Alcohol DUI

Alcohol DUI

In California, a person over 21 can be convicted of V.C. 23152(b) for driving with a 0.08% or greater BAC (0.05% for under 21). However, what most people don’t know is that a person arrested for alcohol DUI is almost always charged with V.C. 23152(a) as well (both a & b). This is important because the “a” count does not specify any particular BAC. In other words, as long as the prosecutor can show that you are “impaired,” you can be charged (and convicted) of DUI even if your BAC is under the legal limit.

DUI Penalties

PENALTIES FOR COURT CONVICTION OF DRIVING UNDER THE INFLUENCE ( VEHICLE CODE §23152 )

Minimum and maximum sentences with probation (3-5 years):

First Offense A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), up to 6 months in jail, and attendance in a 3, 6, or 9 month alcohol program. As a result of the court conviction, the DMV will suspend your license for 6 or 10 months, depending on the alcohol program ordered, but a restricted license may be requested. Additionally, you will receive 2 points on your driving record.

Second Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 4 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be requested with IID for 1 year. Additionally, you will receive 2 points on your driving record.

Third Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 120 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 3 years, but a restricted license may be requested with IID for 2 years. Additionally, you will receive 2 points on your driving record.

Fourth Offense within 10 years A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 180 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 4 years, but a restricted license may be requested with IID for 3 years. Additionally, you will receive 2 points on your driving record.

DMV DRIVER’S LICENSE CONSEQUENCES WHEN YOU LOSE OR DON’T REQUEST A HEARING AFTER BEING ARRESTED FOR DUI

First Offense

0.08% or greater: 4 month suspension Restricted available

Refusal: 1 year suspension  Restricted not available

Second Offense within 10 years

0.08% or greater: 1 year suspension Restricted available

Refusal: 2 year revocation Restricted not available

Third Offense within 10 years

0.08% or greater: 1 year suspension Restricted available

Refusal: 3 year revocation Restricted not available

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Alcohol DUI Defenses

DON'T ASSUME YOU HAVE TO PLEAD GUILTY

Driving under the influence of alcohol is made illegal because the alcohol in the bloodstream impairs the brain’s ability to function normally. Thus, what is important in determining the level of impairment is the alcohol content IN THE BLOODSTREAM (BAC) and AT THE TIME OF DRIVNG. If what is measured does not reflect what was in the bloodstream at the time of driving, then the results have no rational basis to support a DUI conviction. Moreover, if what is tested becomes contaminated, then the results must also be discredited.

BREATH TESTS: Breath machines are accurate, but the results often aren’t! As ironic as that sounds, it is true. Breath machines are very good at measuring what comes into it. The problem is, what comes into it is often not reflective of what it is designed to measure: a person’s Blood Alcohol Level at the time of driving. Consider the following:

1. Mouth Alcohol – breath machines are designed to measure air, not liquid. When you drink alcohol, some of it gets stuck in between your teeth. Likewise, when a person burps, liquid alcohol gets mixed up with saliva. While this type of mouth alcohol may seem minimal, it certainly isn’t so minimal for a breath machine that is designed to measure the alcohol in a person’s breath, not saliva. What makes it worse is that police officers are known for requesting that you blow into a breathalyzer as hard as you can for as long as you can. Anyone who has played a trumpet or blown into a balloon knows what happens when you blow into something forcefully—saliva gets spit out. In the case of a DUI, the BAC measured can be many times higher due to the presence of mouth alcohol.

2. Rising BAC – depending on the length of time and amount of consumption, a person’s Blood Alcohol Level can continue to rise several hours after the last drink. For example, suppose it is 11pm and you just had your last drink and you are driving home, you could be at a 0.06%, but by 12am or 1am, when you are administered a chemical test at the police station, you may register a 0.09% or higher. In other words, the results obtained simply do not reflect your BAC at the time of driving.

3. Absorption – as mentioned above, what makes DUI illegal is the alcohol in the bloodstream that impairs the brain. The problem with breath machines is, it works by measuring BREATH and converting it to a BLOOD Alcohol reading. So if the “breath” reflects a 0.10% BAC, but the “blood” actually contains only a 0.03% BAC, then you can see how an innocent person gets convicted of DUI. The fact is, when a person is still absorbing alcohol and blows into a breathalyzer, the results will ALWAYS read higher, sometimes 3-5 times higher! The reason is, the person is still absorbing alcohol, a process that can take up to several hours especially if there is food in the stomach. During absorption, the alcohol consumed has not had sufficient time to fully enter the bloodstream, so the “breath” alcohol measured can be a far cry from the “blood” alcohol, which is what affects the brain. Remember that DUI statutes refer to “BLOOD Alcohol Level,” not breath!

BLOOD TESTS:

Blood tests are generally more accurate than breath tests, because blood is measured directly and no conversion from breath is necessary. However, in addition to being vulnerable to the Rising BAC attack (see above), blood samples are often not maintained properly, and the results can be just as skewed. Consider the following: 1. Fermentation – after blood is drawn and put in a vial, Title XVII requires that an anticoagulant and a preservative be placed in the vial, which must then be shaken. The anticoagulant prevents the blood from clotting, and the preservative prevents fermentation, whereby the blood goes bad—much like sour milk —and the alcohol content multiplies. The problem is, most blood vials in DUI cases sit in the police station un-refrigerated for several weeks before someone even gets to the task of evaluating it. This is coupled with the fact that law enforcement is often unfamiliar with the requirements of Title XVII, and do a poor job documenting the chain of custody of the vial. This means that the BAC obtained from the “contaminated” sample can be much higher than the BAC of the same sample the day it was drawn from your arm!

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Frequently Asked Questions

I wasn’t read my Miranda rights. Does that mean I can win my case?

Miranda only has to be given if there is post-arrest interrogation. Most cops in a DUI investigation are trained to get everything they need out of your mouth “prior” to cuffing you, so Miranda usually doesn’t apply. However, there are instances when a cop will conduct further questioning at the station, where Miranda WOULD have to be given in order for the statements to be admissible in court.

I missed my court date and have a warrant. What should I do?

You should hire a lawyer to go to court to recall the warrant. A lawyer can usually do this without you present if the underlying charge is a misdemeanor, so it is less risky for you.

I just got cited for a DUI. Do I need to file SR-22?

SR-22, or proof of insurance, has to be filed for 3 years AFTER conviction of a DUI. Your first order of business after being cited for a DUI is to figure out how to avoid being convicted.

What are the most important things I should look for when hiring a DUI lawyer?

Ask yourself 3 things: a) Will this lawyer actually be the one representing you? Or does this lawyer simply pass the case off to “one” of the associates. b) Does this lawyer specialize in DUI? Or does this lawyer take whatever walks in the door? c) Is the quoted fee the “actual” fee that you will be paying? Or are there plenty of hidden fees that will hit you when you don’t simply plead guilty?

I just got a letter in the mail from law enforcement, with a request to contact a detective regarding an accident/incident involving my vehicle. What should I do?

You should absolutely NOT respond to such a letter. You have the right to remain silent, and that means the right to NOT speak to investigators/cops. Remember, no matter what you say it will be twisted around and used against you later. In short, no benefit can be derived from responding. You should contact a lawyer ASAP if you have received such a letter or voice mail.

I just got arrested for a DUI and I refused all tests. Can they still convict me?

Absolutely, especially if you forgot about the right to remain silent and copped yourself out. Remember, no matter what you said it will be twisted around and used to make you look guilty. Also, many refusal cases still (unfortunately) involve Field Sobriety Tests, which are designed to make anyone, sober or not, look impaired. With that said, a refusal DUI is usually more defensible than a regular DUI, since there isn’t a specific number that prosecutors can point to, but the consequences of conviction are more severe.

I just picked up a DUI and I blew over the legal limit. I’m guilty, so what’s the point of hiring a lawyer?

First of all, being over the legal limit is just the starting point, and all DUI cases that are won involve people who are at or above the legal limit (or they refused). If you were under the legal limit, you wouldn’t even have been cited. Second, just because you feel you are guilty, it doesn’t mean you need to have the full brunt of the consequences crash down on you. With proper representation, things like jail time, license suspension, fines, probation, alcohol school…etc. can be reduced or eliminated, guilty or not.

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