI cases. This is because of how the DMV APS process was established. In 1990, the California legislature created the APS (Administrative Per Se) process whereby the DMV was given power to suspend the driver’s licenses of people arrested for alcohol DUI. The law (including forensic science) had decades of experience with alcohol DUIs, and it was felt the science of breath testing and blood testing, along with the study of “impairment” by alcohol was sufficiently well advanced to empower the DMV to take action. In alcohol DUI cases, this means an automatic suspension, unless the driver requests a DMV hearing.
MDMA, also known as “Molly’s” are common rave party drugs that can cause impairment and result in an MDMA DUI. Unlike alcohol DUI enforcement where breath testing is common, MDMA and other drug DUI cases are only detected using blood testing.
MDMA DUI cases often involve more than one drug, because most users are involved with a number of illicit drugs, legal drugs and alcohol.
As a mind altering substance, MDMA can create a very real risk for impaired driving. Driving a car involves a number of motor skills, coordination, mental tasks and focus. All of these can be dramatically impaired by the use of MDMA and its constituent drugs.
CVC 23152e and 23152f: California’s new Drug DUI Laws
The California Vehicle code was amended, effective January 1, 2014 to encompass Drug Impairment DUI cases. CVC 23152 used to have two subsections: CVC 23152a and b, where paragraph (a) was used as a catchall for “impaired” driving, including drug related DUI.
The changes in 2014 added new sections to CVC 23152 that cover impairment specifically from drugs and from a combination of alcohol and drugs.
As of the date of writing for this article, there are no “per-se” limits for impairment from drugs. For alcohol, there is a “per-se” limit that states that anyone driving a car with a blood alcohol level above 0.08% is guilty of a violation of law. There are no limits for MDMA, THC, heroin, cocaine or other drugs in large part because of the lack of scientific investigation of drug impairment on driving ability.
Drug DUI cases, including MDMA impairment, are becoming more and more common. The body of law surrounding alcohol DUI is well developed: DUI law dates back to the 1930’s because people have been drinking and driving for a long time. Drug DUI enforcement is a relatively new area of law: in part because of the increased availability of illicit drugs, in part because of improvements in scientific forensic investigation and in part because of the advent of legalized drugs like medicinal and recreational marijuana.
Commercial license DUIs in California can result in a 1 year class A license suspension for a 1st DUI, or a lifetime class A prohibition for 2nd DUIs. These suspensions can occur through DMV administrative action or through criminal Court conviction.
Commercial license DUIs can occur in privately operated vehicles, or while driving in a commercial Vehicle for hire.
0.04%BAC:California’s lower limit for commercial license DUI.
Under California Vehicle Code 23152(c), driving a commercial vehicle for hire with a Bacat or above 0.04% is a criminal Offense, with up to six months in County jail for a lst offense, Under cvc 13353, the DMV can take license action against the driver by imposing up to a 1 year license suspension.
The consequences for a Commercial License DUI in California can be very serious: with up to lifetime suspension from the DMV for Class A license holders in certain cases. Commercial license holders (drivers with a “Class A” license) face additional penalties and scrutiny because they have a commercial license, whether or not the DUI occurred in a vehicle operated for hire. The added scrutiny applied to commercial drivers is meant as a protection to the driving public, who could be placed in more danger should a driver of a large commercial vehicle operate their vehicle under the influence of drugs or alcohol. California law specifically deals with commercial DUI with more harsh standards:
Lower BAC threshold for DUI Cases (0.04% versus the typical 0.08% for standard Class C license holders)
Increased suspension requirements if a Class A holder is found to have committed a DUI offense
Different penalties exist for cases where the Class A license holder was driving a personal vehicle at the time of the DUI arrest vs. driving a commercial vehicle for hire
CVC 23152 (C): 0.04% BAC DUI Commercial License DUI in California
DMV Consequences: Class A license suspension for DUI in California.
For class A license holders, the DMV will suspend the Class A privileges if the driver is caught driving under the influence:
1. First offense: 1 year Class A driving privileges suspension
2. Second offense: Lifetime license suspension for Class A privileges
When operating a commercial vehicle, the driver cannot have a measured blood alcohol level above 0.04%. When driving a personal vehicle using their Class C privileges, the driver is limited to a 0.08% blood alcohol concentration.
Court Consequences for Commercial License DUI in California:
California’s Vehicle Code section 23152 regulates DUI offenses for both Class C and Class A license holders. CVC 23152 is divided into separate paragraphs, with CVC 23152(c) covering DUI cases where a commercial driver is operating a commercial vehicle for hire.
When a commercial driver is driving in a commercial vehicle for hire, more stringent DUI rules apply:
-0.04% BAC as opposed to the typical 0.08%
-Commercial Drivers must wait 8 hours between drinking and operating a commercial vehicle
-Class A operators face longer license suspensions
In court, the same defenses that a typical DUI case can involve can be useful in defending commercial license holders. Defenses in DUI cases can be legal, factual or scientific in nature, depending on what happened in the case.
Commercial DUI California Useful Links:
CHP DUI Enforcement Manual The California Highway Patrol is the state’s largest law enforcement agency. The CHP is the best equipped and best funded law enforcement agency to regulate DUI’s and DUI enforcement in the state of California. California DMV DUI procedures: This .pdf gives a good overview of the California DMV policies and procedures for DUI cases.
In every DUI case in California, the driver faces penalties from the DMV and from the criminal courts. It is important to understand the differences between the DMV and the courts so that a driver facing a DUI case know what to expect.
DMV: what happens in DUI cases in California during the “APS” Process
The DMV handles DUI cases under its “APS” (administrative per se) process. Because the process is administrative in nature, and not involving a court of law, there are less rights and protections that drivers have:
No right to a jury
Limited rights/protections to screen evidence (watered down evidentiary rules of admissibility/foundation/hearsay
Lower standard of proof for the DMV to take license action than criminal court
A hearing administered by a “DMV Hearing Officer,” who acts as prosecutor, expert witness, judge, jury and executioner
The DMV process starts the moment the driver is first stopped by law enforcement. If the officers (police, highway patrol, etc.) suspect the driver is under the influence of drugs or alcohol, they will use their authority to require the driver to submit a blood or breath sample. Under California’s implied consent law, submitting a chemical sample to law enforcement is mandatory, and failing to do so can result in a severe license restriction (see information on DUI Refusal cases).
If the driver is arrested for DUI and submits a chemical sample, they are often brought to a holding facility where they are kept until released. Upon release, they are given a pink “temporary license” that includes instructions on how to request a DMV hearing.
What you can do about a DMV heaing in a DUI case:
The California DMV has a mandate to suspend the driving privileges of drivers who are involved in DUI cases and strives to remove these people from California’s roads. What this means for drivers is this: The DMV is not fair, they are harsh and they do everything in their power to suspend the driving privileges of DUI drivers. Even though the odds are stacked against a driver in a DMV APS hearing, there are things that people can do:
Talk to a lawyer who is familiar with DMV APS hearings
Make sure to request an APS hearing within 10 days of your arrest (or better yet, have a lawyer schedule the hearing for you)
Understand the limitations that an APS hearing has and that it is not equivalent to a court hearing or court process
Criminal Court Process: California DUI cases when they go to court.
The criminal court process has more safeguards/rights/protections for drivers facing DUI charges. These include:
The criminal court process starts at the arraignment, where the driver is advised that there is a case against them. The arraignment is a very quick proceeding, that can be handled by an attorney without the need for the driver to be present (California Penal Code 977).
In criminal court, the roles of the prosecutor, judge and jury are defined and separated (as opposed to DMV hearings where the DMV Hearing Officer handles each of these roles). The evidence has to meet basic admissibility requirements and the driver, through their attorney, has a better chance of attacking the case against them.
DUI DMV penalties in California are designed to punish DUI drivers, deter drivers from driving while impaired, and ultimately reduce traffic collisions. The California DMV has been given wide reaching and some would argue overly broad authority to suspend the driving privileges of people stopped for DUI. This DMV penalty process for DUI drivers is seperate from the criminal case they may face.
1st DUI DMV Penalties in California
-4 months Driver’s License suspension for Class C License holders
-1 year Driver’s License suspension for class A license holders.
-1 year License Driver’s suspension for DUI refusal cases (both class A & C class licenses)
(Class C is the most common license– Class A licenses are for commercial drivers.)
2nd DUI DMV Penalties in California
–1 year Driver’s License suspension for class C license holders.
-2 year License Driver’s suspension for DUI refusal cases ( C class licenses)
– Lifetime license suspension for class A license holders) for all cases
3rd DUI DMV penalties in California
– 1 year driver’s license suspension Class C license holders
-3 years drivers license suspension for DUI refusal cases for class C
The APS process
The California DMV’s authority to suspend drivers’ licenses in DUI cases comes from changes in the vehicle code that established the “Administrative Per Se” process. The APS process starts with the arrest. During the arrest, law enforcement (commonly CHP) will initiate a traffic stop or man a DUI checkpoint where a driver is approached by offices. If the law enforcement officers have valid pobable cause to demand a chemical sample from the driver, they will advise the driver of California’s “Implied Content Law.” The implied content law requires a driver to submit a blood or breathiest where law enforcement has reasonable cause to believe the driver is impaired by alcohol or drugs.
DUI cases are not typical because they have a large number of scientific and legal issues that most cases do not have. In a typical DUI case, the prosecution’s case includes testimony from law enforcement, civilian , scientific expert witnesses and involves scientific evidence of blood or breath testing. This means DUI cases are complex. This also means DUI cases have numerous ways they can be defended; the more complex the case the more possibility for finding a winning defense. The arguments that can be discovered from the evidence and from the witness testimony are the building blocks of a successful DUI defense.
DUI cases need to be aggressively fought by competent DUI lawyers: The consequences of a DUI case involve DMV license suspensions, Criminal Court proceedings including a permanent criminal record, jail time, mandatory fines, alcohol classes and breathalyzer installation on a person’s car. Click here to learn more about DUI defenses: DUI/DWI defenses.
The most commonly used DUI defenses:
Rising Blood Alcohol Level Defense:
The most common DUI defense is known as the “rising blood alcohol level” defense. The prosecution in a DUI cases has to prove the driver’s blood alcohol level was above 0.08% at the time of driving. The “rising blood alcohol level” defense works like this: A person’s blood alcohol level is zero (0.00%) when they take their first drink. The alcohol in the drink goes into the person’s stomach, not into their blood. The alcohol is slowly absorbed from the stomach over time, into the person’s blood. In cases where the rising blood alcohol level can be used, the person’s blood alcohol level goes from below the legal limit (0.08%) to above the legal limit after they are already stopped by police and submit a blood or breath test.
The prosecution has to prove beyond a reasonable doubt that the driver’s blood alcohol level was in fact above 0.08% at the time of driving, because it is not a crime to have a blood alcohol level above 0.08% at a police station or jail later on.
The rising blood alcohol level defense is useful where the person’s blood alcohol level is close to, but over the legal limit (for example in cases where the breath or blood test show 0.08%-0.12% alcohol levels).
Attacking the accuracy of the blood or breath tests:
A closely related defense to the rising blood alcohol level defense is attacking the science and accuracy of the blood or breath testing used. This is especially useful where the person’s BAC is measured between 0.12-0.15% and a rising blood alcohol level defense would be difficult to argue. The blood and breath tests used by police would seem, at first blush, to be highly accurate and sensitive. But it is this sensitivity that is their greatest weakness: the tests have to be carried out EXACTLY as prescribed in order to show the person’s blood alcohol level to the degree of accuracy needed for a criminal prosecution.
Other Defenses that win DUI cases:
The defenses discussed so far relate to the scientific evidence in a DUI case. There are other defenses, such as attacking police probable cause (or lack thereof), attacking police procedures, impeaching eye-witness testimony and other defenses that DUI lawyers can find when doing a thorough case review.
Los Angeles DUI Lawyer Firm handling DUI and DMV cases in Southern California.
8889 W. Olympic Blvd., Suite 1000 Beverly Hills CA 90211
California law is more harsh to DUI cases if they involve accidents with injuries. The reasoning behind this is to punish and deter the most destructive behavior that can result from a DUI case. For most DUI cases (1st and 2nd DUI’s are the vast majority of DUI cases) the prosecution will charge the defendant under CVC 23152 as a misdemeanor. While a misdemeanor can carrying up to 1 year of county jail for each charge is no small matter, a felony charge for DUI involving injury is on a whole level more serious. DUI cases involving accidents with injuries can be charged as either misdemeanor or felony, depending on the nature of the accident and injuries.
CVC 23153: California’s Vehicle Code Section for DUI involving injury.
CVC 23153 makes it a serious crime in California to drive under the influence of drugs or alcohol and injure someone as a result of an accident. Misdemeanor CVC 23153 can result in up to one year of jail time per charge (often DUI cases involve 2 charges depending on the paragraph of CVC 23153 the prosecution uses to prosecute) while felony DUI cases can involve prison terms of 3 to 5 years.
Great Bodily Injury cases: When CVC 23153 is charged as a felony.
DUI cases involving injury are treated as a felony if, as a result of the driver’s impairment, an accident proximately causes great bodily injury to people involved.
The two issues that stand out for defending “DUI involving injury” cases with the “GBI” allegations are:
– Was the accident caused by the impairment of the driver?
– Were the injuries sustained sufficient for a “great bodily injury” allegation to be established?
The prosecution has to prove that the accident caused injuries of a nature that the victim will suffer long term injury. Examples include:
-permanent nerve damage
-missing limbs, fingers or toes
Examples of injuries not sufficient for a GBI allegation:
-small cuts or bruises
A felony is the most serious crime a person can be charged with. In addition to harsh prison terms, a felony conviction has lifetime consequences for a defendant including:
-Impact on the person’s eligibility for jury duty
-Onerous parole or supervised probation
Defenses for DUI Involving Injury cases:
The defenses for DUI cases involving accidents and injuries are the same for “typical” DUI cases and depend heavily on the facts of the individual case. See more about defenses to DUI Involving Injury cases.
Drug DUI Cases in California: How the law handles Drug DUI.
Drug DUI cases in California involve both legal and illegal drugs that can impair a persons ability to safely operate a motor vehicle. Recognizing the increase in drug use and the increase in DUI cases involving drugs, the California legislature in 2014 enacted new laws that specifically target DUI caused by illegal drugs.
CVC 23152: California’s DUI Statute
In California, most DUI cases are prosecuted under CVC 23152. DUI cases involving an accident where there are injuries to people involved are covered by CVC 23153. “Wet Reckless” cases are covered under CVC 23103.
Before 2014: CVC 23152 a and b
Before 2014, CVC 23152 had two “main” sub-sections, CVC 23152(a) and CVC 23152(b). CVC 23152(b) exclusively covered DUI cases involving alcohol: and made it a criminal act to drive a motor vehicle in California with a Blood Alcohol Concentration (BAC) of 0.08% or higher. This law as known as the “per-se” law because it established a “per-se” limit for blood alcohol concentration: at the arbitrary level of 0.08%.
CVC 23152(a) was used to regulate “impaired” driving involving drug cases. Under CVC 23152(a), it was a crime to drive a car while “impaired.” This “impairment” could be caused by alcohol, drugs, or a combination of both. The language in CVC 23152(a) was vague, which allowed skilled DUI lawyers some room to attack.
After 2014: CVC 23152 amendments.
CVC 23152 was overhauled in 2014, with new sections added that specifically relate to drug DUI.
CVC 23152 (a): “It is unlawful for a person who is under the influence
of any alcoholic beverage to drive a vehicle.”
CVC 23152 (b): “It is unlawful to drive a motor vehicle with a BAC above 0.08%…”
CVC 23152(c): “It is unlawful for a person who is addicted to drugs to drive a motor vehicle.”
CVC 23152(e) “It is unlawful for a person who is under the influence of any
drug to drive a vehicle.”
CVC 23152(f) “It is unlawful for a person who is under the combined
influence of any alcoholic beverage and drug to drive a vehicle.”
The last two paragraphs; CVC 23152 e and f specifically deal with drug related DUI cases. One reason for the added law: it makes it easier for prosecutors to get convictions for drug related DUI. Why? The more charges that can be thrown at a defendant, the more likely one of them will stick. At trial, it is common for a jury to return a verdict for guilty in one charge, if there are multiple charges made against the driver.
CVC 23152 c is not as useful to prosecutors at it would first appear, because the criminal act that must be proven is “addiction.” For a prosecutor to show addiction, the prosecution has to establish the history of the driver using extrinsic evidence. This would involve gathering the driver’s medical records (which are legally confidential), interviewing friends/family (who may be sympathetic to the driver and not want to discuss the driver’s history). and generally involve a higher workload to actually prove the case. It is far easier to rely on a blood sample gathered during the arrest than it is to rely on a person’s history or testimony from others regarding a person.
Drug DUI cases in California: useful links:
Orange County Crime Lab: The OC Sheriff’s Department runs a “crime lab” that handles the blood testing used in Drug DUI cases.
DUI Probation 0.01 cases involve drivers who are currently on DUI probation (for CVC 23152 or CVC 23153 charges) who are stopped by law enforcement and who submit a chemical test that is higher than 0.01%BAC. There are strict penalties for violating the 0.01%(Often called “zero tolerance”) including a lengthy driver’s license suspension
Penalties for violating DUI Probation with a 0.01%BAC result:
License Suspension: 1 year
If a driver is found to be in violation of the zero tolerance probation condition, the DMV will impose a one year driver’s license suspension on the driver. There are no exemptions for driving to/from work. This is called a “hard” suspension, with no driving whatsoever during the suspension. If a driver is caught driving during a “hard” suspension, they can be criminally charged with violating CVC 14601.2, which imposes mandatory jail time, with a minimum term of 10 days and a maximum of six months.
Fines or Additional Probation
Drivers found in violation of their probation will be given addional “penalty assesments,” fines and court fees as a punishment for violating their probation.
Often probation is extended beyond the original probationary term, which has the effect of dragging out the person’s first DUI case because they continue to face the terms of probation beyond their original probation length.
Terms of DUI Probation: “No measurable alcohol while driving”
If a person is convicted of DUI, or “Wet Reckless” (under CVC 23103) often a term of probation is that they cannot be found to have measurable alcohol in their system while driving a car. This restriction is in effect during their entire probationary term. (Typically probation in DUI or Reckless driving cases is 2 to 5 years.) During that time, there is ZERO TOLERANCE for any alcohol in their system while driving.
Consent to Search:
Another term of probation is that the driver agrees to submit to chemical tests and field sobriety test during their probation. The chemical test includes blood, evidential breath and PAS breath testing by law enforcement.
DUI Probation: Useful Resources for DUI Probation.
DUI Chemical test refusal cases involve a driver refusing to submit a chemical test to law enforcement and carry harsh consequences for those involved. The consequences come from the DMV, and from the criminal courts and they include mandatory jail time, lengthy driver’s license suspension, points on the driver’s record, an lengthened alcohol education class and increased insurance rates.
DMV consequences of DUI Refusal to submit chemical test
A lengthy driver’s license suspension is the DMV penalty for refusing to provide law enforcement with a blood or breath sample following a DUI case. For alcohol related DUI cases, the driver is given a choice of blood or breath testing of their blood alcohol content. For drug related DUI cases, the driver is only afforded a blood test. If the driver refuses to submit a blood or breath test, law enforcement may seek and obtain a search warrant from a judge to force the chemical test. If a warrant is used go get the blood or breath test, the DMV will still treat the case as a chemical test refusal on the part of the driver.
DUI Refusal Driver License Suspension in California
A 1, 2 or 3 year license suspension will be enforced by the DMV if a driver is found to have been lawfully arrested for DUI, and refused to submit a chemical blood or breath sample to law enforcement.
The 1 year license suspension is given to first offenders, who are facing their first DUI arrest. The 2 year suspension is given to a driver who has a prior DUI, while the 3 year suspension is given to a driver who has 2 or more prior DUI cases, and refuses to submit a chemical sample in their most recent DUI arrest.
The penalty from DMV is harsh for a reason: the DMV has a mandate to enforce strict compliance with DUI laws and with chemical testing by law enforcement.
For DUI refusal to submit chemical test cases, the DMV has to establish, by a preponderance of the evidence, the following:
1. The Driver was lawfully arrested for suspicion of violating CVC 23152 or CVC 23153
2. The Driver willfully refused to complete a blood or breath test after being properly admonished by law enforcement
California’s Implied Consent Law: What you need to know
The law that allows the DMV to punish DUI Chemical test refusal cases so harshly comes from CVC 23612, known as California’s “Implied Consent” law. Under the Implied consent law, a driver who is driving upon public roadways is considered to have given law enforcement consent to search their blood or breath for evidence of drug or alcohol impairment. This “implied consent,” is implied by the very act of driving in on public roads and using public roads for travel.
California’s court consequences of a DUI Chemical test Refusal: mandatory jail-time
In addition to a lengthy (1, 2 or 3 year license suspension from DMV), a driver who refuses to provide law enforcement with a chemical test following a legitimate DUI arrest faces a similar court mandated license suspension and mandatory jail time:
1. For 1, 2 or 3 years depending on the driver’s prior record
2. A minimum of 48 hours jail time for the refusal, in addition to the penalties associated with the original DUI case. The jail time may be given “concurrently” or “consecutively,” meaning the the jail time may be added to jail time already imposed on the driver for the DUI case.
If you were arrested for DUI in Los Angeles county, you should be aware of what happens to your license and how to get it back as quickly as possible. As with any DUI case, there are DMV and court consequences of a DUI. This includes license action taken by the DMV and the court. It is important to understand what happens to a person’s license when the DMV takes action, and when the court takes action.
DMV:Avoiding a DUI License suspension from DMV, or if getting your license back as soon as possible:
First Offense DUI: 4 month suspension, with the ability to get a restricted license (To/From work after the first 30 days)
In California, the DMV has authority to suspend a driver’s license under the “APS” or “Administrative Per Se” procedures. The process starts when the officer in the case takes the driver’s license and furnishes the driver with a pink document. In the upper corner of the document, you can see “APS” written. This is the person’s temporary license, and is only valid for 30 days. If the driver fails to request a hearing after the first 10 days, the driver will face an automatic suspension starting 30 days after the arrest.
If the DMV determines that a suspension is warranted, the suspension will begin after the driver is given a notice, usually two weeks following the conclusion of the hearing in the case.
Process to get license back:
The driver will receive a notice from the DMV that states when the suspension will take effect, and exactly what steps are needed to get the licesne back. For the typical first offender, the steps are:
Wait the first 30 days
Obtain an SR-22 or other proof of financial responsibility
Visit local DMV branch office, pay a reinstatement fee and have new license issued (including getting a new picture taken.)
6 month license restriction
In Los Angeles (and three other California counties) install an ignition interlock device for a period of 5 months
The criminal court in a DUI case will also take license action if a driver is convicted of DUI. If the driver is successful in beating their case, no court restrictions will occur. It is possible to win at the DMV and lose in court, or more commonly, to lose at DMV and win in court. The driver will only face license restrictions/suspension if they are convicted in court or lose their DMV hearing.
A wet reckless conviction will avoid court restrictions and IID requirements but may still involve DMV suspension through the APS process.
Pasadena DUI Lawyer: Handling DUI Cases to ensure the best possible outcome.
A Pasadena DUI Lawyer can make the difference between a winning outcome and a bad situation. DUI arrests are very common, approximately 1 out of 5 adult drivers will face DUI charges at one point in their lifetime. As common as DUI charges are, they are still traumatic to those involved, and need to be handled properly.
What are the consequences of a DUI arrest in Pasadena?
A DUI arrest in Pasadena has criminal court and DMV consequences. It is important to understand the penalties in DUI cases in addition to understanding what can be done to fight a DUI case with the help of a Pasadena DUI Lawyer.
Criminal Court Consequences:
A DUI arrest in Pasadena involves a criminal prosecution of the driver, where the driver faces stiff fines, probation, mandatory installation of an ignition interlock device and the real possibility of jail time. A permanent criminal record that doesn’t qualify for automatic ezpungement is another outcome that people facing DUI charges should be aware of.
The DMV will also take action against a DUI driver by initiating an automatic driver’s license suspension of up to 1 year in first offense cases unless the driver fights and wins an APS hearing at a local DMV DSO.
How to fight a dui case with the help of a Pasadena DUI Lawyer:
Finding the right Pasadena DUI lawyer makes all the difference in your case. The most important job for a Pasadena DUI lawyer is to fight for their clients. That is what we live for: to fight for the rights of our clients. And the results show: Not guilty verdicts at trial, DMV hearings where our clients get to keep their licenses, fine reductions, jail avoided. It takes a dedicated Pasadena DUI lawyer to get results for their clients.
A Pasadena DUI lawyer’s primary task is to advocate for their clients. This starts at the intake of the client, where the lawyer will go over what happened to the client during their DUI stop. It is very important for the client to be absolutely honest with the lawyer and not leave anything out of the discussion. From this initial consultation, which can be over the phone initially, the lawyer will have a grasp as to what factual issues the client is facing. From these facts, a basic plan of attack can be formulated with respect to the client’s case. This plan of attack will incorporate the most common DUI defenses so that the client can benefit from defenses that have worked in other cases.
A Pasadena DUI lawyer’s guide to common DUI defenses.
DUI cases have been defended against for decades, and certain time tested defenses have worked. Your DUI lawyer will know which defense is best suited for your case. The most common DUI defenses include:
-The rising blood alcohol defense, where it is shown that your blood alcohol level is below the legal limit at the time of driving.
-Attacks on the probable cause the police officers had in the initial stop of the motorist.
-Challenges to the scientific accuracy of the blood or breath testing done to show the driver’s actual Blood Alcohol Level.
Legal Defenses in DUI cases that work.
Every DUI cases is different, some cases are fact intensive, where your Pasadena DUI lawyer has to use the facts of the case to formulate your best defense. An example of this would be a case involving a “no drive” defense. In those cases, your lawyer will attempt to show there is a lack of evidence with respect to who was driving the car, and thus no-one can be charged with DUI. This occurs where police officers come upon the scene of the car, whether it is at the scene of an accident, or parked at the side of the road. Regardless of how it got there, if police in your case cannot show you were the person driving the car, your lawyer will argue that in your case.
Scientific Defenses that a Pasadena DUI Lawyer can use.
In cases where blood or breath testing is done (which coincidentally are the vast majority of DUI cases) your Pasadena DUI lawyer will have to attack the validity of the tests done. At first impression, the testing done in DUI cases is impressive. Blood or breath tests seem highly accurate and highly sensitive in detecting alcohol impairment. But it is this sensitivity that is their downfall. The extreme sensitivity of these tests means police officers conducting these test have to perform EVERY step correctly. (This is often not the case, given the widely known attitude of most government employees.) Your DUI lawyer will look at the testing done in your case for any sign that the officers involved did not perform every step correctly. If there is a mistake, your Pasadena DUI lawyer will use that to your advantage and attempt to quash the evidence and prevent it from use at trial.
What you are facing in your Pasadena DUI case.
The penalties for DUI in a common first offender DUI case in Pasadena are:
-DMV license suspension of 4 months
-A further court ordered license suspension of up to 6 months.
-Mandatory Alcohol classes
-Mandatory installation of an ignition interlock device
-Jail time for certain cases
Pasadena DUI lawyer tools
Map showing location of Pasadena Courthouse. DUI cases are sent to the Los Angeles County Superior Court, Pasadena branch and typically are first heard in Dept. G. In cases involving felony DUI, other courtrooms handle the arraignment and preliminary hearings.
DUI cases are heard at the Pasadena Superior Court on Walnut Street. Pasadena Police Department: The Pasadena Police Department handles many DUI investigations in the Pasadena area.
Pasadena City Attorney: The Pasadena City Attorney’s office is the primary prosecuting agency for DUI cases in and around Pasadena.
Pasadena District Attorney: The Los Angeles County District Attorney’s office handles felony cases within the Pasadena City limits, as well as misdemeanor and felony DUI cases in the areas immediately adjacent to the city of Pasadena.
Altadena CHP Station: Many Pasadena DUI cases involve the officers from the CHP that are based at the Altadena CHP Station. Responsible for the area surrounding Pasadena, this CHP Station frequently handles cases on the 134, 210 and 110 Freeways in the area in addition to surface streets.
Pasadena Criminal Defense Attorney: Ann Gottesman is a Pasadena Criminal Defense Attorney who regularly handles criminal cases in Pasadena. Her site is useful for information on the Pasadena criminal courts.
As you can see, the penalties for a first offender DUI case in Pasadena can be severe. It is wise to consult with a DUI lawyer who can help you minimize the penalties.
How a Pasadena DUI lawyer minimizes penalties in DUI cases.
A Pasadena DUI lawyer will show you how to minimize the punishments and penalties in your case. The most basic way to minimize the penalties imposed on a DUI defendant is to fight the case vigorously, and attempt to show the prosecution that a trial in the case will be difficult for them. If your lawyer can do this, the prosecution will be more inclined to reduce the charges in your case. If your lawyer has difficulty in persuading the prosecution to lower the charges, your lawyer can work with the judge in your case to see if judicial discretion can be applied in your case. Often prosecutors seek punishments that are more harsh than those a judge actually imposes on a defendant.
It pays to consult with a Pasadena DUI lawyer.
A consultation with a DUI lawyer familiar with the various defenses in DUI cases can help you:
-put your mind at ease
-allow you to focus on work or family commitments’
-have a DUI lawyer go to court on your behalf, so you don’t miss work or family events.
-Have a trained professional look over the facts of your case so that no defense is left un-examined.
-Reduce the penalties you face
Working with a Pasadena DUI lawyer, your case will have the best outcome possible given the circumstances. Call 213-400-0358 to speak with a professional Pasadena DUI lawyer about your case and have your questions answered by someone who cares and who listens. Your case can be won if you consult with a knowledgeable Pasadena DUI lawyer who knows what it takes to win DUI cases in Pasadena.
When is a DUI a felony? California’s law regarding felony DUI:
Felony DUI is a serious charge, with length state prison sentences for those convicted. Most DUI cases are treated as misdemeanors, not felonies. Misdemeanor DUI cases involve county jail terms of no more than 1 year, whereas felony DUI cases can involve 4 or more years in state prison. In California, a felony DUI that is the result of an accident with great bodily injury is treated as a violent strike felony; a qualifying offense for the state’s harsh “Three Strikes” law.
In California, there are two ways that a DUI can be treated as a felony: DUI cases involving an accident that causes great bodily injury to someone, or a qualifying offense based on the defendant’s prior record.
Felony DUI involving Great Bodily Injury:
Where an accident, involving great bodily injury occurs, a DUI cases can be elevated from misdemeanor to felony. The key factor in Felony DUI cases involving injury to another party is the level of injury sustained by the other party. If there is “great bodily injury,” a felony DUI can be charged. Great bodily injury involves severe injury that is likely to cause permanent damage to the victim. Examples include:
-punctured eye balls or damaged eye sockets
Minor whiplash, minor scrapes or bruises do not qualify for great bodily injury. Soft tissue damage can only qualify if the injuries are sufficient to cause permanent damage to the victim.
The accident has to be shown to be the cause of a vehicle code violation on the part of the defendant that resulted in the accident. It is not enough for the prosecution to simply show an accident occurred: there has to be a direct causal link between the defendant’s impaired condition due to alcohol and drugs and the accident.
Prior Felony DUI’s: Any subsequent DUI within 10 years will be treated as a Felony.
Under California law, if a person has a prior felony DUI, any subsequent DUI will be treated as a felony; regardless of the circumstances in the new case. The new case could be a simple DUI case involving innocuous driving and no accident, with a fully cooperative defendant who does everything law enforcement asks them to do. Regardless, because of the prior felony DUI the new DUI will be treated as a felony.
4th DUI: A driver with a fourth DUI will be charged with felony.
Aside from serious injury cases, or cases where the driver had a prior felony within 10 years, California law treats a fourth or subsequent DUI as a felony. Again, even if there is no accident, a cooperative defendant and an otherwise “minor” DUI, the fact that the driver has had 3 prior DUI’s means the driver will face a felony charge in their fourth or subsequent DUI.
Felony DUI Useful Links:
Felony: What makes a criminal act a felony? DUI Criminal Cases vs DMV Hearings: The California DMV has provided information about the differences between a criminal court and a DMV hearing. California Highway Patrol: CHP’s DUI public awareness information regarding DUIs, the dangers posed by DUI, DUI enforcement and DUI penalties.
Attacking Breath Results: How a DUI attorney handles breathalyzer evidence.
DUI cases are unique because of the scientific evidence used by law enforcement to arrest and convict. Attacking the breath results in a DUI case is a very important task for any DUI attorney because a jury will often put a lot of weight into the breath results. As impressive as the breathalyzer science is, it is important to understand the profound flaws that are inherent in this evidence.
How a breathalyzer works in a DUI Case:
The law prohibits driving while impaired, and a driving with a blood alcohol level above a certain threshold (0.08%). Measuring blood alcohol level in a driver necessitates that law enforcement get access to the person’s blood. This can be done, of course, through a needle. A less intrusive method was developed in the 1980’s, using a person’s breath to extrapolate and measure their blood alcohol level.
The theory behind a breathalyzer is as follows: Blood vessels that line a person’s lung will allow alcohol to diffuse through the lining of the person’s lungs into their breath. When the person exhales, alcohol that passed from their blood vessels into their lungs can be measured by a machine that traps and analyzes the person’s exhaled breath.
Problems with the accuracy of breathalyzers: They are NOT nearly as accurate as people think.
As you probably figured out, measuring a person’s blood alcohol content is very difficult using breath measurement. First and foremost, the rate of diffusion across the lining of the lungs varies significantly amongst various races, ethnicities and even between genders. The measurement of blood alcohol level using breath involves “co-efficients” or assumptions that are applied across the board. While these co-efficients may be accurate for a small percentage of the population, they are not accurate for everyone and can result in a wide disparity between the measured blood alcohol level and the person’s actual blood alcohol level.
Other sources of error for breathalyzers:
Other sources of error inlcude:
-Medical conditions that render the readings falsely high
-Issues during the absorption phase, where a blood alcohol level reading can be off by as much as 200%!
-Fuel Cell technology in the device that can be erroneous when the unit’s battery’s are not fully charged
Reasonable Doubt in DUI cases: how to effectively argue doubt.
Reasonable Doubt is a legal concept that is used in criminal trials, where the jury is instructed to find the defendant not guilty if the proof in the case has reasonable doubt. The concept of reasonable doubt is complex and involves a number of factors that a lawyer must argue to a jury to ensure the best possible outcome for their client.
CALCRIM 220: Reasonable Doubt Jury Instruction:
In court, the jury is given instructions by the judge on how to examine the evidence. In criminal cases, these instructions are found in something called “CALCRIM,” which is written by the California Judicial Council. In crimial cases, these jury instructions tell the jury how lto examine and weigh the evidence in the case. One of the most important instructions a jury gets is CALCRIM 220, the Reasonable doubt instruction. This instruction tells the jury that if there is a single reasonable doubt in a criminal case, the jury must vote not guilty.
The reasonable doubt standard: Not possible or imaginary doubt:
CALCRIM 220 points out that everything in life is open to possible or imaginary doubt, and that the jury is to overlook these doubts. However, if there is reasonable doubt, then the jury must vote not guilty. Reasonable doubt can be for any reason:
-Differences in the stories told by the witnesses
-Inaccuracies in scientific evidence
-Doubtful facts that cannot be believed
CALCRIM 220 is very clear on the subject, if there is any doubt, the jury must acquit the defendant and vote not guilty. This standard applies to all criminal defendants charged with any criminal charge.
Examples of Reasonable doubt:
Common examples of reasonable doubt include witnesses being caught in untruthful testimony, evidence being improperly gathered, evidence that can be interpreted in a manner that points to guilt and innocence depending upon how it is examined.
PAS testing, or “Preliminary Alcohol Screening” testing, is an investigatory tool used by police in DUI cases. Of dubious scientific validity, PAS tests can be used to either test for the “yes/no” presence of alcohol, or, if certain scientific safegaurds are followed, can be used to determin
e the blood alcohol concentration of a person by measuring their breath alcohol.
PAS Tests: The right not to submit a PAS test.
PAS testing is not mandatory… meaning you can refuse to submit a breath PAS test. This is different from an “evidentiary” test (sometimes known as “evidential” test) that is mandatory if you are arrested for DUI. Law enforcement is required to admonish you and let you know that you have the right to refuse the PAS test. (People on probation for DUI’s are required to submit a PAS sample if asked by law enforcement.)
How a PAS testing device works: The dubious science of measuring a person’s blood alcohol level.
The PAS device works by measuring a person’s breath for the presence of alcohol. In theory, laser light shined through alcohol will reflect in a certain way, allowing a machine to measure alcohol by shining laser light into it. The numeber that is measured is alcholo particle in the person’s breath. As you probably already figured out, this is not a direct measurement of the person’s blood for the level of blood alcohol. The person’s blood alcohol content is then “dervied” or calculated using the breath measurement. The process of determinining a person’s blood alcohol content from breath done using a “partition ratio” that the breath measurement is multiplied with. The “partition ratio” is very problematic because it assumes all people are the same. They are not. The proper partition ratio varies between the sexes, between races, between invididuals and even varies in the same individual depending on their current metabolism.
Holidays are the days when DUI arrests are most frequent. In fact, Thanksgiving day is the #1 day for DUI arrests. The summer holidays have their fair shair of DUI arrests, with the #2 day being July 4. This is due to holiday DUI enforcement in California and the other states that is designed to deter, catch and punish DUI driving during holidays.
The focus of all DUI enforcement, whether during holiday periods or during other times of the year, is to:
1. Reduce traffic fatalities
2. Reduce traffic accidents
3. Deter Driving Under the Influence crimes
4. Catch and Punish those engaging in DUI activities
A more cynical view says DUI enforcement efforts are also geared toward:’
1. Money making for the government
2. “Awards” that MAAD and similar activist groups give to officers for the number of DUI arrests they make
Holiday DUI Enforcement Methods:
Saturation patrols are like their name implies: the roads are literally saturated with as many officers as law enforcement can muster. Officers are put on double, even triple over time. Shifts are added. Vacations are re-arraigned so that there is a maximum police/highway patrol presence during the holiday periods.
Check points are another law enforcement tool used to combat DUI accidents and deaths. Check points are set up on busy streets or boulevards where a large number of DUI arrests and accidents have occured in the past. DUI checkpoints have to meet a number of stringent constitutional requriements before they are set up, to ensure the government is not overly intrusive in its law enforcement efforts.
DUI Task Force Officers:
On nights with frequent DUI accidents/arrests, DUI task force officers are sent out on numerous patrols. These officers have special training in the common field sobriety tests:
HGN Horizontal Gaze Nystagmus Test
Heel to Toe Walk the Line test
One leg stand test
Marinjana DUI’s in California have different consequences than alcohol related DUIs. A marijuana DUI does not involve a DMV APS suspesnion of a driver’s license, but a criminal court case and possible court license suspension can result from a marinjuana DUI.
A misdemenaor or felony criminal record, large fines, jail time, court imposed driver’s license restrictions and other penalties are all possible if a person is convicted of marijuana DUI in California.
Why doesn’t the DMV suspend a driver’s license in a marijuana DUI?
The California DMV is not statutorily authorized to suspend a driver’s license unless the driver either 1. Refuses a chemical test or 2. is shown to have a blood alcohol leve at or above 0.08% at the time of driving. In marijuana cases where the driver submits to a blood test, if their blood alcohol level is below 0.08%, the DMV will not suspend the driver’s license in a normal DUI APS suspension. The driver still faces court mandated driver’s license restrictions however, if they are convicted of marijuana DUI.
Court consequences of a Marijuana DUI:
California’s Vehicle Code 23152 has prohibited marijuana and drug impaired driving since its recent 2014 amendments. Historically, the vehicle code had two sections related to DUI: CVC 23152 a and b. CVC 23152a prohibited “driving while impaired” while CVC 23152b prohibited driving with a blood alcohol level at or above 0.08%. The California legislature, recognizing the increasing number of drug related DUI’s, enacted several new sub sections of 23152.
CVC 23152(e) prohibits driving while under the influence of any drug, including marijuana.
CVC 23152(f) prohibits driving while under the “combined effects of drugs and alcohol.
Important differences between alcohol DUI and marijuana DUI
Aside from the differen treatment at DMV, marijuana DUI cases in California do not involve a “per se” limit such as the 0.08% limit that most people are familiar with in alcohol related DUI’s.
The reason for this is simple: the science of marijuana and drug impairment and how they relate to driving has not been developed to the level that law makers feel comfortable making a “per-se” limit. This works well for defense attorneys who defend marijuana cases: there is no legal limit to attack in court.
A DUI arrest in the Joshua tree area involves Criminal Court consequences and DMV driver’s license consequences. Certain careers, such as real estate agent, nurse, medical doctor, military officer or enlisted solider can also be impacted by a DUI arrest due to reporting requirements in those careers based on the driver’s work situation.
Criminal Court Consequences:
A DUI arrest is typically charged as a misdemeanor in the state of California. If convicted of DUI, a person faces:
-A permanent criminal record
-Summary probation (for a period of 3 to 5 years)
-Mandatory Alcohol education classes
-Mandatory attendance of AA meetings
How a Joshua Tree DUI Lawyer helps their clients:
A Joshua Tree DUI Lawyer’s primary job is to listen to client’s needs and to address them using their experience and knowledge in handling DUI cases. People with DUI’s have questions about the criminal justice system because they are not career criminals and for many this is the first time they have ever dealt with the court system, let alone face criminal charges.
Consequences of a DUI in Joshua Tree:
A Joshua Tree DUI Lawyer will understand the nature of the consequences of DUI arrest in Joshua Tree. As described above, the criminal courts and the DMV have the ability to severely punish people who get a DUI.
The DMV will automatically suspend your license within 10 days of a DUI arrest if you do not request a hearing. DMV hearings are complicated and should be handled by a DUI lawyer.
The Criminal court system in a first offense DUI cases can impose jail time, fines, penalties, probation, mandatory alcohol classes and other punishments for a DUI defendant.
The criminal court system in DUI cases
The two areas of concern for most people facing DUI charges are the DMV and the Criminal court system. Both the DMV and Criminal court system have the power to suspend or restrict a person’s driver’s licensee. The criminal court system goes further: people facing DUI charges.
A DUI arrest has an effect on a person’s criminal record, and on their driver’s license. This is because a DUI arrest involves a criminal court case being filed against the driver, and license issue being taken by the DMV.
Criminal Court Case:
Most DUI arrests are charged as misdemeanors case, with the driver facing a permanent criminal record. Fines, court costs, fees, mandatory alcohol education classes, MAAD victim “panels” where the driver is lectured to by drunk driving accident victims, installation of a breathalyzer on the person’s car are all consequences of a misdemeanor DUI arrest. Jail time is given for misdemeanor cases involving certain facts such as a high blood alcohol level, a driver lying to police during the arrest, bad driving such as speeding or reckless driving and other factors that a judge uses to determine if jail is appropriate.
Felony DUI charges are possible if there are aggravating factors involved such as:
-An accident involving great bodily injury
-A hit and run case
-A 4th DUI for someone with multiple DUI cases
The DMV will automatically suspend the driver’s license of a person involved in a DUI arrest in Pomona unless they contact the DMV within 10 days of the arrest. The defenses that are raised at a DMV hearing for a DUI case are similar to those used in court:
-Attacking the legality of the stop, including police procedures
-Showing the driver’s blood alcohol level was below the 0.08 limit
-Raising doubt as to the police case, statements, reports, protocols and portable breath testing equipment
If you were arrested in the Pomona area, a first step would be to call a Pomona DUI lawyer. A DUI lawyer dedicated to DUI cases can show you what you’re up against, and how to best fight the case against you. A Pomona DUI Lawyer can help you if you are dealing with a DUI arrest in Pomona by:
-Going over your rights
-Reviewing the case for you
-Showing you the best way to get a better outcome.
A Pomona DUI Lawyer will know where to start and what defenses work in your case.
Besides knowing the best starting place for you, a Pomona DUI lawyer will know what defenses in these cases work so you have the best chance of beating your DUI arrest. The DUI attorney you speak with will also know how to prioritize the various defenses so you can put your best foot forward with the defense that will work in your case.
After having one of the worst experiences of their lives, a person arrested for DUI isn’t in the mood for games, or bad advice. This person needs the advice and counsel of a DUI lawyer. A Pomona DUI lawyer will know where to start.
During the consultation with a Pomona DUI lawyer, you will go over the defenses that work in DUI cases, including:
-the rising blood alcohol level or “BAC” defense will work for you
-how to challenge the stop by police
-how to subpoena evidence in your case to build the most successful defense possible
DUI checkpoints are common law enforcement tool to catch DUI drivers by literally establishing road-blocks that force drivers to interact with law enforcement face-to-face. These checkpoints do more than just catch DUI drivers, they are used by law enforcement to catch:
-Drivers without valid insurance or registration
-Underage drivers driving past certain hours (there limits to minor aged drivers driving at night)
The penalties for a DUI arrest at a DUI checkpoint are the same as with any DUI stop:
-License suspension by the DMV
-Permanent criminal record
-Hefty fines and possible jail time
What are some defense issues that come up with DUI checkpoint cases?
Good Driving Exhibited by Driver
For a DUI attorney, a DUI checkpoint case can present a number of viable defense issues that will help the driver involved. A DUI case is built on the accusation that the driver was too impaired to drive, yet at a checkpoint, the driver successfully approached the checkpoint and interacted with law enforcement.
Most DUI cases involve some type of bad driving by the defendant: speeding, swerving, crossing over lines at a stop-sign or intersection. Checkpoint cases, however, often involve a driver simply pulling up to the checkpoint: no bad driving observed by the officer.
This is the starting place for a DUI defense involving DUI checkpoint cases.
Legality of the Stop
California law is in accord with federal law with respect to the right of the individual to be free from unreasonable police interference. When it comes to DUI checkpoints, this means the police or other law enforcement agency has to publish in local media a list of where and when a proposed DUI checkpoint will be established. This also means the checkpoint has to be set up in manner where a driver who does not wish to drive through the DUI checkpoint can chose an alternate road.
What a San Bernardino County DUI Lawyer does for his clients:
San Bernardino county is the largest county in the world in terms of land area, and is a place where DUI arrests are not rare. Traffic driving back from Las Vegas to the Southern California area, people visiting the Colorado River area in Arizona, and folks headed out to one of the many wilderness areas or national parks that dot the landscape can sometimes find themselves on the wrong end of a DUI arrest. If you or someone you know is having issues because of a San Bernardino county DUI arrest, call a San Bernardino County DUI lawyer who knows what it takes to win and avoid:
-Permanent criminal record
-Driver License Suspension
-Increased Insurance Premiums
A San Bernardino County DUI Lawyer to explain the DMV and Court Consequences of a DUI arrest:
If you or someone you know were arrested for DUI, you should be aware of the two main areas of concern: the DMV and the criminal court system.
The DMV will suspend the driver’s license of someone arrested for DUI for a period of a 4 months to 2 years, depending on the nature of the DUI arrest and the driver’s prior driving record. Unlike the criminal court process, the DMV process does not involve most of the fundamental rights (such as right to jury trial, right to remain silent, right to appointed legal counsel) because the DMV license suspension is primarily civil in nature. The DMV APS process has special legal defenses that a San Bernardino County DUI lawyer will be familiar with.
San Bernardino County DUI Lawyer Useful Links:
San Bernardino County is the largest county in the world in terms of landmass, with an area larger than 9 states!
Warrantless arrest in DUI cases: The exceptions to the Warrant Requirement
For a lawful arrest, law enforcement must show sufficient probable cause. This can be shown where the police officer witnesses the violation first hand (in misdemeanor cases) or the must secure an arrest warrant from a judge. This basic rule is known as the misdemeanor warrant rule, where police officers must first secure an arrest warrant if they did not witness the commission of a misdemeanor. In felony cases, a warrant is not required if there is a witness that notifies law enforcement that the felony occurred.
DUI cases are usually misdemeanors, so the “misdemeanor warrant rule” applies to them. Over the years, law enforcement found the misdemeanor warrant rule was overly burdensome in their enforcement efforts so they lobbied for a change in the law to allow for warrant-less arrests of DUI suspects.
CVC 40300.5: Warrantless arrests for DUI cases
The law in California was amended and basic protections of individual liberty were curtailed by Vehicle Code Section 40300.5. Law enforcement officers in the state of California can arrest someone on suspicion of misdemeanor DUI if they can show one of the following:
(a) The person is involved in a traffic accident.
Often law enforcement will come upon the scene of an accident. Even though the officers did not observe the misdemeanor violation (person driving under the influence) they can form the requisite legal justification based on the circumstances of the accident scene.
(b) The person is observed in or about a vehicle that is obstructing a roadway.
This occurs when a person parks their car partially or totally in a roadway. Even though officers did not observe driving, they can infer driving based on the circumstances in which they find the driver.
(c) The person will not be apprehended unless immediately arrested.
This sub section of CVC 40300.5 is frankly a loop-hole someone could drive a car through. Pretty much any person at risk of being arrested, or even thinking they are at risk of being arrested, is likely to run.
(d) The person may cause injury to himself or herself or damage property unless immediately arrested.
This justification is often used in DUI cases because an impaired driver certainly creates a risk of property or person damage if they are allowed to drive away.
(e) The person may destroy or conceal evidence of the crime unless immediately arrested.
This is another loop hole that is relied upon by law enforcement to arrest people without a warrant.
DUI cases are unique because ofthe legal, scientific and factual issues they present. Knowledge in the strategies that win DUI cases is important for any Los Angeles DUI Attorney to help their clients get the best oucome possible.
Sceintific Issues in DUI Cases:
At the heart of any prosectuion case for DUI is the science of alcohol and or drug impairment. The level of intoxication, the percentage of Blood Alcohol Content (BAC), the phisiological effects on a person’s ability to drive a car are all factors that play out in a DUI case.
Blood Alcohol Content (BAC):
The central piece of most DUI prosecutions is the blood or breath test showing the driver’s BAC. The laws in all 50 states have changed over the years to their present rule. The rule in California, as in most states, is a person with a BAC at or above 0.08% is guilty of DUI. A driver’s BAC is measured by either direct blood testing or through breath testing, which extrapolates (using a questionalbe technique called a “partition ratio”). In the case of breath testing, theoretically, if a person has alcohol in their circulatory system, some of it will osmos into their lungs and out of their breath during respiration.
Los Angeles DUI Attorney tactics to attack breath testing
As stated before, the “partition ratio” used in extrapolating a person’s BAC from their breath is questionable because of the variables involved. Not everyone’s lungs are the same, with important differences in the lining, mucous, and osmosis that occures in their alvoeli (the small individual sections of the lung.) Prosecutors use a “standard” partion ratio, that may be accurate in some of the population, but not for others, whose genetics and phisiology make using a “standard” a trial in errors.
Strategies used in attacking the Legal Justification for DUI arrests
Aside from scientific defenses, most DUI cases present DUI Defense attorneys with opportunity to attack police investigation and legal procedures used to arrest the driver. Was there probable cause for the stop? Did the officer properly advise the driver of his or her rights? Were proper police procedures followed? These questions are often ways for DUI attorneys to find defenses that win DUI cases. Check out out discussion of the common DUI defenses that win DUI Cases.
Useful Los Angeles DUI Attorney Links:
http://www.ndaa.org/pdf/Chalenges%20and%20Defenses%20II.pdf. Link to the National District Attorney’s Assocaition DUI defense tactics and strategies guide. Used by prosecutors, this guide describes the most common DUI defenses and is a good starting point for learning more about common DUI defense strategies.
Partition Ratio in DUI Cases: This link is a discussion of partition ratios used in DUI cases and discusses the best defense strategies that attack these ratios.
The Commerce DMV DSO Office is located at the corner of Slauson and Eastern in Commerce, CA. (See map below)
For DUI cases, an APS hearing is conducted to determine whether the driver’s license should be suspended. Other cases at Commerce DSO involve DMV License suspension for Physical and mental issues with a driver (known colloquially as a “P and M” suspension) in the area surrounding Commerce, CA, cases are sent to the Commerce Driver Safety Office.
Your Right to a Lawyer:
DMV hearings, whether they be APS hearings for DUI cases or P and M hearings to suspend a driver’s license based on physical or mental issues are serious. They are not “interviews” or informal chit-chats. They are legal type proceedings and therefore you can have a lawyer help you and in many cases even attend the hearing on your behalf so you don’t have to deal with the hearing.
How does the DMV chose which DSO to send a case to?
Commerce DMV Driver Safety Office
The DMV will send a case to a Driver Safety Office that is closer to the witnesses or law enforcement agency involved in a case. In DUI cases, the location for the APS hearing is determined by where the officer works. For P and M hearings, the location for the hearing depends on where the driver resides and where any witnesses reside. A determination will be made to chose the location closest and most accessible to the most witnesses.
What issues are determined at the Commerce DMV Office?
Depending on the case before the Hearing Officer, issues related to the arrest and chemical test given to the driver are analyzed by DMV employees at the various DSO’s. These employees are called “Hearing Officers” and have extraordinary power over an individual’s driver’s license. DMV Hearing Officers act as Judge, Jury, Expert Witness, Prosecutor and Executioner in DMV cases. The Hearing Officer will present the DMV’s case (typically consisting of sworn police reports and statements, witness statements and laboratory reports such as blood results or breath testing results) in the capacity of “prosecutor” at the same time weighing the evidence as a judge. The Hearing Officer will also listen to any counter argument put forth by the Respondent or their attorney, and they will rule on evidentiary challenges such as objections based on “hearsay” or other common legal objections to questionable evidence.
Issues presented in DUI Cases:
For a common DUI case, there are three issues that must be proven by a preponderence of the evidence:
-The Driver was driving the car
-There was a lawful arrest
-There was a chemical test showing the driver had a blood alcohol level above 0.08% at the time of driving.
A very common question I hear is “What should I do if I’m pulled over?” California has some of the most sophisticated DUI law enforcement tactics used in any state. If you’re worried about a DUI arrest, there are some important things to understand an d some important steps you can take to minimize your chances of being arrested, or worse, convicted of DUI.
Keep in mind the the officer who stops someone for suspicion of DUI isn’t looking for reasons to let you go home. He or she is looking for reasons to arrest you. Don’t unwittingly give the officer’s the evidence they need to use against you.
Should I blow a breathalyzer??
Remember this helpful memory aid when it comes to blowing a breathalyzer: “On the roadway, No way. At the Station, OK.”
DO blow at the station. DO NOT blow on the roadside.
There are two types of breathalyzer tests that law enforcement use in DUI cases. The PAS device (or preliminary alcohol screening device) and an EVIDENTIAL device. The evidential device is named this way because it can be used against a person in court as evidence because it meets higher scientific standards and accuracy measurements than the more simple “preliminary” device.
The goal here is to not blow in the PAS device at the side of the road, but to submit a chemical sample at the police station if you are taken there. Why? Because refusing to blow into an evidential device is grounds for a DUI Refusal case against you, with a much more severe license restriction (1 year vs. 3 months.) As an attorney who has handled refusal cases, I can tell you categorically you do not want to face a refusal allegation.
DO’s and DON’Ts that you should be aware of.
Be polite and cordial to the officer
Remember the officer has training in interrogation tactics, so be careful about what you say and do
Submit a chemical test AT THE STATION DO NOT:
Perform any FST’s (Field Sobriety Tests) such as the One-leg stand, or the “Walk the line” test
Blow into the PAS machine at the side of the road
How a drug DUI Lawyer in Los Angeles fights DUI cases: Scientific and Legal defenses.
Drug DUI cases are becoming more common. This is due to the increased availability of marijuana (medical marijuana in states like California and even recreational marijuana in states like Colorado). Like alcohol, marijuana can have properties that impair safe driving. Unlike alcohol, the scientific research surrounding marijuana DUI is not advanced and the actual level of impairment that a marijuana user experiences is not well understood. This makes defending marijuana cases easier than alcohol related DUI cases.
The law in California: Drug DUI in CVC 23152:
The California legislature enacted new laws in 2014 targeting drug DUI with specific language in the vehicle code. Prior to 2014, there were two sub-sections of CVC (California Vehicle Code) 23152: Subsections a and b. In subsection (a), it was a criminal act to drive a motor vehicle while “impaired” to a degree that a person of ordinary care would be un-able to drive a car safely. Subsection (b) made it a criminal act to drive with a blood alcohol level above 0.08%. In the past, drug DUI cases were prosecuted under paragraph (a) of this section, with the prosecution arguing the driver was “impaired” to such a degree that they couldn’t safely operate a car. This (a) paragraph was used in both drug and alcohol DUI cases, where a driver facing an alcohol related DUI could face charges under both (a) and (b) if they were impaired and also had a blood alcohol level above 0.08%,
Under the new law, drug DUI cases are charged under CVC 23152 (e), which makes it a crime to drive under the influence of a “drug,” including marijuana.
Defenses that work in Drug DUI Cases:
If you were stopped in Los Angeles or the surrounding areas for Drug DUI, there are number of defenses available to you to fight your case both in court and at the DMV. To see the most common DUI defenses, check out “DUI Defenses,” to see how to beat a DMV hearing, check out “Save your license.”
A person who has a teaching credential in the state of California should be aware of the ramifications of a DUI conviction and how it effects their teacher’s credential. For everyone charged with DUI, there are criminal court consequences and DMV consequences. For teachers, the California Commission on Teaching Credentialing can also effect that person if they are charged with DUI.
Criminal Court and DMV consequences:
For a first offense DUI, a person who is charged with DUI faces:
-Permanent criminal record
-Mandatory Alcohol Education classes
-Fines, court penalty charges and fees (totaling approximately $3000 for a first offense DUI)
-Possible jail time (certain counties such as Ventura are harsh and impose jail time, even on first offender DUI cases)
-The mandatory installation of an ignition interlock device (IID) on their car
-Driver’s License Suspensions from DMV up to 4 months, with restrictions on where a person can drive for up to 6 months.
California Commission on Teaching Credentialing:
The California Commission on Teaching Credentialing is governed by sections in the Education Code starting at Section 44000 and has certain reporting requirements that teachers must comply with. Teachers must report DUI convictions when applying for or renewing their teaching credentials. Upon self reporting, the Commission will make a thorough review of the case against the teacher and determine whether certificate action is needed.
Issues the commission looks for are:
-The blood alcohol level of the driver/teacher
-The circumstances of the arrest
-Whether drugs were involved in the arrest
The Commission is looking for issues related to the teacher that show they are un-fit to be a teacher. Substance abuse problems, alcohol dependency, unwillingness to accept responsibility are all issues that the Commission will look for. A conviction for DUI isn’t an automatic grounds for disqualification if the teacher can show they do not have a substance abuse problem and are fit to continue teaching.