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Can You Get a DUI From Mouthwash or Breath Spray in California?

You might not realize it, but if you drive after using mouthwash or a breath freshening spray, you could actually face DUI charges in California. Some of these substances contain alcohol, which will trigger a false positive result on a breath test device, also called a breathalyzer.

Raising the defense of mouthwash or breath spray in a DUI case is a daunting matter, best attempted by an experienced California DUI attorney. This defense, also called mouth alcohol defense, can be successful in the right circumstances.

Can You Get a DUI From Mouthwash or Breath Spray?

Sometimes, people can cause higher results of a breathalyzer blood alcohol concentration (“BAC”) reading through their use of a breath spray or mouthwash immediately before taking the breathalyzer test. This situation could arise in the following hypothetical situation: Let’s say a person was pulled over by the police, but they had had a drink at dinner and worried their breath may have smelled like alcohol. In their preoccupation of this thought, the person then used a breath spray or mouthwash to try to mask the smell of alcohol on their breath.

However, it’s important to note that the police are aware that people may try to cover up the scent of alcoholic beverages by using mouthwash or breath fresheners, so the person’s actions in our above hypothetical may have only increased their suspicion of the presence of alcohol.

When alcohol is swished around in the mouth, a breathalyzer will detect the presence of alcohol. However, it will not be able to distinguish whether that alcohol is scotch or Listerine. In fact, people who struggle with alcohol addiction often refrain from using breath freshening sprays or mouthwash because the amount of alcohol in these products could cause a recovering alcoholic to “fall off the wagon.”

In addition to mouthwash and breath sprays, over the counter remedies such as cough syrups, NyQuil, or other cold medications also contain enough alcohol to generate a false positive reading by a breathalyzer. Some naturopathic or homeopathic compounds have an alcohol base that can trip up a chemical breath test device. Even cooking extracts like vanilla or almond extract have an alcohol base.

How a Breath Test Works

Duke University describes how a DUI breath test device like a breathalyzer works. There are many different types of breath analyzers on the market today, which all function in generally the same way as the original breathalyzer.

The chemical testing device is about the size and shape of a cell phone, with two chambers inside the testing device. These chambers contain a reddish-orange liquid, called potassium dichromate. The person suspected of being intoxicated exhales into one of the test chambers through a mouthpiece. Any alcohol in the breath sample will react to the potassium dichromate solution and turn green. The level of alcohol in the breath sample will directly affect the degree of color change. The more ethanol vapor present in the breath sample from the suspect, the more that green color will appear on the photocell. 

The second chamber in the device contains the potassium dichromate solution separated from the breath sample. The chemical solution in the second chamber should not react. The difference in the degree of colors in the two chambers creates an electrical current that the device then converts into a quantitative value that represents the blood alcohol concentration of the breath sample.

Can Mouthwash Cause Breathalyzer Test Failure?

Yes; mouthwash can cause a breathalyzer test failure. As mentioned above, you can actually blow a higher BAC number if you recently used mouthwash than if you had not swished this product around in your mouth. Whether you were stone cold sober and simply used mouthwash as part of your oral hygiene routine or you tried to cover up the smell of alcohol on your breath when you saw the flashing police car lights behind you after you had a few drinks, you could fail a breathalyzer test because of mouthwash. 

Many types of mouthwash contain alcohol, which can leave a highly concentrated alcohol vapor in your mouth. This “mouth alcohol” will get detected by a chemical breath test device, meaning you could appear to have been drinking even when you were not. Also, a BAC that is below the legal limit could get boosted to a high enough number to get you arrested and charged with a DUI because of the additional alcohol present in your mouth from mouthwash.

How Does Mouthwash Affect Breathalyzer Results?

Breath test chemical analyzers do not know the difference between alcohol from mouthwash and alcohol from beer, wine, or spirits. Even though your breath sample is supposed to be “deep lung air,” the sample has to pass through your mouth to get into the chemical analysis device. Some of this specimen will be alcohol vapor from inside your mouth, rather than deep in your lungs, which can impact the results of the test.

What Is Mouth Alcohol and How Does It Affect My DUI Case?

Mouth alcohol is the presence of alcohol vapor created by swishing alcohol containing substances around in your mouth. Although this article focuses largely on breath fresheners such as mouthwash, mouthwash is not the only product that can cause mouth alcohol. Swallowing liquid cold or flu medicines that contain alcohol can also create mouth alcohol.

Alcolock, a manufacturer of ignition interlocking devices (“IIDs”) says that the alcohol content of some mouthwashes is surprisingly high. For example:

  • The original formula Listerine has an alcohol content of 26.9%;
  • The mint flavors of Listerine have nearly 22% alcohol;
  • The alcohol content of Scope is 18.9%; and
  • Cepacol contains 14% alcohol.

In comparison, wine contains 12% alcohol and beer contains 3 to 7% alcohol. According to Alcolock, mouthwash can cause a person to fail an interlock test.

They warn that, in addition to mouthwash, breath sprays, cold and allergy medications, and cough syrup, your breath could contain mouth alcohol from vinegar, some energy drinks, and “non-alcoholic” beer. Please note that non-alcoholic beers are not necessarily alcohol-free. Rather, their alcohol content is below the level to qualify as an alcoholic beverage. 

How Long Does Mouth Alcohol Last?

Because the body can usually metabolize the equivalent of one alcoholic beverage an hour as a general rule, people often think that alcohol is not detectable after that time. On the contrary, alcohol detection testing devices can discover the presence of alcohol in your system for 6 to 72 hours, depending on the type of testing performed. 

For example, according to American Addiction Centers, alcohol can remain in a person’s system:

  • Up to six hours in the blood;
  • For 12 to 24 hours in the breath or saliva;
  • For 12 to 24 hours in the urine when older detection methods get used and 72 hours or longer with the most current testing methodology; and
  • As long as 90 days in the hair.

Some sources suggest that mouth alcohol dissipates quickly and that you can swish water around in your mouth and ask the officer to wait for 15 or 20 minutes and then perform a retest. However, the likelihood of receiving a significantly different result on the second test will depend on many factors, like the quality of chemical breath testing device and whether you have had any alcohol to drink in the past 24 hours. 

How Does Individual Health History Affect Mouth Alcohol?

A person with certain gastrointestinal diseases like acid reflux disease, a hiatal hernia, or GERD might fail a breathalyzer test because of mouth alcohol. These medical conditions can cause alcohol vapors to travel back up the esophagus and into the mouth, where they can get detected by a breathalyzer.

Additionally, a person who wears dentures or an orthodontic retainer could have residual mouth alcohol which was trapped by their dental appliance. When they blow hard into the chemical breath testing device, the trapped mouth alcohol could get released into their breath sample and cause a false positive.

What Happens if I Fail a Police Breathalyzer Because of Mouthwash?

If you failed a police breathalyzer and you think it was because of mouthwash, you should seek the help of an experienced drunk driving attorney immediately. Your defense attorney can offer guidance on how to prove that the mouthwash caused the false positive result.

Can Mouth Alcohol Be Used as a DUI Defense?

Yes, the presence of mouth alcohol can be used as a DUI defense if it caused you to have an inaccurate or misleading BAC reading on a breathalyzer.

Frequently Asked Questions About Mouth Alcohol and Mouthwash

People who have been charged with a DUI based on a breathalyzer test which they believe produced inaccurate results due to mouth alcohol from liquids such as mouthwash have many questions. Some of the more common things they want to know are: 

Can Mouthwash Get You a DUI?

Yes, mouthwash can get you convicted of the offense of driving while under the influence of alcohol. If you do not successfully challenge the breathalyzer results, you can face a conviction for a crime you did not commit.

Can Mouthwash Cause You to Fail a Breathalyzer?

Yes, mouthwash that contains alcohol can make you fail a breathalyzer test. Breath testing devices do not distinguish between the alcohol in mouthwash and “drinking” alcohol.

Can Mouthwash Make You Test Positive for Alcohol?

Yes, mouthwash can make you test positive for alcohol on a breathalyzer test if the type of mouthwash you used contains alcohol.

How Much Do Mouthwashes Affect Breathalyzers?

Mouthwashes can greatly affect breathalyzers. If you recently used a mouthwash with alcohol as one of its ingredients, a breathalyzer could have a false positive rating.

Does Mouthwash Affect Ignition Interlock Devices (“IIDs”)?

Absolutely. Mouthwash can cause you to accidentally fail an ignition interlock device test if the mouthwash contains alcohol. Makers of IIDs urge people who use interlock devices to refrain from using mouthwash or other everyday products that contain alcohol for as long as they have their ignition interlock device installed. There are alcohol-free brands of mouthwash that can provide the sensation of fresh breath without causing a false positive on an IID. 

Responding the Right Way to an Unfair Breathalyzer Result

Your defense attorney can handle the response to an unfair breathalyzer result in your DUI case. The precise steps they will take to fight the criminal charges will depend on the particular facts of your situation.

We offer a free consultation to talk to you about whether false readings on a breath machine from mouthwash, cough drops, dental work, or some other cause could be used as a mouth alcohol defense. If you’d like to learn more about applying this defense to your case, you can speak a DUI Defense attorney today by reaching out to us here.

 

Sources:

 

https://sites.duke.edu/apep/module-4-alcohol-and-the-breathalyzer-test/content-how-does-the-breathalyzer-work/

https://alcolockusa.com/faq/can-mouthwash-cause-a-failed-interlock/

https://americanaddictioncenters.org/alcoholism-treatment/how-long-in-system

 

What Happens to Your Vehicle After a DUI Arrest in CA?

Driving under the influence in California has immediate and long-term consequences. After a DUI arrest, the police officer seizes your driver’s license. In addition, depending on the circumstances of your arrest, the police officer may impound your vehicle after a DUI arrest. 

After your car is impounded, understanding your legal rights can help you get your car back quickly. However, be prepared to pay an impound fee and possibly install an ignition interlock device (IID) if you want to continue driving on a restricted driver’s license.

When Do Police Officers Impound Vehicles After a DUI Arrest?

If a police officer arrests you for drunk driving, the question arises of what to do with your vehicle. Leaving a vehicle on the side of the road is rarely an option. California Vehicle Code §22651 gives police officers authority to remove vehicles if they take you into custody. 

Generally, police officers are required to have vehicles towed to the police impound lot when:

  • Your vehicle is evidence or part of a crime scene (i.e., a DUI accident involving injuries or fatalities)
  • The vehicle’s condition does not permit someone to drive it safely 
  • There are no nearby locations to park and leave your car legally and safely
  • You have prior DUI convictions on your driving record during the past ten years

However, a police officer may not automatically impound your car if you have a prior DUI. The officer might not take the time to review your driving history during a DUI traffic stop. Instead, the officer might focus solely on the current drunk driving offense. 

If the law does not require a police officer to impound your vehicle, your attitude during the DUI stop can significantly impact the officer’s decisions regarding vehicle impoundment. 

The police officer may allow a sober passenger to drive the vehicle. Officers might pull your vehicle to a safe location at a DUI checkpoint. However, someone must pick up your vehicle before the end of the DUI checkpoint. Generally, only the registered owner can pick up a car at a DUI checkpoint. However, the officer might allow you to designate someone to pick up your vehicle if you are the registered owner.

An officer could offer to drive your vehicle a short distance to a parking lot or other safe location. However, if you are belligerent, disrespectful, and uncooperative, the officer is unlikely to “see” a safe parking location nearby the traffic stop.

Can the Court Impound My Car After a DUI Arrest in California?

Yes, the court may impound your vehicle as part of the DUI penalties. For a first-time DUI conviction, the judge may order your car to remain in the impound lot for up to 30 days or not at all. A second DUI results in impoundment for up to 30 days. After three or more DUIs, the court can impound your vehicle for 90 days.

Having your vehicle impounded after a DUI in California is expensive. Whenever possible, try to avoid impoundment by politely asking the police officer if there is a way to have your vehicle parked or someone pick it up to avoid the impound lot. 

Another way to avoid a long impound period is to agree to install an ignition interlock device (IID). It may be expensive, but you might be able to continue driving if you qualify for a restricted driver’s license with IID installation. 

While asset forfeiture is not common, it can happen as part of a DUI case. When your vehicle is used to commit a crime, the law states that you can lose ownership of your car (asset forfeiture). In a DUI case, forfeiting your car generally only occurs if:

  • The court declares your vehicle a nuisance because you have numerous DUI convictions within seven years
  • You were involved in a DUI accident that resulted in a traffic fatality
  • Your drunk driving arrest involved illegal drugs, especially if the police officer seizure illegal drugs from your car when they searched it

Seeking legal advice from an experienced California DUI defense lawyer as soon as possible after an arrest is in your best interest. A DUI attorney reviews your case and advises you of your legal options for fighting DUI charges and vehicle impoundments or forfeitures. 

What Should I Do if My Car is Impounded After a DUI in California?

Acting fast can save you money after the police impound your car. You pay a fee for each day your car remains in the impound lot. The longer you wait to reclaim your vehicle from an impound lot, the higher the fees are to reclaim your vehicle.

To get your car back after a DUI impoundment, you need:

  • Proof of vehicle registration showing you are the registered owner
  • Proof of required liability insurance 
  • Your temporary driver’s license or Notice of Suspension
  • Payment for all fees and costs charged for the impound, including fees for towing, daily storage, indoor storage, lien, and after-hours charges

You cannot retrieve your car until the police or the court release the vehicle from impound. The state only releases impounded vehicles to their registered owner. Therefore, if someone else was driving your vehicle, you do not need to wait to retrieve your car. However, you are responsible for paying the impound fees.

Some drivers may not be able to pay the fees to get their vehicles out of impound. Long impound periods could result in fees totaling more than a vehicle is worth. If you do not pick up your car from impound, your car may be sold at auction to pay the impound fees. Check with a California DUI attorney to determine the deadline for picking up your vehicle from impound after a DUI arrest.

What Happens to You After a DUI Arrest in California?

The police officers transport you to jail after a DUI arrest. California Vehicle Code §23152 makes it unlawful to:

  • Drive a passenger vehicle with a BAC level of .08% or higher
  • Operate a commercial motor vehicle or a vehicle with a passenger for hire in the car with a BAC of .04% or higher
  • Operate a motor vehicle while under the influence of alcohol
  • Drive a motor vehicle under the influence of any drug
  • Operate a motor vehicle under the influence of a combination of any drug and alcohol 

A police officer initiates a traffic stop if the officer has probable cause to believe a crime is being or has been committed. For example, the officer may pull you over if he witnesses driving behavior that indicates you might be impaired by alcohol and/or drugs. However, the officer may also pull you over for a traffic infraction.

If the police officer suspects you are impaired during the traffic stop, he may request that you take a pre-assessment screen test, such as a roadside breathalyzer or cheek swab. You can refuse field sobriety tests and roadside preliminary alcohol screening (PAS) tests without penalty. 

However, California’s implied consent law requires you to take a chemical test to determine your blood alcohol content (BAC) level after an arrest for drunk driving. Refusal to submit to chemical testing after a DUI arrest can result in additional jail time and a longer duration for DUI school. 

Refusing a chemical BAC test after a DUI arrest results in an automatic license suspension. You cannot receive a restricted driver’s license at any time during the license suspension period for refusing a chemical test.

What Are the Penalties for a Drunk Driving Conviction in California?

The sentence for a DUI conviction depends on your prior DUI history and whether there are aggravating factors involved in your drunk driving case. 

DUIs are priorable criminal offenses in California. Therefore, the severity of the penalties for each subsequent DUI conviction within ten years increases. A felony DUI conviction can be counted against you regardless of when you were convicted. 

Aggravating factors can also increase the severity of DUI punishments. Aggravating factors that enhance a DUI sentence include, but might not be limited to:

  • Having a high BAC level (generally .15% or higher) at the time of your arrest
  • Being under 21 years old at the time of a DUI arrest
  • Having a minor under 14 years of age in the car while driving under the influence
  • Excessive speed (i.e., driving 20 miles per hour or more over the posted speed limit)
  • Causing injuries or death while driving under the influence 
  • Refusal to submit to a chemical test
  • Driving under the influence while on DUI probation

Assuming that this is your first DUI conviction and there were no aggravating factors to enhance the DUI sentence, the judge could punish you with:

  • Six-month loss of driving privileges
  • Fines and assessments of up to $2,000
  • Up to six months in county jail
  • Attending DUI school for three to nine months
  • Summary (informal) probation for three to five years

The court may also require you to install an ignition interlock device (IID) for up to six months. 

You can fight DUI charges with the help of a California DUI lawyer. Violations of your civil rights, lack of probable cause, challenges to BAC tests, and violations of Title 17 are just a few DUI defenses that could beat DUI charges.

The first step is to seek legal advice from a trusted, experienced DUI defense attorney in California. 

California DUI and Speeding Enhanced Penalties

California has some of the strictest DUI laws in the country. The penalties for DUI convictions increase with each subsequent drunk driving conviction within ten years. A felony DUI conviction remains a priorable criminal offense, regardless of when the conviction occurred. Unfortunately, you could face additional penalties for driving under the influence in some cases. 

California DUI laws include provisions for sentencing enhancements. You could face enhanced penalties if you are convicted of driving under the influence with aggravating circumstances. An experienced California DUI attorney can review your drunk driving charges to determine what DUI defenses could result in a dismissal or reduction in charges and penalties.

What Are Sentence Enhancements for a California DUI Conviction?

A sentence enhancement is an additional penalty imposed by statute for DUI offenses involving aggravating factors. The specific enhancements that could be added to your DUI sentence depend on the aggravating factor involved in your DUI case. Potential sentence enhancements for DUI cases include, but might not be limited to:

  • Longer periods of driver’s license suspension or revocation 
  • Extended jail time or prison sentences
  • Longer periods of summary probation (informal DUI probation)
  • Increases assessments, fines, and fees
  • Mandatory installation of ignition interlock devices (IIDs)
  • Additional community service
  • Longer terms for DUI school and/or alcohol and drug treatment programs
  • Additional terms added for probation 
  • Mandatory restitution payments to DUI accident victims
  • Vehicle impoundment for longer periods

Many factors could trigger enhanced sentencing for DUI charges. The factors generally increase the risk of injury to others or the threat to the general public. Therefore, in addition to being charged with DUI, you could be charged with additional crimes and traffic offenses that result in separate penalties for a conviction. 

California DUI laws include several factors that can enhance DUI punishments. Examples of aggravating factors that can lead to harsher DUI sentences include:

  • Prior DUI convictions on your criminal record
  • DUI cases involving excessive speeds
  • Driving recklessly while under the influence of alcohol and/or drugs
  • Causing injury or death to individuals while driving under the influence of drugs and/or alcohol
  • Refusal to submit to chemical tests or breath tests after a DUI arrest
  • Having a high blood alcohol content (BAC) level 
  • Underage drinking and driving
  • DUI with a minor in the vehicle under 14 years of age

This article specifically deals with the California code section that enhances DUI penalties for excessive speed and reckless driving. More than one aggravating factor can be present in a DUI case. Therefore, the defendant could face multiple enhancements for different aggravating factors. 

California Sentencing Enhancement Code for DUI With Excessive Speeds and Reckless Driving

California Vehicle Code §23582 adds enhanced penalties for speeding and reckless driving while under the influence of alcohol and/or drugs. According to the code section, an enhancement of at least 60 days in jail is added to the sentence for a DUI conviction when:

  • A driver is convicted of drunk driving under California Vehicle Code §23152 or §23153; AND,
  • While driving at a speed exceeding the maximum, prima facie, or posted speed limit by 30 miles per hour on a freeway or 20 miles per hour on any other street; AND,
  • The driver was driving in a reckless manner.

If the driver is convicted under Vehicle Code §23582, the driver must also attend an alcohol and/or drug education program (DUI school) as part of the enhanced sentencing requirements. 

It is essential to understand that the 60 days in jail is in addition to any other sentence imposed by the court for a DUI conviction. So, for example, if the judge suspends the execution of the sentence or grants DUI probation, you must still serve the 60 days in jail according to the enhanced sentence.

The enhanced penalties are mandatory. Judges may only waive these penalties when justice would be served by waiving the enhanced penalties for aggravating factors.

Fighting Speed Enhanced Penalties for a DUI in California 

The state must prove each of the three legal elements for enhanced penalties to apply. Therefore, if the state proves you were driving under the influence, but fails to prove you were speeding by more than 20 to 30 miles per hour (depending on the location), enhanced penalties will not apply. Likewise, if the prosecutor proves drunk driving and speeding, but fails to prove reckless driving, the court does not impose enhanced penalties.

The burden of proving each legal requirement rests with the state. The prosecutor must prove that you are guilty of each legal element required to justify speed enhanced penalties beyond a reasonable doubt. A skilled California DUI defense lawyer understands how to raise reasonable doubt by challenging the statements by police officers and the results of BAC tests.

Furthermore, speeding does not automatically qualify as reckless driving. Therefore, the attorney may argue there is a lack of evidence proving the person was driving recklessly. Without specific and strong evidence of recklessness, the state’s argument for enhanced penalties might fail.

Negotiating a DUI Charge Down to Reckless Driving or Exhibition of Speed

Determining whether to accept a DUI plea deal depends on the facts of the case. In challenging cases, a California DUI attorney may negotiate for reduced charges. Reduced charges may avoid the enhanced penalties required under California Vehicle Code §23582. Other potential benefits of a plea deal for reduced charges include:

  • The reduced charge may not be a priorable offense on your criminal record
  • Reduced or no jail time
  • Decrease in fines and assessments
  • Less of an impact on professional licenses, student loans, scholarships, job applications, etc.
  • Elimination of mandatory ignition interlock devices (IIDs)
  • Reduced or no DUI school or DUI probation 
  • No mandatory driver’s license suspension

The reduction in fines and penalties depends on what charge the prosecutor agrees to allow you to plead guilty to instead of drunk driving charges. Reduced charges that might be available for a DUI plea agreement include:

Wet Reckless (Vehicle Code §23103.5)

Wet reckless is a common reduced sentence used for DUI plea agreements. The “wet” reference in the charge refers to a reckless driving charge involving alcohol. The law requires the court record to reflect that alcohol was involved. Therefore, wet reckless might avoid high fines, mandatory jail time, and other penalties for a DUI conviction, but it counts as a priorable offense for future DUI cases.

Dry Reckless (Vehicle Code §23103)

As a defendant, dry reckless is a better charge for a DUI plea deal because it does not count as a priorable offense for future DUI convictions. A dry reckless may not be viewed as harsh by insurance providers and other parties reviewing your criminal record. 

Exhibition of Speed (Vehicle Code §23109c)

This traffic offense is used when drivers engage in a speed contest. Unfortunately, prosecutors seldom agree to reduce DUI charges to exhibition of speed charges. It is a misdemeanor offense with no note regarding alcohol. The penalties for this offense are much less harsh than the penalties for reckless driving charges.

Non-Criminal Traffic Offenses

There would need to be several potential DUI defenses and serious problems with the state’s case for a prosecutor to plead a DUI down to a traffic offense. However, an experienced California DUI defense attorney considers all possibilities. For example, if there are issues regarding probable cause, lack of evidence, or police misconduct, your DUI lawyer may propose a pleading down to a traffic offense.

Your attorney might propose pleading down to a charge of consuming alcohol in a motor vehicle or another traffic offense. Because the charges are non-criminal, you only face fines, points against your driver’s license, and traffic school for a guilty plea.

Should I Accept a DUI Plea Agreement or Proceed to Trial?

The decision to plead guilty or take your chances in court depends on many factors. The prosecutor and police officers do not give you honest, reliable advice about your legal options. Instead, you should review your options for fighting DUI charges with an experienced California drunk driving defense lawyer.

Several factors that your lawyer considers when advising you about a DUI plea agreement include, but are not limited to:

  • The strength of the evidence proving your BAC level was over the legal limit of .08% (.04% for commercial drivers and for-hire drivers and .01% for underage drivers)
  • Your criminal history and prior DUI convictions
  • The evidence the prosecution has to prove each of the required legal elements beyond a reasonable doubt
  • Whether there are aggravating factors that could lead to a much harsher sentence if you take the case to trial and lose
  • The potential DUI defenses for your case and the strength of those arguments
  • Evidence indicating you were impaired while operating a motor vehicle

Only you can decide whether you are comfortable fighting DUI charges in court or accepting a plea agreement. However, remember that prosecutors are experienced, trained trial lawyers. They will take advantage of your lack of knowledge regarding the law. 

Before accepting a DUI plea agreement, talk to a California DUI lawyer. Verify that the plea agreement terms are in your best interest before pleading guilty to DUI charges.

How Does Double Jeopardy Work in California DUI Cases?

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects us from being prosecuted twice for the same crime. However, all sanctions do not qualify under the Double Jeopardy rule. The protections in the U.S. Constitution apply both in federal court and state courts.

Therefore, you can be “punished” by the California Department of Motor Vehicles (DMV) for driving under the influence and face criminal penalties for a DUI conviction.

Raising Double Jeopardy as a Defense to the DMV Hearing and a DUI Criminal Case

When the DMV suspends your driving privileges for driving under the influence, it is an administrative corrective action. The courts do not consider the DMV suspension a punishment or penalty for criminal charges. Instead, the threat of losing your driving privileges for a DUI arrest is a deterrent to drunk driving.

Double jeopardy does not apply because the DMV action is not a punishment or penalty. Therefore, the prosecution may continue with a criminal case based on the same DUI arrest.

A police officer seizes your driver’s license when he arrests you on drunk driving charges in California. As a result, you receive a Notice of Suspension from the police officer. The Notice of Suspension allows you to continue to drive for 30 days. It also notifies you that you have ten days to request a DMV administrative hearing, or the DMV will suspend your driver’s license. 

A DMV hearing officer conducts the administrative hearing. After considering the evidence, the DMV officer may set aside the suspension and reinstate your driving privileges. If the DMV officer allows the suspension to stand, you must wait until the end of the suspension period to reinstate your driver’s license. 

An administrative per se hearing to suspend driving privileges is separate from any criminal charges filed by the state. The DMV may act before the prosecutor files criminal charges in some cases. The reason is that a DMV suspension is based on a DUI arrest, not a DUI conviction. Therefore, merely being arrested for drunk driving can result in losing your driver’s license.

How Long Does a DMV Suspension Period Last After a DUI Arrest in California?

The DMV suspension period depends upon whether you took a chemical test and your prior DUI history. For a first offense DUI with a BAC of .08% or higher, the suspension period is four months. If you have a prior DUI conviction on your record, the DMV suspends your driving privileges for one year. In addition, drivers under the age of 21 years with a BAC of .01% or higher lose their driving privileges for one year.

Refusal of a chemical test results in an automatic one-year suspension for a first-time DUI offense and a two-year suspension for a second DUI offense. After three DUI arrests within ten years, the DMV suspends your driver’s license for three years.

What Happens When I Am Charged With Multiple DUI Offenses for a Single DUI Stop?

The primary statute for drunk driving is California Traffic Code §23152. Under this statute, you can be charged with a criminal offense if:

  • You operate a motor vehicle with a BAC of .08% or higher
  • You drive a motor vehicle under the influence of any alcoholic beverage
  • You operate a commercial motor vehicle with a BAC of .04% or higher
  • Your BAC level is .04% or higher while driving a motor vehicle when a passenger for hire is in the vehicle
  • Your drive a motor vehicle under the influence of any drug or a combination of any alcoholic beverage and drug

It is common for a prosecutor to charge a drunk driver under more than one section of the California drunk driving statute. 

Double jeopardy does not prevent the state from prosecuting you for multiple DUI offenses for the same arrest. It also does not prevent you from being found guilty of multiple DUI offenses. However, you cannot face multiple sentences for DUI convictions related to the same DUI stop.

DUI Convictions and California Penal Code Section 654 PC

A prosecutor may charge you with multiple DUI offenses because they believe at least one charge will result in a drunk driving conviction. However, California Penal Code §654 PC prohibits double punishment for the same crime.

However, the prosecution may charge you with multiple DUI offenses in a single case. All offenses may be tried together before a judge or jury. The legal term for this process is joinder. 

The code section applies when a person commits one act that leads to multiple criminal charges. While the state can accuse you of multiple criminal offenses, you can only be punished for one. 

Generally, the court imposes punishment under the offense with the longest potential imprisonment term. However, the court cannot punish you for both DUI offenses. Furthermore, the code section provides that the court cannot grant probation if any of the criminal offenses prohibit granting probation.

What is the Typical Sentence for a DUI Conviction in California?

Drunk driving convictions are priorable offenses in California. The penalties for subsequent DUI convictions within ten years increase with each conviction. A felony DUI conviction counts against you for the rest of your life.

Assuming that you have no prior DUI convictions or aggravating circumstances, the typical sentence for a first-time DUI conviction in California includes:

  • Assessments and a fine of $1,500 to $2,000, depending on the county of arrest
  • Up to six months in county jail
  • Informal (summary) probation from three to five years
  • Attendance at DUI school for three to nine months
  • Driver’s license suspension for six months
  • Installation of an ignition interlock device (IID) for up to six months

The court may sentence you to probation instead of jail time if you have a clean driving history and no factors exist that could enhance the DUI penalties. You will be required to follow all conditions of probation. Violating DUI probation can result in the court revoking probation and reinstating the original DUI sentence. The court may also punish you for the probation violation. 

If you refuse a chemical test and are convicted of DUI, you could face mandatory jail time. Likewise, if your DUI involves injury to another person, the penalties for a conviction increase. 

A DUI conviction in California results in a criminal record. You might qualify to have the DUI expunged, but that does not remove the DUI arrest from your driving record. It only removes the guilty verdict and dismisses the DUI case. The drunk driving charge would still count as a priorable offense for future DUI convictions.

If the police arrest you for driving under the influence, your best step is to contact a California DUI defense lawyer as soon as possible. A California DUI attorney can help you prepare to fight DUI charges and assist you with negotiations for favorable terms for a DUI plea agreement. 

How Does Double Jeopardy Apply in Criminal Cases in California?

The Double Jeopardy Clause in the Fifth Amendment protects us from:

  • Being prosecuted for the same criminal offense after receiving an acquittal for that offense;
  • Receiving multiple punishments for the same criminal offense; and,
  • Being convicted more than once for the same offense.

California Penal Code §687 adopts the protections of double jeopardy. The code section states that you cannot be prosecuted a second time for a public offense once you have been prosecuted and either convicted or acquitted. Repeatedly prosecuting a person for the same criminal offenses would subject that person to undue expense and time. It could also lead to a wrongful conviction.

Double jeopardy attaches to the criminal offense at specific points during criminal proceedings. Examples of when double jeopardy attaches may include:

  • After the trial begins (i.e., the jury members are sworn in or the first witness is sworn in during a trial by judge)
  • A mistrial or discharge of the jury without the defendant’s consent after a trial begins
  • After the person is acquitted of criminal charges
  • After pleading guilty based on a plea agreement
  • Upon conviction for a criminal offense

The double jeopardy defense may apply in other situations. However, it is not available in all dismissals, but it could apply if the court discharges the defendant to become a witness for the prosecution in another criminal case. It could also apply in some cases where the prosecutor fails to bring a misdemeanor charge to trial in a timely manner.

Double jeopardy may also be a legal defense if the defendant appeals a conviction, the conviction is reversed, and the appeals court remands the case for a new trial. The prosecution cannot charge the defendant with a more serious offense at the new trial. 

Double jeopardy does not prevent the prosecution from proceeding with criminal charges after a civil proceeding on the same facts. It only protects you from being criminally prosecuted for the same criminal offense more than one time. Double jeopardy does not apply to pre-trial proceedings or DMV license suspensions in DUI cases.

The above discussion is not a comprehensive discussion of the double jeopardy defense. Double jeopardy is a complicated legal question that an experienced California criminal defense attorney should address. If you believe the state is prosecuting you for the same DUI offense in violation of your civil rights or state laws, contact a California DUI lawyer immediately to discuss your legal options.

What Happens if a Commercial Driver Refuses to Take a Chemical DUI Test?

Commercial drivers have a lower “legal limit” for driving under the influence offenses. California Vehicle Code §23152(d) makes it unlawful to drive a commercial vehicle with a BAC (blood alcohol content) of .04% or higher. That is one-half the legal limit of the blood alcohol level for other motorists. 

However, the lower legal limit only applies if the driver operates a commercial vehicle. For example, a person with a CDL (commercial driver’s license) has a legal limit of .08% when operating a non-commercial vehicle.

Truck drivers need to understand the BAC limit of .04% is a strict limit. The police can charge you with DUI even though the alcohol in your system does not impair your driving abilities. Merely having a BAC of .04% or higher while driving a commercial truck creates the presumption your driving abilities are impaired.

The penalties for a conviction of driving under the influence of alcohol or drugs for a commercial driver can be severe. However, there are DUI defenses to a chemical DUI test. You should contact a California DUI lawyer as soon as possible to discuss your legal options for fighting commercial DUI charges.

Why is the BAC Limit Lower for Commercial Truck Drivers in California?

One reason for a lower BAC limit for truck drivers is the danger posed by DUI accidents. Large truck accidents cause catastrophic injuries and traffic fatalities. Over one-third of the deaths and injuries from truck accidents are people not in the truck. Passenger vehicles cannot withstand the impact with a semi-truck.

What Happens if a Commercial Driver Refuses a Chemical Test After a DUI Arrest in California?

California’s implied consent law requires states that anyone who drives a motor vehicle in California gives their consent to a chemical blood test or breath test to determine the alcohol content in their blood. The implied consent law applies after the police lawfully arrest a person on a DUI charge. 

A police officer may request that you take pre-assessment tests during a DUI stop. However, you are not required to submit to field sobriety tests, breath tests, or cheek swabs before a DUI arrest.

However, refusal to submit to a chemical test after being arrested for drunk driving results in automatic suspension of your commercial driver’s license. Furthermore, refusal to submit to a chemical test results in additional jail time for a commercial DUI conviction.

The loss of driving privileges for refusing a chemical DUI test for truck drivers depends on the number of prior DUI convictions within ten years. The penalties are:

  • No DUI convictions within ten years – one-year license suspension, 48 hours added to your jail sentence, and six extra months of DUI school
  • One DUI conviction within ten years – two-year license suspension and 96 hours added to your jail sentence
  • Two DUI convictions within ten years – three-year license suspension and ten days added to your jail sentence
  • Three or more DUI convictions within ten years – three-year license suspension and 18 days added to your jail sentence

Unfortunately, a commercial truck driver cannot obtain a restricted license to drive a commercial vehicle during the period of their driver’s license suspension. 

However, they may want to talk to a Southern California DUI defense attorney about the possibility of obtaining a restricted driver’s license for non-commercial vehicles. California DUI defense lawyers can also represent commercial truck drivers at DMV hearings to fight the automatic suspension of a CDL after a chemical test.

A CDL driver may be able to downgrade their driver’s license to a Class C or Class M driver’s license to operate non-commercial cars and motorcycles. If so, the person might be able to qualify for a restricted driver’s license.

While truck drivers might lose their jobs because they cannot operate commercial motor vehicles, they could drive to and from another job other than driving a truck with a restricted license. Restricted driver’s licenses also allow the person to take a dependent child to and from school if no public bus service or school bus is available. They can also take themselves and family members for medical care.

Penalties for Commercial DUI Convictions in California

The DUI laws governing commercial DUI cases are strict. Whether your DUI arrest was in Long Beach, San Francisco, or elsewhere in California, you need experienced legal advice immediately after a commercial drunk driving arrest. Your job depends on the outcome of the DUI case.

The penalties for driving a commercial vehicle under the influence of drugs or alcohol depend on your prior DUI record and whether injuries or deaths occurred because of a DUI accident.

Commercial DUI First Offense Misdemeanor 

The penalties for a first-time commercial DUI with no third party injuries are:

  • Fines and penalty assessments between $1,500 and $2,000
  • Up to six months in county jail
  • Informal or summary probation for three to five years
  • Court-approved DUI school for three months to nine months 
  • Driver’s license suspension for at least one year

As discussed above, if a commercial driver refuses a chemical DUI test, additional jail time is added to the sentence in addition to a mandatory one-year suspended driver’s license for refusal to take the blood or breath test after a DUI arrest.

Loss of CDL Driving Privileges for a DUI Conviction in a Non-Commercial Vehicle

It is also important to note that under California Vehicle Code §15300, a commercial truck driver convicted of a DUI offense in a non-commercial vehicle cannot operate a commercial motor vehicle for one year for a first-time DUI offense. Therefore, your CDL could be suspended even if you are convicted of drunk driving in your personal vehicle. 

Lifetime Revocation of CDL Privileges for a Second DUI Conviction 

You lose your commercial driver’s license for life for a second DUI offense. It does not matter whether you are driving a non-commercial or commercial vehicle. If the police arrest you for a second DUI offense, contact a California DUI lawyer immediately to discuss fighting the DUI charges. 

Penalties for DUI Accidents Resulting in an Injury

If a CDL driver causes a drunk driving accident that injures a third party, the driver faces a misdemeanor or felony DUI charges. DUI resulting in injury is a wobbler offense. The prosecutor decides whether to charge the driver with a felony or misdemeanor based on the facts of the case.

A misdemeanor commercial DUI conviction with injuries can result in:

  • Fines up to $5,000
  • Five days to one year in county jail
  • Summary (informal) probation for three to five years
  • Suspended driver’s license for one or three years
  • Payment of restitution to the accident victim
  • Up to 30 months of court-approved alcohol/drug education program

Felony commercial DUI convictions increase the severity of the penalties. In addition, you can be punished by serving time in state prison. You could lose your driver’s license for five years and be designated as a Habitual Traffic Offender. 

The exact punishment depends on prior DUI convictions, the number of people injured, and the severity of the injuries. If a third party sustains great bodily injury, it counts as a strike under California’s Three Strikes law.

Fighting Commercial DUI Charges in California 

Drivers holding a CDL have a lot at stake when they face charges of driving under the influence of drugs or alcohol. First, do not talk to the police officers or the prosecutor without an attorney present. Contact an experienced California DUI defense attorney as soon as possible. The sooner you have a lawyer handling your DUI case, the better chance you have of beating DUI charges.

A DUI arrest is not a conviction. However, you need an aggressive defense strategy. Relying on “innocent until proven guilty” is not advisable. 

Your DUI lawyer thoroughly investigates the circumstances of your DUI stop and DUI arrest. If police officers lack probable cause for a DUI stop or arrest, your attorney files a motion to suppress evidence. If the judge finds the police violated your rights, the evidence collected by the police could be thrown out. Without the evidence, the prosecution may be unable to prove the DUI charges against you.

Other potential defenses to DUI charges for a commercial driver include:

  • Police officers violated Title 17 procedures while conducting a chemical test
  • The driver has a rising blood alcohol level at the time of the blood or breath test
  • The officers failed to explain to the driver the consequences of refusing a chemical DUI test 
  • The police arrested the truck driver after an illegal DUI checkpoint
  • The driver had a medical condition that produced incorrect BAC levels and/or caused the driver to “fail” the field sobriety tests

Depending on the facts of your case, there could be other DUI defenses available. If you cannot avoid a DUI conviction, hire a California DUI defense attorney to negotiate a plea bargain. An attorney may be able to secure better terms for the plea agreement. 

Instead of pleading guilty to DUI charges, your attorney may negotiate a wet reckless or dry reckless plea agreement. Avoiding a DUI conviction is the goal for a driver with a commercial driver’s license.