Category Archives: Duiblog

How a DUI Can Affect Your California Teaching Credential

November 8, 2022

How a DUI Can Affect Your California Teaching Credential

Teachers in California must have teaching credentials to be employed as a teacher. However, both new and existing teachers may find it difficult to hold onto their credentials if they have a DUI conviction. Therefore, in addition to criminal penalties, teachers should be concerned with losing their jobs for drunk driving convictions. If you are a Southern California teacher facing DUI charges, contact our experienced DUI attorneys for a free consultation.

Can a DUI Conviction Prevent Someone from Being a Teacher in California?

Yes, a DUI conviction could potentially prevent a person from becoming a teacher in California. Even though a person may have their teaching credentials, new teachers are still subject to background checks. These background checks conducted by school districts and private schools include criminal records.

Therefore, teachers with DUI convictions on their criminal record could be denied a job. The school district or school board may decide that the DUI is indicative of poor decision-making skills. In the event of multiple DUIs, the school board might also assume that the person has a substance abuse problem.

DUI Reporting Requirements for the California Commission on Teacher Credentialing

The California Commission on Teacher Credentialing is responsible for issuing teaching credentials statewide. Each teacher must complete a professional fitness disclosure as part of the credentialing process for new teachers and the renewal process for current teachers. The document asks questions about the person’s personal and professional fitness. The form includes questions about the person’s criminal background. Specifically, it asks:

Have you been convicted of a misdemeanor or felony crime?
Are you the subject of any investigation or criminal injury?
Do you have criminal charges pending against you?

Driving under the influence is a crime under California Vehicle Code §23152. The statute makes it unlawful for a person to operate a motor vehicle under the influence of alcohol or drugs. It also makes it unlawful to drive a vehicle with a blood alcohol content (“BAC”) above the legal limit.

Therefore, convictions for DUIs are criminal convictions. Accordingly, you must disclose pending DUI cases and old DUIs on the form. In addition, you might be required to submit supporting documents to the Commission.

What Are the Consequences if I Don’t Disclose I Was Convicted for DUI?

The Commission on Teacher Credential (“CTC”) is very clear about the consequences of failing to disclose a criminal conviction. A failure to disclose this information is considered “falsification of your application.” It could result in a denial of your application. Additionally, it could also lead to criminal prosecution and other adverse actions by the CTC.

Do I Have to Report an Old DUI?

Yes, you must report all criminal convictions. There are no time restrictions on the application. Even if the DUI was in another state, you must report that you were convicted of DUI. The good news is that the older the DUI case, the less impact it will likely have on your teaching credential application.

Factors in Considering a DUI Conviction for Credential Applications

Title 5 of the California Code of Regulations §80302 provides the factors that the CTC uses when they evaluate a past criminal offense, including DUI convictions. Those factors are:

The degree and likelihood that the person’s conduct adversely affected the educational community, students, and other teachers;
The type of credential the person holds or sought in the application;
Any notoriety or publicity for the conduct;
The length of time between the conduct and the application;
The likelihood that the teacher repeats the conduct;
The extent that disciplinary action could inflect an adverse impact;
Aggravating factors or mitigating circumstances present at the time of the conduct; and
The blameworthiness or praiseworthiness of the motives that led to the conduct or behavior.

Along with the above factors, the CTC committee may consider the person’s cooperation in the criminal case and their compliance with sentences and probation terms. Evidence of rehabilitation efforts by the applicant and letters from parole officers, counselors, and other parties can also be submitted to the committee for consideration.

DUI Consequences for California Teachers

A first-time DUI conviction does not necessarily mean the end of a teaching career. The CTC has a broad range of disciplinary actions that it may take in response to a teacher convicted of DUI. Examples of disciplinary actions include:

Ordering temporary suspension;
Granting temporary leave;
Issuing a written warning;
Requiring the teacher to attend a substance abuse treatment program;
Terminating the teacher’s employment; and
Revoking the person’s teaching credentials.

The Commission also has the option of taking no disciplinary action. A warning may be given in public or private. If the CTC issues a written warning, it generally has a condition that another DUI conviction results in suspension, termination and/or revocation of teaching credentials.

The following sections cover commonly asked questions about teachers and DUIs in California.

DUI and a Teaching Credential – Felony Convictions and Rehabilitation

A felony DUI conviction does not necessarily prevent you from being a teacher in California. California Education Code §44830.1(g) states that having a serious felony conviction is not grounds to deny or terminate employment. However, the person must prove to the sentencing court with clear and convincing evidence that they have been rehabilitated for at least one year for the purposes of being employed in a school. Furthermore, a teacher cannot be denied employment or terminated for a conviction of a violent felony if they have obtained a certificate of rehabilitation and pardon.

What Happens After a DUI Arrest?

The police officer will give you a Notice of Suspension when they arrest you for DUI. As with all other drivers, you have just 10 days to request a California Department of Motor Vehicles (“DMV”) hearing. At the hearing, a DMV officer determines whether there are grounds to suspend your driving privileges for a BAC over the legal limit or for refusing to take a chemical test. The DMV administrative license suspension remains even if the prosecutor drops the DUI charges, or the court acquits you of the charges.

As soon as possible, talk with an experienced California DUI attorney. A DUI lawyer represents you at the DMV hearing to try to keep your driving privileges. The attorney also represents you in criminal court. Fighting the DUI charges is the best way to protect your teaching credentials.

What Happens if You Are Convicted of a DUI?

If you are convicted of DUI, you must worry about criminal penalties and the impact of the conviction on your teaching credentials. Potential DUI penalties the court may impose for a first-time drunk driving conviction include:

Three to five years of informal probation (usually three years);
Up to six months in county jail;
A DUI school program for up to 9 months (usually three months);
Fines and assessments that could total more than $1,500 ;
License suspicion for six months;
Installation of an ignition interlock device; and
Other terms and conditions of probation, such as attending DUI programs, community service, and work release.

The CTC receives notification of your DUI. Therefore, it is best to self-report the conviction according to the reporting requirements. The CTC initiates an investigation to determine if your criminal conviction warrants disciplinary action.

The possible outcomes for a teacher include:

Keep your teaching job with no disciplinary action;
A public reprimand and warning letter;
Termination of employment;
Placed on suspension for a specific period; and
The CTC may revoke or suspend the person’s teaching license.

The action by the CTC depends on numerous factors, including the school district’s policies regarding teachers and DUIs.

A Second DUI and a Teaching Credential

A second DUI within 10 years can count as a prior offense for criminal convictions. The penalties for a second DUI are more severe. The CTC can revoke your teaching credentials or deny your teaching application based on allegations of unfitness to teach. The Commission may also decide that you are addicted to the use of intoxicating drugs and/or alcohol. If so, it can revoke or deny your teaching credentials.

Will an Expungement Help?

Many individuals with a DUI conviction can petition for a DUI expungement under California Penal Code §1203.4. If the court approves your expungement, your guilty plea or guilty verdict is replaced by an entry of not guilty, and the court dismisses the case. It is as if your DUI conviction never occurred. However, the DUI arrest remains on your record.

A school district might view an expunged DUI as harshly as a current drunk driving offense. As far as the school district knows, you were charged with drinking and driving, but you were never convicted.

Regarding your criminal case, the expunged DUI can be used against you to enhance your DUI sentence. Therefore, if you are arrested again for driving under the influence within 10 years, it will be your second DUI offense, even though the first offense was expunged.

Do Not Plead Guilty to a DUI Charge Without Talking to a Criminal Defense Attorney

As a teacher, you need to focus on the long-term consequences of a DUI conviction.

You could lose your driving privileges for up to a year if you refused a chemical test. Without a vehicle, you might not be able to drive to work even though the DUI did not impact your job. In addition, you might miss work because of jail sentences, probation meetings, and other probation requirements.

Pleading guilty to DUI means you admit your guilt and accept the punishment ordered by the court. Prosecutors will not tell you if the terms of your plea bargain are fair. This is why you need a California DUI lawyer to assess your case and provide an honest assessment of the available DUI defenses.

A DUI attorney aggressively argues and negotiates for a fair settlement amount. If the parties refuse to cooperate and negotiate in good faith, we can proceed to court to defend you against DUI charges.

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.ctc.ca.gov/

https://www.ctc.ca.gov/docs/default-source/educator-discipline/files/pfq-information.pdf?sfvrsn=7d2c1ddb_2

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=VEH&division=11.&title=&part=&chapter=12.&article=2.

https://govt.westlaw.com/calregs/Document/I7B0959134C6911EC93A8000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EDC&sectionNum=44830.1.

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Doctors and DUIs – How a DUI Can Affect Your California Medical License

Lawrence Taylor

November 4, 2022

Doctors and DUIs – How a DUI Can Affect Your California Medical License

A DUI conviction or arrest can result in serious consequences for your medical license in California. Being arrested for DUI in a doctor’s personal life may be considered “substantially related” to the practice of medicine and their ability to perform medical services, even if no patient or medical treatment was involved. Because of this, a physician may be subject to disciplinary action by the California medical board.

Will a DUI Affect My Professional or Medical License?

Yes, a DUI conviction can affect your professional license, even if it is your first offense. Even if a district attorney does not end up reporting the incident to the medical board, you may be required to do so. If you do not, you may suffer even worse consequences to your ability to practice medicine.

How a DUI Can Affect Your Medical License in California

The California Business and Professions Code states that “the conviction of any offense substantially related to the qualifications, functions, or duties of a physician constitutes unprofessional conduct.” In addition, a prosecuting entity is required to notify the California Division of Medical Quality of any pending criminal cases against a holder of a medical license once they become informed that that person is a California physician.

Upon receiving this information, the medical board of California can investigate the criminal charge and determine if it will bring disciplinary action and if the DUI conviction is “an offense substantially related” to the individual’s practice of medicine.

DUI and Medical Board Licenses

You may wonder what the board will do once it receives notice of your DUI. Unfortunately, there is not a “one size fits all” answer to this question. Rather, it is a highly individualized process, and the actions of your medical board will depend on your case’s circumstances. The medical board will consider the following questions and aggravating factors:

Does the doctor have any prior DUI convictions?
If so, how long has passed since the prior DUI?
What was the doctor’s blood alcohol level?
Was anyone harmed?
Was there any property damage?
Is the doctor exhibiting remorse and taking actions such as seeking alcohol abuse treatment and enrolling in DUI school?
Are there any prior disciplinary actions against the doctor?
Is the doctor complying with the terms of their sentence and probation?

While this is not an exhaustive list of what the medical board may consider in your case, it hits the significant points of concern they will have. Even if you win at trial or your DUI is reduced to a less serious offense in court, the board may still discipline you as they follow their own process.

Can Your Medical License Survive a Drunk Driving Conviction?

Yes, your license can survive the consequences of driving under the influence – but you need to handle this very carefully. You should have experienced counsel on your side for both the criminal and medical board proceedings. You should not undertake either matter on your own.

To prevail and protect your medical license, you will have to convince the medical board of California that:

That this was a one-time incident and not part of a pattern of regular behavior on your part;
That you do not have an alcohol or substance abuse problem; and
That your sentence or conviction will not interfere with your ability to practice medicine.

You may have to submit to drug or alcohol testing by a specialist in addition to other measures that show the board you do not have an ongoing problem. You should also expect to have to explain the situation that led to you being involved in a DUI. These facts need to be carefully presented to the board.

What Happens to Your Medical License After a California DUI?

If the medical board disciplines you, here are a few things that may happen, all of which may affect your medical license:

There may be an administrative investigation and interview.
An administrative law judge of the Medical Quality Hearing Panel may issue an Interim Suspension Order. This allows the medical board to prevent a doctor from practicing until a final outcome is reached in its disciplinary action. Interim orders are usually only issued where there is a belief the medical professional has engaged, is going to violate the Medical Practice Act, or is unable to practice safely due to their mental or physical condition.
The board may file a citationagainst a physician. A citation is a sanction that usually includes a fine.
The board may file an accusation against a physician. An accusation lists charges against the physician and is the beginning of an official process to try to suspend or revoke one’s medical license.
The board may issue an investigative subpoena asking a physician to appear for an interview or asking for information or documents.
The board may issue a Public Letter of Reprimand. After this, a physician may be on probation and required to take specialized training or classes related to their DUI.
The board may decide to take no action and close its file.

Other outcomes are also possible. Whatever situation you are facing, it is best to contact an attorney immediately.

As a Doctor, Do I Self-Report a DUI to the Licensing Board?

The California Business and Professions Code requires physicians to report:

If they are charged with a felony; and
If they are convicted, whether by pleading guilty or no contest or being found guilty to any felony or misdemeanor.

A physician must make this report within 30 days of the date they are charged or convicted. If they do not, they may also face a fine of $5,000 in addition to other actions that the board may take against a California physician’s license.

A doctor should follow the law but also report the incident very carefully, with the counsel of an experienced attorney. Not doing so will likely result in more discipline than would otherwise occur.

DUI and Medical Board License Defenses and Strategies

Multiple strategies may be available to help you deal with your DUI case and avoid harm to your medical license. When a medical or professional license is involved, your strategy must take additional considerations into account.

It is generally best to seek a dismissal or reduction of charges where any charges or allegations could be found to be related to the practice of medicine.

This may require you to present an argument that there was no probable cause for your DUI arrest, that an illegal search or seizure occurred, or that the prosecution has not proven all elements of the crime you are being charged with.

If you already have a DUI conviction, it may be possible to go to criminal court to seek expungement of your record. This means your conviction is cleared from the public record and no longer appears as a conviction. This is generally only possible when a person has a DUI misdemeanor conviction. However, this does not obviate you of your obligation to report it to the medical board. However, an expungement may significantly help how the board views your case.

If you have a single felony DUI conviction, you may be able to request for it to be reduced to a misdemeanor. A court is more likely to consider this request if you have completed the totality of your sentence requirements, community service, paid all fines and fees, and have had no further violations. While this cannot prevent a board investigation, it can definitely help you present a more favorable picture and response to the board.

A physician should hire a criminal defense attorney that is not only familiar with DUI law but is also well versed in California professional license issues. Doctors often have complicated defense needs in these situations that must be planned carefully to get a favorable outcome in the criminal case and any subsequent board proceedings.

Depending on the Facts of the Case, a DUI May Impact Your Medical License

How the medical board of California handles a DUI varies on a case-by-case basis. Their proceedings are intentionally vague because they wish to have discretion in handling each situation. However, the board has published some commentary on its views of how a criminal conviction might affect a physician’s license to practice medicine.

It has emphasized that its position cannot be black or white because it evaluates every case individually. Because of this, it has declined to officially comment on what conduct will or will not lead to disciplinary actions. However, it does make clear that the business and professions code does not differentiate between felonies or misdemeanors, which does not control how it handles disciplinary actions.

A DUI Does Not Automatically Mean License Revocation

A DUI does not always mean there will be a license revocation. If you are concerned about this possibility or need legal advice, you should speak with an attorney as soon as possible. In some situations, you may have less than 30 days to take action to protect your professional livelihood. Many law offices offer a free consultation, so it is best not to delay speaking with an 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.

Sources:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=2236.

https://codes.findlaw.com/ca/business-and-professions-code/bpc-sect-802-1.html

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=11529.

https://law.justia.com/codes/california/2005/bpc/2000-2029.html

https://www.mbc.ca.gov/Enforcement/Enforcement-Documents.aspx

https://codes.findlaw.com/ca/business-and-professions-code/bpc-sect-802-1.html

https://www.mbc.ca.gov/Resources/Forms/criminal-convictions.aspx

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20 Little-Known Facts About Drunk Driving Arrests in California

Lawrence Taylor

November 1, 2022

20 Little-Known Facts About Drunk Driving Arrests in California

Drivers in California understand that it is against the law to drive a vehicle when they are drunk or using drugs. However, there are many little-known facts about drunk driving in California that many people do not know.

Below are 20 facts about DUIs in California. If you have been arrested for DUI, schedule a free consultation with a California DUI defense attorney as soon as possible to discuss your case.

1. DWI and DUI Mean the Same Thing Under California Law

States refer to drunk driving with different acronyms. “DUI” stands for driving under the influence, whereas “DWI” stands for driving while intoxicated. Another term used less frequently is “OVI” for operating a vehicle under the influence.

California’s primary impaired driving statute is California Vehicle Code §23152. It refers to the crime of operating a vehicle “under the influence.” Although most people understand the meaning of the acronym, nowhere in California law does it refer to DWI. Instead, DUI refers to any act of driving a motor vehicle while being impaired by alcohol and/or drugs in your system.

2. Expunging a DUI Conviction Does Not Remove the DUI from Your Driving Record

Most misdemeanor DUIs are eligible for expungement. Under the new California Clean Slate Act, most misdemeanor DUI convictions will automatically be expunged when the offense is eligible for DUI expungement. The new law also provides for sealing DUI records. People with DUI convictions before January 1, 2021 can still file a petition for expungement with the court.

Even if you expunge your DUI records and the records are sealed under the new law, the DUI remains on your driving record for ten years with the California Department of Motor Vehicles (DMV).

DUIs and wet reckless charges are offenses that can count as “priors.” Therefore, each new DUI conviction within 10 years increases the severity of the DUI penalties. Expunged DUIs count as “prior” offenses as well.

3. You Can Get Fired for a First DUI Offense in California

Unfortunately, yes – an employer can fire you for an impaired driving conviction. Whether your employer decides to fire you after a DUI depends on several factors, including the type of job you have, whether you hold a professional license, and the circumstances of the DUI. It is not considered discrimination to consider a person’s criminal record when making hiring or firing decisions.

A DUI could end the career of a commercial driver. Truck drivers have very strict rules about impaired driving. Also, the suspension of driving privileges for DUI convictions is stricter for individuals with a commercial driver’s license.

4. Police Departments Must Tell the Public Before They Hold a DUI Sobriety Checkpoint

The United States Supreme Court and the California Supreme Court have ruled that DUI sobriety checkpoints do not violate a person’s Fourth Amendment rights. However, the California Supreme Court provided eight requirements that law enforcement officers must follow when utilizing a sobriety checkpoint in the 1987 case of Ingersoll v. Palmer.

In that case, the justices ruled that checkpoints must be advertised in advance. In other words, the police department must advise the public when and where they intend to operate a DUI checkpoint. Moreover, the advance notice must be reasonable.

Most police departments publish the notice on their social media websites. They might also put the notice in local newspapers and announce it on local newscasts.

It is important to note that failing to advertise a DUI checkpoint does not by itself make the checkpoint unlawful or unconstitutional.

5. Your Driver’s License Could Be Suspended Even if the DUI Charges Are Dropped or You Are Not Guilty

When an officer arrests you for drinking and driving, they will give you a Notice of License Suspension. The Notice explains that you have 10 days to request a DMV hearing. This hearing determines whether your driver’s license is suspended and for how long. The DMV administratively suspends your driving privileges if you do not request a hearing within 10 days.

If your BAC is above the legal limit in the California Vehicle Code and you are over 21 years old, the license suspension for a first DUI offense is four months. A second DUI within 10 years results in a one-year suspension.

The DMV suspension stands regardless of the outcome of your criminal case. Underage drivers with a BAC of more than .01% have their driving privileges suspended for one year.

6. Drunk Drivers Are Not Required to Take Field Sobriety Tests According to California DUI Laws

You are not required to take the field sobriety tests (“FSTs”) when you are stopped for impaired driving. The officer generally does not tell you that you do not have to take the test. Instead, the officer merely asks you to take the FSTs.

There are three standardized field sobriety tests:

Horizontal Gaze Nystagmus Test (“HGN”);
Walk And Turn Test (“WAT”); and
One-Leg Stand Test (“OLS”).

The accuracy and reliability of these tests are the subject of much debate. Even though there are strict guidelines for giving these tests, police officers may not follow the procedures exactly, which could lead to inaccurate results.

Furthermore, a person’s age, health, medical conditions, and environmental factors could result in “failing” the test even if you are not impaired by an alcoholic beverage or drugs.

7. Most Drunk Drivers Are Not Required to Take a Preliminary Alcohol Screening (“PAS”) Test

In the state of California, if you are over 21 years old and not on DUI probation, you can refuse a PAS test during a DUI stop without penalty. The PAS test is generally a handheld breathalyzer test. However, underage drivers (drivers under 21 years old) and drivers on probation must take the PAS test or face driver’s license suspension for a test refusal.

8. You Are Required to Take a Chemical Test After a Lawful DUI Arrest According to California Law

California’s implied consent laws require that all drivers submit to chemical tests for blood alcohol content (“BAC”) levels after a lawful arrest. Law enforcement officers should give you a choice between a breath test and a blood test. Urine tests are only used if you cannot provide either a breath or blood sample, or if the tests cannot be performed.

Refusing a chemical test after a DUI arrest can result in an administrative license suspension (“ALS”) for one year for a first refusal. A second refusal within 10 years results in a two-year license revocation. As with the suspension for having a BAC above the legal limit, a suspended or revoked license for chemical test refusal stands regardless of the outcome of your DUI case.

9. A Breathalyzer Does Not Measure the BAC in Your Blood

A breathalyzer uses a mathematical calculation to convert the amount of alcohol on your breath to an equivalent BAC level. However, this conversion might not be accurate because of individual differences and other factors. A skilled California DUI lawyer will challenge the results of a breathalyzer for this reason and other reasons.

10. Legally Prescribed Medications and Over-the-Counter Drugs Can Result in Being Arrested for DUI

California DUI law states that it is unlawful to operate a motor vehicle under the influence of any drug. “Under the influence” means that a substance in your system impairs your driving abilities. Impairment is measured by the level of care reasonably prudent people use when driving motor vehicles.

Many prescription drugs and over-the-counter medications have side effects that mimic signs of intoxication. As a result, a police officer might determine you are impaired and arrest you for DUI even though you have not consumed any alcohol or illegal drugs.

11. You Can Be Arrested for Operating a Boat Under the Influence (Boating DUI or BUI)

Many people do not realize that boating under the influence of drinks or drugs is also against the law in California. The Harbors and Navigation Code §655 states that no one shall operate any vessel, water skis, aquaplane, or other similar devices while under the influence of alcohol and/or drugs.

The legal limit for blood alcohol content (“BAC”) when operating any recreational vessel, aquaplane, water skis, or similar device is .08%. The legal limit for operating any vessel other than a recreational vessel is .04%. Although they may not be commonly thought of as a motor vehicle, boats are still motor vehicles. Thus, they are illegal to operate under the influence.

The penalties for BUI will depend on the charge, but they are similar to the penalties for impaired driving. You could lose your driver’s license and face county jail time for driving a boat while under the influence.

12. An Out-of-State DUI Conviction Could Count Against You in California

The more DUI convictions you have on your record, the harsher the DUI sentence will be for a current conviction. The prosecutor counts misdemeanor DUIs, felony DUIs, and wet reckless convictions on your record when deciding how to charge you for a current DUI offense.

California DUI laws permit an out-of-state DUI conviction to count as a prior offense if the out-of-state DUI charge is substantially similar to California DUI law. However, impaired driving laws vary by state. They even vary by county here in California. Therefore, your California DUI defense attorney may challenge an out-of-state conviction because the other state’s DUI laws may not be “substantially similar” to the California laws applied to your case.

California shares information with other states through the Interstate Driver’s License Compact (“IDLC”). Therefore, if you have criminal charges or DUI convictions against you, California prosecutors can find them.

13. Some DUIs Can Be Misdemeanors

Typically, prosecutors charge a person with a misdemeanor DUI if the following situations apply:

You do not have any felony DUI convictions on your record;
You were not involved in a DUI accident which caused serious injuries or death to another person;
You do not have three or more DUIs on your record within the past 10 years; or
There are no aggravating factors that would raise the offense to a felony.

Depending on the county in which you are charged, you might be able to avoid jail time for a first-time DUI conviction. However, it is important to note that some factors can result in minimum county jail time, even though you are charged with a misdemeanor offense.

14. There Are Aggravating Factors for Impaired Driving Charges That Can Increase Your Penalties

Several circumstances can enhance a drinking and driving offense and sentence. Prosecutors use aggravating factors to determine whether to charge you with a felony or misdemeanor and what sentence to recommend to the court for a plea bargain.

Aggravating circumstances for DUI include:

Driving with a BAC of .015% or higher;
Causing a fatality while driving under the influence;
Traveling at excess speeds while intoxicated;
Causing an injury while driving under the influence;
Having a child under the age of 14 years in the vehicle (you can also be charged with child endangerment under the California Penal Code in this situation);
Refusing a chemical test after a lawful arrest; and
Driving with any alcohol in your system if you are under the age of 21.

Some of the above aggravating factors result in an enhanced DUI sentence, including mandatory jail time. For example, having a child in the vehicle automatically adds 48 hours to your jail sentence for a first offense. You must serve the time, even if the judge does not order any additional jail time for the impaired driving conviction.

15. Police Misconduct or Errors May Result in a Dismissal of Charges or Suppression of Evidence

A police officer must have reasonable suspicion to make a traffic stop and probate cause for an arrest. If the court determines the officer lacked either of these, the judge could dismiss the case.

Additionally, if the officer violated your legal rights, your DUI attorneys can file a Motion to Suppress evidence. The judge can make all evidence collected from an illegal search, seizure, or arrest inadmissible in court. Without that evidence, the prosecution might be forced to drop the DUI charges against you.

16. Almost 200,000 People Are Arrested Each Year in California for DUIs

The 2019 Annual Report of the California DUI Management Information System shows an average of 171,481 arrests for driving under the influence each year from 2007 through 2017. DUI conviction rates averaged about 75% each year.

17. Penalties for a First-Time DUI Conviction Can Be Steep

If this is your first DUI and there are no aggravating circumstances, you can expect a sentence of:

Two days in jail or community service;
Three to nine months of DUI school;
Fines between $390 and $1,000 (costs of assessments are added to the fine, which can increase the total cost);
Three to five years of summary probation;
Loss of driving privileges for six months (most people qualify for a restricted driver’s license); and/or
Possible installation of an ignition interlock device (“IID”) for up to five months.

Your sentence may also include attending a DUI program, such as MADD’s Victim Impact Panel and the Hospital and Morgue Program. The punishment for intoxicated driving varies by county.

Some counties impose tougher penalties for a first-time DUI, including mandatory jail time for a first-time DUI conviction.

18. A California DUI Could Cost You Over $10,000

The cost of a DUI depends on many factors. However, a first DUI charge could cost you between $10,000 and $16,000 if you fight the DUI charges.

That figure includes, but is not limited to:

DUI defense attorneys;
Fines, court fees, and assessments;
Towing and storage fees;
Bail or bond amount;
Driver’s license reinstatement fee;
Cost of ignition interlock device (“IID”);
DUI school and/or alcohol treatment programs;
Probation costs; and
Increased automobile insurance rates (SR-22).

There could be collateral costs associated with impaired driving charges. For example, you might lose time from work while in jail or lose your job because of an arrest or conviction.

You could face penalties from a licensing board if you hold a professional license. If you cannot drive, you will have additional transportation costs.

19. DUIs Can Impact Travel to Other Countries

Some countries have laws that prevent a person from entering the country if they have a criminal record, including convictions for driving while intoxicated.

For example, Mexico and Canada might prevent you from entering the country with a DUI on your record. A first-time drunk driving offense several years ago might not stop you from entering the country. However, you might be required to file a special petition to enter the country.

Another option would be to file a petition for DUI expungement. An expungement removes the conviction from your record and shows the charge as being dismissed. You can then truthfully state you have not been convicted of a crime.

20. You Can Fight a DUI Offense – Hiring a California DUI Attorney

The best way to protect your rights and fight DUI charges is to hire an experienced California DUI lawyer. A DUI attorney has the resources to investigate your arrest.

They also have years of school, training, and experience that allows them to analyze the state’s evidence against you to determine the best defense strategy for your case. Your lawyer may use one or more DUI defenses in your case.

DUI defenses can include:

Rising alcohol levels and residual mouth alcohol;
Police officers did not have reasonable suspicion for a traffic stop or probable cause for an arrest;
Challenging the results of chemical tests for BAC levels for violations of Title 27 regulations for collecting, testing, and storing urine or blood samples;
You were not driving the motor vehicle;
Margin for errors and inherent rates for blood and breath tests;
Failing to follow correct police procedures during a DUI investigation, arrest, and booking;
Illegal searches and seizures, including unlawful blood draws;
Inaccurate and unreliable field sobriety tests;
Being arrested for DUI at an unlawful sobriety checkpoint;
Errors made during breath tests, including environmental factors, health conditions, instrument malfunction, mistakes by police officers;
Using fermented blood for a blood test;
Failure to read you the Miranda rights after being arrested for DUI and conducting a custodial interrogation; and
You were not impaired by the amount of alcohol or drugs in your system.

Talk to a California DUI Defense Attorney

Contact a California DUI lawyer for a free consultation to discuss the potential defenses to charges of driving under the influence. Police officers nor the prosecutor will truthfully tell you if you have a defense that will help you beat criminal offenses. You need a trusted DUI lawyer to give you legal advice. Most attorneys offer a free consultation so that you can get answers to your questions about DUI defense and your legal rights to make an informed decision about how you want to proceed with your DUI case.

Schedule a free consultation with one of our leading expert California DUI attorneys here.

Interested in this topic or want to learn more about DUIs in California? Check out our blog, which is updated regularly!

Sources:

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=VEH&division=11.&title=&part=&chapter=12.&article=2.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=851.93.

https://scocal.stanford.edu/opinion/ingersoll-v-palmer-30801

https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/

https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_ig_refresher_manual.pdf

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HNC&sectionNum=655.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23578.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23582.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23153

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23572.

https://www.dmv.ca.gov/portal/uploads/2020/06/S5-260-1.pdf

https://www.dmv.ca.gov/portal/vehicle-registration/insurance-requirements/

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The Only 3 Effective DUI Field Tests

Lawrence Taylor

October 30, 2022

The Only 3 Effective DUI Field Tests

Police officers use field sobriety tests (“FSTs”) when they stop a driver suspected of being under the influence of drugs and/or alcohol. The three standardized field sobriety tests (“SFSTs”) are considered the most reliable FSTs and the tests recommended by the National Highway Traffic Safety Administration for use by law enforcement agencies. However, police officers also use non-standardized field sobriety tests. Unfortunately, all tests have potential issues that can make the results unreliable.

The Purpose and Types of DUI Field Sobriety Tests

How do police officers use field sobriety tests during DUI investigations in California?

California uses the three standardized field sobriety tests to conduct DUI investigations during traffic stops. The purpose of conducting the tests is to determine whether a driver is impaired. The tests also serve to provide probable cause for a DUI arrest. A police officer must have probable cause to believe the person is intoxicated before making a lawful DUI arrest.

Three tests were chosen as standardized field sobriety tests. Each test has specific instructions and procedures for giving the test to a driver. Any deviation from the procedures could make the test results inaccurate and unreliable. Those three tests are: (1) Horizontal Gaze Nystagmus Test (“HGN”); (2) Walk and Turn Test (“WAT”); and (3) One-Leg Stand Test (“OLS”).

Horizontal Gaze Nystagmus Test (“HGN”)

The Horizontal Gaze Nystagmus Test checks for involuntary “eye jerking” or nystagmus, which occurs when a person looks to the side without turning their head. The severity of the “jerking” increases when a person is intoxicated. An HGN test can also detect when a person has consumed certain prescription medications and illegal drugs.

The police officer performs the test by instructing the person to focus on a stimulus, which is usually a small object, finger, or pen. The officer moves the stimulus horizontally across the person’s line of sight about a foot to 15 inches away. As the driver’s eye follows the object, the police officer watches for signs of increased nystagmus including:

Inability to follow the object smoothly;
Distinct jerking at maximum deviation; and
Substantial eye jerking within a minimum of 45 degrees from the center.

The officer looks for the signs in each eye, checking for six total signs of increased nystagmus.

Walk and Turn Test (“WAT”)

The Walk and Turn Test is the test most people are familiar with due to its depiction in movies and television. During the WAT, a police officer instructs the driver to take nine steps along a straight line, turn around, and then take nine steps back to the starting point. The steps must be heel-to-toe steps. The officer instructs the driver to count the steps out loud as they take each step. The officer watches for eight indications that the person might be impaired:

Inability to balance while listening to instructions;
Making an improper turn;
Beginning to walk before the officer instructs the person to begin the test;
Taking the wrong number of steps;
Stopping to regain balance while walking;
Stepping out of line;
Failing to touch the heels to the toes; and
Using the arms for balancing.

The standardized instructions state that if the person displays at least two of the eight indicators, they fail the walk-and-turn test.

One-Leg Stand Test (“OLS”)

The police officer instructs the person to stand still and lift one foot off the ground about six inches. The officer instructs the person to count by one until the officer tells them to stop while holding their foot off the ground. The standardized instructions state the officer should time the suspect and stop them in 30 seconds. The officer looks for four indicators of impairment:

Hopping during the test;
Repeatedly swaying during the test;
Putting their foot down one or more times; and
Using the arms to maintain balance.

The standardized instructions state that committing two or more of the four indicators means the person failed the one-leg stand test.

Field Sobriety Tests: Potential Problems and Challenges

Even though the above tests are widely considered reliable indicators of driving under the influence, there are many problems with the tests. Critics cite issues with the accuracy and reliability of test results. They also question environmental factors and the actions of police officers that could result in flawed test results.

What Do the Tests Mean if You Fail?

The police officer should refer to their FSTs training to determine if the person “failed” a field sobriety test. As indicated above, specific instructions in the training materials indicate when a person has “failed” the test.

If the officer decides that you failed one or more of the FSTs, the officer will likely state they have probable cause for a DUI arrest. The officer may then ask the driver to take a preliminary alcohol screening (“PAS”) test, which is generally a field breathalyzer machine. A BAC (“blood alcohol content”) level on the breathalyzer gives the officer additional probable cause to make an arrest for DUI.

After a lawful DUI arrest, California’s implied consent laws require individuals to take a chemical test. The police officer should ask the person whether they want to provide a sample for a breath test or a blood test for chemical testing. Urine tests are only used when blood and breath tests are unavailable.

Field Sobriety Tests: Accuracy, Limitations, and Criticism

There are limits to using field sobriety tests during a DUI stop. There are also questions regarding the accuracy of field sobriety tests. Some of the issues that DUI defense attorneys raise regarding the use of FSTs in DUI cases include:

The accuracy of field sobriety tests;
Failing to provide clear and correct instructions;
Environmental factors;
Medical conditions;
Being nervous &/or scared; and
The subjectivity of SFSTs.

The Accuracy of Field Sobriety Tests

Several studies have been conducted on the accuracy of FSTs in determining whether a driver is impaired by alcohol and/or drugs. The NHTSA Instructor Guide for the tests explains that three studies were conducted between 1995 and 1998. The studies were conducted in San Diego, Florida, and Colorado. Each study resulted in different conclusions regarding the accuracy of FSTs.

The Instructor Manual states that officers should use the San Diego Field Validation Study when testifying in court. That study indicated the following accuracy rates:

HGN tests were 88% accurate;
OLS tests were 83% accurate; and
WAT tests were 79% accurate.

Even though the NHTSA claims that the study results provide clear evidence of the validity of standardized field sobriety tests, California DUI defense lawyers disagree. First, these tests are not 100% accurate. Moreover, other scientific tests have shown that the accuracy of these tests is questionable.

One study used sober individuals to perform standardized FSTs. After watching videos of people taking the tests, police officers believed that a significantly larger number of the people were impaired. Another study concluded that the HGN test has a high baseline error and varied greatly depending on whether the person’s BAC level was rising or falling. In 52 videos of DUI arrests, the study authors concluded the HGN test was incorrectly administered 51 times.

Additionally, other factors make the accuracy and validity of the tests questionable.

Failing to Provide Clear and Correct Instructions

The police officer administering the SFSTs must follow the exact procedures for giving the test to a driver. Deviation from the procedures could result in inaccurate results. However, suppose there is no body camera footage, other video footage, or audio evidence that the officer gave the person clear and correct instructions. In that case, there is no way to know if the officer purposefully or unintentionally caused the person to “fail” the field sobriety test.

Environmental Factors

Numerous environmental factors could invalidate the results of standardized field sobriety tests. For example, the officer should conduct the tests on a level, paved surface. Otherwise, the person may stumble or lose their balance because of the ground, but not because they are impaired by alcohol. Another example is conducting the HGN test with bright lights shining in the person’s eyes from the sun or oncoming traffic. The lights could cause unreliable results.

Medical Conditions

Another problem to consider is the person’s health condition. A person may have a medical condition that prevents them from passing the test even though they are sober. In addition, a person’s age could cause them to perform poorly on a test even though they are perfectly capable of operating the motor vehicle safely. Physical limitations may prevent someone from “passing” the one-leg stand test or the walk-and-turn test.

Some medications could cause a person to exhibit signs of intoxication even though they are sober and not impaired. For example, some medications for seizures can cause increased nystagmus even though the person is sober. In addition, there are dozens of other possible causes of nystagmus, including hypertension, eye strain, glaucoma, and consuming excessive amounts of caffeine.

Being Nervous and Scared

Merely being nervous about being pulled over and scared of being arrested could cause someone to perform poorly on SFSTs.

SFSTs are Subjective

Whether you fail or pass a sobriety test depends upon the officer’s interpretation of your performance during the tests. In other words, one officer might conclude you were intoxicated and arrest you for drunk driving. Another police officer might conclude that you are not impaired and release you without an arrest. A study conducted using police officers, bartenders, and university community members found that the group had less than a 25% accuracy rate when correctly determining how drunk a person was after observing the targets for several minutes. Furthermore, the accuracy of the ratings worsened as the targets’ level of intoxication increased.

If a police officer has some bias against the person, the officer might unethically or unconsciously interpret the results in favor of probable cause and an arrest. For example, a driver was rude and obnoxious when the officer made the initial traffic stop. The person was critical and uncooperative. In that case, the officer might decide that the person is drunk and make the arrest, even though the results of the SFSTs were borderline.

Non-Standard Field Sobriety Tests

Some jurisdictions also use non-standardized field sobriety tests to determine impairment to support probable cause for a DUI arrest. Police officers claim the non-standard FSTs are reliable because they require the person to utilize split focus and dexterity, which is difficult to do if the person is drunk or drugged. However, these non-standardized tests are unreliable and highly subjective. Some non-standard field sobriety tests used by police officers include:

Romberg Balance Test – Closing the eyes and tipping the head backward while standing with the feet together, estimating when 30 seconds have passed, and then saying “stop” to the officer.
Finger-to-Nose Test – Closing the eyes and touching a finger to the tip of the nose.
ABC Test – Reciting the alphabet forwards or backward.
Finger-Tap Test – Tap a finger to your thumb as fast as possible with an opening between taps as wide as possible.
Numbers Backward Test – Counting backward.
Stand and Gaze Test – Standing and leaning so that the person gazes at the sky while holding their arms to their sides.
Hand Pat Test – Extend an arm out with the palm facing up and out. Place the other hand on top of the raised palm facing down. Rotate the hands 180 degrees to pat the bottom hand with the back of the other hand before rotating and doing it again while counting “one” and “two” each time.

The NHTSA does not recognize these tests as reliable indicators of whether a person is impaired by alcohol and/or drugs. A skilled California DUI defense attorney will challenge these test results in court. Challenging non-standard field sobriety tests is easier because they are not widely accepted as accurate indicators of intoxication or impairment.

Field Sobriety Test Refusals – Drivers Aren’t Required to Participate in Field Sobriety Tests

No California law punishes a person for refusing to take a field sobriety test. However, a police officer will not tell you this detail. Instead, the officer will only ask you to perform the tests without indicating that you may refuse the test without punishment. Understanding your right to refuse to take a field sobriety test is essential because sober people can fail the tests.

However, there is a difference between field sobriety tests and chemical tests for BAC levels. California’s implied consent laws require drivers to submit to a chemical test of their blood or breath after a lawful DUI arrest. Refusing a chemical test after a DUI arrest results in an administrative driver’s license suspension by the California Department of Motor Vehicles (“DMV”). Your driving privileges are suspended for one year for a first-time refusal of a chemical test. A second refusal within ten years results in a two-year revocation of your driver’s license.

However, if you are under 21 years old or on probation, refusing a chemical test after a DUI arrest of a preliminary alcohol screening (“PAS”) test after being detained results in a one-year driver’s license suspension for the first refusal and two-year revocation for a second refusal within ten years.

California Vehicle Code §23612 states that an officer must advise you that refusing the chemical test could result in a suspension of your driving privileges. Your California DUI attorney might be able to successfully argue against the DMV administrative license suspension if the officer failed to provide the required advisements.

How Field Sobriety Test Results Are Used in Court & Challenging FSTs Results in California

The prosecution uses the results from field sobriety tests in court in several ways. First, the prosecutor may use the FSTs to support the finding that the police officer had probable cause to arrest you for driving under the influence.

If you are charged with driving under the influence, the prosecutor uses field sobriety tests to support the allegation that you were too impaired to drive. This situation often occurs when the driver refuses to take a chemical test. The state does not have evidence of the BAC level at the time of the arrest. Therefore, it must prove that your ability to operate the vehicle was impaired.

When you are charged with DUI per se, the state has BAC test results showing that you were driving with a BAC over the legal limit. Generally, the BAC test results are sufficient to prove the state’s case if there is no valid DUI defense to convince the jury you were not drunk or under the influence of drugs. However, a prosecutor might use the FSTs results as additional evidence you were drinking and driving.

A skilled California DUI lawyer challenges the results of standardized FSTs in court. The attorney might challenge the results in one of several ways including:

Challenging the reliability of the tests based on data showing a considerable margin for error. The attorney might hire an expert witness to provide testimony regarding the accuracy of the test.
Providing evidence that the law enforcement officer failed to administer the standard FSTs according to the procedures in the NHTSA manual.
Offering evidence proving that the test results were negatively impacted by a medical condition, legal prescription medications, or environmental factors.
Your clothing, lack of sleep, muscle fatigue, advanced age, injuries, weight, or other extraneous conditions caused poor performance on the FSTs.
The officer administered non-standardized field sobriety tests.

There could be other challenges and DUI defenses in your case. Schedule a free consultation to talk with a DUI lawyer about potential defenses to drunk driving charges.

Talk to a California DUI Defense Attorney

Fighting DUI charges begins with hiring an experienced DUI defense attorney. Contact a criminal defense lawyer for a free consultation to discuss your case. Most attorneys offer a free consultation so that you can get answers to your questions about DUI defense and your legal rights to make an informed decision about how you want to proceed with your DUI case.

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 blog, which is updated regularly!

Sources:

https://www.ojp.gov/ncjrs/virtual-library/abstracts/standardized-field-sobriety-testing

https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_ig_refresher_manual.pdf

https://pubmed.ncbi.nlm.nih.gov/7991338/

https://pubmed.ncbi.nlm.nih.gov/11393940/

https://psycnet.apa.org/record/1984-12497-001

https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23612

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Can I Demand a Jury Trial in a California DUI Case?

Lawrence Taylor

October 26, 2022

Can I Demand a Jury Trial in a California DUI Case?

If you’re like most people, the prospect of standing before a jury and defending yourself against criminal charges can sound pretty daunting. Jury Trials are typical for many criminal charges, but what if you’re arrested for a DUI in California? Can you demand a jury trial in your case?

In this article, we’ll discuss when and how you can request a trial by jury in a DUI case. We’ll also cover some of the pros and cons of going to trial. So if you’ve been arrested for DUI in California, read on to learn more about your options.

Can You Get a Jury Trial for a DUI?

Yes, you can have a jury trial if you have been accused of driving under the influence. A DUI is a criminal offense, and under the California Penal Code, you are legally entitled to a jury trial before being convicted of a public offense.

Judge Or Jury Trial: What’s Better If You’re Charged With a DUI?

A jury trial is a trial in which members of the public—typically twelve members—will listen to your case and decide whether or not you are guilty of the crime you’ve been charged with.

Jury trials are typically a fundamental right within the criminal justice system. However, you can waive your right to a jury trial. For example, if you were to negotiate a plea bargain or agree to lower an offense or violation by working with the prosecuting attorney, a jury trial may not be necessary. Thus, many DUI cases are resolved outside the court system because charges are reduced or dismissed.

If you opt to proceed with a jury trial, the trial will occur quickly after your DUI arrest. A court will schedule your trial within 45 days. If you are being held in jail after an arrest, a court may set your trial date even sooner—within 30 days of the date of your arrest. A trial can result in either a “guilty” or “not guilty” verdict.

Going to trial can be very costly and time consuming. You may be able to resolve your charges more quickly and on better terms without going to trial. An experienced DUI lawyer can counsel you on your options.

California Criminal Jury Trials – How it Works

After your DUI arrest, you will appear in court. This appearance is within 48 hours of your arrest and is not a jury trial. You will go before a judge and declare your initial plea during this appearance. You may plead no contest, guilty, or not guilty to DUI charges. If your plea is not guilty, then a trial date is set.

Inside a DUI Jury Trial – What to Expect

1. Jury Selection

A DUI jury trial will occur like any other criminal trial. Part one of the trial is jury selection. The jury selection is a process in which the lawyers for the prosecution and defense will question, eliminate, and finalize the members of the public that will comprise the jury.

The first step of jury selection during the trial is for the trial court judge to request a selection of the prospective jurors who were randomly selected for jury duty to be sent to your courtroom. From there, the selection process can begin. Upon entering the court, the jurors must swear they will truthfully answer all questions about their qualifications and abilities to serve in the role of a juror.

Next, the judge will speak to the group of jurors. The judge will explain who is involved in the case and possibly what the case is about. After this, questioning of each juror can begin. This questioning is known as voir dire. The prosecutor and defense attorney will ask questions to determine if the jurors may have any biases or whether there may be any reasons why they cannot be fair and impartial while serving on this jury. The judge may also ask questions.

Jurors are obligated to follow the law as explained by the judge, and if one of the attorneys or the judge feels an individual cannot do so, that juror may be excused. If a lawyer wants to excuse a juror, the attorney must give a reason, known as a challenge. Challenges can be for cause or without providing a reason (peremptory). The prosecutor and defense can each make an unlimited amount of challenges for cause and 10 peremptory challenges in California criminal cases (where there is no death penalty or life imprisonment possibility).

The process of questioning and excusing jurors goes on until a final group jurors and alternates are agreed upon. Once the final group is assembled, take an oath that they will come to a decision in the case based only the evidence admitted at the trial and instructions of the court.

2. Opening Statements

Opening statements are the attorneys’ introductions given by each side of the case to the jurors about what the case is all about and what they will hear during the trial. These statements must be solely about facts that will be backed up by evidence and cannot be arguments. In a DUI case, the prosecution gives their opening statement first because they have the burden to prove their case for the charges to stick.

3. The Case-in-Chief

The case-in-chief refers to the attorney arguments and actual trial itself. Here, each side introduces their evidence following rules outlined in the California Evidence Code. Evidence is presented in various ways, including:

Documents, photos, test results, etc.;
Testimony of witnesses or experts; and
Testimony of the accused, should they decide to elect this right.

In general, witnesses may only testify regarding information or matters they are personally familiar with or knowledgeable about. The opposing side can question witnesses about their testimony after they have given it. This is called cross-examination. This can happen with witnesses from each side, and each side will have one opportunity to inquire about any testimony they wish.

Any subsequent questions raised by either side are called re-direct questioning. Each side may only re-direct regarding issues or topics the prior attorney raised with the witness. This ensures the process does not go on without a limit.

While introducing evidence into the record, the opposing side may have objections to the evidence. These objections must be based on the California Evidence Code and usually fall into one of the following categories:

A statement lacks foundationor a witness does not have personal knowledge;
The proposed evidence is incomplete;
The proposed evidence is inadmissible speculationwith no direct evidence;
Statements or testimony is inadmissible hearsay;
The proposed evidence is misleading, irrelevantor unduly prejudicial;
The testimony contradicts prior testimony given under oath; or
Documents are not authenticatedor were not previously disclosed in discovery.

A judge will rule on any objections to evidence raised by either side.

The case-in-chief can take one or more days, depending on the availability of witnesses, the court’s schedule, and much more. Once each side’s evidence has been fully presented and any arguments regarding admissibility are resolved, then the case moves towards its final stages.

4. Closing Arguments

Closing arguments occur once each side presents all of their evidence and “rests” their case. This part of the trial is each lawyer’s time to make one last impact on the jury before the jurors leave to deliberate and make a decision. It can be highly impactful. Many lawyers use this time to dramatize their case and tell a story that presents the most favorable picture of their client, what happened and why their client should prevail.

In a DUI case, the prosecutor will make their closing argument first, followed by defense counsel. Each lawyer will usually explain how the evidence supports their theory of the case, the problems with the other side’s case or arguments, and what issues the jury must work through to come to a verdict. Because the prosecutor has the burden of proof, they will be granted one last statement after the defense counsel’s closing statemetn. This rebuttal is the government’s final chance to respond to the defendant’s arguments and make one final impression on the jury.

Before going to deliberate, a judge may present the jury with specific instructions to help them understand the process they must follow to decide on a verdict. There are different jury instructions depending on what type of DUI a person is charged with:

The jury must follow the specific instructions they are given.

5. Jury Deliberations

After closing arguments are complete, the jury will retreat to a private room to discuss the case. First, they will pick a foreperson amongst themselves to guide the process. The jurors will then discuss the case until they unanimously agree whether a defendant is guilty or not guilty and give their verdict.

In getting to a unanimous verdict, the jury may be allowed to ask the judge questions about the case, including specific testimony. The jury is also allowed to review photos from the alleged crime scene. However, they may not consult with or talk to others who are not on the jury or who are from the outside world.

The jury must begin any debate about the case with the presumption that the defendant is innocent. They then must determine if the evidence they were presented with proves beyond a reasonable doubt (or by whichever burden is placed on a case), that the defendant is guilty. The standard of “beyond a reasonable doubt” is the very highest standard of proof in the law.

Once the jury has decided, their deliberations are over, and they let the judge know. The case may be ruled a mistrial if the jurors do not unanimously agree on the defendant’s guilt or non-guilt. The case may be re-tried with a new jury, which means the process would have to happen again in a new trial.

6. The Verdict

The next step is a sentencing hearing if a jury unanimously finds a defendant guilty. This usually occurs on a different date. The case is dismissed immediately if a jury unanimously finds a defendant not guilty.

Believe it or not, California law allows defendants to try to set aside their convictions and obtain a new trial even if a jury enters a guilty verdict after a trial. In these cases, the defendants’ attorneys would have to make a motion for a new trial.

7. The Sentencing Hearing

As mentioned above, if a person is convicted of DUI charges, they will have a sentencing hearing. At this hearing, both sides will have a chance to present arguments to the judge on what they believe the correct sentence should be.

A skilled California DUI defense attorney will present factors that they believe show a sentence should not be very harsh. In contrast, the district attorney will present elements they feel should lead to a more substantial punishment. These are mitigating and aggravating factors, respectively.

A judge will consider each side’s arguments but then has the discretion to determine a defendant’s specific sentence. However, a judge must follow basic sentencing guidelines, which vary depending on factors such as the DUI offense being charged and the county in which the case is taking place.

Some DUI Defendants Forgo the Right to a Jury Trial to Have a Judge Decide Their Case Instead

Because of how long, involved, and costly a trial can be, some DUI defendants will forgo their right to a jury trial and let a judge decide their case. When this happens, they may have already agreed to a plea bargain with the district attorney. Alternatively, they may want a quick decision to move past the situation. Or, perhaps, they are concerned about how a jury would decide their case.

How Jury Trials and Bench (Judge) Trials Differ

As discussed in this post, a jury trial is where a selected group of citizens decide whether the prosecution’s evidence has shown beyond a reasonable doubt that a defendant is guilty of DUI charges.

In a bench trial, there is no jury. A judge oversees the case and decides if the defendant is guilty or not guilty. Both types of trials follow the same rules and procedures. However, they differ in a few ways.

First, there is only one person in a bench trial, as opposed to a group making a decision in a jury trial. Second, a bench trial will usually take less time because there are no jury selection processes, jury instructions, and other time-consuming formalities. Third, a judge will have a better legal understanding because they are familiar with criminal law and trials. The judge will likely not be swayed by emotional or other factors which can improperly influence jurors.

Should the Defendant Testify?

Whether a defendant should testify in their criminal case is a sensitive decision. On the one hand, a person may wish to have the opportunity to defend themselves, but on the other hand, they may not want to waive to avoid self-incrimination, which is a protected right under the Fifth Amendment to the U.S. constitution.

Once a defendant testifies or discloses self-incriminating information, they cannot raise the privilege. Once waived, individuals cannot assert the Fifth Amendment privilege, and a prosecutor may cross-examine their testimony and elicit even more incriminating information.

Thus, this decision should not be undertaken lightly and should only be discussed within the context of your attorney-client relationship.

Is a DUI Jury Trial Right for Me?

A DUI trial may or may not be suitable for your case. An experienced attorney can help determine if you should proceed with this option. Your case may be solid, and the prosecution’s case may be weak. The opposite may also be true. Alternatively, you or your attorney may feel that the plea bargains being offered may not be fair or reasonable and that going to trial may lead to a better deal.

Every case is different, and the analysis of a California DUI lawyer can be invaluable in making this decision.

Hiring a California DUI Attorney

California has some of the most strict DUI laws and punishments for drunk driving in the United States. Representing yourself is never your best option. Many California DUI attorneys, such as the Law Offices of Taylor & Taylor offer free consultations. You can get answers to your questions and legal advice from a trusted legal advocate for individuals facing criminal allegations.

You should never go it alone when dealing with DUI charges. An experienced attorney can help you achieve far more positive consequences than are likely if you do not have the advice of legal counsel. If you’d like to learn more, you can speak to a DUI Defense attorney today by reaching out to us at this link.

Interested in this topic and want to learn more? Check out other related topics on our blog which is updated regularly.

Sources:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=689&lawCode=PEN

https://www.courts.ca.gov/3954.htm#challenges

https://www.courts.ca.gov/3954.htm#for_cause

https://www.courts.ca.gov/3954.htm#peremptory

leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=231.

https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/openingstatements/#:~:text=

https://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=EVID&tocTitle=+Evidence+Code+-+EVID

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=800.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=702.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=356.