Category Archives: Drugged Driving
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.
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.
A police officer takes your driver’s license when he arrests you for DUI in California. The officer gives you a Notice of Suspension. The Notice of Suspension acts like a temporary driver’s license. You may drive for 30 days using the Notice of Suspension.
However, if you do not request a hearing from the California Department of Motor Vehicles (DMV) within ten days of your arrest, the DMV automatically suspends your driver’s license.
Therefore the most important thing you need to know about a Notice of Suspension is to request a DMV license suspension hearing known as an APS hearing immediately after being arrested for DUI.
Then, you might want to seek legal advice from a California DUI defense lawyer. You have the right to legal counsel at a DMV administrative hearing. Having an experienced DUI attorney handle the hearing could improve your chance of avoiding a suspended or revoked driver’s license after a DUI arrest.
How Long Will I Lose My Driving Privileges After a DUI Arrest in California?
In 1990, the Admin Per Se (APS) program began in California to deter driving under the influence of alcohol or drugs. Drivers face an administrative driver’s license suspension if they:
- Have a BAC of .08% or higher while driving a non-commercial motor vehicle
- Are under 21 years of age with a BAC of .01% while operating a motor vehicle
- Have a BAC of .04% or higher while driving a commercial motor vehicle
- You refuse to submit to chemical testing, including a blood test or breath test
The DMV suspends your driving privileges for four months for a first-time DUI arrest. If you are arrested on a DUI charge again within ten years, the license suspension period increases to one year.
Furthermore, suppose you are on DUI probation and are arrested for driving under the influence with a BAC of .01% or more. In that case, the DMV imposes a concurrent one-year suspension for the violation of DUI probation.
Refusal to take a preliminary alcohol screening (PAS) or other chemical tests while on DUI probation, you face additional DMV administrative penalties. If the DUI convictions were under California Vehicle Code §§23152 or 23153, the DMV would impose:
- First offense – A one-year driver’s license suspension or two-year revocation period if you are on DUI probation
- Second offense with ten years of another violation of DUI – A two or three-year revocation of your driving privileges
- Third or subsequent offense with ten years of any of the above convictions, violations, or separate administrative decisions – A three-year revocation of driving privileges
After your driver’s license suspension, you can reinstate your driving privilege. However, you must meet specific criteria and pay all applicable fees and costs to reinstate your driver’s license after DUI suspension in California.
How Do I Reinstate My Driver’s License After a DUI Arrest in California?
You must wait until after the DMV suspension or revocation to reinstate your driving privileges. For license reinstatement, you must:
- Pay a $125 reinstatement fee to the DMV
- Provide proof of insurance (SR-22 form) or another acceptable form of financial responsibility (i.e., surety bond, $35,000 cash deposit, or self-insurer certificate)
- Maintain SR-22 insurance or proof of financial responsibility for three years
It is important to note that the DMV suspending your license is different from judges suspending or revoking driving privileges in DUI cases. The DMV administrative procedure is separate from any actions taken by criminal court judges after a DUI conviction.
A judge may also suspend your driving privileges as part of a DUI sentence. In addition, the judge could impose longer suspension or revocation periods. In some cases, a judge revokes driving privileges permanently.
Can I Get a Restricted Driver’s License if the DMV Suspends My Driving Privileges?
Yes, you may be eligible to get a restricted driver’s license. There are two types of restricted driver’s licenses in California.
Restricted Driver’s License for Work and DUI School
You may drive to and from work, during the course of employment, and to and from DUI school. To be eligible for a restricted driver’s license:
- Not have a prior DUI offense (this is your first DUI)
- Have completed a chemical DUI test for BAC levels
- You are 21 years old or older
- Your BAC was .08% or higher for a non-commercial motor vehicle OR .04% or higher for a commercial motor vehicle
- Your driving privileges have not been revoked or suspended for another reason
If you meet the eligibility requirements, to receive a work/DUI school restricted driver’s license, you must:
- Provide proof of enrollment in DUI school
- Pay a $125 reissue fee to the DMV
- File proof of SR-22 or financial responsibility
- Wait for the end of the 30-day suspension period from the suspension date
Restricted Driver’s License With Ignition Interlock Device
The requirements to be eligible for an IID restricted driver’s license are almost identical to the work/DUI school restricted license requirements. However, this does not need to be your first DUI offense. The requirements are:
- You completed a chemical DUI test for BAC levels
- You are 21 years old or older
- Your BAC was .08% or higher for a non-commercial motor vehicle; .04% or higher for a commercial motor vehicle; OR, .01% while on DUI probation
- Your driving privileges have not been revoked or suspended for another reason
If you meet the eligibility requirements, to receive an IID restricted driver’s license, you must:
- Provide proof of enrollment in DUI school
- Pay a $125 reissue fee to the DMV
- File proof of SR-22 or financial responsibility
- Install an approved ignition interlock device and provide verification of IID installation
An IID restricted driver’s license does not require you to wait for the 30-day suspension period to end before applying for a restricted driver’s license. Also, you are not limited to when you can drive or where you can drive. You may qualify for an IID restricted driver’s license, even if you have prior DUIs on your driving record.
Reinstatement of your driving privileges and applying for a restricted driver’s license is different from challenging a Notice of Suspension. Reinstatement and restricted driver’s licenses are a way of dealing with a suspension of driving privileges. Challenging a Notice of Suspension is an attempt to avoid losing your driver’s license after a DUI in California.
Can I Fight a California DMV Driver’s License Suspension After Receiving a Notice of Suspension?
Yes, you can fight an administrative suspension or revocation of driving privileges by the DMV. However, you must request the DMV hearing within ten days. If you choose to represent yourself, you need to know your legal rights regarding a DMV suspension hearing.
- You have the right to review all evidence against you
- You can cross-examine witnesses presented by the DMV, including the arresting police officer
- You may subpoena witnesses to testify
- You have the right to subpoena documents and evidence
- You may present evidence at the DMV hearing to support your case
- You have the right to testify on your behalf
A DMV hearing officer hears your case. The DMV issues a written decision regarding your case. If the DMV hearing officer does not find sufficient evidence to suspend or revoke your driver’s license, he will rule in your favor. However, the DMV officer may allow the suspension to stand.
If the ruling is against you, you have the right to appeal the decision to the Superior Court or request the DMV conduct an administrative review of your case.
Unfortunately, the evidence necessary to prove the DMVs case is less than the evidence required for a DUI conviction. Therefore, having a California DUI defense attorney argue the case could give you a better chance of winning. An experienced DUI attorney understands how to present evidence, cross-examine witnesses, and make a compelling argument for not suspending your driving privileges.
Common DUI Defenses Used When Challenging a DMV Notice of Suspension
Many of the DUI defenses your California DUI lawyer uses at a criminal court trial applies when fighting a Notice of Suspension. Common DUI defenses your attorney might use, include, but are not limited to:
- Challenging whether the police officer had probable cause for a traffic stop or DUI arrest
- Title 17 violations regarding the collection, storage, and testing of blood, breath, and urine samples for alcohol or drugs
- Challenging the accuracy of BAC tests based on health conditions, faulty machinery, operator errors
- DUI breath test errors because of health conditions, mouth alcohol, and ketosis
- Rising blood alcohol levels after a DUI arrest
- Inaccuracy of field sobriety tests (FSTs) because of environmental conditions, the person’s health, or errors made by police officers
- Lack of evidence proving your driving abilities were impaired by alcohol or drugs
- You were not driving or in physical control of the vehicle
- Police used an unlawful DUI checkpoint to stop and arrest you for drunk driving
Contact a California DUI defense attorney if you are arrested for driving under the influence. An attorney helps you fight the Notice of Suspension and fight DUI charges to avoid a conviction, jail, fines, and other DUI penalties.
The recreational use of marijuana is legal in California. California also legalized medical marijuana. However, driving under the influence of marijuana is a criminal offense if the marijuana impairs your ability to drive.
Unlike alcohol, there is not a “per se” or legal limit for DUI of marijuana. Furthermore, sources disagree about the level of marijuana necessary to impair driving ability. Therefore, a key piece of evidence used in marijuana DUI cases is a police officer’s observation of a driver’s impairment. However, cases of DUI of marijuana based solely on observations of impairment may not stand up in court when challenged by a skilled California DUI defense attorney.
What is the Observed Impairment Method for Determining Marijuana Use?
Since California does not set a legal limit for the amount of THC (delta-9-tetrahydrocannabinol) in a driver’s bloodstream, a chemical test alone is not generally sufficient to convict someone of driving under the influence of marijuana. Instead, you need evidence that the marijuana impaired the person’s ability to drive.
Many prosecutors use other evidence of driving under the influence of marijuana to obtain a DUID conviction. The evidence is based on observations of impairment by police officers and Drug Recognition Experts (DREs). DREs are police officers trained to recognize the signs of drug impairment in drivers.
Physical symptoms of drug impairment may include:
- Rapid heart rate
- Dilated pupils
- Red eyes
- The odor of marijuana on the person’s body
- Rapid breathing
- Slowed reaction time
- Dry mouth (“cotton” mouth)
Additionally, police officers observe the driver’s performance on Field Sobriety Tests (FSTs) and the driving patterns immediately before a DUI stop. A driver’s statements to the police and the presence of drug paraphernalia are also observations police officers use to determine drug impairment.
Prosecutors use the combined observations of the police officers or DREs to argue that the driver’s ability to operate the motor vehicle safely was impaired. Therefore, they are guilty of DUID of marijuana.
Problems With the Observed Impairment Method
The observed impairment method has several problems. Studies have shown that marijuana use can affect several driving-related skills. Marijuana use can slow reaction time, decrease divided attention, and cause problems with road tracking.
However, after reviewing the research on the effects of marijuana use on driving, the NHTSA concluded that there are currently no evidence-based methods to detect marijuana-impaired driving. Many of the “signs of impairment” could be caused by other drugs, alcohol, distraction, illness, drowsiness, and other conditions and driver activities.
Therefore, it is not possible to know whether police officers could use a unique combination of cues to determine marijuana-impaired driving with any high degree of accuracy. The information was provided in a Report to Congress in July 2017.
Research supported by the National Institute of Justice found that biofluid levels of THC did not correlate with performance on field sobriety tests. In addition, researchers observed standardized FSTs were not effective in detecting marijuana intoxication.
Using observations to detect marijuana-impaired driving can be highly subjective. Someone charged with DUID of marijuana based solely on the observations made by police officers during a DUI stop should fight the charges with the help of a California DUI defense lawyer.
New Methods of Detecting Marijuana Impairment for Drivers
According to studies conducted by researchers at Massachusetts General Hospital, a noninvasive brain imagining procedure is a reliable method for identifying marijuana impairment. Brain activation patterns that correlate to impairment from THC are measured by imaging technology. The technology used is known as functional near-infrared spectroscopy (fNIRS).
The study did not include roadside assessments of impaired driving. However, it did cite the advantages of a portable brain imaging device using this technology to determine marijuana impairment.
The lead author stated that they believe brain-based testing could provide an objective and practical solution to testing for marijuana-impaired driving. However, further study is required.
Do I Have to Take a Chemical Test if I Am Stopped for DUID of Marijuana?
California’s implied consent law means that drivers are presumed to have consented to a chemical test for drugs and alcohol if they are arrested for DUI. However, drivers are not required to submit to pre-arrest chemical tests. You can refuse a hand-held breathalyzer test or saliva swab before you are arrested without penalty.
However, after a DUI arrest, refusing to take a chemical test results in an automatic one-year driver’s license suspension, even if the prosecution drops the DUI charges or the court finds you not guilty. In addition, if you are convicted of DUI, refusal of a chemical test adds an extra two days in jail and nine months of DUI school to your sentence.
Chemical Tests Are Unreliable for Detecting Marijuana Impairment
There are several problems with chemical tests for marijuana impairment. First, chemical tests do not indicate with any reliability when the driver used marijuana. Second, the tests do not tell officers how much marijuana the person used. Third, experts do not agree on how much marijuana is necessary to impair driving ability.
Another problem is that test results may vary depending on the test used. Blood tests are the most common chemical test used for DUID of marijuana. A blood test indicates the presence of THC in a person’s system.
Some studies found THC may be detected in a blood test for up to a month after a person uses marijuana. Urine tests can detect the presence of marijuana in a person’s system for up to ten days for a casual user. However, people that use marijuana frequently can have a positive urine test for up to four weeks or longer.
Saliva tests have not been ruled admissible as evidence in cases of driving under the influence. Therefore, police officers use saliva tests as preliminary screening. But, again, you do not have to agree to take any drug test before you are arrested for DUID in California.
It is important to remember that a positive chemical test shows that you have marijuana in your system. It does not indicate when you used marijuana or how much marijuana you consumed. It also does not prove that you were impaired.
Contact a California DUI defense lawyer to discuss potential defenses to DUI of marijuana. In addition to challenging whether the marijuana in your system impaired your driving, there could be other defenses to driving under the influence of marijuana.
What Are the Penalties for DUI of Marijuana?
California Vehicle Code §23152(f) states it is unlawful for anyone under the influence of any drug to drive a vehicle. Therefore, a person violates this law by:
- Being under the influence of any drug, including marijuana
- While driving a vehicle
- And being unable to operate the vehicle with the ordinary care of a sober person because the drug impairs their mental and/or physical abilities
Medical marijuana is not a defense against DUI of marijuana. Therefore, you may have a prescription for medical marijuana, but you can still be arrested and convicted of driving under the influence of marijuana.
The penalties for DUID of marijuana are the same as DUI for alcohol. Most DUI marijuana cases are charged as misdemeanors. However, it is a wobbler offense.
Wobbler offenses may be charged as felonies or misdemeanors. For example, if you cause an accident while driving under the influence of marijuana, the prosecutor may charge you with felony DUID of marijuana.
The penalties for a misdemeanor DUI of marijuana generally include:
- A fine of $390 to $1,000
- Six months driver’s license suspension
- Three to five years of informal probation
- Up to six months in county jail
DUI of marijuana is a priorable offense. Therefore, the penalties increase with each DUI conviction within ten years.
The prosecutor may charge you with felony DUID of marijuana if:
- You injured someone while driving under the influence of marijuana
- You have three or more wet reckless or DUI convictions within ten years
- You have any felony convictions within ten years
The punishment for a felony DUID of marijuana can include substantial prison sentences, formal probation, and longer driver’s license suspension periods.
What Should You Do if You Are Arrested for DUI of Marijuana in California?
Do not plead guilty to the charges without talking to a California DUI defense lawyer. It is possible to beat charges of driving under the influence of marijuana. You want to avoid a DUI conviction on your driving record if possible.
A DUID of marijuana on your criminal record could have serious consequences. If your employer requires you to drive for employment, you could lose your job. Potential employers may look unfavorably upon past DUI convictions. A criminal record could affect your ability to obtain scholarships and some government aid.
If there is no way to avoid a conviction for DUID, your DUI defense lawyer negotiates the best possible plea agreement for your case. Chemical tests do not show impairment. The observed impairment method for determining marijuana impairment is also subject to challenge.
A skilled attorney uses this information to challenge the prosecution’s case. The prosecutor may be more willing to negotiate a favorable plea deal when they know you have an experienced, knowledgeable California DUI defense attorney ready to argue these defenses in court.
If you have a felony DUI conviction on your record in California, you might want to consider applying for a Certificate of Rehabilitation (COR). There are several benefits of receiving a certificate that might avoid some of the long-term consequences of a DUI conviction. If you are unsure whether you need a COR, you can ask your California DUI attorney after you resolve your drunk driving charges.
What is a Certificate of Rehabilitation?
The COR has some of the same benefits as a governor’s pardon, but not as many benefits as you receive from a full pardon by the governor. However, the state treats the certificate as an automatic application for a pardon by the governor. A Certificate of Rehabilitation does not clear your criminal record. However, it does show that you are now a law-abiding citizen.
One of the main benefits of a Certificate of Rehabilitation is to help prevent being denied a professional license based solely on a DUI conviction. With a Certificate of Rehabilitation, you can make a case to a prospective employer, landlord, or college that although you made a poor choice by drinking and driving, you learned a lesson.
Another benefit of obtaining a certificate is to avoid the requirement to register with the California sex offender’s registry for many people charged with a misdemeanor sex offense.
However, some sex crimes are not eligible to receive a Certificate of Rehabilitation. Only a full governor’s pardon would avoid the requirement to register as a sex offender for individuals convicted of those crimes.
Am I Eligible to Receive a Certificate of Rehabilitation After My DUI Conviction?
You must meet specific requirements to be eligible to receive a certificate. Your California DUI defense lawyer can review the qualifications in more detail, but generally you:
- Cannot have served time in county jail or prison or otherwise been incarcerated for a new criminal offense since the completion or dismissal of your sentence;
- Are not currently on probation for a felony offense;
- Were a resident of California for at least five continuous years immediately before you apply for a Certificate of Rehabilitation; AND,
- Have been rehabilitated, generally for a specific number of years.
Additionally, one of the following must apply to the offense:
- You were convicted of a felony and sentenced to serve time in prison or another state penal agency or institution; OR,
- You were convicted of a felony that resulted in probation, and the state expunged the conviction; OR,
- You were convicted of a misdemeanor sex crime listed in Penal Code §290, and the state expunged the conviction.
Several crimes or situations make a person ineligible to receive a Certificate of Rehabilitation. For example, you cannot receive a COR if you are serving mandatory life parole, are in the military, or are sentenced to death. In addition, misdemeanor offenses other than a sex offense in Penal Code §290 are ineligible for a certificate.
Federal crimes and crimes committed outside California’s jurisdiction are ineligible for a Certificate of Rehabilitation. In addition, specific sex crimes are ineligible, and the court might determine a person ineligible if they are a continuing threat to a minor.
How Long is the Waiting Period to Obtain a Certificate of Rehabilitation for a Felony DUI Conviction?
Generally, a satisfactory period of rehabilitation is five years as a California resident plus an additional two to five years. However, the exact rehabilitation period depends on several factors, including the criminal offense.
The waiting period for applying for a COR does not begin until you complete:
- Probation or parole;
- Community supervision; OR
- Mandatory supervision
In other words, you must complete every term of your criminal sentence before the period of rehabilitation begins. Serious criminal offenses may require a minimum waiting period of nine to ten years. Most other offenses require a seven-year waiting period.
The court may find that you have not waited long enough to prove you are rehabilitated. If so, you may need to wait longer and refile the petition.
How Do I Apply for a Certificate of Rehabilitation After a DUI Conviction?
You must file a petition with the Superior Court in the county where you reside. The petition for a Certificate of Rehabilitation must include a copy of your criminal record.
The criminal record must include details about each DUI conviction you wish to include in the Certificate of Rehabilitation. The California Department of Justice provides copies of criminal records. There is a $25 fee for a copy of your criminal record.
The court does not charge a fee for a petition for a Certificate of Rehabilitation. You may pay an attorney to file the petition or file the petition without a lawyer. However, an experienced attorney understands the requirements for obtaining a certificate and how to present a compelling argument that you are rehabilitated.
Generally, the court schedules a hearing for your petition. The court provides notice of the hearing to the governor’s office and the district attorney for the county of each conviction.
At the hearing, you present evidence of your rehabilitation. Support from the original prosecutor’s office can provide strong support for granting a Certificate of Rehabilitation. However, the judge considers all relevant factors when deciding to grant a certificate, including:
- Evidence you attend school or have a job
- Your education and work history
- Letters of recommendation
- Proof of residence
- Evidence of volunteer work
- A statement explaining why you want a Certificate of Rehabilitation
- Prison and probation records
- The original trial and court proceedings
- Your ties to family and the community
- The length of time since you completed your sentence and/or probation
The court also listens to the arguments for or against granting the certificate made by the district attorney. If the court grants the COR, it forwards the certificate to the governor’s office, California Department of Justice, and the Board of Parole Hearings. If you have two or more DUI felonies, the court sends the certificate to the California Supreme Court.
Receiving a Certificate of Rehabilitation is an automatic application for a governor’s pardon. You do not need to take any further action. Receiving a pardon from the governor for a DUI felony conviction means restoring your gun rights, voting rights, and other privileges you lost because of a felony conviction.
If the court denies your application for a Certificate of Rehabilitation, you can appeal the decision. However, the court charges a fee to file an appeal. So most people wait and try again at a later date.
How Can I Avoid the Need for a Certificate of Rehabilitation After Being Arrested for DUI in California?
You have several options for avoiding the need to seek a Certificate of Rehabilitation. First, you can hire a California DUI lawyer to fight the drunk driving charges. A DUI arrest is not a conviction. Potential DUI defenses your attorney may raise include, but are not limited to:
- The alcohol in your system did not impair your ability to drive
- The police officer lacked probable cause for a traffic stop or DUI arrest
- The law enforcement officer threatened you if you did not take the field sobriety tests or the roadside breathalyzer test
- The lab used contaminated or fermented blood samples for chemical testing
- You have a medical condition that mimics intoxication with slurred speech and lack of coordination, such as epilepsy seizures or diabetes sugar lows
- A health condition causes a falsely high BAC level on a breath test, such as acid reflux, diabetes, or GERD
- The police officers stopped you at an illegal DUI checkpoint
A successful DUI defense strategy requires your assistance. Tell your lawyer everything. Do not talk to the police or answer questions without talking with a California DUI defense lawyer.
Drivers can refuse pre-arrest breath tests and field sobriety tests without penalty. However, there are enhanced penalties for a DUI conviction after refusing a post-arrest chemical test. Regardless, your attorney may discover one or more problems with the case that could result in the chemical test results being inadmissible.
Another way to avoid petitioning for a Certificate of Rehabilitation is to plead your DUI charges down to a misdemeanor charge. You could then apply for DUI expungement.
Most DUI convictions qualify for expungement. Expungement does not wipe the DUI from your driving record or erase it from your criminal record. However, an expungement in California removes the guilty verdict and dismisses the charges. Therefore, the only matter that appears on the criminal record is the DUI arrest, which can help you avoid some of the negative consequences of a DUI “conviction.”
Your attorney may have more success negotiating a favorable plea agreement than you if you represent yourself. The prosecutor does not tell defendants when they have valid defenses to drunk driving charges. They also do not tell you if there are weaknesses in the state’s case against you.
An attorney recognizes these facts and uses them to argue a better plea deal. A DUI plea agreement may include reduced charges and penalties. The best-case scenario for a plea deal is a dry reckless charge because it does not count as a priorable offense for future DUI convictions. Your DUI lawyer fights to get you the best outcome for your California DUI case.