Monthly Archives: April 2022
Gross Vehicular Manslaughter While Intoxicated
Drinking and driving in California can have devastating outcomes, up to and including the loss of life. When a driver is found to be under the influence and driving in a negligent manner which subsequently causes an accident that kills someone, it is known as “gross vehicular manslaughter while intoxicated” and it is considered a felony offense. If you are facing charges of gross vehicular manslaughter while intoxicated, you could be looking at a potential jail or prison sentence of up to 10 years, depending on the circumstances and specifics of the case.
What is Gross Vehicular Manslaughter While Intoxicated?
The California Penal Code PEN 191.5(a) defines gross vehicular manslaughter while intoxicated as:
“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”
This means that multiple offenses are being committed simultaneously. Not only is the driver already violating one of California’s DUI laws (23140, 23152, or 23153), but in the course of doing so, the driver also commits another act or behaves in such a negligent manner that the result leads to the death of another.
A hypothetical situation where this might apply is a driver being over the legal limit of .08% blood alcohol content, and speeding to such a degree that they strike another vehicle and kill the other driver. Another example would be someone who is legally drunk ignoring traffic control devices, subsequently killing a pedestrian crossing the street.
Meeting the Four Elements Needed for Charges of Gross Vehicular Manslaughter While Intoxicated
There will be four distinct elements to the crime that must all be fulfilled in order for it to be considered gross vehicular manslaughter while intoxicated. If any one of the four elements can be disproved or contested, your attorney may be able to have the charges reduced or even dismissed entirely. The elements needed are:
- That the driver was operating the vehicle while under the influence of alcohol or drugs
- While the driver was operating the vehicle, any other misdemeanor was also committed that may cause the death of another
- The commission of the required misdemeanor occurred with gross negligence
- As a result of the prior 3 elements, the grossly negligent act caused by the intoxicated driver caused the death of another
These four elements are essential to being able to levy charges of gross vehicular manslaughter while intoxicated against you, and if your attorney can mount a defense disproving or eliminating any one of the conditions, the charges may no longer apply.
Note that it does not matter whether you intended to injure or kill someone when you got into the vehicle after drinking. You only need to be acting in a reckless manner.
If you have been arrested for gross vehicular manslaughter while intoxicated, the first thing you should do is contact an experienced criminal defense attorney since creating a defense strategy for these charges can be complex. While each of the four elements must be proven to hold up in court, they can be complicated.
Driving Under the Influence of Alcohol or Drugs
In California, you are driving intoxicated if you are found to have:
- Driven with a measurable blood alcohol content of 0.08% or greater
- Driven while under the influence of drugs, whether legal or illicit
- Driven while displaying any signs or symptoms of intoxication
- Violated California’s under-21 zero-tolerance law by driving with a blood alcohol content of 0.05% or higher
Being able to contest these may give you a viable defense in your case.
Committing a Misdemeanor or Lawful Act That Could Cause Death
This is a very important point since you must be found to have committed an act that could cause death, but that act cannot be the DUI. It must be an additional misdemeanor offense or lawful act. While the act doesn’t need to be dangerous in ordinary circumstances, it must be potentially dangerous in the situation.
The Gross Negligence Qualifier
Gross negligence can only happen when someone acts in a reckless manner that results in a significant risk of injury or death, and any reasonable person would know that the act has a significant risk of injury or death. It cannot be a simple error in judgment or a careless act.
Being The Cause of Death of Another
The death that occurs in the initial incident must be the direct and natural result of the negligent conduct. While there may be other factors that contribute to the death, the gross negligence must be considered a substantial contributing factor.
The Penalties for Being Convicted of Gross Vehicular Manslaughter While Intoxicated
The penalties for being convicted of gross vehicular manslaughter while intoxicated are similar to being convicted of murder. If you are convicted you can expect to be placed on formal felony probation and to be assigned a probation officer.
You will also be fined a sum of up to $10,000 and may face imprisonment in state prison of either, 4, 6, or even 10 years. Even if you avoid a prison sentence, the DMV will enact a revocation of your driver’s license for a minimum of 3 years. Driving on this revoked license can come with further penalties that grow with each subsequent conviction of driving while suspended or revoked.
Prior convictions for similar offenses can also make the penalties more severe. Prior convictions of DUI, DUI causing injury, manslaughter while operating a boat, and vehicular manslaughter either ordinary or gross. Having a history with a conviction of any of these offenses can make the prison sentence a minimum of 15 years with a maximum of a life term.
Common Defenses for Fighting Charges of Gross Vehicular Manslaughter While Intoxicated
Anytime someone is killed in a vehicle crash is a tragedy, and in many cases the individual who was driving is wracked with guilt, often blaming themselves and pleading guilty or no contest. While law enforcement may be quick to blame you, working with a qualified lawyer can help show the court that it wasn’t your fault or can help you avoid lengthy prison terms. Your criminal defense attorney will help create a defense strategy that helps you fight the charges being laid.
Not Being Intoxicated During The Alleged Incident
In some cases, your attorney may be able to mount a defense against the actual evidence that pointed to you being under the influence since many symptoms of shock due to the accident can appear to be symptoms of being intoxicated. This can also include questioning the validity of the chemical test results, or the procedures of the law enforcement officers that participated in your arrest.
The Misdemeanor or Lawful Act Was Not Committed With Gross Negligence
If you are facing charges of gross vehicular manslaughter while intoxicated, working with an attorney may help you show that your actions were not negligent, even if they were not correct. Driving is a complex process and sometimes requires you to make sudden decisions, and even if they were made in good faith they can be wrong and result in death or injury.
You Believe You Acted Reasonably in Extenuating Circumstances or an Emergency Situation
If you and your attorney can show that your actions were not negligent and that they were aligned with the same judgment and care that any reasonable person would show, you may be able to show that you did not act with gross negligence. This can be difficult to prove depending on the circumstances of the accident, which is another reason working with an attorney is in your best interest.
Your Gross Negligence Was Not The Cause of the Victim’s Death
Cause and effect in vehicle crashes can be very complicated, and even when there was DUI or gross negligence involved, it can be difficult to show that your negligence was the direct cause of someone’s death. This can sometimes be due to negligence of another party or other contributing factors, which can work in your favor. This defense will often involve working with witnesses and other evidence that may exonerate you.
If You Have Been Charged With Gross Vehicular Manslaughter While Intoxicated
If you or someone close to you has been arrested and charged with gross vehicular manslaughter while intoxicated your freedom is in jeopardy and you should work with an expert criminal defense attorney. Not only will they know the ins and outs of the California criminal system, but they will have priceless experience in putting together the best defense for your case. You will be able to discuss the details of your case in a confidential environment and will have the best chance at beating the charges or reducing the penalties imposed in the event of a conviction.
CAN I GET A DUI WHILE PARKED?
If you live in California, it is technically possible to be arrested and even convicted for driving under the influence, even if your car was parked. One of the conditions that can allow this is for the driver to allow the vehicle to move any amount, even if that movement only amounts to 2 or 3 inches overall. Many people have probably experienced putting their car in park and having it roll a few inches before stopping, if you’ve been drinking, that can be all it takes.
If the individual had been drinking and put their vehicle in neutral or park, even setting the parking brake, and the vehicle rolled a couple of inches before coming to a full rest, they may be arrested for DUI which can carry some very significant penalties. These penalties can include hefty fines, vehicle modifications, rehabilitative programs as ordered by the judge, and more.
If Someone is in a Parked Car is There Probable Cause?
This will depend greatly on the circumstances surrounding the initial arrest and the conditions encountered by the officer at the scene and the driver. In most cases where there is no obvious threat of imminent danger, a law enforcement officer will need to show that there was probable cause for initially confronting the driver. Probable cause is the legal standard that police officers must meet in order to make an arrest.
Law enforcement generally cannot arrest someone unless one of two conditions are met. Either:
- The law enforcement officer has probable cause that the driver has committed a crime
- The law enforcement officer has probable cause that the driver is about to commit a crime
There is an exception that will allow a brief detainment provided the officer has a reasonable suspicion that the driver has committed a crime. This can be more difficult to prove and justify in court, however, and a failure to do so can render the entire case and charges unacceptable.
In many cases, it may be possible to argue that the initial DUI arrest was unlawful because there was no preexisting probable cause of a crime. The alleged DUI driver was merely occupying a seat in a vehicle that remained stationary.
A Hypothetical Situation
An example of this may be an individual leaving a friend’s house and, getting in their vehicle parked in the street, they then realize they are too intoxicated to drive and simply sit in the driver’s seat. An officer on patrol notices someone sitting in a vehicle in the street, and subsequently approaches the vehicle and asks the driver to exit. If the driver exits the vehicle and the officer smells the alcohol on their breath, he then arrests them for DUI.
In this case, the driver’s attorney is likely going to challenge the charges based on the premise that the officer had no initial probable cause to ask the driver to exit the vehicle in the first place. Since there were no reports of rowdy party activity, or other reports of suspicious or criminal acts occurring, there was no justification for the arrest.
This would have been drastically different, however, if the officer had pulled the same driver over while driving or even pulled the vehicle into the driveway of the friend’s house and noticed erratic driving or other indications of DUI activity. Then the officer would have been able to lawfully detain, field sobriety tests, and even conduct a breathalyzer to justify the arrest and amass evidence for court.
This isn’t an absolute though, and even in court, the prosecution may have attempted to justify the arrest with information or testimony from the officer. Common rebuttals to the “no probable cause, parked car DUI” defense include:
- Reports of the driver acting drunk before getting in their car
- Odd or suspicious behavior by the driver, while inside the vehicle
- A previously reported accident or violation of the traffic code by someone matching the driver’s description or the description of their vehicle.
In The Event Of Arrest Your Attorney May Challenge The Charges
This defense strategy is often used in a wide range of DUI circumstances such as:
- VEH 23136, underage DUI
- VEH 23140, underage DUI
- VEH 23152(a), driving under the influence of alcohol,
- VEH 23152(b), driving with a BAC of .08% or higher,
- VEH 23152(f), driving under the influence of drugs,
- VEH 23153, DUI causing injury,
It is important to remember if you choose not to work with a local defense attorney, that sitting in the driver’s seat, even with the engine running does not count as driving. To legally count as driving, the vehicle must move some measurable amount.
Charges of DUI Can Stick Even When The Car is Technically Parked
Each case is relatively unique, and in some cases, the driver may end up being charged and convicted of a DUI offense even if the vehicle was not even in gear. To have this be successful, the prosecution will need to prove that the defendant voluntarily caused the vehicle’s movement before the arrest and that the movement happened even though the vehicle was not in gear and was in park or neutral.
This means that even 2 or 3 inches of movement can be used as circumstantial evidence in a DUI case, and the vehicle does not need to be in gear or even have the engine running. For example, cutting the engine to the coast or even rolling down a hill out of gear are both considered to be legally driving by California law.
The “voluntarily” part is where an expert legal defense team can begin to build an effective defense. This can often be a lifesaver if the movement was caused by an accident, such as bumping the car into neutral by mistake while sitting in the driver’s seat.
Penalties in California for DUI Convictions
If you are convicted of a DUI in California the penalties can be severe and life-altering. Initially, you’ll have a fine plus court costs, which can reach thousands of dollars. Following that is a mandatory period of suspended driving privileges, this period can be as short as 6 months, but it can also be as long as several years. In some cases, however, there may be provisions for the defendant to regain some driving abilities back to attend school, work, or other court-ordered activities or programs.
This will usually require the defendant to go through the process of getting a hardship or restricted license, which will only permit them to drive to specified locations. Some defendants may also be eligible to have an ignition interlock device installed on their vehicle at their expense, which will often reduce their restrictions on driving even more, and will require them to perform a breathalyzer before each time they start their vehicle.
Other probationary terms that are applied to most convictions include attending Alcoholics Anonymous meetings, alcohol education courses known as DUI school, an additional 3-5 years of “summary” probation (which doesn’t require meeting with a probation officer), not driving with any legally detectable amount of alcohol in their system, automatic submission to chemical testing or breathalyzer tests if suspected of drunk driving, and agreeing not to commit any other crimes or violate any other statutes while on probation.
If the defendant must attend Alcoholics Anonymous meetings, they will need to prove their attendance by getting the required paperwork signed and returned to the court. If they are sentenced to DUI school, they must not only pay the required admission but must enroll and complete the school within a specified timeframe. DUI school may be as short as a 12-hour course, or it can go on for nearly 3 years in extreme cases or repeat offenders.
Sometimes, particularly for first-time offenders or those with skilled attorneys, the judge may approve alternative sentencing instead of jail time. Common options for this include:
- Attending a Victim Impact Panel, often held by the Mothers Against Drunk Driving (MADD)
- Cal-Trans roadside work
- LA County’s Hospital And Morgue (HAM) Program, where the defendant will tour emergency rooms to see the effects of drunk driving and a morgue where they will watch drunk driving victim’s bodies be processed and autopsied
If You Are Facing Charges of DUI Even Though You Were Parked
For those facing charges of DUI even when they were sitting in a parked car, there is a lot at stake. Not only the personal freedom of the defendant, but also their financial security, and even their ability to be autonomous and transport themselves in their vehicle when they need to. All of these factors can compound to drastically change the life of the defendant.
If you or someone you know is being charged with DUI, they must work with an experienced local defense attorney to protect their rights and freedom. The attorney will have intimate knowledge of the California criminal system as well as the laws and standard defenses that can be used to guard against conviction. Even if they cannot prevent conviction, they can help minimize the potential penalties including fines and probationary orders.
DUI PROBATION PERIOD
If you have been accused of a DUI in California, and subsequently convicted, there is a good chance that you will receive DUI probation for a period determined by the court. This is a method of keeping the convicted defendant out of jail, provided they agree to and abide by the terms of their probation.
In most cases, this means not only will the defendant need to pay all of the fines, fees, and costs associated with their conviction, but they will need to fulfill extra conditions as well. Sometimes this means attending DUI school, agreeing not to drive at all while they have any detectable blood alcohol content, and even having an ignition interlock device installed on their vehicle. The most common probationary period in California is three years.
These conditions have to be followed and obeyed or the defendant may be at risk of violating probation. If you are found to have violated the terms of your probation, the judge presiding over your case can immediately withdraw their previous decision and implement the full penalties including imprisonment. There is a lot to be informed about if you have been assigned DUI probation.
Common DUI Probation Conditions
While each case will be unique in the circumstances and penalties, there are many commonalities in the final sentencing of each DUI case. In most cases, the biggest factor in the fines will be how many prior DUI offenses the defendant has been convicted of. Some penalties are levied regardless of how many other convictions the individual has gotten in the past.
The minimum punitive fine for a DUI will depend on the county where the offense occurred, but usually, it will be between $400 and $1000. Once the court costs and other penalties are added, it’s not uncommon to see the total financial burden become several thousand dollars.
There is often a mandatory suspension of driving privileges for at least 6 months, but depending on the offense it can last as long as 48 months. After a waiting period, the defendant can often get a restricted license to allow them to continue driving to work or school, or any other court-approved destination. Another potential option is an ignition interlock device that may remove some of the other driving restrictions.
The defendant will also usually be required to attend mandatory alcohol education programs, known as DUI school, and may also be required to seek treatment. Another potential penalty is having to spend a predetermined time in county jail, usually measured in individual days.
Probationary terms applied to all DUI convictions will include 3-5 years of summary probation, which will not generally require working with a probation officer. Agreeing not to commit any other offenses while on probation. Agreeing to automatically submit to breathalyzer or blood analysis if suspected of drunk driving, and not driving with any detectable level of alcohol in their system.
Being Ordered to Use an Ignition Interlock Device
There are some cases where the driver may be required to have an ignition interlock device installed to operate their vehicle. Common reasons the ignition interlock device may be required include:
- Having a history of at least one other DUI conviction
- Wanting to continue to drive during the period in which the license would be suspended
- Refusing to submit to a breath or blood test
- Being arrested with a blood alcohol content of .15% or more
The duration that the device will need to remain installed on the defendant’s vehicle will vary from 4 to 48 months, depending on how many prior “wet” convictions the individual has had in the past and whether the convictions were for DUI or DUI causing injury.
Offenses That Can Violate Your Probation
Since every DUI conviction comes with the condition or requirement that the defendant not commit any other crimes while on probation, some common offenses are often responsible for the individual’s probation violation. The most common ones are those related to the defendant continuing to drive even when prohibited from such.
There are offenses such as driving without a license, as well as driving without valid insurance that can result in an immediate determination of probation violation. One of the most common and most serious offenses that someone can commit right after a DUI is a violation of California VEH 14601.2, which is driving on a license that has already been suspended due to a DUI.
Driving on a license that has been suspended for DUI is a serious crime and carries stiff penalties. It is not only an offense that carries mandatory jail times and significant fines but it is also known as what’s called a “priorable” offense. Priorable offenses have penalties that grow more severe with each additional conviction. This is particularly dangerous for those with multiple DUIs, who keep driving on the license that the DMV has suspended, and keep getting more dangerous the more often they’re caught.
Sentencing Alternatives to Imprisonment
Instead of sending the defendant to jail, in many cases, the judge will agree to impose alternative sentencing, particularly if you have a skilled attorney that is representing you. Rather than send you to jail, you may only have to participate in community service, roadside work, alcohol monitoring, or other programs.
Programs Often Required as DUI Probation Terms
In many cases, the judge presiding over the DUI conviction will order that the defendant attend other beneficial and preventative programs. They may be used when there is clear addiction, or even in cases with younger first-time offenders that may just need to be “scared straight”
Attending AA meetings will generally be required of anyone who may be battling alcohol addiction. The defendant may be required to attend even lacking addiction and must get attendance forms signed by the person running the meetings.
In most DUI convictions, the defendant will be required to attend DUI school. They can be as short as a 12-hour program, and in some cases, as long as 30 months, and while enrolled the defendant must refrain from using any alcohol or drugs. Upon completion, they will be able to show the court proof of completion.
Victim Impact Panel
A victim impact panel, or VIP, is often run by organizations like Mothers Against Drunk Driving and will have the defendant be presented with a speech, videos, and even slideshows about the damage drunk driving can have on individuals and families. They generally last only a few hours and are another option for first-time offenders.
Hospital & Morgue Program
A special program run in Los Angeles County called the Hospital and Morgue Program (HAM) will sometimes be available to first-time offenders. They will be required to spend 4 hours in an ER and 4 hours in a morgue, witnessing the damage done by drunk drivers, first-hand. While in the morgue they will watch bodies of drunk driving victims be photographed, processed, and autopsied, and following the completion of the program they may be required to write an essay regarding their experience.
Proving Your Compliance
Once you enroll in any court-ordered classes or programs, you will often receive paperwork to prove you have started them. In some cases, the programs will automatically notify the courts, but this is not guaranteed. Once you finish the programs you will also receive proof of completion, which you will need to show the judge to have the requirement shown as fulfilled.
This can even be receipts for payment of fines or restitution. Failing to show you followed the court’s orders can result in an arrest warrant being issued for you. This applies to any post-conviction appearances or programs.
Have You Been Accused or Convicted of a DUI in California?
If you or someone you care about has been accused or convicted of a DUI offense in California, one of the best things you can do to protect yourself and your rights is to work with an experienced local attorney. While they may not be able to get your conviction reversed, they can help protect your rights while on probation and can be your representative in any hearings or subsequent court dates you have regarding your conviction.
DUI WITH A CHILD IN THE THE CAR
Driving under the influence can result in severe penalties in California. A person could have their driver’s license suspended or revoked, face jail time, and pay high fines. The criminal penalties for DUI are in addition to the other consequences of a DUI conviction.
Some factors enhance DUI penalties in California, including having a minor child in the car at the time while driving under the influence of alcohol. California DUI laws expressly set mandatory punishments for DUI with a minor in the vehicle.
Furthermore, you could face additional criminal charges if a minor was in the vehicle when police officers arrested you for drunk driving. Those criminal charges carry separate penalties and fines for a conviction. Therefore, it is wise to seek legal advice from a DUI defense attorney immediately if you were arrested for DUI with a minor in the vehicle.
Being Arrested for Drunk Driving in California with a Minor in the Vehicle
Driving under the influence may be charged under California Vehicle Code §23152 (VC). The code makes it unlawful for a person to operate a motor vehicle:
- With a Blood Alcohol Content (BAC) of .08% or more OR
- Under the influence of alcohol
Therefore, you can be charged with drunk driving if you have a BAC above the legal limit OR if the state proves that alcohol impaired your ability to operate the vehicle.
Evidence that an officer may use to justify probable cause to make an arrest include:
- Observations of erratic driving before the DUI traffic stop
- Administering pre-arrest breath testing
- Results of field sobriety tests
- A strong smell of alcohol on the person or inside the vehicle
- Observations of the person’s physical appearance
Once a DUI arrest is made, California’s implied consent laws require drivers to submit to a chemical test to determine the level of alcohol in their system. Refusing a BAC test after a DUI arrest results in an administrative suspension of your driving privileges by the California Department of Motor Vehicles. The results of an evidentiary breath test (post-arrest breathalyzer) may be used in court to prove you were drunk at the time of your arrest.
Enhanced Penalties for Driving Under the Influence with a Minor in the Vehicle
The prosecution has the burden of proving guilt for a DUI charge. California DUI lawyers help you fight drunk driving charges to avoid a conviction.
Suppose the court finds you guilty of DUI with a minor in the vehicle. In that case, the court imposes the applicable criminal penalties based on the underlying DUI charges, your past criminal record, and any aggravating facts. An aggravating fact that enhances DUI penalties is driving a vehicle with a minor in the car while intoxicated.
California Vehicle Code §23572 (VC) provides enhanced penalties for individuals convicted of drunk driving with a minor age 14 years or younger in the car. The penalties are mandatory. That means the judge must issue the penalties if the state proves that you were driving under the influence with a minor in the vehicle.
What Are the Penalties for Drunk Driving with a Minor in the Vehicle?
Additional jail time is the penalty under CVC §23572 imposed for a DUI offense involving a minor in the vehicle. The additional jail sentence for this offense is:
- 48 hours in county jail for DUI first offense
- 10 days in jail for DUI second offense
- 30 days in jail for a DUI third offense
- 90 days in jail for DUI fourth offense
The above jail sentences are in addition to any imprisonment ordered by the judge for the DUI conviction. Therefore, you would spend a minimum of 48 hours in jail if you are convicted of a first-time DUI misdemeanor with a child in the car under 14 years of age.
The typical penalties for a first time DUI misdemeanor conviction in California include:
- A jail term of up to six months (with a minor in the vehicle, you could serve 6 months PLUS 48 days)
- Three to five years of informal probation
- Three to nine months in DUI school
- Fines and penalties of $1,500 or more
- Six-month driver’s licenses suspension unless you install an ignition interlock device
Working with a Los Angeles DUI defense lawyer could help you avoid a conviction. There could be several defenses to drunk driving charges with a minor in the vehicle.
Defenses to Driving Under the Influence with a Minor Under 14 in the Vehicle
You may have one or more defenses to the charges of driving intoxicated with a minor in the vehicle. The first defense involves proving that the person is not a minor as defined by the code section. The child must be under 14 years of age for the enhanced penalties to apply.
Another defense attacks the DUI stop and arrest. Police officers must have reasonable suspicion to pull over a driver for drunk driving. Officers must also have probable cause for an arrest. If you show that the police officers violated your civil rights, the judge may rule the evidence admissible in court. The prosecutor may have no choice but to drop the DUI charges.
You could also prove that you were not driving under the influence of alcohol at the time of your arrest. For example, medical conditions mimicked the signs of intoxication or caused a false reading on a chemical test. Your DUI attorney may challenge the results of the field sobriety tests or the breathalyzer tests.
Lastly, if you cannot beat the DUI charges, your lawyer may plead the charges down to a wet reckless charge. If you plead guilty to wet reckless or another lower offense, the sentence enhancement statute will not apply.
You Could Be Charged With Other Crimes for Drunk Driving with a Minor in the Vehicle
In addition to being charged with and convicted of DUI, you could also face other criminal charges if you have a child in the car while driving under the influence. The criminal penalties for a conviction of a related charge would be in addition to the DUI penalties.
Three common offenses related to DUI with a minor child in the car are:
- Child Endangerment charges under PC §273a
- Excessive Speed and Reckless Driving under CVC §23582
- Excessive BAC or Test Refusal under CVC §23578
Child Endangerment and DUI in California
Under PC§273a, you can be guilty of child endangerment if you place a minor under the age of 18 years at risk of pain, suffering, or danger. A person may be guilty of his crime, even though the child was never harmed.
The punishment for child endangerment charges depends on the facts of the case. For example, the risk of great bodily harm or death to the child creates a wobbler offense. Therefore, you could be charged with a misdemeanor or a felony.
For a misdemeanor endangerment charge, you could serve up to one year in county jail and pay a fine of up to $1,000. You could face a fine of up to $10,000 and up to six years in a California state prison for a felony child endangerment charge.
Excessive Speed and Reckless Driving in Addition to DUI in California
California Vehicle Code §23582 VC enhances the sentence for driving under the influence by 60 days in jail whenever all of the following three conditions apply in a DUI case:
- The driver recklessly operated the vehicle;
- The driver exceeded the maximum posted speed limit by 30 miles on a freeway or 20 miles on any other street; and,
- The driver is guilty of driving under the influence, DUI of .08% or higher, or DUI causing injury.
The statute also requires drivers with enhanced sentences under this code section to addend California DUI school (a drug and/or alcohol education program).
Excessive BAC or Test Refusals and DUI in California
California Vehicle Code §23578 allows the judge to impose additional penalties in DUI cases involving excessive BAC levels or chemical test refusals. A test refusal is defined as refusing a breath test or urine test after a DUI arrest. An excessive BAC level is defined as a blood alcohol concentration of .015% or more.
The judge may impose one or more of the following penalties for a violation of this code section:
- Additional time in jail or prison
- Attendance at additional DUI classes
- Extended driver’s license suspension
- Mandatory installation of an ignition interlock system
The above penalties would be in addition to any penalties the judge ordered for the DUI offense. Depending on the facts and circumstances of a DUI case, enhanced DUI penalties and penalties for DUI-related charges could increase your incarceration time significantly. Additionally, it could be much more difficult to reinstate your driving privileges, obtain automobile insurance, and find a job when you complete your jail term.
Working with an experienced DUI defense lawyer from the beginning of your case can improve your chance of avoiding the harshest DUI sentence. The prosecution’s job is to convict you. In their eyes, you are guilty of the drunk driving charges. Make sure you have someone fighting on your side that has your best interest at heart.
California DUI laws hold underage drivers to a stricter standard for driving under the influence of alcohol. Unlike adult DUI laws in California, underage drivers can be charged with drunk driving even though their driving ability is not impaired by alcohol. In addition, it is unlawful for anyone under the age of 21 years to drive with any alcohol in their system.
Two laws directly target drivers under the age of 21 years who drive under the influence of alcohol:
- California’s Zero Tolerance Law for Underage Drivers (CVC §23136)
- Underage Driving with BAC of .05% or Greater (CVC §23140)
It is important to remember that a police officer could charge an underage driver with one of California’s stricter “adult” DUI laws. For example, a teenager could be charged with DUI causing injury or driving under the influence of drugs (DUID). An officer may also charge an underage driver with driving under the influence of drugs or alcohol. The charges you face depend on the circumstances of the DUI stop and arrest.
A DUI conviction for underage drinking and driving under either law can result in severe DUI penalties. A California DUI defense lawyer can evaluate your case to determine defenses that could help you beat underage DUI charges.
California’s Zero Tolerance DUI Laws for Underage Drivers
An underage driver is someone who is under the age of 21 years (legal drinking age). According to CVC §23136, it is unlawful for anyone under 21 years old to operate a motor vehicle with a blood alcohol concentration (BAC) of .01% or greater. The law applies to alcoholic beverages and medications containing alcohol.
BAC is measured using a PAS (preliminary alcohol screening) test during a DUI stop. An example of a PAS is a roadside breathalyzer test that measures the amount of alcohol on the person’s breath. The machine converts the readings to the equivalent BAC level.
The law presumes that anyone who drives under 21 years gives consent to a PAS test or other chemical test if lawfully detained by law enforcement officers for allegedly driving with a BAC of .01% or higher.
An offense under this code section is not a crime. It is a civil offense. The only punishment for underage drinking and driving under the Zero Tolerance code section is a mandatory one-year driver’s license suspension for the first offense. However, the court may revoke the person’s driving privileges for two or three years if there is a history of drunk driving offenses.
Underage DUI in California with a BAC of .05% or Higher
CVC §23140 states that it is unlawful for anyone 21 years of age or younger to operate a motor vehicle with a BAC of .05% or higher. This criminal offense is known as “underage DUI.”
In most cases, police officers confirm underage DUI with a post-arrest DUI chemical test. The test may be a blood or breath test. The implied consent laws apply to a test refusal by an underage driver. Refusing a chemical test for a lawsuit DUI arrest results in a one-year driver’s license suspension.
What Is the Penalty for Underage DUI with a BAC of .05% or Higher?
The penalty for underage DUI does not result in jail time. However, punishment for a first-time underage drinking and driving conviction include:
- One-year driver’s licenses suspension by the California Department of Motor Vehicles
- $100 fine
- Three-month mandatory alcohol education program for drivers between 18 to 20 years of age
The police department may impound the driver’s vehicle for a minimum of five days if they have prior DUI convictions and their BAC was .10% at the time they were arrested (or they refused to take a chemical test).
Penalties for Underage Drunk Driver Charged with Standard DUI
An underage driver might be charged with “adult” DUI if their BAC was .08% or higher or the driver’s ability to operate the motor vehicle was impaired by alcohol. If there were no injuries or aggravating, the minor faces penalties for a first-offense DUI misdemeanor. Those penalties include:
- Loss of driving privileges for one year
- A fine of $390 to $1,000
- Up to six months in county jail
- Mandatory attendance for three to nine months in an alcohol and/or drug education program
- Information (summary) probation for three to five years
The penalties for underage drinking and driving could increase depending on the circumstances of the arrest. For example, if a minor is charged with DUI causing injuries, they could face significant prison sentences if someone dies because of a DUI accident. An adult DUI conviction stays on a minor’s driving and criminal records for ten years.
If your child is charged with underage DUI, talk with an experienced California DUI defense attorney. There could be one or more defenses that could result in the DUI charges being dismissed or reduced.
Fighting Underage DUI Charges Under Vehicle Code §23140 VC
As with adult DUI charges, one or more defenses may apply in your case. Your attorney investigates the circumstances surrounding your DUI arrest to identify problems with the prosecution’s case. Your attorney also obtains copies of the evidence the state has against you to determine the validity of the evidence.
Potential defenses to underage drinking and driving include, but not be limited to:
Lack of Reasonable Suspicion and Probable Cause
A police officer must have a reasonable suspicion that a violation of law was taking place to make a traffic stop. Likewise, the officer must have probable cause to make an arrest. For example, pulling a teenager over solely for driving late at night or in a specific neighborhood may not be a legal traffic stop.
If the police officer violates your civil rights by making an illegal stop or arrest, the court may throw out all evidence collected during the traffic stop and the arrest. Without the evidence, the prosecution might have to dismiss the charges.
You Were Not Driving
You must be driving the car to be guilty of underage DUI. Sitting in a car drinking is not driving under the influence. However, the police officer could charge you with other offenses, such as underage drinking or drinking in a motor vehicle.
Challenging the Results of a Chemical Test
The results of a blood or breath test may not be accurate. Several reasons could cause a chemical test to give inaccurate BAC readings. Reasons to challenge BAC results include, but are not limited to:
- The DUI machine malfunctioned because of a lack of maintenance, default, or improperly calibration
- A medical condition caused a false reading, such as GERD, diabetes, hypoglycemia, and acid reflux
- The technician incorrectly drew the blood sample
- Contamination of the blood sample
- Your diet caused a high BAC level, such as a low carb/high protein diet
- Errors in the chain of custody
- Lack of training for the breathalyzer operator
- The police officer did not wait the required time before administering a breathalyzer test
- Rising blood alcohol levels
- You have dental work that caused the alcohol to pool inside your mouth
Any number of problems could exist with chemical tests. An expert witness may assist in proving that the BAC results from a chemical test were inaccurate or subject to reasonable doubt.
Errors and Mistakes by Police Officers
Law enforcement officers must follow specific procedures during a DUI investigation. If the officers made procedural errors, it could work in your favor. A DUI defense lawyer can use mistakes made by police officers to your advantage to create reasonable doubt for a jury.
Related Offenses to Underage Drinking and Driving
The police officer might arrest you for Underage Possession of Alcohol in a Vehicle (CVC §23224). The law prohibits anyone under the age of 21 years to have alcohol inside of a motor vehicle unless the container is full, sealed, and unopened and:
- The minor is carrying the alcohol as part of their job for an establishment with a valid liquor license OR
- The minor’s parents or another adult is in the vehicle OR
- The minor is disposing of the alcohol according to instructions by a parent or other adult.
A conviction under this code section is a misdemeanor. You could pay a fine of up to $1,000, lose your driver’s license for a year, and have your vehicle impounded for up to 30 days.
Another common alcohol-related charge is possession of marijuana or other drugs. Drug possession carries severe criminal penalties. You could face substantial jail time, fines, and other punishments based on the type and amount of drugs in your possession.
Underage DUI Can Have a Significant Impact on Your Future
If you are convicted of underage drinking and driving, you could have difficulty obtaining a job or getting into the school of your choice. In addition, your insurance premiums may be too high for you to pay, which leaves you with no alternative but public transportation.
Talk with a DUI defense lawyer before you plead guilty to DUI charges. Do not trust a police officer or prosecutor to tell you what you should do. Instead, get the facts from a trusted legal advocate who has your best interest at heart.