Category Archives: Duiblog
California DUI laws hold underage drivers to a stricter standard for driving under the influence of alcohol. Unlike adult DUI laws in California, underage drivers can be charged with drunk driving even though their driving ability is not impaired by alcohol. In addition, it is unlawful for anyone under the age of 21 years to drive with any alcohol in their system.
Two laws directly target drivers under the age of 21 years who drive under the influence of alcohol:
- California’s Zero Tolerance Law for Underage Drivers (CVC §23136)
- Underage Driving with BAC of .05% or Greater (CVC §23140)
It is important to remember that a police officer could charge an underage driver with one of California’s stricter “adult” DUI laws. For example, a teenager could be charged with DUI causing injury or driving under the influence of drugs (DUID). An officer may also charge an underage driver with driving under the influence of drugs or alcohol. The charges you face depend on the circumstances of the DUI stop and arrest.
A DUI conviction for underage drinking and driving under either law can result in severe DUI penalties. A California DUI defense lawyer can evaluate your case to determine defenses that could help you beat underage DUI charges.
California’s Zero Tolerance DUI Laws for Underage Drivers
An underage driver is someone who is under the age of 21 years (legal drinking age). According to CVC §23136, it is unlawful for anyone under 21 years old to operate a motor vehicle with a blood alcohol concentration (BAC) of .01% or greater. The law applies to alcoholic beverages and medications containing alcohol.
BAC is measured using a PAS (preliminary alcohol screening) test during a DUI stop. An example of a PAS is a roadside breathalyzer test that measures the amount of alcohol on the person’s breath. The machine converts the readings to the equivalent BAC level.
The law presumes that anyone who drives under 21 years gives consent to a PAS test or other chemical test if lawfully detained by law enforcement officers for allegedly driving with a BAC of .01% or higher.
An offense under this code section is not a crime. It is a civil offense. The only punishment for underage drinking and driving under the Zero Tolerance code section is a mandatory one-year driver’s license suspension for the first offense. However, the court may revoke the person’s driving privileges for two or three years if there is a history of drunk driving offenses.
Underage DUI in California with a BAC of .05% or Higher
CVC §23140 states that it is unlawful for anyone 21 years of age or younger to operate a motor vehicle with a BAC of .05% or higher. This criminal offense is known as “underage DUI.”
In most cases, police officers confirm underage DUI with a post-arrest DUI chemical test. The test may be a blood or breath test. The implied consent laws apply to a test refusal by an underage driver. Refusing a chemical test for a lawsuit DUI arrest results in a one-year driver’s license suspension.
What Is the Penalty for Underage DUI with a BAC of .05% or Higher?
The penalty for underage DUI does not result in jail time. However, punishment for a first-time underage drinking and driving conviction include:
- One-year driver’s licenses suspension by the California Department of Motor Vehicles
- $100 fine
- Three-month mandatory alcohol education program for drivers between 18 to 20 years of age
The police department may impound the driver’s vehicle for a minimum of five days if they have prior DUI convictions and their BAC was .10% at the time they were arrested (or they refused to take a chemical test).
Penalties for Underage Drunk Driver Charged with Standard DUI
An underage driver might be charged with “adult” DUI if their BAC was .08% or higher or the driver’s ability to operate the motor vehicle was impaired by alcohol. If there were no injuries or aggravating, the minor faces penalties for a first-offense DUI misdemeanor. Those penalties include:
- Loss of driving privileges for one year
- A fine of $390 to $1,000
- Up to six months in county jail
- Mandatory attendance for three to nine months in an alcohol and/or drug education program
- Information (summary) probation for three to five years
The penalties for underage drinking and driving could increase depending on the circumstances of the arrest. For example, if a minor is charged with DUI causing injuries, they could face significant prison sentences if someone dies because of a DUI accident. An adult DUI conviction stays on a minor’s driving and criminal records for ten years.
If your child is charged with underage DUI, talk with an experienced California DUI defense attorney. There could be one or more defenses that could result in the DUI charges being dismissed or reduced.
Fighting Underage DUI Charges Under Vehicle Code §23140 VC
As with adult DUI charges, one or more defenses may apply in your case. Your attorney investigates the circumstances surrounding your DUI arrest to identify problems with the prosecution’s case. Your attorney also obtains copies of the evidence the state has against you to determine the validity of the evidence.
Potential defenses to underage drinking and driving include, but not be limited to:
Lack of Reasonable Suspicion and Probable Cause
A police officer must have a reasonable suspicion that a violation of law was taking place to make a traffic stop. Likewise, the officer must have probable cause to make an arrest. For example, pulling a teenager over solely for driving late at night or in a specific neighborhood may not be a legal traffic stop.
If the police officer violates your civil rights by making an illegal stop or arrest, the court may throw out all evidence collected during the traffic stop and the arrest. Without the evidence, the prosecution might have to dismiss the charges.
You Were Not Driving
You must be driving the car to be guilty of underage DUI. Sitting in a car drinking is not driving under the influence. However, the police officer could charge you with other offenses, such as underage drinking or drinking in a motor vehicle.
Challenging the Results of a Chemical Test
The results of a blood or breath test may not be accurate. Several reasons could cause a chemical test to give inaccurate BAC readings. Reasons to challenge BAC results include, but are not limited to:
- The DUI machine malfunctioned because of a lack of maintenance, default, or improperly calibration
- A medical condition caused a false reading, such as GERD, diabetes, hypoglycemia, and acid reflux
- The technician incorrectly drew the blood sample
- Contamination of the blood sample
- Your diet caused a high BAC level, such as a low carb/high protein diet
- Errors in the chain of custody
- Lack of training for the breathalyzer operator
- The police officer did not wait the required time before administering a breathalyzer test
- Rising blood alcohol levels
- You have dental work that caused the alcohol to pool inside your mouth
Any number of problems could exist with chemical tests. An expert witness may assist in proving that the BAC results from a chemical test were inaccurate or subject to reasonable doubt.
Errors and Mistakes by Police Officers
Law enforcement officers must follow specific procedures during a DUI investigation. If the officers made procedural errors, it could work in your favor. A DUI defense lawyer can use mistakes made by police officers to your advantage to create reasonable doubt for a jury.
Related Offenses to Underage Drinking and Driving
The police officer might arrest you for Underage Possession of Alcohol in a Vehicle (CVC §23224). The law prohibits anyone under the age of 21 years to have alcohol inside of a motor vehicle unless the container is full, sealed, and unopened and:
- The minor is carrying the alcohol as part of their job for an establishment with a valid liquor license OR
- The minor’s parents or another adult is in the vehicle OR
- The minor is disposing of the alcohol according to instructions by a parent or other adult.
A conviction under this code section is a misdemeanor. You could pay a fine of up to $1,000, lose your driver’s license for a year, and have your vehicle impounded for up to 30 days.
Another common alcohol-related charge is possession of marijuana or other drugs. Drug possession carries severe criminal penalties. You could face substantial jail time, fines, and other punishments based on the type and amount of drugs in your possession.
Underage DUI Can Have a Significant Impact on Your Future
If you are convicted of underage drinking and driving, you could have difficulty obtaining a job or getting into the school of your choice. In addition, your insurance premiums may be too high for you to pay, which leaves you with no alternative but public transportation.
Talk with a DUI defense lawyer before you plead guilty to DUI charges. Do not trust a police officer or prosecutor to tell you what you should do. Instead, get the facts from a trusted legal advocate who has your best interest at heart.
It’s no secret that getting a DUI can lead to some serious consequences. But what many people don’t realize is that a DUI can also have a major impact on car insurance rates. In this blog post, we’ll take a closer look at how California DUI convictions affect car insurance rates.
Since insurance companies typically view drivers with DUIs as a higher risk, they may charge you more for coverage. It’s important to understand how a DUI affects your car insurance so that you can choose the right policy and make sure you’re adequately covered.
California Insurance Requirements
California requires all drivers to have minimum car insurance coverage. Drivers must have one of the following types of acceptable insurance coverage:
- Motor vehicle liability insurance policy
- DMV-issued self-insurance certificate
- $35,000 cash deposit with the California Department of Motor Vehicles
- $35,000 surety bond with a company approved and licensed to do business in California
Most drivers choose to purchase liability car insurance from an insurance company. If so, the California Insurance Code §11580.1b requires minimum insurance amounts. The minimum car insurance coverage in California is:
- $15,000 for the death or injury of one person
- $30,000 for the death or injury of two or more people
- $5,000 property damage coverage
You can purchase additional insurance coverage amounts and types of insurance. Insurance premiums in California are based on many different factors, such as your age, gender, marital status, coverage amount, type of coverage, and vehicle.
Your driving record also impacts the amount you pay for car insurance. If you have convictions for drunk driving, reckless driving, wet reckless, DUI accidents, and other traffic violations on your driving record, you are considered a high-risk driver. High-risk drivers can expect to pay higher insurance rates than drivers who receive a “good driver discount.”
How Much Will I Pay for Insurance After a DUI in California?
Drunk driving convictions raise your rates for insurance. The car insurance rate you pay after a DUI conviction could increase by as much as 154% to 164%. The rate increase depends on the insurance company you choose and other factors. Therefore, it is always wise to shop around to find the lowest car insurance rate after a conviction for driving under the influence.
According to “The Zebra,” Mercury, Infinity, and GEICO provide insurance premiums for drivers with a DUI conviction on the lower side of the scale. However, Allstate, CSAA, and State Farm offered substantially higher premiums.
Unfortunately, there is no way to avoid car insurance increases after a DUI conviction. The best way to avoid paying more money for car insurance after an arrest for drunk driving is to hire an experienced DUI defense lawyer to fight the charges. If you can beat the DUI charges, you may avoid higher insurance premiums.
If you cannot avoid a DUI conviction on your driving record, work with DUI lawyers to plead the charge down to reckless driving charge, speeding, or wet reckless. The car insurance rate may not increase as much for specific charges depending on the insurance provider. However, any charge that results in the designation of a high-risk driver is likely to cause your insurance rates to increase.
How Long Does a DUI Conviction Stay on My Driving Record?
Drunk driving convictions remain on your driving record for ten years. The period begins on the date of your DUI arrest. The DUI expires and drops off your driving record at the end of ten years. Even if you were to have the DUI expunged from your criminal record, the DUI remains on your driving record.
How Long Does It Take to Get Normal Insurance Rates After a DUI in California?
It can take up to ten years for your insurance rates to decrease after a DUI in California.
Insurance companies review an applicant’s driving record when processing the insurance application. Therefore, a drunk driving charge can flag the application for potential high-risk insurance rates.
However, some insurance providers begin decreasing within three to five years after a DUI conviction. An insurance company may consider how much time has passed since the DUI conviction. It may view a clean driving record since the conviction is a sign that you are no longer a high-risk driver.
You must pay the increased car insurance premiums if you want to drive a car under California law. You can work with the California Automobile Assigned Risk Plan (CAARP) to obtain car insurance when you cannot find an insurance company willing to issue you a policy.
Reporting Your DUI Conviction to Your Insurance Provider
Generally, you are not required to report a drunk driving charge to your insurance provider. In addition, you may not be required to report the conviction for driving under the influence or the fact that your driver’s license was suspended. However, you are required to report accidents to your insurance company, including alcohol-related crashes.
However, do not assume that your insurance carrier will not discover your DUI arrest or conviction. Most insurance companies check your driving record when you renew your insurance policy. Likewise, all insurance companies check an applicant’s driving record before issuing a new insurance policy.
Insurance companies often discover a DUI conviction after an accident. The other individuals involved in the DUI accident file accident claims with your insurance provider. Your provider may cancel your policy or increase your insurance rates when your current policy comes up for renewal.
In some cases, you have no choice but to notify your insurance company about a DUI charge. You may need the insurance company to provide an SR-22 form to the California Department of Motor Vehicles so you can reinstate your driving privileges after a DUI.
What Is an SR-22 Form?
An SR-22 form certifies that you have insurance coverage that meets or exceeds California drivers’ minimum insurance requirements. If you have a DUI conviction, you may be required to maintain the SR-22 insurance for a minimum of three years. Losing your insurance results in the DMV suspending your driver’s license.
Other Consequences of a DUI Conviction in California
In addition to increased insurance premiums, you face other consequences of a drunk driving conviction. For example, if your driver’s license is suspended, you could lose your job. Being unable to drive negatively impacts all areas of your life, including school, work, social, and family. In addition, if you qualify for a restricted license, you may be required to install an ignition interlock device, which can be costly.
Additionally, it could be difficult to find a job with a criminal record. Some employers may look at a DUI as an indication that you might be unreliable or make poor choices at work. Finally, a DUI on your record could have a negative impact on child custody and visitation matters.
You also face criminal penalties for a drunk driving conviction. You may be charged with DUI if your blood alcohol content (BAC) is over the legal limit of .08% OR your ability to operate a motor vehicle safely is impaired by alcohol.
Driving under the influence of alcohol in California can be charged as a misdemeanor or a felony. The criminal penalties you face for a DUI conviction depend on several factors, including prior DUI offenses and the facts of the case.
DUI Penalties in California
Drunk driving charges are priorable offenses in California. That means if you have any prior DUIs on your record within the past ten years, the punishment for your current DUI charge is enhanced. Felony DUIs never fall off your driving record.
Potential DUI penalties in California include, but are not limited to:
- County jail or prison sentences
- DUI school
- Formal or informal probation
- Mandatory ignition interlock device (IID) period
- DUI school (mandatory alcohol and/or drug education program)
- Driver’s license suspension or revocation
A first-time DUI conviction can result in up to six months in county jail and a $1,000 fine. However, if you have a prior DUI on your record, your jail term could increase to a year.
What Defenses Can I Use to Fight California DUI Charges?
DUI lawyers investigate the circumstances that led to the DUI stop and your arrest for driving under the influence. You may have one or more defenses to the drunk driving charges. Potential DUI defenses include, but are not limited to:
- Challenging the law enforcement officers cause for a DUI stop or DUI arrest
- Challenging the validity of the field sobriety tests because the officer made mistakes during testing or used non-standardized field sobriety tests
- A medical condition resulted in a false BAC reading or caused you to appear intoxicated when you had not been consuming alcohol
- Challenging the results of breath testing and other chemical tests based on equipment failure or operator error
- Offering evidence that the samples taken for a chemical BAC test were contaminated or the officers failed to maintain the chain of evidence
- Alleging you were not operating the motor vehicle under the influence of alcohol
- Arguing that you were sitting in the vehicle and not driving at the time of your arrest
If the police officers or a prosecutor violated your civil rights, the evidence collected against you could be inadmissible in court. Without evidence, the state may not be able to prove its case beyond a reasonable doubt. If so, the judge may dismiss the case.
Being arrested for driving under the influence is a serious matter. You should treat the arrest as you would any other criminal matter. It is best to exercise your right to remain silent. Talking to the police can only provide more evidence to use against you. As soon as possible, consult with a DUI defense lawyer to determine the best way to protect your freedom and other rights.
The burden of proof at a California Department of Motor Vehicles (DMV) hearing or APS hearing is by a “preponderance of the evidence.” This level of proof is less than the burden of proof a prosecutor would need to prove a case in criminal court.
However, just because your burden of proof at a DMV hearing may not be as high as if you were defending yourself in criminal court, it does not mean you should not consult a DUI defense attorney about the hearing. Losing your driving privileges can negatively affect numerous aspects of your life, including work, school, family, custody, and visitation.
During a DMV administrative hearing, the California DMV can take several actions against your driving privileges. Understanding the burden of proof and your rights at a DMV hearing can help you fight a driver’s license suspension or revocation by the California DMV.
What Is a DMV Administrative Hearing?
If the CA DMV revokes, suspends, or takes other discretionary action against your driving privileges, you have the right to a hearing before the department. The purpose of the hearing is to challenge the action taken by the department by reviewing the evidence the department has to support the action.
You must request an administrative hearing within ten days of receiving the notice from the CA DMV. Hearing requests are made through a DMV Driver Safety Office. You need to provide your full name, date of birth, address, and driver’s license number. It is also wise to have the notice available to provide other information the office may request.
The Standard of Proof for a California DMV Hearing
At a DMV administrative hearing, the hearing officer must prove by a preponderance of the evidence that your driver’s license should be revoked or suspended. When the charges involve driving under the influence, the officer must prove that you were operating a motor vehicle:
- With a Breath Alcohol Content (BAC) over the legal limit (.08% or higher); OR,
- While impaired by drugs or alcohol
The evidence presented against you must prove you were driving under the influence or with a BAC above the legal limit by a preponderance of the evidence. In other words, it was more likely than not that you were intoxicated or impaired when a police officer arrested you for DUI. A “preponderance” generally means there is more than a 50% chance that the allegations are true.
A preponderance of the evidence is used in a civil trial. If your DUI charges proceed to criminal court, the burden of proof changes. The burden of proof increases to “beyond a reasonable doubt.”
The burden of proving the allegations beyond a reasonable doubt is higher than by a preponderance of the evidence. A prosecutor in a DUI case must prove to a jury or the judge that the only reasonable explanation for the evidence presented in court is that you were driving under the influence of drugs or alcohol.
What Are My Rights At a CA DMV Administrative Hearings Held?
Your DMV administrative hearing is held in person or by telephone. A DMV hearing officer conducts the hearing. He is not a judge, but he has the authority to suspend or revoke your driver’s license.
You are informed of the actions or proposed actions taken against your driving privileges at the hearing. You are also informed of the legal grounds that the CA DMV has to take those actions. Your rights at a DMV hearing include:
- To be represented by an attorney at your expense
- Review the evidence the DMV has against you
- Challenge the DMV’s evidence
- Testify on your own behalf
- Present evidence you have regarding the matter, including witnesses, documentation, and testimony
- Cross-examine any witnesses that appear on behalf of the CA DMV
You receive a written copy of the hearing officer’s decision following the administrative hearing. If you disagree with the decision, you may request an administrative review by the DMV. You may also appeal the decision to the Superior Court.
What Actions Can the DMV Hearing Officer Take After the Hearing?
The CA DMV hearing officer is not a judge. He hears evidence after a DMV arrest to determine whether the person’s driving privileges should be suspended. The DMV officer may suspend your driving privileges if he finds the evidence proves:
- The officer had reasonable cause for the DUI stop;
- The officer had probable cause for a DUI arrest; and,
- You were operating your vehicle with a BAC of 0.8% or higher.
The hearing officer may also suspend your driver’s license if you refused a blood or breath test. California is an implied consent law for BAC testing. Drivers are deemed to have consented to chemical testing for BAC levels after a DUI arrest. Failing to consent to a breath, urine, or blood test after a DUI arrest can result in an automatic suspension of your driving privileges.
How Can I Win at a California DMV Hearing After a DUI Arrest?
Drivers who retain a Los Angeles DUI attorney to assist them in presenting a solid legal defense have a better chance of winning a DMV hearing. Even though DMV hearings are not criminal court cases, they are governed by rules, including the Administrative Procedures Act and the California Vehicle Code. Attorneys understand these rules and how to use the rules to a person’s advantage.
Furthermore, a DUI lawyer also understands the various DUI defenses that can help you win your case at a DMV hearing. Potential defenses you might raise during a CA DMV hearing include:
- The police officer did not have reasonable suspicion for a traffic stop
- You were not the person driving the motor vehicle, or you were not driving a motor vehicle (you were sitting in a parked vehicle)
- The breath testing machine used after the DUI arrest malfunctioned because of a defect, lack of maintenance, or improper calibration
- Your medical conditions resulted in inaccurate BAC readings
- You were arrested because of an illegal police DUI checkpoint
- The arresting officer lacked probable cause for a drunk driving arrest
- The field sobriety tests administered to obtain probable cause were flawed or administered incorrectly
- There were serious and fatal mistakes contained in the police officer’s reports and arrest documents
- The police officer violated your civil rights
If you do not defend yourself at a DMV hearing, your driver’s license will be suspended. However, that is not the worst consequence of a DUI arrest. A conviction for driving under the influence in California can result in numerous criminal penalties. Therefore, you also need to prepare a strong criminal defense against the DUI charges in criminal court.
Potential Punishments for a DUI Conviction in California
In addition to losing your driving privileges, you could also face several criminal penalties if convicted of drunk driving in California. Potential punishments that the criminal court might impose for a first-time misdemeanor DUI conviction include:
- Fines, penalties, and assessments of $1,500 to $2,000 depending on the circumstances and the county
- Up to six months in a county jail
- Informal probation from three to five years
- Attendance at a DUI school from three to nine months
- Loss of driving privileges for six months
- Installation of an ignition interlock device to avoid six-month driver’s license suspension
- Attendance at a victim impact panel
In some counties, you might be eligible for work release if the court sentences you to jail time for a DUI conviction. In addition to the above consequences of DUI, you also may pay higher insurance premiums and could lose your job if you cannot drive to work. In the future, you could face harsher penalties for another DUI conviction within ten years.
Could I Face Enhanced Penalties for a First-Time DUI Conviction in California?
Yes, aggravating factors could significantly increase the punishment for a DUI first offense. Even if you have a clean driving record, certain aggravating factors could result in higher fines, longer jail terms, and even time in state prison.
Examples of aggravating factors include, but are not limited to:
- Being under the age of 21 years at the time of the DUI offense
- Causing an accident while driving under the influence of drugs or alcohol
- Having a BAC of .015% or higher (some counties set a lower BAC level for this aggravating factor)
- Refusing to submit to a chemical test for BAC levels
- Having a child under the age of 14 years in the car
- Driving at excessive speeds
Some of the above factors could result in additional criminal charges associated with the drunk driving charge. For example, having a child in the vehicle could result in child endangerment charges. Also, driving at excessive speeds could result in racing or reckless driving charges.
If you cause a DUI accident, you may be ordered to pay restitution to all injured parties. Furthermore, the accident victims could sue you in civil court for compensation for damages. Finally, if the DUI accident resulted in death, you might be charged with a serious criminal offense, including felony charges.
It is always best to seek legal counsel regardless of whether this is your first or fifth DUI charge. The best way to fight DUI charges is to have a strong defense prepared by an experienced California DUI Defense lawyer.
California implied consent laws require drivers to submit to a chemical test of their blood or breath to determine blood alcohol content. The law applies to individuals lawfully arrested for driving under the influence. If a blood or breath test is unavailable, the law presumes the person consented to a urine test.
Failing to submit to a chemical test after a DUI arrest in California results in an administrative 1-year driver’s license suspension by the California Department of Motor Vehicles. A second offense of failing to submit to a chemical test after DUI arrest is a two-year revocation of driving privileges.
Law enforcement officers often give evidentiary breathalyzer tests at the police station. Breath testing in this manner is admissible as evidence in court. However, the officer may also take a blood sample to determine the person’s Blood Alcohol Concentration (BAC) level. It can be more difficult for a defendant to challenge the results of a blood test, but it is possible with independent tests.
A police officer cannot force you to take a blood test unless the court issues an order requiring the blood test. However, the penalties for refusing to submit to a chemical test would apply even if the court ordered the person to submit to the blood test.
What Is a Blood Split in a California DUI Case?
A police officer may give a person a choice between a breathalyzer test or a blood test after a DUI arrest. Many people choose a breathalyzer over a blood test after being arrested for drunk driving. However, there are times when a blood test is required.
Blood tests after a DUI arrest are required when:
- The driver cannot complete a breathalyzer test because of a medical condition or physical impairment
- The officer suspects that the person is driving under the influence of drugs
- An evidentiary breathalyzer is not available for use
Title 17 of the California Code of Regulations (17 CCR §1219.1) explains blood collection and retention for compliance with California Vehicle Code §23158. It directs that the person collecting the blood sample to collect enough blood for multiple tests. The second sample is preserved and turned over to the driver upon request for independent testing.
How Does a Defendant Obtain a Blood Test Sample After a DUI Arrest?
The person’s DUI defense attorney generally requests that the prosecution provide a portion of the blood sample for independent testing. Generally, the state agrees to provide the sample to the DUI attorney. However, if the prosecutor refuses or fails to comply with the request within 15 days, the DUI defense lawyer files a motion with the court.
The “blood split motion” requests the court to order the prosecutor to produce a sample of the defendant’s blood for independent testing. The court may also sanction the prosecutor for failing to provide the sample to the defendant. Sanctions could include preventing the use of the chemical test results at trial and contempt proceedings against the prosecutor.
After having the blood tested, you do not have to use the results at trial. If the results favor the prosecution, you do not have to disclose that information to the prosecution. However, if the independent testing of the blood sample returns results that help your case, you may include that evidence as you defend yourself against DUI charges during the trial.
How Can a Blood Split Motion Help Your DUI Defense?
Under California Vehicle Code §23152, you can be charged with drunk driving if:
- You operate a motor vehicle with a blood alcohol content of .08% or more; OR,
- You drive a vehicle under the influence of any alcoholic beverage
Experienced California DUI lawyers use the results of independent blood tests to fight drunk driving offenses under both situations.
Fighting a California Per Se DUI Case
California “per se” DUI cases rest on the fact that the person’s BAC was above the legal limit of .08%. The prosecution uses the evidentiary blood test to prove that you had a BAC greater than the legal limit at the time of your arrest. The law presumes that you were too intoxicated to operate a motor vehicle if your BAC was above the limit.
It is important to remember that the legal limit for a drunk driver may be lower for specific drivers. For example, the legal limit for commercial truck drivers is a BAC of .04% or higher. Underage DUI (driving under the age of 21 years) has a legal BAC limit of .05% or higher. Ride-share, taxi, and limo drivers have a legal limit of .04% or higher.
If the independent test reveals a BAC of below the legal limit, the defense can argue that the driver was not impaired at the time of the DUI traffic stop. The argument can create reasonable doubt, which might be sufficient for a jury to find the defendant not guilty.
Fighting Charges of Driving Under the Influence of Alcohol or Drugs
The other DUI offense relies on the prosecution proving that the alcohol in your system impaired your ability to operate a motor vehicle safely. If the charge is DUID (driving under the influence of drugs), the prosecution must prove that the drugs in your system impaired your driving abilities.
Experts disagree on what levels of alcohol or drugs impair a person’s ability to drive a vehicle. Because each person’s physiology is different, it may take more or less of a substance to impair your ability to drive than it would another person.
Defendants use the results of an independent blood test with the totality of the evidence to argue they were not impaired while driving.
For example, the only legal evidence is the police officer’s testimony that he smelled alcohol and the person “appeared” drunk because the driver refused to take the field sobriety tests. A blood split motion resulted in a low BAC level on an independent test. Along with expert testimony, there could be sufficient doubt for the jurors to find the defendant not guilty.
If the defendant is facing DUID charges, an independent test can be helpful for the defense. There is no “legal limit” for the amount of drugs in a person’s system to presume they are impaired. Therefore, it is more difficult for the state to win its case if the only evidence of drugged driving is a blood test that the defense refutes through independent testing.
Challenging the Collection Methods of a Blood Test for a DUI Charge
Title 17 clearly defines how blood samples are to be collected in a DUI case. The procedures law enforcement officers must follow to collect blood samples after a DUI arrest include:
- A medical professional or authorized technician must collect blood
- The sample must be collected as soon as possible after the arrest
- A sufficient sample must be collected to allow for testing by the state and by the defendant (i.e., blood split)
- The vial must have sufficient preservative and anticoagulant
- The blood cannot be contaminated with other substances
A DUI defense may include challenging the results of a DUI blood test because the officers failed to follow Title 17 procedures when collecting or preserving the blood samples.
Can You Split a Breath Sample or Urine Sample for a DUI Case?
You cannot split breath samples. Therefore, there is no way you can refute the results of a breath test except to challenge the circumstances surrounding the breathalyzer test.
For example, you could argue that the breathalyzer malfunctioned or was not calibrated correctly. In addition, you could offer evidence that the police officer was not trained or performed the breathalyzer incorrectly. Also, you could argue that a medical condition or other factor caused a false BAC reading from the breath test.
However, urine samples can be split for independent testing. Title 17 has similar requirements for collecting urine samples after a DUI arrest:
- The urine sample must be large enough to allow for at least two tests
- The urine sample must be retained for up to one year after collection to allow for independent testing by the defendant
Urine tests are not standard in DUI cases. Instead, most defendants are required to take breath or blood tests. Urine tests are only used when the other two tests are not possible.
Fighting Chemical Tests After a California DUI Arrest
Independent lab results could show that blood tests performed after a DUI arrest were incorrect. Your test could result in a BAC lower than the legal limit or the limit found by the police lab. In some cases, the independent lab may find that the blood sample had been contaminated or fermented, invalidating the results. Samples that were mishandled or not refrigerated properly could also provide incorrect BAC results.
Working with an experienced California DUI defense lawyer is the best way to attack the results of a chemical test after a DUI arrest. An attorney examines all evidence gathered by the state to determine what challenges would be helpful in your defense. Never assume that a blood test or breathalyzer result means a guilty verdict until you discuss your case with an attorney.
A conviction for driving under the influence in California can have serious consequences. You could face jail time and pay high fines. However, causing a DUI accident increases the penalties that you face, especially if the accident results in serious injury or death to another person.
Before your trial in Superior Court on criminal charges, you have to deal with the DMV fatality hearing. These hearings are held after fatal and severe injury drunk driving accidents. The hearing is a legal proceeding that determines if your driving privileges will be revoked for the negligent operation of a motor vehicle.
Even though the administrative hearing is held at the Department of Motor Vehicles before a DMV hearing officer, you need to take the matter very seriously. You have the right to be represented by legal counsel at the hearing and present evidence in your defense.
Most people are unaware of DMV fatality and serious injury hearings. They are unaware that causing a DUI accident results in being labeled as a negligent operator by the Department of Motor Vehicles. Understanding more about the DMV fatality and serious injury hearing is the first step in protecting your driving privileges.
Below are answers to frequently asked questions about DMV fatality hearings by our California DUI defense attorney.
What is a DMV Fatality Hearing in California?
After an accident that results in injury or death to another person, the California Department of Motor Vehicles holds a hearing. The purpose of the hearing is to determine what actions, if any, should be taken against the at-fault person’s driving privileges.
The authority to hold these hearings is found in California Vehicle Code §13800. The code section gives the DMV the authority to investigate serious and fatal injury accidents and to take action to suspend or revoke the driving privileges of negligent drivers.
The DMV has the authority to hold a hearing even if the driver was not entirely responsible for causing the accident. If a driver contributes to the cause of a DUI accident in the slightest way, the DMV can proceed with the hearing.
What Happens During a DMV Fatality Hearing?
The hearings are held at a DMV Driver Safety Office. A DMV officer presides over the hearing. The officer is an employee of the DMV instead of a judge or lawyer.
The DMV officer begins the hearing by presenting the Department’s evidence regarding the accident. In other words, the officer lays out the evidence that supports taking action against the person’s driving privileges. Examples of evidence the hearing officer may present include:
- The accident or crash report completed by the police officers reporting to the accident scene
- Medical records for the parties who were injured or killed
- Testimony from witnesses, including law enforcement officers, other people involved in the accident, or eyewitnesses
- The driving record for the at-fault driver
After the hearing officer presents the Department’s evidence against the driver, the driver has the opportunity to present a defense. The driver may refute the allegations and provide evidence supporting the driver’s claim that they did not cause the accident or the accident did not cause the person’s injury or death.
Examples of evidence the motorist might present include:
- Evidence of a safe driving record
- Witness testimony that supports the motorist’s allegations they did not cause the accident
- The accident report showing that the driver was not charged or “faulted” for causing the accident
- Medical records showing that the person’s injuries or death were not caused by the traffic accident
It is important to remember that the driver has the right to have an attorney present and represent them during the hearing. It is unwise to believe that you do not need a DUI defense attorney at an administrative hearing. Even though the Department is not represented by a lawyer and there is not a judge present, the results of a DMV fatality hearing can be severe.
What Are the Possible Results of a DMV Fatality or Serious Injury Hearing?
The hearing officer considers several factors when deciding the outcome of the DMV fatality hearing. First, the officer considers your driving record and attitude. The hearing officer also considers the likelihood that you may repeat the conduct and the possible effect of a sanction on deterring future negligent behavior.
The hearing officer may take any one of the following actions:
The DMV officer may revoke your driving privileges if he finds that you are guilty of committing reckless, flagrant, and aggravated driving acts with a disregard for the safety of other individuals. Examples of driving behavior that can result in revocation of driving privileges include racing, evading law enforcement, and driving under the influence combined with reckless acts that lead to a DUI accident.
When a driver fails to exercise a reasonable level of care while driving, the DMV may suspend the motorist’s driving privileges. Committing traffic violations that cause or contribute to an accident is an example of failing to exercise reasonable care. Since driving under the influence of alcohol is a traffic violation under California Vehicle Code §23152, causing a DUI accident could result in a suspended driver’s license.
DMV officers use restrictions on driving privileges when skill level or physical abilities cause traffic accidents. Restrictions are generally used only when the likelihood of the same violation happening again is low. The restrictions are a sufficient and appropriate way to prevent the driver from repeating the error.
Probation is used in cases involving a low degree of negligence. It is unlikely that a person who causes a DUI accident that results in death or injury would receive probation or restrictions.
If there is insufficient evidence to prove the motorist contributed to the cause of the accident or the accident caused the person’s injuries or death, the DMV officer takes no action against the motorist’s driving privileges.
What Happens if I Don’t Show Up for a DMV Fatality and Serious Injury Hearing?
You receive a Notice of Suspension after the DMV deems you to be a negligent operator. If you fail to respond to the notice and attend the DMV fatality hearing, the DMV suspends or revokes your driver’s license for at least one year.
The suspension or revocation period could be longer depending on your driving records and the facts of the case. A judge in the criminal case could suspend driving privileges for a longer period.
After the revocation or suspension period ends, you must apply to reinstate your driver’s license. You must pay a fine and show proof of SR-22 insurance before your driving privileges can be restored.
Can I Challenge the Ruling of a DMV Officer After a DMV Fatality Hearing?
You can request a DMV hearing to challenge the results of a DMV fatality hearing. However, a person is not entitled to a hearing if the action taken was mandatory according to the law or the person failed to request a hearing after being given appropriate notice of a hearing.
A DMV hearing officer could set aside revocation or suspension of a driver’s license. In the alternative, the driver could be placed on negligent operator probation. Instead of a suspension of driving privileges being effective immediately, the suspension only becomes effective if the driver causes an accident or commits a traffic violation.
The DMV officer could also order that the suspension stands, but the driver is granted a restricted driver’s license. The officer can also uphold the ruling of the DMV fatality hearing.
How Can I Prepare for a California DMV Fatality Hearing?
There are many ways to prepare for a California DMV fatality and serious injury hearing. First, you can collect evidence to present at your hearing to support retaining your full driving privileges. The evidence should be organized and contain copies of all originals to present to the court.
You can also contact individuals to testify at the hearing regarding your safe driving history. If eyewitnesses claim that you did not cause the accident, they need to be at the hearing to provide evidence.
Contact the DMV to obtain copies of your driving record to present at the hearing. The DMV hearing officer may or may not have a copy of your complete driving history. However, your driving record can help you establish that you are a safe driver who is unlikely to cause another accident despite the accident in question.
Do I Need a California DUI Defense Lawyer for My DMV Hearing?
The best way to prepare for a DMV fatality hearing is to contact a California DUI defense attorney. A DUI attorney has the resources and skills to investigate the DUI accident and gather evidence to defend the allegations against you. Your attorney handles all aspects of the case, including organizing evidence for your DMV hearing.
Your attorney understands how to present evidence during the DMV fatality hearing and question witnesses. Even though DMV hearing officers are not lawyers, they have significant experience gathering and presenting evidence. Going up against a DMV hearing officer alone often results in a suspension or revocation of driving privileges for negligent operation of a motor vehicle.