Monthly Archives: July 2022
A police officer takes your driver’s license when he arrests you for DUI in California. The officer gives you a Notice of Suspension. The Notice of Suspension acts like a temporary driver’s license. You may drive for 30 days using the Notice of Suspension.
However, if you do not request a hearing from the California Department of Motor Vehicles (DMV) within ten days of your arrest, the DMV automatically suspends your driver’s license.
Therefore the most important thing you need to know about a Notice of Suspension is to request a DMV license suspension hearing known as an APS hearing immediately after being arrested for DUI.
Then, you might want to seek legal advice from a California DUI defense lawyer. You have the right to legal counsel at a DMV administrative hearing. Having an experienced DUI attorney handle the hearing could improve your chance of avoiding a suspended or revoked driver’s license after a DUI arrest.
How Long Will I Lose My Driving Privileges After a DUI Arrest in California?
In 1990, the Admin Per Se (APS) program began in California to deter driving under the influence of alcohol or drugs. Drivers face an administrative driver’s license suspension if they:
- Have a BAC of .08% or higher while driving a non-commercial motor vehicle
- Are under 21 years of age with a BAC of .01% while operating a motor vehicle
- Have a BAC of .04% or higher while driving a commercial motor vehicle
- You refuse to submit to chemical testing, including a blood test or breath test
The DMV suspends your driving privileges for four months for a first-time DUI arrest. If you are arrested on a DUI charge again within ten years, the license suspension period increases to one year.
Furthermore, suppose you are on DUI probation and are arrested for driving under the influence with a BAC of .01% or more. In that case, the DMV imposes a concurrent one-year suspension for the violation of DUI probation.
Refusal to take a preliminary alcohol screening (PAS) or other chemical tests while on DUI probation, you face additional DMV administrative penalties. If the DUI convictions were under California Vehicle Code §§23152 or 23153, the DMV would impose:
- First offense – A one-year driver’s license suspension or two-year revocation period if you are on DUI probation
- Second offense with ten years of another violation of DUI – A two or three-year revocation of your driving privileges
- Third or subsequent offense with ten years of any of the above convictions, violations, or separate administrative decisions – A three-year revocation of driving privileges
After your driver’s license suspension, you can reinstate your driving privilege. However, you must meet specific criteria and pay all applicable fees and costs to reinstate your driver’s license after DUI suspension in California.
How Do I Reinstate My Driver’s License After a DUI Arrest in California?
You must wait until after the DMV suspension or revocation to reinstate your driving privileges. For license reinstatement, you must:
- Pay a $125 reinstatement fee to the DMV
- Provide proof of insurance (SR-22 form) or another acceptable form of financial responsibility (i.e., surety bond, $35,000 cash deposit, or self-insurer certificate)
- Maintain SR-22 insurance or proof of financial responsibility for three years
It is important to note that the DMV suspending your license is different from judges suspending or revoking driving privileges in DUI cases. The DMV administrative procedure is separate from any actions taken by criminal court judges after a DUI conviction.
A judge may also suspend your driving privileges as part of a DUI sentence. In addition, the judge could impose longer suspension or revocation periods. In some cases, a judge revokes driving privileges permanently.
Can I Get a Restricted Driver’s License if the DMV Suspends My Driving Privileges?
Yes, you may be eligible to get a restricted driver’s license. There are two types of restricted driver’s licenses in California.
Restricted Driver’s License for Work and DUI School
You may drive to and from work, during the course of employment, and to and from DUI school. To be eligible for a restricted driver’s license:
- Not have a prior DUI offense (this is your first DUI)
- Have completed a chemical DUI test for BAC levels
- You are 21 years old or older
- Your BAC was .08% or higher for a non-commercial motor vehicle OR .04% or higher for a commercial motor vehicle
- Your driving privileges have not been revoked or suspended for another reason
If you meet the eligibility requirements, to receive a work/DUI school restricted driver’s license, you must:
- Provide proof of enrollment in DUI school
- Pay a $125 reissue fee to the DMV
- File proof of SR-22 or financial responsibility
- Wait for the end of the 30-day suspension period from the suspension date
Restricted Driver’s License With Ignition Interlock Device
The requirements to be eligible for an IID restricted driver’s license are almost identical to the work/DUI school restricted license requirements. However, this does not need to be your first DUI offense. The requirements are:
- You completed a chemical DUI test for BAC levels
- You are 21 years old or older
- Your BAC was .08% or higher for a non-commercial motor vehicle; .04% or higher for a commercial motor vehicle; OR, .01% while on DUI probation
- Your driving privileges have not been revoked or suspended for another reason
If you meet the eligibility requirements, to receive an IID restricted driver’s license, you must:
- Provide proof of enrollment in DUI school
- Pay a $125 reissue fee to the DMV
- File proof of SR-22 or financial responsibility
- Install an approved ignition interlock device and provide verification of IID installation
An IID restricted driver’s license does not require you to wait for the 30-day suspension period to end before applying for a restricted driver’s license. Also, you are not limited to when you can drive or where you can drive. You may qualify for an IID restricted driver’s license, even if you have prior DUIs on your driving record.
Reinstatement of your driving privileges and applying for a restricted driver’s license is different from challenging a Notice of Suspension. Reinstatement and restricted driver’s licenses are a way of dealing with a suspension of driving privileges. Challenging a Notice of Suspension is an attempt to avoid losing your driver’s license after a DUI in California.
Can I Fight a California DMV Driver’s License Suspension After Receiving a Notice of Suspension?
Yes, you can fight an administrative suspension or revocation of driving privileges by the DMV. However, you must request the DMV hearing within ten days. If you choose to represent yourself, you need to know your legal rights regarding a DMV suspension hearing.
- You have the right to review all evidence against you
- You can cross-examine witnesses presented by the DMV, including the arresting police officer
- You may subpoena witnesses to testify
- You have the right to subpoena documents and evidence
- You may present evidence at the DMV hearing to support your case
- You have the right to testify on your behalf
A DMV hearing officer hears your case. The DMV issues a written decision regarding your case. If the DMV hearing officer does not find sufficient evidence to suspend or revoke your driver’s license, he will rule in your favor. However, the DMV officer may allow the suspension to stand.
If the ruling is against you, you have the right to appeal the decision to the Superior Court or request the DMV conduct an administrative review of your case.
Unfortunately, the evidence necessary to prove the DMVs case is less than the evidence required for a DUI conviction. Therefore, having a California DUI defense attorney argue the case could give you a better chance of winning. An experienced DUI attorney understands how to present evidence, cross-examine witnesses, and make a compelling argument for not suspending your driving privileges.
Common DUI Defenses Used When Challenging a DMV Notice of Suspension
Many of the DUI defenses your California DUI lawyer uses at a criminal court trial applies when fighting a Notice of Suspension. Common DUI defenses your attorney might use, include, but are not limited to:
- Challenging whether the police officer had probable cause for a traffic stop or DUI arrest
- Title 17 violations regarding the collection, storage, and testing of blood, breath, and urine samples for alcohol or drugs
- Challenging the accuracy of BAC tests based on health conditions, faulty machinery, operator errors
- DUI breath test errors because of health conditions, mouth alcohol, and ketosis
- Rising blood alcohol levels after a DUI arrest
- Inaccuracy of field sobriety tests (FSTs) because of environmental conditions, the person’s health, or errors made by police officers
- Lack of evidence proving your driving abilities were impaired by alcohol or drugs
- You were not driving or in physical control of the vehicle
- Police used an unlawful DUI checkpoint to stop and arrest you for drunk driving
Contact a California DUI defense attorney if you are arrested for driving under the influence. An attorney helps you fight the Notice of Suspension and fight DUI charges to avoid a conviction, jail, fines, and other DUI penalties.
The recreational use of marijuana is legal in California. California also legalized medical marijuana. However, driving under the influence of marijuana is a criminal offense if the marijuana impairs your ability to drive.
Unlike alcohol, there is not a “per se” or legal limit for DUI of marijuana. Furthermore, sources disagree about the level of marijuana necessary to impair driving ability. Therefore, a key piece of evidence used in marijuana DUI cases is a police officer’s observation of a driver’s impairment. However, cases of DUI of marijuana based solely on observations of impairment may not stand up in court when challenged by a skilled California DUI defense attorney.
What is the Observed Impairment Method for Determining Marijuana Use?
Since California does not set a legal limit for the amount of THC (delta-9-tetrahydrocannabinol) in a driver’s bloodstream, a chemical test alone is not generally sufficient to convict someone of driving under the influence of marijuana. Instead, you need evidence that the marijuana impaired the person’s ability to drive.
Many prosecutors use other evidence of driving under the influence of marijuana to obtain a DUID conviction. The evidence is based on observations of impairment by police officers and Drug Recognition Experts (DREs). DREs are police officers trained to recognize the signs of drug impairment in drivers.
Physical symptoms of drug impairment may include:
- Rapid heart rate
- Dilated pupils
- Red eyes
- The odor of marijuana on the person’s body
- Rapid breathing
- Slowed reaction time
- Dry mouth (“cotton” mouth)
Additionally, police officers observe the driver’s performance on Field Sobriety Tests (FSTs) and the driving patterns immediately before a DUI stop. A driver’s statements to the police and the presence of drug paraphernalia are also observations police officers use to determine drug impairment.
Prosecutors use the combined observations of the police officers or DREs to argue that the driver’s ability to operate the motor vehicle safely was impaired. Therefore, they are guilty of DUID of marijuana.
Problems With the Observed Impairment Method
The observed impairment method has several problems. Studies have shown that marijuana use can affect several driving-related skills. Marijuana use can slow reaction time, decrease divided attention, and cause problems with road tracking.
However, after reviewing the research on the effects of marijuana use on driving, the NHTSA concluded that there are currently no evidence-based methods to detect marijuana-impaired driving. Many of the “signs of impairment” could be caused by other drugs, alcohol, distraction, illness, drowsiness, and other conditions and driver activities.
Therefore, it is not possible to know whether police officers could use a unique combination of cues to determine marijuana-impaired driving with any high degree of accuracy. The information was provided in a Report to Congress in July 2017.
Research supported by the National Institute of Justice found that biofluid levels of THC did not correlate with performance on field sobriety tests. In addition, researchers observed standardized FSTs were not effective in detecting marijuana intoxication.
Using observations to detect marijuana-impaired driving can be highly subjective. Someone charged with DUID of marijuana based solely on the observations made by police officers during a DUI stop should fight the charges with the help of a California DUI defense lawyer.
New Methods of Detecting Marijuana Impairment for Drivers
According to studies conducted by researchers at Massachusetts General Hospital, a noninvasive brain imagining procedure is a reliable method for identifying marijuana impairment. Brain activation patterns that correlate to impairment from THC are measured by imaging technology. The technology used is known as functional near-infrared spectroscopy (fNIRS).
The study did not include roadside assessments of impaired driving. However, it did cite the advantages of a portable brain imaging device using this technology to determine marijuana impairment.
The lead author stated that they believe brain-based testing could provide an objective and practical solution to testing for marijuana-impaired driving. However, further study is required.
Do I Have to Take a Chemical Test if I Am Stopped for DUID of Marijuana?
California’s implied consent law means that drivers are presumed to have consented to a chemical test for drugs and alcohol if they are arrested for DUI. However, drivers are not required to submit to pre-arrest chemical tests. You can refuse a hand-held breathalyzer test or saliva swab before you are arrested without penalty.
However, after a DUI arrest, refusing to take a chemical test results in an automatic one-year driver’s license suspension, even if the prosecution drops the DUI charges or the court finds you not guilty. In addition, if you are convicted of DUI, refusal of a chemical test adds an extra two days in jail and nine months of DUI school to your sentence.
Chemical Tests Are Unreliable for Detecting Marijuana Impairment
There are several problems with chemical tests for marijuana impairment. First, chemical tests do not indicate with any reliability when the driver used marijuana. Second, the tests do not tell officers how much marijuana the person used. Third, experts do not agree on how much marijuana is necessary to impair driving ability.
Another problem is that test results may vary depending on the test used. Blood tests are the most common chemical test used for DUID of marijuana. A blood test indicates the presence of THC in a person’s system.
Some studies found THC may be detected in a blood test for up to a month after a person uses marijuana. Urine tests can detect the presence of marijuana in a person’s system for up to ten days for a casual user. However, people that use marijuana frequently can have a positive urine test for up to four weeks or longer.
Saliva tests have not been ruled admissible as evidence in cases of driving under the influence. Therefore, police officers use saliva tests as preliminary screening. But, again, you do not have to agree to take any drug test before you are arrested for DUID in California.
It is important to remember that a positive chemical test shows that you have marijuana in your system. It does not indicate when you used marijuana or how much marijuana you consumed. It also does not prove that you were impaired.
Contact a California DUI defense lawyer to discuss potential defenses to DUI of marijuana. In addition to challenging whether the marijuana in your system impaired your driving, there could be other defenses to driving under the influence of marijuana.
What Are the Penalties for DUI of Marijuana?
California Vehicle Code §23152(f) states it is unlawful for anyone under the influence of any drug to drive a vehicle. Therefore, a person violates this law by:
- Being under the influence of any drug, including marijuana
- While driving a vehicle
- And being unable to operate the vehicle with the ordinary care of a sober person because the drug impairs their mental and/or physical abilities
Medical marijuana is not a defense against DUI of marijuana. Therefore, you may have a prescription for medical marijuana, but you can still be arrested and convicted of driving under the influence of marijuana.
The penalties for DUID of marijuana are the same as DUI for alcohol. Most DUI marijuana cases are charged as misdemeanors. However, it is a wobbler offense.
Wobbler offenses may be charged as felonies or misdemeanors. For example, if you cause an accident while driving under the influence of marijuana, the prosecutor may charge you with felony DUID of marijuana.
The penalties for a misdemeanor DUI of marijuana generally include:
- A fine of $390 to $1,000
- Six months driver’s license suspension
- Three to five years of informal probation
- Up to six months in county jail
DUI of marijuana is a priorable offense. Therefore, the penalties increase with each DUI conviction within ten years.
The prosecutor may charge you with felony DUID of marijuana if:
- You injured someone while driving under the influence of marijuana
- You have three or more wet reckless or DUI convictions within ten years
- You have any felony convictions within ten years
The punishment for a felony DUID of marijuana can include substantial prison sentences, formal probation, and longer driver’s license suspension periods.
What Should You Do if You Are Arrested for DUI of Marijuana in California?
Do not plead guilty to the charges without talking to a California DUI defense lawyer. It is possible to beat charges of driving under the influence of marijuana. You want to avoid a DUI conviction on your driving record if possible.
A DUID of marijuana on your criminal record could have serious consequences. If your employer requires you to drive for employment, you could lose your job. Potential employers may look unfavorably upon past DUI convictions. A criminal record could affect your ability to obtain scholarships and some government aid.
If there is no way to avoid a conviction for DUID, your DUI defense lawyer negotiates the best possible plea agreement for your case. Chemical tests do not show impairment. The observed impairment method for determining marijuana impairment is also subject to challenge.
A skilled attorney uses this information to challenge the prosecution’s case. The prosecutor may be more willing to negotiate a favorable plea deal when they know you have an experienced, knowledgeable California DUI defense attorney ready to argue these defenses in court.
If you have a felony DUI conviction on your record in California, you might want to consider applying for a Certificate of Rehabilitation (COR). There are several benefits of receiving a certificate that might avoid some of the long-term consequences of a DUI conviction. If you are unsure whether you need a COR, you can ask your California DUI attorney after you resolve your drunk driving charges.
What is a Certificate of Rehabilitation?
The COR has some of the same benefits as a governor’s pardon, but not as many benefits as you receive from a full pardon by the governor. However, the state treats the certificate as an automatic application for a pardon by the governor. A Certificate of Rehabilitation does not clear your criminal record. However, it does show that you are now a law-abiding citizen.
One of the main benefits of a Certificate of Rehabilitation is to help prevent being denied a professional license based solely on a DUI conviction. With a Certificate of Rehabilitation, you can make a case to a prospective employer, landlord, or college that although you made a poor choice by drinking and driving, you learned a lesson.
Another benefit of obtaining a certificate is to avoid the requirement to register with the California sex offender’s registry for many people charged with a misdemeanor sex offense.
However, some sex crimes are not eligible to receive a Certificate of Rehabilitation. Only a full governor’s pardon would avoid the requirement to register as a sex offender for individuals convicted of those crimes.
Am I Eligible to Receive a Certificate of Rehabilitation After My DUI Conviction?
You must meet specific requirements to be eligible to receive a certificate. Your California DUI defense lawyer can review the qualifications in more detail, but generally you:
- Cannot have served time in county jail or prison or otherwise been incarcerated for a new criminal offense since the completion or dismissal of your sentence;
- Are not currently on probation for a felony offense;
- Were a resident of California for at least five continuous years immediately before you apply for a Certificate of Rehabilitation; AND,
- Have been rehabilitated, generally for a specific number of years.
Additionally, one of the following must apply to the offense:
- You were convicted of a felony and sentenced to serve time in prison or another state penal agency or institution; OR,
- You were convicted of a felony that resulted in probation, and the state expunged the conviction; OR,
- You were convicted of a misdemeanor sex crime listed in Penal Code §290, and the state expunged the conviction.
Several crimes or situations make a person ineligible to receive a Certificate of Rehabilitation. For example, you cannot receive a COR if you are serving mandatory life parole, are in the military, or are sentenced to death. In addition, misdemeanor offenses other than a sex offense in Penal Code §290 are ineligible for a certificate.
Federal crimes and crimes committed outside California’s jurisdiction are ineligible for a Certificate of Rehabilitation. In addition, specific sex crimes are ineligible, and the court might determine a person ineligible if they are a continuing threat to a minor.
How Long is the Waiting Period to Obtain a Certificate of Rehabilitation for a Felony DUI Conviction?
Generally, a satisfactory period of rehabilitation is five years as a California resident plus an additional two to five years. However, the exact rehabilitation period depends on several factors, including the criminal offense.
The waiting period for applying for a COR does not begin until you complete:
- Probation or parole;
- Community supervision; OR
- Mandatory supervision
In other words, you must complete every term of your criminal sentence before the period of rehabilitation begins. Serious criminal offenses may require a minimum waiting period of nine to ten years. Most other offenses require a seven-year waiting period.
The court may find that you have not waited long enough to prove you are rehabilitated. If so, you may need to wait longer and refile the petition.
How Do I Apply for a Certificate of Rehabilitation After a DUI Conviction?
You must file a petition with the Superior Court in the county where you reside. The petition for a Certificate of Rehabilitation must include a copy of your criminal record.
The criminal record must include details about each DUI conviction you wish to include in the Certificate of Rehabilitation. The California Department of Justice provides copies of criminal records. There is a $25 fee for a copy of your criminal record.
The court does not charge a fee for a petition for a Certificate of Rehabilitation. You may pay an attorney to file the petition or file the petition without a lawyer. However, an experienced attorney understands the requirements for obtaining a certificate and how to present a compelling argument that you are rehabilitated.
Generally, the court schedules a hearing for your petition. The court provides notice of the hearing to the governor’s office and the district attorney for the county of each conviction.
At the hearing, you present evidence of your rehabilitation. Support from the original prosecutor’s office can provide strong support for granting a Certificate of Rehabilitation. However, the judge considers all relevant factors when deciding to grant a certificate, including:
- Evidence you attend school or have a job
- Your education and work history
- Letters of recommendation
- Proof of residence
- Evidence of volunteer work
- A statement explaining why you want a Certificate of Rehabilitation
- Prison and probation records
- The original trial and court proceedings
- Your ties to family and the community
- The length of time since you completed your sentence and/or probation
The court also listens to the arguments for or against granting the certificate made by the district attorney. If the court grants the COR, it forwards the certificate to the governor’s office, California Department of Justice, and the Board of Parole Hearings. If you have two or more DUI felonies, the court sends the certificate to the California Supreme Court.
Receiving a Certificate of Rehabilitation is an automatic application for a governor’s pardon. You do not need to take any further action. Receiving a pardon from the governor for a DUI felony conviction means restoring your gun rights, voting rights, and other privileges you lost because of a felony conviction.
If the court denies your application for a Certificate of Rehabilitation, you can appeal the decision. However, the court charges a fee to file an appeal. So most people wait and try again at a later date.
How Can I Avoid the Need for a Certificate of Rehabilitation After Being Arrested for DUI in California?
You have several options for avoiding the need to seek a Certificate of Rehabilitation. First, you can hire a California DUI lawyer to fight the drunk driving charges. A DUI arrest is not a conviction. Potential DUI defenses your attorney may raise include, but are not limited to:
- The alcohol in your system did not impair your ability to drive
- The police officer lacked probable cause for a traffic stop or DUI arrest
- The law enforcement officer threatened you if you did not take the field sobriety tests or the roadside breathalyzer test
- The lab used contaminated or fermented blood samples for chemical testing
- You have a medical condition that mimics intoxication with slurred speech and lack of coordination, such as epilepsy seizures or diabetes sugar lows
- A health condition causes a falsely high BAC level on a breath test, such as acid reflux, diabetes, or GERD
- The police officers stopped you at an illegal DUI checkpoint
A successful DUI defense strategy requires your assistance. Tell your lawyer everything. Do not talk to the police or answer questions without talking with a California DUI defense lawyer.
Drivers can refuse pre-arrest breath tests and field sobriety tests without penalty. However, there are enhanced penalties for a DUI conviction after refusing a post-arrest chemical test. Regardless, your attorney may discover one or more problems with the case that could result in the chemical test results being inadmissible.
Another way to avoid petitioning for a Certificate of Rehabilitation is to plead your DUI charges down to a misdemeanor charge. You could then apply for DUI expungement.
Most DUI convictions qualify for expungement. Expungement does not wipe the DUI from your driving record or erase it from your criminal record. However, an expungement in California removes the guilty verdict and dismisses the charges. Therefore, the only matter that appears on the criminal record is the DUI arrest, which can help you avoid some of the negative consequences of a DUI “conviction.”
Your attorney may have more success negotiating a favorable plea agreement than you if you represent yourself. The prosecutor does not tell defendants when they have valid defenses to drunk driving charges. They also do not tell you if there are weaknesses in the state’s case against you.
An attorney recognizes these facts and uses them to argue a better plea deal. A DUI plea agreement may include reduced charges and penalties. The best-case scenario for a plea deal is a dry reckless charge because it does not count as a priorable offense for future DUI convictions. Your DUI lawyer fights to get you the best outcome for your California DUI case.
If a police officer believes you are driving under the influence of marijuana, you could be arrested for DUI. The police officer might believe that you were also smoking marijuana. However, the police officer would need probable cause for a DUI arrest.
In the alternative, if the police officer does not believe you are impaired by marijuana, he could still charge you with having an open container of marijuana in your vehicle.
Driving While Possessing an Open Container of Marijuana
California Vehicle Code §23222 prohibits someone from driving with an open container of marijuana in the vehicle. It also applies to marijuana that is not in a container. Therefore, the best place for you to transport marijuana is in the truck of your vehicle.
A violation of CVC §23222 is a traffic infraction. You can be fined $100 for driving while possessing an open container of marijuana.
Are There Defenses to Having Marijuana in Your Vehicle?
Yes, there are several defenses a California DUI lawyer could argue. Potential defenses to the charge include:
- You are a qualified patient or have an identification card that allows you to possess marijuana legally
- You were driving on a private road instead of a highway or public road
- The open container or loose cannabis flower is in the truck of the vehicle
- The police officer lacked probable cause for a traffic stop
Having an open container of marijuana in your vehicle can lead to DUID investigation.
Driving Under the Influence of Marijuana in California
DUI of marijuana is a serious criminal charge in California. It carries the same penalties as an alcohol DUI. A conviction results in a criminal record.
However, there is no “legal limit” for marijuana DUI in California. Some states have per se limits for DUID of marijuana. However, California does not set a legal limit for DUI of marijuana because there is no consensus for the amount of marijuana necessary to impair driving.
Instead, the Vehicle Code states it is unlawful for someone to drive a vehicle “under the influence” of any drug. Under the influence refers to an impairment that prevents a person from performing an activity safely. Generally, driving under the influence is defined as being unable to operate a motor vehicle with the same level of care as a reasonably sober driver.
How Do You Prove Someone is Under the Influence of Marijuana?
Under California’s implied consent laws, drivers must submit to chemical tests after a DUI arrest. Refusal of a chemical test results in an automatic one-year driver’s license suspension. A chemical test refusal results in a two-year revocation of driving privileges if you have a prior DUI conviction within ten years.
Police officers may ask you to take a preliminary screening test during a DUI stop. They may ask you to take a breathalyzer test or a saliva swab test. Until the police officer places you under arrest for DUI, you can refuse a preliminary screening test without penalty. That includes the standardized field sobriety tests (FSTs).
Therefore, the police officer must rely on observations of your behavior and driving to determine if you are under the influence of marijuana, alcohol, or another drug. The police officer might testify that your driving was erratic. For example, you were weaving between lanes, failing to use turn signals, driving too slowly, stopping for green lights, or making sudden stops.
The police officer might also report signs of drug use such as:
- Red eyes
- Dry mouth (“cotton mouth”)
- Problems with balance and coordination
- Slow reaction time
- Increased heart rate
- Paranoia, panic, and hallucinations
- Rapid breathing
Poor performance on field sobriety tests is often cited as probable cause for a DUID arrest. Also, the officer might claim to smell marijuana on your body or in the vehicle as other evidence of probable cause.
California also has Drug Recognition Experts (DREs) trained to spot signs of drug use. Police officers with DRE training receive instruction in various subjects, including signs and symptomatology of drugs and courtroom testimony.
It is important to note that having marijuana in your system is not conclusive evidence of impairment. Therefore, a California DUI defense attorney can challenge the charges by arguing there is not sufficient evidence to prove the marijuana in your system impaired your driving ability.
Driving Under the Influence of Medical Marijuana
You might be able to get out of a traffic infraction for an open container of marijuana if you are a qualified patient. However, you can be charged with driving under the influence even though you have a valid prescription for medical marijuana.
The law makes it illegal to drive under the influence of any drug. Therefore, you could be charged with DUID for driving under the influence of over-the-counter medication if that medication impairs your driving ability. Arguing that you have medical marijuana in your system will not avoid a DUID of marijuana conviction if the prosecution proves the medical marijuana impaired your ability to drive.
What Are the Penalties for Driving Under the Influence of Marijuana in California?
Most DUI marijuana charges are misdemeanors. They carry the same penalties as an alcohol DUI. Therefore, a first-time DUI marijuana conviction may result in:
- Between 96 hours and six months in county jail
- Losing your driver’s license for six months
- A fine between $390 and $1,000
- Participation in a drug education or DUI class for three months
- Summary (informal) probation from three to five years
Marijuana DUI convictions are priorable offenses. Subsequent DUID convictions result in harsher penalties, including mandatory minimum jail sentences.
DUI of marijuana is a wobbler offense. The prosecutor may charge you with a felony. Situations that could result in felony DUI marijuana charges include:
- Having a prior felony DUI conviction on your criminal record
- Causing serious bodily injury or death while driving under the influence of marijuana
- This DUI charge is your fourth DUI, wet reckless, or DUID conviction within ten years
The penalties for a felony DUI marijuana conviction increase substantially. Potential punishments for a felony marijuana DUI conviction include:
- A fine of up to $5,000
- 180 days in county jail
- Probation for up to five years
- Loss of driving privileges for four years
- An 18-month drug education class
- Payment of restitution to accident victims
If you refused a chemical test after your DUI arrest, you have two days added to your jail sentence if the court finds you guilty of DUI marijuana. Also, your driver’s license is suspended for one year, and you must attend nine months of DUI school instead of three months.
Can You Expunge a DUI of Marijuana Conviction in California?
Yes, DUID convictions under California Vehicle Code §23152(f) are eligible for expungement in most cases. Expunging your DUI marijuana convictions means you can say that you have never been convicted of that offense. While the DUI arrest may remain on your criminal record, the court removes the conviction and dismisses the case.
To be eligible for a DUID expungement, you would need to meet the following criteria:
- A state court heard your case and decided your sentence
- You did not serve any time in state prison
- You completed probation, or it has been at least one year since your DUID conviction
- You did not violate the terms of probation
- All terms of probation are complete, including paying fines, attending treatment programs, community service, etc.
- You are not currently on probation, serving time, or charged with another crime
Felony DUI marijuana convictions might qualify for expungement if you did not serve time in state prison. However, you can avoid the need to expunge a marijuana DUI conviction by fighting the DUID charges with the help of a California DUI defense lawyer.
Potential Defenses to DUI of Marijuana Charges
Your attorney analyzes your case to determine the best DUI defense strategy for your situation. Potential DUI marijuana defenses include:
You Were Not Impaired
Having marijuana in your system does not mean your driving abilities were impaired. There must be sufficient evidence showing that having marijuana in your system impaired your driving.
Because marijuana can remain in your system for hours, days, or weeks, your attorney may argue that other factors were responsible for the “signs of impairment” noted by the police officers.
Lack of Probable Cause
The police officer must have probate cause for the DUI stop and DUID arrest. If not, your attorney can file a motion to suppress the evidence from the traffic stop. Without evidence, the prosecution cannot prove you were driving under the influence of marijuana.
Flawed or Inaccurate Chemical Tests
The chemical tests performed by law enforcement could be flawed or inaccurate because they used contaminated samples or fermented blood. In addition, the police officers or the lab may have mishandled the samples or failed to keep the chain of evidence.
There could be other defenses to driving under the influence of marijuana. Seeking legal counsel is in your best interest. Accepting a plea deal without a California DUI defense attorney could mean you are punished unnecessarily.
It depends if you want to withdraw a guilty plea or retract statements made to police officers during a DUI traffic stop or after a DUI arrest. The answer is “it depends.” There are situations in which a defendant can recant or withdraw a statement or guilty verdict. The first step is to contact a California DUI defense lawyer to discuss your legal options and rights regarding a drunk driving charge.
Making Statements to Police Before and After a DUI Arrest
The statements you make to police officers can be used against you. You might not be able to retract a confession or statement after it is made. For this reason, it is best not to talk to police officers without an attorney present.
During a DUI stop, you must provide your name and current address. You need to give the police officer your driver’s license, vehicle registration, and proof of automobile insurance. However, you are not required to:
- Take a breathalyzer test or saliva swab if you have not been arrested
- Consent to take field sobriety tests (FSTs)
- Answer questions about where you were before the DUI stop
- Admit or deny that you have had alcohol or drugs
- Tell the police officer where you are headed
- Answer any other questions
You can respectfully tell the police officer you do not consent to any preliminary assessment tests for DUI and that you are invoking your right to remain silent.
After a DUI arrest, refusing a chemical test results in penalties under California’s implied consent law. The California Department of Motor Vehicles suspends your driver’s license for one year. You also face enhanced penalties if the court convicts you for the DUI charges.
However, you still are not required to make statements or answer questions after a DUI arrest. As a result, you may remain silent even though police officers continue to ask questions.
It is in your best interest not to make statements or talk to the police until you speak with a California DUI attorney. Retracting statements made to the police may only be possible through a motion to suppress evidence.
Filing a Motion to Suppress Evidence to Retract a DUI Confession
Confessions you make before you are arrested or after the police officers read you the Miranda rights can be used against you in court. However, if the police violated your constitutional rights, the confession could be inadmissible.
Your attorney can review your case to determine whether to file a motion to suppress evidence. If the police did not have probable cause for an arrest, a motion to suppress evidence could result in all evidence collected, including confessions and statements, being thrown out. Without evidence, the prosecution may have no choice but to drop the DUI charges.
Can I Withdraw a Guilty Plea for a DUI Charge in California?
Yes, you can withdraw a guilty plea or plea of no contest in a DUI case in some cases. California Penal Code §1018 gives a judge the authority to grant a motion to withdraw a plea for “good cause.” The code applies in misdemeanor DUI cases and felony DUI cases.
The motion to withdraw a guilty plea must be filed with the court before the person is sentenced or within six months of a probation sentence. If the judge finds that good cause exists to withdraw the plea, he grants the motion. After that, the defendant may enter a plea of not guilty to the charges of driving under the influence.
What is Good Cause for Withdrawing a Guilty Plea for DUI?
Regretting the fact that you plead guilty to drunk driving is not sufficient cause for a judge to allow you to withdraw your guilty plea. You need to show that your guilty plea was the result of:
- A mistake
- Inattention or oversight
Also, the judge may consider other factors that demonstrate overreaching as reasonable cause to withdraw a guilty plea. Examples of reasons why a judge might allow a defendant to withdraw a DUI guilty plea include:
Not Represented by an Attorney
In addition to claiming you plead guilty while representing yourself, you must show that you were not informed you had the right to have legal counsel. The judge must have failed to explain your right to an attorney in his instructions for you to win on this cause.
Your Attorney Was Incompetent
Ineffective legal counsel can be a ground for withdrawing a guilty plea. For example, suppose your attorney did not investigate your case, file appropriate motions, or otherwise provide a vigorous and effective defense. In that case, the judge may allow you to withdraw your guilty plea.
Proving your attorney was not a competent lawyer can be difficult. The legal representation must have fallen short of the accepted standard. Suppose you can prove that your attorney did not provide reasonable representation, which led you to accept an unfavorable plea deal. In that case, you might win your motion to withdraw a guilty plea.
Coerced Guilty Pleas
When you plead guilty to DUI, your plea must be voluntary and given without threat or coercion. The threat or coercion to plead guilty can come from any source, including police officers, co-defendants, prosecutors, and others.
You Did Not Understand the Consequences of Your Actions
If you can prove to the judge that you did not understand a significant consequence of pleading guilty, the judge might allow you to withdraw your guilty plea. For example, you were not aware that the state would revoke your professional license for a DUI conviction, or you did not know that you faced a mandatory prison sentence if you plead guilty.
Seek Legal Counsel Before Pleading Guilty to DUI Charges
Before pleading guilty to DUI charges, talk to a California DUI attorney. There could be one or more DUI defenses that might help you beat the drunk driving charges. If not, a skilled DUI defense lawyer works to obtain the best terms for a DUI plea agreement.
Potential DUI defenses include, but are not limited to:
Lack of Probable Cause
Police officers must have probable cause to make a traffic stop. For example, they witnessed a traffic infraction, such as speeding or running a red light. The police officer might claim that your driving was erratic, which indicated you might be intoxicated.
An exception would be a DUI checkpoint. California law permits law enforcement agencies to conduct DUI checkpoints as part of their DUI enforcement efforts. However, strict rules govern how DUI checkpoints are set up and operated. Failing to follow those rules could result in an illegal stop.
If a police officer did not have probable cause for the traffic stop or DUI arrest, your attorney files a motion to suppress evidence. The evidence collected from an illegal stop or arrest can be inadmissible.
You Were Not Under the Influence
California Vehicle Code §23152 states that it is unlawful to:
- Operate a vehicle under the influence of alcohol
- Drive a vehicle with a BAC of .08 percent or higher
- Operate a vehicle under the influence of any drug
If your BAC was not above the legal limit or you did not take a chemical test, the state must prove you were “under the influence” of alcohol or drugs. That means the prosecutor must prove your ability to drive was impaired. Your attorney attacks the statements by police officers to raise a reasonable doubt of your impairment.
Breathalyzer Results Are Inaccurate
A breathalyzer may give a false high for several reasons. Medical conditions could result in a false BAC level, including acid reflux, diabetes, GERD, and hiatal hernia. If the machine is not calibrated correctly or maintained correctly, the results could be inaccurate.
Your attorney carefully analyzes the process used to take your breath test. Inconsistencies or deviations from procedure could result in the results being thrown out or a jury doubting their validity.
Problems With Chemical Tests
Title 17 of the California Code of Regulations sets the rules for collecting, storing, and analyzing urine and blood samples for DUI chemical tests. Violations of these rules could result in the chemical test results being thrown out.
Mistakes and errors made by the police or the lab could result in inaccurate results, such as contaminating the sample or using fermented blood for a test. Medical conditions and rising blood levels could also result in higher BAC levels that do not reflect the person’s actual impairment at the time of the DUI arrest.
Inaccurate Field Sobriety Tests
Field sobriety tests can be flawed for many reasons. First, the person may have a medical condition that prevents them from performing the tasks. Second, the police officers might provide incorrect or confusing instructions. Third, environmental conditions might affect the person’s performance, such as uneven surfaces or bright headlights.
You Are a Bad Driver
Other factors could lead to a DUI stop because of erratic driving. For example, drowsiness or distracted driving could appear similar to drunk driving. The driver panics when the police officer pulls them over. Therefore, they are nervous, which causes them to fumble and stutter. The officer may believe the person is drunk when they have had nothing to drink.
There are many more DUI defenses your attorney may investigate, depending on the facts of your case. The first step in fighting drunk driving charges is to talk with an experienced California DUI lawyer.