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California law prohibits driving a motor vehicle while under the influence of alcohol or drugs, or the combined influence of alcohol and drugs. Unlike many other states, California law only precludes the driving of a motor vehicle and not the act of merely being in physical control of a vehicle while under the influence. If it is determined that an individual’s mental or physical abilities are impaired to the point that they are unable to drive with the care and caution of a sober person, they are considered to be under the influence. In addition to the California law prohibiting driving while impaired, the California per se statute prohibits driving with a blood alcohol concentration at or above .08%. When arrested for driving under the influence, you receive a citation charging two different DUI charges, which creates confusion as to the basis for two separate charges. Accordingly, one count prohibits driving while impaired while the other count (the per se count) prohibits driving with a blood alcohol concentration at or above .08%.

What Are The Roadside Breath Tests And Standardized Field Sobriety Tests? Am I Required To Perform Them Under California Law?

A roadside breath test in California is known as the preliminary alcohol screening test. Generally, law enforcement will request that a driver submit to a test on a preliminary alcohol screening device. The law enforcement officer will either have this test in the vehicle or call for one to be brought to the scene. The stated purpose of this test is to determine the presence of alcohol at the time of driving or at the time of the stop. The number is not supposed to be used against the driver. However, it is often brought up in court to show that perhaps the blood alcohol level was higher at the time of driving or closer to the time of driving. You are not required to submit to a roadside breath test or the preliminary alcohol screening test. Law enforcement is required to advise that the test is not required.

Law enforcement, not only relies upon the results of the preliminary alcohol screening test results, they also rely upon the driver’s performance on the standardized field sobriety test. There are three standardized field sobriety tests that are used by law enforcement in California. Those tests are the horizontal gaze nystagmus, the walk and turn, and the one-leg stand. Sometimes, law enforcement will go beyond these three tests and request that a driver submit to non-standardized tests to make their determination. But, the National Highway Transportation Safety Administration only recognizes these three standardized field sobriety tests. Similar to the preliminary alcohol screening test, the driver is not required to submit to a standardized field sobriety test. Typically at least a portion of a driver’s performance on the field sobriety tests is captured on either a body worn camera or patrol vehicle dash camera.

Law enforcement bases its decision in making an arrest upon the “totality of the circumstances” which includes both a driver’s performance on the standardized field sobriety tests as well as the results of the preliminary alcohol screening test.

Can I Refuse The Evidential Breath, Blood, Or Chemical Test In The Investigation In California?

California law requires law enforcement to admonish that if you do not submit to an evidentiary chemical test, your license will be suspended for a specific period of time, which will varies depending upon whether you have any prior DUI convictions and whether you previously refused to submit to a chemical test. If you refuse to submit to a chemical test on a first offense in California, your license will be suspended for one year. A common defense to an allegation that you refused to submit to a chemical test (and the only defense recognized by the courts) is a failure to properly admonish the driver as to whether they are required to submit to a chemical test and what type of test a driver is required to submit.

What Are Some Factors Or Situations That Could Enhance Or Aggravate A DUI Charge In California?

There are many factors that can enhance or aggravate your standard DUI charge in California. One main circumstance that would turn a DUI charge from a misdemeanor to a felony is if someone that is not the driver was injured in an accident or collision. If there is any injury to any person other than the driver, you will be charged with a DUI resulting injury. The potential punishment increases based upon the severity of the injury; soft tissue injuries may be charged as a misdemeanor but more serious injuries will be charged as a felony and an allegation that the DUI driver caused great bodily injury (broken bones or other long lasting injuries) could result in a time in a state prison commitment if convicted. If a person other than the driver was killed, the driver could be charged with manslaughter and potentially murder.

In addition to enhancements for injuries to others, if a driver is found to have a blood alcohol level in excess of .15%, that can lead to increased jail time and DUI classes. At 0.2% or higher, the driver will have to participate in a nine-month DUI class instead of the standard three or six-month DUI class.

If minor children under 14 years of age are present in the vehicle, law enforcement has the discretion to charge the driver with an enhancement for child endangerment, resulting in increased punishment and parenting classes. The prosecution can also file a separate child endangerment charge as a misdemeanor or a felony. If a driver is convicted of felony child endangerment, the driver can be sentenced to state prison.

Another scenario in which a DUI can be elevated to a felony is if there have been multiple prior convictions within a ten-year period. While a DUI charge with two prior convictions within ten years will result in a misdemeanor charge, a DUI charge with three prior convictions within ten years can be charged as felony. The prosecution has the discretion when there are three prior DUI convictions within a ten-year period to charge a felony or a misdemeanor. A DUI arrest with more than three prior DUI convictions will be charged as a felony. The prosecution can also charge a felony if the driver suffered a felony DUI conviction within the preceding ten years.

A non-statutory enhancement could also be considered if there was a collision. The prosecution will consider that in determining a resolution in the matter if there were passengers in the vehicle or if there was property damage.

California DUI law is constantly changing. You may be permitted to install an interlock device for a period of six months instead of any actual suspension of your driving privileges. On a second conviction and beyond you may install an interlock device to substantially reduce the suspension of your driving privileges. While the installation of an interlock device in your car is less than ideal, the interlock device in lieu of suspension is beneficial for those who need to drive to work or take care of family obligations. For those who drive in the course of their employment may obtain an exemption to the interlock device requirement. If an employer acknowledges in writing (on a DMV form) that they understand their employee is required to install the device in their person vehicle they can avoid having the device installed on their work vehicle. That way, they can remain employed without a requirement that the employer install the device in their work vehicle.

Walk Me Through The Process Of How Long Do I Have After An Arrest And Charge To Request A DMV Hearing And What Essentially Happens There?

At the time of the arrest, the law enforcement officer will typically take your California license and provide you with a temporary license. The temporary license is printed on a pink paper which instructs that you contact your local DMV within 10 days of the date of the arrest to request a hearing. While the document reads that it is valid for 30 days, you or your attorney are required to contact DMV within 10 days. It is advised you contact an attorney immediately to ensure the attorney timely requests a hearing with DMV. Once DMV is notified that the person requests a hearing, they will receive a temporary license from DMV that permits them to drive through the outcome of the hearing. The hearing may not happen for two to six months from the date of the request but while the hearing is pending you can maintain your ability to drive.

DMV will mail your attorney the discovery, which will include reports prepared by the arresting officer near the time of your arrest. An attorney can subpoena records and documents from law enforcement and other government agencies such as the patrol vehicle recordings, body worn camera footage taken by law enforcement, and records for the breath testing devices. At the hearing, your attorney will appear with you before the DMV driver safety officer. Your attorney can present evidence establishing that you were not legally arrested, that you were not driving or that you were not driving with a blood alcohol concentration at or above .08%.

After the hearing, DMV will either set aside the action if it is determined that the blood alcohol level was not at .08% at the time of driving, or they will initiate a suspension of your driving privileges. If DMV suspends your license, the notice will set forth the dates of the suspension and requirements as to how to retain your license.

Within 15 days of the decision, the driver can request an administrative review of the decision from the Department of Motor Vehicles. The request is made in the form of a letter and a payment of $120 sent to the DMV. The request for administrative review would need to detail why you think that the Department of Motor Vehicles should review the decision. If the DMV reviews the decision and your argument convinces the DMV that the suspension isn’t warranted, DMV can dismiss or set aside the suspension. If DMV denies your request for departmental review an appeal can be brought to the superior court in your county of residence within thirty-four days of the date of the original decision, or ninety-four days from the date of the decision from the administrative review, you can file an appeal to the superior court. In that superior court action, you would file a civil action against DMV challenging the irregularities, issues, or errors made by the DMV. If the superior court in the state of your residence agrees with the arguments, they will set aside or dismiss the suspension.

Are Most Cases Generally Settled With Plea Deals Or Offers? Is This Or Isn’t This Always The Best Option For Everyone?

A majority of DUI cases are resolved prior to trial. There are several reasons why somebody may not want to go to trial. Someone may not want to go to trial because of the time and expense of a jury trial. Often you may be able to get a resolution prior to trial that where you can obtain a reduction in charges or punishment. One type of resolution that can be obtained, short of a DUI conviction, would be a reduction to a charge of reckless driving with alcohol, commonly known as wet reckless. A conviction for a wet reckless would result in a lesser fine and a reduction in punishment from a standard DUI. A better alternative to a wet reckless would be reckless driving commonly referred to as a dry reckless that does not involve alcohol. The benefit to either reckless driving convictions is that the court would not require the driver to complete a three-month DUI class. Instead, the courts often only require a 12-hour class. With the dry reckless, you’re not required to submit to any type of class, and the fines are much less compared to a DUI or a wet reckless. So, if somebody can avoid a license suspension or jail time, they will resolve the matter short of trial with a lesser charge.

Other considerations one takes in deciding whether or not to proceed to jury trial may be if there are enhancement allegations which could substantially increase punishment; if there was an injury, an excessively high blood alcohol level, or a prior offense, those enhancements can be stricken by the court or the district attorney. A person can benefit from a pretrial resolution if they can obtain a guarantee that the punishment will be reduced from the likely punishment if they were to go to trial and lose. Specifically, a pretrial resolution can save you from the risks that are associated with trial, such as the potential of more jail time, longer DUI classes, and other penalties imposed by the court.

Trials are unpredictable, sometimes you may obtain a more severe punishment if you proceed to trial while it also it is also quite possible that if you proceed to trial you may be acquitted (not held responsible) or if convicted may receive a less severe punishment than what was offered prior to the trial.

Do You Advise Your Clients That They Get Any Sort Of Counseling Or Treatment While Their DUI Case Is Ongoing? Does That Help Or Hurt The Case?

It is always helpful if a person charged with driving under the influence attends AA meetings or participates in individualized counseling. Participation at AA meetings or individualized counseling is beneficial when someone needs to reevaluate their relationship with alcohol. Often the courts will require attendance at an AA meetings when the case involves a high blood alcohol level or prior offenses, which would result in enhancements; if a person can demonstrate that they have proactively sought treatment, prior to the first court date, the court will look more favorably upon them. By attending AA meetings or participating in individualized counseling close in time from the date of the arrest, the court is more likely to permit you to remain out of custody, potentially avoid the installation of an alcohol monitor and make it possible to attain a better resolution.

Why Is It So Important That I Find An Attorney That Has Specific Experience In Handling DUI Charges In Trying And Fighting The Charges Or Mitigating The Consequences Versus Just Going In And Pleading Guilty?

There are many defenses to DUI charges, including whether the manner in which you were driving provided probable cause to pull you over, whether you were “driving” at the time of the arrest. If you can suppress the stop or the detention, the charges could potentially be dismissed or reduced. If there’s an issue with the way the blood alcohol results were obtained, whether it be a faulty breathalyzer, a fault in the manner in which the breath test was administered to the driver, or if the blood was not drawn in conformance with the acceptable medical practices, those are some factors that can help get charges reduced or the case dismissed without the necessity of a trial or plea bargain.

Other issues that necessitate the use of a lawyer, rather than going to court and pleading, would be if there are enhancements. If the charge is a felony with injury, an attorney can assist by demonstrating to the court that the injuries are not as severe as alleged by the prosecution. If there are issues with prior offenses, an attorney can demonstrate whether the allegations are actually true. There is a myriad of issues in which an attorney can assist. An experienced attorney can get the charges reduced or dismissed prior to trial without a plea bargain.

For more information on DUI Defense, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 728-9982 today.

E. Michael Linscheid, Esq.

Call Now For A Personalized Confidential Consultation!
(415) 728-9982

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