Category Archives: DUI Charge

How a DUI Can Affect Immigration Status?

Most DUI offenses in California are misdemeanors. However, aggravating circumstances, a prior criminal history, and other factors could result in felony DUI charges. Under California DUI laws, a drunk driving conviction stays on your criminal record as a “priorable” offense for ten years. Felony DUI convictions always count as a priorable offense, regardless of the date of conviction.

Dealing with DUI charges can be stressful and frightening. However, if you are an illegal resident of the United States or an immigrant with a VISA, a DUI conviction could negatively affect your immigration status. 

The Department of Homeland Security can deport any non-US resident back to their home country and bar them from reentering the United States for a specific period or indefinitely. That includes non-US citizens living and working in this country legally.

Therefore, it is important to understand how a drunk driving conviction could affect your immigration status or result in deportation. 

Foreign Citizen DUI Cases in California 

If law enforcement officers arrest a foreign person for driving under the influence in California, they face the same penalties that a citizen faces for a conviction on the criminal charges. For example, aggravating factors can result in enhanced sentences for criminal convictions of DUI. 

However, undocumented immigrants, permanent residents, and anyone who is not a U.S. citizen must deal with the added complication of what a drunk driving conviction does to the immigration status. 

Are you are a foreign national charged with driving under the influence in California? If so, it is crucial for you to seek advice from an immigration attorney and a California DUI defense lawyer as soon as possible. Potential consequences that you could face include:

Deportation for Undocumented Immigrants 

If you are in the United States illegally, a DUI arrest can lead to deportation. It does not matter whether you are guilty of driving under the influence. You will likely undergo immigration proceedings and deportation, regardless of your guilt or innocence.

ICE (Immigration and Customs Enforcement) may become aware of your arrest for driving under the influence through the DHS Secure Communities Program. If ICE realizes that a California law enforcement agency has custody of you, it could issue an immigration hold.

In some cases, the police officers making the DUI arrest may become aware that you are in the country illegally. If so, they could inform ICE of your arrest. Having a fake driver’s license or documentation does not fool law enforcement officers for very long. 

If ICE officials do not discover you after a DUI arrest, you might not want to fight the DUI charges for fear of being discovered. However, having a criminal record could put you higher on the ICE radar. Talk to a California DUI defense lawyer about potential DUI defenses that could prevent you from having a criminal record. 

Your Visa May Be Revoked for a DUI Arrest in California 

If you are in the United States legally, you could still face deportation for a DUI arrest. The United States Department of State could revoke your visa for being arrested for drunk driving. 

The revocation of your visa could occur before you have a chance to defend yourself against the DUI charges. It is essential to understand that the DOS can revoke your visa merely on the grounds you were arrested for drunk driving. It does not need to wait until you are found guilty of DUI charges to revoke your visa. 

The process may be quick because law enforcement agencies share information about arrest records and bench warrants. You could receive the notice of visa revocation shortly after being arrested for driving under the influence. The notice may come before our DMV administrative hearing or DUI pre-trial hearing. 

Visa revocations could impact all visa holders and their dependents, including students, highly skilled workers, and visitors. Once the government revokes your visa, you cannot reenter the United States. If you remain in the country, you are doing so illegally.

You must appear before the US consular officer to re-establish your eligibility for a visa. There are no guarantees that you will be granted another visa to reenter the United States after the government revokes your visa for a DUI arrest or conviction. 

Deportation for Being Charged with DUI with Aggravating Factors

Green card holders (permanent residents) and other legal non-citizens generally do not need to worry about being deported if they are charged with or convicted of driving under the influence. Traditionally, a DUI conviction was not grounds for deportation for these individuals. 

The United States Supreme Court ruled that driving under the influence was not a violent crime, so it was not an aggravated felony. Aggravated felonies are generally grounds for deportation. However, there are exceptions.

If you are arrested for driving under the influence with aggravated circumstances, you could face deportation or problems with your immigration status. In addition, if you leave the country, you could be barred from reentering.

Examples of aggravating factors that could increase a DUI to a deportable offense for some legal aliens include:

  • Having a child in the vehicle, resulting in child endangerment charges
  • Being arrested for drunk driving while driving on a suspended driver’s license
  • Having multiple DUI offenses or being listed as a habitual traffic offender 
  • Being arrested for drunk driving after committing other crimes
  • Driving under the influence of a controlled substance
  • Causing injury or death because of a DUI accident

In addition to worrying about being deported, a person with a green card must also worry whether a DUI can prevent them from becoming a US citizen. There is a test of good moral character during the examination process for citizenship. 

A crime involving moral turpitude within five years of the citizenship application could complicate the matter. Some of the aggravating factors associated with drunk driving could be interpreted as a crime of moral turpitude. 

Fighting a DUI can prevent a criminal record, making passing the good moral character test easier. Therefore, if you intend to apply for citizenship, it is vital that you seek legal advice from your immigration lawyer and a skilled California DUI defense lawyer. 

What Should I Do if I Am Arrested for DUI in California, and I Am Not an Untied States Citizen?

Seek legal advice from a California DUI attorney and immigration lawyer immediately. Each DUI case involving a no-citizen is unique. Therefore, the circumstances of your DUI case combined with the unique circumstances of your immigration status mean that each case must be evaluated individually.

Even though some individuals could be deported merely by being arrested for DUI, it does not mean you should not prepare to fight DUI charges aggressively. 

You are innocent until proven guilty. The prosecutor has the burden of proving beyond a reasonable doubt that the charges against you are true. That level of proof is a high standard in a criminal court proceeding.

There are many ways to beat DUI charges in California. Numerous defense strategies attack drunk driving charges from various positions. An experienced California DUI attorney investigates the circumstances surrounding the DUI stop and the arrest for driving under the influence. 

The attorney’s investigation may lead to flaws regarding procedure or evidence in the case. Those flaws may give rise to one or more DUI defenses.

Potential DUI Defenses That Could Result in Dismissal or Reduced Charges

Some of the most common DUI defenses that can result in a DUI dismissal or reduction of charges include:

Problems with Chemical Tests for BAC Levels

Breathalyzer tests measure the amount of blood alcohol on your breath. However, those results could be inaccurate for many reasons. Common causes of inaccurate breathalyzer results include, but are not limited to:

  • Differences in a person’s individual partition ratio
  • Malfunctioning equipment
  • Incorrect calibration of the equipment
  • Lack of maintenance or property training
  • Certain medical conditions, including diabetes, GERD, hiatal hernia, and acid reflux
  • Ketosis from low-carb diets
  • Mouth alcohol because of dentures, using breath spray, burping, using an asthma inhaler, etc.

Blood and urine tests may also be incorrect and flawed. For example, fermented blood can cause BAC results to be inaccurate. Incorrectly handling the samples can cause contamination. Improper storage of samples can also result in inaccurate results. 

Your DUI defense lawyer may attack the results of a chemical test to have your charges dismissed or reduced.

Lack of Probable Cause for a DUI Stop or Arrest

Police officers must have probable cause or reasonable suspicion to make a DUI stop or arrest. Your attorney may file a motion to suppress evidence because of an illegal search. A lack of probable cause could result in the DUI charges being dismissed.

Rising Blood Alcohol Levels

The alcohol in your system continues to increase for some time after you consume your last alcoholic beverage. Depending on the person, it could take up to three hours after consuming alcohol for the body to absorb the alcohol fully. 

If the police officer waits too long to perform a chemical test, your BAC could be much higher than it was at the time of your arrest. 

In some cases, you might have had a BAC level below the legal limit when the police officer stopped you for suspicion of drunk driving. So instead of being impaired by alcohol, you might have just been distracted or be a poor driver. 

Health Conditions That Mimic Intoxication 

Some medical conditions can make someone appear intoxicated when they have not had any alcohol to drink. For example, a diabetic sugar low can cause slurred speech, trouble walking, and inability to follow instructions. Brain damage and epilepsy could cause someone to appear drunk. 

Allergies could cause red or blurry eyes. Slurred speech may also be caused by fatigue and drowsiness from working a double shift. Alcohol on your breath may be from using an OTC medication or cough drops. 

Explore All Potential DUI Defenses with a California DUI Defense Lawyer

The above DUI defenses are just a few of the defense strategies that a lawyer might use to defend you against DUI charges. However, many more potential defenses could apply in your case. Explore all of the ways you could beat DUI charges in California by meeting with an attorney as soon as possible after a drunk driving arrest.

A prosecutor or police officer will not tell you that the evidence against you is weak. They will not tell you that you have one or more defenses what could result in the court dismissing the DUI charges. Only a skilled DUI attorney can do that for you.

How to Get a Revoked Driver’s License Back in California

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. 

Criminal Convictions

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.

Racial Profiling and Your DUI – What You Should Know

Racism is still prevalent in traffic stops throughout California. Law enforcement officers continue to pull over more Black individuals without probable cause than White individuals. 

According to the annual report by the Racial and Identity Profiling Advisory Board, in 13.1 percent of the traffic stops of Black individuals in 2020, the police reported “no action taken.” That indicates the person Black person was not engaged in criminal activities. That rate is 2.3 times higher than the rage of White individuals. 

Additionally, law enforcement officers searched Black individuals at a rate of 2.4 times that of White individuals. Use of force against African Americans during a traffic stop occurred 2.5 times more than the use of force against White individuals. 

Sadly, racially motivated traffic stops continue in California Racial profiling by police officers for traffic stops violates the United States Constitution and California law. 

What is Racial Profiling?

Racial profiling is the discriminatory practice by police officers of targeting people for suspicion of committing a crime because of the person’s race, national origin, ethnicity, or religion. Racial profiling assumes that a person is more likely to commit a crime because of their ethnicity or skin color.

Victims of racial profiling in California are more likely to be subjected to unfounded traffic stops and car searches based on race instead of a reasonable suspicion of a crime. Examples of racial profiling on the street include DUI stops, DUI checkpoints, and general traffic stops.

Racial profiling in California often involves African Americans and Hispanic individuals. However, people from the Middle East and Asia are also victims of racial profiling by law enforcement agents. 

California Penal Code §13519.4 – Racial Profiling

California Penal Code §13519.4 prohibits law enforcement officers from engaging in racial or identity profiling.” What does that mean?

The legislature included the statement in the code section that states racial or identity profiling presents a danger to the “fundamental principles of our Constitution and a democratic society.” The practice “is abhorrent and cannot be tolerated.” Racial profiling is used for stopping and detaining individuals has no place in our criminal justice system. 

Defining Racial or Identity Profiling for the Purposes of Traffic Stops

Police departments have a duty to educate officers to reduce the instances of racial profiling in traffic stops. Racial profiling is a threat to public safety for all citizens. 

California Penal Code §13519.4 defines racial or identity profiling as the consideration or reliance on any of the following qualities to any degree when deciding which persons to stop:

  • Race
  • Color 
  • National original
  • Ethnicity
  • Religion
  • Age
  • Sexual orientation
  • Gender identity or expression
  • Mental or physical disability

An officer may consider and rely upon a description of a suspect that includes the above characteristics when they are actively searching for a suspect. However, the code section lists the activities a police officer cannot take based on racial profiling. 

Activities Prohibited if They Are Based Solely on a  Person’s Race or Identity 

The statute lists specific activities that a police officer cannot take if they base their decision solely on a person’s race or identity. Under Penal Code §13519.4, racial profiling is prohibited in the following activities:

  • Traffic stops or pedestrian stops 
  • Frisks
  • Actions during a stop, including asking questions
  • Seizing any property
  • Consensual and non-consensual search of a person or property
  • Issuing citations
  • Removing people from a vehicle during a traffic stop
  • Making an arrest

If a police officer makes a DUI stop solely based on your race, the traffic stop is illegal because of racial discrimination and a violation of your civil liberties. A judge could dismiss your DUI case if a police officer pulled you over for no other reason than you were a Black man or woman.

DUI Enforcement and Racial Bias – How Does it Impact DUI Stops and Arrests?

Studies indicate that racial bias may significantly impact DUI enforcement efforts. For example, according to one analysis of DUI cases in California, Latino/Hispanic men were convicted of driving under the influence at higher rates than White men, related to the estimated rates of alcohol-impaired driving for each specific group. The suggestion is that racial bias plays a role in White men having lower chances of conviction than Latino/Hispanic men committing the same offenses.

Black, Latino, and Hispanic men have many more arrests, convictions, and incarcerations than men of other races or ethnicities, including DUI convictions. Generally, African American drivers are stopped and searched more often than White drivers. As a result, they are over-represented in the number of DUI convictions compared to their portion of the population. 

The study’s authors conclude that addressing the differences in DUI convictions based on race is crucial. A DUI conviction can have long-term negative impacts on a person’s housing, employment, voting rights, education, and other critical aspects of life. 

California’s Drunk Driving Statute 

If police officers pull you over for suspicion of driving under the influence, you could be charged under California Vehicle Code §23152. The officers may charge you with driving under the influence of alcohol or driving with a blood alcohol content of .08% or higher. 

The penalties for a first time DUI conviction can include jail time, fines, suspended driving privileges, summary probation, DUI school, and other penalties. In addition, your criminal record and the circumstances of the DUI arrest can enhance the penalties for a drunk driving conviction. 

What Should I Do if I Am Stopped for DUI Because of Racial Profiling?

Do not resist arrest or argue racial profiling with the police officer. You could escalate the situation, placing yourself and others in danger. Instead, act respectfully when answering the police officer’s questions about your identity and address.

You do not have to answer other questions, such as have you been drinking and where were you earlier. You may calmly and politely tell the police officer you do not want to answer questions without a California criminal defense attorney. 

You are not required to take the field sobriety tests or the preliminary alcohol screening (PAS). You are not penalized for refusing these tests during a DUI stop. 

However, you could face enhanced penalties for a DUI conviction if you refuse the evidentiary chemical test after your arrest. The California Department of Motor Vehicles also suspends your driving privileges.

As soon as possible, contact a California DUI defense lawyer to discuss your case. An attorney analyzes the circumstances surrounding the DUI stop to determine if your civil rights were violated. 

Proving Racial Profiling in a California DUI Case 

It could be challenging to prove that the police officer stopped you because of racial profiling. However, a skilled DUI defense lawyer may be able to argue successfully that you were targeted because of racial profiling. You would not have been arrested for DUI but for the illegal and discriminatory racial profiling by law enforcement officers. 

Therefore, the police officers violated your Fourth Amendment protections against illegal searches and seizures. The police officers also violated your Fourteenth Amendment right to equal protection under the law. 

Your attorney may request the police officer’s record to search for other instances of racial profiling. Building a pattern of racial profiling can strengthen your racial profiling defense. 

A California DUI lawyer also explores other DUI defenses as they gather evidence, interview witnesses, search for video of the DUI stop and arrest, and build a defense strategy for the drunk driving charges. 

Filing a Motion to Suppress Evidence Because of Racial Profiling

If you can prove that you were stopped because of your race, it could invalidate the charges of driving under the influence. Police officers must have reasonable suspicion that a crime was committed or someone is in danger to initiate a traffic stop. If the officers make a traffic stop for an illegal reason, their motives impact the entire criminal case.

Had they not made the traffic stop, they would not have gathered evidence that you were driving under the influence. Because the police officers broke the law, the evidence should not be allowed in your case.

If there is evidence of racial profiling, your attorney can file a motion to suppress the evidence. Your attorney argues that any evidence obtained because of illegal means is inadmissible in court. If the judge agrees, none of the evidence the police gathered after they made the illegal traffic stop could be used against you.

Without the evidence, the prosecution does not have a case. The prosecutor may drop the case, or the judge could grant a motion to dismiss for lack of evidence. If you sustained any damages because of the illegal DUI stop, you could sue the state for damages in civil court.

Protecting Your Best Interest by Negotiating a Plea Agreement 

If a racial profiling or other DUI defense strategy does not work, you may want to consider whether you want to proceed to trial or negotiate a plea agreement. When the state’s evidence against you is convincing, going to trial can be risky. So instead, your CA DUI lawyer works to negotiate the best plea deal possible for your case.

Your attorney may be able to convince the prosecutor to reduce the charges and decrease the penalties. If so, that might be the best choice you have to protect your future. A DUI conviction can follow you for many years. 

Before pleading guilty, talk with a DUI defense attorney. Learn about all your options for fighting drunk driving charges, including raising allegations of racial profiling.

Victims of racial profiling should be heard in court. They deserve justice for the wrongs committed by police officers. The first step in righting wrongs is seeking legal advice from an experienced criminal defense lawyer. 

What are Sentence Enhancements and How Can They Affect My California DUI Case?

The DUI penalties for a conviction of driving under the influence in California can be severe. Even a first-time DUI misdemeanor could carry jail time for a DUI conviction. Sentence enhancements could result in the penalties for a first-time DUI conviction being as harsh as the penalties for felony drunk driving.

What Are Sentence Enhancements?

A sentence enhancement is an additional punishment for a conviction of driving under the influence. The courts add the additional punishment to the penalties usually ordered for a DUI conviction. 

The sentence enhancements could result in:

  • More days in jail or a prison sentence
  • A longer period for driver’s license suspension or revocation
  • Mandatory installation of ignition interlock devices
  • Higher fines, assessments, and fees
  • Longer time spent in DUI school or a drug/alcohol treatment program
  • Mandatory restitution payments to victims
  • Vehicle impoundment for longer periods
  • Longer terms of DUI probation (summary probation)
  • Extended periods of community service
  • Enhanced conditions of probation 
  • Determining whether a person can receive probation or must serve time in jail

One of the worst results of sentence enhancements is the additional criminal charges you could face. If the police charge you with additional crimes associated with driving under the influence, those offenses are sentenced separately from the drunk driving charge. Therefore, you could receive multiple criminal sentences that could add up to 10, 20, or more years in prison and thousands of dollars in fines, assessments, and restitution.

What is Considered Driving Under the Influence in California?

Drunk driving can be charged under one of two sections in California Vehicle Code §23152. Therefore, you could be charged with both offenses.

The first DUI offense is operating a motor vehicle under the influence of alcohol. It does not state that you have to have a blood alcohol level above the legal limit. It only prohibits people from driving under the influence of alcohol. 

The second charge is driving a motor vehicle with a BAC of .08% or higher. You are presumed to be unable to operate a motor vehicle safely if your BAC is above the legal limit. 

Another part of code section 23152 makes it illegal to drive under the influence of drugs. As a result, the police could charge you with driving under the influence of both alcohol and drugs.

What Are Common Sentence Enhancements for California DUI Cases?

The circumstances of your DUI arrest could result in enhanced penalties. Aggravating circumstances that often result in harsher punishments for drunk driving include:

Prior DUI Convictions on Your Record

DUI convictions are priorable offenses. That means every DUI conviction you have within the past ten years counts toward your current drunk driving conviction. If the DUI is a felony offense, it does not matter how old the conviction is on your record. Felony DUI convictions always count against you.

Generally, the penalties for a first-time DUI conviction without aggravating circumstances are:

  • Up to six months in county jail (usually no time with a clean criminal record and driving record)
  • Fines between $390 and $1,000
  • Summary probation from three to five years
  •  A three or nine-month alcohol/drug education program
  • Six to ten months suspended driving privileges that generally can be converted to a restricted driver’s license or drive without restrictions by installing an ignition interlock device (IID)

However, if you have prior DUI convictions on your driving record, the penalties for another drunk driving offense increase. You face additional time in jail, higher fines, longer driver’s license suspension, mandatory DUI school, and longer periods of summary probation. In addition, the judge could impose additional penalties at his discretion. 

Excessive Speeding and Reckless Driving While Under the Influence

California Vehicle Code §23582 enhances the sentence for a DUI conviction if the person was speeding and recklessly driving while under the influence. The sentence enhancement applies if the driver was:

  • Convicted of driving under the influence, a BAC of .08% or higher, or DUI causing injury; AND,
  • The driver exceeded the speed limit by 30 mph on the freeway or 20 mph on other streets; AND,
  • Drove in a reckless manner.

A driver who was speeding and driving recklessly must attend DUI school (i.e., drug and/or alcohol education program). Additionally, the person faces 60 days more in jail for reckless driving and speeding while intoxicated. 

Even if the court grants probation on the DUI charge, you still must serve the 60 days in jail for the enhancement. Also, if this is the first DUI conviction, you must complete DUI school.

Causing Collision, Injury, or Death While Driving Under the Influence 

If you cause a collision while driving under the influence, the court or prosecutor may want community service or community labor as a probationary term. Another probationary term will be to compensate the victim for any economic losses.

When you cause injury to another person, you can be charged under Vehicle code 23153- DUI Causing Injury. This can be a misdemeanor or felony depending on the facts of the case.

Furthermore, the police officers or prosecutor could charge you with other crimes related to the DUI accident. For example, you could be charged with vehicular manslaughter while intoxicated if the DUI accident results in the death of another person. In addition, you could be charged with felony hit and run if you leave the accident scene. 

Having a High Blood Alcohol Content Level

The legal limit for drunk driving charges nationwide is .08%. Therefore, if your BAC is .08% or above, the law presumes that the alcohol in your system impairs your driving abilities. However, California Vehicle Code §23578 allows judges to impose enhanced penalties when a person is arrested with a BAC level of .15% or higher. 

Refusing to Take a Chemical Test after a DUI Arrest

California’s implied consent law requires drivers to submit to chemical testing for BAC levels after being arrested on drunk driving charges. CVC §23578 also states that judges may impose enhanced sentences if a person refuses to take a chemical breath or urine test after a DUI arrest.

You can refuse a preliminary alcohol screening (PAS) test without penalty. A PAS is a roadside breathalyzer test. However, refusing an evidentiary chemical test (post-DUI arrest BAC test) can result in enhanced penalties for a DUI conviction and other punishments. 

Under this code section, the law states that the court “shall consider” a test refusal or excess BAC as factors which “may justify” an enhanced sentence. Therefore, it is in the judge’s discretion whether or not to increase the penalties for these two aggravating circumstances. 

Drunk Driving with a Child Under 14 Years of Age in the Vehicle 

Driving with a child in the car can result in enhanced penalties under California Vehicle Code §23572. The penalties under this code section are mandatory. Therefore, if the state proves you were driving under the influence with a child under 14 years of age in the vehicle, you will be sentenced to the harsher punishment. 

In addition to the penalties for driving under the influence, you face additional jail time added to your sentence:

  • 48 hours for a DUI first offense
  • 10 days for a DUI second offense
  • 30 days for a DUI third offense
  • 90 days for a DUI fourth offense

Furthermore, you could also face child endangerment charges for having a minor in the vehicle while intoxicated. Child endangerment is a wobbler offense. Therefore, you could face a misdemeanor or felony charge.

For a misdemeanor charge, you might serve up to one year in jail and pay a $1,000 fine. A felony charge increases your fine up to $190,000 with up to six years in state prison.

Underage Drinking and Driving

California has two DUI laws that specifically target underage drivers who consume alcohol and drive:

  • Underage Driving with BAC of .05% or higher (CVC §23140)
  • California’s Zero Tolerance Law for Underage Drivers (CVC §23136)

They may also be charged with either of the above charges, which carry separate penalties for a conviction. Underage drivers charged with DUI face significant sentence enhancements. The Zero Tolerance Law is a civil charge that carries a mandatory one-year driver’s license suspension for a first offense. 

Furthermore, anyone under the age of 21 years is presumed to give consent to a PAS test (roadside breathalyzer) when police officers detain them for suspected drunk driving. Also, an underage driver could be charged with any DUI offenses that apply to all drivers. Therefore, a drunk underage driver could face substantial sentence enhancements, depending on the circumstances of the arrest and the charges.

Should I Contact a California DUI Defense Attorney?

Most DUI attorneys in California offer free consultations. Therefore, it does not cost you anything to talk with a California DUI lawyer. DUI convictions can have long-term consequences on many aspects of your life. Instead of pleading guilty to a DUI offense, talk with a criminal defense attorney about options for fighting DUI charges.

DUI sentence enhancements can be severe. Don’t let a prosecutor push you into accepting a plea deal that is not good for you. Instead, make sure you understand your legal rights from a trusted advocate for people charged with crimes in California.

What Happens at a DUI Pretrial?

After an arrest for driving under the influence in California, your DUI case begins to wind through the criminal courts. The pre-trial phase of DUI cases generally lasts the longest of all phases. Your California DUI defense lawyer investigates the DUI charges against you during the pre-trial phase of your case. 

A DUI investigation may include several phases, such as:

  • Searching for videos of the DUI stop and DUI arrest from dashcams, police officer body cams, traffic cameras, and nearby surveillance cameras
  • Interviewing witnesses and taking statements from anyone involved in the case
  • Subpoenaing records from the blood alcohol tests performed after your DUI arrest
  • Obtaining copies of police reports to analyze the contents of the reports and information gathered by police officers 
  • Consulting expert witnesses, when necessary, concerning potential defenses to BAC results

The evidence gathered during the DUI pre-trial phase shapes the DUI defense strategy developed by your CA DUI attorney. 

Court Schedules Pre-Trial Conferences and a Pre-Trial Hearing

As the case continues toward a jury trial or a bench trial, the judge assigned to the case may schedule one or more pretrial conferences and pre-trial hearings. Judges use pre-trial conferences to determine the status of the case and discourage parties from wasting time during the pre-trial phase. In addition, the judge may use a pre-trial conference to expedite the disposition of the case.

Defense lawyers and prosecutors may file one or more motions with the court during the pre-trial phase. These pre-trial motions may deal with various issues related to the case. The court schedules pre-trial hearings for the judge to hear each side’s argument to make a ruling in the case. 

All parties generally attend a pre-trial hearing, including the defendant. The primary purpose of the hearing is to dispose of the matter in question and advance the case to trial or other disposition. Pre-trial hearings are not used to determine a defendant’s innocence or guilt. These hearings center on questions of law that the judge needs to decide before a trial begins.

Examples of pre-trial motions include, but are not limited to:

Motion to Suppress 

If law enforcement officers or the prosecution obtained any evidence through illegal means, that evidence might be inadmissible at your trial. A motion to suppress evidence requests that the court review specific evidence to determine if it can be used at trial. 

If the judge determines the evidence was illegally obtained or unjustly prejudices you, the judge can throw out the evidence. When evidence is inadmissible, the prosecution cannot introduce it in court. In other words, the jury never hears the evidence. 

Therefore, the prosecution may not have sufficient evidence to convict you of the DUI charges. Winning a motion to suppress evidence at a pre-trial hearing may mean that the state drops the charges against you. 

Probable Cause Hearing

Probable cause is required under the Fourth Amendment to the United States Constitution. Police officers must have probable cause to initiate a DUI stop or make a DUI arrest. Lack of probable cause could result in the charges being dismissed.

Generally, a police officer must have a reasonable suspicion that a person is committing a crime or a crime has taken place to pull over a motorist. In other words, the police officer must have a reason for pulling over the driver to initiate a traffic stop. For example, the person was speeding or failed to use a turn signal.

Your attorney may attack probable cause in several ways. First, your attorney could argue that the police officer arrested you even though you passed all the field sobriety tests and did not show any signs of intoxication. He could argue that you were obeying the traffic laws and were not driving erratically when the police officer stopped you.

Pitchess Hearing 

A Pitchess motion allows your attorney to learn more about the arresting officer’s history on the job by inspecting the officer’s personnel file. Information obtained about prior acts of police misconduct could be used in your case to support allegations of wrongdoing. 

For example, your attorney may suspect that the police officer used excessive force or filed a false police report. Other information that could be useful includes records showing that the officer racially profiles suspects or falsified evidence. 

Motion to Dismiss

There may be grounds to dismiss the DUI charges. If so, your lawyer files a motion to dismiss. The judge hearings the evidence presented by your lawyer and the prosecution’s arguments. After considering the matter, the judge could dismiss your DUI case or order that the case proceeds to trial.

What Happens After the Court Finishes All Pre-Trial Hearings?

The prosecution may offer you a plea bargain before your trial begins. If you plead guilty to the DUI charges, the prosecution agrees to a reduced charge and/or less harsh penalties. Before accepting a plea bargain, you should consider several important factors:

  • You could get a reduced sentence that might not include jail time and other penalties that could cause you to miss work, such as community service and DUI school
  • You might avoid a priorable offense if the prosecutor is willing to reduce the DUI charges to dry reckless or a speed ex
  • You could avoid a mandatory ignition interlock device (IID) which can be costly and embarrassing
  • You avoid the stigma of going to court for a DUI trial 
  • You might avoid the severe impacts a DUI conviction causes on car insurance rates
  • Pleading down the charges could have less of an impact on professional licenses
  • You might avoid losing your driving privileges or shorten the period of a suspended driver’s license
  • The fees, fines, and assessments may be much lower if you accept a plea agreement
  • Accepting a plea agreement takes away the uncertainty of a trial and the risk the judge could impose harsher penalties for a DUI conviction 

However, you also need to consider that a plea agreement could still result in significant penalties and a priorable offense on your driving record. The facts and circumstances of your case dictate whether a plea agreement is the best option for dealing with a drunk driving charge. Your California DUI defense attorney can help you evaluate the pros and cons to make the best decision for your situation. 

Going to Trial on DUI Charges in California 

If the court does not dismiss the DUI case during pre-trial motions and you do not accept a plea deal, your case proceeds to trial. Both sides present evidence to the jury. The judge explains the law to the jury members, and the jury members return with a verdict.

Your CA DUI attorney may present one or more defenses to the drunk driving charges. Potential DUI defenses include, but are not limited to:

  • Attacking the results of the BAC test results as inadequate because the machines were defective, inadequately maintained, or incorrectly calibrated
  • Alleging that the police officers failed to administer the field sobriety tests correctly or mishandled the chemical test samples
  • The lab performed the blood test with fermented blood
  • Health conditions or illnesses caused DUI breath test errors, such as GERD, acid reflux, diabetes, etc.
  • A high-protein diet resulted in falsely high BAC levels
  • Your blood alcohol continued to rise after your DUI arrest, which resulted in a high BAC level that was not present when the police officers stopped you for suspected driving under the influence
  • Title 17 violations related to the requirements for collecting, storing, and analyzing samples for chemical tests
  • You have physical impairments or medical conditions that can cause you to appear intoxicated, such as allergies (red/watery eyes), diabetes (slurred speech from a sugar low), epilepsy, brain damage, etc.
  • The officers based their probable cause for an arrest on non-standardized field sobriety tests 
  • Environmental conditions caused inaccurate field sobriety test results 
  • Your BAC was not over the legal limit, and the prosecution failed to prove your driving abilities were impaired by the amount of alcohol in your system
  • The DUI checkpoint did not comply with current laws regulating police-organized drunk driving checkpoints
  • You were not driving the vehicle at the time of the DUI stop 

The defense strategy used at a California DUI trial depends on the facts and circumstances of the case. Being honest with your attorney is crucial. The more facts your attorney knows about what happened before, during, and after the DUI arrest can help your lawyer build a better defense for trial. It is not wise to talk with the police after a DUI arrest. You cannot talk your way out of a drunk driving charge. Anything you say can be used as evidence in your DUI trial. 

Instead, it is best to remain silent except for asking for a criminal defense attorney. A California DUI defense lawyer explains your options for plea bargaining or going to court. The best way to protect your legal rights is to have an experienced DUI attorney handling your case. Most DUI law firms offer free consultations.