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Presented by California DUI Law Attorney Randy
Moore |
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1. Not taking the matter seriously. This is a
charge that could follow you for the rest of your life, if you are
convicted. The Motor Vehicle Division will keep track of it until you are
dead. The additional insurance charges alone could cost you thousands of
dollars. If your your license is taken away, you have to prepay for an
SR-22 endorsement to your policy. Your insurance company will also cancel
or raise your rates based on your conviction.
2. Not hiring an attorney and, if possible, a specialist in DUI
defense. The law is complex and you need competent
representation. You must raise the right defenses at the right time or you
will lose them. Facts will disappear, memories fade and witnesses vanish.
A winnable case can quickly become a loser. What should you do? You need
legal advice and fast. You want an attorney who knows how to handle your
case.
3. Hiring an attorney based on the amount of the fee alone. The
State has almost unlimited resources when it comes to your case. You need
to hire an attorney and pay a fee which will allow him to put time and
effort into your case to counter the prosecution. Attorneys must earn
enough in the time they spend on your case. . If you go too low, your
attorney will probably not be able to put in the time necessary to protect
you. Look for a lawyer worth spending dollars with , not the lowest.
4. Not Fighting the License Suspension. If you do
not request a hearing, you will not be able to drive until after a hearing
or for 4 months to a year. Driving during this time is a serious traffic
offense, regardless of whether you need to drive for work or personal
reasons.
5. Driving after your license has been suspended. You
have no right to drive after revocation and driving then is more serious
an offense than your original charge. There are no provisions for you to
drive for work or personal reasons. After a period of time, you may
qualify for an interlock device. If arrested for driving during this time,
you may have to post a $ bail bond just to get out of jail. If convicted,
you face days in jail.
6. Assuming the Case Can't be Won. Assuming that the case can't be
won is the number one biggest mistake that you can make in facing a DUI
arrest and charge. It may be that your case may be so difficult or
problematic that you may choose against a Jury Trial, but this decision
should never be made in the blind. You would be amazed at the potential
array of defenses available and the results that were initially
unforeseeable, which ended without a DUI conviction or License suspension.
7. Failing to find out if the Breath Test or Blood Test Rules were
followed. Breath tests and Blood tests can be attacked when it is
discovered that the rules were not followed properly. California has
detailed rules which require how these BAC tests are to be administered
and how the devices are to be maintained, repaired and calibrated. One
mistake can be crucial in the defense. "Mistakes" mean
unreliability of the results. Expert review of these tests are relatively
inexpensive given the seriousness of the consequences. One classic example
is the violation of the 15 minute observation law before taking a breath
test. Why would anyone plead guilty to this crime without looking at the
evidence upon which the case stands? Find a lawyer that has experience in
successfully challenging these test results. no matter how high, and find
out if you may avoid a conviction.
8. Fail to appear in Court. The Court will issue a bench warrant
for your arrest and revoke any bond. The next time you are stopped for a
traffic infraction, you will be spending some time in jail and posting a
bond for your future appearances.
9. Talk to anyone but an attorney about your case. Anything you say
to them can be used against you. When you discuss your arrest with friends
or family, you risk turning them into involuntary witnesses against you.
It is in your best interest to remember the details of your arrest. It
will help you in your defense. In any criminal case, you must be
represented by a competent defense lawyer. You may choose a lawyer or risk
the consequences of representing yourself. By hiring an attorney
immediately following your citation, you won't miss any deadlines.
10. Think that talking to numerous attorneys will help you handle it on
your own. If at all possible you need to have an attorney go to Court
with you. Who that lawyer is, and the experience and qualifications of
your lawyer is your choice. Make your best choice and give yourself the
best protection you can.
| General guidelines: what usually happens in an arrest for drunk driving. |
Traffic Stop ---> FSTs ---> PAS ---> Arrest ---> Breath/Blood BAC ---> APS temp license
If you are "pulled
over" and the officer suspects you of driving under the
influence, an officer usually will ask you to submit to a series of "field
sobriety tests" (FST). If you fail, (and almost everybody does
fail) you will be arrested and taken to a station, and asked to take a
chemical test for your blood alcohol content (BAC). You should be given
the choice of taking a blood or breath, If you refuse to take
this test, or don't complete the test, your license will be subject to a
one year suspension. (longer if prior convictions, felonies, or other
factors).
| Traffic Stop |
NHTSA study detection guide
describes a set of behaviors that can be used by officers to detect
motorists who are likely to be driving while impaired .
"Likely"?
35% ? 50% ?
65% ? 70% ?
"Probability"
?
These don't sound like BEYOND A REASONABLE DOUBT do they?
The driving behaviors identified by the officers are presented in the following four categories:
1) Problems in maintaining proper lane position,
2 ) Speed and braking problems,
3) Vigilance problems, and
4) Judgment problems.
The cues presented in these categories predict that a driver is DWI at least 35 percent of the time. For example, if you observe a driver to be weaving or weaving across lane lines, the probability of DWI is more than .50, or 50 percent. However, if you observe either of the weaving cues and any other cue listed in this booklet, the probability of DWI jumps to at least .65, or 65 percent. Observing any two cues other than weaving indicates a probability of DWI of at least 50 percent, although some cues, such as swerving, accelerating for no reason, and driving on other than the designated roadway, have single-cue probabilities greater than 70 percent. Generally, the probability of DWI increases substantially when a driver exhibits more than one of the cues.
The research suggests that these training materials will be helpful to officers in:
- Detecting impaired motorists,
- Articulating observed behaviors on arrest reports, and
- Supporting officers' expert testimony.
Field Sobriety Tests Standardized Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a battery of three tests
The three tests of the SFST are:-
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the horizontal gaze nystagmus (HGN)
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the walk-and-turn
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the one-leg stand.
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If the breath or blood test results show you to have a BAC of .08 percent or more, your license will be taken away on the spot and will be subject to a four month suspension. You will be given a 30-day temporary driving permit. You are given 30 days to request a hearing. However, you want to delay the suspension past the 30 day temp license you are only allowed 10 days to request an APS administrative hearing to contest the suspension. Essentially, you want your lawyer to make the DMV prove it's case and if not avoid the suspension. If you wait until after the 10 day limit your license will be suspended in 30 days. If this is a second offense, your license will be suspended for one year. The DMV will charge a fee of up to $100 to re-issue the driving privilege.
California's DUI
laws are complex, and the enforcement and penalties of these laws can vary
greatly from jurisdiction to jurisdiction. Here are some
general guidelines about penalties,
jail, and fines.
California has some of the toughest drunk driving laws in the country. If
you've been convicted of driving under the influence (DUI), the disruption
of your day-to-day life and to your pocketbook can be monumental. As
you may know, the State of California has greatly enhanced the penalties
for DUI in recent years.
The first conviction may result in imprisonment, probation, a substantial fine, and a loss of driving privileges. Normally your car insurance rates will increase substantially if you are convicted of DUI. Once the conviction is entered by the Court, it is very difficult to challenge that conviction after the fact. protect your rights
A second conviction for DUI carries with it a stiff mandatory term of jail. Subsequent DUI convictions carry even more severe penalties, including long term jail sentences and permanent revocation of driving privileges. protect your rights
Many people have entered guilty pleas in DUI cases without realizing that they are giving up valuable legal rights, and that various legal defenses may be available to them. The prosecutor must prove a DUI beyond and to the exclusion of every reasonable doubt. The breath machine might have been in error, and the results could be challenged. The circumstances of the arrest might also be subject to legal attack.
It is important for you to consider having a skilled attorney on your side in order to protect your valuable legal rights. Don't face the State alone.
I've just been
arrested for DUI. What happens now? see
below for
info from the California DMV,
The California Vehicle Code
Violations, and California
DUI Law
- http://www.insure.com/auto/duiconviction.html
Information on how drunk driving convictions affect
automobile insurance, from Insure.Com.
I've just been arrested for DUI. What happens now?
The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer's report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.
You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.
At the time of my arrest, the officer confiscated my driver license. How do I get it back?Your driver license will be returned to you at the end of the suspension or revocation, provided you pay a $100.00 reissue fee to the DMV and you file proof of financial responsibility. If it is determined that there is not basis for the suspension or revocation, your driver license will be issued or returned to you.
The officer issued me an Order of Suspension and Temporary License. What am I supposed to do with this document?You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other reason.
The Notice of Suspension that the officer gave me at the time of my arrest states I have ten days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?A hearing is your opportunity to show that the suspension or revocation is not justified.
For how long will my driving privilege be suspended if I took the chemical test?If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC or more:
- A first offense will result in a 4-month suspension.
- A second or subsequent offense within 7 years will result in a 1-year suspension.
If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.
The officer stated I refused to take a chemical test. What does this mean?You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:
- The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
- Both the blood or breath tests are not available, or
- You are a hemophiliac, or
- You are taking anticoagulant medication in conjunction with a heart condition
How long will my driving privilege be suspended for not taking the chemical test?
If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:
- A first offense will result in a 1-year suspension.
- A second offense within 7 years will result in a 2-year revocation.
- A third or subsequent offense within 7 years will result in a 3-year revocation.
If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:
- A first offense will result in a 1-year suspension.
- A second offense within 7 years will result in a 2-year revocation.
- A third or subsequent offense within 7 years will
result in a 3-year revocation.
How
is the DMV suspension or revocation for the DUI arrest different from
the suspension or revocation following my conviction in criminal
court?
The DMV suspension or revocation is an administrative action taken against your driving privilege only. The suspension or revocation following a conviction in court is a mandatory action for which jail, fine, or other criminal penalty can be imposed.
California DUI Vehicle Code(California Drunk Driving Law) Vehicle Code 23152 Driving Under The Influence of alcohol ( or drugs) Violation of 232152 a) or b) is a misdemeanor crime. A misdemeanor driving under the influence charges means that the charge involved no injury or property damage and the penalty is up to 12 months in County jail. Minimum with probation is 48 hours in "jail" (alternative work programs may be available). A felony DUI ( 23153 vehicle code) involves either: 1. injury, or 2. three prior convictions within 7 years (and other situations). Penalties could be as much as 12 months in County Jail or years in a state prison.
(a). It is unlawful for any person who is under the influence of an intoxicating beverage, or under the combined influence of an alcoholic beverage or
drug to drive a vehicle. Definition: "under the influence" A person is under the influence of intoxicating liquor when as a result of drinking such liquor his physical and mental abilities are impaired so that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. "Under the Influence"-Defined (legal-CALJIC 16.831): A person is [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] when as a result of [drinking such alcoholic beverage] [using a drug] [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] mo longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. [If it is established that a person is
driving a vehicle [under the influence of an alcoholic beverage]
[under the influence of a drug] [under the combined influence of
an alcoholic beverage and a drug], it is no defense that there was
some other cause which also tended to impair [his] [her] ability
to drive with the required caution.] DUI-driving
under the influence Misdemeanor [Defendant is accused [in Count[s] _____] of having violated section 23152, subdivision [(a)][(c)] of the Vehicle Code, a misdemeanor.] Any person who while [under the influence of any alcoholic beverage] [or] [under the influence of any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug] drives a vehicle is guilty of a violation of Vehicle Code section 23152, subdivision [(a)][(c)], a misdemeanor. [The term "drug," as used in this instruction, means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain,, or muscles of a person as to impair, to an appreciable degree, [his] [her] ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of [his] [her] faculties, using reasonable care, would drive a similar vehicle under like conditions.] VC23152 subsection (b) states: (b) It is unlawful for any person who has a .08 percent or more by weight to drive a vehicle. (legal-CALJIC 16.830.1): [Defendant is accused [in Count[s] _____] of having violated section 23152, subdivision (b) of the Vehicle Code, a misdemeanor. Every person who drives a vehicle with 0.08 percent or more, by weight, of alcohol in [his] [her] blood is guilty of a violation of Vehicle Code Section 23152, subdivision (b), a misdemeanor. In order to prove this crime,, each of the following elements must be proved:
2. At the time, the driver had 0.08 percent or more, by weight, of alcohol in [his] [her] blood. Legal presumptions about levels of alcohol in
the blood are stated in presumptions about under the influence are
stated in another law VC 23155. : 25291 bytes. California Drunk Driving LawCalifornia State Law |
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Phone:
(800) 609-1060 |
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