Author Archives: Lawrence Taylor
What Happens When a Dentist Gets a DUI in California?
Driving under the influence in California has many consequences. The driver faces criminal penalties for a DUI conviction. However, they also face collateral consequences. A person holding a professional license may risk losing their license or facing other disciplinary action if they are convicted of drunk driving.
Dentists arrested for drunk driving should contact a Southern California DUI Lawyer immediately after an arrest to discuss defenses to criminal or administrative prosecution.
DUI Consequences for Dentists in California
Dentists in California must be aware of the potential DUI consequences for their professional licenses. A DUI conviction could result in a revocation or a suspension of a dental or hygienist license. There could also be other disciplinary actions taken that could significantly impact the dentist’s practice and career.
Additionally, the dentist faces several criminal penalties. Those penalties could also significantly impact the dentist’s practice or job, especially if they are ordered to serve jail time for the conviction
Criminal Convictions and Dentist’s License Discipline for California Dentists
The Dental Board of California oversees dentist licenses throughout the state. The Board could take one or more actions against a dentist for drunk driving offenses.
Dental Board of California Reporting Requirements for Alcohol-Related Offenses
Dentists are required to report all arrests for felony and misdemeanor offenses to the Dental Board of California. The arrest does not trigger an investigation or discipline. However, if the dentist is convicted of driving under the influence, the Board opens an investigation.
The California Code of Regulations (CCR) §1018.05 requires the reporting of indictments for felonies or the conviction of a crime, including guilty verdicts, guilty pleas, and pleas of no contest within 30 days. Therefore, failing to report such actions could be considered unprofessional conduct.
A dentist might try to avoid reporting a DUI arrest. However, it is best to face the matter directly with the help of a California DUI defense lawyer.
Dental Board Receives Notice of Arrest from Department of Justice
The California Code of Regulations requires a dentist to submit fingerprints when they renew their license if the Department of Justice does not have a record of the Board taking fingerprints before the current renewal. Once your fingerprints are on record with the Department of Justice, any arrest or conviction is immediately reported to the Dental Board.
Dental Board Administrative Discipline for DUI Convictions Under the Dental Practice Act
The Board may take one of several disciplinary actions when dental professionals are convicted of DUI in California. The disciplinary options for a drunk driving conviction can include:
- An issue administrative warnings;
- Administrative fine;
- Citations;
- Participation in a diversion program;
- Completing an alcohol abuse treatment program;
- Mandatory drug and alcohol screening;
- Community service;
- Probation;
- Supervision and monitoring of the dentist’s practice;
- Temporary dental license suspension; and
- Permanent dental license revocation.
Licensed dentists can fight license suspension or revocation. Dentists can also appeal the Board’s decision. Contact a lawyer immediately if you receive a formal Accusation because of a drunk driving conviction.
An attorney advises you of your rights and provides guidance throughout the administrative discipline process. In some cases, your lawyer might be able to negotiate a favorable Stipulated Agreement with the Board that can be submitted to the California Attorney General’s Office to resolve the matter quickly.
Disclosures And Patterns of Abuse
A first-time DUI offense might not be sufficient for the Board to suspend or revoke a dentist’s license. However, if you have a criminal record of drug and/or alcohol-related offenses, a drunk driving offense could be evidence of a pattern of substance abuse. Self-reporting and disclosing the information to the Board can help lessen the consequences of a DUI for a dentist.
Additionally, if you have patterns of alcohol abuse or warning signs of substance abuse, the Board might initiate disciplinary action. The warning signs of substance abuse do not need to be criminal offenses or multiple DUI offenses. For example, reports from patients, staff members, and other parties that you smelled of alcohol or drugs could be considered evidence of substance abuse and unprofessional conduct.
Alcohol and Substance Abuse for Dentists
Dentists have access to prescription drugs. That access can make it easier for a dentist to obtain controlled substances. Abuse of drugs and/or alcohol by dentists can be dangerous for both dentists and patients. Therefore, the California Dental Board treats complaints of alcohol and substance abuse for dentists very seriously. Even if you are innocent, you need experienced legal representation immediately. You could lose your dental license for a first-time DUI conviction, especially if the Board considers the DUI charge as evidence of a substance abuse problem.
Legal Representation in Administrative Hearings
You have the right to legal representations at administrative hearings. Talk with a Southern California DUI attorney who has experience with administrative hearings regarding professional license disciplinary actions. You should not represent yourself at an administrative hearing. The California Attorney General’s Office represents the Board at administrative hearings. Therefore, you would argue your case against a seasoned and skilled attorney.
Dental Board’s Enforcement Program
Knowing what to expect if you are arrested for DUI as a dentist can help you fight disciplinary actions by the Board. The Dental Board’s enforcement program consists of:
Intake of a Complaint
The Board may receive complaints from various sources, including patients, staff members, law enforcement agencies, insurance companies, and other parties. Staff members screen incoming complaints and route them to the appropriate division or person.
Analysis of the Complaint
The complaint is analyzed by a team of analysts at the Board. The request records and other information about the complaint. The complaint is evaluated to determine whether there is a potential violation of the Dental Practice Act.
Inspection
Depending on the allegations in the complaint, inspections might be sent to dental offices. The inspectors can issue citations and administrative warnings to dentists.
Investigation Phase
The Dental Board of California assigns an investigator to formally investigate criminal and administrative violations of the Dental Practice Act and develop comprehensive complaint files. The investigator forwards the evidence and information to the California Office of the Attorney General, and the Board sends a formal Accusation to the dentist. If you do not settle the matter with the Board, your case proceeds to a formal hearing before an administrative law judge. The judge may suspend or revoke your license or take one of several disciplinary actions.
Probation Period
You might be placed on probation if your dental license is not revoked or suspended for a DUI conviction. The probation section of the Dental Board monitors you to ensure you comply with all probation terms. If you violate any of the probation terms, you could have your dental license suspended or revoked.
Dentists And DUI FAQs
Below are answers to frequently asked questions (“FAQs”) about dentists and DUI in California.
1. Who Regulates Dental Professionals in California?
The Dental Board of California regulates the practice of dentistry for dentists, registered dental assistants, and hygienists according to the California Business and Professions Code (California BPC). Protecting dental patients is the Board’s primary duty.
2. Does a Criminal Charge Lead to Disciplinary Action?
An arrest for a criminal offense does not automatically lead to disciplinary action for dental assistants, dental hygienists, or dentists. A conviction for a criminal offense is what triggers action by the Dental Board of California.
3. What Kinds of Criminal Convictions Trigger Board Discipline?
Criminal convictions should be substantially related to the functions, qualifications, or duties of the dentist to justify disciplinary actions by the Dental Board of California. Examples of criminal offenses that could qualify as a crime substantially related to the practice of dentistry include, but are not limited to:
- Crimes involving alcohol, drugs, or substance abuse;
- Driving under the influence (“DUI”);
- Lewd acts on a child;
- Receiving stolen property;
- Possession of controlled substances;
- Exhibiting a deadly weapon;
- Burglary;
- Prescription fraud; and
- Billing and insurance fraud.
The evidence should show that the criminal offense demonstrates a potential or present unfitness to perform the functions authorized by a dental license.
4. Does Evidence of Rehabilitation Help?
Yes, evidence of rehabilitation can help dentists keep their licenses or reinstate their dental licenses after a DUI arrest. The California Business and Professions Code §482 requires each board to develop criteria to evaluate a person’s rehabilitation.
Evidence that the Dental Board may consider includes:
- The severity of the crime, the person’s criminal record, and the time that has passed since the offense;
- Evidence of DUI expungement;
- The dentist’s compliance with DUI probation terms and conditions;
- Letters of reference;
- Counseling;
- Alcohol and/or drug treatment programs;
- Remedial education programs; and
- Participation in a 12-step program or similar program for alcoholics.
The Board may consider other evidence of rehabilitation it determines applies to the dentist’s case. The goal of rehabilitation is to acknowledge the criminal offense, comply with the DUI penalties, and take positive steps to avoid such actions in the future.
5. What Happens After the Board Learns of a Conviction?
The Dental Board assigns an investigator when it receives notice of a dentist’s DUI conviction. If the Board determines discipline is necessary, it serves a formal Accusation on the dental professional. Therefore, a dentist should contact a DUI attorney familiar with professional licenses as soon as possible if they did not hire a DUI lawyer to handle the criminal case.
6. What Happens at a Formal Hearing?
A formal hearing is not a criminal court action. Instead, it is an administrative hearing. An administrative law judge (“ALJ”) hears the case. The California Attorney General’s Office argues the case on behalf of the Board to discipline the dentist for a DUI conviction.
The dentist has the right to be represented by legal counsel and present a defense to the allegations. At this time, the dentist’s criminal defense lawyer would present evidence of rehabilitation to mitigate the discipline the Board could take against the dentist.
7. How Can a Dentist Appeal the Board’s Decision to Revoke or Suspend a Dental License?
The California Superior Court hears appeals from administrative hearings for license revocation or suspension. The appeal must be filed within 30 days of the Board’s final decision. A dentist can petition the Board for reinstatement of their dental license if they lose their appeal.
8. Can I Become a Dentist With a Criminal History?
It depends on the crime and other factors relevant to the conviction.
The Dental Board has the authority to deny a license to a dentist convicted of a substantially related criminal offense within the past seven years. In addition, in cases involving serious offenses under California Penal Code §1192. 7 and sex offenses that require a person to register as a Tier II or III sex offender, the Board can deny a license, regardless of the time between the criminal conviction for unlawful sexual conduct and the application for a dental license.
You should contact a lawyer to appeal the decision if you are denied a dental license because of a DUI conviction or other crime.
Dentist’s Questions About DUIs in California
Below are answers to common questions about alcohol-related offenses that apply to dentists and other professional licenses in California.
How Does A DUI Affect Employment in California?
DUIs for dentists can affect their employment in several ways. First, the Board could revoke or suspend their license, which could result in closing a dental practice or being terminated from employment with a dentist’s office. The dentist’s reputation could be negatively impacted by a DUI conviction, which could result in the loss of business. At the very least, a DUI arrest that results in a driver’s license suspension and probation can make it difficult to work full-time and meet all job obligations.
How Long Does It Take for a DUI to Drop Off Your Record in California?
Misdemeanor DUIs remain on your driving record for 10 years (a felony DUI remains on your record forever). However, a DUI conviction remains on your criminal record indefinitely. The arrest remains on your criminal history if you receive a DUI expungement. However, the guilty verdict or guilty plea is changed to not guilty, and the court dismisses the DUI charge.
Do You Go to Jail for DUI in California?
You can go to jail for a first-time DUI in California. Some aggravating factors have mandatory minimum jail sentences that are added to any jail time the judge orders for a DUI conviction. A DUI defense attorney can help you fight the charges and argue for DUI probation instead of jail time or fight for the minimum amount of jail time, which you might be able to serve on weekends.
What California DUI Laws Apply to Dentists?
All California DUI laws apply to dentists. The primary DUI law in California is California Vehicle Code §23152. The law prohibits anyone from operating a motor vehicle while:
- Under the influence of any alcoholic beverage or drug;
- Addicted to the use of any drug;
- Under the influence of a combination of drugs and alcohol; and
- Having a blood alcohol content (“BAC”) above the legal limit.
The legal limit for BAC in California is .08% for most drivers. However, if you are driving a commercial motor vehicle or a vehicle with a passenger for hire in the vehicle with you, the legal limit for BAC is .04% or higher.
Also, the zero tolerance laws in California for individuals on probation and underage drivers set lower BAC limits. Those individuals cannot have any measurable amount of alcohol in their system while driving a vehicle.
California’s implied consent laws require you to submit to a blood test or breath test if you are lawfully arrested for DUI. The chemical test measures the blood alcohol concentration in your system. If you refuse a chemical test, the California Department of Motor Vehicles (“DMV”) administratively suspends your driver’s license. The license suspension stands regardless of whether you are found guilty of driving under the influence.
What Are the Most Common Penalties For A DUI Conviction In California?
The most common DUI penalties include:
- Fines and assessments that could total thousands of dollars;
- Jail time or prison sentences;
- Three to five years of probation;
- Attendance at DUI school for up to 30 months;
- Substance abuse treatment;
- Installation of an ignition interlock device (“IID”);
- Mandatory attendance at DUI programs, such as the Hospital and Morgue Program and MADD’s Victim Impact Panel; and
- Community service and other probation terms.
DUIs can count as prior offenses in California. If you have a prior DUI conviction within 10 years, the sentence for a second DUI is harsher. The jail sentences, fines, probation, and other penalties increase with each DUI conviction on your criminal history.
Most DUIs are misdemeanors. However, local district attorney’s offices can charge you with felony DUI if you injure or kill another person, have three or more prior DUIs on your record within 10 years, or have a prior felony DUI on your record. The punishment for a felony DUI is severe. You could serve several years in state prison, have your driver’s license permanently revoked, and pay substantial fines.
Get Help from a California DUI Lawyer
The best way to protect your dental license is to fight DUI charges. A Southern California DUI attorney investigates the arrest and develops a defense strategy that gives you the best chance of a positive outcome in your case. Call a DUI lawyer immediately for a free consultation if the police arrest you for driving under the influence in California.
Talk To A DUI Defense Attorney
As mentioned above, an experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our recent article about whether or not a DUI charge could lead to termination of employment, and other related articles on our blog, which is updated regularly!
Sources:
https://www.dbc.ca.gov/about_us/lawsregs/approved_regulations.shtml
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=482.
What Happens When a Pharmacist Gets a DUI in California?
What Happens When a Pharmacist Gets a DUI in California?
A DUI is a crime in California and can risk your pharmacist license and career. After a DUI conviction, the California State Board of Pharmacy (“CSBP”) may call for revocation or suspension of your license.
When a pharmacist receives their license, they must submit to Live Scan fingerprinting. After a DUI arrest, a person will also be fingerprinted. The CSBP will be automatically notified of a person’s arrest due to this process. Therefore, they will become aware of your DUI soon after it happens.
If you have a pharmacist license and have been arrested for a DUI, it is important to retain an attorney knowledgeable in criminal law and professional licensing law. A Southern California attorney with this unique knowledge base can help you with the criminal proceedings, pharmacy board disclosure requirements, and potential CSBP disciplinary process.
DUI Consequences for California Pharmacists
The DUI consequences for California Pharmacists are potentially extensive. A pharmacist will have to address criminal charges and go to court, attend potential DMV hearings on whether they can keep their license, and attend potential board disciplinary proceedings. Each process can have a different result, lead to fines and fees, jail time, marks to your driving and criminal records, increased insurance and other expenses, and jeopardy to your professional license.
Could a DUI Destroy Your Career as a Pharmacist?
A DUI could significantly impact your career. For example, suppose a pharmacist is disciplined and subject to probation. In that case, they must all present and prospective employers of the decision or order granting probation along with the terms, conditions, and restrictions imposed on them within 30 days of the decision.
If a pharmacist decides to take a new job, they must inform the board within ten days of the details of their new employer. They must also provide contact information for the supervisor or person in charge. They can expect the board to follow up with the new employer and inquire about their job performance. Failure to do so can be a violation of probation and lead to you losing your license.
Many employers will not be comfortable with an employee that has this record, or that would create an opportunity for increased workplace scrutiny.
Reporting a DUI Criminal Conviction
As previously discussed, the CSPB will be notified by law enforcement at the time of your arrest. If this does not occur, you must inform them of your arrest. You will be obliged to report what happens and if you face any charges to the CSPB. This will likely be in the context of responding to a letter from them, which you can expect will happen pretty soon after you find yourself faced with DUI charges.
Will I Be Able to Get a Pharmacy License With a DUI?
Yes, it is possible, especially if the incident is at least seven years in your past (unless a felony is involved). However, the medical board may find certain criminal offenses and circumstances leading to a DUI too difficult to accept, such as more than one misdemeanor or incidents involving controlled substances. They may feel these items will make it impossible for you to carry out a licensee’s qualifications, functions, and duties.
Can I Avoid Discipline After a DUI Arrest?
It is possible to minimize discipline but unlikely you can altogether avoid the process. Even if charges are dismissed, the board will still learn about your DUI arrest. If it somehow is not notified by authorities, you must inform them or you can face serious consequences.
Many pharmacists can avoid serious discipline if the facts are in their favor. This includes charges being reduced or dismissed. Or if charged, the lack of no other criminal history, excessive BAC, and no aggravating circumstances all help. If a pharmacist is notified of an accusation or other action by the board, they may be able to settle with the right facts and legal counsel behind them.
Pharmacists Facing DUI Charges
Whether you are a pharmacist, pharmacy intern, or pharmacy technician: if you are faced with a DUI in the state of California, you should seek legal help. Most attorneys offer a free consultation to evaluate your case.
You should work with an attorney who has expertise in criminal and professional licensing law. A DUI defense strategy for a person with a professional license will need to be very different from a standard DUI case. An experienced attorney can offer you a confidential consultation and help you understand the potential outcomes of your case.
DUI Disciplinary Measures
As explained in the FAQs below, there are four categories of violations for which the board of pharmacy will typically seek to impose disciplinary measures. DUIs usually fall into Category 3 of this list. The punishment can be a minimum 90-day license suspension or stay of a license revocation with 3-5 years of probation, or, in some cases, a complete revocation of a license.
Pharmacists and DUI FAQs
1. Who Regulates Pharmacists in California?
The California State Board of Pharmacy regulates and disciplines pharmacists. The California Business and Professions Code and Code of Regulation gives them the authority to do so.
2. What Types of Criminal Convictions Trigger Board Discipline?
The board states that there are many potential grounds for discipline. This includes violations of the Pharmacy Law, an act involving moral turpitude, breaches of the board’s rules and regulations, and violations of other state or federal laws or ordinances.
For individuals such as pharmacists, intern pharmacists, and pharmacy technicians, there are four main categories of violations the board will discipline. Multiple violations can create a more complex disciplinary situation.
Category 1 includes minor violations such as record-keeping issues and inventory control problems. Disciplinary action can consist of 2 years of probation or, in some cases, revocation of a license.
Category 2 involves violations with a potential for serious harm or disregard for public health or safety. Disciplinary action can include 3-5 years of probation or, in some cases, revocation of a license.
Category 3 involves violations where the potential for harm is more significant and for violations involving knowingly or willfully violating laws or regulations pertaining to pharmacy, drugs, controlled substances, and most criminal convictions involving alcohol or drugs. Disciplinary action can include a minimum 90-day suspension, 3-5 years of probation, or in some cases, revocation of a license.
Category 4 involves the most serious violations of laws or regulations on a pharmacy, dangerous drugs, or controlled substances. If Category 4 discipline is imposed, a license will be revoked.
3. What Does “Substantially Related” Mean?
“Substantially related to the qualifications, functions or duties of a licensee” is very broad terminology in the California business and professions code section. It permits the California board of pharmacy to discipline a licensee guilty of unprofessional conduct.
The California Code of Regulation states that for license denial, suspension, or revocation, “(A) crime or act shall be considered substantially related to the qualifications, functions, or duties of a licensee or registrant if to a substantial degree it evidences present or potential unfitness of a licensee or registrant to perform the functions authorized by his license or registration in a manner consistent with the public health, safety, or welfare.”
Essentially, any crime or act can be considered “substantially related.” This allows the board can make disciplinary decisions on a case-by-case basis and evaluate circumstances surrounding a drunk driving conviction or other incidents.
Common examples of what could be considered “substantially related” include convictions related to theft, fraud, prescription drugs, alcohol, or drug-related crimes (including DUIs).
4. Does Evidence of Rehabilitation Help?
Yes, it can help your case. The board explicitly states in published guidance that it will consider evidence of rehabilitation in deciding whether the minimum, maximum, or intermediate penalty will be imposed against a person holding a pharmacy license.
5. Can a Pharmacist Fight a Disciplinary Action?
Yes; a pharmacist can fight a disciplinary action. If the pharmacy board notifies a pharmacist of an accusation by which it seeks to discipline them, the pharmacist may be able to respond and settle charges or allegations. If this does not resolve the matter, a pharmacist has the right to have an administrative hearing before the board can impose any discipline.
6. Can I Become a Pharmacist if I Have a Criminal History?
It is possible but not guaranteed. The board of pharmacy may deny an applicant based on their criminal history, subject to some limitations. For example, if a person’s conviction is more than seven years old, or their conviction led to incarceration, and it has been more than seven years since their release, this cannot be the basis for a denial. But there are exceptions to this.
According to the pharmacy board, applicants with a criminal history are not automatically denied a license.
Does a DUI Fall Off Your Record in California?
The answer is “not exactly.” A DUI remains on your state driving record for up to 10 years. It stays on your criminal record potentially indefinitely. You may have other reporting obligations in the pharmacy profession that essentially extends this record for a longer time, notwithstanding it not being on your driver’s or criminal history. For example, you must disclose a DUI on all license applications and renewal requests.
How Long Does A DUI Stay on Your Background Check in California?
A DUI will remain on your driving record for ten years, beginning on the day of your arrest. There is not currently a way to have a DUI taken off your driving record early.
A DUI is on your criminal record permanently. The only way to get it removed is through the process of expungement.
How Does A DUI Affect Employment In California?
For certain professions, even one misdemeanor DUI can threaten a person’s job status. It can lead to a person losing their job or, in the case of a pharmacist, their license. If you are put on probation or your license is temporarily suspended, an employer may be unable or willing to keep you on staff.
A skilled California DUI criminal defense attorney may be able to get a charge dismissed or negotiate a plea bargain to a lesser charge. This may help lessen the consequences to your career.
How Long Do You Go to Jail for DUI in California?
The consequences of a DUI can be very serious. You could get as much as 6 months of jail time for a first-offense misdemeanor. For a second misdemeanor DUI conviction, you can get between 96 hours to 1 year in jail time. A third-time misdemeanor DUI conviction can lead to anywhere between 120 days to 1 year in jail. There is a one-month mandatory jail time requirement, and every county handles the minimum time differently.
If this is your fourth or subsequent offense within the last 10 years, a prosecutor will likely seek felony charges against you. You will face jail time of up to three years, assuming there were no injuries or deaths.
Between legal fees, fines, and court penalties, you could spend upwards of $10,000 on dealing with a DUI. Each subsequent DUI charge adds complexities to your case, increasing the costs of defending it.
Talk To A DUI Defense Attorney
As mentioned above, an experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our recent article about whether or not a DUI charge could lead to termination of employment, and other related articles on our blog, which is updated regularly!
Sources:
https://codes.findlaw.com/ca/vehicle-code/veh-sect-1808.html
https://www.pharmacy.ca.gov/applicants/apply_personal.shtml
https://law.justia.com/codes/california/2021/code-pen/part-1/title-13/chapter-5/section-484/
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4301&lawCode=BPC
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11368&lawCode=HSC
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23152.&lawCode=VEH
https://www.pharmacy.ca.gov/laws_regs/1760_guidelines.pdf
https://www.pharmacy.ca.gov/enforcement/disciplinary_terminology.shtml
https://www.pharmacy.ca.gov/applicants/faq_criminal_history.pdf
https://www.pharmacy.ca.gov/applicants/criminal_convictions.shtml
Vehicular Manslaughter While Intoxicated in California
Vehicular Manslaughter While Intoxicated in California
Gross vehicular manslaughter while intoxicated is a serious DUI offense in California. If law enforcement officers arrest you after a DUI accident resulting in death, contact a Southern California DUI lawyer immediately for a free consultation. Talking to the police or a prosecutor without legal representation could hurt your DUI defense.
This article explains gross vehicular manslaughter in California. In addition, we discuss potential sentences for gross vehicular manslaughter while intoxicated in California and the possible defenses a DUI attorney might use to fight the charges.
What is Gross Vehicular Manslaughter While Intoxicated According to California Penal Code 191.5(A)?
The criminal offense known as gross vehicular manslaughter while intoxicated is defined within California Penal Code §191.5(a). The statute states that gross vehicular manslaughter while intoxicated is:
- Unlawfully killing another person;
- Without implied or express malice (malice aforethought);
- While driving a vehicle in violation of California Vehicle Code Sections 23153, 23152, or 23140, AND;
- The death was the caused by committing the unlawful act, but was not a felonious act with gross negligence; OR
- Committing a lawful act in an unlawful manner and with gross negligence that could result in the death of another individual.
The statute can be very confusing and difficult to understand when reading at first glance. However, the legal definition of gross vehicular manslaughter while intoxicated in California can be more easily understood when it’s broken down. So let’s explain what the statute means in non-legal terms.
Gross Vehicular Manslaughter While Intoxicated “Explained”
The criminal offense of gross vehicular manslaughter occurs when you kill someone while driving under the influence of alcohol and/or drugs. You do not need to intend to kill someone to be charged with this crime. Instead, all that is required is you take another life while committing a grossly negligent unlawful act—such as drunk driving. The unlawful act itself does not need to be a felony.
Additionally, you can still be charged with gross vehicular manslaughter while intoxicated if your conduct is lawful. Still, the conduct could result in another person’s death in an unlawful manner and with gross negligence.
How Does the Prosecutor Prove Gross DUI Manslaughter Under PC 191.5(a) Was Violated?
According to the Penal Code and the Judicial Council of California Criminal Jury Instructions, in order for the prosecutor to prove gross DUI manslaughter, they must demonstrate:
- You were operating a motor vehicle with a blood alcohol concentration (“BAC”) above the legal limit, OR you were under the influence of drugs or alcohol;
- While you were driving the vehicle under the influence of alcohol and/or drugs, you committed a misdemeanor offense or infraction, OR you committed a lawful act that could cause death;
- The misdemeanor, infraction, or lawful action that could cause death was committed with gross negligence; AND
- Your gross negligence resulted in killing another individual.
The legal limit for most drivers in California is a BAC of .08% or higher. However, persons driving a commercial motor vehicle or a vehicle for hire have a lower legal limit of .04% or higher. Additionally, it is unlawful for underage drivers to operate a motor vehicle with a BAC of .01% or higher under California Vehicle Code §23136 or a BAC of .05% or higher under California Vehicle Code §23140.
What Is an Example of Gross DUI Manslaughter According to California Penal Code Section 191.5(a)?
A key legal element for the prosecution to prove is that your grossly negligent conduct caused the person’s death. In legal terms, gross negligence has been defined as reckless conduct that demonstrates a lack of care for the safety of other people. The recklessness and lack of care are so great that the conduct appears to be a conscious violation of the rights of other individuals.
The California Jury Instructions explain gross negligence as a lack of any care or an extreme departure from conduct that a reasonably cautious individual would do in the same situation to prevent harm to themselves or another person. Grossly negligent conduct can be an act or a failure to act.
The legal elements of negligence, which must all be demonstrated by a prosecutor, are:
- A duty of care owed by the defendant towards the party harmed;
- A breach of this duty by the defendant;
- Causation of the harmed party’s injuries by the defendant as a direct effect from the defendant’s actions; and
The state must prove that your conduct was negligent. Then, the prosecution must prove that your conduct was “extreme” to justify gross negligence. Examples of gross negligence for DUI manslaughter could include driving a vehicle under the influence of alcohol or drugs and causing an accident while:
- Driving at excessive speeds (i.e., 90 mph);
- Driving on the sidewalk;
- Driving in the wrong direction; or
- Repeatedly ignoring traffic laws.
In each of the above examples, a reasonable person would know that doing these things could create an unreasonable risk of death. It is important to note that the person must be intoxicated and must cause a traffic accident for the state to charge the person with a criminal offense under PC §191.5(a).
Gross negligence is the complete disregard for the safety of other people. If your conduct does not meet the definition of gross negligence, you cannot be convicted under this statute. However, that does not mean you escape punishment for causing a DUI accident which results in death. There are several vehicular manslaughter charges or murder charges that the state could use to prosecute you after a DUI accident involving death.
What Are My Chances of Beating a Gross Vehicular Manslaughter DUI Charge in California?
If you represent yourself, your chances of beating a gross vehicular manslaughter DUI charge are much lower than if you hire an experienced Orange County DUI attorney. A California DUI defense lawyer understands the legal elements of the criminal charges. In addition, an attorney understands the potential DUI defenses and how to challenge the state’s evidence alleging your actions amounted to gross negligence.
Your best chance of beating charges of gross vehicular manslaughter while intoxicated in California is to hire an experienced DUI lawyer as soon as possible after the police arrest you for drunk driving.
Related Charges to Gross Vehicular Manslaughter While Intoxicated Charges
The state could charge you with one or more related offenses if the prosecutor does not think they can prove your actions amounted to gross negligence. Other similar offenses to gross vehicular manslaughter while intoxicated include:
- Vehicular Manslaughter While Intoxicated (PC §191.5(b));
- DUI Causing Injury (VC §23153);
- Vehicular Manslaughter (PC §192(c)); and
- DUI murder or Watson Murder (PC §187).
The language in California Penal Code §191.5(b) is the same as gross vehicular manslaughter, except that the charge involves ordinary negligence. Vehicular manslaughter while intoxicated is often used in DUI plea bargains as a charge reduction. The penalties are lesser than the penalties for gross vehicular manslaughter while intoxicated. Since it is a wobbler offense, a California DUI attorney might negotiate a DUI plea deal to reduce the charges to a misdemeanor which would only carry up to one year in county jail.
Legal Defenses to a Charge of Gross Vehicular Manslaughter While Intoxicated: How to Fight Gross DUI Manslaughter Charges Under PC 191.5?
There are several sound legal defenses to a charge of gross DUI manslaughter. The facts and circumstances of the case determine the type of defense strategy your California DUI defense lawyer chooses. There are several defenses that could be applied to fight gross DUI Manslaughter charges under California penal Code 191.5. Potential defenses to gross DUI manslaughter charges include:
Insufficient Evidence of Intoxication
Your DUI defense attorney may use one or more standard DUI defenses to argue that you were not intoxicated at the time of the accident. These DUI defenses might include:
- Challenging the chemical test results because of violations of California Title 17 governing the collection, testing, and storing of blood, urine, or breath samples;
- Challenging the validity of the chemical test because of errors made by police officers or health conditions that could result in falsely high BAC levels;
- Alleging that rising alcohol levels and residual mouth alcohol caused the high BAC levels;
- Claiming the BAC levels were inaccurate because of a health condition or environmental factors;
- Offering a simple explanation for why the officer thought you exhibited signs of intoxication, such as a health condition, fatigue, shock from the accident, etc.; and
- Raising allegations of police misconduct in the accident investigation and DUI arrest.
A DUI lawyer might use other DUI defenses as well, depending on the facts of your case. A DUI defense attorney investigates the arrest and analyzes the state’s evidence to determine potential defenses.
You Weren’t Driving Under the Influence of Alcohol or Drugs
If you did not take a chemical test, the prosecution must prove that you were driving under the influence of alcohol or drugs. Driving under the influence means your driving ability was impaired by alcohol or drugs in your system.
First, your attorney attacks the state’s assertion that you had alcohol or drugs in your system because it does not have a BAC test to prove the allegation. Second, your lawyer might attack the police officer’s observations and statements by witnesses that you were “acting” intoxicated or showed signs of alcohol or drug use.
You Weren’t Demonstrating Gross Negligence
Your behavior and conduct did not amount to gross negligence. Your attorney might argue that you were negligent, but your conduct amounted to ordinary negligence. Therefore, you cannot be convicted according to California Penal Code §191.5(a). However, the prosecution could reduce the charges to vehicular manslaughter while intoxicated under PC §191.5(b). As discussed above, the penalties are much less severe under PC 191(b).
You Weren’t Responsible for the Victim’s Death
Your gross negligence must result in the other person’s death to be guilty of gross vehicular manslaughter while intoxicated. The traffic accident might not have been your fault. The other driver or another party could have caused the accident. Even though your conduct was grossly negligent, it did not result in the person’s death. Therefore, you are not guilty of gross vehicular manslaughter while intoxicated.
You Faced Imminent Peril
Was there an emergency that caused you to drive while impaired and act as you did? If an ordinary reasonable person would act in the same way, you would not be guilty of gross negligence.
Gross Vehicular Manslaughter While Intoxicated Sentencing and Penalties: What Are the Legal Penalties for Gross DUI Manslaughter?
Gross DUI manslaughter convictions carry severe criminal penalties. A conviction under PC §191.5(a) typically results in:
- A state prison sentence of four, six, or ten years;
- Felony (formal) probation; and
- Fines of up to $10,000.
However, your sentence is harsher if you have one or more prior convictions on your criminal record for vehicular manslaughter while intoxicated (ordinary, gross, or while operating a boat), DUI offenses, or DUI causing injury. You could face up to 15 years to life in prison for a conviction of gross vehicular manslaughter while intoxicated in California.
Gross Vehicular Manslaughter While Intoxicated FAQs
Below are answers to frequently asked questions (“FAQs”) about gross vehicular manslaughter while intoxicated in California.
Will I Lose My Driver’s License if I Am Convicted Under PC 191.5(a)?
Yes, you lose your driving privileges for a conviction of gross vehicular manslaughter while intoxicated. The California Department of Motor Vehicles (“DMV”) revokes your driver’s license for at least three years.
You face additional charges and penalties if you operate a motor vehicle with a revoked driver’s license.
Before you can drive again, you must complete all terms of your DUI sentence. After that, you must apply to reinstate your driver’s license with the DMV, including paying fines, reinstatement fees, and providing proof of required insurance.
Is Gross DUI Manslaughter Under PC 191.5 a strike?
A conviction of gross DUI manslaughter is a serious felony offense. Therefore, it counts as a strike under California’s Three Strikes Law. The law significantly enhances the penalties for a third strike.
If you have two strikes against you when you are convicted of gross DUI manslaughter charges, the judge could sentence you to 25 years to life in prison. Therefore, it is crucial that you contact a California DUI attorney immediately to discuss ways to fight DUI charges when you have prior strikes on your record.
What Is the Sentence for DUI Vehicular Manslaughter in California?
With a conviction of gross DUI vehicular manslaughter, you face up to 10 years in prison. If you have past DUI convictions, your prison sentence increases to 15 years to life. In addition, if people were injured in the DUI crash but survived, you also face an additional three to six years in prison per victim who suffered great bodily injury.
If you plead down to DUI vehicular manslaughter under PC §191.5(b), the penalty for a misdemeanor offense is up to one year in county jail. If you are charged with felony DUI vehicular manslaughter, you could serve up to four years in state prison. However, the same rule applies if there are survivors who suffer great bodily injury, so the prison sentence could be longer.
If this conviction is your third strike, the sentence is 25 years to life in prison under California’s Three Strikes Law.
What Is the Difference Between Gross Vehicular Manslaughter and Vehicular Manslaughter?
The language in the Penal Code is the same for both DUI offenses. However, gross vehicular manslaughter requires that the state prove your conduct rose to the level of gross negligence. If the state cannot prove gross negligence, the prosecutor might try to prove ordinary negligence for DUI vehicular manslaughter or charge you with another DUI offense.
What’s the Penalty for Vehicular Homicide in California?
Officers charge you with vehicular manslaughter or vehicular homicide under Penal Code §192(c). A person is guilty of this criminal offense if they cause another person’s death while operating a vehicle in a negligent or unlawful manner. A prosecutor might choose this charge if the evidence is not strong enough to prove DUI vehicular manslaughter or DUI murder charges.
The penalties for vehicular homicide or vehicular manslaughter under this code section depend on the exact charges and the facts of the case. If you are charged with vehicular manslaughter with gross negligence as a misdemeanor, you face up to one year in jail, a $1,000 fine, and one year of summary probation. However, if the state proves felony vehicular manslaughter with gross negligence, the punishment increases to a state prison sentence of up to six years, a fine of up to $10,000, and formal probation.
A misdemeanor charge of vehicular manslaughter without gross negligence carries a jail sentence of up to one year, a $1,000 fine, and summary probation. If the charge includes allegations of financial gain or insurance purposes, the charge is always a felony. The punishment would be up to ten years in state prison and a fine of up to $10,000.
Get Help from a California DUI Lawyer
Charges of vehicular manslaughter while driving under the influence are serious criminal charges. Depending on the circumstances and your past criminal history, you could face a lifetime in prison. Don’t try to fight DUI charges alone. Instead, contact an experienced Southern California DUI attorney for a free consultation.
Talk To A DUI Defense Attorney
An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic, or other topics similar to it? Find more articles on our blog, updated regularly!
Sources: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=191.5.&lawCode=PEN
https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23136.&lawCode=VEH
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23140.&lawCode=VEH
https://www.law.cornell.edu/wex/gross_negligence
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=192.
https://www.courts.ca.gov/documents/rupro-20170822-materialsAddl.pdf
False PAS Readings: Everything You Need to Know in California
False PAS Readings: Everything You Need to Know in California
Did you know that a person can fail a breathalyzer test, also known as a Preliminary Alcohol Screening test (“PAS”) when they haven’t even been drinking alcohol? You may be surprised to learn that PAS tests are often inaccurate, and many factors can give false positives.
Why Is the Breath Test Result Such a Big Deal?
The breath test is a big deal because it can be the basis for arresting you and charging you with a DUI. After all, the test supposedly shows whether you were above the legal limit of .08%. It can then lead to further chemical testing at a police station, a night in jail, and automatic suspension of your driver’s license by the California Department of Motor Vehicles within a month.
Many people are improperly or unfairly charged with a DUI under California law. If this happens to you, you should immediately speak with a Southern California criminal defense attorney. Many drunk driving cases can be won, and a DUI defense attorney may successfully fight your breath testing result. Many attorneys, such as The Law Offices of Taylor and Taylor, even offer a free consultation.
If you do not protect your rights, you could end up dealing with a DUI conviction, DUI penalties, and DUI probation. DUI laws are not always applied fairly, and it is never a good idea to go through this process alone.
Are Breathalyzers Admissible in Court in California?
Yes. All breathalyzer tests utilized by law enforcement in California can be admitted as evidence in court in California. However, the type of test or device may not carry the same weight as another. An experienced DUI lawyer will be able to help explain these nuances to you, and may also be able to prevent the results of a field sobriety test from being allowed as evidence in your case.
What Is the Difference Between a PAS and Other Breath Tests?
There are two breath tests used in California. The first is a PAS breath test, usually conducted during a traffic stop before a DUI arrest. Police officers have this test at their disposal to aid them in a DUI investigation. You can refuse this breathalyzer test in California unless you are under 21 or on probation for drunk driving.
After a DUI arrest, a second type of breath testing may be administered. This test uses equipment that follows requirements outlined in Title 17 of the California Code of Regulations.
A title 17 breath test must collect air from deep within the lung called “alveolar air”. Before giving a driver this test, a police officer is supposed to continuously observe them for 15 minutes and ensure they do not ingest food or drink, smoke anything, burp, or throw up. Any of these events can affect test results. You cannot refuse this test, but you are allowed to request a blood test or urine test instead, if available.
District attorneys always prefer to have a title 17 breath test taken over a PAS test because they are supposedly conducted in more controlled settings and with better equipment. Thus, they are viewed as a more reliable source of evidence. However, they are not perfect, especially if law enforcement or other personnel are not authorized to give them or don’t follow protocol.
PAS tests can be introduced as evidence at trial but are subject to more lines of attack and questioning from a DUI defense attorney.
Will Benzyl Alcohol Show Up on a Breathalyzer?
Yes, benzyl alcohol can show up on a breath test. Benzyl alcohol is found in Anbesol, an ingredient in many oral gels used to treat canker sores and toothaches. If a person has recently applied an oral gel and takes a breath test, they can test positive on breath test machines. They may “blow” a higher BAC level than would have otherwise been the case had they not had this in their system.
How to Discredit a PAS Breath Test in a California DUI Case
A PAS breath test can be discredited in many ways. In addition to the false positives caused by oral gels, other common medications and personal hygiene products can also cause false positives.
Medications that treat asthma, COPD, bronchitis, and emphysema can also affect breath test results. If a person is sick and has been taking cough drops or cold medications, they may contain alcohol and be in your breath sample when a test is administered. Residual alcohol, known as “mouth alcohol” from mouthwashes and breath sprays, can also affect breath tests.
Breath test machines are intended to measure deep lung air. Alcohol from alcoholic beverages, alcohol vapor or “mouth alcohol” can all cross between the bloodstream and lungs fairly easily. When a person takes a breath test, mouth alcohol can mix with exhaled air and a device can interpret this as a blood alcohol concentration reading. Breath test machines cannot necessarily tell the difference between residual alcohol in your breath versus deep lung air.
A skilled Orange County DUI attorney can show that these factors could have caused a false positive and your preliminary alcohol screening test to show a blood alcohol concentration of 0.08% as opposed to you being above the legal limit.
If I Really Was Drinking, Can I Still Fight the Breath Test?
Yes, you may be able to fight the results even if you were drinking. Many potential defenses can prevent a breath test from being considered in your case. If a prosecutor does not have evidence beyond a preliminary alcohol screening test or breath test result, they may have to drop their case or negotiate the charges down.
From issues that may exist with whether police officers had probable cause to arrest you, whether field sobriety tests were administered correctly, or whether there were other factors that could have created false positives, you may be able to fight test results. This can lead DUI charges against you being dropped, dismissed, or reduced.
What Happens if I Am Convicted of a DUI?
The consequences for DUI conviction under California law largely depend on whether you are convicted as a first-time or repeat offender. There can be fees and costs in addition to DMV penalties which may lead to the suspension of your driver’s license.
A first-offense DUI in California can carry three years of informal probation, fines, and penalties totaling several thousand dollars. You will also have to complete a first offender alcohol program which can cost another few hundred dollars. In many cases, drivers will also have to do community service or participate in a victim impact panel.
Most people will not be sentenced to jail time unless certain aggravating factors are present in their case. These can include a minor child in the car or going 25 miles an hour or more above the speed limit on a roadway. In addition, your county may require you to install a handheld breathalyzer in your car to prevent it from starting if it detects you have been drinking.
For repeat offenders, the consequences become more serious. For a second-time offender, there is a minimum jail time of 96 hours. Additionally, prosecutors will usually seek more time, up to a year. You can lose your license for two years.
What Are the Best Strategies for Attacking Breath Test Results?
Many strategies may be available to you. However, the best place to start is usually at the beginning. Did the officer have a legal justification for detaining you? In other words, did they have probable cause to pull you over and give you a breath test?
Another strategy revolves around whether a testing device was reliable and in proper working order. You can also question whether a test was adequately administered or if the test correctly determined your blood alcohol content. Chemical test results can also be challenged if specific procedures are not followed, contamination or improper handling is suspected.
If you suffer or were suffering from any metabolic or medical conditions at the time of your arrest, you may have a mouth alcohol or medical defense. Prescription drug content may make your breath sample an unreliable indicator of a person’s blood alcohol concentration.
Should I Contact a Lawyer to Help Me?
Yes, absolutely. There are many steps to the process that you may be unable to adequately handle on your own. For example, after a DUI arrest, you must worry about a potential criminal case and an administrative case with the California Department of Motor Vehicles regarding the suspension of your license.
A SoCal DUI Lawyer can help you navigate both of these proceedings. Attorneys are also familiar with tactics used by local district attorneys, California law, minimum and maximum sentencing requirements, and the likelihood of being able to reduce your charges versus getting them dismissed.
Finally, a DUI conviction can seriously impact your livelihood if you have any professional license, such as a medical, dental, pharmacy, or pilot license. An attorney can help you determine the best defense strategy with the most negligible impact on your personal and professional life.
Do Not Blow in PAS Breath Test if Stopped for a SoCal DUI
You may refuse to take a preliminary alcohol screening pass in California unless you are under 21 or on probation for drunk driving. If you are on probation and will not take the test, your probation may be revoked, and you may serve jail time. If you are below age 21, you can lose your driver’s license if you refuse to test.
The main reason for a preliminary alcohol screening is so that the officer who pulls you over can establish probable cause to arrest you for DUI. An officer may claim you are required to take it or that it could help you in your case. This is only true if you are confident that you are under the legal limit of 0.08. But, as explained above, you can fail a test even if you have not been drinking alcohol.
Get in Touch with an Experienced DUI Attorney Today
If you or someone you care about is dealing with a DUI, you should speak with our experienced DUI defense attorney today. You may be able to defend your case and avoid DUI charges.
Our defense attorneys have decades of experience handling California DUI matters and will aggressively fight to help you get the best result possible. Contact us today for a free consultation.
CA DUI Frequently Asked Questions
1. When Is a Breath Test Given in a DUI Case?
A breath test is usually given after a police officer has observed a driver acting in a way that may lead them to suspect they have ingested alcoholic beverages before driving. This can occur at a DUI checkpoint or if someone has been pulled over for another reason. It may also be used as a further investigative tool to establish probable cause.
2. Can a Driver Refuse to Take a DUI Breath Test?
A driver can refuse a DUI breath test under certain circumstances. However, there can be harsh consequences for your refusal to take a test. California vehicle code section 13353 penalizes anyone who does not submit to a breath, blood test, or chemical tests as follows:
- Suspend driving privileges for one year;
- Revoke a person’s driving privileges for several years if the person has had prior violations in the past 10 years;
- Mandatory jail time in some scenarios; and
- Increased time in DUI school.
A person’s individual circumstances will impact how harsh the penalties may be.
3. Is It Better to Choose a DUI Breath Test or a Blood Test?
Having to take either test is not ideal. However, blood tests are believed to be more accurate than breath tests by prosecutors and a more robust source of evidence regarding BAC levels. Because of this, they are often less willing to negotiate with DUI lawyers on charges involving a blood test. If you have a choice, the breath test may be a better option because it is easier to exclude in court.
4. How Do Title 17 Regulations Apply to DUI Breath Tests?
Title 17 of the California Code of Regulations has very specific rules about how police departments and law enforcement must conduct blood tests, breath tests, and chemical tests. If the police do not comply with Title 17, the DA may not be able to use test results to support their case to charge and convict a person.
In the case of breath tests, every test must follow specific procedures. Many law enforcement officers routinely fail to follow these procedures:
- Two separate breath samples must be used, each resulting in determinations of breath alcohol concentrations that do not differ by more than 0.02 grams per 210 liters of breath.
- The breath test devices must be regularly maintained and checked for accuracy following specific procedures. This must occur every 10 days after 150 people have been tested, whichever comes sooner.
- The person operating the device must have had particular training.
There are also precise procedures that must be followed for blood collection and retention as well as urine collection and retention.
5. What Is the Science Behind Testing Breath for BAC?
The “science” behind this process is based on a ratio calculated due to a chemical reaction detected and interpreted by a breath test. Alcohol vapor in a person’s breath sample reacts with an orange solution known as potassium dichromate. If alcohol is present, this solution is supposed to become green, which produces an electrical current. A breathalyzer is supposed to convert this current into a numerical value representing a person’s blood alcohol levels (BAC).
Many professionals disagree regarding the strength or reliability of this supposedly “scientific” testing methodology.
6. Can Medical Conditions Produce False Readings?
Yes, many medical conditions such as gastrointestinal reflux disease, metabolic conditions caused by people following ketogenic diets, medications from dental issues, diabetes, asthma inhalers, and more can produce false readings.
7. Can “Residual Mouth Alcohol” Trick a Breathalyzer?
Yes. Residual mouth alcohol is a prevalent cause of false positive results. It can stay in a person’s mouth for roughly 15-20 minutes before dissipating. If the person exhales soon after drinking, a breathalyzer can pick up some of this leftover mouth alcohol. This means that the sample relied upon can contain an amount of alcohol attributable to mouth alcohol and cause a test result higher than a person’s actual BAC.
8. What Other Factors Can Contribute to Falsely High Readings?
In addition to medical conditions and mouth alcohol, a person’s environment can lead to false readings. For example, a person who is regularly around acetone, such as someone who works in a paint store or construction, may have acetone in their system. Acetone can inflate readings.
If equipment has been used repeatedly and without proper cleaning, alcohol contamination from a prior tester may contribute to a falsely high reading.
Talk To A DUI Defense Attorney
You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Sources:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=13353&lawCode=VEH
What Can Affect California DUI Blood Test Results?
What Can Affect California DUI Blood Test Results?
The legal limit for DUI in California is a blood alcohol concentration (“BAC”) of .08% or higher. At this BAC level, you are automatically presumed to be impaired by the alcohol in your system. However, you do not have to have a BAC above the legal limit to be charged with driving under the influence.
DUI Blood Testing: How to Challenge the Results in Your DUI Case
California uses a variety of tests to determine the BAC in a driver’s system. Breath and blood tests are the most common chemical tests for DUI. However, numerous conditions and factors could affect California DUI blood test results. If the police charge you with driving under the influence, contact a Southern California DUI lawyer for a free consultation to discuss potential DUI defenses and ways that you can challenge the results of a chemical blood test for BAC levels.
How Does a DUI Blood Test Work?
A qualified technician must perform blood tests in a DUI case. After a DUI arrest, the officer informs you that you must take a chemical test as required by California’s implied consent law (California Vehicle Code §23612). The officer explains that you must provide either a breath sample or a blood sample for chemical testing. Urine tests are only used when breath and blood samples cannot be obtained.
A technician uses an alcohol swab to clean your arm before drawing the blood. Then, the blood is sent to a lab for testing. There are precise rules which must be followed in the DUI Blood Test process.
Are DUI Blood Tests Reliable?
When a blood sample is taken, preserved, and tested correctly, it can be one of the most reliable ways to determine the amount of alcohol in your blood. The test detects the actual chemical content of the blood. Breathalyzers use a formula to estimate the BAC level based on the amount of alcohol on a person’s breath.
What Can Affect a Blood Alcohol Test and Cause a False BAC (Blood Alcohol Concentration) Result?
Blood tests can result in inaccurate results. Many factors could impact the results of a blood alcohol test. Some factors that could result in an inaccurate BAC result from a blood test include:
- The blood sample fermented before performing the BAC test;
- The blood draw was performed too long after the DUI arrest resulting in rising alcohol levels;
- The use of alcohol swabs to clean the areas before drawing blood;
- Certain health conditions of the person being tested;
- Failure to use a vial with the correct amounts of anti-coagulant and preservative;
- Using expired preservatives and/or anti-coagulants; and
- The blood sample was improperly collected and/or stored.
Because factors can result in inaccurate DUI blood test results, it is always in your best interest to discuss your DUI case with a Los Angeles DUI attorney before pleading guilty or accepting a DUI plea bargain.
Frequently Asked Questions About DUI Blood Tests in California
Because law enforcement officers almost always ask the driver for a blood sample, drivers often have questions about a blood draw after a DUI arrest. Below are answers to some of the most common FAQs about California DUI blood tests.
Can I Have a Lawyer Challenge My DUI Blood Test?
Yes, a Southern California DUI attorney can challenge the results of chemical testing for BAC levels. Whether you have grounds to contest the results depends on the facts of your case. Contact an expert DUI lawyer for a free consultation. A judge may exclude test results that could be inaccurate. The state would then need to prove you were intoxicated while driving a motor vehicle.
Can I Have a Different Laboratory Test the Blood Sample?
Title 17 of the California Code of Regulations provides the procedures for drawing, testing, and storing blood samples for DUI cases to comply with California Vehicle Code §23158.
In 17 CCR §1219.1, the regulations require that technicians collect a sufficient blood sample to provide for multiple tests. Individuals have up to one year after collecting their blood to request a sample for independent testing.
If you hire a defense attorney, they should request a portion of your blood to have it retested at an independent laboratory. If the prosecution refuses the request, the attorney files a “blood split motion” with the court asking for an order compelling the prosecutor to provide a sample of the blood for independent testing.
What if the Technician Used an Alcohol Swab Before the Blood Test? Can Alcohol Swab Affect Blood Alcohol Test?
Using an alcohol swab to clean the areas before drawing blood can impact the results of the test. Technicians violate Title 17 regulations if they use alcohol or a similar product to clean the area before a blood draw. Instead, technicians must use a non-alcoholic disinfectant to prep the skin for drawing blood.
How Long Does Blood Work Take to Come Back for Alcohol?
Several factors impact the timeline for blood work to come back from a lab. The lab’s backlog of tests is often the deciding factor in how long it takes to get results. It typically takes four to eight weeks to receive the results of a BAC test. However, it could take much longer if there are problems with the sample or the lab has a backlog of samples to test. The same is true with private laboratories that a California DUI defense lawyer might use to perform independent testing of DUI blood samples.
The results of breath tests are instant. However, officers do not preserve a sample of your breath. Therefore, there is no way to perform an independent test on the breath sample you provided after your DUI arrest.
Is Refusing a Blood Test a Good Idea or a Bad Idea? What Happens if I Refuse Chemical Testing?
It depends on the situation. Most people do not refuse a chemical test because there are penalties for refusing testing after a lawful DUI arrest. However, many drivers choose a breath test because it is less invasive than a blood test. Unfortunately, a breath test has a higher chance of being inaccurate than blood testing.
Why Is Attacking the Blood Test Results Such a Big Deal?
California Vehicle Code §23152 makes it illegal to drive with a blood alcohol content above the legal limit of .08%. It also makes it unlawful to operate a motor vehicle under the influence of alcohol or drugs. It is much easier for the state to prove you are guilty of drunk driving when it has test results showing your BAC exceeded the limits set by law.
Without the results of a blood test, the prosecutor must prove that you were “impaired” by alcohol or drugs in your system. Being impaired means you cannot operate the vehicle with the same level of care as a reasonably cautious sober person. Because impairment is a subjective conclusion, obtaining a DUI conviction without proof that the person’s BAC was above the legal limit can be more challenging.
Can I Still Fight the Blood Test if I Was Drinking or Using Drugs?
It is common for California DUI lawyers to challenge blood tests even if their client was drinking or using drugs. Again, for DUI charges, the state must prove your guilt beyond a reasonable doubt. Officers must follow regulations and statutes for chemical testing after a DUI arrest. Any slight error or deviation could be grounds for calling into question the results of a BAC test. The case might come down to expert witnesses testifying during a trial with differing opinions about whether the test results were accurate or inaccurate. Jurors would have to decide what to accept as fact.
When Is a DUI Blood Test Required in California Law?
Drivers are required to provide samples for testing after they are lawfully arrested for driving under the influence or DUI per se. Generally, the driver must choose between providing a blood or breath sample. However, there are exceptions to the rule.
For example, an officer can require a blood test if there is reasonable suspicion that the driver is under the influence of drugs. Also, the officer may require a blood sample when the driver is unconscious or deceased. Drivers taken to medical facilities that do not have breath testing equipment might be required to provide a blood sample.
Is It Better to Take a DUI Blood Test or Breath Test?
Breath tests are less invasive and faster, so many drivers choose a breathalyzer test. They blow into the mouthpiece to provide the breath sample. However, not everyone can provide a deep lung air sample required for a breathalyzer test’s accuracy. They might be unconscious or have a health condition that prevents them from breathing deeply.
Other drivers prefer a DUI blood test because they know that it measures the alcohol in their system instead of estimating BAC levels. Partition ratios are crucial components of the breathalyzer test, and the ratios are set by law. However, a driver may have a different partition ratio, which could impact the test results. Furthermore, breath samples cannot be preserved for retesting like blood samples.
What are the Title 17 Regulations?
Title 17 regulations refer to Title 17 of the California Code of Regulations. It provides detailed rules and procedures for collecting, testing, and storing chemical test samples. Violations of any of the provisions by officers, technicians, or labs could result in inaccurate test results. It could also give the court grounds to make the DUI test results inadmissible in court.
Are Blood Test Results Presumed to Be Valid?
There is a presumption that the results of a blood-alcohol test are accurate. In other words, the defendant has the burden of proving that the results are inaccurate. Title 17 procedures are often used to challenge the results of a test. However, a judge could find that the defendant’s constitutional rights were not violated. If so, the judge may allow the test results to be used as evidence during the trial even though there were violations of Title 17 regulations.
Forced Blood Draws – Can the Police Force a Person to Take a Blood Test?
There are very few cases where a person’s blood can be taken without a warrant. In the case of Birchfield v. North Dakota, the United States Supreme Court ruled that a warrantless breath test did not violate a person’s Fourth Amendment rights. However, warrantless blood tests do.
The case only applies when a state makes it a crime to refuse a blood test after a DUI arrest. California does not criminalize refusing a chemical test. Instead, the California Department of Motor Vehicles (“DMV”) administratively suspends a person’s driver’s license. The person only faces an enhanced penalty for test refusal if convicted of drunk driving.
A judge may issue a warrant for a blood sample resulting in a forced blood draw. A person can be physically forced to provide a blood sample if the police have a warrant.
Should I Hire a Lawyer to Dispute My Blood Test Results?
If the police arrest you for driving under the influence, it is always in your best interest to call a Southern California DUI attorney for a free consultation. There could be one or more valid grounds for challenging the blood test results that could result in a dismissal or acquittal. You won’t know until you talk with an experienced defense lawyer.
Talk To A DUI Defense Attorney
You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Sources:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=23612
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=23158.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23152.&lawCode=VEH
https://www.oyez.org/cases/2015/14-1468