Category Archives: Drugged Driving
Unfortunately, you cannot get your revoked driver’s license restored or reinstated in California. If the California Department of Motor Vehicles or the court revoked your driver’s license, you must apply for a new driver’s license.
You may not apply for a new driver’s license until the entire period of your revocation expires. Furthermore, to get a new driver’s license, you must take and pass all required DMV tests to obtain a driver’s license, including:
- Written test covering traffic laws in California
- Driving test supervised by a DMV instructor
- Vision test
You may also be required to take an alcohol/drug education course. You must also pay all applicable fees to get a new driver’s license and provide proof of insurance.
What Does Revocation of a Driver’s License Mean in California?
According to California Vehicle Code §13101, revocation of a driver’s license means that the person cannot drive legally within the State of California. The vocation applies to all motor vehicles. The person must wait until the end of the revocation period to apply for a new driver’s license.
Why is a Person’s Driver’s License Revoked in California?
There are several reasons that the California Department of Motor Vehicles revokes a person’s driver’s license. Some of the common traffic offenses that can cause a driver’s license to be revoked include, but are not limited to:
Driving Under the Influence
The Admin Per Se or administrative license suspension program began in 1990. The program was a deterrent to drunk driving. Under the Admin Per Se (APS) program, the DMV is required to revoke or suspend the driving privileges of anyone arrested for DUI or DUID who:
- Refuses to take a chemical BAC test to determine the level of alcohol or drugs in their system
- Has a .01% BAC level while driving on DUI probation, a .04% BAC level while driving a commercial vehicle, or .08% BAC level while driving a non-commercial motor vehicle
Blood or breath tests are used to determine BAC levels after a drunk driving arrest. A urine test is used as a chemical test unless the person takes an anticoagulant medication or is a hemophiliac. Urine tests are otherwise unavailable unless both a breath and blood test cannot be performed.
Road Rage Under California Vehicle Code §13210
Road rage is another common reason why a person’s driving privileges may be revoked. Under California Vehicle Code §12321, the DMV may revoke a person’s driver’s license for angry or aggressive behavior toward bicyclists, pedestrians, or other drivers.
Conduct that could result in the DMV revoking a driver’s license for road rage includes, but is not limited to:
- Verbal insults
- Threatening physical violence
- Rude gestures
- Dangerous driving intended to intimidate another driver
- Hitting another vehicle
- Acts of physical violence
- Threatening another driver with a weapon
Road rage incidents can be serious crimes. The person may be charged with other crimes under the penal code, including murder and assault. In addition, the driver could face other charges under the traffic code, including reckless driving and speeding.
Mental or Physical Disorder
A driver’s license may be revoked because the driver has a physical or mental disorder that prevents them from operating a motor vehicle safely. A DMV reexamination hearing may be requested by a friend, relative, caregiver, physician, the court, or other parties.
A driver’s license may be revoked because the person committed a crime. Criminal convictions that could result in revocation of a driver’s license include, but are not limited to:
- Vehicular manslaughter under California Penal Code §192c PC
- Committing a felony that involves using a motor vehicle
- Reckless driving that results in bodily injury to another person under Vehicle Code §23104
- Subsequent DUI convictions with a BAC of .08% or higher
- Incidents of driver’s license fraud, including criminal charges for forgery under Penal Code §470 PC
Some criminal convictions can result in permanent revocation of driving privileges, including felony assault with a deadly weapon when using a car as the weapon. Killing someone while driving under the influence results in permanent driver’s license revocation.
A DMV revocation of driving privileges lasts a specific period of time. In most cases, the DMV notifies the driver how long the driver’s license revocation period lasts. However, the DMV could revoke a person’s driver’s license for an unspecified period.
How Can You Avoid a Driver’s License Revocation in California?
You could challenge the DMV’s decision to revoke your driver’s license. However, you must file a request for an administrative hearing within ten days of receiving the revocation notice from the DMV or within 14 days of the mailing date of the notice.
DMV administrative hearings are not criminal hearings. These hearings are separate from any criminal court hearings you might have regarding criminal charges. The hearings are held at the DMV offices before a hearing officer instead of in court before a judge.
The standards of evidence and proof are less strict at a DMV hearing than they are in criminal court. However, it is important to remember that these hearings are held by an experienced DMV hearing officer trained in the procedure, evidence, and the laws applicable to the matters being heard.
You have the right to be represented by an attorney at the hearing. Most California DUI lawyers offer free consultations so that you can talk with a lawyer before the hearing about your rights.
At the hearing, you have the right to examine the evidence presented by the DMV and cross-examine any witnesses presented by the DMV, such as the law enforcement officers who made the arrest. In addition, you may testify at your hearing and present witnesses and evidence on your behalf.
Is There a Difference Between Suspending Driving Privileges and Revoking Driving Privileges in California?
When the DMV suspends your driver’s license, it puts a “hold” on your driving privileges. You are prohibited from operating a motor vehicle for a specific period. You can resume driving at the end of that period provided you have the required insurance and your driver’s license has not expired.
A revocation of a driver’s license means that the driver’s license has been canceled. Your driving privileges are not automatically reinstated at the end of the revocation. As discussed above, you must go through the entire process of obtaining a new driver’s license if you want to operate a motor vehicle in California.
Can You Expunge a DUI Conviction From Your Criminal Record to Avoid Revocation for Subsequent DUI Convictions?
California Penal Code 1203.4 PC is the expungement law in California. It allows you to expunge most DUI convictions, including misdemeanor DUI and other prior convictions.
To be eligible to petition the court for DUI expungement, you must meet the following criteria:
- A state court must have ordered your DUI conviction
- You cannot have served time in state prison
- You met all requirements of your sentence, including performing community service, paying restitution to victims, attending treatment programs, and paying fines or assessments
- You completed probation, or it has been at least one year after your DUI conviction if you were not sentenced to summary probation
- You did not violate any of the terms of your probation
- You are not currently charged with another crime, serving probation for another criminal conviction, or serving time for another crime
Even though you can expunge DUI cases so that they do not show up as criminal convictions on a background check, DUI cases remain on your DMV record. Expungement in California does not waive the fact that drunk driving convictions are “priorable” offenses.
A priorable offense counts toward sentencing for any subsequent offenses. Furthermore, expunging a DUI conviction does not shorten the period of driving suspension or revocation. You must still wait until the end of the revocation or suspension period to reinstate driving privileges.
Even though you expunged the DUI conviction, you would need to go through the same process of obtaining a new driver’s license when the revocation period ends. Additionally, any new offenses could count toward a revocation of your driving privileges again.
What Should I Do if I Am Facing a DUI Charge in California?
DUI offenses should be taken very seriously. Losing your driving privileges could result in unemployment and problems keeping a professional license. In addition to losing your driver’s license, you face substantial fines, jail time, summary probation, DUI school, and other penalties. Depending on the circumstances of the DUI arrest, you could spend years in prison for driving under the influence.
However, you could have several defenses to the DUI charges. A California DUI defense lawyer examines the circumstances of your DUI arrest to determine if the law enforcement officers violated your civil rights. Your attorney also explores other DUI defenses that could result in the charges being dismissed or reduced.
In the event that you cannot avoid a DUI conviction, your attorney negotiates with the prosecutor to get the best possible terms for a plea deal. Negotiating a plea deal or pleading guilty to DUI charges without a lawyer could result in harsher penalties than is necessary for your case.
Drunk driving convictions are priorable offenses in California. A priorable offense means that the prior conviction enhances the penalties for another conviction. Therefore, any prior DUI convictions on your record result in harsher punishments for subsequent drunk driving convictions.
Being charged with driving under the influence while on probation for a DUI conviction is treated severely by California courts. Punishments for drunk driving are intended to deter individuals from repeating the same conduct. If you violate DUI probation by driving under the influence again, your prior DUI affects the new offense, and you also face the consequences for violating DUI probation.
Unfortunately, violations of DUI probation are common. The best thing you can do for yourself is contact an experienced California DUI defense lawyer.
How Does the 2nd DUI Affect Your Current DUI Probation?
For a first-time DUI conviction, judges may grant three to five years of summary (informal) probation. The terms of probation vary, but they often include:
- Agreeing not to drive a motor vehicle with any measurable amount of blood alcohol in your system during the probationary period
- Agreeing to submit to a DUI blood test or DUI breath test if arrested for suspicion of driving under the influence
- Paying fines and assessments
- Completing DUI school
- Attending an alcohol and/or drug treatment program
- Community service
- Agreeing to drug and alcohol testing
- Suspension of driving privileges or mandatory installation of an ignition interlock device (IID)
Breaking any of the rules of probation could result in penalties for the probation violation. As noted, most probation terms include an agreement not to drive with any measurable alcohol in your system. Therefore, driving after just a couple of drinks could result in a probation violation.
What Are the Consequences of a Second DUI on Probation for a First DUI Conviction?
You could be convicted of violating probation even if you are not convicted of drunk driving because you do not have to be over the legal limit to violate probation. For example, merely driving under the influence of alcohol is sufficient to charge you with violation of probation. Likewise, refusing a chemical test is sufficient to make an arrest for a DUI probation violation.
Violating DUI probation is a separate criminal offense. After your arrest, the court schedules a probation violation hearing. At the hearing, the prosecution presents evidence that you violated the terms of DUI probation by driving under the influence of alcohol or drugs. Evidence may include the testimony of the police officer, results from field sobriety tests, and blood alcohol chemical test results.
The burden of proof during a probation violation hearing is less than the burden of proof at a DUI trial. The prosecutor only needs to prove you violated the terms of probation by a preponderance of the evidence.
A preponderance of the evidence means that the allegations against you are more likely to be true than not true. In other words, there is a more than a 50% chance you violated the terms of probation. However, during a DUI trial, the prosecution must prove its case beyond a reasonable doubt.
The judge is not ruling on whether you were driving under the influence or driving with a BAC over the legal limit. That decision occurs at the hearing for your second DUI charge. At this hearing, the judge only determines whether you violated the terms of probation.
If you did not violate the terms of DUI probation, nothing happens. Instead, you continue with your probation period as if the hearing did not occur.
However, if the judge finds that you violated the terms of DUI probation, the judge can take one of three actions:
- Revoke summary probation
- Modify the terms of your summary probation to make them stricter
- Reinstate summary probation with the same conditions and terms
If the judge revokes summary probation, you must serve your full jail or prison sentence for the first DUI conviction. Your second DUI offense proceeds and is impacted by the first DUI conviction, but not by the outcome of a probation violation hearing.
How Does DUI Probation Affect a Second DUI Offense?
The DUI probation does not impact the sentencing for a second DUI offense. However, having a prior DUI conviction on your record enhances the sentence for the second DUI offense.
Generally, the penalties for a misdemeanor first-time DUI offense include:
- Assessments and fines up to $1,000
- Up to six months in jail (may qualify for work furlough or work release)
- Loss of driving privileges for six months
- Installation of an ignition interlock device for six months
- Attending DUI school for three months
- Three to five years of summary (informal) probation
You may or may not receive all of the above penalties or the maximum penalties. A California DUI attorney can argue for lower sentences based on the facts of the case.
However, a second misdemeanor DUI conviction within ten years carries more severe penalties. The potential penalties for a second-time DUI conviction include:
- Assessments and fines up to $2,000
- Up to one year in jail, with a minimum jail sentence of 96 hours
- Three to five years of summary probation
- 18 to 30 months attendance at a court-approved DUI school
- Installation of an ignition interlock device (IID) for up to a year
- Loss of driving privileges for two years (may apply for a restricted license after one year)
The same terms of probation generally apply to the second DUI conviction. Additionally, the judge may order the person to attend a drug and alcohol treatment program, pay restitution if the DUI involved an accident, and participate in Alcoholics Anonymous, Narcotics Anonymous, or a Mothers Against Drunk Driving victim impact panel.
What Are My Choices if I Get a Second DUI While on Probation for Driving Under the Influence?
You can plead guilty or no contest to the DUI charges and accept the court’s sentence. Alternatively, you can enter a plea agreement with the prosecution. However, since this is your second DUI conviction, the plea agreement’s terms may not be as favorable. A California DUI lawyer can help you negotiate the best terms.
On the other hand, you may plead not guilty and decide to fight the DUI charges. Your attorney investigates the circumstances of your drunk driving arrest. In some cases, police misconduct could result in a motion to suppress evidence. The evidence against you could be thrown out if you win at the motion hearing, making it very difficult for the prosecution to win the case.
A DUI lawyer may challenge the results of a breathalyzer or chemical test. Your BAC level may have been elevated because of your diet, a health condition, or malfunctioning machine. In some cases, the lab technician or police officer could have made a mistake collecting or testing the sample.
Even if you cannot win the case at trial, having a California DUI defense attorney investigate the case can help during plea negotiations. Your attorney may uncover weaknesses in the prosecution’s case or evidence that would be favorable to you during a trial. Your lawyer uses this information to negotiate terms of a plea bargain that are more favorable than the sentence you would receive if you plead guilty in open court.
A plea agreement may include reduced charges that would not count against you for future DUI convictions. It could also include no jail time or less jail time with reduced fines. The terms of the plea agreement depend on the facts of your case.
Prosecutors are often more willing to negotiate better terms with a criminal defense lawyer than with a person representing themselves. The prosecutor knows most people are unfamiliar with DUI laws and court procedures. However, the prosecutor cannot take advantage of an experienced DUI attorney who is willing to go to court to protect the client’s best interest.
The best way to avoid a probation violation is to avoid driving after consuming any amount of alcohol. Also, talk to your DUI lawyer for the first case. Ensure you understand all the terms of your DUI probation. Some people violate probation because they are not clear on the terms of probation. Understanding what probation entails can help you avoid violating DUI probation.
As soon as possible after a DUI arrest, contact a California DUI defense lawyer. An attorney advises you about your legal rights and the things to avoid doing that could hurt your chance of beating the DUI charges. Your attorney also helps you through the probation violation hearing and deals with the new drunk driving charges.
The judge in your DUI case could impose several different penalties for a guilty plea or guilty verdict. A DUI conviction can lead to jail time, fines, probation, suspended license, DUI school, and summary probation. You may also be ordered to wear a SCRAM device.
What is a SCRAM Device?
You must wear a SCRAM (Secure Continuous Remote Alcohol Monitor) device continuously if the judge imposes this punishment for DUI. The device monitors your blood alcohol content (BAC) through your sweat. The process is called transdermal alcohol testing.
When you consume alcohol, a small portion is eliminated through your urine. However, a small about leaves the body through your breath, saliva, and sweat.
DUI breathalyzer tests pick up on the alcohol on your breath. SCRAM devices sense alcohol that escapes through your skin (sweat).
The device sends the information to a monitoring center every 30 minutes. If the SCRAM device detects alcohol in your system, the court is notified of the violation.
Alcohol Monitoring Systems, Inc. developed the device. You wear the monitor around the ankle like a bracelet. It is water-proof and tamper-proof.
Adding House Arrest to the Alcohol Monitoring System
If a person is sentenced to house arrest instead of jail or prison, the court may order a SCRAMx device. The device monitors the person’s BAC levels and monitors the person’s exact location. Therefore, the court knows precisely when you leave your home and where you go when you leave.
What Types of Cases Does the Court Order SCRAM Devices?
SCRAM devices are used in cases when the defendant is ordered not to consume alcohol as a condition of probation or house arrest. In addition, judges may order alcohol monitoring for repeat offenders or in DUI cases involving alcohol dependence or addiction.
SCRAM devices may be used in other cases. Examples of cases that might result in a sentence to wear a SCRAM device include, but are not limited to:
- California drug court
- As a condition of bail, early parole, or pre-trial supervision
- California Veterans court
- Supervision and support for re-entry programs
- Offenders convicted of underage drinking in California
- Military diversion programs
- As a condition of release or probation for domestic violence offenders
In many criminal cases, a common condition of probation is not using alcohol or drugs. SCRAM devices allow the courts to monitor the condition without the need for random alcohol tests through the probation office or other government agencies.
What is the Average Term Someone Wears a SCRAM Device in California?
The seriousness of the DUI offense is a significant factor in the duration of your SCRAM monitoring. Additionally, the judge considers other factors such as your criminal record, prior DUI offenses, and your dependency on alcohol. As a result, you could be sentenced to wear the SCRAM device for a month, year, or more.
Does the Court Give Me the SCRAM Device to Wear?
No, the court does not have these devices on hand. If the court sentences you to BAC monitoring, you must contact an authorized SCRAM service provider in California. You arrange to have the monitor placed on your ankle through the service provider.
The provider instructs you not to remove the device or tamper with the device. Getting a SCRAM device off your ankle is possible, but it is a challenge.
However, if you tamper with a SCRAM device, the monitoring system receives notice and lets the court know what you are doing. As a result, the judge may schedule a hearing and sentence you to jail time instead of BAC monitoring.
How Much Does it Cost for a SCRAM Device? Who Pays for it?
You are responsible for paying for the monitor and the daily monitoring fee. Generally, it costs between $50 to $100 to install a SCRAM device on your ankle. After that, you must pay the daily monitoring fee.
Monitoring fees for a SCRAM device can be as much as $12 per day for BAC monitoring. The fee increases for BAC and position monitoring. You may pay up to $15 a day for BAC monitoring and house arrest.
The court may absorb the cost of the service for indigent offenders. Also, the cost may vary based on how much income the person receives each month.
If the judge sentences you to SCRAM monitoring for a year, you could pay as much as $4,400 for the service.
Does Wearing a SCRAM Device Give a Defendant Credit for Time Served?
Monitoring for BAC with a SCRAM device does not equal time served. However, if you are sentenced to house arrest with a SCRAM device, the judge may give you credit for time served.
House arrest means that you cannot leave your home except for specific errands approved by the court. Therefore, house arrest is a form of incarceration.
You may be allowed to work or go to school. If so, the court sets a curfew that you must obey. Also, the court restricts the places you may go while leaving home for work or school.
What Should I Do if Someone Is Drinking Alcohol Around Me?
The SCRAM device can tell the difference between alcohol in your system and alcohol in the environment. However, your agreement with the service provider generally states that you will not use alcohol or have alcohol around the bracelet.
Medications Containing Alcohol Should Not Impact the Device
The SCRAM monitor generally does not produce a false positive if you take medication with alcohol or use other products that might contain small amounts of alcohol, such as breath sprays, mouthwashes, and other consumer products.
However, if you consume enough of these products to become intoxicated, you violated the terms of your probation. Therefore, the judge may order you to be picked up and placed in jail.
SCRAM Devices vs. IIDs
Courts often order DUI offenders to install ignition interlock devices (IIDs) in their vehicles as a penalty for driving under the influence or a condition of receiving a restricted driver’s license. An IID prevents someone who is intoxicated from driving. The IID prevents the vehicle from starting if the driver has any alcohol on his breath when he blows into the device.
However, an IID does not prevent someone from consuming alcohol. In those cases, the court may order a SCRAM device instead of an IID to ensure the person does not use alcohol during summary probation or house arrest.
What Are the Other Penalties for Driving Under the Influence in California?
California places strict penalties on drunk drivers. A DUI is a priorable offense. Another DUI conviction within ten years of a prior conviction enhances the penalties for the current offense. Felony DUI charges have no time limits.
Therefore, the penalties for a second DUI conviction within ten years are harsher than those for a first-time DUI conviction. Likewise, third, fourth, and subsequent drunk driving convictions carry much harsher penalties than a first or second-time DUI conviction.
For example, the potential penalties for a first-time DUI conviction in California include, but might not be limited to:
- A jail sentence of up to six months
- Fines and assessments between $1,500 and $2,000
- Summary probation for three to five years
- Suspension of driving privileges for six months (a DMV administration suspension could be longer)
- Attendance at DUI school for three to nine months
The above penalties apply to a first-time DUI misdemeanor charge. However, if the court finds aggravating factors in your case, it could order enhanced penalties. Aggravating factors include, but are not limited to underage drinking and driving, refusing to submit to a chemical test, a BAC of .15% or higher, or having a child under 14 years old in the car.
Now, assume that this is your third DUI conviction within ten years. The penalties for a third-time DUI conviction include:
- Summary probation for three to five years
- At least 120 days in county jail, but could be up to one year
- Fines and assessments between $2,500 to $3,000
- 30-month DUI education program
- Install an IID for two years
- Driver’s license revocation for three years (may qualify for a restricted driver’s license after 18 months or right away with an IID)
As with a first-time DUI offense, if the judge finds aggravating factors present, your penalties for a DUI conviction may increase significantly.
Furthermore, a DUI that caused serious injuries may increase to a felony charge. The penalties for felony DUI become much more severe.
What Should I Do if I Am Arrested for Driving Under the Influence in California?
Do not assume that you are guilty of DUI if the police arrest you for drunk driving. An arrest is not a guilty verdict. The state must prove its case under California drunk driving laws. According to California Vehicle Code §23152, it is unlawful for a person to:
- Operate a motor vehicle with a blood alcohol content of .08% or higher (the legal limit)
- Operate a motor vehicle under the influence of alcohol
If your BAC was below .08%, a California DUI criminal defense lawyer might argue you were not under the influence of alcohol while driving. There could also be other defenses to DUI such as:
- Police officers lacked probable cause for a DUI stop or arrest
- The police administer the field sobriety tests incorrectly
- A medical condition or health condition caused a false positive or a high BAC reading
- The samples for blood or urine testing were contaminated
- The BAC machine malfunctioned, or the police officers failed to calibrate it correctly
- You were not driving the motor vehicle at the time of your DUI arrest (you were asleep in the car or sitting in the car)
Before you plead guilty to DUI charges, it is best to consult with an experienced California DUI defense lawyer.
A DUI lawyer may be able to have the DUI charges dismissed. If not, the attorney may negotiate a plea deal that includes reduced charges and/or penalties. If possible, your DUI defense attorney may be able to keep you out of jail by arguing for a SCRAM device.
Drinking and driving in California can have devastating outcomes, up to and including the loss of life. When a driver is found to be under the influence and driving in a negligent manner which subsequently causes an accident that kills someone, it is known as “gross vehicular manslaughter while intoxicated” and it is considered a felony offense. If you are facing charges of gross vehicular manslaughter while intoxicated, you could be looking at a potential jail or prison sentence of up to 10 years, depending on the circumstances and specifics of the case.
What is Gross Vehicular Manslaughter While Intoxicated?
The California Penal Code PEN 191.5(a) defines gross vehicular manslaughter while intoxicated as:
“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”
This means that multiple offenses are being committed simultaneously. Not only is the driver already violating one of California’s DUI laws (23140, 23152, or 23153), but in the course of doing so, the driver also commits another act or behaves in such a negligent manner that the result leads to the death of another.
A hypothetical situation where this might apply is a driver being over the legal limit of .08% blood alcohol content, and speeding to such a degree that they strike another vehicle and kill the other driver. Another example would be someone who is legally drunk ignoring traffic control devices, subsequently killing a pedestrian crossing the street.
Meeting the Four Elements Needed for Charges of Gross Vehicular Manslaughter While Intoxicated
There will be four distinct elements to the crime that must all be fulfilled in order for it to be considered gross vehicular manslaughter while intoxicated. If any one of the four elements can be disproved or contested, your attorney may be able to have the charges reduced or even dismissed entirely. The elements needed are:
- That the driver was operating the vehicle while under the influence of alcohol or drugs
- While the driver was operating the vehicle, any other misdemeanor was also committed that may cause the death of another
- The commission of the required misdemeanor occurred with gross negligence
- As a result of the prior 3 elements, the grossly negligent act caused by the intoxicated driver caused the death of another
These four elements are essential to being able to levy charges of gross vehicular manslaughter while intoxicated against you, and if your attorney can mount a defense disproving or eliminating any one of the conditions, the charges may no longer apply.
Note that it does not matter whether you intended to injure or kill someone when you got into the vehicle after drinking. You only need to be acting in a reckless manner.
If you have been arrested for gross vehicular manslaughter while intoxicated, the first thing you should do is contact an experienced criminal defense attorney since creating a defense strategy for these charges can be complex. While each of the four elements must be proven to hold up in court, they can be complicated.
Driving Under the Influence of Alcohol or Drugs
In California, you are driving intoxicated if you are found to have:
- Driven with a measurable blood alcohol content of 0.08% or greater
- Driven while under the influence of drugs, whether legal or illicit
- Driven while displaying any signs or symptoms of intoxication
- Violated California’s under-21 zero-tolerance law by driving with a blood alcohol content of 0.05% or higher
Being able to contest these may give you a viable defense in your case.
Committing a Misdemeanor or Lawful Act That Could Cause Death
This is a very important point since you must be found to have committed an act that could cause death, but that act cannot be the DUI. It must be an additional misdemeanor offense or lawful act. While the act doesn’t need to be dangerous in ordinary circumstances, it must be potentially dangerous in the situation.
The Gross Negligence Qualifier
Gross negligence can only happen when someone acts in a reckless manner that results in a significant risk of injury or death, and any reasonable person would know that the act has a significant risk of injury or death. It cannot be a simple error in judgment or a careless act.
Being The Cause of Death of Another
The death that occurs in the initial incident must be the direct and natural result of the negligent conduct. While there may be other factors that contribute to the death, the gross negligence must be considered a substantial contributing factor.
The Penalties for Being Convicted of Gross Vehicular Manslaughter While Intoxicated
The penalties for being convicted of gross vehicular manslaughter while intoxicated are similar to being convicted of murder. If you are convicted you can expect to be placed on formal felony probation and to be assigned a probation officer.
You will also be fined a sum of up to $10,000 and may face imprisonment in state prison of either, 4, 6, or even 10 years. Even if you avoid a prison sentence, the DMV will enact a revocation of your driver’s license for a minimum of 3 years. Driving on this revoked license can come with further penalties that grow with each subsequent conviction of driving while suspended or revoked.
Prior convictions for similar offenses can also make the penalties more severe. Prior convictions of DUI, DUI causing injury, manslaughter while operating a boat, and vehicular manslaughter either ordinary or gross. Having a history with a conviction of any of these offenses can make the prison sentence a minimum of 15 years with a maximum of a life term.
Common Defenses for Fighting Charges of Gross Vehicular Manslaughter While Intoxicated
Anytime someone is killed in a vehicle crash is a tragedy, and in many cases the individual who was driving is wracked with guilt, often blaming themselves and pleading guilty or no contest. While law enforcement may be quick to blame you, working with a qualified lawyer can help show the court that it wasn’t your fault or can help you avoid lengthy prison terms. Your criminal defense attorney will help create a defense strategy that helps you fight the charges being laid.
Not Being Intoxicated During The Alleged Incident
In some cases, your attorney may be able to mount a defense against the actual evidence that pointed to you being under the influence since many symptoms of shock due to the accident can appear to be symptoms of being intoxicated. This can also include questioning the validity of the chemical test results, or the procedures of the law enforcement officers that participated in your arrest.
The Misdemeanor or Lawful Act Was Not Committed With Gross Negligence
If you are facing charges of gross vehicular manslaughter while intoxicated, working with an attorney may help you show that your actions were not negligent, even if they were not correct. Driving is a complex process and sometimes requires you to make sudden decisions, and even if they were made in good faith they can be wrong and result in death or injury.
You Believe You Acted Reasonably in Extenuating Circumstances or an Emergency Situation
If you and your attorney can show that your actions were not negligent and that they were aligned with the same judgment and care that any reasonable person would show, you may be able to show that you did not act with gross negligence. This can be difficult to prove depending on the circumstances of the accident, which is another reason working with an attorney is in your best interest.
Your Gross Negligence Was Not The Cause of the Victim’s Death
Cause and effect in vehicle crashes can be very complicated, and even when there was DUI or gross negligence involved, it can be difficult to show that your negligence was the direct cause of someone’s death. This can sometimes be due to negligence of another party or other contributing factors, which can work in your favor. This defense will often involve working with witnesses and other evidence that may exonerate you.
If You Have Been Charged With Gross Vehicular Manslaughter While Intoxicated
If you or someone close to you has been arrested and charged with gross vehicular manslaughter while intoxicated your freedom is in jeopardy and you should work with an expert criminal defense attorney. Not only will they know the ins and outs of the California criminal system, but they will have priceless experience in putting together the best defense for your case. You will be able to discuss the details of your case in a confidential environment and will have the best chance at beating the charges or reducing the penalties imposed in the event of a conviction.
Driving under the influence can result in severe penalties in California. A person could have their driver’s license suspended or revoked, face jail time, and pay high fines. The criminal penalties for DUI are in addition to the other consequences of a DUI conviction.
Some factors enhance DUI penalties in California, including having a minor child in the car at the time while driving under the influence of alcohol. California DUI laws expressly set mandatory punishments for DUI with a minor in the vehicle.
Furthermore, you could face additional criminal charges if a minor was in the vehicle when police officers arrested you for drunk driving. Those criminal charges carry separate penalties and fines for a conviction. Therefore, it is wise to seek legal advice from a DUI defense attorney immediately if you were arrested for DUI with a minor in the vehicle.
Being Arrested for Drunk Driving in California with a Minor in the Vehicle
Driving under the influence may be charged under California Vehicle Code §23152 (VC). The code makes it unlawful for a person to operate a motor vehicle:
- With a Blood Alcohol Content (BAC) of .08% or more OR
- Under the influence of alcohol
Therefore, you can be charged with drunk driving if you have a BAC above the legal limit OR if the state proves that alcohol impaired your ability to operate the vehicle.
Evidence that an officer may use to justify probable cause to make an arrest include:
- Observations of erratic driving before the DUI traffic stop
- Administering pre-arrest breath testing
- Results of field sobriety tests
- A strong smell of alcohol on the person or inside the vehicle
- Observations of the person’s physical appearance
Once a DUI arrest is made, California’s implied consent laws require drivers to submit to a chemical test to determine the level of alcohol in their system. Refusing a BAC test after a DUI arrest results in an administrative suspension of your driving privileges by the California Department of Motor Vehicles. The results of an evidentiary breath test (post-arrest breathalyzer) may be used in court to prove you were drunk at the time of your arrest.
Enhanced Penalties for Driving Under the Influence with a Minor in the Vehicle
The prosecution has the burden of proving guilt for a DUI charge. California DUI lawyers help you fight drunk driving charges to avoid a conviction.
Suppose the court finds you guilty of DUI with a minor in the vehicle. In that case, the court imposes the applicable criminal penalties based on the underlying DUI charges, your past criminal record, and any aggravating facts. An aggravating fact that enhances DUI penalties is driving a vehicle with a minor in the car while intoxicated.
California Vehicle Code §23572 (VC) provides enhanced penalties for individuals convicted of drunk driving with a minor age 14 years or younger in the car. The penalties are mandatory. That means the judge must issue the penalties if the state proves that you were driving under the influence with a minor in the vehicle.
What Are the Penalties for Drunk Driving with a Minor in the Vehicle?
Additional jail time is the penalty under CVC §23572 imposed for a DUI offense involving a minor in the vehicle. The additional jail sentence for this offense is:
- 48 hours in county jail for DUI first offense
- 10 days in jail for DUI second offense
- 30 days in jail for a DUI third offense
- 90 days in jail for DUI fourth offense
The above jail sentences are in addition to any imprisonment ordered by the judge for the DUI conviction. Therefore, you would spend a minimum of 48 hours in jail if you are convicted of a first-time DUI misdemeanor with a child in the car under 14 years of age.
The typical penalties for a first time DUI misdemeanor conviction in California include:
- A jail term of up to six months (with a minor in the vehicle, you could serve 6 months PLUS 48 days)
- Three to five years of informal probation
- Three to nine months in DUI school
- Fines and penalties of $1,500 or more
- Six-month driver’s licenses suspension unless you install an ignition interlock device
Working with a Los Angeles DUI defense lawyer could help you avoid a conviction. There could be several defenses to drunk driving charges with a minor in the vehicle.
Defenses to Driving Under the Influence with a Minor Under 14 in the Vehicle
You may have one or more defenses to the charges of driving intoxicated with a minor in the vehicle. The first defense involves proving that the person is not a minor as defined by the code section. The child must be under 14 years of age for the enhanced penalties to apply.
Another defense attacks the DUI stop and arrest. Police officers must have reasonable suspicion to pull over a driver for drunk driving. Officers must also have probable cause for an arrest. If you show that the police officers violated your civil rights, the judge may rule the evidence admissible in court. The prosecutor may have no choice but to drop the DUI charges.
You could also prove that you were not driving under the influence of alcohol at the time of your arrest. For example, medical conditions mimicked the signs of intoxication or caused a false reading on a chemical test. Your DUI attorney may challenge the results of the field sobriety tests or the breathalyzer tests.
Lastly, if you cannot beat the DUI charges, your lawyer may plead the charges down to a wet reckless charge. If you plead guilty to wet reckless or another lower offense, the sentence enhancement statute will not apply.
You Could Be Charged With Other Crimes for Drunk Driving with a Minor in the Vehicle
In addition to being charged with and convicted of DUI, you could also face other criminal charges if you have a child in the car while driving under the influence. The criminal penalties for a conviction of a related charge would be in addition to the DUI penalties.
Three common offenses related to DUI with a minor child in the car are:
- Child Endangerment charges under PC §273a
- Excessive Speed and Reckless Driving under CVC §23582
- Excessive BAC or Test Refusal under CVC §23578
Child Endangerment and DUI in California
Under PC§273a, you can be guilty of child endangerment if you place a minor under the age of 18 years at risk of pain, suffering, or danger. A person may be guilty of his crime, even though the child was never harmed.
The punishment for child endangerment charges depends on the facts of the case. For example, the risk of great bodily harm or death to the child creates a wobbler offense. Therefore, you could be charged with a misdemeanor or a felony.
For a misdemeanor endangerment charge, you could serve up to one year in county jail and pay a fine of up to $1,000. You could face a fine of up to $10,000 and up to six years in a California state prison for a felony child endangerment charge.
Excessive Speed and Reckless Driving in Addition to DUI in California
California Vehicle Code §23582 VC enhances the sentence for driving under the influence by 60 days in jail whenever all of the following three conditions apply in a DUI case:
- The driver recklessly operated the vehicle;
- The driver exceeded the maximum posted speed limit by 30 miles on a freeway or 20 miles on any other street; and,
- The driver is guilty of driving under the influence, DUI of .08% or higher, or DUI causing injury.
The statute also requires drivers with enhanced sentences under this code section to addend California DUI school (a drug and/or alcohol education program).
Excessive BAC or Test Refusals and DUI in California
California Vehicle Code §23578 allows the judge to impose additional penalties in DUI cases involving excessive BAC levels or chemical test refusals. A test refusal is defined as refusing a breath test or urine test after a DUI arrest. An excessive BAC level is defined as a blood alcohol concentration of .015% or more.
The judge may impose one or more of the following penalties for a violation of this code section:
- Additional time in jail or prison
- Attendance at additional DUI classes
- Extended driver’s license suspension
- Mandatory installation of an ignition interlock system
The above penalties would be in addition to any penalties the judge ordered for the DUI offense. Depending on the facts and circumstances of a DUI case, enhanced DUI penalties and penalties for DUI-related charges could increase your incarceration time significantly. Additionally, it could be much more difficult to reinstate your driving privileges, obtain automobile insurance, and find a job when you complete your jail term.
Working with an experienced DUI defense lawyer from the beginning of your case can improve your chance of avoiding the harshest DUI sentence. The prosecution’s job is to convict you. In their eyes, you are guilty of the drunk driving charges. Make sure you have someone fighting on your side that has your best interest at heart.