California DUI Charges for an Out-of-State Driver

Tuesday, May 31st, 2016

California is a destination for many people, a destination which offers many locations and opportunities to imbibe some alcoholic refreshments. When an out-of-state driver does partake in enjoying some alcoholic drinks, they sometimes make the mistake of getting behind the wheel and are arrested for a California DUI. When that happens, often is the question: How will their out-of-state residency affect the outcome of the DUI case?

Although the person may have an out-of-state driver’s license, they will still be subject to the DMV’s administrative action to determine whether their driving privileges in California should be suspended. This is the same “admin per se” hearing that California drivers are subject to following a DUI arrest and will be conducted in much the same manner. A loss of the hearing or a conviction will trigger a suspension of that person’s California driving privileges. Whether the driver’s home state recognizes a suspension following a loss of the California admin per se hearing or a DUI conviction will depend on the state’s reciprocity with California under the Interstate Driver’s License Compact.

Fortunately for most misdemeanor DUI charges, the defendant does not need to be present at the pretrial hearings of a DUI case. If a person decides to take a plea deal, they may need to be present for the plea. Some judges, however, will allow the out-of-state driver to enter a plea without needing to be present as long as the person’s attorney reviews the documents with the driver, the driver signs the documents before a notary public, and the attorney provides the documents to the court.

If a person is convicted of a California DUI, many of the conditions of probation typically associated with a California DUI conviction require a person to be present in California. However, a skilled DUI attorney can negotiate a plea deal that does not require an out-of-state driver to come back to California to fulfill the conditions of probation.

The California Vehicle Code requires that a person convicted of a California DUI complete an approved DUI program, the length of which depends on the individual facts of the case; three-month program (AB 541), six-month program (AB762), nine-month program (AB 1353), and an 18-month program for a second-time DUI or more (Sb 38). These program are only approved and offered in California. For out-of-state drivers, the judge must allow either an out-of-state or online program equivalent to whatever program the driver would have to take if they were in California.

While the out-of-state driver will likely be allowed to participate in an out-of-state or online program, the California DMV will not recognize a non-approved program when reinstating a person’s driving privileges. The DMV requires the completion of an approved DUI class before it will reinstate a person’s driving privileges. However, following the suspension, the out-of-state driver can petition the California DMV for a “set-aside” of the suspension notwithstanding their inability to complete an approved DUI program.

Other conditions typically required following a California DUI conviction may or may not be offered in other states. Mothers Against Drunk Driving (MADD) Victim Impact Panels are offered in many states, however may be limited in where in the state they are offered.

Many states offer their version of California’s “Hospital and Morgue Program,” which is sometimes required following a California DUI conviction, although it may differ in form and length.

If it is impractical to require an out-of-state driver to complete either MADD’s Victim Impact Panel or the Hospital and Morgue Program, the prosecutor and judge may be willing to substitute a number of Alcoholics Anonymous (AA) meetings for the programs since AA meetings are offered in most municipalities across the United States.

Being an out-of-state driver does complicate the process, but it doesn’t mean that the driver’s rights are forfeited. It takes a skilled California DUI attorney to ensure that out-of-state drivers are treated fairly by the California court system.

 

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California Senate Committee Passes IID Law

Monday, April 4th, 2016

A couple of posts ago, I wrote about whether a person who has been convicted of a California DUI will be required to install and maintain an ignition interlock device. 

Currently, ignition interlock devices are only required by the DMV for people convicted of a California DUI in four counties as part of a pilot program: Alameda, Los Angeles, Tulare and Sacramento. Otherwise, the requirement that a person install an ignition interlock device is dependent upon whether a judge orders it as a condition of probation.

Last year, Senate Bill 61 extended the pilot program, which was set to end January 1, 2016, to July 1, 2017.

July 1, 2017, however, was too long for Senator Jerry Hill.

Hill authored Senate Bill 1046 which, if passed, would require people convicted of a DUI to install an ignition interlock device in their vehicle throughout California.

The bill took a big step into becoming law this past week when the California Senate Public Safety Committee voted 7-0 in favor of passing the bill. Now that the California Senate Committee has unanimously voted for the bill, it will be sent to the Senate Appropriations Committee.

Not surprisingly Mothers Against Drunk Driving (MADD) fully backed the proposed bill.

“Senator Hill has shown extraordinary leadership on drunk driving prevention, and we are extremely grateful to the committee for agreeing that ignition interlocks do save lives,” said Mary Klotzbach, a MADD National Board member and whose 22-year-old son, Matt, was killed by a drunk driver.

This past February, MADD released its own Ignition Interlock Report, which reportedly showed the deterrent effect that ignition interlock devices had on repeat drunk driving. According to their report, ignition interlock devices prevented 1.77 million drunk driving attempts where the would-be driver’s blood alcohol content was 0.08 percent or more. The report also alleges that ignition interlock devices prevented more than 124,000 drunk driving attempts.

“Today, the Senate Public Safety Committee voted to protect all Californians from the completely preventable, violent crime of drunk driving,” said Klotzbach. When I buried Matt, I buried a piece of my heart. Now I want make sure no other parent, child, brother, or sister ever has to endure this kind of heartache.”

The mandatory installation of ignition interlock devices will add to an already long list of mandatory conditions that a person convicted of a California DUI must complete. What’s more, in addition to the other thousands of dollars associated with a California DUI conviction, people required to install the ignition interlock device will have to pay between $50 and $100 per month to have the device installed and maintained.

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Will I be Required to Install an Ignition Interlock Device?

Monday, March 21st, 2016

The responsibilities associated with a California DUI conviction can be rather daunting. One the more feared tasks is the requirement of having to install the ignition interlock device. The ignition interlock device, however, is not required after all California DUI convictions. Whether a person will be required to install an ignition interlock device depends on several things.

Before we talk about when an ignition interlock device is required, let’s first talk about what the ignition interlock device is. In short, the ignition interlock device is a breathalyzer that is installed into the dash of a vehicle and connected to the ignition. The driver of the vehicle must provide a breath sample with a blood alcohol content reading under 0.08 percent before the device allows the vehicle to be started. Once the vehicle is started, the driver must provide breath samples at random times to while the vehicle is operational.

Following a California DUI conviction, there are a number of things that a judge may have a person do or complete as a condition of probation. I use the word “may” because some conditions are mandatory and some conditions are discretionary. One of the discretionary terms of probation that a judge may impose on a person following a California DUI conviction is the installation of an ignition interlock device.

As a discretionary term, judges sometimes require the ignition interlock device for a person convicted of a California DUI who has also suffered prior DUI convictions, someone who had a high blood alcohol content, or someone who refused a chemical test following the DUI arrest.

However, in January of 2010 Assembly Bill 91 became law and made the installation of an ignition interlock device mandatory in four counties as part of a new pilot program aimed at reducing drunk driving repeat offenses. The counties affected by the law were Los Angeles, Alameda, Tulare, and Sacramento.

The law requiring the ignition interlock device in the abovementioned counties, California Vehicle Code section 23700, in part reads:

"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"

The length of time that a person must have the ignition interlock device installed for depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.

The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.

The pilot program was set to end as of January 1, 2016, at which time the California DMV was to report to the legislature on the effectiveness of the pilot program in reducing repeat drunk driving offenses in those counties. However, late last year Senate Bill 61 extended the pilot program until July 1, 2017.

Depending of the data collected as a result of the pilot program, it may not be long before we see the installation of ignition interlock devices as a mandatory condition of probation for all California DUI convictions.

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Politician Proposes DUI “Scarlet Letter” License Plate

Monday, February 15th, 2016

Mississippi House of Representative member Gary Chism, R-Columbus has proposed a bill that would force people convicted of two or more drunk driving offenses to display a special license plate which would indicate that they are DUI offenders.

A similar law already exists in Minnesota. Certain DUI offenders in Minnesota are required to display what are known as “whiskey plates,” license plates that begin with “W” followed by a second letter and then four numbers.

Earlier this month, Chism filed HB 548, also known as the Scarlet Letter Driving Under the Influence License Plate Act. If approved, DUI offenders who have been convicted of a second or third DUI would be required to display a license plate that is “yellow, with bold red letters and/or numbers.”

Under Chism’s law, a second offense would require the plate for at least a year. A third offense would require the plate for three years.

"You have a drinking problem if you’ve been caught twice," said Chism. "If everyone knows by you having that tag, it may make you realize what your problem is."

While Chism has his doubts about whether his bill can become law at the moment, he believes that it is important to continue to push for a “DUI scarlet letter.”

"I doubt it’s going to become law at this time, but I think this is just the beginning of it. It has been a big conversation piece that needs to continue," he said. "Theoretically, you need the scarlet letter tag before the felony. If you haven’t learned your lesson after two DUIs, I think a little shaming might help before we send you to the pen (for the felony DUI)."

Chism makes no secret that the purpose of his proposed legislation is to stigmatize and humiliate DUI offenders. His logic is that the shame associated with having to drive with one of these plates will serve as a deterrent to future DUI offenses for the offender as well as observers.

Surely, the plate would serve as a punishment, but is the threat of having to be stigmatized with the plate any more of a deterrent than other punishments associated with a DUI; fines, fees, a DUI program, probation, an ignition interlock device, possibly jail time?

More importantly, could there be unintended consequences of the stigmatization? The ACLU thinks so.

“[It] does nothing more than humiliate an individual based on past decisions" and could lead to "unfair and unreasonable targeting by law enforcement," said Zakiya Summers who the Mississippi ACLU director of communications. "The mandatory fine, incarceration and community services serve as a sufficient and much more rational deterrent. Five days in jail often leads to loss of employment, and this tag provides another barrier to employment."

I couldn’t agree more. Normally officers need probable cause to believe that you have committed a crime before they can stop you and investigate for a crime. However, law enforcement will be more likely to pull someone over merely because of the plate regardless of whether they have the constitutionally required probable cause to do so. Such stops are illegal.

What’s more, the plate could cause problems with other drivers on the road. What are other motorists going to do in the presence of someone with the special license plate? Avoid them on the road because they’re a danger? Stare at them causing motorists to take their eyes off of the road in front of them? Could other motorists be compelled to express anger at the DUI offender? Needless to say, these all, in and of themselves, pose a danger to the road.

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Report Ranks which States are Toughest on Drunk Drivers

Monday, June 22nd, 2015

Wallethub.com, a financial services website, has attempted to rank states based on how tough and lenient their laws are on DUI offenders.

Wallethub cited a National Highway Traffic Safety Administration statistic that 31 percent of motor vehicle fatalities in 2012 involved alcohol impairment. This number, however, has dropped significantly since 1980 when states began taking a serious stance on drunk driving. The reason for the decline, according to Wallethub, is the tough laws and penalties that states have enacted to combat and punish drunk driving.

Using a point system, states were ranked depending on if and how that state imposed a certain DUI laws.

For example, states were given 10 points if the law required at least 10 days in jail for a first offense, eight points for eight to nine days in jail, six points for six to seven days in jail, four points for four to five days in jail, two points for two to three days in jail, and zero points for zero to one day in jail. 

Other assessments included whether the state imposed additional penalties if a drunk driver had a high blood alcohol content, the range in fines and fees, the range in "administrative" license suspension, and whether an ignition interlock device was required following a DUI conviction.

So how did the states fare?

Arizona, according to Wallethub, is the toughest state on drunk driving.

Amongst some of its penalties include the following:  Arizona requires a minimum of 10 days in jail for a first time DUI and a minimum of 90 days in jail for a second DUI. A DUI automatically becomes a felony on the third offense. A DUI conviction will lead to a three month administrative license suspension. An ignition interlock device is mandatory for 12 months upon a first conviction.

South Dakota, on the other hand, came in dead last when it came to laws punishing drunk drivers.

Some of South Dakota’s DUI penalties (…or lack thereof) include some of the following:  The state does not have a minimum jail term for either a first time DUI or a second time DUI. A DUI automatically becomes a felony on the third offense. There is no administrative license suspension nor is a person required to install an ignition interlock device is required upon a DUI conviction.

And how did sunny California do?

California came in 31st with some of its laws including the following: California requires a minimum of two days in jail for a first time DUI conviction and a minimum of 10 days for a second time DUI conviction. A DUI becomes a felony on the fourth offense. A person convicted of a DUI in California faces a four month administrative license suspension.

Although Wallethub indicated that California does not require an ignition interlock device upon a first time DUI conviction, some counties in California, Los Angeles included, do in fact require an ignition interlock device.

Wallethub’s report can be found here: http://wallethub.com/edu/strictest-states-on-dui/13549/

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