What are the Penalties for a California DUI?

Monday, October 17th, 2016

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.


Do I have to Do a Breathalyzer During a California DUI Stop?

Monday, August 22nd, 2016

Of all the questions I get about what to do and what not to do during a California DUI stop, the question about whether a person has to give a breath sample after a DUI stop is among the most common of the questions.

Strangely enough, the answer is both “yes” and “no” depending on which breath sample we’re talking about.

When law enforcement pulls someone over, chances are they already think the person is driving under the influence. However, in order to arrest them for a California DUI, law enforcement needs probable cause. This means that the officers must have facts that would lead a reasonable person to believe that the person is driving drunk. In other words, the officers cannot just arrest someone on the hunch that the person is driving while under the influence. They need facts to suggest that the person is actually driving drunk.

The officers get the probable cause, or facts, through their own observations and when the driver performs and fails the field sobriety tests. In addition to the field sobriety tests that people typically think of, there is the preliminary screening alcohol (PAS) test. This is a roadside breathalyzer that is also considered a field sobriety test. And like the other field sobriety tests, the PAS test is optional. If the PAS test shows that a person has alcohol in their system, then the officers have the facts that would suggest that the person is driving under the influence.  

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The officer who makes the stop, by law, must advise the person that the PAS test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If the PAS test detects alcohol in the person’s system, they’ll likely be arrested for a DUI. Once the person is arrested, they must take a chemical test which can either be a breath or a blood test according to California’s Implied Consent Law.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you’re licensed to drive in California, you have impliedly consented to give either a breath or a blood sample when you are lawfully arrested on suspicion of a California DUI.

The key word here is “lawfully” arrested. If the officer did not observe any poor driving and the person does not perform any field sobriety tests including the PAS test, the officer may not have the probable cause to arrest the person. And if the officer does not have probable cause that the person is driving under the influence, yet they arrest the person anyways, the arrest is no longer lawful.  

When an arrest is unlawful, all evidence obtained after that arrest, including the results of the chemical test are inadmissible.

As you can see, it can be rather complicated. So simply put, you do not have to take the pre-arrest breathalyzer called the PAS test, but you do have to take a post-arrest chemical test which could include a breathalyzer.


Supporter of Anti-Drunk Driving Law Charged with DUI with Children in Car

Monday, August 1st, 2016

Stephen Miller, 40, of Pennsylvania was arrested and charged early last month with two counts of driving under the influence, two counts of endangering the welfare of children and various traffic citations. Miller championed Pennsylvania’s “Kevin’s Law,” the name of which honored his son who was killed by a hit-and-run driver suspected of drunk driving. The law increased the penalties for hit-and-run drivers in fatal accidents.

Miller’s son, Kevin, was killed in 2012 after being hit by a driver who fled the scene. It was suspected that the driver, Thomas W. Letteer Jr., 26, was driving under the influence at the time, however never faced charges of DUI because he was not caught until much later.

On June 12th, Miller was stopped because law enforcement spotted his vehicle traveling at night without headlights and unlit tail lights. At the time of the stop, Miller had this two other children in the vehicle, one of which was Kevin’s twin. It was later determined that Miller’s blood alcohol content was more than three times the legal limit at 0.27 percent.

Miller is set to appear on August 17th.

In addition to the penalties for the DUI, Miller is facing 100 hours of mandatory community service and a fine of at least $1,000 under Pennsylvania law.

California, on the other hand, is not as forgiving.

In California, if you are charged with a DUI under California Vehicle Code section 23152 and at the time of driving, you have a minor under the age of 14, you also face an enhancement to the DUI charge under California Vehicle Code section 23572.

In addition to any penalties given for a DUI conviction, if the enhancement is found to be true, the person faces an additional and consecutive 48 hours in a county jail for a first DUI conviction, 10 days for a second DUI conviction, 30 days for a third DUI conviction, or 90 days for a fourth or subsequent misdemeanor DUI conviction.

For other reasons, I’ve said that it is extremely important to hire an experienced California DUI when facing criminal charges. The same absolutely holds true for a California DUI charge with a child endangerment enhancement.

If an experienced California DUI attorney can successfully defend against the underlying DUI charge, the child endangerment enhancement cannot stick nor can a person be punished under it. This is true if the underlying California DUI charge is found to be untrue by a jury after a trial, the charges dismissed, or if the charge is reduced to what is known as a “California wet reckless.”

It should also be noted that drunk drivers who have children in the vehicle at the time of driving can also be charged under California Penal Code section 273(a), otherwise known as California’s child endangerment law. Child endangerment can be charged as either a felony or a misdemeanor when a person places a child under the age of 18 in a situation where his or her heath or welfare can be endangered. If charged with child endangerment, a person faces up to a year in county jail for a misdemeanor and up to six years in a California state prison for a felony.

If a person is convicted of a DUI and child endangerment under California Penal Code section 273(a), they, however, cannot face the DUI enhancement under California Vehicle Code section 23572.


OC Man Gets 7 Years for DUI with Injury

Monday, July 25th, 2016

In April of 2015, Leonardo Morales was driving his Chevy Tahoe and exiting the 55 freeway in Costa Mesa when he collided into a tree on the off-ramp. According to California Highway Patrol, two officers patrolling the area spotted the flames that erupted immediately following the collision.

The officers who spotted the flames called in to dispatch for other officers to respond. Responding officers Daryl Hansend and Timothy Montoya found Morales on the floor, 22-year-old Kathy De Rosa in the front passenger seat, and a 2-year-old “running around and crying and pointing at the car,” said CHP Officer Florentino Olivera.

As the officers were attempting to extract De Rosa, they heard the cries of a baby on the floorboard of the rear driver’s side seat. The children, whose parents were Morales and De Rosa, were taken to Children’s Hospital Orange County. Morales and De Rosa were taken to Western Medical Center in Santa Ana.

Morales was later determined to have alcohol in his system and was subsequently arrested.

Both Morales and De Rosa had prior DUI convictions. In 2014, Morales pleaded guilty to misdemeanor driving under the influence and driving on a suspended license. In 2015, De Rosa pleaded guilty to misdemeanor driving under the influence, misdemeanor driving with a blood alcohol content of 0.08 percent or higher, and misdemeanor child endangerment since children were present in the vehicle when she was under the influence.

Last month, Morales pleaded guilty to driving under the influence of alcohol causing injury, driving with a blood alcohol of 0.08 percent or more causing injury, and two counts of child abuse and endangerment, all felonies. Additionally, Morales admitted sentencing enhancement allegations that he inflicted great bodily injury and great bodily injury on a child younger than five-years-old.

Morales was sentenced to seven years in prison just last week.

Unfortunately for Morales, a DUI may be elevated, and was in his case, to a felony when the DUI leads to the injury of another under California Vehicle Code 23153.

Although Morales was sentenced to seven years, he was originally facing two, three, or four years in a California State Prison, an additional and consecutive three to six years in prison for each other person who suffered great bodily injury, a “strike” on his record under California’s Three Strikes Law, up to $5,000 in fines, and 18 or 30 month DUI program, restitution to the victim or victims, a Habitual Traffic Offender (HTO) status with the California DMV for three years, and a five year revocation of driving privileges.

DUI with injury can also be charged as a misdemeanor. Although it was highly unlikely in Morales’s case given the facts, it is possible. If originally charged as a felony, alternatively a plea deal could involve reducing the charge to a misdemeanor. As a misdemeanor, the penalties include informal summary probation for three to five years, up to a year in county jail, up to $5,000 in fines, a three, nine, 18, or 30-month DUI program, restitution to the victim or victims, and a one or three year suspension of driving privileges.

For this reason, it is extremely important to hire a competent and experienced California DUI attorney to negotiate the best plea deal possible or, if the prosecutors unwilling to budge, fight the case through trial and achieve a not guilty verdict.


Supreme Court Says Warrantless Blood Test Illegal, but not Warrantless Breath Tests

Monday, June 27th, 2016

In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23rd, that decision was announced.

In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.

In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.

The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.

Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.

The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.

Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

So what does this mean for California?

Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.

This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.

Chisel, chip, and off falls our 4th Amendment right against unreasonable searches and seizures.