California DUI

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In order to be convicted of a California DUI, it must be shown that you were driving or in actual physical control of a moving vehicle. The burden is on the State of California to show that the officer had a reasonable, articulable suspicion for stopping or approaching the vehicle. If you were stopped at a roadblock, the prosecutor must show that the roadblock was set up in accordance with the Fourth Amendment to the U.S. Constitution. These issues are somewhat complex. Lawyers who only handle the occasional California DUI will not be aware of the latest cases that affect your rights.

The next stop in a California driving under the influence case is the officer’s roadside determination that there is probable cause to arrest you for DUI. The State must show that it is likely that you were a less safe driver as a result of drinking alcohol. Many cases involve the use of field sobriety tests. These tests can help an officer make up his mind about whether you should be arrested OR bolster his previously formed opinion that you are DUI.

After you are arrested, the officer MUST read at the time of arrest the correct Implied Consent warnings. These warnings must be read in substantial compliance with the statute.

There are three different warnings, and the officer must read the correct warning. This warning gives you the option of either taking a State test (or tests) or refusing the test. The officer chooses the test. The officer also must advise you that you have the right to an independent chemical test of your own choosing. Occasionally an officer will not read the Implied Consent warning at the time of arrest or refuse a request for an independent test. This may be grounds for the exclusion of the State test. You do not have the right to have an attorney present at this point in time.

In most California DUI’s the final part of the case is the State administered test or lack of a test. If a test is given, the State must prove that the test was done properly and on a machine that was working properly.

HOW CAN A California DUI ATTORNEY HELP YOU?

The California DUI lawyer will make sure that the State can prove all of the elements of the case. He is entitled to all reports that are favorable to your defense and the identity of all witnesses who may testify against you. Frequently your lawyer will review a videotape prior to going to court. Most prosecutors will allow us to watch the videotape before we go to court, and he can usually obtain a copy from the police with an Open Records Act request. These tapes are very helpful in the defense of a case.

You are entitled to contest certain aspects of the DUI case prior to a trial. Your California DUI attorney will use motions to suppress evidence that has been gathered illegally. In some cases, a granting of a motion or the presentation of a motion to the State will cause them to reduce the charges. The attorney will do whatever he can to win the case before you go to trial. In the event that a trial is necessary, the California DUI lawyer will know the expert witnesses who can testify about the field sobriety tests or chemical tests.

IMPORTANT NOTE: If you took a test and the result exceeded .02 (if you are under age 21), .04 (if operating a commercial vehicle), or .08 (all others) or if you refused the test, you should call a California attorney as soon as possible so that your privilege to drive is not taken away before you ever set foot in the courtroom.

CALIFORNIA DUI LAWYERS

If you need a California DUI lawyer, California traffic ticket attorney, a California personal injury lawyer, or California DUI attorney call:

Los Angeles DUI Attorney

Mark Gallagher has extensive experience representing clients who have been charged with California reckless driving, DWI-DUI drunk driving, drug possession, and all other misdemeanors and felonies. He represents local clients and out-of-state drivers who may have gotten California speeding or reckless driving tickets in Los Angeles, Orange, Riverside, San Bernardino or San Diego.

Mark A Gallagher
A Southern California Law Firm
1440 N Harbor Blvd, Suite 515
Fullerton, CA 92835
Toll Free: 1-800-797-8406
Website: California DUI Defense Attorney

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ADMINISTRATIVE LICENSE SUSPENSION

Your driver’s license can be suspended before your criminal case is resolved. It is possible to suffer a suspension of your license and then be found not guilty at trial. There are two ways to have your license suspended before you are convicted of California DUI.

1. If you refuse to take the requested State administered chemical test.

2. If you take the test and the result is a "per se" violation.

“Per Se” is the blood alcohol level above which it is illegal to drive even if you are not less safe. The illegal act is simply having that specified amount of alcohol in your body. These levels are 0.08 grams or more if arrested after July 1, 2001 and you are age 21 or over, 0.02 if you are under 21, and 0.04 if you were operating a commercial vehicle.

Following the arrest for a California DUI and test or refusal, the officer is supposed to submit a sworn report to the California DMV to initiate an administrative license suspension hearing. This process is separate and distinct from the criminal hearing. The “only” penalty is loss of your privilege to drive; no criminal penalties can be imposed in the administrative license suspension proceeding. If you either refuse to take the test or register a "per se" alcohol level, you have ten business days to request an administrative hearing. If you do not request the hearing with ten business days, the following penalties apply:

REFUSING THE DUI TEST

If a police officer reads the California Implied Consent Warning to you, you are may either take or refuse the State test. Should you refuse to take a test, your license can be suspended for up to one year without any work permit. The only way to get your license back is to win your California DUI case in court or have the case reduced to a non-DUI charge. If you do not send a letter within 10 days of arrest, your license will be suspended on the 31st day after arrest. You were likely given a piece of paper at the time your license was taken and told that the temporary license will be good for 30 days. DO NOT FALL INTO THIS TRAP. IF YOU WAIT 30 DAYS TO DO SOMETHING ABOUT THIS YOUR LICENSE WILL BE SUSPENDED AUTOMATICALLY. YOU ONLY HAVE 10 DAYS from the date of the alleged DUI to request a hearing from the DMV and put a stop to the automatic suspension.

THE CALIFORNIA DUI "PER SE" VIOLATION (REGISTERING ABOVE 0.01, 0.04, 0.08)

THE FOLLOWING IS REFERENCE ONLY. EACH COUNTY DOES VARY SOMEWHAT AND THE LAWS REGARDING DUI PUNISHMENT CHANGE RAPIDLY. CHECK WITH A LOCAL CALIFORNIA DUI ATTORNEY.

Under 21: Per Se is .01 Drivers under 21 may not have beer, wine or liquor in their vehicle while they are driving alone. (Their may be exceptions for work related driving)

Over 21: Per Se is 0.08

Commercial Driver in Commercial Vehicle: Per Se is .04

First California DUI Offense 1st Drunk Driving Conviction

Penalty: First Conviction

23536. (a) If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).

(b) The court shall order that a person punished under subdivision (a), who is to be punished by imprisonment in the county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court. If the court determines that 48 hours of continuous imprisonment would interfere with the person’s work schedule, the court shall allow the person to serve the imprisonment whenever the person is normally scheduled for time off from work. The court may make this determination based upon a representation from the defendant’s attorney or upon an affidavit or testimony from the defendant.

(c) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1, the court may disallow the issuance of a restricted driver’s license required under Section 13352.4.

Second California DUI Offense 2nd Drunk Driving Conviction (Within 10 Years of Previous)

Penalty: Second Offense Within Ten Years

23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5. May Apply for Restricted Driver License, Interlock Required Must Complete a Driving Under the Influence Program California SR22 Certificate Required for Restricted License

Third California DUI Offense 3rd Drunk Driving Conviction (Within 10 Years of Previous)

Penalty: Third Conviction Within Ten Years

23546. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver's license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. You Receive a Designation as a Habitual Offender (This is not a good thing) May Apply for Restricted Driver License after 1 Year Ignition Interlock Device Required Must Complete a Driving Under the Influence Program California SR22 Certificate Required for Restricted License

Fourth DUI Offense in California 4th Drunk Driving Conviction(Within 10 Years of Previous)

Penalty: Fourth or Subsequent Conviction Within Ten Years

23550. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. May Apply for Restricted Driver License after 1 Year Ignition Interlock Device Required Must Complete a Driving Under the Influence Program California SR22 Certificate Required for Restricted License

CALIFORNIA DUI FIELD SOBRIETY TESTS

In most California DUI cases, an officer will ask you to perform three tests - the Horizontal Gaze Nystagmus, the Walk and Turn, and the One Leg Stand. These are the tests that the officer has been trained to administer. The officer will usually write down his observations in a police report. All to often his or her observations will differ from what really took place. Hopefully, there is a videotape that will disprove the officer’s testimony that "The driver could not keep his foot up" , or the tape may reveal that the driver was not quite as unsteady as the officer said. Most officers will exaggerate the driver’s performance on the field tests in order to obtain a conviction. However, effective cross-examination with or without a video usually reveal all the things you did right during the field sobriety tests - things the officer will seldom volunteer.

THE HORIZONTAL GAZE NYSTAGMUS TEST

The Horizontal Gaze Nystagmus is a test designed to measure the jerking of the eye. There are three ways to measure this "jerking" The first is to check for smooth pursuit. The next check is done to see whether the nystagmus becomes more "distinct" when the eye is moved to a lateral extreme or maximum deviation. The final measure is whether there is an onset of nystagmus before the 45 degrees. By measuring the angle at which the eye begins jerking, an officer can, theoretically, roughly estimate BAC.

What does all of this mean?

Most juries can understand that field tests really do not mean all that they are set out to be. Most jurors cannot stand on one leg regardless of whether or not they have been drinking. Field sobriety tests can be handled in court with proper training and questioning. Some people who have been drinking will not perform well on these tests, but a lot of non-athletic people will not perform well either.

The Horizontal Gaze Nystagmus is used by police and prosecutors as a scientific test. If it is done correctly, it has been shown to have validity. However, road conditions are different than laboratory conditions. An officer with traffic going by, blue lights flashing, and potential for danger does not always do the test as he was taught. Thus, if the test is not done properly, the validity is compromised.

State Administered Tests of Blood, Breath, and Urine

The police are allowed to ask a driver to submit to a State administered chemical test if the officer has reasonable grounds to believe that the driver is operating a moving vehicle while under the influence of alcohol. In addition, the Legislature has determined that any person who operates a moving vehicle in California has given consent to have a blood, breath, urine, or test of other bodily substances to determine if he or she is under the influence of alcohol.

Once you are arrested for a California DUI, an officer should read the implied consent warning. This warning advises you of the consequences of taking a test and gives you the option of refusing a test. In addition, the warning advises you of your right to your own chemical test once you take the State test. Contrary to public opinion, the law does not give people the right to an attorney prior to taking a test.

California DUI Breath Tests

Both portable breath testing as well as evidentiary breath testing is done in California. Several different evidentiary breath testing machines are used in California. Which machine will be used in your DUI case will depend on where you are pulled over for DUI, and which police station you are taken to. The following machines are used in California: The BAC DataMaster (Los Angeles County), the Intox EC/IR (Los Angeles), the Draeger Alcotest 7110 (San Bernardino and Riverside County), the Draeger Alcotest 7410 (Orange County), the Intoxilizer 5000 (Long Beach), the Intoxilizer 8000 (San Diego).

The machine works by measuring wave lengths of light. It measures the degree that alcohol absorbs infared light. The more alcohol present the greater the absorption of light and the higher the level of alcohol.

Problems With Breath Testing:

The Breathalizer is a machine and is subject to error. For example, if a person gives a breath test of 0.10 grams on their first try, the next test will be valid if it is as low as 0.08 or as high as 0.120 grams. The range is + or - .02 grams or more. That is a huge leeway in order for a test to be valid.

There are numerous things that can affect a breath test such as proximity to electronics that emit radio waves, like police walkie-talkies. These items should be turned off when in the room where the Intoxilyzer test takes place. The machine if properly working should detect any radio interference.

A person's physical condition, or exposure to certain substances, may also cast doubt onto the accuracy of the Intoxilyzer 5000. Some forms of diabetes, hernias, gastric reflux, or other illnesses may yield inaccurate results on a breath test. In addition, exposure to certain chemicals like acetone may result in an inaccurate breath alcohol test result. Further, some diets like high protein diets may impact a breath test.

The officer who gave the breath test has generally only been through a sixteen hour course to administer tests. They do not know much more than how to turn the machine on and off. However, following recent court decisions, it is highly likely that the breath test will be admitted into evidence at trial and the California Supreme Court has outlawed any challenge to the reliability of the breathalyzer. 

Recent California Breathalyzer Court Case

MOST COMMON QUESTIONS ABOUT CALIFORNIA DUI CASES

Can YOU really win?

Yes. A win is obviously a not guilty verdict or an outright dismissal. However, a win is a DUI charge that is dropped or reduced to another offense. Frequently, either before or during a hearing on a motion to suppress, a prosecutor will appreciate the weakness of the case and reduce the charge, because they understand that a California DUI may be difficult to prove. After learning of the facts of your case, the California DUI attorney will tell you what we need to do to win and what your chances of success are.

Can I plead Nolo or No Contest?

A nolo plea is of little use in a California DUI case because it will not save your license. It may carry some benefits in the event of an auto accident where liability is an issue.

Will the Prosecutor know my record?

The State has access to your history. In most cases the State will know all about your prior record, although some states do not report on-line. They will also know if it is clean. The prosecutor may obtain a national criminal history which should show prior offenses in other states.

How long does a California DUI stay on my record?

In California a DUI will remain on your record forever unless you have it expunged. A California DUI may be expunged under certain conditions.

I do not live in California, so how will this affect me, and will I have to return for court?

California can suspend your privilege to drive in this State, but it cannot suspend your license. In addition, it cannot issue any kind of limited permit for a person with an out-of-state license. However, if convicted, your state will most likely find out and issue some sort of suspension. Most likely, you will have to return to California for at least one court appearance.

Can I get a work permit if I am convicted?

It depends on a number of factors. If it is a first offense and you are not administratively suspended for a refusal and you have a California Driver’s License, you should be able to get a permit unless you are under 21. The limited permit will not permit you to operate a commercial vehicle. Of course, if your California DUI attorney obtains a non-DUI disposition, you will not suffer any suspension, and an administrative suspension is erased.

What is an interlock ignition device?

It is a device that is installed on the steering column of the car and requires a breath sample in order for the car to start. In addition, it will beep at intervals and require breath samples. If any alcohol is detected, the car will shut off. An interlock device is required on all second offenses within a ten year period. Some judges require an interlock on all second offenses lifetime and can impose it as a special condition of probation, even on a first offense lifetime.

WHAT TO DO IF STOPPED BY THE POLICE FOR A CALIFORNIA DUI

What should I do if pulled over and am suspected of a DUI?

If you are over twenty one and have not been convicted of a DUI in the last ten years:

1. BE POLITE (The officer owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY, SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT

If over twenty one and have been convicted of a DUI in the last ten years:

1. BE POLITE (The officer owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS YOU HAVE HAD 2 DRINKS OR LESS DO NOT SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT; HOWEVER A 2ND OFFENSES DUI WITHIN 5 YEARS WILL LEAD TO 12 MONTHS WITHOUT A LICENSE ANYWAY).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. IF YOU TAKE THE TEST ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT

If under twenty-one:

1. BE POLITE (The officer owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. POLITELY REFUSE TO TAKE THE REQUESTED CHEMICAL TEST. (One drink may put you over the legal limit)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED (Any admission of drinking may lead to a separate charge for underaged possession of alcohol). [Top]

If a commercial driver:

1. BE POLITE (The officer owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT

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