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Vehicular Manslaughter While Intoxicated in California
Vehicular Manslaughter While Intoxicated in California
Gross vehicular manslaughter while intoxicated is a serious DUI offense in California. If law enforcement officers arrest you after a DUI accident resulting in death, contact a Southern California DUI lawyer immediately for a free consultation. Talking to the police or a prosecutor without legal representation could hurt your DUI defense.
This article explains gross vehicular manslaughter in California. In addition, we discuss potential sentences for gross vehicular manslaughter while intoxicated in California and the possible defenses a DUI attorney might use to fight the charges.
What is Gross Vehicular Manslaughter While Intoxicated According to California Penal Code 191.5(A)?
The criminal offense known as gross vehicular manslaughter while intoxicated is defined within California Penal Code §191.5(a). The statute states that gross vehicular manslaughter while intoxicated is:
- Unlawfully killing another person;
- Without implied or express malice (malice aforethought);
- While driving a vehicle in violation of California Vehicle Code Sections 23153, 23152, or 23140, AND;
- The death was the caused by committing the unlawful act, but was not a felonious act with gross negligence; OR
- Committing a lawful act in an unlawful manner and with gross negligence that could result in the death of another individual.
The statute can be very confusing and difficult to understand when reading at first glance. However, the legal definition of gross vehicular manslaughter while intoxicated in California can be more easily understood when it’s broken down. So let’s explain what the statute means in non-legal terms.
Gross Vehicular Manslaughter While Intoxicated “Explained”
The criminal offense of gross vehicular manslaughter occurs when you kill someone while driving under the influence of alcohol and/or drugs. You do not need to intend to kill someone to be charged with this crime. Instead, all that is required is you take another life while committing a grossly negligent unlawful act—such as drunk driving. The unlawful act itself does not need to be a felony.
Additionally, you can still be charged with gross vehicular manslaughter while intoxicated if your conduct is lawful. Still, the conduct could result in another person’s death in an unlawful manner and with gross negligence.
How Does the Prosecutor Prove Gross DUI Manslaughter Under PC 191.5(a) Was Violated?
According to the Penal Code and the Judicial Council of California Criminal Jury Instructions, in order for the prosecutor to prove gross DUI manslaughter, they must demonstrate:
- You were operating a motor vehicle with a blood alcohol concentration (“BAC”) above the legal limit, OR you were under the influence of drugs or alcohol;
- While you were driving the vehicle under the influence of alcohol and/or drugs, you committed a misdemeanor offense or infraction, OR you committed a lawful act that could cause death;
- The misdemeanor, infraction, or lawful action that could cause death was committed with gross negligence; AND
- Your gross negligence resulted in killing another individual.
The legal limit for most drivers in California is a BAC of .08% or higher. However, persons driving a commercial motor vehicle or a vehicle for hire have a lower legal limit of .04% or higher. Additionally, it is unlawful for underage drivers to operate a motor vehicle with a BAC of .01% or higher under California Vehicle Code §23136 or a BAC of .05% or higher under California Vehicle Code §23140.
What Is an Example of Gross DUI Manslaughter According to California Penal Code Section 191.5(a)?
A key legal element for the prosecution to prove is that your grossly negligent conduct caused the person’s death. In legal terms, gross negligence has been defined as reckless conduct that demonstrates a lack of care for the safety of other people. The recklessness and lack of care are so great that the conduct appears to be a conscious violation of the rights of other individuals.
The California Jury Instructions explain gross negligence as a lack of any care or an extreme departure from conduct that a reasonably cautious individual would do in the same situation to prevent harm to themselves or another person. Grossly negligent conduct can be an act or a failure to act.
The legal elements of negligence, which must all be demonstrated by a prosecutor, are:
- A duty of care owed by the defendant towards the party harmed;
- A breach of this duty by the defendant;
- Causation of the harmed party’s injuries by the defendant as a direct effect from the defendant’s actions; and
The state must prove that your conduct was negligent. Then, the prosecution must prove that your conduct was “extreme” to justify gross negligence. Examples of gross negligence for DUI manslaughter could include driving a vehicle under the influence of alcohol or drugs and causing an accident while:
- Driving at excessive speeds (i.e., 90 mph);
- Driving on the sidewalk;
- Driving in the wrong direction; or
- Repeatedly ignoring traffic laws.
In each of the above examples, a reasonable person would know that doing these things could create an unreasonable risk of death. It is important to note that the person must be intoxicated and must cause a traffic accident for the state to charge the person with a criminal offense under PC §191.5(a).
Gross negligence is the complete disregard for the safety of other people. If your conduct does not meet the definition of gross negligence, you cannot be convicted under this statute. However, that does not mean you escape punishment for causing a DUI accident which results in death. There are several vehicular manslaughter charges or murder charges that the state could use to prosecute you after a DUI accident involving death.
What Are My Chances of Beating a Gross Vehicular Manslaughter DUI Charge in California?
If you represent yourself, your chances of beating a gross vehicular manslaughter DUI charge are much lower than if you hire an experienced Orange County DUI attorney. A California DUI defense lawyer understands the legal elements of the criminal charges. In addition, an attorney understands the potential DUI defenses and how to challenge the state’s evidence alleging your actions amounted to gross negligence.
Your best chance of beating charges of gross vehicular manslaughter while intoxicated in California is to hire an experienced DUI lawyer as soon as possible after the police arrest you for drunk driving.
Related Charges to Gross Vehicular Manslaughter While Intoxicated Charges
The state could charge you with one or more related offenses if the prosecutor does not think they can prove your actions amounted to gross negligence. Other similar offenses to gross vehicular manslaughter while intoxicated include:
- Vehicular Manslaughter While Intoxicated (PC §191.5(b));
- DUI Causing Injury (VC §23153);
- Vehicular Manslaughter (PC §192(c)); and
- DUI murder or Watson Murder (PC §187).
The language in California Penal Code §191.5(b) is the same as gross vehicular manslaughter, except that the charge involves ordinary negligence. Vehicular manslaughter while intoxicated is often used in DUI plea bargains as a charge reduction. The penalties are lesser than the penalties for gross vehicular manslaughter while intoxicated. Since it is a wobbler offense, a California DUI attorney might negotiate a DUI plea deal to reduce the charges to a misdemeanor which would only carry up to one year in county jail.
Legal Defenses to a Charge of Gross Vehicular Manslaughter While Intoxicated: How to Fight Gross DUI Manslaughter Charges Under PC 191.5?
There are several sound legal defenses to a charge of gross DUI manslaughter. The facts and circumstances of the case determine the type of defense strategy your California DUI defense lawyer chooses. There are several defenses that could be applied to fight gross DUI Manslaughter charges under California penal Code 191.5. Potential defenses to gross DUI manslaughter charges include:
Insufficient Evidence of Intoxication
Your DUI defense attorney may use one or more standard DUI defenses to argue that you were not intoxicated at the time of the accident. These DUI defenses might include:
- Challenging the chemical test results because of violations of California Title 17 governing the collection, testing, and storing of blood, urine, or breath samples;
- Challenging the validity of the chemical test because of errors made by police officers or health conditions that could result in falsely high BAC levels;
- Alleging that rising alcohol levels and residual mouth alcohol caused the high BAC levels;
- Claiming the BAC levels were inaccurate because of a health condition or environmental factors;
- Offering a simple explanation for why the officer thought you exhibited signs of intoxication, such as a health condition, fatigue, shock from the accident, etc.; and
- Raising allegations of police misconduct in the accident investigation and DUI arrest.
A DUI lawyer might use other DUI defenses as well, depending on the facts of your case. A DUI defense attorney investigates the arrest and analyzes the state’s evidence to determine potential defenses.
You Weren’t Driving Under the Influence of Alcohol or Drugs
If you did not take a chemical test, the prosecution must prove that you were driving under the influence of alcohol or drugs. Driving under the influence means your driving ability was impaired by alcohol or drugs in your system.
First, your attorney attacks the state’s assertion that you had alcohol or drugs in your system because it does not have a BAC test to prove the allegation. Second, your lawyer might attack the police officer’s observations and statements by witnesses that you were “acting” intoxicated or showed signs of alcohol or drug use.
You Weren’t Demonstrating Gross Negligence
Your behavior and conduct did not amount to gross negligence. Your attorney might argue that you were negligent, but your conduct amounted to ordinary negligence. Therefore, you cannot be convicted according to California Penal Code §191.5(a). However, the prosecution could reduce the charges to vehicular manslaughter while intoxicated under PC §191.5(b). As discussed above, the penalties are much less severe under PC 191(b).
You Weren’t Responsible for the Victim’s Death
Your gross negligence must result in the other person’s death to be guilty of gross vehicular manslaughter while intoxicated. The traffic accident might not have been your fault. The other driver or another party could have caused the accident. Even though your conduct was grossly negligent, it did not result in the person’s death. Therefore, you are not guilty of gross vehicular manslaughter while intoxicated.
You Faced Imminent Peril
Was there an emergency that caused you to drive while impaired and act as you did? If an ordinary reasonable person would act in the same way, you would not be guilty of gross negligence.
Gross Vehicular Manslaughter While Intoxicated Sentencing and Penalties: What Are the Legal Penalties for Gross DUI Manslaughter?
Gross DUI manslaughter convictions carry severe criminal penalties. A conviction under PC §191.5(a) typically results in:
- A state prison sentence of four, six, or ten years;
- Felony (formal) probation; and
- Fines of up to $10,000.
However, your sentence is harsher if you have one or more prior convictions on your criminal record for vehicular manslaughter while intoxicated (ordinary, gross, or while operating a boat), DUI offenses, or DUI causing injury. You could face up to 15 years to life in prison for a conviction of gross vehicular manslaughter while intoxicated in California.
Gross Vehicular Manslaughter While Intoxicated FAQs
Below are answers to frequently asked questions (“FAQs”) about gross vehicular manslaughter while intoxicated in California.
Will I Lose My Driver’s License if I Am Convicted Under PC 191.5(a)?
Yes, you lose your driving privileges for a conviction of gross vehicular manslaughter while intoxicated. The California Department of Motor Vehicles (“DMV”) revokes your driver’s license for at least three years.
You face additional charges and penalties if you operate a motor vehicle with a revoked driver’s license.
Before you can drive again, you must complete all terms of your DUI sentence. After that, you must apply to reinstate your driver’s license with the DMV, including paying fines, reinstatement fees, and providing proof of required insurance.
Is Gross DUI Manslaughter Under PC 191.5 a strike?
A conviction of gross DUI manslaughter is a serious felony offense. Therefore, it counts as a strike under California’s Three Strikes Law. The law significantly enhances the penalties for a third strike.
If you have two strikes against you when you are convicted of gross DUI manslaughter charges, the judge could sentence you to 25 years to life in prison. Therefore, it is crucial that you contact a California DUI attorney immediately to discuss ways to fight DUI charges when you have prior strikes on your record.
What Is the Sentence for DUI Vehicular Manslaughter in California?
With a conviction of gross DUI vehicular manslaughter, you face up to 10 years in prison. If you have past DUI convictions, your prison sentence increases to 15 years to life. In addition, if people were injured in the DUI crash but survived, you also face an additional three to six years in prison per victim who suffered great bodily injury.
If you plead down to DUI vehicular manslaughter under PC §191.5(b), the penalty for a misdemeanor offense is up to one year in county jail. If you are charged with felony DUI vehicular manslaughter, you could serve up to four years in state prison. However, the same rule applies if there are survivors who suffer great bodily injury, so the prison sentence could be longer.
If this conviction is your third strike, the sentence is 25 years to life in prison under California’s Three Strikes Law.
What Is the Difference Between Gross Vehicular Manslaughter and Vehicular Manslaughter?
The language in the Penal Code is the same for both DUI offenses. However, gross vehicular manslaughter requires that the state prove your conduct rose to the level of gross negligence. If the state cannot prove gross negligence, the prosecutor might try to prove ordinary negligence for DUI vehicular manslaughter or charge you with another DUI offense.
What’s the Penalty for Vehicular Homicide in California?
Officers charge you with vehicular manslaughter or vehicular homicide under Penal Code §192(c). A person is guilty of this criminal offense if they cause another person’s death while operating a vehicle in a negligent or unlawful manner. A prosecutor might choose this charge if the evidence is not strong enough to prove DUI vehicular manslaughter or DUI murder charges.
The penalties for vehicular homicide or vehicular manslaughter under this code section depend on the exact charges and the facts of the case. If you are charged with vehicular manslaughter with gross negligence as a misdemeanor, you face up to one year in jail, a $1,000 fine, and one year of summary probation. However, if the state proves felony vehicular manslaughter with gross negligence, the punishment increases to a state prison sentence of up to six years, a fine of up to $10,000, and formal probation.
A misdemeanor charge of vehicular manslaughter without gross negligence carries a jail sentence of up to one year, a $1,000 fine, and summary probation. If the charge includes allegations of financial gain or insurance purposes, the charge is always a felony. The punishment would be up to ten years in state prison and a fine of up to $10,000.
Get Help from a California DUI Lawyer
Charges of vehicular manslaughter while driving under the influence are serious criminal charges. Depending on the circumstances and your past criminal history, you could face a lifetime in prison. Don’t try to fight DUI charges alone. Instead, contact an experienced Southern California DUI attorney for a free consultation.
Talk To A DUI Defense Attorney
An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic, or other topics similar to it? Find more articles on our blog, updated regularly!
Sources: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=191.5.&lawCode=PEN
https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23136.&lawCode=VEH
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23140.&lawCode=VEH
https://www.law.cornell.edu/wex/gross_negligence
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=192.
https://www.courts.ca.gov/documents/rupro-20170822-materialsAddl.pdf
False PAS Readings: Everything You Need to Know in California
False PAS Readings: Everything You Need to Know in California
Did you know that a person can fail a breathalyzer test, also known as a Preliminary Alcohol Screening test (“PAS”) when they haven’t even been drinking alcohol? You may be surprised to learn that PAS tests are often inaccurate, and many factors can give false positives.
Why Is the Breath Test Result Such a Big Deal?
The breath test is a big deal because it can be the basis for arresting you and charging you with a DUI. After all, the test supposedly shows whether you were above the legal limit of .08%. It can then lead to further chemical testing at a police station, a night in jail, and automatic suspension of your driver’s license by the California Department of Motor Vehicles within a month.
Many people are improperly or unfairly charged with a DUI under California law. If this happens to you, you should immediately speak with a Southern California criminal defense attorney. Many drunk driving cases can be won, and a DUI defense attorney may successfully fight your breath testing result. Many attorneys, such as The Law Offices of Taylor and Taylor, even offer a free consultation.
If you do not protect your rights, you could end up dealing with a DUI conviction, DUI penalties, and DUI probation. DUI laws are not always applied fairly, and it is never a good idea to go through this process alone.
Are Breathalyzers Admissible in Court in California?
Yes. All breathalyzer tests utilized by law enforcement in California can be admitted as evidence in court in California. However, the type of test or device may not carry the same weight as another. An experienced DUI lawyer will be able to help explain these nuances to you, and may also be able to prevent the results of a field sobriety test from being allowed as evidence in your case.
What Is the Difference Between a PAS and Other Breath Tests?
There are two breath tests used in California. The first is a PAS breath test, usually conducted during a traffic stop before a DUI arrest. Police officers have this test at their disposal to aid them in a DUI investigation. You can refuse this breathalyzer test in California unless you are under 21 or on probation for drunk driving.
After a DUI arrest, a second type of breath testing may be administered. This test uses equipment that follows requirements outlined in Title 17 of the California Code of Regulations.
A title 17 breath test must collect air from deep within the lung called “alveolar air”. Before giving a driver this test, a police officer is supposed to continuously observe them for 15 minutes and ensure they do not ingest food or drink, smoke anything, burp, or throw up. Any of these events can affect test results. You cannot refuse this test, but you are allowed to request a blood test or urine test instead, if available.
District attorneys always prefer to have a title 17 breath test taken over a PAS test because they are supposedly conducted in more controlled settings and with better equipment. Thus, they are viewed as a more reliable source of evidence. However, they are not perfect, especially if law enforcement or other personnel are not authorized to give them or don’t follow protocol.
PAS tests can be introduced as evidence at trial but are subject to more lines of attack and questioning from a DUI defense attorney.
Will Benzyl Alcohol Show Up on a Breathalyzer?
Yes, benzyl alcohol can show up on a breath test. Benzyl alcohol is found in Anbesol, an ingredient in many oral gels used to treat canker sores and toothaches. If a person has recently applied an oral gel and takes a breath test, they can test positive on breath test machines. They may “blow” a higher BAC level than would have otherwise been the case had they not had this in their system.
How to Discredit a PAS Breath Test in a California DUI Case
A PAS breath test can be discredited in many ways. In addition to the false positives caused by oral gels, other common medications and personal hygiene products can also cause false positives.
Medications that treat asthma, COPD, bronchitis, and emphysema can also affect breath test results. If a person is sick and has been taking cough drops or cold medications, they may contain alcohol and be in your breath sample when a test is administered. Residual alcohol, known as “mouth alcohol” from mouthwashes and breath sprays, can also affect breath tests.
Breath test machines are intended to measure deep lung air. Alcohol from alcoholic beverages, alcohol vapor or “mouth alcohol” can all cross between the bloodstream and lungs fairly easily. When a person takes a breath test, mouth alcohol can mix with exhaled air and a device can interpret this as a blood alcohol concentration reading. Breath test machines cannot necessarily tell the difference between residual alcohol in your breath versus deep lung air.
A skilled Orange County DUI attorney can show that these factors could have caused a false positive and your preliminary alcohol screening test to show a blood alcohol concentration of 0.08% as opposed to you being above the legal limit.
If I Really Was Drinking, Can I Still Fight the Breath Test?
Yes, you may be able to fight the results even if you were drinking. Many potential defenses can prevent a breath test from being considered in your case. If a prosecutor does not have evidence beyond a preliminary alcohol screening test or breath test result, they may have to drop their case or negotiate the charges down.
From issues that may exist with whether police officers had probable cause to arrest you, whether field sobriety tests were administered correctly, or whether there were other factors that could have created false positives, you may be able to fight test results. This can lead DUI charges against you being dropped, dismissed, or reduced.
What Happens if I Am Convicted of a DUI?
The consequences for DUI conviction under California law largely depend on whether you are convicted as a first-time or repeat offender. There can be fees and costs in addition to DMV penalties which may lead to the suspension of your driver’s license.
A first-offense DUI in California can carry three years of informal probation, fines, and penalties totaling several thousand dollars. You will also have to complete a first offender alcohol program which can cost another few hundred dollars. In many cases, drivers will also have to do community service or participate in a victim impact panel.
Most people will not be sentenced to jail time unless certain aggravating factors are present in their case. These can include a minor child in the car or going 25 miles an hour or more above the speed limit on a roadway. In addition, your county may require you to install a handheld breathalyzer in your car to prevent it from starting if it detects you have been drinking.
For repeat offenders, the consequences become more serious. For a second-time offender, there is a minimum jail time of 96 hours. Additionally, prosecutors will usually seek more time, up to a year. You can lose your license for two years.
What Are the Best Strategies for Attacking Breath Test Results?
Many strategies may be available to you. However, the best place to start is usually at the beginning. Did the officer have a legal justification for detaining you? In other words, did they have probable cause to pull you over and give you a breath test?
Another strategy revolves around whether a testing device was reliable and in proper working order. You can also question whether a test was adequately administered or if the test correctly determined your blood alcohol content. Chemical test results can also be challenged if specific procedures are not followed, contamination or improper handling is suspected.
If you suffer or were suffering from any metabolic or medical conditions at the time of your arrest, you may have a mouth alcohol or medical defense. Prescription drug content may make your breath sample an unreliable indicator of a person’s blood alcohol concentration.
Should I Contact a Lawyer to Help Me?
Yes, absolutely. There are many steps to the process that you may be unable to adequately handle on your own. For example, after a DUI arrest, you must worry about a potential criminal case and an administrative case with the California Department of Motor Vehicles regarding the suspension of your license.
A SoCal DUI Lawyer can help you navigate both of these proceedings. Attorneys are also familiar with tactics used by local district attorneys, California law, minimum and maximum sentencing requirements, and the likelihood of being able to reduce your charges versus getting them dismissed.
Finally, a DUI conviction can seriously impact your livelihood if you have any professional license, such as a medical, dental, pharmacy, or pilot license. An attorney can help you determine the best defense strategy with the most negligible impact on your personal and professional life.
Do Not Blow in PAS Breath Test if Stopped for a SoCal DUI
You may refuse to take a preliminary alcohol screening pass in California unless you are under 21 or on probation for drunk driving. If you are on probation and will not take the test, your probation may be revoked, and you may serve jail time. If you are below age 21, you can lose your driver’s license if you refuse to test.
The main reason for a preliminary alcohol screening is so that the officer who pulls you over can establish probable cause to arrest you for DUI. An officer may claim you are required to take it or that it could help you in your case. This is only true if you are confident that you are under the legal limit of 0.08. But, as explained above, you can fail a test even if you have not been drinking alcohol.
Get in Touch with an Experienced DUI Attorney Today
If you or someone you care about is dealing with a DUI, you should speak with our experienced DUI defense attorney today. You may be able to defend your case and avoid DUI charges.
Our defense attorneys have decades of experience handling California DUI matters and will aggressively fight to help you get the best result possible. Contact us today for a free consultation.
CA DUI Frequently Asked Questions
1. When Is a Breath Test Given in a DUI Case?
A breath test is usually given after a police officer has observed a driver acting in a way that may lead them to suspect they have ingested alcoholic beverages before driving. This can occur at a DUI checkpoint or if someone has been pulled over for another reason. It may also be used as a further investigative tool to establish probable cause.
2. Can a Driver Refuse to Take a DUI Breath Test?
A driver can refuse a DUI breath test under certain circumstances. However, there can be harsh consequences for your refusal to take a test. California vehicle code section 13353 penalizes anyone who does not submit to a breath, blood test, or chemical tests as follows:
- Suspend driving privileges for one year;
- Revoke a person’s driving privileges for several years if the person has had prior violations in the past 10 years;
- Mandatory jail time in some scenarios; and
- Increased time in DUI school.
A person’s individual circumstances will impact how harsh the penalties may be.
3. Is It Better to Choose a DUI Breath Test or a Blood Test?
Having to take either test is not ideal. However, blood tests are believed to be more accurate than breath tests by prosecutors and a more robust source of evidence regarding BAC levels. Because of this, they are often less willing to negotiate with DUI lawyers on charges involving a blood test. If you have a choice, the breath test may be a better option because it is easier to exclude in court.
4. How Do Title 17 Regulations Apply to DUI Breath Tests?
Title 17 of the California Code of Regulations has very specific rules about how police departments and law enforcement must conduct blood tests, breath tests, and chemical tests. If the police do not comply with Title 17, the DA may not be able to use test results to support their case to charge and convict a person.
In the case of breath tests, every test must follow specific procedures. Many law enforcement officers routinely fail to follow these procedures:
- Two separate breath samples must be used, each resulting in determinations of breath alcohol concentrations that do not differ by more than 0.02 grams per 210 liters of breath.
- The breath test devices must be regularly maintained and checked for accuracy following specific procedures. This must occur every 10 days after 150 people have been tested, whichever comes sooner.
- The person operating the device must have had particular training.
There are also precise procedures that must be followed for blood collection and retention as well as urine collection and retention.
5. What Is the Science Behind Testing Breath for BAC?
The “science” behind this process is based on a ratio calculated due to a chemical reaction detected and interpreted by a breath test. Alcohol vapor in a person’s breath sample reacts with an orange solution known as potassium dichromate. If alcohol is present, this solution is supposed to become green, which produces an electrical current. A breathalyzer is supposed to convert this current into a numerical value representing a person’s blood alcohol levels (BAC).
Many professionals disagree regarding the strength or reliability of this supposedly “scientific” testing methodology.
6. Can Medical Conditions Produce False Readings?
Yes, many medical conditions such as gastrointestinal reflux disease, metabolic conditions caused by people following ketogenic diets, medications from dental issues, diabetes, asthma inhalers, and more can produce false readings.
7. Can “Residual Mouth Alcohol” Trick a Breathalyzer?
Yes. Residual mouth alcohol is a prevalent cause of false positive results. It can stay in a person’s mouth for roughly 15-20 minutes before dissipating. If the person exhales soon after drinking, a breathalyzer can pick up some of this leftover mouth alcohol. This means that the sample relied upon can contain an amount of alcohol attributable to mouth alcohol and cause a test result higher than a person’s actual BAC.
8. What Other Factors Can Contribute to Falsely High Readings?
In addition to medical conditions and mouth alcohol, a person’s environment can lead to false readings. For example, a person who is regularly around acetone, such as someone who works in a paint store or construction, may have acetone in their system. Acetone can inflate readings.
If equipment has been used repeatedly and without proper cleaning, alcohol contamination from a prior tester may contribute to a falsely high reading.
Talk To A DUI Defense Attorney
You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Sources:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=13353&lawCode=VEH
What Happens When a Police Officer Gets a DUI?
What Happens When a Police Officer Gets a DUI?
Police officers know California DUI laws very well. They understand what it means to drive while under the influence. They also understand the penalties. Unfortunately, some officers still get behind the wheel drunk. When that happens, they are subject to the same laws and penalties as anyone else driving while intoxicated.
However, a police officer’s job could be in jeopardy after a DUI conviction. Contact our experienced Southern California DUI attorneys immediately for a free consultation if you’re facing DUI charges. We will develop a defense strategy that gives you the best chance of getting out of a DUI charge and will hopefully keep your career out of jeopardy.
What Happens When a Police Officer Gets a DUI in California?
No one is above the law. Police officers are subject to the same DUI laws as all other drivers. Police officers driving under the influence of alcohol can be stopped and arrested for DUI. The offending officer would receive a Notice of Suspension just like any other driver. The officer would also be given the choice of a blood test or breath test to determine their blood alcohol concentration (“BAC”) level. Additionally, refusing the chemical test would result in a longer administrative license suspension (“ALS”) by the California Department of Motor Vehicles (“DMV”).
The Notice of Suspension allows individuals to continue to drive for 30 days after the DUI arrest. It also notifies the person of their rights related to a DMV hearing. You have just 10 days after a DUI arrest to request a DMV hearing. If not, the DMV automatically suspends your driver’s license.
The police officer would face the same DUI penalties that the court would impose on any other driver convicted of DUI.
It is also important to note that police officers have the same legal rights as other drivers. Therefore, a police officer charged with intoxicated driving should call a California DUI attorney for a free consultation to discuss potential defense strategies to beat the DUI charges.
Statistics Regarding Police Officers and DUI Offenses
A 2016 study analyzed arrest records for 6,724 law enforcement officers over a seven-year period. During that time, 960 cases were DUI cases.
Unfortunately, it is difficult to know the exact number of law enforcement officers arrested for drunk driving each year. It is not uncommon for police officers enjoy an “exemption from law enforcement” or the “blue wall of silence.” In other words, police officers do not generally arrest other police officers. Instead, they give them a “pass” whenever possible. Although unethical, illegal, and dangerous, this is unfortunately a reality which corrupts this statistical data.
What is the Blue Wall of Silence?
The “Blue Wall of Silence” is the public perception that police officers protect each other. A fellow police officer will look the other way when an off-duty officer commits a crime. One way this situation could hypothetically play out is as follows: a police officer stops another officer for drunk driving. The officer making the stop then calls someone to pick up the drunk officer and drive them home in their car instead of arresting them for drunk driving.
However, while police officers have a strong bond with each other, they must also follow the law. California law states that anyone driving a motor vehicle under the influence of a drug or alcohol is committing a crime. Therefore, any officer making the traffic stop for a DUI should arrest the driver, regardless of whether the driver is a fellow officer.
Can You Be a Police Officer with a DUI Conviction in California?
No California law prohibits a person from being a police officer with a DUI conviction on their criminal history. However, criminal convictions can have collateral consequences that impact a person’s career. For example, some professional licensing boards can revoke or suspend licenses for individuals convicted of a crime.
A single drunk driving offense will not likely prevent you from becoming a police officer. However, you might find that some police departments or law enforcement agencies will decline to hire you. California does not have standard hiring policies for law enforcement agencies. Each agency or department may determine its own hiring policies, provided those policies do not violate anti-discrimination laws or California labor laws.
Therefore, you might be turned down by several police departments because of your DUI history, but another department might hire you. The key is to keep searching and not give up.
DUIs Involving People Who Want to Become Police Law Enforcement Officers
Multiple factors may help determine if a DUI impacts your career choice as a law enforcement officer. For example, a misdemeanor first-time DUI with no aggravating factors might not prevent you from being an officer. However, if you are a repeat offender or you were charged with felony DUI, a conviction might derail your career plans. Furthermore, aggravating factors could make finding work in law enforcement more difficult. Aggravating factors for California DUIs include:
- Driving with a minor under 14 years old in the car;
- Having a high BAC level (generally over .15%);
- Refusing a chemical test;
- Having prior drunk driving convictions;
- Speeding or racing at excessive speeds;
- Underage drinking and driving;
- Having a prior felony DUI conviction on your record; and
- Causing death or injury to another person while driving under the influence.
Any of the above aggravating factors can increase your DUI charges and enhance your sentence if convicted. You should never assume that a misdemeanor DUI charge is not a serious criminal offense. If you are a police officer or desire to make a career in law enforcement, you need to work with a Southern California DUI attorney to try to dismiss the charges.
What Factors Do Law Enforcement Agencies Consider When Reviewing a DUI for a Police Officer?
As discussed above, police departments and law enforcement agencies in California set their own hiring policies and requirements. While there are basic requirements to be a police officer, the state allows the agencies to set the remaining policies and procedures. Therefore, you need to look to the specific department(s) relevant to you to determine the eligibility requirements and the factors used when hiring an officer.
For example, the Los Angeles Police Department (LAPD) states that a failure to follow all traffic laws could potentially disqualify a person from employment. On the other hand, the California Highway Patrol only shows the minimum requirements for officers on its website. However, it does state that a felony conviction disqualifies you, and you face questions about illegal drug use, arrests, traffic citations, at-fault car accidents, and convictions.
If the department or agency does not disqualify someone from employment for a DUI, they might consider several factors when deciding whether the conviction impacts the employment decision. Factors they might consider include:
- How old is the conviction for driving under the influence?
- Did you injure or kill someone when you were driving while intoxicated?
- What was the exact DUI charge, and were there any aggravating factors?
- Did you have the required automobile insurance before and after the DUI?
- Did you cause property damage?
- Was the conviction for a first-time DUI?
- Have you had any wet reckless or driving under the influence charges since then?
- Were you addicted to drugs at the time?
Working with an experienced California DUI attorney can help you keep your criminal record clean. If you cannot avoid a guilty verdict, a lawyer uses the evidence and the facts of the case to negotiate a plea deal with the best terms possible.
What Happens When a California Police Officer Gets a DUID?
DUID or driving under the influence of drugs could be viewed more harshly than driving under the influence of alcohol. Agencies often have zero tolerance policies regarding illegal drug use. For example, the City of Irvine states using drugs is an automatic disqualification for employment.
Furthermore, if the drugs in your system are illegal drugs, you could be guilty of one or more drug offenses.
What Are the California DUI Laws That an Officer Could Face?
California Vehicle Code §23152 makes it illegal to drive a vehicle when:
- You are under the influence of alcoholic beverages;
- You are under the influence of any drug;
- Your BAC is above .08%;
- You are under the influence of drugs and alcohol; or
- Your BAC level is above .05% if you drive a commercial motor vehicle or a vehicle that has passengers for hire in the vehicle when you are stopped for DUI.
California laws also include a zero-tolerance policy for underage drivers (drivers under 21 years old) and drivers who are currently on probation. They can be arrested if they refuse a preliminary alcohol screening (“PAS”) test or if they have any measurable amount of alcohol in their system.
A police officer on duty or off duty can be charged with one or more offenses if they have drugs or alcohol in their system. Their BAC does not need to exceed the legal limit to be arrested for DUI.
What Penalties Will a Police Officer Face if Convicted of DUI?
DUI penalties can be severe. Depending on the county of arrest and the factors involved in the case, a person could serve mandatory jail time for a misdemeanor first DUI charge. However, serving any amount of time in jail could be extremely challenging for a police officer.
Potential punishments an officer could face for a guilty verdict include:
- Fines and assessments, which could total thousands of dollars;
- Mandatory jail time or prison sentence;
- Installation of an ignition interlock device (“IID”);
- Attending DUI school;
- Driver’s license suspension or revocation; and
- Three to five years of summary or informal probation.
If you are a repeat offender, the DMV may designate you as a Habitual Traffic Offender.
Also, the judge generally imposes several conditions for probation. You might be required to attend one or more DUI programs and complete community service houses. Standard restrictions prevent you from consuming alcohol, using drugs, and committing other criminal offenses.
What Are the Work-Related Consequences When a Police Officer Has a DUI Conviction?
There could be several work-related consequences if you have a DUI conviction while employed as a police officer. For example, you could be placed on leave or suspended without pay. In addition, if you lose your driving privileges, you might be assigned to a desk job.
Depending on the facts of the case, the department might terminate your employment. You could be demoted or face other consequences. It all depends on the circumstances of your conviction and the policies the department has in place. This is why it is so important to have an experienced DUI attorney as soon as possible, so they are able to help you navigate the complex California DUI laws.
Potential DUI Defenses Cops Can Use When Charged with Drunk Driving
Just as cops are subject to the same laws as everyone else, they also have the same legal rights as everyone else charged with drinking and driving. For example, they have the right to remain silent and the right to legal counsel. They also have the right to present a defense and challenge the state’s evidence.
Potential defenses to a police officer’s DUI case include:
- The arresting officer did not have probable cause for the arrest;
- The officer making the traffic stop lacked reasonable suspicion;
- The drugs or alcohol in your system did not impair your driving ability;
- Mistakes and errors invalidated the chemical test results (i.e., violations of Title 17 regulations);
- Environmental factors impacted the results of field sobriety tests (“FSTs”);
- A health condition caused a falsely high BAC level;
- Residual amount of alcohol or rising alcohol levels caused the high BAC result;
- The arrest occurred at an illegal DUI sobriety checkpoint;
- Faulty or malfunctioning equipment; and
- The breathalyzer was not calibrated correctly.
There could be other DUI defenses in your case besides the ones listed above. A California DUI criminal defense attorney thoroughly analyzes all aspects of your case, including the state’s evidence. The investigation and evidence could result in additional defenses.
Does It Help to Have the DUI Expunged if I Am a California Law Enforcement Officer?
Most DUI convictions are eligible for expungement. To have your DUI expunged, you must meet the following criteria:
- You did not serve prison time;
- A state court issued the sentence;
- No probation violations;
- You completed probation, including all terms and conditions imposed by the court;
- It has been at least one year since your conviction if you were not sentenced to probation;
- No other criminal charges; and
- You are not serving time or probation for another crime.
An expungement under the California Penal Code §1203.4 does not remove the arrest from your record. However, it does remove the guilty verdict or plea and replace it with a not guilty plea. The court then dismisses the case, so it appears that you were never convicted of a crime. New expungement laws governing most DUI expungements after January 1, 2021, could seal the case. However, courts and law enforcement might have access to the records.
Talk to a California DUI Defense Attorney
Do not try to represent yourself if you are a police officer charged with a drunk or drugged driving offense. Instead, call us to schedule a free consultation with a California DUI attorney to discuss how we can help you fight the charges to prevent negative career consequences. As mentioned above, an experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our recent article about whether or not a DUI charge could lead to termination of employment, and other related articles on our blog, which is updated regularly!
Sources:
https://www.ojp.gov/pdffiles1/nij/grants/249850.pdf
https://www.joinlapd.com/qualifications
https://www.chp.ca.gov/chp-careers/officer/why-become-a-chp-officer/minimum-requirements-officer
https://www.cityofirvine.org/ipd-divisions-bureaus-units-irvine-police-department/employment
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1203.4.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=851.93.
Nurse Arrested for a California DUI?
Nurse Arrested for a California DUI?
You May Have More to Worry About Than a Fine and Jail Time
Being arrested and convicted of driving under the influence in California can have devastating consequences. Furthermore, DUI convictions could impact your career if you have a professional license. The first step in protecting your nursing license is to contact an experienced Southern California DUI attorney for a free consultation. A DUI defense lawyer can present a solid defense to the DUI charges to help you avoid damaging your nursing career.
What Happens if A Nurse Gets A DUI In California?
A DUI can be a life-changing event; but the stakes are even higher for licensed professionals such as nurses. First, California Registered Nurses face the same DUI penalties as other individuals, including minimum jail time. They can be arrested for driving under the influence of alcohol or drugs or driving with a blood alcohol content (“BAC”) above the legal limit under California Vehicle Code §23152.
However, in addition to a DMV hearing, jail time, and criminal charges, a registered nurse (“RN”) faces investigation and disciplinary action by the California Board of Registered Nursing (“BRN”).
What Are My Affirmative Disclosure Requirements?
Affirmative disclosure requirements state that a registered nurse must report criminal convictions to the licensing board within 30 days of the date of the court action. The requirement applies whether the nurse pleads guilty to DUI charges, enters a plea of no contest, or is found guilty after a DUI trial. Nurses must also report DUI expungements to the BRN.
Nurses must also report any criminal convictions when they renew their RN license. Being convicted of a crime could result in a longer process when renewing your nursing license, so you should allow for extra time to receive a license renewal. You should also disclose whether your driver’s license was suspended or revoked because of the DUI arrest or conviction.
Do I Have to Report a DUI to the BRN?
A DUI is a criminal charge, even though the law is codified in the California Vehicle Code. The California Vehicle Code specifically states that it is “unlawful” for a person to operate a motor vehicle under the influence of alcohol and/or drugs. Therefore, the affirmative disclosure requirements would apply because you have been arrested for a crime.
RNs should understand that the drunk driving arrest is reported to the Nursing Board by the Department of Justice. The BNR looks unfavorably on nurses who do not self-report immediately. In many cases, a nurse may get into more trouble because of a failure to disclose or report a DUI. First-time DUI offenses might not be as damaging as trying to hide that you were arrested for driving under the influence.
How Does a DUI Affect Your Nursing License?
The BRN investigates all instances of behavior by RNs that could endanger the safety of other people, including instances of drinking and driving. The effect on your RN license depends on several factors, including the facts and circumstances of the DUI case. A conviction for felony DUI or DUI with aggravating factors could lead to a suspension or revocation of your nursing license in addition to substantial jail time.
How Does the Nursing Board Handle a DUI Conviction?
It depends on the charges. You are not required to report a misdemeanor DUI arrest, but the Justice Department generally notifies the BRN after your arrest. The BRN investigates the severity of the charges to decide whether it should take disciplinary action against your nurse’s license.
During the investigation, the Board of Registered Nursing determines whether discipline is required and the type of discipline by the regulations in the Nurse Practice Act (“NPA”). Even if the DUI occurred when a registered nurse was not on duty, the BRN considers a drunk driving conviction unprofessional conduct.
The law gives the BRN the authority to discipline a nurse for unprofessional conduct, including revoking or suspending the RN license. The Board considers the facts and circumstances surrounding the DUI and the nurse’s history to determine the appropriate disciplinary action.
How Can My License Be Affected?
Your license could be suspended or revoked for a DUI conviction. However, misdemeanor first-time DUI convictions with no aggravating factors generally will not result in losing your nursing license. However, failing to report the drunk driving conviction could result in harsher penalties than if you had reported the criminal charges and faced the consequence head-on with the help of a Southern California DUI attorney.
Factors to Consider When Defending a DUI Against the BRN
The Disciplinary Guidelines outline the criteria that the BRN considers before imposing any discipline for DUI convictions. The factors include:
- The severity and nature of the nurse’s conduct;
- The nurse’s criminal record and history;
- The actions taken since the DUI offense and the time period of those actions;
- How the nurse performed on criminal probation; and
- Whether the nurse has been granted a DUI expungement under California Penal Code 1203.4.
A first-time misdemeanor for impaired-driving convictions for a nurse typically results in a citation and a fine. However, the BRN does not place any restrictions on the nursing license. It is important to note that the citation can become a part of the nurse’s permanent record for three years, which the BNR may disclose to the public upon request.
Protect Your Nursing License
You can object to a citation or disciplinary action regarding your nurse’s license. You have the right to an administrative hearing. If convicted of DUI as a nurse, seek legal advice regarding your options for protecting your nursing license. Experienced DUI Attorneys such as the attorneys at the Law Offices of Taylor and Taylor can help to advocate for your rights.
Can You Be a Nurse with a DUI in California?
Yes, you can be a nurse with a DUI on your record in California.
However, suppose you have a prior DUI conviction, and you are convicted of a second DUI. In that case, the Nursing Board may suspend or revoke your nurse’s license because your conduct establishes a pattern of unprofessional behavior with a second DUI conviction. In addition, repeat DUI offenders could indicate a substance abuse problem.
What Are the Punishments for DUI in California?
The penalties for a nurse convicted of drunk driving in California may include:
- Suspended driver’s license;
- Jail time;
- Fines and assessments;
- DUI school;
- Three to five years of DUI probation;
- Community service;
- Installation of an ignition interlock device; and
- Attendance at DUI programs, including MADDs Victim Impact Panel and the Hospital and Morgue Program.
DUIs count as prior offenses in California. The penalties become more severe if you are convicted of DUI again within ten years. Each subsequent conviction increases the penalties and mandatory jail time. A fourth DUI is a felony DUI charge. Aggravating circumstances can also result in a felony conviction and enhanced sentences.
In addition to the criminal penalties, a nurse also faces an administrative license suspension (“ALS”) from the California Department of Motor Vehicles.
Do You Go to Jail for DUI in California?
In many California counties, judges do not sentence first-time non-aggravated misdemeanor DUIs to jail time. However, there are instances in which you must serve mandatory jail time. Additionally, sentencing requirements and guidelines may differ from county to county. A California DUI defense attorney can develop a defense strategy to help you avoid jail time for a drunk driving conviction.
Vigorous Defense Against DUI Charges Can Be Crucial to Your Career
A nurse accused of drunk driving should contact a DUI attorney immediately to discuss their defense options. Depending on the facts of your case, potential DUI defenses include:
- The police officers lacked probable cause for an arrest;
- You were not driving the vehicle;
- Your BAC level does not indicate impairment;
- Rising alcohol levels or residual mouth alcohol caused the high BAC level;
- You have a health condition that caused a falsely high BAC level;
- Mistakes and errors during the collection, testing, and storing of blood samples caused an inaccurate chemical test result (i.e., violations of Title 17 regulations);
- You were arrested at an illegal DUI checkpoint;
- Environmental factors negatively impacted the results of field sobriety tests (FSTs) or chemical tests; and
- The prosecution failed to prove alcohol or drugs impaired your driving ability.
The sooner a DUI attorney begins investigating your case, the better prepared you are to defend yourself in court. Waiting to hire a lawyer for a DUI case could put you at a disadvantage in court.
You Have 10 Days to Protect Your License
After a DUI arrest in California, the police officer gives you a Notice of Suspension. The notice allows you to drive for 30 days. However, it also informs you that you have 10 days to request a DMV hearing, or the DMV automatically suspends your driver’s license.
A DMV administrative license suspension (“ALS”) hearing is separate from a criminal proceeding. The DMV can suspend your driving privileges after a DUI arrest if your BAC exceeds the legal limit or you refuse to take a chemical test. The ALS stands regardless of the outcome of your criminal case.
The Types of Discipline the BRN May Impose
Potential consequences for a nurse convicted of DUI include:
- Letter of Public Reprimand – A formal written warning that remains in place for three years but does not restrict your license;
- Probation – The BRN may impose probation that includes specific requirements, such as random drug and/or alcohol testing. The probation typically lasts for two years; and
- License Suspension or Revocation – The Nursing Board may suspend or revoke an RN license for serious cases. You might be required to enter a diversion or rehabilitation program before the Nursing Board considers an application for reinstatement of your nurse’s license.
Nurses arrested for DUI need a vigorous and aggressive DUI defense. You should immediately contact a Los Angeles DUI lawyer to discuss options for fighting drunk driving charges.
Seven Most Frequently Asked Questions from California Nurses with A Recent DUI Arrest
As a nurse, we realize you have many questions about a DUI arrest and conviction. Below are seven common questions our attorneys receive from nurses after a DUI arrest.
1. I Am an RN Who Just Got Arrested for a DUI. What Should I Do to Best Protect My California Register Nursing License?
The best step you can take is to contact a California DUI defense lawyer. A DUI lawyer understands the consequences of a conviction for a nurse. Therefore, a lawyer can provide an aggressive defense to the criminal DUI charges to give you the best chance of winning your DUI case to protect your nurse’s license.
2. I Am an RN Who Just Got Arrested For a DUI. When Do I Need to Tell The BRN? When Do I Need to Tell My Employer?
You do not have to tell your employer or anyone else about a DUI arrest, including the BRN. However, you must notify the BRN if you are convicted or plead guilty or no contest to a DUI charge. You should also be aware that the Justice Department notifies the BRN of the DUI arrest.
3. How Should I Tell the BRN About the DUI?
Because properly and timely disclosing a DUI conviction can help reduce the chance of losing your nurse’s license, it is wise to consult a California DUI Attorney about when and how to tell the BRN about being convicted of a DUI.
4. I Am an RN Who Just Got Arrested for a DUI. When Does the BRN Find Out About It? Does the BRN Notify My Employer About the DUI?
The BRN usually receives the notification of a nurse’s arrest within hours to a day after the arrest. The Department of Justice notifies the BRN of the arrest after officers fingerprint you at the jail. Your employer will not likely find out about the DUI unless the BRN makes a formal accusation, or your employer conducts random licensing audits.
5. I Am an RN Who Just Got Arrested For a DUI. When Does the BRN Contact Me?
You may receive a notification of the BRN’s Diversion Program within a few weeks of your arrest. You should seek legal counsel before accepting any offers of a Rehabilitation or Diversion Program. You might receive notice of a citation and a fine or a formal accusation. In some cases, a BRN investigator may contact you. Because the BRN already knows about the DUI arrest, you must follow the mandatory reporting requirements for criminal convictions.
6. I Am an RN Who Just Got Arrested For a DUI, And I Received a Letter from the BRN Diversion Program. Do I Have to Reply? What Should I Do?
Diversion is voluntary. Therefore, you should only reply if you want to enter the Diversion Program. However, you should seek legal counsel before responding because the Diversion Program may or may not be the best way to handle a DUI with the California Board of Registered Nursing.
7. I Am an RN Who Just Got Arrested For a DUI. What Are the Time Frames That I Can Expect Moving Forward?
Your California DUI defense lawyer will direct the criminal case. If possible, hire a DUI attorney who understands the BRN and RN licenses. Upon conviction, you must notify the BRN. However, while the criminal case is pending, you have time to build your case to respond to the BRN if it files a formal accusation.
Get Help from a California DUI Criminal Defense Lawyer
If you want to protect your nursing license and avoid the harshest probation requirements imposed by the BRN, contact a California DUI attorney for a free consultation.
Talk To A DUI Defense Attorney
As mentioned above, an experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our recent article about whether or not a DUI charge could lead to termination of employment, and other related articles on our blog, which is updated regularly!
Sources:
https://www.rn.ca.gov/enforcement/convictions.shtml
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1203.4.
Can a Lawyer Be Disbarred for a California DUI?
Can a Lawyer Be Disbarred for a California DUI?
A DUI in California can be problematic for many reasons. A drunk driving conviction results in criminal penalties. However, the conviction can also negatively affect your career, especially if you hold a professional license. Lawyers are licensed by the California State Bar. If they commit a crime, it could impact their attorney’s license. A Lawyer arrested for driving under the influence should seek advice from experienced California DUI attorneys.
Can You Be a Lawyer with a DUI in California?
The good news is that a first-time misdemeanor DUI conviction should not keep you from becoming a lawyer or maintaining your attorney’s license. However, multiple DUIs and cases involving aggravating factors could result in sanctions and other disciplinary actions. If the police arrested you for DUI, contact our California DUI lawyers for a free consultation. Let us help you protect your law license.
Understanding Discipline and Reporting Requirements for Lawyer DUIs
Lawyers have a duty to report certain conduct to the State Bar. Failing to report required conduct can result in losing your attorney’s license. Therefore, it is crucial for lawyers to understand the mandatory reporting requirements for lawyer DUIs.
1. What Entity or Organization Regulates Lawyers in California?
California lawyers are regulated by the State Bar of California. The State Bar is an administrative entity of the California Supreme Court. The California Supreme Court makes the final discipline decisions regarding attorneys. However, the Supreme Court defers to the recommendations made by the State Bar Court.
2. Does a Criminal Charge Result in Attorney Discipline?
Attorneys are not required to report a criminal charge. Self-reporting is only required under the following circumstances:
- An indictment or information is bought charging you with a felony;
- A misdemeanor conviction of a crime that involves the practice of law or when the client was the victim;
- A misdemeanor conviction for a criminal offense involving moral turpitude or the attempt, solicitation, or conspiracy to commit a crime of moral turpitude; or
- A felony conviction.
The State Bar does not initiate discipline proceeds or begin a disciplinary investigation when an attorney is arrested or charged with a criminal offense. However, it begins the investigation and disciplinary proceedings after a criminal court convicts a lawyer of a crime or the lawyer enters a guilty plea or plea of no contest.
3. What is a Crime Involving Moral Turpitude?
California attorneys convicted of misdemeanors or felonies of moral turpitude can be disbarred or suspended from the practice of law. Crimes of moral turpitude involve attorneys being dishonest or engaging in vile, base, or depraved conduct that is shocking to a reasonable person.
Examples of crimes that the State Bar Court or Supreme Court has identified as crimes of moral turpitude include:
- Murder;
- Perjury;
- Grand theft of client funds;
- Mail fraud;
- Attempted lewd act on a minor;
- Vehicular manslaughter;
- Federal securities fraud;
- Solicitation to commit assault on a former client; and
- Contributing to the delinquency of a minor.
Other crimes could be considered crimes of moral turpitude. The State Bar Court or Supreme Court decides what conduct indicates an attorney is unfit to practice law.
4. What Is “Other Misconduct” Warranting Discipline?
The Supreme Court might take disciplinary action against attorneys for “other misconduct.” The Court uses the facts and circumstances of the case to decide if the lawyer’s conduct justifies discipline. Crimes that the court has previously found warranting attorney discipline include:
- Driving under the influence of alcohol and/or drugs
- Violations of the concealed weapons law
- Domestic violence convictions
- Failing to pay payroll taxes
- Willfully failing to file income tax returns
If the court finds that a lawyer has violated a law that warrants disciplinary action, the court may take whatever action it deems appropriate, including warnings and disbarments.
5. How Does the Disciplinary Process/Discipline System Work With a Conviction?
The State Bar conducts an initial review when it receives notice of a criminal conviction. The review determines if the criminal offense is a crime of moral turpitude or other misconduct warranting discipline. The initial review of the charges could take several weeks.
If the initial review concludes that the criminal conviction could warrant discipline, the State Bar conducts a detailed investigation. The matter is closed if the investigation does not conclude that discipline is justified. However, if the investigation reveals conduct that could warrant discipline, the State Bar sends the case to the State Bar Court.
6. What Happens at a State Bar Court Hearing?
The State Bar Court schedules a hearing to determine if the attorney committed a crime of moral turpitude or other conduct that warrants discipline. If so, the State Bar Court decides what discipline to impose on the attorney.
The hearing is a formal proceeding before a State Bar Court Judge. The State Bar presents the case arguing that the criminal conviction warrants discipline. The State Bar may also argue that aggravating circumstances warrant a harsher punishment. The lawyer can present evidence of mitigating factors that could help lessen the disciplinary action.
The State Bar Court Judge decides the case based on the evidence presented during the hearing. The burden of proof is by a preponderance of the evidence, which is a lower standard than beyond a reasonable doubt used for the criminal trial.
7. Examples of Disciplinary Action for Lawyers Convicted of Crimes
The State Bar Court Judge may impose sanctions including:
- A formal reproval or reprimand
- Suspension of the attorney’s bar license
- Disbarment of the attorney
Attorneys or the State Bar can request a review of the judge’s decision. The State Bar Review Department or the California Supreme Court conducts the review.
8. Can Someone With Criminal Convictions Apply for a License to Practice Law?
Good moral character is a requirement to obtain a bar license in California. Therefore, if a person has a criminal record, their application to practice law could be denied. On the other hand, showing proof of rehabilitation can sway the State Bar into approving a person’s bar application. In addition, the State Bar could consider mitigating factors in light of a criminal history.
What Can Happen to a Lawyer After a DUI Conviction?
A DUI generally does not rise to the level of a crime of moral turpitude. However, the State Bar Court could consider a DUI a criminal offense that warrants disciplinary action. The American Bar Association (ABA) explains that, except for single DUI case in Colorado, a single misdemeanor DUI conviction without any aggravating factors or other criminal offenses has not typically been sufficient to violate Rule 8.4(b) of the Model Rules of Professional Conduct in most jurisdictions unless:
- The attorney has multiple DUI offenses
- There are additional non-DUI offenses
- The attorney’s behavior negatively affects the clients
- The attorney causes death or injury because they were drinking and driving
However, the decision regarding DUIs and disciplinary action varies by state. Furthermore, the facts and circumstances of the case are considerable factors in determining whether the state might discipline a lawyer for a drunk driving conviction.
Penalties for Multiple DUI Convictions in California
The State Bar may revoke a lawyer’s bar license if the attorney is a repeat offender for DUI offenses. The State Bar Court could also take other actions. Multiple DUIs can indicate a substance abuse problem. Therefore, the State Bar must act to protect the public from a lawyer who has a substance abuse problem.
However, attorneys may avoid losing their bar licenses if they have evidence of rehabilitation. Rehabilitation would include attending and completing a substance abuse treatment program and cooperating with any rehabilitation requirements imposed by the State Bar.
Some of the potential outcomes for multiple DUI convictions for a lawyer include, but are not limited to:
Resignation With Discipline Charges Pending
The lawyer may voluntarily resign from the State Bar of California during a pending proceeding or investigation. If the attorney applies to be reinstated, the disciplinary matters could be considered at that time.
Interim Suspension Following Criminal Convictions
An attorney may be temporarily suspended from practicing law if the conviction is for a crime that involves moral turpitude or other conduct warranting discipline. The State Bar Court decides the degree of discipline to impose on the lawyer upon completion of the lawyer’s criminal case.
Involuntary Inactive Enrollment
The Court may place the attorney on involuntary inactive enrollment. The attorney cannot practice law while on inactive enrollment.
Further Discipline for Failing To Comply With a Previous Order
The State Bar Court or the California Supreme Court may suspend the attorney from the practice of law or disbar the lawyer for failing to comply with the requirements set by either court in previous disciplinary orders.
Suspension or Probation
The State Bar Court could suspend the attorney from the practice of law for a specific period. The suspension may include conditions of probation. The lawyer cannot practice law during the suspension.
Disbarment
When the State Bar Court or the Supreme Court disbars a lawyer, the Supreme Court removes the attorney’s name from the list of California attorneys, and they cannot practice law.
Common Questions About Attorneys And DUI Convictions In California
The best way for a lawyer to protect his bar license after a DUI arrest is to hire an experienced California DUI defense lawyer. Some common questions that our DUI lawyers receive from California attorneys after an arrest for impaired driving are:
DUI and a State Bar License – What Happens if You’re Arrested for A DUI?
Unless the police charge you with felony DUI, you do not have to report the arrest to the State Bar. However, you need to hire a DUI attorney and fight the charges. You want to avoid a conviction if possible. To do that, you need an aggressive defense team that understands DUI laws.
DUI and a State Bar License – What Happens if You Are Convicted of a DUI?
You may or may not be required to report the conviction based on the facts of the case. Take whatever steps are necessary to determine your reporting requirements. You may or may not receive jail time for the conviction. It depends on the county, the specific offense, your criminal history, and whether or not there are aggravating circumstances.
In addition to a jail sentence, the judge could suspend your driver’s license (in addition to the administrative license suspension by the California Department of Motor Vehicles). The judge imposes a fine and assessments. You may also be required to attend DUI school, serve three years of DUI probation, and install an ignition interlock device.
DUI and a State Bar License – Will an Expungement Help?
You can apply for DUI expungement under California Penal Code §1203.4. The court removes or “expunges” the DUI conviction from your record. However, an expunged DUI within 10 years counts against you as a prior offense if you get another drinking and driving charge. Also, you must disclose expunged convictions to the State Bar.
DUI and a State Bar License – Will A DUI Prevent You From Being Licensed?
A single misdemeanor DUI conviction generally does not prevent you from being licensed as a lawyer in California. However, suppose the DUI case includes aggravating factors or circumstances that negatively reflect on moral character. In that case, the Bar could deny the application based on a lack of moral fitness to practice law.
DUI and a State Bar License – What Are the State Bar Reporting Requirements?
An attorney is not required to report being arrested. However, self-reporting is required under the following circumstances:
- You are charged with or convicted of a felony offense
- The conviction involves the practice of law or harm to a client
- A conviction for a crime that involves moral turpitude
The State Bar will likely be notified of the arrest. Therefore, follow all self-reporting requirements. Failure to report as required can cause more problems and harsher penalties.
DUI and a State Bar License – What Happens With Second Dui Convictions?
As discussed above, a second DUI is a problem for an attorney. Multiple DUIs indicate a substance abuse problem. You need to aggressively fight the DUI charge. Depending on the circumstances, you may also want to show the State Bar Court that you have taken steps to rehabilitate so that you are fit to practice law.
Get Help From a California DUI Defense Attorney
Regardless of your area of practice, a lawyer charged with a crime should have legal representation from another attorney. Schedule a free consultation to discuss your case with an experienced DUI attorney.
Talk To A DUI Defense Attorney
You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our recent article about whether or not a DUI charge could lead to termination of employment, and other related articles on our blog, which is updated regularly!
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Sources:
https://www.statebarcourt.ca.gov/
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=6101.
https://www.calbar.ca.gov/portals/0/documents/members/DisciplineKey.html
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1203.4.