Category Archives: DUI Law

Contesting Breath Alcohol Tests with Partition Ratios

DUI breath tests are standard tools used to prove someone was driving under the influence of alcohol in California. However, breathalyzer tests are not always accurate. Furthermore, the breathalyzer does not measure the amount of alcohol in your bloodstream, so there is the opportunity to contest the accuracy with partition ratios.

How Does a Breath Test Work for a California DUI?

Police officers use two types of breath tests to determine if a driver was intoxicated while driving. First, the roadside preliminary alcohol screening (PAS) test is a roadside breathalyzer. It is given during a DUI stop and investigation.

You can refuse the PAS test without penalty unless you are under 21 years of age or on DUI probation. You can also refuse to take a cheek swab or perform the field sobriety tests too. However, you cannot refuse the second breath test without penalty.

The second breath test is a post-arrest evidentiary breath test. You cannot refuse a chemical BAC test after your arrest without penalty. These are evidentiary tests, meaning the state can use the results in court. 

Most drivers choose between the post-arrest breath test and the blood test. However, the person may be required to take a blood test if the officers believe they have drugs in their system (DUID), they cannot blow hard enough for the breath test, or the driver is unconscious or in a medical facility where a breath test is not available. 

How Does a Breathalyzer Test Work?

Understanding how to challenge the results of a breath alcohol test using partition ratios in California helps to understand how breath tests work. DUI breath tests do not measure the blood alcohol level in your bloodstream. Instead, they measure the amount of alcohol in the deep lung air.

Deep lung air comes from the alveoli located deep within the lungs. Tiny blood vessels surround the alveoli. The blood vessels allow oxygen to pass from the lungs into the bloodstream and allow carbon dioxide and other substances, like alcohol, to pass from the blood to the alveoli. 

The alcohol concentration is highest in the alveoli. Therefore, an evidentiary breath test uses the air from this area to test for alcohol in your system. However, you must blow very hard to get the air from the alveoli into the machine. Some individuals may not be able to blow hard enough and might need a blood test.

How Can the Partition Ratio Lead to Inaccurate BAC Levels?

Since the breath test measures the amount of alcohol in your lungs, the results must be converted to a rough equivalent of a BAC. The mathematical conversion is known as the partition ratio. 

California laws set the partition ratio for breath-testing at 2,100 to 1. In other words, the amount of alcohol in 2,100 milliliters of breath is equal to the amount of alcohol in 1 milliliter of blood.

However, everyone’s body is unique. Your partition ratio may differ from the fixed partition rate because everyone’s lungs absorb the alcohol at a different rate. 

How Does the Partition Ratio Impact a DUI Case?

Under California Vehicle Code §23152, it is unlawful for you to operate a motor vehicle if:

  • Your BAC is .08% or higher (per se charge) OR
  • You are under the influence of any alcoholic beverage (generic dui charge)

A per se DUI is where the person’s BAC is .08% or higher. The law presumes that you were too drunk to drive if you have a BAC over the legal limit. Therefore, if your breath test shows a BAC of .08% or higher, you are presumed to be too impaired to operate a motor vehicle.

However, if your BAC is below the legal limit, you are charged with a generic DUI. The prosecution must show that the alcohol in your system actually impaired your ability to operate the motor vehicle safely. In cases with BAC close to the legal limit, the prosecutor might get a conviction if there is other evidence the driver was intoxicated. 

On the other hand, if the person’s partition rate is not 2,100:1, the person’s BAC level might be much lower than the level alleged by the prosecution. If so, the person may not have been impaired by alcohol when they were pulled over for a DUI stop.

Challenging the Results of a BAC Level Using Partition Ratios

In July 2009, the California Supreme Court decided an important case that changed how some people defend themselves against the generic DUI charge. The decision in People v. McNeal allows a defendant to contest the accuracy of a breath test by submitting evidence their partition ratios are not equal to the ratio set by law. Defendants may also challenge the results by offering evidence proving the variance of partition ratios among the general public. 

In a borderline BAC case, offering evidence that the defendant’s individual partition ratio is different from the state’s ratio could create reasonable doubt for the jury. Especially when there is no substantial evidence other than the breath test that proves the defendant was intoxicated while driving.

If your DUI case relies on the results of a breath test, talk with a California DUI defense lawyer before accepting a plea deal. You may have grounds for challenging the results to prove you were not drunk while driving. 

Other Ways to Challenge an Evidentiary Breath Test in a DUI Case

In addition to challenging the accuracy of the breath test results based on partition ratios, there are other ways to attack a breath test. For example, the California Code of Regulations Title 17 sets the rules for DUI chemical testing procedures. As a result, the samples could be invalid when labs and law enforcement officers do not follow these rules.

There are many rules under Title 17 for performing a breathalyzer test after a DUI arrest. Some important rules include:

  • The device must be calibrated every 150 uses or ten days, whichever comes first
  • The person giving the breathalyzer test must be trained to use the specific device
  • The DUI breathalyzer device must be in good working order
  • Air from deep within the lungs must be collected to perform the test
  • The driver must be watched continuously for 15 minutes before the DUI breath test to ensure they did not eat, drink, or put anything in their mouth, smoke, vomit, burp, or regurgitate
  • The lab must keep detailed records of the personnel, equipment calibration, and test results
  • Two breath samples do not differ by more than 0.02 grams per 100 milliliters of blood must be obtained

Violation of any of the above Title 17 rules could result in inaccurate BAC levels that are not as high as they appear. A DUI defense lawyer reviews the testing procedures and records to determine if the lab or law enforcement agency made errors that could support a challenge to the breath test results.

Medical Conditions and Other Factors Could Result in Incorrect BAC Breath Test Results

In addition to problems with the machine and errors made by law enforcement agents or lab workers, a person’s medical conditions could affect the accuracy of a breath test. Specific health conditions can result in falsely high BAC levels. 

Examples of medical conditions or other factors that could affect the BAC results from a breathalyzer include: 

  • Diabetes
  • Gastrointestinal reflux disease (GERD)
  • Low carb/high protein diets
  • Residual mouth alcohol
  • Inhaling acetone and other volatile chemicals
  • Rising blood alcohol levels
  • Medication, food, or mouthwash caused a false high
  • Dentures caused the alcohol to pool in the mouth

There are many ways to challenge an evidentiary breath test. It is worthwhile, especially in cases where the BAC level may be just below the legal limit. Challenging the accuracy of the test can help jurors accept your argument that you might have had some alcohol, but you were not impaired to drive.

What Should I Do After a DUI Arrest in California?

Do not panic. You have not been convicted of driving under the influence. However, the matter is extremely serious. The punishments for a DUI conviction in California can be harsh.

Therefore, do not talk to the police. The police officers and the prosecutor already believe you are guilty. Any information you give them only makes their case against you stronger.

Instead, remain quiet until you speak with a California DUI defense attorney. Your attorney discusses the facts of your case, your legal rights, potential defenses, and the best options you have for fighting the DUI charges. 

You might want to fight the drunk driving charges based on your attorney’s advice. You might have a solid challenge to the evidentiary breath test results based on partition ratios or errors regarding the test. 

If not, your attorney works to negotiate the best plea bargain possible. A prosecutor may be willing to work out a better deal with an attorney than directly with you. 

The prosecutor knows if a deal is not struck, the case goes to trial. That might not be in the prosecutor’s best interest. Furthermore, the prosecutor has hundreds of cases to handle. They want a win, not a hard fight for a potential acquittal.

Ensure you know your legal rights after a DUI arrest to reduce the chance of jail time and other penalties.

SCRAM Ankle Bracelets

The judge in your DUI case could impose several different penalties for a guilty plea or guilty verdict. A DUI conviction can lead to jail time, fines, probation, suspended license, DUI school, and summary probation. You may also be ordered to wear a SCRAM device.

What is a SCRAM Device?

You must wear a SCRAM (Secure Continuous Remote Alcohol Monitor) device continuously if the judge imposes this punishment for DUI. The device monitors your blood alcohol content (BAC) through your sweat. The process is called transdermal alcohol testing.

When you consume alcohol, a small portion is eliminated through your urine. However, a small about leaves the body through your breath, saliva, and sweat. 

DUI breathalyzer tests pick up on the alcohol on your breath. SCRAM devices sense alcohol that escapes through your skin (sweat).

The device sends the information to a monitoring center every 30 minutes. If the SCRAM device detects alcohol in your system, the court is notified of the violation. 

Alcohol Monitoring Systems, Inc. developed the device. You wear the monitor around the ankle like a bracelet. It is water-proof and tamper-proof. 

Adding House Arrest to the Alcohol Monitoring System

If a person is sentenced to house arrest instead of jail or prison, the court may order a SCRAMx device. The device monitors the person’s BAC levels and monitors the person’s exact location. Therefore, the court knows precisely when you leave your home and where you go when you leave. 

What Types of Cases Does the Court Order SCRAM Devices?

SCRAM devices are used in cases when the defendant is ordered not to consume alcohol as a condition of probation or house arrest. In addition, judges may order alcohol monitoring for repeat offenders or in DUI cases involving alcohol dependence or addiction. 

SCRAM devices may be used in other cases. Examples of cases that might result in a sentence to wear a SCRAM device include, but are not limited to:

  • California drug court
  • As a condition of bail, early parole, or pre-trial supervision
  • California Veterans court
  • Supervision and support for re-entry programs
  • Offenders convicted of underage drinking in California 
  • Military diversion programs
  • As a condition of release or probation for domestic violence offenders

In many criminal cases, a common condition of probation is not using alcohol or drugs. SCRAM devices allow the courts to monitor the condition without the need for random alcohol tests through the probation office or other government agencies.

What is the Average Term Someone Wears a SCRAM Device in California?

The seriousness of the DUI offense is a significant factor in the duration of your SCRAM monitoring. Additionally, the judge considers other factors such as your criminal record, prior DUI offenses, and your dependency on alcohol. As a result, you could be sentenced to wear the SCRAM device for a month, year, or more.

Does the Court Give Me the SCRAM Device to Wear?

No, the court does not have these devices on hand. If the court sentences you to BAC monitoring, you must contact an authorized SCRAM service provider in California. You arrange to have the monitor placed on your ankle through the service provider.

The provider instructs you not to remove the device or tamper with the device. Getting a SCRAM device off your ankle is possible, but it is a challenge. 

However, if you tamper with a SCRAM device, the monitoring system receives notice and lets the court know what you are doing. As a result, the judge may schedule a hearing and sentence you to jail time instead of BAC monitoring. 

How Much Does it Cost for a SCRAM Device? Who Pays for it?

You are responsible for paying for the monitor and the daily monitoring fee. Generally, it costs between $50 to $100 to install a SCRAM device on your ankle. After that, you must pay the daily monitoring fee.

Monitoring fees for a SCRAM device can be as much as $12 per day for BAC monitoring. The fee increases for BAC and position monitoring. You may pay up to $15 a day for BAC monitoring and house arrest. 

The court may absorb the cost of the service for indigent offenders. Also, the cost may vary based on how much income the person receives each month.

If the judge sentences you to SCRAM monitoring for a year, you could pay as much as $4,400 for the service.

Does Wearing a SCRAM Device Give a Defendant Credit for Time Served?

Monitoring for BAC with a SCRAM device does not equal time served. However, if you are sentenced to house arrest with a SCRAM device, the judge may give you credit for time served. 

House arrest means that you cannot leave your home except for specific errands approved by the court. Therefore, house arrest is a form of incarceration. 

You may be allowed to work or go to school. If so, the court sets a curfew that you must obey. Also, the court restricts the places you may go while leaving home for work or school.

What Should I Do if Someone Is Drinking Alcohol Around Me?

The SCRAM device can tell the difference between alcohol in your system and alcohol in the environment. However, your agreement with the service provider generally states that you will not use alcohol or have alcohol around the bracelet. 

Medications Containing Alcohol Should Not Impact the Device

The SCRAM monitor generally does not produce a false positive if you take medication with alcohol or use other products that might contain small amounts of alcohol, such as breath sprays, mouthwashes, and other consumer products.

However, if you consume enough of these products to become intoxicated, you violated the terms of your probation. Therefore, the judge may order you to be picked up and placed in jail.

SCRAM Devices vs. IIDs

Courts often order DUI offenders to install ignition interlock devices (IIDs) in their vehicles as a penalty for driving under the influence or a condition of receiving a restricted driver’s license. An IID prevents someone who is intoxicated from driving. The IID prevents the vehicle from starting if the driver has any alcohol on his breath when he blows into the device.

However, an IID does not prevent someone from consuming alcohol. In those cases, the court may order a SCRAM device instead of an IID to ensure the person does not use alcohol during summary probation or house arrest. 

What Are the Other Penalties for Driving Under the Influence in California?

California places strict penalties on drunk drivers. A DUI is a priorable offense. Another DUI conviction within ten years of a prior conviction enhances the penalties for the current offense. Felony DUI charges have no time limits.

Therefore, the penalties for a second DUI conviction within ten years are harsher than those for a first-time DUI conviction. Likewise, third, fourth, and subsequent drunk driving convictions carry much harsher penalties than a first or second-time DUI conviction. 

For example, the potential penalties for a first-time DUI conviction in California include, but might not be limited to:

  • A jail sentence of up to six months
  • Fines and assessments between $1,500 and $2,000
  • Summary probation for three to five years
  • Suspension of driving privileges for six months (a DMV administration suspension could be longer)
  • Attendance at DUI school for three to nine months

The above penalties apply to a first-time DUI misdemeanor charge. However, if the court finds aggravating factors in your case, it could order enhanced penalties. Aggravating factors include, but are not limited to underage drinking and driving, refusing to submit to a chemical test, a BAC of .15% or higher, or having a child under 14 years old in the car.

Now, assume that this is your third DUI conviction within ten years. The penalties for a third-time DUI conviction include:

  • Summary probation for three to five years
  • At least 120 days in county jail, but could be up to one year
  • Fines and assessments between $2,500 to $3,000
  • 30-month DUI education program
  • Install an IID for two years
  • Driver’s license revocation for three years (may qualify for a restricted driver’s license after 18 months or right away with an IID)

As with a first-time DUI offense, if the judge finds aggravating factors present, your penalties for a DUI conviction may increase significantly.

Furthermore, a DUI that caused serious injuries may increase to a felony charge. The penalties for felony DUI become much more severe.

What Should I Do if I Am Arrested for Driving Under the Influence in California?

Do not assume that you are guilty of DUI if the police arrest you for drunk driving. An arrest is not a guilty verdict. The state must prove its case under California drunk driving laws. According to California Vehicle Code §23152, it is unlawful for a person to:

  • Operate a motor vehicle with a blood alcohol content of .08% or higher (the legal limit)
  • Operate a motor vehicle under the influence of alcohol 

If your BAC was below .08%, a California DUI criminal defense lawyer might argue you were not under the influence of alcohol while driving. There could also be other defenses to DUI such as:

  • Police officers lacked probable cause for a DUI stop or arrest
  • The police administer the field sobriety tests incorrectly
  • A medical condition or health condition caused a false positive or a high BAC reading
  • The samples for blood or urine testing were contaminated
  • The BAC machine malfunctioned, or the police officers failed to calibrate it correctly
  • You were not driving the motor vehicle at the time of your DUI arrest (you were asleep in the car or sitting in the car)

Before you plead guilty to DUI charges, it is best to consult with an experienced California DUI defense lawyer. 

A DUI lawyer may be able to have the DUI charges dismissed. If not, the attorney may negotiate a plea deal that includes reduced charges and/or penalties. If possible, your DUI defense attorney may be able to keep you out of jail by arguing for a SCRAM device.

Gross Vehicular Manslaughter While Intoxicated

Drinking and driving in California can have devastating outcomes, up to and including the loss of life. When a driver is found to be under the influence and driving in a negligent manner which subsequently causes an accident that kills someone, it is known as “gross vehicular manslaughter while intoxicated” and it is considered a felony offense. If you are facing charges of gross vehicular manslaughter while intoxicated, you could be looking at a potential jail or prison sentence of up to 10 years, depending on the circumstances and specifics of the case.

What is Gross Vehicular Manslaughter While Intoxicated?

The California Penal Code PEN 191.5(a) defines gross vehicular manslaughter while intoxicated as:

“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

This means that multiple offenses are being committed simultaneously. Not only is the driver already violating one of California’s DUI laws (23140, 23152, or 23153), but in the course of doing so, the driver also commits another act or behaves in such a negligent manner that the result leads to the death of another. 

A hypothetical situation where this might apply is a driver being over the legal limit of .08% blood alcohol content, and speeding to such a degree that they strike another vehicle and kill the other driver. Another example would be someone who is legally drunk ignoring traffic control devices, subsequently killing a pedestrian crossing the street.

Meeting the Four Elements Needed for Charges of Gross Vehicular Manslaughter While Intoxicated

There will be four distinct elements to the crime that must all be fulfilled in order for it to be considered gross vehicular manslaughter while intoxicated. If any one of the four elements can be disproved or contested, your attorney may be able to have the charges reduced or even dismissed entirely. The elements needed are:

  • That the driver was operating the vehicle while under the influence of alcohol or drugs
  • While the driver was operating the vehicle, any other misdemeanor was also committed that may cause the death of another
  • The commission of the required misdemeanor occurred with gross negligence
  • As a result of the prior 3 elements, the grossly negligent act caused by the intoxicated driver caused the death of another

These four elements are essential to being able to levy charges of gross vehicular manslaughter while intoxicated against you, and if your attorney can mount a defense disproving or eliminating any one of the conditions, the charges may no longer apply. 

Note that it does not matter whether you intended to injure or kill someone when you got into the vehicle after drinking. You only need to be acting in a reckless manner.

If you have been arrested for gross vehicular manslaughter while intoxicated, the first thing you should do is contact an experienced criminal defense attorney since creating a defense strategy for these charges can be complex. While each of the four elements must be proven to hold up in court, they can be complicated.

Driving Under the Influence of Alcohol or Drugs

In California, you are driving intoxicated if you are found to have:

  • Driven with a measurable blood alcohol content of 0.08% or greater
  • Driven while under the influence of drugs, whether legal or illicit
  • Driven while displaying any signs or symptoms of intoxication
  • Violated California’s under-21 zero-tolerance law by driving with a blood alcohol content of 0.05% or higher

Being able to contest these may give you a viable defense in your case.

Committing a Misdemeanor or Lawful Act That Could Cause Death

This is a very important point since you must be found to have committed an act that could cause death, but that act cannot be the DUI. It must be an additional misdemeanor offense or lawful act. While the act doesn’t need to be dangerous in ordinary circumstances, it must be potentially dangerous in the situation.

The Gross Negligence Qualifier

Gross negligence can only happen when someone acts in a reckless manner that results in a significant risk of injury or death, and any reasonable person would know that the act has a significant risk of injury or death. It cannot be a simple error in judgment or a careless act.

Being The Cause of Death of Another

The death that occurs in the initial incident must be the direct and natural result of the negligent conduct. While there may be other factors that contribute to the death, the gross negligence must be considered a substantial contributing factor.

The Penalties for Being Convicted of Gross Vehicular Manslaughter While Intoxicated

The penalties for being convicted of gross vehicular manslaughter while intoxicated are similar to being convicted of murder. If you are convicted you can expect to be placed on formal felony probation and to be assigned a probation officer. 

You will also be fined a sum of up to $10,000 and may face imprisonment in state prison of either, 4, 6, or even 10 years. Even if you avoid a prison sentence, the DMV will enact a revocation of your driver’s license for a minimum of 3 years. Driving on this revoked license can come with further penalties that grow with each subsequent conviction of driving while suspended or revoked.

Prior convictions for similar offenses can also make the penalties more severe. Prior convictions of DUI, DUI causing injury, manslaughter while operating a boat, and vehicular manslaughter either ordinary or gross. Having a history with a conviction of any of these offenses can make the prison sentence a minimum of 15 years with a maximum of a life term.

Common Defenses for Fighting Charges of Gross Vehicular Manslaughter While Intoxicated

Anytime someone is killed in a vehicle crash is a tragedy, and in many cases the individual who was driving is wracked with guilt, often blaming themselves and pleading guilty or no contest. While law enforcement may be quick to blame you, working with a qualified lawyer can help show the court that it wasn’t your fault or can help you avoid lengthy prison terms. Your criminal defense attorney will help create a defense strategy that helps you fight the charges being laid.

Not Being Intoxicated During The Alleged Incident

In some cases, your attorney may be able to mount a defense against the actual evidence that pointed to you being under the influence since many symptoms of shock due to the accident can appear to be symptoms of being intoxicated. This can also include questioning the validity of the chemical test results, or the procedures of the law enforcement officers that participated in your arrest.

The Misdemeanor or Lawful Act Was Not Committed With Gross Negligence

If you are facing charges of gross vehicular manslaughter while intoxicated, working with an attorney may help you show that your actions were not negligent, even if they were not correct. Driving is a complex process and sometimes requires you to make sudden decisions, and even if they were made in good faith they can be wrong and result in death or injury.

You Believe You Acted Reasonably in Extenuating Circumstances or an Emergency Situation

If you and your attorney can show that your actions were not negligent and that they were aligned with the same judgment and care that any reasonable person would show, you may be able to show that you did not act with gross negligence. This can be difficult to prove depending on the circumstances of the accident, which is another reason working with an attorney is in your best interest.

Your Gross Negligence Was Not The Cause of the Victim’s Death

Cause and effect in vehicle crashes can be very complicated, and even when there was DUI or gross negligence involved, it can be difficult to show that your negligence was the direct cause of someone’s death. This can sometimes be due to negligence of another party or other contributing factors, which can work in your favor. This defense will often involve working with witnesses and other evidence that may exonerate you.

If You Have Been Charged With Gross Vehicular Manslaughter While Intoxicated

If you or someone close to you has been arrested and charged with gross vehicular manslaughter while intoxicated your freedom is in jeopardy and you should work with an expert criminal defense attorney. Not only will they know the ins and outs of the California criminal system, but they will have priceless experience in putting together the best defense for your case. You will be able to discuss the details of your case in a confidential environment and will have the best chance at beating the charges or reducing the penalties imposed in the event of a conviction.


If you live in California, it is technically possible to be arrested and even convicted for driving under the influence, even if your car was parked. One of the conditions that can allow this is for the driver to allow the vehicle to move any amount, even if that movement only amounts to 2 or 3 inches overall. Many people have probably experienced putting their car in park and having it roll a few inches before stopping, if you’ve been drinking, that can be all it takes.

If the individual had been drinking and put their vehicle in neutral or park, even setting the parking brake, and the vehicle rolled a couple of inches before coming to a full rest, they may be arrested for DUI which can carry some very significant penalties. These penalties can include hefty fines, vehicle modifications, rehabilitative programs as ordered by the judge, and more.

If Someone is in a Parked Car is There Probable Cause?

This will depend greatly on the circumstances surrounding the initial arrest and the conditions encountered by the officer at the scene and the driver. In most cases where there is no obvious threat of imminent danger, a law enforcement officer will need to show that there was probable cause for initially confronting the driver. Probable cause is the legal standard that police officers must meet in order to make an arrest. 

Law enforcement generally cannot arrest someone unless one of two conditions are met. Either:

  1. The law enforcement officer has probable cause that the driver has committed a crime


  1. The law enforcement officer has probable cause that the driver is about to commit a crime

There is an exception that will allow a brief detainment provided the officer has a reasonable suspicion that the driver has committed a crime. This can be more difficult to prove and justify in court, however, and a failure to do so can render the entire case and charges unacceptable.

In many cases, it may be possible to argue that the initial DUI arrest was unlawful because there was no preexisting probable cause of a crime. The alleged DUI driver was merely occupying a seat in a vehicle that remained stationary.

A Hypothetical Situation

An example of this may be an individual leaving a friend’s house and, getting in their vehicle parked in the street, they then realize they are too intoxicated to drive and simply sit in the driver’s seat. An officer on patrol notices someone sitting in a vehicle in the street, and subsequently approaches the vehicle and asks the driver to exit. If the driver exits the vehicle and the officer smells the alcohol on their breath, he then arrests them for DUI.

In this case, the driver’s attorney is likely going to challenge the charges based on the premise that the officer had no initial probable cause to ask the driver to exit the vehicle in the first place. Since there were no reports of rowdy party activity, or other reports of suspicious or criminal acts occurring, there was no justification for the arrest. 

This would have been drastically different, however, if the officer had pulled the same driver over while driving or even pulled the vehicle into the driveway of the friend’s house and noticed erratic driving or other indications of DUI activity. Then the officer would have been able to lawfully detain, field sobriety tests, and even conduct a breathalyzer to justify the arrest and amass evidence for court.

This isn’t an absolute though, and even in court, the prosecution may have attempted to justify the arrest with information or testimony from the officer. Common rebuttals to the “no probable cause, parked car DUI” defense include:

  • Reports of the driver acting drunk before getting in their car
  • Odd or suspicious behavior by the driver, while inside the vehicle
  • A previously reported accident or violation of the traffic code by someone matching the driver’s description or the description of their vehicle.

In The Event Of Arrest Your Attorney May Challenge The Charges

This defense strategy is often used in a wide range of DUI circumstances such as:

It is important to remember if you choose not to work with a local defense attorney, that sitting in the driver’s seat, even with the engine running does not count as driving. To legally count as driving, the vehicle must move some measurable amount.

Charges of DUI Can Stick Even When The Car is Technically Parked

Each case is relatively unique, and in some cases, the driver may end up being charged and convicted of a DUI offense even if the vehicle was not even in gear. To have this be successful, the prosecution will need to prove that the defendant voluntarily caused the vehicle’s movement before the arrest and that the movement happened even though the vehicle was not in gear and was in park or neutral.

This means that even 2 or 3 inches of movement can be used as circumstantial evidence in a DUI case, and the vehicle does not need to be in gear or even have the engine running. For example, cutting the engine to the coast or even rolling down a hill out of gear are both considered to be legally driving by California law.

The “voluntarily” part is where an expert legal defense team can begin to build an effective defense. This can often be a lifesaver if the movement was caused by an accident, such as bumping the car into neutral by mistake while sitting in the driver’s seat. 

Penalties in California for DUI Convictions

If you are convicted of a DUI in California the penalties can be severe and life-altering. Initially, you’ll have a fine plus court costs, which can reach thousands of dollars. Following that is a mandatory period of suspended driving privileges, this period can be as short as 6 months, but it can also be as long as several years. In some cases, however, there may be provisions for the defendant to regain some driving abilities back to attend school, work, or other court-ordered activities or programs. 

This will usually require the defendant to go through the process of getting a hardship or restricted license, which will only permit them to drive to specified locations. Some defendants may also be eligible to have an ignition interlock device installed on their vehicle at their expense, which will often reduce their restrictions on driving even more, and will require them to perform a breathalyzer before each time they start their vehicle.

Other probationary terms that are applied to most convictions include attending Alcoholics Anonymous meetings, alcohol education courses known as DUI school, an additional 3-5 years of “summary” probation (which doesn’t require meeting with a probation officer), not driving with any legally detectable amount of alcohol in their system, automatic submission to chemical testing or breathalyzer tests if suspected of drunk driving, and agreeing not to commit any other crimes or violate any other statutes while on probation.

If the defendant must attend Alcoholics Anonymous meetings, they will need to prove their attendance by getting the required paperwork signed and returned to the court. If they are sentenced to DUI school, they must not only pay the required admission but must enroll and complete the school within a specified timeframe. DUI school may be as short as a 12-hour course, or it can go on for nearly 3 years in extreme cases or repeat offenders. 

Sometimes, particularly for first-time offenders or those with skilled attorneys, the judge may approve alternative sentencing instead of jail time. Common options for this include:

  • Attending a Victim Impact Panel, often held by the Mothers Against Drunk Driving (MADD)
  • Cal-Trans roadside work
  • LA County’s Hospital And Morgue (HAM) Program, where the defendant will tour emergency rooms to see the effects of drunk driving and a morgue where they will watch drunk driving victim’s bodies be processed and autopsied

If You Are Facing Charges of DUI Even Though You Were Parked

For those facing charges of DUI even when they were sitting in a parked car, there is a lot at stake. Not only the personal freedom of the defendant, but also their financial security, and even their ability to be autonomous and transport themselves in their vehicle when they need to. All of these factors can compound to drastically change the life of the defendant.

If you or someone you know is being charged with DUI, they must work with an experienced local defense attorney to protect their rights and freedom. The attorney will have intimate knowledge of the California criminal system as well as the laws and standard defenses that can be used to guard against conviction. Even if they cannot prevent conviction, they can help minimize the potential penalties including fines and probationary orders.


If you have been accused of a DUI in California, and subsequently convicted, there is a good chance that you will receive DUI probation for a period determined by the court. This is a method of keeping the convicted defendant out of jail, provided they agree to and abide by the terms of their probation. 

In most cases, this means not only will the defendant need to pay all of the fines, fees, and costs associated with their conviction, but they will need to fulfill extra conditions as well. Sometimes this means attending DUI school, agreeing not to drive at all while they have any detectable blood alcohol content, and even having an ignition interlock device installed on their vehicle. The most common probationary period in California is three years. 

These conditions have to be followed and obeyed or the defendant may be at risk of violating probation. If you are found to have violated the terms of your probation, the judge presiding over your case can immediately withdraw their previous decision and implement the full penalties including imprisonment. There is a lot to be informed about if you have been assigned DUI probation.

Common DUI Probation Conditions

While each case will be unique in the circumstances and penalties, there are many commonalities in the final sentencing of each DUI case. In most cases, the biggest factor in the fines will be how many prior DUI offenses the defendant has been convicted of. Some penalties are levied regardless of how many other convictions the individual has gotten in the past. 

The minimum punitive fine for a DUI will depend on the county where the offense occurred, but usually, it will be between $400 and $1000. Once the court costs and other penalties are added, it’s not uncommon to see the total financial burden become several thousand dollars.

There is often a mandatory suspension of driving privileges for at least 6 months, but depending on the offense it can last as long as 48 months. After a waiting period, the defendant can often get a restricted license to allow them to continue driving to work or school, or any other court-approved destination. Another potential option is an ignition interlock device that may remove some of the other driving restrictions.

The defendant will also usually be required to attend mandatory alcohol education programs, known as DUI school, and may also be required to seek treatment. Another potential penalty is having to spend a predetermined time in county jail, usually measured in individual days.

Probationary terms applied to all DUI convictions will include 3-5 years of summary probation, which will not generally require working with a probation officer. Agreeing not to commit any other offenses while on probation. Agreeing to automatically submit to breathalyzer or blood analysis if suspected of drunk driving, and not driving with any detectable level of alcohol in their system.

Being Ordered to Use an Ignition Interlock Device

There are some cases where the driver may be required to have an ignition interlock device installed to operate their vehicle. Common reasons the ignition interlock device may be required include:

  • Having a history of at least one other DUI conviction
  • Wanting to continue to drive during the period in which the license would be suspended
  • Refusing to submit to a breath or blood test
  • Being arrested with a blood alcohol content of .15% or more

The duration that the device will need to remain installed on the defendant’s vehicle will vary from 4 to 48 months, depending on how many prior “wet” convictions the individual has had in the past and whether the convictions were for DUI or DUI causing injury.

Offenses That Can Violate Your Probation

Since every DUI conviction comes with the condition or requirement that the defendant not commit any other crimes while on probation, some common offenses are often responsible for the individual’s probation violation. The most common ones are those related to the defendant continuing to drive even when prohibited from such. 

There are offenses such as driving without a license, as well as driving without valid insurance that can result in an immediate determination of probation violation. One of the most common and most serious offenses that someone can commit right after a DUI is a violation of California VEH 14601.2, which is driving on a license that has already been suspended due to a DUI.

Driving on a license that has been suspended for DUI is a serious crime and carries stiff penalties. It is not only an offense that carries mandatory jail times and significant fines but it is also known as what’s called a “priorable” offense. Priorable offenses have penalties that grow more severe with each additional conviction. This is particularly dangerous for those with multiple DUIs, who keep driving on the license that the DMV has suspended, and keep getting more dangerous the more often they’re caught.

Sentencing Alternatives to Imprisonment

Instead of sending the defendant to jail, in many cases, the judge will agree to impose alternative sentencing, particularly if you have a skilled attorney that is representing you. Rather than send you to jail, you may only have to participate in community service, roadside work, alcohol monitoring, or other programs.

Programs Often Required as DUI Probation Terms

In many cases, the judge presiding over the DUI conviction will order that the defendant attend other beneficial and preventative programs. They may be used when there is clear addiction, or even in cases with younger first-time offenders that may just need to be “scared straight”

Alcoholics Anonymous

Attending AA meetings will generally be required of anyone who may be battling alcohol addiction. The defendant may be required to attend even lacking addiction and must get attendance forms signed by the person running the meetings.

DUI School

In most DUI convictions, the defendant will be required to attend DUI school. They can be as short as a 12-hour program, and in some cases, as long as 30 months, and while enrolled the defendant must refrain from using any alcohol or drugs. Upon completion, they will be able to show the court proof of completion.

Victim Impact Panel

A victim impact panel, or VIP, is often run by organizations like Mothers Against Drunk Driving and will have the defendant be presented with a speech, videos, and even slideshows about the damage drunk driving can have on individuals and families. They generally last only a few hours and are another option for first-time offenders.

Hospital & Morgue Program

A special program run in Los Angeles County called the Hospital and Morgue Program (HAM) will sometimes be available to first-time offenders. They will be required to spend 4 hours in an ER and 4 hours in a morgue, witnessing the damage done by drunk drivers, first-hand. While in the morgue they will watch bodies of drunk driving victims be photographed, processed, and autopsied, and following the completion of the program they may be required to write an essay regarding their experience.

Proving Your Compliance

Once you enroll in any court-ordered classes or programs, you will often receive paperwork to prove you have started them. In some cases, the programs will automatically notify the courts, but this is not guaranteed. Once you finish the programs you will also receive proof of completion, which you will need to show the judge to have the requirement shown as fulfilled. 

This can even be receipts for payment of fines or restitution. Failing to show you followed the court’s orders can result in an arrest warrant being issued for you. This applies to any post-conviction appearances or programs.

Have You Been Accused or Convicted of a DUI in California?

If you or someone you care about has been accused or convicted of a DUI offense in California, one of the best things you can do to protect yourself and your rights is to work with an experienced local attorney. While they may not be able to get your conviction reversed, they can help protect your rights while on probation and can be your representative in any hearings or subsequent court dates you have regarding your conviction.