Category Archives: DUI Charge

California DUI Defense Can I Get My California DUI Expunged?

Under California Penal Code §1203. 4 PC, some individuals can have their criminal conviction expunged from their record. That means that the court wipes out a guilty verdict or guilty plea. Instead, a plea of “Not Guilty” is entered, and the case is dismissed.

In other words, an expunged criminal conviction is set aside as if you were never judged guilty or pled guilty. That is what is meant by “cleaning” your criminal record.

However, the arrest is not erased. Expungement implies that the entire criminal matter is erased from your record. A better term for a California expungement might be “dismissed.” 

The arrest remains on your record, but anyone reviewing your criminal history would only see that you were arrested. After your arrest, the case was dismissed without a guilty verdict.

Not all criminal convictions are eligible for expungement. The good news is that most driving under the influence convictions in California meets the requirements for an expungement.

Who Can Receive a California DUI Expungement?

Individuals convicted of misdemeanors and felonies may be eligible for an expungement in California if they meet the following requirements:

  • Your conviction occurred in state court
  • You were not sentenced to serve time in state prison 
  • You completed probation, or it has been one year since your conviction if you were not ordered to serve probation
  • You met all other sentenced requirements, such as treatment programs, community service, fines, restitution, etc.
  • You did not violate any of the terms of probation
  • You are not currently on probation, serving time for another offense, or charged with another criminal offense

Most of the DUI convictions in California meet the above requirements for a DUI expungement. However, you may want to consult with a California DUI defense lawyer to verify that your drunk driving charge is eligible for expungement.

How Does DUI Expungement Work in California?

You must complete probation and all conditions required by probation before you apply for DUI expungement. General terms for DUI probation in California include:

  • Fines
  • Driver’s license suspension
  • Alcohol program (DUI school)
  • Time in county jail
  • Three to five years of summary probation
  • Agreement to submit to DUI breath test or DUI blood test if arrested for driving under the influence
  • Zero-tolerance for driving with alcohol in your system
  • No criminal offenses during probation

There could be other conditions for DUI probation based on the drunk driving offense and the facts of the case. However, regardless of the terms of probation, you must complete probation successfully to be eligible for an expungement of a drunk driving charge.

After completing probation, you file a petition for expungement with the court. 

Can I Receive a DUI Expungement Earlier?

Because summary or formal probation for a DUI conviction lasts between three to five years, a person could wait a long time to clear a DUI conviction from their criminal record. However, you may be able to have probation terminated early, which would allow you to petition the court for a DUI expungement.

Some individuals could qualify for early probation termination as soon as 18 months after conviction. However, the following circumstances must apply:

  • The person has completed the terms of probation successfully AND
  • Some circumstances justify granting an early termination of probation.

Situations that might qualify as circumstances to justify early probation termination include traveling for work, caring for minor children or sick family members, obtaining a job, or obtaining higher education or training for advancement at work.

The judge has the sole discretion to grant early termination from DUI probation if the person meets the above requirements. However, many judges hesitate to grant early termination of DUI probation. 

One reason could be the zero-tolerance requirement for driving with alcohol in the person’s system. Other judges may hesitate to grant a petition for early termination when specific facts are present in the case, or the person has a subsequent drunk driving or drugged driving offense in their past.

Do I Get My Driver’s License Back if My DUI is Expunged?

For most people, probation generally lasts longer than a suspended driver’s license. However, if you complete your probation before your driver’s license is restored, a DUI expungement will not overturn a driver’s license revocation or suspension. Expungements do not restore driving privileges.

However, there are other benefits of receiving a DUI expungement. For example, you are not legally required to disclose an expunged conviction when applying for a job. 

California’s “ban the box” law prohibits employers from asking about a person’s criminal history before making a conditional employment offer. The employer cannot turn down the applicant for employment because of a conviction revealed after making a conditional employment offer until it completes an individualized assessment. 

However, you would not need to disclose an expunged DUI conviction at all. Expunged DUIs cannot be used to make employment decisions, including hiring or promoting an employee. 

There is an exception for teaching credentials and state licenses. When applying for these licenses, you must disclose all convictions, including expunged DUI convictions. State licensing boards are permitted to use an expunged DUI case when making decisions regarding your license or employment.

Even if you are required to disclose an expunged conviction, an employer may look more favorably at a dismissed DUI case instead of a guilty verdict.

How Does an Expunged DUI Impact Future DUI Arrests?

Even though your DUI conviction was expunged, it can significantly affect penalties for future drunk driving convictions. Drunk driving in California is a “priorable” offense. That means that the DUI penalties increase for each subsequent DUI conviction. 

The increase in penalties applies to convictions within ten years. Therefore, if you are found guilty of drunk driving within ten years of a DUI conviction that was expunged, you can still face harsher penalties, just as if your drunk driving conviction was never expunged.

What Should You Expect After a California DUI Arrest?

If you are arrested for drunk driving, you have two different cases. The Department of Motor Vehicles handles one case, and the other case is your criminal case handled by the Superior Court.

APS Hearing with the DMV

Call the DMV immediately after a DUI arrest regarding your DMV Administrative Per Se (APS) case. You have just ten days from your arrest to request an APS hearing. If you do not request a hearing within those ten days, your driver’s license is automatically suspended. 

Your “pink temporary license” given to you by the police officer is only good for 30 days from the arrest date. After that, if you request an APS hearing, the DMV issues a new temporary license effective when the pink temporary license expires. 

The DMV schedules a hearing to determine whether to suspend your driver’s license. Many people decide to represent themselves at the APS hearing. Unfortunately, they discover too late that representing themselves was a poor decision.

An experienced drunk driving defense lawyer may be able to present one or more defenses that could help you avoid losing your driving privileges. In addition, the attorney may have the chance to cross-examine the arresting officer and review evidence. These steps could help with your APS hearing and your criminal case.

If you have trouble contacting the DMV about an APS hearing, you might want to call a California DUI defense attorney immediately for help. 

Criminal Proceeds for a California DUI Charge

You may also agree to a plea deal with the prosecutor, seek and agree to a court offer,  or proceed to trial. 

The best way to know what to do is to talk with a lawyer. A lawyer evaluates your case to determine how strong the evidence is against you and what your best options are for defending the charges or avoiding the harshest penalties for a DUI conviction. 

Remember to tell your attorney everything about your case. Do not lie or hold anything back from your lawyer. Your attorney cannot represent you effectively if he does not know everything about your case.

If possible, the goal is to keep your driver’s license and avoid a conviction. If not, the goal is to minimize the penalties you face for a DUI conviction.

 

California DUI Defense Penalties for Third-Time DUI Offenses in California

With each new DUI conviction in California, the penalties increase. DUI convictions are “priorable” offenses in California. That means if you have any prior DUI convictions, they could impact the sentence for a new drunk driving charge, even if the court expunged prior convictions for driving under the influence.

A third-time DUI offense can result in severe penalties, including jail time, fines, probation, and DUI school. In addition, you could lose your driving privileges for up to three years.

Working with a California DUI defense attorney could help you avoid some of the most severe penalties for a third-DUI conviction. Let’s look at some of the most frequently asked questions about third-time DUI charges in California. 

Is a Third DUI Offense a Felony or a Misdemeanor?

In most cases, a DUI third offense is charged as a misdemeanor. However, a third DUI offense can be charged as a felony under some circumstances. Factors that could upgrade a DUI third offense to a felony include:

  • Causing a traffic death
  • Causing severe injuries to other people
  • Having a prior DUI felony conviction on your record

It is important to note that a DUI felony charge follows you for the rest of your life. So even if your felony DUI charge was 25 years ago, a third drunk driving charge would be charged as a felony. 

The penalties for a felony DUI are much more severe. For example, instead of spending time in county jail, you are sentenced to state jail, which could prevent you from receiving a DUI expungement. 

In addition to longer jail time, higher fines, and harsher penalties, a felony conviction impacts your rights. For example, your right to own or possess a firearm is revoked entirely in California. 

What Are the Penalties for a Third DUI Conviction in California?

The penalties for a conviction of a DUI-third offense within ten years include, but are not limited to:

  • County jail sentence between 120 days and one year
  • Installation of an Ignition Interlock Device (IID) for two years
  • Informal probation from three to five years
  • DUI education program for 30 months
  • Fines and penalties between $2,500 and $3,000
  • Driver’s license suspension for three years, but you might obtain a restricted license after 18 months or could drive right away with an IID in some cases

In addition to the above penalties, you need to be aware of and follow the terms of your informal probation. 

Informal probation requires that you do not commit any crimes during the probation period. In addition, there is a zero-tolerance policy for driving with alcohol in your system. You also agree to take a chemical DUI test if you are arrested for drunk driving again. 

Furthermore, judges may order additional penalties for a third-time DUI conviction. You could be ordered to pay restitution if you caused damages while driving under the influence. Judges could order individuals to participate in drug or alcohol anonymous meetings or participate in a victim impact panel.

Are There Aggravating Circumstances That Could Increase DUI Penalties for a Third DUI?

Yes, some aggravating circumstances can result in harsher penalties for a DUI conviction. Examples of aggravating circumstances include:

  • Underage drinking and driving 
  • A blood alcohol content (BAC) of .15% or higher
  • Causing a DUI accident 
  • Driving at excessive speed
  • Refusing to take a chemical test to determine BAC
  • Child endangerment (having a child in the car under the age of 14 years

Talk to a California DUI defense attorney if you cause a DUI accident or have other aggravating circumstances. You could face felony charges or significant time in jail. In some cases, you could be charged with additional crimes. 

What Happens to My Driver’s License After Three DUIs in California?

Many people wonder if they will ever get their driver’s license back after a third DUI within ten years or after a felony DUI. If you do not want to lose your driving privileges after a DUI third offense, you would need to win your case at the Administrative Per Se (APS) hearing at the California Department of Motor Vehicles (DMV). 

However, that is just the first step. You would also need to win your criminal case to avoid license revocation. 

There is some good news. If you did not refuse a breath test or the chemical blood test following your arrest, you could continue driving if you install an Ignition Interlock Device. The device must remain in your vehicle for two years. However, if you refused a BAC test after your DUI arrest, you cannot get a restricted license or drive for three years.

Choosing to drive with a suspended driver’s license results in being classified as a habitual traffic offender by the California DMV. Instead of going this route, talk with a lawyer about possible defenses to a DUI third offense.

Are There Defenses to Drunk Driving Charges for a Third Time?

Most people want to avoid jail time. That is often their top priority. A DUI conviction could result in jail time, but a judge may allow you to serve that time on home detention. Home detention or house arrest has strict rules that you must follow, or you will serve the rest of your time in jail.

However, other penalties for a DUI third conviction can severely disrupt your life, harm your career, and make it difficult to care for your family. The best way to avoid these penalties, including jail time, is to discuss potential DUI defenses with a criminal defense lawyer.

Potential DUI defenses that might apply in your case include, but are not limited to:

  • Police officers failed to administer the Field Sobriety Tests (FSTs) incorrectly
  • You were given unreliable, non-standard roadside sobriety tests
  • The police officer lacked reasonable suspicion to pull you over for a traffic stop
  • You have a medical condition or were having a medical emergency that appeared to be intoxicated 
  • You have a medical condition such as acid reflux or GERD that could make the results of a breathalyzer test incorrect
  • There was no probable cause for arresting you on charges of driving under the influence
  • The blood or urine samples were contaminated, or the chain of custody was not maintained
  • You have dental work that caused inaccurate breathalyzer results from “pooled” alcohol in your dental work
  • The breathalyzer or other BAC equipment was defective, malfunctioning, or not calibrated correctly
  • The police officers or individuals operating the BAC equipment or taking samples made mistakes because of lack of training or negligence

If your attorney cannot have your third-time DUI charges dismissed, he may be able to convince the prosecutor to reduce the charges to a dry reckless, wet reckless, or other traffic offense that carries less severe penalties than a third DUI conviction. Also, your attorney may be able to enter a plea bargain that avoids some of the harshest penalties for DUI third.

Could I Receive a DUI Expungement for a Third DUI Conviction?

Yes, DUI third convictions are eligible for DUI expungement. However, you must complete all terms of your DUI probation successfully. Furthermore, you cannot serve time in state prison and must meet all other conditions and penalties of your sentence.

If your DUI third conviction is expunged, it will appear as a not guilty verdict – dismissed case on your criminal record. However, the arrest for the third DUI does not disappear. It can also be used against you for sentencing purposes if you are convicted of another DUI charge within ten years (indefinitely for felony DUI charges).

How Can a California DUI Defense Lawyer Help Me with a 3rd DUI Charge?

If you wonder whether you need a DUI attorney for a 3rd offense DUI charge, consider the potential consequences. Because DUI third offenses have mandatory jail terms, can you afford to be out of work from three months to a year? If you lose your driver’s license for three years, will you be able to work?

Working with an attorney could help you avoid these penalties in some cases. For example, your attorney may attack the state’s evidence to negotiate a favorable plea deal with the prosecutor. 

Prosecutors understand that private DUI defense lawyers are willing to take cases to court when they believe they can win. However, individuals representing themselves and public defendants are not as likely to take a case to trial. Therefore, prosecutors may be more willing to negotiate a more favorable plea deal with a private defense lawyer to avoid going to trial with a weak case.

Attorneys investigate your DUI stop and arrest to determine if your legal rights were violated. If the police officer violated your legal rights, the evidence gathered related to the DUI charges could be inadmissible in court. If so, your DUI third offense charge could be dismissed. 

The best way to protect your legal rights is to ensure that you receive accurate, trusted legal counsel. The police officers nor the prosecutor will tell you if there is a problem with your case. Their sole goal is to obtain a guilty verdict and put you in jail.

Are California Drivers Required to Take a Field Sobriety Test?

Law enforcement officers rely heavily on field sobriety tests (FSTs) in California to determine if a driver is impaired by alcohol or drugs during a traffic stop. The FSTs may be the only “evidence” an officer collects during a DUI investigation to justify an arrest for driving under the influence. The theory is that poor performance on field sobriety tests indicates alcohol or drug impairment. 

However, these “standardized” field sobriety tests are not perfect. Even if the conditions are ideal and the police officer administers the FSTs precisely as directed by the NHTSA guidelines, the results of field sobriety tests can be inaccurate. According to the Instructor Guide provided by the National Highway Traffic Safety Administration, the accuracy levels for the FSTs are:

  • Walk and Turn Test – 79% accurate
  • One Leg Stand Test – 83% accurate
  • Horizontal Gaze Nystagmus Test – 88% accurate

California drivers need to understand their rights regarding field sobriety tests. For example, a California driver does not have to take the field sobriety tests when stopped for suspicion of drunk driving.

California Drivers Can Refuse to Take Field Sobriety Tests

If you are pulled over for drunk driving, the police officer will ask you to take the field sobriety tests. He is looking for signs of impairment based on your performance on the FSTs. California does not impose any penalty for refusing to take field sobriety tests during a traffic stop.

As experienced DUI defense lawyers, we generally recommend that California drivers respectfully decline to take field sobriety tests for several reasons. Primarily, a sober person can fail a field sobriety test for reasons that have nothing to do with alcohol or drugs in their system. 

Unlike chemical tests (i.e., urine, blood, or breath test) that determine your blood alcohol content (BAC), the field sobriety test the officer gives you is a subjective review of “signs” that could indicate you are a drunk driver. The officer may have already made up his mind about arresting you for drunk driving. Taking the FSTs gives the police officer additional “evidence” to present to the court that justifies the DUI charges.

Failing field sobriety tests could result in one or more charges under the California Vehicle Code, including driving under the influence and DUID (driving under the influence of drugs).

To help you understand how California field sobriety tests work and how the results can be incorrect, we discuss the standardized FSTs and some non-standard field sobriety tests used by California police officers during a DUI stop.

DUI Field Sobriety Tests Used in California

As discussed above, the NHTSA has approved three field sobriety tests to be used by police officers during a roadside DUI investigation. The NHTSA considers these tests to be good indicators of a person’s impairment. 

The NHTSA bases its “validation” of these tests in part on a study by the Sand Diego Police Department. The study reported a strong connection between poor performance on these tests and alcohol or drug impairment. The tests are collectively referred to as the “standardized FSTs.” 

The Walk and Turn Test (WAT Test)

This divided attention test requires a person to simultaneously concentrate on a physical and mental task. For the test to be accurate, the police officer must give the person exact instructions for completing the test. The person must remember the instructions and complete them in order correctly.

Generally, the police officer tells the person to take nine heel-to-toe steps in a straight line (either a line on the road or an imaginary line). After completing nine heel-to-toe steps, turn around and take nine heel-to-toe steps back to the beginning point.

There are eight signs that the police officer may notate that could indicate the person is intoxicated or under the influence of drugs:

  • Starts walking too soon
  • Cannot maintain balance during the instructions
  • Fails to walk in a heel to toe fashion
  • Uses the arms to balance 
  • Takes the wrong number of steps
  • Stops while walking
  • Steps off the line
  • Fails to make the turn correctly

This FST has a 79% accuracy rating for indicating a BAC of .08 or greater because of poor performance. There could be many reasons why a person is unable to maintain balance while walking heel to toe.

The Horizontal Gaze Nystagmus Test (HGN Test)

Nystagmus is the involuntary movement or “jerking” of the eyes from side to side, up and down, or in a circle. Horizontal nystagmus describes the uncontrollable and rapid movement of the eyes from side to side. 

The HGN test given during a roadside field sobriety test involves the police officer noting the angel of the eye when it begins to “jerk” (exhibit nystagmus) as it moves side to side. The officer performs the test by moving a stimulus, such as a pen, from left to right and instructing the person to follow the object with their eyes.

Nystagmus at or before the 45-degree angle of the eye movement is associated with a high level of alcohol in the person’s system. However, the accuracy level of the HGN test is roughly 88%, according to the NHTSA. Therefore, the results of this field sobriety tests could be incorrect in at least 12% of the cases.

The One Leg Stand Test (OST Test)

This field sobriety test is another divided attention test used during a DUI traffic stop. While this test has a better accuracy rating according to the NHTSA, it still leaves a lot of room for errors.

During the OLT test, the police officer instructs the person to lift their foot about six inches off the ground. While holding that position, count from 1001 to 1030 and then look down at their foot.

Signs of impairment that the officer looks for during the test include swaying, hopping, using the arms to balance, and putting the foot down before completing the test.

Non-Standard DUI Field Sobriety Tests Used by Police Offices

In addition to the “standardized” field sobriety tests, police officers use various non-standard field sobriety tests during a DUI stop. The NHTSA has not approved or validated these tests because there is little to no evidence that poor performance on these tests indicates DUI impairment. Furthermore, the way the tests are administered can vary significantly from one law enforcement officer to another, increasing the chance that the test results are inaccurate. 

Several “signs” the officer looks for when performing these non-standard FSTs include:

  • Ability to follow instructions, including counting correctly, starting and stopping correctly, and remembering instructions 
  • Ability to balance and stand still
  • Muscle tone and body/eye tremors
  • Depth perception 
  • Uttering unusual phrases or sounds
  • Lack of muscle control
  • Ability to perform mental and physical tasks simultaneously 

Some of the non-standard field sobriety tests used by California police officers include:

Finger Count Test

The police officer instructs the person to extend their hand with the palm facing upward in front of their body. Then, touch the top of the thumb to each finger, beginning with the index finger and working their way over to the little finger. While touching each finger, the person should count from one to four aloud. Then, the process is reversed for a total of three sets. 

Finger to Nose Test

This non-standard FST is one of the most common field sobriety tests officers perform. First, a police officer instructs the person to stand with their feet together and their arms at their sides. Then, after making a fist with each hand and keeping the index finger extended, the person must tilt their head back and close their eyes. 

The officer then instructs the person to extend either the left or right arm in front of their body and use their index finger to touch their nose. If the person cannot perform the test correctly, it is thought to be a sign of intoxication because the person lacks muscle control and coordination.

Romberg Balance Test

A police officer instructs the person to stand with their feet together, and their head tilted slightly backward. Then, with their eyes closed, the person must estimate when 30 seconds have passed. Finally, when they believe 30 seconds have passed, they will tilt their head forward, open their eyes, and say stop.

Hand Pat Test

The officer instructs the person to extend either the left or right hand in front of their body with the palm facing upward. Then, place their other hand on the top of that hand with the palm facing down. 

Keeping the bottom hand in the same location, the person must use the top hand to “pat” the bottom hand while counting “one, two, one, two, etc.” In addition, the person must rotate their top hand on each of the counts so that they pat their bottom hand palm down on the “one” counts and palm up on the “two” counts.

What Can Affect the Accuracy of a DUI Field Sobriety Test?

Many things can affect the accuracy of DUI field sobriety tests. For example, there are several medical reasons why a person would exhibit signs of nystagmus, including multiple sclerosis, head injuries, certain medications, and cataracts. 

Numerous physical and mental conditions may affect the accuracy of a test. Age, weight, inner ear problems, mental disabilities, anxiety, physical pain, and illness are just a few examples of why a person could “fail” a field sobriety test when they are not impaired by alcohol or drugs. In addition, being tired, having muscle fatigue from work or exercise, and stress can negatively impact a person’s ability to perform field sobriety tests correctly.

Weather and field conditions can have a significant impact on FST results. For example, if the test is given on an uneven surface, it increases the chance the person will lose their balance. In addition, bright lights from oncoming traffic and noise can affect test results.

The police officer’s conduct can result in inaccurate test results. For example, if the police officer does not provide clear instructions, the person may “fail” the test. Likewise, if the officer moves around, it can distract the person and result in inaccurate test results.

Even something as simple as wearing high heels, tight clothing, or baggy pants could adversely affect a person’s performance on field sobriety tests.

Fighting the Results of DUI Field Sobriety Tests in California

If you are arrested for DUI in California, you should discuss your legal options with a DUI defense attorney before pleading guilty to driving under the influence. There may be one or more grounds for challenging field sobriety tests.

What are the Penalties for Driving Under the Influence in California if You’re Under 21

Drunk driving is an incredibly serious offense, and a DUI conviction can lead to not only a suspended license but even jail time. But the stakes are even higher for those under 21, who not only face more stringent BAC requirements than the standard intoxication threshold BAC of 0.08%, but mandatory PAS testing, and the potential of delaying obtaining their license if they do not yet have one. 

What Counts as Driving Under the Influence for Drivers Under 21?

Driving under the influence for any person under the age of 21 in California is defined as any person under 21 years old who has a deductible blood alcohol concentration (BAC) of 0.01% or greater. There are additional charges that the driver could face, as well.

How is BAC Measured in California?

The blood alcohol content is officially measured with a blood or breath DUI chemical test. However, when concerning underage drivers or potential underage drinking and driving, the test may consist of what’s referred to as a “PAS” test. PAS stands for preliminary alcohol, and can be conducted in the field, and is considered a roadside test. 

The preliminary alcohol screening, and is most frequently measured with a portable breathalyzer test. While those over 21 are given the option to consent to the test if they are suspected of intoxication, those under 21 face an automatically suspended license if they refuse. Additionally, if a driver potentially facing an under-21 DUI refuses the PAS test, they are barred from applying for a restricted license.

The Difference in DUI Offenses In California

There are several different potential offenses that California drivers may face when they either possess or consume alcohol while driving. These range from the under-21 zero-tolerance DUI statute to an enhanced underage DUI charge, and more. 

Zero-Tolerance Underage DUI

Under California vehicle code 23136, those who are under 21 and are pulled over for suspected DUI will be asked to submit to a roadside preliminary alcohol screening. If the results of this screening show a detectable blood alcohol content of at least 0.01%, then the driver can face a charge for violation of the zero-tolerance law. 

The driver may refuse to participate in the preliminary alcohol screening, however, this will result in an automatic 1-year license suspension. This offense is not considered a criminal charge, it is considered a civil offense.

Underage DUI W/BAC 0.05% Or Higher

California vehicle code 23140 states that a driver under the age of 21 may face more severe penalties for having more detectable alcohol in their system. Unlike the zero-tolerance law, violations of VEH 23140 carry potential criminal charges. If an underage driver is taken into custody and placed under arrest for this offense, they will generally be given a post-arrest DUI chemical test to confirm the BAC.

Penalties for violation and conviction under VEH 23140 can include a fine, as well as license suspension for a full year, as well as a mandatory alcohol education program for those over 18. The alcohol education course will be a minimum of 3 months, often longer.

Standard DUI

California vehicle code 23152 is considered a “standard” DUI charge. It is the charge reserved for drivers whose abilities are impaired or compromised due to drugs or alcohol, or for drivers who drive with a BAC of 0.08%. VEH 23152 is a criminal misdemeanor, which can result in criminal penalties upon conviction.

Penalties for conviction under 23152 carry a mandatory suspension of the driver’s license, along with between 3 and 5 years of probation. Fines can range from nearly $400 to $1,000, as well as either a 3-month or 9-month drug or alcohol education program. The driver may also face a potential 6-month jail sentence for repeat offenders. 

Underage Possession of Alcohol in a Vehicle

A charge of violating California vehicle code 23224 can be laid if the person under 21 is determined to be in possession of alcohol while in a vehicle. The only exceptions to this are:

  • If the container is full, sealed, and unopened
  • If they are accompanied by their parent or guardian
  • If they are getting rid of the alcohol per an adult’s direction
  • If they are transporting it as part of their job while working for someone with a legitimate and valid liquor license

Charges under VEH 23224 are often laid in addition to charges under the zero-tolerance law and are a misdemeanor criminal offense. A conviction can carry penalties of confiscation and impoundment of the vehicle for up to 30 days, fines of up to $1,000, and suspension of the driver’s license for a full year.

Can You Be Charged with Multiple Offenses for Drunk Driving?

In many cases, you can be charged with multiple DUI offenses for a single incident, though there are some stipulations. If you are found to have a BAC of 0.05%, you will likely be charged with both the zero-tolerance law, as well as VEH 23140. If you have a BAC of 0.08% or more, you will likely face charges under the zero-tolerance law as well as VEH 23152.

While drivers can face multiple charges, you can only be convicted of one type of DUI criminal charge per offense. This means that even if you are facing charges under VEH 23136, VEH 23140, and VEH 23152, you may be convicted under VEH 23136, and either VEH 23140 or VEH 23152 but not both.

What is the Penalty for Someone Under 21 Violating the Zero-Tolerance Law?

Since the zero-tolerance law is a civil offense and not a criminal offense, the penalty is less severe than the criminal equivalents. The only penalty that a driver faces for violating VEH 23136 is a mandatory and automatic DMV suspension or revocation of the driver’s license. This is an administrative measure known as a “per se suspension”.

When the officer at the scene cites the driver for the violation, the license will be confiscated and sent to the DMV. The driver will then be given a temporary license that is valid for 30 days. When the 30-day period concludes, the license will be suspended or revoked unless it is formally contested.

If the driver did not have a valid license at the time the offense allegedly occurred, the administrative suspension will prevent the driver from obtaining a license for one year. The suspension was due to a PAS or DUI chemical test refusal, the suspension can also be contested.

Is There Any Way to Fight or Appeal a Zero-Tolerance Suspension?

You can request a hearing to prevent the suspension of your license, but the request must be made within 10 days of the original citation. If you have an attorney, they can also request the hearing on your behalf. This will place a moratorium on the suspension, which will then only go into effect if the driver loses the under-21 DUI hearing.

Most hearings take place via phone, however, you can request an in-person hearing at a DMV regional location. The following issues will be discussed:

  • Were you driving the vehicle?
  • Were you lawfully detained?
  • Did the driver refuse a chemical DUI test or was their BAC over 0.01%?

If your hearing was successful your license will be returned to you and the suspension canceled, if you lose the hearing you must wait until the conclusion of the suspension to reinstate full driving permissions.

What is a Restricted Hardship License?

Drivers convicted of an underage DUI can get a restricted license, also known as a hardship license, which can allow them to maintain some semblance of a normal life following suspension or revocation. Drivers are only eligible for a restricted hardship license if they did not initially refuse the preliminary alcohol screening. Additional requirements include:

  • Requiring a vehicle for:
    • Transportation due to illness
    • Getting to and from school
    • Getting to and from work
    • A family business that contributes to the family’s income
  • All other transportation options being deemed insufficient by the DMV

Those drivers who are determined to be eligible for the restricted hardship license must still serve the mandatory initial 30-day suspension following the DUI.

Can My License Ever Be Reinstated After a Zero-Tolerance Conviction?

The suspension or revocation received after conviction for underage DUI under the zero-tolerance law can be reversed and the license reinstated, following the conclusion of the suspension or revocation period. The automatic DMV suspension can be reinstated by taking the following steps:

  • Paying a mandatory $100 fee to the DMV to reissue the license
  • Filing proof of insurance and financial responsibility with the DMV, known as an SR-22
  • Maintaining proof of continuous financial responsibility for three years

Are You Facing Charges Under the Zero-Tolerance Law?

If you or someone you know may be facing potential penalties for under-21 DUI in Los Angeles or anywhere else in California, one of the first things you should do is to contact a defense attorney. Working with an experienced DUI defense lawyer can be your best chance at minimizing the penalties while giving you a powerful advocate for the entire process. Reach out today to discuss your case details confidentially.

The 1650 Waiver to Attend DUI School Out-of-State

If you live in another state and get a DUI in California, you might find it inconvenient to have to attend an in-person California DUI school as a part of your sentence. Ordinarily, the California Department of Motor Vehicles (DMV) requires people convicted of DUIs to enroll in and complete DUI driving school here in California. 

A non-resident can request a waiver of the California in-person DUI school requirement by filing a 1650 waiver request. If you do not attend and complete an in-person DUI program in California and do not request and receive a waiver, your home state can deny you a driver’s license. Your only option then is to make repeated trips back to California to complete the DUI school.

How to Request a 1650 Waiver

You will have to wait until you are eligible to request that the California DMV terminate your DUI suspension or revocation. If the California DMV grants your request, you would not have to attend driving school in this state, and you will be able to apply for a license in your state of residence.

You must meet all of these conditions to be eligible for a termination of action as a non-resident:

  • Any suspension or revocation of your driving privilege is no longer in effect.
  • If you had any Administrative Per Se restrictions on your driver’s license, all such restrictions are no longer in effect.
  • You are no longer ordered by the court or the California DMV to have an ignition interlock device (IID) or any other court-ordered or DMV-ordered restrictions.
  • You have paid all applicable administrative service fees. 

You can check your driver’s record to verify these factors. You may request this information by telephone, online, or by regular US mail. After verifying that you have met all of the conditions, you will need to file an application for termination of action (DL4006) with the DMV, along with acceptable proof of out-of-state residency, payment of fees, and proof of financial responsibility, if required.

Application for Termination of Action (DL 4006)

The Application for Termination of Action must get sent to the Mandatory Actions Unit of the California Department of Motor Vehicles (DMV), with all the required documents and attachments. Before the termination of action under California Vehicle Code (CVC) section 13353.5 can happen, the Mandatory Actions Unit must verify that the applicant has met all of the conditions and requirements.

The applicant must swear under penalty of perjury that the individual is not a resident of California. Also, the applicant must voluntarily authorize the California DMV to cancel the individual’s California driving privileges if the DMV terminates the suspension or revocation as requested. It usually takes the California DMV a month or two to process the waiver packet.

Documents the DMV Will Accept as Proof of Out-of-State Residency

The DMV provides a list of 18 different kinds of documents they will accept to prove that you do not live in the state of California. You must submit at least one of these papers with your DL 4006 form. 

A few examples of the acceptable out-of-state residency documents for the 1650 waiver form (DL 4006 form) include:

  • A home utility or cell phone bill
  • Official voter registration documents
  • A mortgage bill
  • A rental or lease agreement signed by both the owner/landlord and the tenant/resident
  • An employment document
  • A property tax bill or statement
  • A change of address confirmation by the US Postal Service 

Whichever document or documents you choose to submit to show out-of-state residency must show your current out-of-state address that is the same as you provide on your DL 4006 form. 

What is Proof of Financial Responsibility?

Proof of financial responsibility in the context of driving means that a driver has automobile insurance that will pay the losses of people who get injured or property that gets damaged as a result of the driver. California tries to protect the general public from people exercising the privilege to drive without being financially responsible to people they might harm.

The DMV might require you to provide a California Insurance Proof Certificate (SR 22) from an insurance company authorized to do business in California. If your insurance is from a company not authorized to do business in California, the DMV will only accept that insurance document if you send in a Declaration Regarding Certificate of Insurance for Non-Resident Driver. That declaration is on the DL 300 form, California Proof Requirements for Non-Residents.

Who Needs a 1650 Waiver?

If you were a non-California resident and you got convicted of a “wet” driving offense, like:

  • Driving under the influence, Vehicle Code 23152(a),
  • Driving with a BAC of 0.08% or higher, Vehicle Code 23152(b)
  • Underage DUI with a BAC of 0.05% or higher, Vehicle Code 23140
  • “Wet reckless,” Vehicle Code 23103.5

You will have to enroll in and complete an in-person California DUI driving school unless you get a 1650 waiver of that requirement. A 1650 waiver comes with significant consequences. For starters, once you use a 1650 waiver, you can never get a second waiver in your entire lifetime. 

Also, you will not be allowed to drive in the state of California for three years, even if you become a California resident. If you do move to California, you will have to complete the DUI school before the DMV will issue you a California driver’s license.

Consequences in Your Home State

Getting an out-of-state DUI conviction does not let you fly under the radar in your home state. The California court will notify a non-resident’s home state of the conviction. Also, the DMV in California will suspend your California non-resident driving privileges.

You can face negative repercussions in both states, California and your home state, after getting convicted of a DUI here. Your state will treat the California conviction as if it happened in your home state. 

Your home state is allowed to impose its own penalties on you, even if they are more severe than the penalties the California court assessed. Typically, your home state will not allow you to drive legally using that state’s driver’s license until you satisfy all of the penalties of the California conviction, which include the DUI program requirements of the DMV. One of the program requirements is the California DUI school.

Can I Attend a California DUI School Online?

Generally, no. A person convicted of a DUI in California must attend a licensed DUI program unless the individual obtains a 1650 non-resident waiver. The Department of Health Care Services (DHCS) evaluates, licenses, and monitors the compliance of all California DUI programs. The Behavioral Health Licensing and Certification Division, Driving-Under-The-Influence (DUI) Section is the specific aspect of the DHCS that performs these tasks.

You cannot simply enroll in any DUI school or program. The DUI school must be California-licensed to satisfy the penalties under your conviction. DUI school hopes to give participants an opportunity to address their problems with using alcohol and drugs, and to reduce the number of second and subsequent DUI offenses by individuals. 

California DUI Programs

There are multiple levels of DHCS licensed DUI programs. For example:

  • If you get convicted of reckless driving and you had a measurable amount of alcohol in your bloodstream, you must complete the “wet reckless program,” which is a 12-hour DUI education program.
  • For a first-offense DUI conviction, the DMV requires the completion of a three-month 30-hour alcohol and drug education and counseling program. If the first offense was for a blood alcohol content of 0.20% or higher, the individual must complete a nine-month 60-hour alcohol and drug education and counseling program.
  • If a person gets a second or subsequent DUI conviction, there is a mandatory 18-month multiple offender program. The program includes 52 hours of group counseling, 12 hours of alcohol and drug education, six hours of community reentry monitoring, and biweekly individual interviews during the 12 months of the program.
  • For a third or subsequent DUI conviction, a county may choose to impose 30-month DUI programs, with 78 hours of group counseling, 12 hours of alcohol and drug education, 120 to 300 hours of community service, and close and regular individual interviews.

The high level of involvement and time required by California DUI programs make it difficult for someone who lives in another state to participate in and complete the program requirements.

COVID-19 FAQs for DUI School

During the COVID-19 pandemic, the state of California enacted measures to reduce exposure to the virus, including suspending or limiting DUI program services. Anyone participating in program services or wanting to enroll in the program could find limitations on the program due to COVID-19 restrictions. The DHCS supported telehealth services for DUI programs to minimize the spread of COVID-19.

Are There Additional Penalties for a DUI Conviction in California?

Yes, and you do not get to avoid these consequences just because you are not a California resident. Also, keep in mind that your home state can impose additional penalties. In California, a first-time DUI conviction could include these penalties:

  • DUI school
  • A six-month driver’s license suspension period
  • Up to six months in county jail
  • Installation of an ignition interlock device (IID) for six months
  • Fines and penalties adding up to as much as $1500 or $2000
  • DUI probation of 3 to 5 years
  • Work release

Getting a DUI conviction can impact your life in many other ways. You will want to work with a California DUI attorney to protect your rights if you get arrested for drunk driving.