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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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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Drunk Driver Thanks Police for “Saving Her Kid from Her”

Thursday, November 22nd, 2018

A drunk driver told police that she had a reason to be thankful this Thanksgiving right after she was arrested for a DUI.

A drunk Crystal Elaine McMillan, of Indiana, apparently flew into a fit of rage after she discovered that her friend would not be cooking a turkey for Thanksgiving this year. That friend was the passenger in McMillan’s truck. Between them sat McMillan’s 6-year-old son.

As McMillan approached an intersection, swerving from lane to lane, her passenger told her to “slow down.” McMillan, still mad at her friend, said, “I’ll show you” and proceeded to speed up. By the time she reached the intersection the light had turned red. McMillan collided with a vehicle turning left in the intersection.

McMillan fled, but was apprehended after a man called police saying a drunk woman was on his property. McMillan reportedly told police that she was too drunk to attempt field sobriety test. She admitted to drinking before the crash. She also, however, admitted to drinking after the collision because she “knew she was going to jail.”

Following her arrest, McMillan thanked the arresting officer for “saving her kid from her.”

McMillan was charged with three counts of felony reckless endangerment and DUI, amongst a host of other charges.

While I can’t tell you what McMillan is looking at in Indiana, what I can say is that a DUI with a child in the car in California is no walk in the park.

Not only is a person looking at the punishment under California’s DUI law, which can carry up to 6 months in jail and a fine of up to $1,000 for a first time DUI, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.

This Thanksgiving be thankful for what you have. You never when those things your thankful for might be taken from you by a drunk driver.

 

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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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Electric Scooter DUI

Thursday, September 27th, 2018

I’m sure you’ve seen them around town. First it was the rentable bicycles on sidewalks throughout Southern California. Now it’s electric scooters as an alternative to walking around town for pedestrians in urban areas like downtown Los Angeles or my neck of the woods, Long Beach.

How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.

This week, Los Angeles City Attorney Mike Feuer said that his office secured the conviction of Nicholas Kauffroath, 28, for driving a rentable scooter under the influence.

Kauffroath was riding a rentable Bird scooter in West Los Angeles when he collided with a pedestrian and scooted away without rendering help or providing information.

Law enforcement found Kauffroath at a nearby apartment building where they were able to test his blood alcohol content, which registered at 0.279 percent; more than three times the legal limit.

Kauffroath subsequently pleaded no contest to one count of misdemeanor operating a motorized under the influence and one count of misdemeanor hit and run. He was sentenced to three years of informal probation, a $550 fine, a three-month DUI program, and was ordered to stay off scooters while drinking.

“Drinking while operating a vehicle, a bike – or a scooter – is not only illegal, but can lead to serious injury or worse,” Feuer said in a statement. “This conviction demonstrates our office’s continued effort to enforce our drunk driving laws and make our streets and sidewalks safer.”

While the Los Angeles City Attorney’s office treated Kauffroath’s case as though it was a standard DUI with a vehicle based on the sentence he received, the law regarding DUI’s on scooters is not necessarily the same as a DUI with a vehicle.

California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.” Under this section, it seems as though Kauffroath’s sentence was not wholly inconsistent with vehicle DUI laws regarding punishment.

However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”

The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. This necessarily means that a DUI on an electric scooter cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine.

Of course, I don’t know exactly what discussions and/or negotiations occurred between Kauffroath’s defense attorney and the City Attorney’s office regarding his plea deal. I can say that I recently had one of these cases, which was originally charged as a misdemeanor. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course, fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.

It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.

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