Have you questioned DUI vs DWI? If you’re looking to find out the key differences, then read this helpful article.
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Tag: DUI
The breathalyzer test is just one way for authorities to determine if you were driving under the influence.
So, can you be convicted of DUI without a breathalyzer test?
If you were arrested, it’s time to call an experienced DUI attorney.
When a police officer suspects you are driving under the influence, he or she will pull you over and request that you take a breathalyzer test.
According to California law, you have the right to refuse this request at this point but it’s important to understand the breathalyzer test is just one way for authorities to determine if you were intoxicated.
With that said, an experienced DUI attorney may still be able to present an argument in your defense.
Today, we’re taking a closer look at some of the other ways authorities can determine if you were driving under the influence as well as some of the arguments a lawyer may present in your defense.
There are severe penalties for driving under the influence.
In some cases, a DUI can result in life in prison.
Today, we’re taking a closer look at what happens when you get a DUI in California.
What Happens When You Get A DUI In California.
If you are pulled over arrested for DUI under California Vehicle Code 23152(a) VC (driving under the influence), there are a number of steps that will follow, beginning with a breath test to measure your blood alcohol level.
You can agree to a breathalyzer test on the scene of your arrest, or an officer will take you to the police station, jail, or a hospital for the breath or blood test.
Refusing to take a chemical test, either breath or blood, will result in arrest, and you will have an additional “refusal” allegation added to the charges. This will result in a one-year suspension of your license and other penalties that will include spending a mandatory two days in jail.
If you are given a breath test, the results will be immediate. If you are given a blood test, the results won’t be available for a few days.
Further reading: California Breathalyzer Laws
Authorities Will Test Your Breath, Blood, or Urine for Substances
If a test shows you have a blood alcohol concentration (BAC) of .08% or higher, you will also be charged with California Vehicle Code 23152(b) VC (driving with a BAC of .08 or higher).
If a breath test is lower than .08 for BAC, you may still be suspected of driving under the influence of some other drug and be asked to take a blood or urine test, under Vehicle Code 23152(e) VC (driving under the influence of drugs).
Once your test results have been seen (or you have refused to take them), you will be booked and released. Depending on your criminal history, if any, and the specific facts of this case, you may have to put up bail before being released. You may have to spend some time in jail before being released.
The officer will complete his or her report about the arrest and submit it to a local prosecutor who will review the facts as reported and either decline to file charges or formally charge you with a California DUI.
The Hearing Process
After arresting you, the officer will inform you that your driver’s license will be suspended for 30 days. The officer will confiscate your license and give you a temporary one that is valid until your suspension begins.
The officer sends your confiscated license to the California DMV and they suspend your license starting after the expiration of the temporary license – unless you request a DMV hearing. You have 10 days after your arrest to make that request.
Requesting a DMV hearing will delay the suspension of your license until the outcome of the hearing is known.
The California DMV hearing officer will ask some questions before making a decision whether or not to suspend your license. The first question asks if the officer reasonably believed you were DUI. The second question asks if you were lawfully arrested. And the third question asks if your BAC was .08% or higher.
This DMV hearing is independent of the DUI court case and can be conducted in-person over the phone. You have the right to be represented by a DUI attorney, even at the DMV hearing. This can help you prepare for your court case.
Your attorney can subpoena the arresting officer and cross-examine him or her about everything that happened at the scene of your arrest. There are many defenses possible, and a qualified DUI attorney will be aware of them and make the ones appropriate in your case. The transcripts of the officer’s statements can be helpful in court.
If you win the DMV hearing, your license will not be suspended, at least until you go to court. It can still be suspended if you get convicted of the DUI charge.
If you lose the DMV hearing, your license will be suspended. It will last from four months to three years, depending on whether you took the chemical test or refused it, and depending on the number of prior DUIs, if any, you have.
The Court Process
Your court proceeding begins with an arraignment on DUI charges. The prosecutor will make a first “offer” which is the sentence that the prosecutor is recommending if you plead guilty to the charge.
You can plead guilty, not guilty, or “no contest.” If you plead guilty, you will be sentenced and the case will be closed – except for having to fulfill any terms of probation.
If you plead guilty, you or your attorney will be entitled to review and challenge any of the prosecutor’s evidence including the police report and records of any chemical tests along with the test instruments used and methods of storage and maintenance of the samples.
The defenses possible include a wide range of issues including flawed or illegal police investigations, faulty test equipment and processes, and inaccurate calculations. And there are many more.
There is a pretrial period that can last anywhere from a few weeks to a few months when you or your attorney can examine all the evidence against you.
A qualified DUI attorney knows several options that can be used including several pretrial motions.
A “probable cause” motion would contest the validity of the officer’s stopping you.
A “motion to suppress” would ask the court to suppress any evidence obtained illegally or with prejudice.
And there is plea bargaining as another option. After your attorney has gone through the case and identified weaknesses in the prosecutor’s case, it will be a good time to try to negotiate a lesser offense.
If there is no resolution at this point, your case will go to trial. The trial involves several steps including jury selection, opening statements, the prosecutor’s case, the defense’s case, closing statements, the verdict, and sentencing.
If you are found guilty, you will face consequences that could include fines, jail time, prison time, DUI school, longer suspension of your license, plus any restitution for damages or injuries caused.
You do have the right to represent yourself through all this, but since there are many possible defense arguments to consider as well as many legal options during the pretrial and trial phases, it is wise to consider a highly qualified DUI attorney to represent you.
Conclusion
If you are arrested for driving under the influence, you should consider hiring an experienced DUI attorney as fast as possible.
Your attorney will assess the evidence and help reduce the consequences to the best of his or her ability.
Need help finding an attorney?
Tell us about your legal situation and we’ll connect you with the best DUI attorney in your area.
The legalization of recreational marijuana arrived with new laws and consequences early 2018, including driving under the influence.
On January 1st, 2018, California legalized the recreational use of marijuana.
With that said, you can be arrested for driving under the influence of marijuana due to the effects it has on your vision, brain, and motor skills, much like alcohol or prescription drugs.
There are some differences but they have similar consequences.
Let’s take a closer look …
The penalties for a DUI in California are severe, especially for repeat offenders and drivers under 21.
The state of California has strict laws for drunk driving, especially for repeat offenders and drivers under 21 years of age.
Driving under the influence (DUI) in California doesn’t mean you have to be drunk to be arrested. Under California law, DUI means that you are driving under the influence of alcohol or drugs or you are driving with a blood alcohol level of 0.8% or greater (.05% or greater for those under 21 and .04% or higher for commercial drivers).
Today, we’re taking a closer look at the penalties for drunk driving in California so you know what to expect if you’re convicted of a DUI in California.
Let’s get started …
Alcohol is always dangerous when mixed with driving, but this situation can become even more serious when it’s teenagers behind the wheel.
Many teens do not have the experience behind the wheel to handle a car safely in different situations including driving at night, driving in inclement weather, or operating a vehicle with many passengers inside. This is what makes teen drivers extremely likely to be involved in an accident in general, and worse if they choose to mix alcohol with being behind the wheel.
In California, the crash rate for 16-year-olds is 3.7 times higher than drivers of all ages, while it’s 2.7 times higher for those ages 16-19. That same 16- to 19-year-old age group is 1.9 times more likely to crash than drivers of all ages once alcohol is part of the equation.
An accident involving alcohol can have catastrophic consequences, including serious injuries or even death. There may be criminal as well as civil penalties for a teen driver who causes an accident while under the influence. Plus, the guilt that follows you for life if you’ve caused an accident while drinking and driving — it just isn’t worth it.
It’s important to understand how drinking and driving laws and teenage driver laws in California intersect with teen driving concerns.
California Alcohol Laws and Penalties
In the United States, young individuals ages 15-19 represent approximately 7% of the U.S. population but account for 11% — $10 billion — of the total costs of motor vehicle injuries each year. Six teens ages 16-19 die each day from motor vehicle injuries.
Motor vehicle crashes are the leading cause of death for teens in the United States. Sadly, many of the teen car accidents are completely preventable and being aware of these risks and guarding against them can help to prevent serious issues.
The first major set of laws under California Vehicle Code that influences teen drivers is underage DUI. The legal drinking age is 21 in California, which also is a zero-tolerance state. Zero Tolerance Law makes it illegal to drive with a blood alcohol concentration (BAC) of 0.01% or higher if you’re under 21. On your first offense, you’ll have your license suspended for a year, if your BAC is 0.01% or higher, or you refuse or fail to take the preliminary alcohol screening test.
If you get behind the wheel and injure someone, you could be held responsible for the injuries sustained by other parties. Even with appropriate insurance, another individual’s medical bills or wrongful death claims filed by surviving family members could have major financial implications for the teen driver and his or her family.
See also: DUI Arrest in California: What Do I Do Now?, Breathalyzer Laws in California
When Underage Drinking Leads to Other Charges
California takes underage drinking seriously, whether you’re behind the wheel or not. Even if you’ve narrowly escape a DUI or you’re a passenger in a vehicle, if you’re attempting to drink in California and you’re under 21, you’re breaking California law. Your driver’s license will be suspended for a full year if you’re caught, and if you’re too young or don’t have a license yet, you’ll have to wait a full year to get one.
Those rules, plus additional penalties, include:
- Possessing false identification — minimum $250 fine and/or 24-32 hours of community service
- Minor in possession of alcohol — $250 fine and community service
- Attempt to purchase alcohol — $100 maximum fine and community service; if you actually are successful with purchasing, the fine goes up to $250
With second offenses, the fines and community service time increase, with most community service being completed at an alcohol or drug treatment facility or at a county coroner’s office. C.V.C. § 25658 (e). Parents and other adults also get in trouble for influencing teenagers’ decisions about alcohol, including potential child endangerment law issues and illegally distributing alcohol to minors, the latter of which is punishable by a $1,000 fine, community service, and potential jail time.
Restricted and Graduated Driving Laws in California
Despite the scary consequences of drinking and driving, California law makes it possible for teenagers to develop good habits early. In 2006, the state adopted provisional license restrictions, which substantially limit the ability for teen drivers to get in trouble behind the wheel.
For the first 12 months of having a license in California when you’re under 18, you must be accompanied and supervised by a licensed parent, guardian, or an instructor who’s at least 25 years old whenever you’re carrying passengers who are 20 years old or younger, or if you’re driving between the hours of 11 p.m. and 5 a.m. You also can’t take a job where you have to drive a vehicle, like getting some extra money delivering food, when you’re under 18 in the state of California.
Individuals under age 18 also are prohibited from texting while driving under the Wireless Communications Device Law, and they can’t use an electronic device at all even if it’s hands-free. A police officer can pull over a teenage driver for this as their main offense, and write a ticket, which assigns points to your driving record. Under the DMV Point System in California, if a teenager receives 2 points for violations within one year, a 30-day restriction will be placed on his or her license. For 3 points, it’ll be suspended.
Drinking and a Young Person’s Future
Aside from dealing with potential injuries in an alcohol-related crash, other consequences associated with drinking and driving underage in California also can be long term.
Colleges are eligible to ask about your criminal history on their admissions applications. This means that you may be responsible for disclosing your DUI when you apply for college. They may even deny your acceptance as a result.
Bear in mind that some employers also may ask for your criminal history, and a DUI conviction can show up in a background check. In California, this doesn’t apply to most private employers, but public employers are allowed to ask. However, as of January 1, 2017, juvenile court decisions aren’t considered convictions that employers can inquire about under revised California Labor Code.
Get Help from an Experienced Personal Injury Lawyer
If you have been pulled over as a teenager for a suspected DUI, it is important to reach out to an experienced attorney as soon as possible. In the event that you have recently been involved in an accident where you believe the teen driver may have been under the influence of alcohol or drugs, you may have rights to pursue a personal injury claim.
These situations can be extremely complex and very sensitive. A personal injury lawyer may be able to help you figure out your next steps and how to put your life back together so you can focus on healing. The San Fernando Valley Bar Association connects community members with personal injury attorneys with an average of 25 years of experience to help you win your case. Find a lawyer today using our Attorney Referral Service. There is no consultation fee for personal injury cases.
We all know that it’s illegal to drive drunk, but people make mistakes. Sometimes it’s hard to tell when you’ve had too much. How do you deal with a DUI arrest?
California DUI Laws
California has some of the strictest DUI laws in the country. There are two separate sections of the California Vehicle Code which are applicable in a DUI arrest. Under C.V.C. § 23152(b), it’s illegal to drive with a blood alcohol of 0.08% or greater. The arresting officer will test your breath, blood, or urine to measure your BAC and if it’s over the limit, that’s a DUI.
Under C.V.C. § 23152(a), it’s illegal to drive “under the influence.” “Under the influence” simply means that your ability to drive is impaired – it means you may get a DUI even if your BAC is less than 0.08%. This isn’t an exact science – the officer will decide whether you’re under the influence when he or she pulls you over based on observations and field sobriety tests. If the officer determines that you’re under the influence, you’ll be taken into custody and asked to perform a breath, blood, or urine test to measure your BAC.
Do I Have To Take A Breath Test?
In California, you legally give “implied consent” to take a blood, breath, or urine test whenever you drive. You can refuse to take a BAC test, but your license will be automatically suspended for a year in addition to whatever penalties you may face for a DUI charge. C.V.C § 13353(a). If you’ve been convicted of a DUI within the past 10 years and refuse to take the test, your license may be suspended for even longer.
Do I Need An Attorney?
After you’re taken into custody, the state will formally bring charges against you. You’ll have to appear in court to defend yourself. So, should you hire an attorney?
If you don’t get a lawyer to handle your DUI arrest, you’ll have to manage your own hearing. The court will hold you to the same standard as an attorney – you won’t get any special treatment and you’ll be expected to be able to manage the proper paperwork, deadlines, rules, and procedures. If you choose to represent yourself, the judge will ask you a series of questions to make sure you understand the ramifications of proceeding without an attorney. If the judge is satisfied that you understand the risks, the hearing will proceed. The judge will tell you what the charges are and what potential penalties, including fines and jail time, you may face if you plead guilty or are found guilty.
There’s a reason lawyers go to school for years of training – the law is complicated and court procedures are convoluted. Small mistakes can be very costly – missing a deadline or doing the wrong paperwork can sink your whole case. So, an attorney is a major asset in dealing with a criminal charge. At the very least, a lawyer knows how to handle all of the logistical aspects of the case – what motions and documents to file, how a trial proceeds, and more.
However, your lawyer isn’t just there to guide you through the paperwork. He or she can evaluate your case for errors in the police report, the actual stop, the administration of field sobriety tests, the accuracy of the breathalyzer, and more. The police have to follow a very specific procedure when pulling you over, collecting evidence, and taking you into custody. If they made a mistake, your case could be thrown out. If there’s a problem with the evidence, your lawyer may be able to negotiate with the prosecutor to reduce fines, jail time, or even the actual charges. Hiring a lawyer to represent you after a DUI arrest is not a guarantee that you’ll get out of the charges or that you won’t face penalties, but your lawyer will know how to go about minimizing the penalties you face.
Penalties For A DUI Arrest
The penalties for a DUI can be severe. These penalties include, but are not limited to, fines, impound fees, Alcohol Education classes, increase in automobile insurance costs (including the requirement of the filing of an SR-22 for a period of at least five years), drivers license re-issue fee, and attorney fees. The penalties are more severe if you have prior DUI convictions or if you injured a person or damaged property while driving under the influence. In total, a DUI arrest could cost upwards of $10,000.00. An experienced criminal attorney may be able to minimize these costs and punishments.
Don’t Ignore The Penalties
When you’re dealing with a DUI arrest, you’ll face certain restrictions. Your license may be suspended, for example. You may be required to attend an Alcohol Education class or perform community service. Whatever restrictions you face, you should follow them to the letter. Driving on a suspended license will come with its own penalties and may make the court less inclined to leniency regarding the DUI charges. Failure to perform court-ordered education or community service can even land you in jail. In other words, don’t ignore the penalties – that will only get you in deeper trouble.
The Bottom Line
The best way to avoid a DUI arrest is to only drive sober. It’s safer and can keep you out of a lot of legal trouble. If you do find yourself facing DUI charges, consider hiring an experienced local attorney to help you manage your case and minimize the penalties you face.
Image Credit: By Scott Davidson from United States (Police Car Lights) [CC BY 2.0], via Wikimedia Commons
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Breathalyzer Laws In California
Today, around 30% of fatalities occurring in motor vehicle accidents are the result of impaired or drunk driving.
This statistic is down from 50% in the 1960s, largely due to educational campaigns and increased enforcement. Enforcement is easier these days, in part because of the popular breathalyzer test to measure blood alcohol content.
What is the law on breathalyzers in California?
What Is A Breathalyzer?
A breathalyzer is a hand-held device used by law enforcement to test the level of alcohol in your system; you’ll be required to take a deep breath and blow into the device. Breathalyzers use either fuel cell sensors or semiconductor sensors to measure the alcohol content in your breath, which is used to calculate your Blood Alcohol Concentration (BAC). For many years, a BAC level of 0.10 was considered the standard in the United States for drunkenness. Today, most states have reduced that standard to 0.08. The American Medical Association maintains that at a BAC level of 0.05 a person can be impaired. While there are several processes for identifying an impaired or a drunk driver, the breathalyzer has remained one of the most common.
Do I Have To Take A Breathalyzer Test?
All states have “implied consent laws,” which means by operating a vehicle, you have implied your consent to a BAC test. The California implied consent law states that if you arrested and the officer has probable cause to believe you are driving while under the influence, you automatically consent to BAC testing. That may be a breathalyzer test, but it may also be a blood or urine test. You can choose between a blood test and a breathalyzer, and you’ll have to take a urine test if neither a blood nor breath test is available.
Even if you haven’t been arrested, you’re still required to take the test. Under California law, you have also impliedly consented to submit to a preliminary breath test by applying for and receiving a driver’s license from the state to operate a vehicle on public roadways.
The officer who pulled you over will tell you that you may choose to refuse the test. However, refusing the test will result in penalties. In addition, you do not have the right to speak to an attorney about whether you should take the test before you make the decision. If you do submit to a breathalyzer test, the results may be used to establish probable cause for your arrest as necessary. Remember that refusing to take the test does not guarantee you won’t be arrested. In fact, if the officer has another reason to believe you are intoxicated, you could still be arrested and required to submit to a mandatory BAC test anyway.
Refusing To Take A Breathalyzer
So, you don’t have to take the test if you haven’t been arrested yet. The officer is required by law to advise you of the consequences: you will receive a fine, you will lose your driver’s license, and you face possible jail time if you are subsequently convicted of driving under the influence and/or refusal to submit to the test.
In California, refusing a breathalyzer test is its own charge separate from the DUI. The penalties for refusing the test are determined by your prior record. Refusing the test once will result in suspension of your license for a year. If you’ve refused the test before or if you’ve been convicted of DUI or reckless driving within the past 10 years, you’ll lose your license for 2 years. If you’ve refused the test twice before or if you’ve been convicted of reckless driving or DUI twice or more during the past 10 years, your license will be suspended for 3 years. Regardless of your record, you will face a $125 fine for refusing to take the test.
While the refusal to take the test can make the consequences of your DUI charge worse, it also means that the prosecutor may have less evidence with which to prosecute you. This could create a scenario where a plea bargain may be struck for reckless driving or speeding. It is not, however, a guarantee that you will not ultimately be convicted of DUI and/or have your driver’s license suspended by the Department of Motor Vehicles.
A refusal can be either express or implied. In other words, you can say to the officer that you will not take the test and that would be an express or explicit refusal. Alternately, you can remain silent when asked if you submit and that would be implied refusal. If you consent to the test and then subsequently change your mind, you will be deemed to have impliedly refused as well.
Should You Take A Breathalyzer?
It’s almost never a good idea to refuse the test. You’ll end up with your license suspended for a year and it won’t necessarily protect you from a DUI conviction. In most cases, the officer who pulled you over will have enough probable cause to arrest you and administer the test anyway.
If you have been arrested for DUI, you need the help of an experienced attorney to protect your rights and help you get the best possible outcome in court. Our DUI defense attorney referral service can help.
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