California DUI Law 101

Wednesday, December 12th, 2018

The law surrounding California DUI’s is so expansive and complicated that sometimes it’s worth wild to take a step back and just talk about the basics of a California DUI.

In California, it is illegal to drive with a blood alcohol content of 0.08 percent or higher. It is also illegal to drive while under the influence. While every person is different, with a different metabolism and different tolerances, a mere two drinks in an hour can certainly get a driver to a 0.08 percent. Additionally, person is “under the influence” if they cannot operate a vehicle as a reasonable and sober person would have under similar circumstances.

Now, let’s be very clear. A person does not have to be above a blood alcohol content of 0.08 percent or more to be charged with a California DUI if they were under the influence. Similarly, a person does not have to be under the influence to be charged with a California DUI if they have a blood alcohol content of 0.08 percent or more. Having said that, most people who are caught driving with a blood alcohol content of 0.08 percent or higher will be charged with both under California Vehicle Code section 23152(a) and section 23152(b) respectively. Yes, you read that correct. Most people who get a DUI are actually looking at two separate charges.

For example, John is heavy in weight and is an alcoholic. If John drinks four beers in an hour, he may likely have a blood alcohol content of above a 0.08 percent, but he’ll probably not be “under the influence” because he can function as though he were sober. He will still be arrested, charged, and may be convicted of driving with a blood alcohol content of 0.08 percent or more under Vehicle Code section 23152(b).

On the other hand, for example, Jane is underweight and very rarely drinks. If she were to have one glass of wine, she may not be above a blood alcohol content of 0.08 percent or more, but she may certainly not be able to function as a sober person would. As such, while she cannot be charged with having a blood alcohol content of 0.08 percent or higher, she may very well be arrested and charged with driving under the influence under Vehicle Code section 23152(a).

Whether a person is a 0.08 percent or higher, or if they are under the influence, officers have no knowledge of either when they decide to pull someone over. They might suspect that a person is under the influence based on observed driving patterns, but that alone is not enough to arrest a person. An officer must have probable cause to arrest a driver for a DUI. An officer has probable cause when they have trustworthy facts that would lead a reasonable person to believe that the driver was either a 0.08 percent or higher, or that they were driving under the influence.

The key is that the officer must have facts that the driver is DUI before they can make the arrest. The officer can obtain the facts to meet the probable cause standard through observation of driving patterns, statements made by the drive (ex. “I had a few beers with dinner”), smell of alcohol on the driver’s breath, bloodshot and watery eyes, slurred speech, poor performance on field sobriety tests, and failure of a roadside breathalyzer.

Just because these may be what an officer uses to justify a DUI arrest, there are things that drivers can do to limit the amount of “facts” that they give the officer.

Drivers do not need to talk to the officers, nor should they. The 5th Amendment exists for a reason. Use it. Rather than potentially providing incriminating statements and allowing the officer to smell the driver’s breath, the driver should simply invoke his or her 5th Amendment right to remain silent, request their attorney, and then keep their mouth shut.

Drivers do not need to perform the field sobriety tests, nor should they. The officer might threaten arrest if the driver does not perform them, but the driver has that right. Chances are that the officer has already made up his or her mind to arrest the driver. However, by not performing the field sobriety tests, the driver has prevented the officer from obtaining any facts that the driver is impaired.

Lastly, drivers do not need to perform the roadside breathalyzer, nor should they. This test, referred to as a preliminary alcohol screening test or “PAS” test, is optional. That is not to say that a driver will not have to perform any test.

Once a person has been lawfully arrested for a DUI, meaning the officer does have the requisite probable cause to make the arrest, the driver must submit to either a breath test or a blood test under California law. Not doing so can lead to increased penalties with both the court as well as the California DMV.

Speaking of the California DMV, when a person is caught driving with a blood alcohol content of 0.08 percent or more, it triggers an action by the DMV to determine whether the driver’s license should be suspended. The driver or their attorney must contact the DMV within 10 days to request a hearing and stop the automatic suspension of the driver’s license. If the hearing is lost, then the person’s license will be suspended, the time of which will be dependent upon prior DUI’s and whether the driver refused the required breath or blood test. If the hearing is won, albeit unlikely, the driver’s driving privileges are saved…for now.

After the arrest, the driver must challenge the DUI in court. If convicted, the driver faces some serious consequences. For a first time DUI, the driver is facing a minimum of $390 in fines, which will increase to about $2,000 after court fees are included, three years of informal probation, a three-month DUI course, additional license suspension time, and a DUI on their criminal record. Now, these are minimums. A driver could face a whole host of other penalties including jail of up to six months.

Since this post is about the basics, I won’t get into the penalties for a second or more DUI, or other penalties for various DUI scenarios.  

Needless to say, even the basics are extremely complicated. A driver absolutely should not try to tackle a DUI case on their own. They should hire an experienced California DUI attorney who has studied California DUI law and who practices it day in and day out. Simply put, having a California DUI attorney can be the difference between going to jail and not.

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Man Arrested for DUI for Falling Asleep while Tesla in Autopilot Mode

Thursday, December 6th, 2018

Last week, California Highway Patrol arrested a driver for DUI after he had fallen asleep in his Model S Tesla while it drove down Highway 101 in autopilot mode.

A CHP officer spotted a grey Tesla going about 70 miles per hour on Highway 101 near Redwood City. As the officer approached the vehicle, he also noticed that it appeared the driver of the Tesla was asleep behind the wheel. CHP then closed traffic on the highway and proceeded to slow the Tesla by pulling a patrol vehicle in front of it and slowing down, thus causing the Tesla to slow down.

The driver of the vehicle eventually awoke to the CHP stopping his vehicle. Once stopped, responding officers suspected that the driver was under the influence and had the driver perform field sobriety tests, which he allegedly failed.

“It’s great that we have this technology; however, we need to remind people that…even though this technology is available, they need to make sure they know they are responsible for maintaining control of the vehicle,” CHP spokesman Art Montiel said.

In January of this year, CHP arrested a driver who was found passed out behind the wheel of a Tesla on San Francisco’s Bay Bridge. According to CHP, the driver’s blood alcohol content was more that double the legal limit. The man claimed he wasn’t responsible because the vehicle was in autopilot.

While fully autonomous vehicles may be in the offing, no major car manufacturer has yet to develop a fully autonomous vehicle for public consumption. In fact, Tesla warns that its autopilot features are not fully autonomous. “Autopilot is intended for use only with a fully attentive driver,” a Tesla spokes person told the Washington Post earlier this year. Rather, auto pilot systems are designed to detect obstructions in the road and, if necessary, bring the vehicle to a halt if the driver does not respond in time.

In fact, a goal of Elon Musk is to have fully autonomous vehicles in the near future.

“We aimed for a very simple, clean design, because in the future – really, the future begins now – the cars will be increasingly autonomous,” Musk said in July of last year. “So, you won’t really need to look at an instrument panel all that often. You’ll be able to do whatever you want: You’ll be able to watch a movie, talk to friends, go to sleep.”

This, however, raises an interesting legal dilemma.

California law requires that a drunk driver be in physical control of the vehicle and must cause the vehicle to move in the slightest amount. Are drunk drivers who are in autopilot really in physical control of the vehicle and cause it to move if the car is in autopilot? At least right now, the answer is a likely yes.

Drivers still need to operate a vehicle in autopilot to a certain degree. As Tesla’s spokesperson pointed out, Tesla’s autopilot feature still requires a fully attentive vehicle to take control of the vehicle to engage in maneuvers that are not available in autopilot. Just because a vehicle has autopilot mode does not mean that it is autonomous.

The question will become even trickier when fully autonomous vehicles are introduced to the public. If a vehicle is fully autonomous, then there is no need for a driver to be in any kind of control of the vehicle. On the other hand, a driver (now a passenger of a fully autonomous vehicle) will still need to input coordinates and tell the vehicle where to go, which can raise the argument that the passenger is, in fact, in control of the vehicle.

You can see how this technology can raise interesting legal questions. I suppose we’ll just have to 1.) wait for fully autonomous vehicles, and 2.) see what the legislature and/or courts do to define what it means to be “in control” of a fully autonomous vehicle.

Until then, drinking and getting behind the wheel of a vehicle while in autopilot mode will still land you a DUI in California.

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New Study Finds DUI’s Up 60 Percent Since 2014 Among Veterans

Thursday, November 29th, 2018

According to a new study by the American Addiction Centers, drunk driving among the veteran population is up 60% since 2014.

According to the study’s authors, “Since 2014, the percentage of U.S. vets identified as driving while drunk increased from 1.6 percent to 2.5 percent,” almost a 60 percent hike. The study, after having identified the veteran community as already at risk for excessive drinking, went on to say, “there’s no denying that American veterans contribute to the nationwide epidemic of drunk driving.”

The study further found that drunk driving among veterans occurred most often in California, Kentucky, and Washington D.C., whereas prevalence rates were lowest in Virginia, Alaska, and Utah.

The authors of the study suggest that a cause in the increased drinking habits and prevalence rates of DUI’s amongst the veteran community are from dealing with post-traumatic stress disorder (PTSD) and depression following trauma suffered during active duty.

“The percentage of depressed veterans who at some point have been involved in an episode of binge drinking has increased substantially between 2014 and 2016,” said the study. Over 25 percent of “American veterans who self-identified as depressed” were linked to binge drinking. What’s more, the veterans suffering from depression “are more than twice as likely to be linked with drunk driving” than those veterans without mental health issues.

In addition to the mental health concerns as a contributing factor for the spike in DUI’s amongst the veteran community, a recent survey by the Department of Defense Health Related Behaviors found that one in three active duty military members met the characteristics for hazardous drinking and alcohol used disorder.

Recognizing active military and veterans as a vulnerable portion of the population to alcohol abuse and driving under the influence, the legislature recently amended California Penal Code section 1001.80 to allow military members to participate in a pre-trial diversion program to avoid a DUI conviction.

What is a pre-trial diversion program?

Pre-trial diversion is the process by which a court postpones criminal prosecution to allow a defendant to participate in a program that addresses the underlying root cause of the criminal conduct. If the program is successfully completed, the criminal proceedings halt and the case is dismissed.

Although pre-trial diversion exists for a number of other offenses, they don’t generally apply to DUI’s.

Pre-trial diversion which has been offered to a military member, veteran or active, who has been arrested and charged with a California DUI will involve, at a minimum, a substance abuse course as part of the program. If the program is successful, the military member will avoid a DUI conviction and all of the consequences that come with a DUI conviction.

However, if the court determines that the military member is unsuccessful in the program, criminal proceedings will continue and, if they are convicted, they will be subject to the same consequences as anyone else caught driving under the influence.

Not all veterans are eligible for pre-trial diversion. The Penal Code specifically states that only veterans that may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or any other mental health issues as a result of having served in the military.

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What is DUI Probation in California?

Wednesday, November 7th, 2018

In nearly all misdemeanor DUI’s that result in a conviction, probation is a term of the driver’s sentence. There is, however, much confusion about what exactly misdemeanor DUI probation entails. But, before I go into what probation entails, let’s discuss what probation even is and where it comes from.

In 1841, a Boston cobbler named John Augustus persuaded a Boston Police Court to place a “drunkard” in his care to become rehabilitated prior to sentencing. 37 years later, in 1878, the mayor of Boston hired a former police officer, “Captain Savage,” to become what many recognize as the first probation officer. By this time, many federal judges were regularly suspending the sentences of people convicted of crimes. In 1916, the United States Supreme Court decided what is known as the “Killets Decision,” where it held that a federal judge by the name of Killets could not suspend a criminal sentence indefinitely. The Killets Decision led to the passing of the National Probation Act of 1925, which allowed courts to suspend the sentences of people convicted of crimes and place them on probation.

Simply put, probation is court supervision over an offender for a specified period of time rather than placing the offender in jail or prison.

In the context of a California DUI, probation is much more than merely supervision.

For a misdemeanor DUI in California, a person can be placed on summary (informal) probation for a period of three to five years depending on the circumstances surrounding the DUI. Probation can be less if a driver is able to get the DUI reduced to, for example, a “wet reckless.” Summary probation, also known as informal probation, is given in all misdemeanor DUI cases and doesn’t require supervision by a probation officer. For felony convictions, on the other hand, formal probation requires supervision and meetings with a county probation officer.

In addition to being placed on probation, the court will sentence a DUI offender to abide by certain conditions during the time of probation, some passive and some active.

The passive conditions of probation can and will include not picking up any new cases (this does not include infractions such as traffic tickets), not driving without a valid license, and not driving with any measurable amount of alcohol in their system. Normally, it is not illegal to drive with some alcohol in a person’s system as long as they’re not above a blood alcohol content of 0.08 percent or higher, or if they are “under the influence.” However, when a person is on probation, they cannot have any alcohol in their system, not even a 0.01 percent blood alcohol content.

Additionally, normally a person does not have to submit to field sobriety tests or a pre-arrest breathalyzer when stopped on suspicion of a DUI. However, if a driver is already on probation for a California DUI, they must submit to field sobriety tests and a pre-arrest breathalyzer if they are stopped on suspicion of a subsequent DUI.

The active conditions of probation include the driver doing whatever the court orders them to do during the probationary period. This can include paying their fines and fees, completing a court-approved DUI course, completing a MADD Victim Impact Panel, completing a Hospital and Morgue program, completing AA meetings, completing community service, and completing community labor (which in most Southern California courts means picking up trash on the side of the freeway with CalTrans). Although the purpose of probation is to avoid jail, sometimes going to jail for a shorter period of time is a condition of probation.

If the probationary period expires and the person has completed all of their passive and active conditions of probation, probation will terminate, the case is completed, and the driver should discuss a 1203.4 dismissal (commonly referred to as an “expungement”) with their attorney.

On the other hand, if a person violates any condition of probation, the court can revoke probation and sentence the driver up to the maximum of what the original DUI allowed. For a first time DUI, this is a $1,000 fine and six months in county jail. For a second or third time DUI, this is a $1,000 fine and a year in county jail.

Although not pleasant, probation is, most of the time, a preferred alternative to potentially spending months in jail for a California DUI.

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How Much Will a DUI Cost You?

Thursday, November 1st, 2018

For some who have been arrested on suspicion of a DUI, jail isn’t as much of a worry as what the DUI will cost them financially. Rightfully concerned, it’s no trivial amount. Let’s break down the costs of a first-time DUI in California, because knowing the costs of a DUI can be just as much of a deterrent as the threat of jail.

First off, should you hire an attorney to help represent you, that would be your first cost. Not all people can afford attorneys because we are admittedly expensive. Almost all DUI attorneys charge on a flat fee basis and most charge for “pre-trial” and trial separately.

Pre-trial is the phase of the court proceedings where the attorney obtains the evidence, makes motions (if applicable), and negotiates a plea deal with the prosecutor. For this stage, attorneys can range between $1,000 and $7,500 depending on the complexity of the case, the experience of the attorney, and the size of their office. There’s no right or wrong number. Pay what you can afford and, generally, with quality comes price. Having said that, do your homework. Make sure that you actually consult with the attorney first and that you’re comfortable with them. Make sure that they specialize in DUI defense. Often, the lower-cost attorneys are the ones who don’t have much experience defending DUI cases.

During pre-trial, it may be recommended that a blood re-test be conducted. You, not the attorney, bears the responsibility of paying for this expense and it’ll run about $200, depending on what the blood is being tested for. You attorney may also recommend hiring an expert to consult regarding the blood re-test results. This too can cost several hundred dollars.

Although the vast majority of DUI cases do not make it to trial, some do. For those who wish to push their case to a trial, they can expect anywhere from $5,000 to $15,000 to conduct the trial. Since most DUI’s don’t ever make it to trial, I won’t say anything more about trial costs.

If someone is convicted of a DUI, whether through a plea deal or following a guilty verdict after a trial, they face additional costs as part of their sentence.

The fine for a DUI is a minimum of $390 up to a maximum of $1,000. Having practiced DUI defense now for close to 10 years, I can say that the fine for most DUI’s ends up being $390 to $500. This number, however, does not include the “penalties and assessments.” Think of these as “court taxes.” They vary from courthouse to courthouse and, I kid you not, many judges don’t even know where the penalties and assessments go. As a rule of thumb, I tell people to expect about $2,000 give or take a couple hundred of dollars.

The sentence for a first-time DUI will almost inevitable result in the driver having to take a DUI class, if not for the court, quite possibly to get their license back from the DMV. For a first-time DUI, a person is looking at either a three, six, or nine-month DUI course. Although the costs vary depending on the length of the course and the program that you take the course from, people should expect to pay between $600 and $1,800 for the DUI course.

Sometimes, a driver will have to pay the arresting agency a booking fee. This ranges between $200 and $400.

When the driver is eligible to have their license reinstated, the reinstatement fee to the DMV is $125. (You can read previous posts about the license suspension following a DUI)

Lastly, a person must consider the ancillary costs of the increase in car insurance. Most people forget to include this figure in their estimations of total DUI costs because it’s not directly related to the courts. The estimate cost of car insurance over 10 years is approximately $10,000.

I went to law school so that I wouldn’t have to do math, but it doesn’t take a mathematician to know that the total costs are exorbitantly high when added up. Don’t drink and drive so that you can avoid having to sell a kidney on the black market just to afford the costs associated with a California DUI.

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