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Driving Under the Influence of Marijuana
If a police officer believes you are driving under the influence of marijuana, you could be arrested for DUI. The police officer might believe that you were also smoking marijuana. However, the police officer would need probable cause for a DUI arrest.
In the alternative, if the police officer does not believe you are impaired by marijuana, he could still charge you with having an open container of marijuana in your vehicle.
Driving While Possessing an Open Container of Marijuana
California Vehicle Code §23222 prohibits someone from driving with an open container of marijuana in the vehicle. It also applies to marijuana that is not in a container. Therefore, the best place for you to transport marijuana is in the truck of your vehicle.
A violation of CVC §23222 is a traffic infraction. You can be fined $100 for driving while possessing an open container of marijuana.
Are There Defenses to Having Marijuana in Your Vehicle?
Yes, there are several defenses a California DUI lawyer could argue. Potential defenses to the charge include:
- You are a qualified patient or have an identification card that allows you to possess marijuana legally
- You were driving on a private road instead of a highway or public road
- The open container or loose cannabis flower is in the truck of the vehicle
- The police officer lacked probable cause for a traffic stop
Having an open container of marijuana in your vehicle can lead to DUID investigation.
Driving Under the Influence of Marijuana in California
DUI of marijuana is a serious criminal charge in California. It carries the same penalties as an alcohol DUI. A conviction results in a criminal record.
However, there is no “legal limit” for marijuana DUI in California. Some states have per se limits for DUID of marijuana. However, California does not set a legal limit for DUI of marijuana because there is no consensus for the amount of marijuana necessary to impair driving.
Instead, the Vehicle Code states it is unlawful for someone to drive a vehicle “under the influence” of any drug. Under the influence refers to an impairment that prevents a person from performing an activity safely. Generally, driving under the influence is defined as being unable to operate a motor vehicle with the same level of care as a reasonably sober driver.
How Do You Prove Someone is Under the Influence of Marijuana?
Under California’s implied consent laws, drivers must submit to chemical tests after a DUI arrest. Refusal of a chemical test results in an automatic one-year driver’s license suspension. A chemical test refusal results in a two-year revocation of driving privileges if you have a prior DUI conviction within ten years.
Police officers may ask you to take a preliminary screening test during a DUI stop. They may ask you to take a breathalyzer test or a saliva swab test. Until the police officer places you under arrest for DUI, you can refuse a preliminary screening test without penalty. That includes the standardized field sobriety tests (FSTs).
Therefore, the police officer must rely on observations of your behavior and driving to determine if you are under the influence of marijuana, alcohol, or another drug. The police officer might testify that your driving was erratic. For example, you were weaving between lanes, failing to use turn signals, driving too slowly, stopping for green lights, or making sudden stops.
The police officer might also report signs of drug use such as:
- Red eyes
- Dry mouth (“cotton mouth”)
- Problems with balance and coordination
- Slow reaction time
- Increased heart rate
- Paranoia, panic, and hallucinations
- Rapid breathing
Poor performance on field sobriety tests is often cited as probable cause for a DUID arrest. Also, the officer might claim to smell marijuana on your body or in the vehicle as other evidence of probable cause.
California also has Drug Recognition Experts (DREs) trained to spot signs of drug use. Police officers with DRE training receive instruction in various subjects, including signs and symptomatology of drugs and courtroom testimony.
It is important to note that having marijuana in your system is not conclusive evidence of impairment. Therefore, a California DUI defense attorney can challenge the charges by arguing there is not sufficient evidence to prove the marijuana in your system impaired your driving ability.
Driving Under the Influence of Medical Marijuana
You might be able to get out of a traffic infraction for an open container of marijuana if you are a qualified patient. However, you can be charged with driving under the influence even though you have a valid prescription for medical marijuana.
The law makes it illegal to drive under the influence of any drug. Therefore, you could be charged with DUID for driving under the influence of over-the-counter medication if that medication impairs your driving ability. Arguing that you have medical marijuana in your system will not avoid a DUID of marijuana conviction if the prosecution proves the medical marijuana impaired your ability to drive.
What Are the Penalties for Driving Under the Influence of Marijuana in California?
Most DUI marijuana charges are misdemeanors. They carry the same penalties as an alcohol DUI. Therefore, a first-time DUI marijuana conviction may result in:
- Between 96 hours and six months in county jail
- Losing your driver’s license for six months
- A fine between $390 and $1,000
- Participation in a drug education or DUI class for three months
- Summary (informal) probation from three to five years
Marijuana DUI convictions are priorable offenses. Subsequent DUID convictions result in harsher penalties, including mandatory minimum jail sentences.
DUI of marijuana is a wobbler offense. The prosecutor may charge you with a felony. Situations that could result in felony DUI marijuana charges include:
- Having a prior felony DUI conviction on your criminal record
- Causing serious bodily injury or death while driving under the influence of marijuana
- This DUI charge is your fourth DUI, wet reckless, or DUID conviction within ten years
The penalties for a felony DUI marijuana conviction increase substantially. Potential punishments for a felony marijuana DUI conviction include:
- A fine of up to $5,000
- 180 days in county jail
- Probation for up to five years
- Loss of driving privileges for four years
- An 18-month drug education class
- Payment of restitution to accident victims
If you refused a chemical test after your DUI arrest, you have two days added to your jail sentence if the court finds you guilty of DUI marijuana. Also, your driver’s license is suspended for one year, and you must attend nine months of DUI school instead of three months.
Can You Expunge a DUI of Marijuana Conviction in California?
Yes, DUID convictions under California Vehicle Code §23152(f) are eligible for expungement in most cases. Expunging your DUI marijuana convictions means you can say that you have never been convicted of that offense. While the DUI arrest may remain on your criminal record, the court removes the conviction and dismisses the case.
To be eligible for a DUID expungement, you would need to meet the following criteria:
- A state court heard your case and decided your sentence
- You did not serve any time in state prison
- You completed probation, or it has been at least one year since your DUID conviction
- You did not violate the terms of probation
- All terms of probation are complete, including paying fines, attending treatment programs, community service, etc.
- You are not currently on probation, serving time, or charged with another crime
Felony DUI marijuana convictions might qualify for expungement if you did not serve time in state prison. However, you can avoid the need to expunge a marijuana DUI conviction by fighting the DUID charges with the help of a California DUI defense lawyer.
Potential Defenses to DUI of Marijuana Charges
Your attorney analyzes your case to determine the best DUI defense strategy for your situation. Potential DUI marijuana defenses include:
You Were Not Impaired
Having marijuana in your system does not mean your driving abilities were impaired. There must be sufficient evidence showing that having marijuana in your system impaired your driving.
Because marijuana can remain in your system for hours, days, or weeks, your attorney may argue that other factors were responsible for the “signs of impairment” noted by the police officers.
Lack of Probable Cause
The police officer must have probate cause for the DUI stop and DUID arrest. If not, your attorney can file a motion to suppress the evidence from the traffic stop. Without evidence, the prosecution cannot prove you were driving under the influence of marijuana.
Flawed or Inaccurate Chemical Tests
The chemical tests performed by law enforcement could be flawed or inaccurate because they used contaminated samples or fermented blood. In addition, the police officers or the lab may have mishandled the samples or failed to keep the chain of evidence.
There could be other defenses to driving under the influence of marijuana. Seeking legal counsel is in your best interest. Accepting a plea deal without a California DUI defense attorney could mean you are punished unnecessarily.
I Confessed to a DUI But Want to Retract Confession. I Plead But Want to Withdraw Plea. Can I?
It depends if you want to withdraw a guilty plea or retract statements made to police officers during a DUI traffic stop or after a DUI arrest. The answer is “it depends.” There are situations in which a defendant can recant or withdraw a statement or guilty verdict. The first step is to contact a California DUI defense lawyer to discuss your legal options and rights regarding a drunk driving charge.
Making Statements to Police Before and After a DUI Arrest
The statements you make to police officers can be used against you. You might not be able to retract a confession or statement after it is made. For this reason, it is best not to talk to police officers without an attorney present.
During a DUI stop, you must provide your name and current address. You need to give the police officer your driver’s license, vehicle registration, and proof of automobile insurance. However, you are not required to:
- Take a breathalyzer test or saliva swab if you have not been arrested
- Consent to take field sobriety tests (FSTs)
- Answer questions about where you were before the DUI stop
- Admit or deny that you have had alcohol or drugs
- Tell the police officer where you are headed
- Answer any other questions
You can respectfully tell the police officer you do not consent to any preliminary assessment tests for DUI and that you are invoking your right to remain silent.
After a DUI arrest, refusing a chemical test results in penalties under California’s implied consent law. The California Department of Motor Vehicles suspends your driver’s license for one year. You also face enhanced penalties if the court convicts you for the DUI charges.
However, you still are not required to make statements or answer questions after a DUI arrest. As a result, you may remain silent even though police officers continue to ask questions.
It is in your best interest not to make statements or talk to the police until you speak with a California DUI attorney. Retracting statements made to the police may only be possible through a motion to suppress evidence.
Filing a Motion to Suppress Evidence to Retract a DUI Confession
Confessions you make before you are arrested or after the police officers read you the Miranda rights can be used against you in court. However, if the police violated your constitutional rights, the confession could be inadmissible.
Your attorney can review your case to determine whether to file a motion to suppress evidence. If the police did not have probable cause for an arrest, a motion to suppress evidence could result in all evidence collected, including confessions and statements, being thrown out. Without evidence, the prosecution may have no choice but to drop the DUI charges.
Can I Withdraw a Guilty Plea for a DUI Charge in California?
Yes, you can withdraw a guilty plea or plea of no contest in a DUI case in some cases. California Penal Code §1018 gives a judge the authority to grant a motion to withdraw a plea for “good cause.” The code applies in misdemeanor DUI cases and felony DUI cases.
The motion to withdraw a guilty plea must be filed with the court before the person is sentenced or within six months of a probation sentence. If the judge finds that good cause exists to withdraw the plea, he grants the motion. After that, the defendant may enter a plea of not guilty to the charges of driving under the influence.
What is Good Cause for Withdrawing a Guilty Plea for DUI?
Regretting the fact that you plead guilty to drunk driving is not sufficient cause for a judge to allow you to withdraw your guilty plea. You need to show that your guilty plea was the result of:
- A mistake
- Inattention or oversight
Also, the judge may consider other factors that demonstrate overreaching as reasonable cause to withdraw a guilty plea. Examples of reasons why a judge might allow a defendant to withdraw a DUI guilty plea include:
Not Represented by an Attorney
In addition to claiming you plead guilty while representing yourself, you must show that you were not informed you had the right to have legal counsel. The judge must have failed to explain your right to an attorney in his instructions for you to win on this cause.
Your Attorney Was Incompetent
Ineffective legal counsel can be a ground for withdrawing a guilty plea. For example, suppose your attorney did not investigate your case, file appropriate motions, or otherwise provide a vigorous and effective defense. In that case, the judge may allow you to withdraw your guilty plea.
Proving your attorney was not a competent lawyer can be difficult. The legal representation must have fallen short of the accepted standard. Suppose you can prove that your attorney did not provide reasonable representation, which led you to accept an unfavorable plea deal. In that case, you might win your motion to withdraw a guilty plea.
Coerced Guilty Pleas
When you plead guilty to DUI, your plea must be voluntary and given without threat or coercion. The threat or coercion to plead guilty can come from any source, including police officers, co-defendants, prosecutors, and others.
You Did Not Understand the Consequences of Your Actions
If you can prove to the judge that you did not understand a significant consequence of pleading guilty, the judge might allow you to withdraw your guilty plea. For example, you were not aware that the state would revoke your professional license for a DUI conviction, or you did not know that you faced a mandatory prison sentence if you plead guilty.
Seek Legal Counsel Before Pleading Guilty to DUI Charges
Before pleading guilty to DUI charges, talk to a California DUI attorney. There could be one or more DUI defenses that might help you beat the drunk driving charges. If not, a skilled DUI defense lawyer works to obtain the best terms for a DUI plea agreement.
Potential DUI defenses include, but are not limited to:
Lack of Probable Cause
Police officers must have probable cause to make a traffic stop. For example, they witnessed a traffic infraction, such as speeding or running a red light. The police officer might claim that your driving was erratic, which indicated you might be intoxicated.
An exception would be a DUI checkpoint. California law permits law enforcement agencies to conduct DUI checkpoints as part of their DUI enforcement efforts. However, strict rules govern how DUI checkpoints are set up and operated. Failing to follow those rules could result in an illegal stop.
If a police officer did not have probable cause for the traffic stop or DUI arrest, your attorney files a motion to suppress evidence. The evidence collected from an illegal stop or arrest can be inadmissible.
You Were Not Under the Influence
California Vehicle Code §23152 states that it is unlawful to:
- Operate a vehicle under the influence of alcohol
- Drive a vehicle with a BAC of .08 percent or higher
- Operate a vehicle under the influence of any drug
If your BAC was not above the legal limit or you did not take a chemical test, the state must prove you were “under the influence” of alcohol or drugs. That means the prosecutor must prove your ability to drive was impaired. Your attorney attacks the statements by police officers to raise a reasonable doubt of your impairment.
Breathalyzer Results Are Inaccurate
A breathalyzer may give a false high for several reasons. Medical conditions could result in a false BAC level, including acid reflux, diabetes, GERD, and hiatal hernia. If the machine is not calibrated correctly or maintained correctly, the results could be inaccurate.
Your attorney carefully analyzes the process used to take your breath test. Inconsistencies or deviations from procedure could result in the results being thrown out or a jury doubting their validity.
Problems With Chemical Tests
Title 17 of the California Code of Regulations sets the rules for collecting, storing, and analyzing urine and blood samples for DUI chemical tests. Violations of these rules could result in the chemical test results being thrown out.
Mistakes and errors made by the police or the lab could result in inaccurate results, such as contaminating the sample or using fermented blood for a test. Medical conditions and rising blood levels could also result in higher BAC levels that do not reflect the person’s actual impairment at the time of the DUI arrest.
Inaccurate Field Sobriety Tests
Field sobriety tests can be flawed for many reasons. First, the person may have a medical condition that prevents them from performing the tasks. Second, the police officers might provide incorrect or confusing instructions. Third, environmental conditions might affect the person’s performance, such as uneven surfaces or bright headlights.
You Are a Bad Driver
Other factors could lead to a DUI stop because of erratic driving. For example, drowsiness or distracted driving could appear similar to drunk driving. The driver panics when the police officer pulls them over. Therefore, they are nervous, which causes them to fumble and stutter. The officer may believe the person is drunk when they have had nothing to drink.
There are many more DUI defenses your attorney may investigate, depending on the facts of your case. The first step in fighting drunk driving charges is to talk with an experienced California DUI lawyer.
Can a Decision by the Judge on a Motion to Suppress Be Challenged?
Yes, the judge’s decision regarding a motion to suppress can be challenged. The prosecution can challenge a ruling that favors the defendant immediately. In other words, if the judge rules specific evidence is inadmissible and the case may be dismissed because the evidence cannot be used at trial, the prosecution can file an immediate appeal.
However, if a defendant loses a motion to suppress evidence, the defendant generally has to wait until after the trial and verdict. If the defendant is found guilty, the defendant may appeal. A matter for appeal would be whether the court erred in denying the motion to suppress and allow the evidence to be used at trial.
When Are Motions to Suppress Filed in Criminal Cases?
A motion to suppress evidence is a pretrial motion in criminal cases. The defendant files the motions before the trial begins to ask the judge to prohibit evidence obtained through an illegal search or seizure from being used at trial. The court may hear a motion to suppress evidence at a preliminary hearing or pretrial hearing.
Suppression Motions Filed Under California Penal Code §1538.5
California Penal Code §1538.5 states that a defendant may file a motion to suppress evidence on the following grounds:
- A warrantless search or seizure was unreasonable; OR,
- The police officers had a search warrant, but the warrant:
- Was insufficient
- The police seized property or evidence not described in the warrant
- Lack of probable cause for issuing the warrant
- Law enforcement performed the search in a way that violated the United States Constitution or the California Constitution
- Other violations of state or federal constitutional standards
At the suppression hearing, the prosecution and defense lawyer argue matters of law and how they apply to the motion to suppress evidence. The court may hear witness testimony and oral arguments or written memorandums from the parties. The parties may cross-examine each witness.
Typically, judges may take up to 30 days after a hearing to consider motions to suppress evidence in DUI cases. The judge may require the defense attorney and prosecution to file memorandums of law. It could take longer than 30 days to receive a decision. The attorneys must have time to conduct further legal research into relevant case law and statutes before preparing their memorandums.
The court may find any evidence illegally obtained inadmissible. There is no evidence that is exempt from a motion to suppress evidence.
How Can a Motion to Suppress Evidence Help in My California DUI Case?
The motion to suppress can result in crucial evidence being inadmissible. Without that evidence, the prosecution may not be able to prove you were driving under the influence of alcohol or drugs.
For example, after filing a motion, the court finds that the police officers obtained a warrant for a blood draw without probable cause. Therefore, the chemical test results are inadmissible.
Without the blood test results, the prosecution cannot prove per se DUI charges. In other words, the prosecutor has no way of proving your blood alcohol content (BAC) exceeds the legal limit. The legal limit for BAC in California is:
- .08% or higher for drivers 21 years of age or older
- .01% or higher for drivers under 21 years of age
- .01% or higher for anyone driver on DUI probation
- .04% or higher for a driver operating a motor vehicle that requires a commercial driver’s license (CDL)
- .04% or higher if a passenger for hire is in the vehicle at the time of the DUI offense
Therefore, the prosecutor must prove that you were operating a motor vehicle under the influence of alcohol or drugs under California Vehicle Code §23152(b). It could be much harder to prove impaired driving without chemical tests or other evidence suppressed by the judge.
Another way a motion to suppress evidence can help in your drunk driving case is during plea agreement negotiations. A prosecutor who cannot present all evidence during a trial might be more willing to negotiate favorable terms for a plea bargain.
The best result of a motion to suppress evidence in a DUI case is the dismissal of the drunk driving charges. A California DUI defense lawyer carefully analyzes all evidence and the circumstances of your DUI arrest. Then, if law enforcement officers violated your rights, the criminal defense attorney files the motion to suppress the evidence as soon as possible.
What Types of Evidence Can a Judge Suppress in a DUI Case?
Evidence that could be suppressed in a drunk driving case includes, but is not limited to:
- The results of field sobriety tests (FSTs)
- Breath results from a roadside breathalyzer
- Observations by police officers during a DUI stop
- Eyewitness testimony from other individuals
- Video from dash cams, traffic cameras, and other sources
- Statements made by you during the traffic stop or DUI arrest
- Physical evidence obtained during a search of your vehicle or person
- Results of chemical tests for BAC levels or drugs, including breath, blood, and urine tests
- Evidence gathered a DUI checkpoint
When the judge rules evidence inadmissible, the jurors never know about the evidence. So, for example, if the judge throws out the BAC results from a urine test, the jurors never know that you had a BAC of .10% when officers arrested you for driving under the influence.
Who Has the Burden of Proving Evidence is Admissible at Trial?
Even though the defendant files a motion to suppress evidence, the prosecution must prove that a warrantless search and seizure was reasonable. However, if the police officers obtained a warrant, the defendant has the burden of proving the warrant was not legal.
Do not assume that the police officers did their job correctly and the evidence gathered is admissible in court. Police officers routinely make mistakes and violate civil rights. A person may be unaware that the police did anything wrong.
Therefore, talk to an experienced California DUI defense attorney as soon as possible. A lawyer reviews your case to determine DUI defenses. A potential defense to drunk driving is illegally gathered evidence. However, other DUI defenses could help you beat driving under the influence charges in California.
Common DUI Defenses Used in California Drunk Driving Cases
There are many defense strategies a California DUI lawyer can use to challenge drunk driving charges. However, four of the most common defenses used in DUI cases include:
Lack of Probable Cause
The police officers must have a reasonable basis for a traffic stop. For example, the driver violated a traffic law, or the officer witnessed driving behavior associated with impaired driving. The police officer must also have probable cause for the DUI arrest.
A lack of probable cause could result in evidence being inadmissible in court. The police officer must justify the search and seizure without a warrant for evidence to be used against the driver.
Inaccuracy of Field Sobriety Tests
Police officers observe a person’s performance on field sobriety tests for signs of impairment. However, FSTs can be unreliable. Many factors could result in inaccurate findings.
For example, a driver’s health conditions could make it difficult to perform the tests. Bright lights from oncoming traffic and uneven surfaces can result in inaccurate results. If a police officer provides confusing or incorrect instructions to perform the test, the driver might make mistakes that make them appear intoxicated.
Lack of Evidence of Impairment
The prosecution has the burden of proving your alcohol or drugs impaired your driving ability at the time of your DUI arrest. Without a chemical test results of a BAC level at .08 or above, the prosecution might base their case on the police officer’s observations.
Your California DUI attorney challenges the officer’s observations. For example, the attorney might request copies of the officer’s employment record and review other DUI cases to gather information to use in court when cross-examining the officer.
Challenges to BAC Tests
BAC tests include pre-arrest tests and post-DUI arrest tests. You can refuse to take a roadside breath test or saliva test without penalty. However, after an arrest for drunk driving, you are presumed to have consented to a chemical test for BAC under California’s implied consent laws. Refusing a chemical test after a DUI arrest results in automatic driver’s license suspension.
Your CA DUI attorney may challenge the accuracy of chemical tests on several grounds including:
- You have a medical condition that affects the results of a chemical test
- The lab used fermented blood or contaminated samples
- The lab or law enforcement officers improperly collected or stored blood or urine samples
- A breathalyzer machine malfunctioned, was not calibrated correctly, or was not maintained
- A police officer administered a breath test incorrectly
- Mouth alcohol caused a high false BAC level because of dental work, GERD, heartburn, acid reflux, or burping
- Ketosis because of diabetes of low-carb diets caused a falsely high BAC level
Do not give up before you start fighting. Make the prosecution prove its case by fighting DUI charges with the help of a California DUI defense lawyer. A DUI conviction results in a criminal record, which could have long-term consequences in several areas of your life. Do not plead guilty to DUI charges without seeking legal advice.
Can my Teen’s DUI case be Sealed in California?
A criminal history can have long-term adverse consequences for your teenager. A criminal record could prevent your child from receiving scholarships and grants for college. Juvenile criminal records could impact your child’s career choice and have serious financial impacts on their future.
For that reason, it is essential to work with an experienced California DUI attorney to minimize the impact of DUI arrests. In addition, a lawyer can help you with DUI expungement and requests to seal juvenile DUI records in California.
What Does It Mean to Seal Juvenile Records in California?
Many people believe their criminal records from juvenile court automatically disappear when they turn 18 years old. However, that is not the case. Assembly Bill 666 results in some juvenile records being sealed automatically. However, many violations might not be automatically sealed by the court.
Never assume that the court sealed your juvenile record for a DUI case. Instead, always check with the court or a California DUI defense lawyer about records sealed after the court resolves the case.
Your juvenile record contains all information regarding every juvenile court appearance and criminal activity you were involved in as a minor. It includes:
- Arrest reports
- Police investigations
- Orders and judge’s findings
- Probation reports
- Other information submitted to the court regarding the charges against you or the matter that brought you before the juvenile court
When the court seals a juvenile record, the file ceases to exist in the public records. Therefore, your child can answer no to questions such as were you ever arrested, do you have a sealed record, or do you have a criminal record.
What Types of Juvenile Cases Are Sealed in California?
Under the Welfare and Institutions Code §781 WIC, your juvenile record may be eligible for sealing if you meet all the following criteria:
- You are now at least 18 years old OR the juvenile court’s jurisdiction ended over five years ago
- You have not been convicted of misdemeanors or crimes as an adult that involves moral turpitude, including certain sex crimes, drug offenses, and theft crimes
- The court finds you are rehabilitated
- You have no pending civil lawsuits arising from the charges against you as a juvenile
Specific crimes listed in WIC §707(b) are automatically ineligible for sealing by the courts. The court does not seal the juvenile record if you commit any of these crimes after turning 14 years of age. Examples of those crimes include, but are not limited to:
- Murder and attempted murder
- Assault with a firearm or utilizing force that would produce great bodily harm
- Discharge of a firearm into an occupied or inhabited building
- Violent felonies described in penal Code §667.5(c)
- Torture as described in Penal Code §§206 and 206.1
- Voluntary manslaughter
There is another way to seal some juvenile criminal records. Penal Code Section 851.7 states that if you were a minor and arrested for a misdemeanor, the court might seal your records if:
- The court released you because the state had insufficient evidence to hold you for the charges
- The court acquitted you of the charges
- The court dismissed the charges or discharged the charges without a conviction
Under this section of the penal code, you may petition the court to seal your juvenile record at any time, even before you turn 18 years of age.
Will a California Court Seal My Teen’s Juvenile DUI Case?
Most drunk driving convictions by minors are eligible to be sealed. However, a minor may be charged with one or more crimes for driving under the influence of alcohol or drugs. Most of those crimes fall under the California Vehicle Code.
Generally, the juvenile probation department in the county of arrest contacts the minor and the parents within a few days or weeks after the DUI arrest. They request a meeting to discuss the charges and other factors related to underage drinking. You have the right to have a California DUI defense lawyer with you and your child during this interview, all future meetings, and all court appearances.
If the court finds your teenager guilty of drunk driving, the court may sentence your child to time in juvenile detention, community service, substance abuse counseling, and formal or summary probation. The probation may include numerous terms and conditions your child must obey.
Juvenile DUI cases may be sealed when the teenager turns 18 years of age.
What Is the Process for Sealing a Juvenile DUI Case in California?
Generally, it takes eight to ten months to seal a juvenile record in California by using the provisions in the Welfare and Institutions Code §781. You begin by filing a petition with the juvenile court in the county you were arrested for underage drinking and driving.
Your criminal defense lawyer can handle this for you and may appear in court on your behalf in some cases. You may also file the petition yourself, but you are responsible for ensuring the petition and all required documents and evidence are presented correctly to seal your juvenile records.
The juvenile court schedules a hearing date to hear your petition. During the hearing, the judge reviews your petition and the evidence you present. He also reviews other records related to your juvenile DUI arrest, including your probation record and information provided by the District Attorney, Probation Officer, and other parties.
Based on the facts of your case, the judge may deny or grant your petition to seal your juvenile DUI case. If the judge seals your DUI case, the court issues an order and sends the order to all agencies with possession or access to your records. The agencies must seal the records.
Agencies destroy sealed records unless the court determines your records must be retained and sealed. However, this situation does not occur often.
What Happens to a Teen’s Driving Record when a Court Seals a Juvenile DUI Case?
Sealed juvenile records are very rarely reopened. However, the California Department of Motor Vehicles maintains a record of underage drinking and driving charges and DUI offenses involving minors under the California Vehicle Code.
By law, the DMV may allow automobile insurance adjusters to view juvenile DUI cases that appear on a person’s driving record. The insurance company uses the information to determine driving risk and insurance eligibility. However, the insurance company must keep the records confidential and only use the records to determine insurance eligibility and rates.
However, the sealed DUI cases would not be available to the general public.
What Are the Penalties for Underage DUI in California?
The two primary laws used to charge minors with drinking and driving are:
- California’s Zero Tolerance Law (Vehicle Code §23136)
- Underage Driving with a BAC of .05% or higher (Vehicle Code §23140)
Teenage drivers violate these laws if they have any alcohol in their system while driving. The alcohol does not need to impair their driving ability. Instead, they violate the law by merely operating a motor vehicle with alcohol in their system.
Underage DUIs are punished as follows:
- Zero Tolerance violation – one year suspended driver’s license
- Underage drinking and driving – one year suspended driver’s license, alcohol education program, and a $100 fine
Neither of these crimes results in criminal penalties. However, a minor could be charged with a violation of the “adult” DUI laws, including:
- Driving under the influence under Vehicle Code §23152
- Having a BAC above the legal limit of .08%
- Driving under the influence of drugs
- Causing an accident while intoxicated
Unlike the DUI charges for minors, a conviction of an “adult” drunk driving offense results in criminal penalties. Your teenager could be sentenced to:
- Three to five years of summary probation
- Up to six months in county jail
- Mandatory alcohol education program
- A fine of up to $1,000
- Driver’s license suspension
If your teenager causes a DUI accident, the penalties may increase substantially. A misdemeanor charge could result in up to one year in jail, along with DUI school, fines, and probation. A felony charge increases the incarceration time to two to four years in prison. In addition, fines for DUI accidents can be as high as $5,000.
If a minor refuses to take a breath test, either before or after an arrest, it results in an automatic one-year suspended driver’s license. In addition, the DMV may revoke driving privileges for two or more years if the teen driver has one or more prior convictions for refusing a chemical test, DUI, or wet reckless.
Are There Legal Defenses to Underage DUI in California?
Because having any alcohol in their system violates the underage drinking and driving laws, it can be challenging to fight underage DUI laws. However, you should speak with a California DUI defense attorney before your teenager pleads guilty. There could be one or more DUI defenses that might result in the charges being dismissed.
If your teenager faces “adult” DUI charges, contact a California DUI lawyer as soon as possible. The consequences of a DUI conviction for a teenager are serious.
A DUI attorney evaluates the case to develop a defense strategy that gives your teenager the best chance of beating the DUI charges. Several DUI defenses could be available for your teenager to use, including violations of their civil rights, lack of probable cause, and errors with chemical tests.
Protect your teenager’s legal rights and future by seeking advice from an experienced California DUI criminal defense lawyer.
Can I Have my Probation Terminated Early After a California DUI?
Yes, California laws give judges the authority to “revoke, modify, or change” an order for probation at any time. In some cases, a judge might also reduce a felony charge to a misdemeanor and expunge the charges from a person’s criminal record.
You must petition the court requesting early termination of probation after a DUI conviction. It is not automatic. In most cases, you want an experienced California DUI defense attorney to file a motion with the court on your behalf to have your probation terminated early.
California criminal defense lawyers understand the requirements for early termination of probation. An attorney also understands how to create a compelling argument that you deserve early termination of probation after a drunk driving conviction.
Petitioning the court is just the first step in the process. Next, you must convince the judge that your good conduct justifies an order termination probation early. Let’s discuss the process of requesting early termination of probation after a DUI in more detail.
What Is the Process to Have My Probation Terminated Early After a DUI in California?
The authority for courts to grant early termination of probation is found in Penal Code Section 1203.3 PC. Terminating your probation begins with filing a motion for early termination with the court and the prosecutor’s office. You must file the motion at least two days before a requested hearing date.
Generally, your California DUI attorney discusses your desire to end your period of probation early with the prosecutor who handled your case. Your attorney explains why you want to terminate probation early. He also explains the reasons why you deserve an early termination of probation.
The goal of discussing the matter with the prosecutor before filing the motion is to get the prosecutor’s agreement to support the motion. If the prosecutor cannot agree to support your motion, the second best thing would be for the prosecutor to agree not to oppose the motion.
At the hearing on your motion, your California DUI lawyer explains why the court should grant the motion. He argues that your good conduct and reform justify an order termination DUI probation early. The goal is to convince the judge that you are an upstanding citizen and ending your DUI probation serves the interest of justice.
The court might not require you to attend the hearing. However, attendance at your hearing to terminate probation early may be in your best interest. It shows the court that you respect the court’s time enough to show up. However, discuss this matter with your lawyer before the hearing. There could be instances where your appearance would hurt your chances of early termination of probation.
What Does the Court Consider When Deciding Whether to Grant Early Termination of DUI Probation?
Penal Code §1203.3 allows a judge to terminate DUI probation at any time during the term of probation. However, many judges only terminate probation early if you have completed at least one year of probation if convicted of a misdemeanor. In addition, for felony offenses, many judges only grant motions for early termination of probation after you have been on probation for at least 18 months.
However, the law gives judges the ability to terminate probation at any time within their discretion. Therefore, your attorney may make a case that your situation justifies earlier probation termination. The facts and circumstances of your situation and what the judge believes will serve justice dictate the outcome of your hearing.
Judges terminate probation when a person’s “good conduct and reform” justify granting the motion for early termination. Each judge must decide what qualifies as good conduct and reform. However, some things that judges consider include, but might not be limited to:
- Your criminal background
- The criminal offense that resulted in formal probation or summary probation
- Whether probation is causing undue hardship for your
- The opinion of the district attorney’s office
- The conditions of probation
When considering the terms of your probation, most judges require that you successfully complete all requirements of probation before they terminate DUI probation. That would include, but not be limited to:
- Performing required community service
- Payment of fines and assessments
- Completing the payment of restitution to victims
- Completing required counseling sessions
- Finishing court-mandated alcohol and/or drug treatment programs
- Installing and using an ignition interlock device (IID) as required by the court
- Finishing DUI school
- Attending MADD or other programs as required by the court
In other words, you need to complete each requirement and condition of probation before a judge grants an early termination. However, as stated above, there could be extenuating circumstances. You need to talk with a lawyer if you believe you deserve an early probation termination, but you have not completed all conditions of probation.
In some cases, judges consider situations of undue hardship created by being on probation for driving under the influence. For example, you cannot qualify for a student loan or a home loan because of your DUI probation. Your probation might prevent you from obtaining steady employment or qualifying for a professional license. Judges consider each case on the merits and facts specific to that case.
What Are the Benefits of Seeking Early Termination of Probation After a DUI Conviction?
Seeking early termination of DUI probation may appear to be a worthless endeavor unless the probation is causing you hardship. However, a benefit of terminating DUI probation early is avoiding the risk of violating probation.
A probation violation may occur if you are stopped for driving under the influence. Most DUI probation terms include abstaining from driving under the influence and agreement to take a roadside breathalyzer test if the police pull you over for a DUI stop.
A probation violation charge is serious. Even if you beat the new DUI charge or other criminal charges, the judge can sentence you to prison or jail for violating probation. The sentence may be up to the maximum for the DUI charge. You are not entitled to a jury trial for violating probation. Even if you are not sentenced to jail, the judge could modify the terms of your DUI probation by adding new, harsher terms and lengthening the probation term.
Another benefit of early termination of DUI probation is that you can petition the court for DUI expungement. Even though the DUI arrest remains on your record, the conviction is removed, and the court dismisses the original case. Employers, landlords, colleges, and other parties may not view a DUI dismissal as harshly as a DUI conviction.
Does the Court Expunge My DUI Conviction if It Grants Early Probation Termination?
It is possible for your DUI to be expunged when the court terminates your DUI probation early under California Penal Code §1203.4. In addition, if you were charged with a felony wobbler offense, the judge may also reduce the DUI offense to a misdemeanor.
Generally, DUI convictions can be expunged if you meet the following criteria:
- A state court heard your case and issued the conviction
- The judge did not sentence you to serve time in state prison
- You did not violate any terms of your probation
- You are not currently charged with a crime, serving time for another crime, or on probation because of another criminal conviction
- It has been one year or longer since your DUI conviction, or you completed probation
- You met all the terms of your probation and DUI sentence
When the judge grants an early termination of probation, your probation is complete. Therefore, the court should expunge your DUI conviction if you meet all other criteria.
Ask your California DUI defense lawyer about filing a motion for expungement and reduced sentence when filing a motion to terminate probation early.
What Should I Do if a Police Officer Stops Me for Driving Under the Influence in California?
You can avoid DUI probation by having drunk driving charges dismissed. A California DUI defense attorney can help you fight DUI charges.
Some important things to remember that can help your beat charges of driving under the influence include, but are not limited to:
- You are not required to take field sobriety tests or a pre-arrest breath test if you are not on probation
- California’s implied consent laws require you to take a chemical test after a DUI arrest or face losing your driving privileges and enhanced penalties for a DUI conviction
- You are not required to answer questions from the police about whether you have been drinking or where you have been
- You have the right to remain silent and have legal counsel
- There could be several DUI defenses, including lack of probable causes, chemical test inaccuracies, and police officer misconduct and errors
Contact a DUI attorney as soon as possible after an arrest. The sooner a lawyer begins working on your case, the better it is for your DUI defense.