Category Archives: Duiblog
Unfortunately, you cannot get your revoked driver’s license restored or reinstated in California. If the California Department of Motor Vehicles or the court revoked your driver’s license, you must apply for a new driver’s license.
You may not apply for a new driver’s license until the entire period of your revocation expires. Furthermore, to get a new driver’s license, you must take and pass all required DMV tests to obtain a driver’s license, including:
- Written test covering traffic laws in California
- Driving test supervised by a DMV instructor
- Vision test
You may also be required to take an alcohol/drug education course. You must also pay all applicable fees to get a new driver’s license and provide proof of insurance.
What Does Revocation of a Driver’s License Mean in California?
According to California Vehicle Code §13101, revocation of a driver’s license means that the person cannot drive legally within the State of California. The vocation applies to all motor vehicles. The person must wait until the end of the revocation period to apply for a new driver’s license.
Why is a Person’s Driver’s License Revoked in California?
There are several reasons that the California Department of Motor Vehicles revokes a person’s driver’s license. Some of the common traffic offenses that can cause a driver’s license to be revoked include, but are not limited to:
Driving Under the Influence
The Admin Per Se or administrative license suspension program began in 1990. The program was a deterrent to drunk driving. Under the Admin Per Se (APS) program, the DMV is required to revoke or suspend the driving privileges of anyone arrested for DUI or DUID who:
- Refuses to take a chemical BAC test to determine the level of alcohol or drugs in their system
- Has a .01% BAC level while driving on DUI probation, a .04% BAC level while driving a commercial vehicle, or .08% BAC level while driving a non-commercial motor vehicle
Blood or breath tests are used to determine BAC levels after a drunk driving arrest. A urine test is used as a chemical test unless the person takes an anticoagulant medication or is a hemophiliac. Urine tests are otherwise unavailable unless both a breath and blood test cannot be performed.
Road Rage Under California Vehicle Code §13210
Road rage is another common reason why a person’s driving privileges may be revoked. Under California Vehicle Code §12321, the DMV may revoke a person’s driver’s license for angry or aggressive behavior toward bicyclists, pedestrians, or other drivers.
Conduct that could result in the DMV revoking a driver’s license for road rage includes, but is not limited to:
- Verbal insults
- Threatening physical violence
- Rude gestures
- Dangerous driving intended to intimidate another driver
- Hitting another vehicle
- Acts of physical violence
- Threatening another driver with a weapon
Road rage incidents can be serious crimes. The person may be charged with other crimes under the penal code, including murder and assault. In addition, the driver could face other charges under the traffic code, including reckless driving and speeding.
Mental or Physical Disorder
A driver’s license may be revoked because the driver has a physical or mental disorder that prevents them from operating a motor vehicle safely. A DMV reexamination hearing may be requested by a friend, relative, caregiver, physician, the court, or other parties.
A driver’s license may be revoked because the person committed a crime. Criminal convictions that could result in revocation of a driver’s license include, but are not limited to:
- Vehicular manslaughter under California Penal Code §192c PC
- Committing a felony that involves using a motor vehicle
- Reckless driving that results in bodily injury to another person under Vehicle Code §23104
- Subsequent DUI convictions with a BAC of .08% or higher
- Incidents of driver’s license fraud, including criminal charges for forgery under Penal Code §470 PC
Some criminal convictions can result in permanent revocation of driving privileges, including felony assault with a deadly weapon when using a car as the weapon. Killing someone while driving under the influence results in permanent driver’s license revocation.
A DMV revocation of driving privileges lasts a specific period of time. In most cases, the DMV notifies the driver how long the driver’s license revocation period lasts. However, the DMV could revoke a person’s driver’s license for an unspecified period.
How Can You Avoid a Driver’s License Revocation in California?
You could challenge the DMV’s decision to revoke your driver’s license. However, you must file a request for an administrative hearing within ten days of receiving the revocation notice from the DMV or within 14 days of the mailing date of the notice.
DMV administrative hearings are not criminal hearings. These hearings are separate from any criminal court hearings you might have regarding criminal charges. The hearings are held at the DMV offices before a hearing officer instead of in court before a judge.
The standards of evidence and proof are less strict at a DMV hearing than they are in criminal court. However, it is important to remember that these hearings are held by an experienced DMV hearing officer trained in the procedure, evidence, and the laws applicable to the matters being heard.
You have the right to be represented by an attorney at the hearing. Most California DUI lawyers offer free consultations so that you can talk with a lawyer before the hearing about your rights.
At the hearing, you have the right to examine the evidence presented by the DMV and cross-examine any witnesses presented by the DMV, such as the law enforcement officers who made the arrest. In addition, you may testify at your hearing and present witnesses and evidence on your behalf.
Is There a Difference Between Suspending Driving Privileges and Revoking Driving Privileges in California?
When the DMV suspends your driver’s license, it puts a “hold” on your driving privileges. You are prohibited from operating a motor vehicle for a specific period. You can resume driving at the end of that period provided you have the required insurance and your driver’s license has not expired.
A revocation of a driver’s license means that the driver’s license has been canceled. Your driving privileges are not automatically reinstated at the end of the revocation. As discussed above, you must go through the entire process of obtaining a new driver’s license if you want to operate a motor vehicle in California.
Can You Expunge a DUI Conviction From Your Criminal Record to Avoid Revocation for Subsequent DUI Convictions?
California Penal Code 1203.4 PC is the expungement law in California. It allows you to expunge most DUI convictions, including misdemeanor DUI and other prior convictions.
To be eligible to petition the court for DUI expungement, you must meet the following criteria:
- A state court must have ordered your DUI conviction
- You cannot have served time in state prison
- You met all requirements of your sentence, including performing community service, paying restitution to victims, attending treatment programs, and paying fines or assessments
- You completed probation, or it has been at least one year after your DUI conviction if you were not sentenced to summary probation
- You did not violate any of the terms of your probation
- You are not currently charged with another crime, serving probation for another criminal conviction, or serving time for another crime
Even though you can expunge DUI cases so that they do not show up as criminal convictions on a background check, DUI cases remain on your DMV record. Expungement in California does not waive the fact that drunk driving convictions are “priorable” offenses.
A priorable offense counts toward sentencing for any subsequent offenses. Furthermore, expunging a DUI conviction does not shorten the period of driving suspension or revocation. You must still wait until the end of the revocation or suspension period to reinstate driving privileges.
Even though you expunged the DUI conviction, you would need to go through the same process of obtaining a new driver’s license when the revocation period ends. Additionally, any new offenses could count toward a revocation of your driving privileges again.
What Should I Do if I Am Facing a DUI Charge in California?
DUI offenses should be taken very seriously. Losing your driving privileges could result in unemployment and problems keeping a professional license. In addition to losing your driver’s license, you face substantial fines, jail time, summary probation, DUI school, and other penalties. Depending on the circumstances of the DUI arrest, you could spend years in prison for driving under the influence.
However, you could have several defenses to the DUI charges. A California DUI defense lawyer examines the circumstances of your DUI arrest to determine if the law enforcement officers violated your civil rights. Your attorney also explores other DUI defenses that could result in the charges being dismissed or reduced.
In the event that you cannot avoid a DUI conviction, your attorney negotiates with the prosecutor to get the best possible terms for a plea deal. Negotiating a plea deal or pleading guilty to DUI charges without a lawyer could result in harsher penalties than is necessary for your case.
Racism is still prevalent in traffic stops throughout California. Law enforcement officers continue to pull over more Black individuals without probable cause than White individuals.
According to the annual report by the Racial and Identity Profiling Advisory Board, in 13.1 percent of the traffic stops of Black individuals in 2020, the police reported “no action taken.” That indicates the person Black person was not engaged in criminal activities. That rate is 2.3 times higher than the rage of White individuals.
Additionally, law enforcement officers searched Black individuals at a rate of 2.4 times that of White individuals. Use of force against African Americans during a traffic stop occurred 2.5 times more than the use of force against White individuals.
Sadly, racially motivated traffic stops continue in California Racial profiling by police officers for traffic stops violates the United States Constitution and California law.
What is Racial Profiling?
Racial profiling is the discriminatory practice by police officers of targeting people for suspicion of committing a crime because of the person’s race, national origin, ethnicity, or religion. Racial profiling assumes that a person is more likely to commit a crime because of their ethnicity or skin color.
Victims of racial profiling in California are more likely to be subjected to unfounded traffic stops and car searches based on race instead of a reasonable suspicion of a crime. Examples of racial profiling on the street include DUI stops, DUI checkpoints, and general traffic stops.
Racial profiling in California often involves African Americans and Hispanic individuals. However, people from the Middle East and Asia are also victims of racial profiling by law enforcement agents.
California Penal Code §13519.4 – Racial Profiling
California Penal Code §13519.4 prohibits law enforcement officers from engaging in racial or identity profiling.” What does that mean?
The legislature included the statement in the code section that states racial or identity profiling presents a danger to the “fundamental principles of our Constitution and a democratic society.” The practice “is abhorrent and cannot be tolerated.” Racial profiling is used for stopping and detaining individuals has no place in our criminal justice system.
Defining Racial or Identity Profiling for the Purposes of Traffic Stops
Police departments have a duty to educate officers to reduce the instances of racial profiling in traffic stops. Racial profiling is a threat to public safety for all citizens.
California Penal Code §13519.4 defines racial or identity profiling as the consideration or reliance on any of the following qualities to any degree when deciding which persons to stop:
- National original
- Sexual orientation
- Gender identity or expression
- Mental or physical disability
An officer may consider and rely upon a description of a suspect that includes the above characteristics when they are actively searching for a suspect. However, the code section lists the activities a police officer cannot take based on racial profiling.
Activities Prohibited if They Are Based Solely on a Person’s Race or Identity
The statute lists specific activities that a police officer cannot take if they base their decision solely on a person’s race or identity. Under Penal Code §13519.4, racial profiling is prohibited in the following activities:
- Traffic stops or pedestrian stops
- Actions during a stop, including asking questions
- Seizing any property
- Consensual and non-consensual search of a person or property
- Issuing citations
- Removing people from a vehicle during a traffic stop
- Making an arrest
If a police officer makes a DUI stop solely based on your race, the traffic stop is illegal because of racial discrimination and a violation of your civil liberties. A judge could dismiss your DUI case if a police officer pulled you over for no other reason than you were a Black man or woman.
DUI Enforcement and Racial Bias – How Does it Impact DUI Stops and Arrests?
Studies indicate that racial bias may significantly impact DUI enforcement efforts. For example, according to one analysis of DUI cases in California, Latino/Hispanic men were convicted of driving under the influence at higher rates than White men, related to the estimated rates of alcohol-impaired driving for each specific group. The suggestion is that racial bias plays a role in White men having lower chances of conviction than Latino/Hispanic men committing the same offenses.
Black, Latino, and Hispanic men have many more arrests, convictions, and incarcerations than men of other races or ethnicities, including DUI convictions. Generally, African American drivers are stopped and searched more often than White drivers. As a result, they are over-represented in the number of DUI convictions compared to their portion of the population.
The study’s authors conclude that addressing the differences in DUI convictions based on race is crucial. A DUI conviction can have long-term negative impacts on a person’s housing, employment, voting rights, education, and other critical aspects of life.
California’s Drunk Driving Statute
If police officers pull you over for suspicion of driving under the influence, you could be charged under California Vehicle Code §23152. The officers may charge you with driving under the influence of alcohol or driving with a blood alcohol content of .08% or higher.
The penalties for a first time DUI conviction can include jail time, fines, suspended driving privileges, summary probation, DUI school, and other penalties. In addition, your criminal record and the circumstances of the DUI arrest can enhance the penalties for a drunk driving conviction.
What Should I Do if I Am Stopped for DUI Because of Racial Profiling?
Do not resist arrest or argue racial profiling with the police officer. You could escalate the situation, placing yourself and others in danger. Instead, act respectfully when answering the police officer’s questions about your identity and address.
You do not have to answer other questions, such as have you been drinking and where were you earlier. You may calmly and politely tell the police officer you do not want to answer questions without a California criminal defense attorney.
You are not required to take the field sobriety tests or the preliminary alcohol screening (PAS). You are not penalized for refusing these tests during a DUI stop.
However, you could face enhanced penalties for a DUI conviction if you refuse the evidentiary chemical test after your arrest. The California Department of Motor Vehicles also suspends your driving privileges.
As soon as possible, contact a California DUI defense lawyer to discuss your case. An attorney analyzes the circumstances surrounding the DUI stop to determine if your civil rights were violated.
Proving Racial Profiling in a California DUI Case
It could be challenging to prove that the police officer stopped you because of racial profiling. However, a skilled DUI defense lawyer may be able to argue successfully that you were targeted because of racial profiling. You would not have been arrested for DUI but for the illegal and discriminatory racial profiling by law enforcement officers.
Therefore, the police officers violated your Fourth Amendment protections against illegal searches and seizures. The police officers also violated your Fourteenth Amendment right to equal protection under the law.
Your attorney may request the police officer’s record to search for other instances of racial profiling. Building a pattern of racial profiling can strengthen your racial profiling defense.
A California DUI lawyer also explores other DUI defenses as they gather evidence, interview witnesses, search for video of the DUI stop and arrest, and build a defense strategy for the drunk driving charges.
Filing a Motion to Suppress Evidence Because of Racial Profiling
If you can prove that you were stopped because of your race, it could invalidate the charges of driving under the influence. Police officers must have reasonable suspicion that a crime was committed or someone is in danger to initiate a traffic stop. If the officers make a traffic stop for an illegal reason, their motives impact the entire criminal case.
Had they not made the traffic stop, they would not have gathered evidence that you were driving under the influence. Because the police officers broke the law, the evidence should not be allowed in your case.
If there is evidence of racial profiling, your attorney can file a motion to suppress the evidence. Your attorney argues that any evidence obtained because of illegal means is inadmissible in court. If the judge agrees, none of the evidence the police gathered after they made the illegal traffic stop could be used against you.
Without the evidence, the prosecution does not have a case. The prosecutor may drop the case, or the judge could grant a motion to dismiss for lack of evidence. If you sustained any damages because of the illegal DUI stop, you could sue the state for damages in civil court.
Protecting Your Best Interest by Negotiating a Plea Agreement
If a racial profiling or other DUI defense strategy does not work, you may want to consider whether you want to proceed to trial or negotiate a plea agreement. When the state’s evidence against you is convincing, going to trial can be risky. So instead, your CA DUI lawyer works to negotiate the best plea deal possible for your case.
Your attorney may be able to convince the prosecutor to reduce the charges and decrease the penalties. If so, that might be the best choice you have to protect your future. A DUI conviction can follow you for many years.
Before pleading guilty, talk with a DUI defense attorney. Learn about all your options for fighting drunk driving charges, including raising allegations of racial profiling.
Victims of racial profiling should be heard in court. They deserve justice for the wrongs committed by police officers. The first step in righting wrongs is seeking legal advice from an experienced criminal defense lawyer.
The DUI penalties for a conviction of driving under the influence in California can be severe. Even a first-time DUI misdemeanor could carry jail time for a DUI conviction. Sentence enhancements could result in the penalties for a first-time DUI conviction being as harsh as the penalties for felony drunk driving.
What Are Sentence Enhancements?
A sentence enhancement is an additional punishment for a conviction of driving under the influence. The courts add the additional punishment to the penalties usually ordered for a DUI conviction.
The sentence enhancements could result in:
- More days in jail or a prison sentence
- A longer period for driver’s license suspension or revocation
- Mandatory installation of ignition interlock devices
- Higher fines, assessments, and fees
- Longer time spent in DUI school or a drug/alcohol treatment program
- Mandatory restitution payments to victims
- Vehicle impoundment for longer periods
- Longer terms of DUI probation (summary probation)
- Extended periods of community service
- Enhanced conditions of probation
- Determining whether a person can receive probation or must serve time in jail
One of the worst results of sentence enhancements is the additional criminal charges you could face. If the police charge you with additional crimes associated with driving under the influence, those offenses are sentenced separately from the drunk driving charge. Therefore, you could receive multiple criminal sentences that could add up to 10, 20, or more years in prison and thousands of dollars in fines, assessments, and restitution.
What is Considered Driving Under the Influence in California?
Drunk driving can be charged under one of two sections in California Vehicle Code §23152. Therefore, you could be charged with both offenses.
The first DUI offense is operating a motor vehicle under the influence of alcohol. It does not state that you have to have a blood alcohol level above the legal limit. It only prohibits people from driving under the influence of alcohol.
The second charge is driving a motor vehicle with a BAC of .08% or higher. You are presumed to be unable to operate a motor vehicle safely if your BAC is above the legal limit.
Another part of code section 23152 makes it illegal to drive under the influence of drugs. As a result, the police could charge you with driving under the influence of both alcohol and drugs.
What Are Common Sentence Enhancements for California DUI Cases?
The circumstances of your DUI arrest could result in enhanced penalties. Aggravating circumstances that often result in harsher punishments for drunk driving include:
Prior DUI Convictions on Your Record
DUI convictions are priorable offenses. That means every DUI conviction you have within the past ten years counts toward your current drunk driving conviction. If the DUI is a felony offense, it does not matter how old the conviction is on your record. Felony DUI convictions always count against you.
Generally, the penalties for a first-time DUI conviction without aggravating circumstances are:
- Up to six months in county jail (usually no time with a clean criminal record and driving record)
- Fines between $390 and $1,000
- Summary probation from three to five years
- A three or nine-month alcohol/drug education program
- Six to ten months suspended driving privileges that generally can be converted to a restricted driver’s license or drive without restrictions by installing an ignition interlock device (IID)
However, if you have prior DUI convictions on your driving record, the penalties for another drunk driving offense increase. You face additional time in jail, higher fines, longer driver’s license suspension, mandatory DUI school, and longer periods of summary probation. In addition, the judge could impose additional penalties at his discretion.
Excessive Speeding and Reckless Driving While Under the Influence
California Vehicle Code §23582 enhances the sentence for a DUI conviction if the person was speeding and recklessly driving while under the influence. The sentence enhancement applies if the driver was:
- Convicted of driving under the influence, a BAC of .08% or higher, or DUI causing injury; AND,
- The driver exceeded the speed limit by 30 mph on the freeway or 20 mph on other streets; AND,
- Drove in a reckless manner.
A driver who was speeding and driving recklessly must attend DUI school (i.e., drug and/or alcohol education program). Additionally, the person faces 60 days more in jail for reckless driving and speeding while intoxicated.
Even if the court grants probation on the DUI charge, you still must serve the 60 days in jail for the enhancement. Also, if this is the first DUI conviction, you must complete DUI school.
Causing Collision, Injury, or Death While Driving Under the Influence
If you cause a collision while driving under the influence, the court or prosecutor may want community service or community labor as a probationary term. Another probationary term will be to compensate the victim for any economic losses.
When you cause injury to another person, you can be charged under Vehicle code 23153- DUI Causing Injury. This can be a misdemeanor or felony depending on the facts of the case.
Furthermore, the police officers or prosecutor could charge you with other crimes related to the DUI accident. For example, you could be charged with vehicular manslaughter while intoxicated if the DUI accident results in the death of another person. In addition, you could be charged with felony hit and run if you leave the accident scene.
Having a High Blood Alcohol Content Level
The legal limit for drunk driving charges nationwide is .08%. Therefore, if your BAC is .08% or above, the law presumes that the alcohol in your system impairs your driving abilities. However, California Vehicle Code §23578 allows judges to impose enhanced penalties when a person is arrested with a BAC level of .15% or higher.
Refusing to Take a Chemical Test after a DUI Arrest
California’s implied consent law requires drivers to submit to chemical testing for BAC levels after being arrested on drunk driving charges. CVC §23578 also states that judges may impose enhanced sentences if a person refuses to take a chemical breath or urine test after a DUI arrest.
You can refuse a preliminary alcohol screening (PAS) test without penalty. A PAS is a roadside breathalyzer test. However, refusing an evidentiary chemical test (post-DUI arrest BAC test) can result in enhanced penalties for a DUI conviction and other punishments.
Under this code section, the law states that the court “shall consider” a test refusal or excess BAC as factors which “may justify” an enhanced sentence. Therefore, it is in the judge’s discretion whether or not to increase the penalties for these two aggravating circumstances.
Drunk Driving with a Child Under 14 Years of Age in the Vehicle
Driving with a child in the car can result in enhanced penalties under California Vehicle Code §23572. The penalties under this code section are mandatory. Therefore, if the state proves you were driving under the influence with a child under 14 years of age in the vehicle, you will be sentenced to the harsher punishment.
In addition to the penalties for driving under the influence, you face additional jail time added to your sentence:
- 48 hours for a DUI first offense
- 10 days for a DUI second offense
- 30 days for a DUI third offense
- 90 days for a DUI fourth offense
Furthermore, you could also face child endangerment charges for having a minor in the vehicle while intoxicated. Child endangerment is a wobbler offense. Therefore, you could face a misdemeanor or felony charge.
For a misdemeanor charge, you might serve up to one year in jail and pay a $1,000 fine. A felony charge increases your fine up to $190,000 with up to six years in state prison.
Underage Drinking and Driving
California has two DUI laws that specifically target underage drivers who consume alcohol and drive:
- Underage Driving with BAC of .05% or higher (CVC §23140)
- California’s Zero Tolerance Law for Underage Drivers (CVC §23136)
They may also be charged with either of the above charges, which carry separate penalties for a conviction. Underage drivers charged with DUI face significant sentence enhancements. The Zero Tolerance Law is a civil charge that carries a mandatory one-year driver’s license suspension for a first offense.
Furthermore, anyone under the age of 21 years is presumed to give consent to a PAS test (roadside breathalyzer) when police officers detain them for suspected drunk driving. Also, an underage driver could be charged with any DUI offenses that apply to all drivers. Therefore, a drunk underage driver could face substantial sentence enhancements, depending on the circumstances of the arrest and the charges.
Should I Contact a California DUI Defense Attorney?
Most DUI attorneys in California offer free consultations. Therefore, it does not cost you anything to talk with a California DUI lawyer. DUI convictions can have long-term consequences on many aspects of your life. Instead of pleading guilty to a DUI offense, talk with a criminal defense attorney about options for fighting DUI charges.
DUI sentence enhancements can be severe. Don’t let a prosecutor push you into accepting a plea deal that is not good for you. Instead, make sure you understand your legal rights from a trusted advocate for people charged with crimes in California.
After an arrest for driving under the influence in California, your DUI case begins to wind through the criminal courts. The pre-trial phase of DUI cases generally lasts the longest of all phases. Your California DUI defense lawyer investigates the DUI charges against you during the pre-trial phase of your case.
A DUI investigation may include several phases, such as:
- Searching for videos of the DUI stop and DUI arrest from dashcams, police officer body cams, traffic cameras, and nearby surveillance cameras
- Interviewing witnesses and taking statements from anyone involved in the case
- Subpoenaing records from the blood alcohol tests performed after your DUI arrest
- Obtaining copies of police reports to analyze the contents of the reports and information gathered by police officers
- Consulting expert witnesses, when necessary, concerning potential defenses to BAC results
The evidence gathered during the DUI pre-trial phase shapes the DUI defense strategy developed by your CA DUI attorney.
Court Schedules Pre-Trial Conferences and a Pre-Trial Hearing
As the case continues toward a jury trial or a bench trial, the judge assigned to the case may schedule one or more pretrial conferences and pre-trial hearings. Judges use pre-trial conferences to determine the status of the case and discourage parties from wasting time during the pre-trial phase. In addition, the judge may use a pre-trial conference to expedite the disposition of the case.
Defense lawyers and prosecutors may file one or more motions with the court during the pre-trial phase. These pre-trial motions may deal with various issues related to the case. The court schedules pre-trial hearings for the judge to hear each side’s argument to make a ruling in the case.
All parties generally attend a pre-trial hearing, including the defendant. The primary purpose of the hearing is to dispose of the matter in question and advance the case to trial or other disposition. Pre-trial hearings are not used to determine a defendant’s innocence or guilt. These hearings center on questions of law that the judge needs to decide before a trial begins.
Examples of pre-trial motions include, but are not limited to:
Motion to Suppress
If law enforcement officers or the prosecution obtained any evidence through illegal means, that evidence might be inadmissible at your trial. A motion to suppress evidence requests that the court review specific evidence to determine if it can be used at trial.
If the judge determines the evidence was illegally obtained or unjustly prejudices you, the judge can throw out the evidence. When evidence is inadmissible, the prosecution cannot introduce it in court. In other words, the jury never hears the evidence.
Therefore, the prosecution may not have sufficient evidence to convict you of the DUI charges. Winning a motion to suppress evidence at a pre-trial hearing may mean that the state drops the charges against you.
Probable Cause Hearing
Probable cause is required under the Fourth Amendment to the United States Constitution. Police officers must have probable cause to initiate a DUI stop or make a DUI arrest. Lack of probable cause could result in the charges being dismissed.
Generally, a police officer must have a reasonable suspicion that a person is committing a crime or a crime has taken place to pull over a motorist. In other words, the police officer must have a reason for pulling over the driver to initiate a traffic stop. For example, the person was speeding or failed to use a turn signal.
Your attorney may attack probable cause in several ways. First, your attorney could argue that the police officer arrested you even though you passed all the field sobriety tests and did not show any signs of intoxication. He could argue that you were obeying the traffic laws and were not driving erratically when the police officer stopped you.
A Pitchess motion allows your attorney to learn more about the arresting officer’s history on the job by inspecting the officer’s personnel file. Information obtained about prior acts of police misconduct could be used in your case to support allegations of wrongdoing.
For example, your attorney may suspect that the police officer used excessive force or filed a false police report. Other information that could be useful includes records showing that the officer racially profiles suspects or falsified evidence.
Motion to Dismiss
There may be grounds to dismiss the DUI charges. If so, your lawyer files a motion to dismiss. The judge hearings the evidence presented by your lawyer and the prosecution’s arguments. After considering the matter, the judge could dismiss your DUI case or order that the case proceeds to trial.
What Happens After the Court Finishes All Pre-Trial Hearings?
The prosecution may offer you a plea bargain before your trial begins. If you plead guilty to the DUI charges, the prosecution agrees to a reduced charge and/or less harsh penalties. Before accepting a plea bargain, you should consider several important factors:
- You could get a reduced sentence that might not include jail time and other penalties that could cause you to miss work, such as community service and DUI school
- You might avoid a priorable offense if the prosecutor is willing to reduce the DUI charges to dry reckless or a speed ex
- You could avoid a mandatory ignition interlock device (IID) which can be costly and embarrassing
- You avoid the stigma of going to court for a DUI trial
- You might avoid the severe impacts a DUI conviction causes on car insurance rates
- Pleading down the charges could have less of an impact on professional licenses
- You might avoid losing your driving privileges or shorten the period of a suspended driver’s license
- The fees, fines, and assessments may be much lower if you accept a plea agreement
- Accepting a plea agreement takes away the uncertainty of a trial and the risk the judge could impose harsher penalties for a DUI conviction
However, you also need to consider that a plea agreement could still result in significant penalties and a priorable offense on your driving record. The facts and circumstances of your case dictate whether a plea agreement is the best option for dealing with a drunk driving charge. Your California DUI defense attorney can help you evaluate the pros and cons to make the best decision for your situation.
Going to Trial on DUI Charges in California
If the court does not dismiss the DUI case during pre-trial motions and you do not accept a plea deal, your case proceeds to trial. Both sides present evidence to the jury. The judge explains the law to the jury members, and the jury members return with a verdict.
Your CA DUI attorney may present one or more defenses to the drunk driving charges. Potential DUI defenses include, but are not limited to:
- Attacking the results of the BAC test results as inadequate because the machines were defective, inadequately maintained, or incorrectly calibrated
- Alleging that the police officers failed to administer the field sobriety tests correctly or mishandled the chemical test samples
- The lab performed the blood test with fermented blood
- Health conditions or illnesses caused DUI breath test errors, such as GERD, acid reflux, diabetes, etc.
- A high-protein diet resulted in falsely high BAC levels
- Your blood alcohol continued to rise after your DUI arrest, which resulted in a high BAC level that was not present when the police officers stopped you for suspected driving under the influence
- Title 17 violations related to the requirements for collecting, storing, and analyzing samples for chemical tests
- You have physical impairments or medical conditions that can cause you to appear intoxicated, such as allergies (red/watery eyes), diabetes (slurred speech from a sugar low), epilepsy, brain damage, etc.
- The officers based their probable cause for an arrest on non-standardized field sobriety tests
- Environmental conditions caused inaccurate field sobriety test results
- Your BAC was not over the legal limit, and the prosecution failed to prove your driving abilities were impaired by the amount of alcohol in your system
- The DUI checkpoint did not comply with current laws regulating police-organized drunk driving checkpoints
- You were not driving the vehicle at the time of the DUI stop
The defense strategy used at a California DUI trial depends on the facts and circumstances of the case. Being honest with your attorney is crucial. The more facts your attorney knows about what happened before, during, and after the DUI arrest can help your lawyer build a better defense for trial. It is not wise to talk with the police after a DUI arrest. You cannot talk your way out of a drunk driving charge. Anything you say can be used as evidence in your DUI trial.
Instead, it is best to remain silent except for asking for a criminal defense attorney. A California DUI defense lawyer explains your options for plea bargaining or going to court. The best way to protect your legal rights is to have an experienced DUI attorney handling your case. Most DUI law firms offer free consultations.
Driving under the influence can result in a serious criminal charge in California. However, you do not have to drive an automobile to be charged with a crime. Your intent to drive while intoxicated could result in fines and jail time.
An attempt to commit a crime is defined as taking steps to commit the crime even though you are unsuccessful. Under California Penal Coe 21A, an attempt to commit a crime has two elements:
- A specific intent to commit the crime
- A direct step toward committing the crime
An attempted DUI is less serious than driving under the influence. However, it is a criminal charge, and you should treat the matter seriously. Because you could go to jail, it is wise to seek legal counsel from an experienced California DUI defense lawyer.
What is Considered Intent to Commit DUI?
Intent means that you were drunk and intended to operate a motor vehicle in that condition. For example, a police officer detained you after you got behind the wheel but before you could drive away. Another example would be stating that you would drive home after drinking alcohol at a friend’s house or a bar.
Any indication you give that you will drive a vehicle after consuming alcohol could be construed as intent to commit DUI. For example, picking up your car keys and heading toward your vehicle could qualify as intent to commit DUI.
What is Considered Attempt to Commit DUI?
An attempt must be a direct action you take to drive under the influence of alcohol or drugs. It goes beyond merely stating that you intend to drive while intoxicated.
For example, you open your car door to enter the vehicle or walk toward your car with your keys. At that point, you have both intent and a direct step to commit DUI. Intent and attempt can occur together, but intent without a direct step toward committing the crime would not be sufficient to convict under Penal Code 21A.
When Do Police Officers Charge a Person with Attempted DUI?
Attempted DUI is generally used when a person is found drunk in a parked vehicle or walking toward a parked vehicle. The prosecution may also offer attempted DUI as part of a plea bargain.
What is the Sentence for Attempted DUI?
California Penal Code 664 states that the penalties for an attempted crime are one-half of the potential fine and one-half of the potential jail sentence for the actual crime. Therefore, if you are convicted of attempted DUI, the court orders you to pay one-half of the fine you would have paid had you been convicted of DUI. In addition, you also serve one-half of the jail sentence for a DUI conviction.
However, there is no requirement to suspend your driver’s license or attend DUI school. In addition, attempted DUI will not count as a prior DUI offense if the police arrest you for drunk driving in the future. Therefore, negotiating a plea deal for attempted DUI is much better than being convicted of drunk driving in California.
Are There Defenses to Attempted DUI in California?
You could raise several defenses to attempted DUI charges in California. Some defenses your attorney may argue include:
- You were not intoxicated at the time of the arrest
- You did not intend to operate a vehicle under the influence of alcohol
- There is no evidence of a direct step toward driving while intoxicated
- You abandoned your plan to drive your vehicle after consuming alcohol or taking drugs
- The prosecution has insufficient evidence to prove both intent and attempt
- The arresting officer violated your civil rights by arresting you without probable cause
A California DUI lawyer examines all evidence against you to determine the best defense strategy to fight attempted DUI charges. In some cases, the best defense may be negotiating a plea bargain.
However, do not tell the police officers or the prosecution even if you believe you are guilty. The state has the burden of proving your guilt, so do not make it easier by confessing. Instead, talk with a California DUI attorney before making statements or accepting a plea agreement.
What is Considered Drunk Driving Under California Law?
California Vehicle Code §23152 defines drunk driving as:
- Being under the influence of an alcoholic beverage while driving a vehicle
- Having a blood alcohol content (BAC) of .08% or higher while driving a vehicle
The law presumes you are too drunk to operate a motor vehicle safely when your BAC is .08% or higher. Therefore, you are arrested for DUI if you agree to take a pre-arrest breathalyzer test and your BAC is .08% or more.
However, the police officers may arrest you for driving under the influence if they have probable cause without administering a breathalyzer test. The police officers may base their decision on the results of field sobriety tests or FSTs. Standardized field sobriety tests include:
- Walk and Turn Test
- Horizontal Gaze Nystagmus Test
- One-Leg Stand Test
You can refuse to take the pre-arrest FSTs and breathalyzers in California without penalty. However, California’s implied consent law requires you to submit to chemical testing for blood alcohol after being arrested for drunk driving.
The code states that refusal to submit to a chemical test can result in a fine and mandatory imprisonment if you are convicted of drunk driving. Furthermore, refusal to submit to a post-arrest chemical test results in an administrative suspension of your driver’s license for at least one year or two years if the refusal is within ten years of a prior DUI conviction.
What Are the Penalties for Driving Under the Influence in California?
The potential penalties for a DUI conviction depend on your prior DUI history and the circumstances of your arrest. DUIs are priorable offenses in California. If you have a previous DUI conviction within ten years, the severity of the punishment for your current drunk driving conviction increases. Felony DUI convictions count regardless of when the court convicted you of felony drunk driving.
The potential penalties for a misdemeanor DUI charge include:
- Fines and assessments
- Incarceration in county jail or state prison
- Court-approved alcohol or drug education program
- Three to five years summary (informal) probation
- Driver’s license suspension
- Up to 30 months in California DUI school
- Mandatory installation of an ignition interlock device (IID)
- Designation as a habitual traffic offender for repeat DUI convictions
- Restitution to injured parties
- Strike against your record under California’s Three Strike’s Law for a felony DUI
Additionally, if aggravating circumstances are present when the police arrest you for DUI, the penalties for a conviction increase. Aggravating circumstances for a DUI conviction include:
- Causing a DUI accident that results in injury or death of another person
- Excessive speeding while driving under the influence
- High blood alcohol content of .15% or more
- Refusing to submit to a chemical blood test after a DUI arrest
- Being under the age of 21 years at the time of the DUI arrest
- Having a child under the age of 14 years in the car while driving under the influence
Aggravating circumstances enhance the penalties for a DUI conviction in California. However, you could also face additional criminal charges for some aggravated offenses.
For example, you could be charged with underage drinking and driving or child endangerment. Those charges would carry additional penalties for a conviction.
Fighting DUI Charges in California
The consequences of a DUI conviction go beyond jail time and fines. A drunk driving conviction causes your car insurance rates to increase. You could lose your job because you serve time in jail or have a DUI on your record. A DUI conviction could make it more difficult to find employment in the future if driving is required as part of your job duties.
You can fight DUI charges instead of pleading guilty. A California DUI defense lawyer investigates your DUI arrest and the steps taken after your arrest to determine if errors or police misconduct occurred. Depending on the facts of your case, a DUI lawyer could raise one or more defenses, including:
- Challenging the results of the DUI chemical test
- Alleging the police officers lacked probable cause for a DUI stop or DUI arrest
- Presenting evidence that a medical condition caused you to appear drunk, such as a brain injury, diabetes, or epilepsy
- A medical condition caused a false BAC level, including GERD, acid reflux, or diabetes
- Challenging the accuracy of field sobriety tests
- Alleging a failure to maintain the chain of custody for chemical tests
- Arguing that you were not driving or operating a motor vehicle at the time of your arrest
- Arguing that your ability to operate a motor vehicle was not impaired at the time of your arrest
Accepting a plea deal without talking to a California DUI attorney is not in your best interest. The best way to protect your rights is to understand the law and potential defenses to DUI. A prosecutor is not a trusted source for legal advice since it is their job to convict you of a crime.
Instead, talk with a DUI lawyer before accepting a plea deal or pleading guilty to drunk driving charges. Even if you cannot avoid a conviction, having a lawyer on your side can help you obtain a more favorable plea agreement that could avoid jail time for DUI charges.