Driving under the influence means driving your car while impaired by alcohol or drugs or with a blood alcohol concentration greater than 0.08 percent. California does not take the crime lightly, and an offense carries severe penalties, including fines, the installation of an ignition interlock device, and the possibility of serving time. The Los Angeles-based attorneys at Leah Legal Criminal Defense Attorney are knowledgeable of DUI criminal laws and know how to approach each case. Since every case is unique, we collect and thoroughly analyze evidence to develop the most effective case defenses.
Driving Under the Influence Explained
Typically, prosecutors charge DUIs with two different offenses, namely:
- VC 23152a (Driving under the influence)
- VC 23152b (Driving with a blood alcohol concentration greater than 0.08 percent)
Even when you break both DUI laws, you will face penalties for violating only a single DUI law.
VC 23152a makes it unlawful to operate a motor vehicle under the influence of alcohol. In other words, it is a crime to drive when your mental and physical capabilities are impaired to a degree that you cannot drive with the caution of a sober motorist.
To prove you drove under VC 23152a, the prosecution must prove beyond a reasonable doubt that you drove a car and you were under the influence of alcohol while driving.
The prosecution depends on circumstantial evidence to prove you were driving drunk. The arresting police will report that you:
- Had an alcoholic odor
- Drove erratically
- Has slurred speech
- Failed your field sobriety tests
- Have watery, bloodshot, or gassy eyes
- Confessed to drinking
VC 23152b makes it an offense to drive with a BAC above 0.08 percent, no matter whether you have a high alcohol tolerance and you drove safely without alcohol impairing you. The facts of the crime are that you drove your car with a BAC that exceeded 0.08 percent.
To prove BAC, the prosecutor depends on the results of:
- The compulsory chemical test you take after the arrest
- The optional preliminary alcohol screening that police administer before arresting you
Criminal Penalties
The legal penalties for DUI convictions in California include the following:
First DUI Penalties
The punishment for this conviction is as follows:
- Fines that include $390. Nevertheless, the full costs, including assessments and fees, could amount to $1,000.
- Informal probation of between three and five years
- DUI school — You must complete a three (3) to nine (9) month alcohol or diversion program.
- License suspension — Your license may be suspended for six months. However, you could be allowed to keep driving without restrictions by installing an ignition interlock device (IID).
The court may also impose an incarceration of 48 hours to six (6) months in jail following your first DUI conviction. Nevertheless, the court can suspend your jail sentence as you complete your other sentencing terms.
Second DUI Penalties
A second conviction within ten (10) years after your initial DUI becomes a misdemeanor. Its penalties include the following:
- You will serve 96 hours to 12 months in county jail
- You will pay fines of $390 to $1,000 after court-related expenses
- Serving an informal probation for three to five years
- DUI school — You must complete an 18-month to 30-month court-approved program
- Your license may be suspended for two years, but you could continue driving for 12 months without restriction once you install an IID into your vehicle.
Third DUI Penalties
A 3rd DUI conviction within ten (10) years is also a California misdemeanor. The court can grant you informal probation of three to five years, along with these terms:
- You will pay fines of $390 to $1,000, which do not include court-related expenses, case assessments, or fees.
- You will spend 120 days to 12 months in county jail
- DUI school — You must complete a 30-month court-approved drug or alcohol program
- Your driver’s license will be suspended for three years. You can reinstate it by installing an IID into your vehicle for 24 months.
Following your third DUI conviction, the Department of Motor Vehicles will designate you as a habitual traffic offender (HBO) for three years.
Fourth DUI Penalties
A 4th DUI conviction within ten years is a wobbler. The prosecutor could file your charge either as a misdemeanor or a felony, depending on your case and criminal record.
The penalties for this conviction include the following:
- $390 to 1000 in fines, although associated fees and costs could add up to more than $10,000
- Incarceration — When convicted for a misdemeanor, you will serve 180 days to 12 months in jail. For a felony DUI, the sentence includes 16 months, 24 months, or 36 months in county jail.
- Your driver’s license can be suspended for four years. You can reinstate it by installing an IID in your vehicle for 36 months.
- The DMV will designate you as a habitual offender for three years.
If the prosecutor charges you with a fifth DUI within the past 10 years, you will face the same penalties as your fourth DUI. However, the judge will impose your incarceration on the higher end of the range.
Please note that there is no limit to the number of DUI crimes you can be charged with. However, the more convictions you face, the harsher the penalties you face.
DUI Aggravating Factors
Some factors could cause your DUI penalties to be more severe. Here are some of these aggravating factors:
- Driving with a BAC greater than .15 percent
- Refusing to take a chemical test
- Causing a car accident
- Driving at excessive speed
- DUI with a minor passenger
- Driving with an open container
Department of Motor Vehicles Administrative Hearing
Your DUI arrest triggers a DMV hearing and criminal proceedings. Criminal cases are easier for a defendant to win than DMV hearings. In criminal cases, the prosecutor has the burden to prove your guilt. On the other hand, in a DMV hearing, a defendant is presumed guilty after the state proves they have reasonable cause to believe you were drunk driving.
After arresting you for driving under the influence, the police will confiscate your driver’s license and issue you Form DS37.
Within ten days of your arrest, you should request a DMV hearing. After requesting the hearing, the Department of Motor Vehicles will issue you a thirty-day temporary driver’s license. If the hearing fails to take place within thirty days, the DMV will issue you a stay of suspension, where the temporary license will remain effective until the DMV conducts the hearing and makes the license decision.
A DMV officer will conduct the hearing.
The DMV has the burden of proof at the hearing to prove the arresting police officer had reasonable cause to think you were operating a car and your blood alcohol content was above 0.08 percent.
The DMV officer will consider evidence such as police reports, chemical test results, GPS records, eyewitness testimonies, and dashcam footage. You will be given a chance to challenge the DMV’s evidence.
Once the parties present evidence, the DMV officer will make a decision. If you win the case, the officer will set aside the order of suspension. However, if you lose the case, the officer will order a duration of driver’s license revocation or suspension.
If it is your first-time DUI offense, the DMV could suspend the driver’s license for four months. You can apply for a restricted driver’s license after thirty days of the suspension. A second DUI conviction carries a one-year suspension. Nevertheless, the DMV could allow you to drive anywhere during the suspension after you install an ignition interlock device.
Legal Defenses
Here are possible defenses to use when facing DUI charges:
Intoxication Signs Are Not the Same as Intoxication
Your appearance or behavior significantly influences your DUI investigations. The arresting officer could testify that you were drunk due to the following:
- Slurred speech
- Red or watery eyes
- Unsteady gait
- Breath tainted by alcohol odor
In your defense, your attorney can explain that these symptoms were due to
- A cold
- Allergies
- Fatigue
- Eye irritation
The above can cause red, watery eyes.
Poor Driving
You can use poor driving as a viable defense if your driving was bad or erratic, but you were not under the influence.
In DUI cases, the prosecution team will closely examine your driving behavior and pattern. They will call the arresting officer to testify that your manner of driving at the time was in line with someone who was operating a vehicle under the influence of alcohol or a controlled substance. Often, the driving pattern the prosecution refers to includes allegations that you were weaving or speeding in your lane.
Your lawyer can counter the prosecution team’s allegations by summoning the arresting officer to testify that you were driving appropriately and safely. The legal counsel can also elicit testimony from the arresting officer proving the following:
- Sober individuals commit most traffic breaches
- A person’s driving pattern is not a reliable indicator of driving under the influence
Inaccurate Field Sobriety Tests (FSTs)
The prosecution team, consisting of the police officer, criminalist, and prosecutor, relies heavily on FSTs. These professionals always assert that your performance on the FSTs was poor because you were under the influence.
Your attorney can counter the prosecution team’s claim by explaining how coordination and balance during these tests may be impacted by:
- Fatigue
- Nerves
- Flat feet
- Your clothing
Your attorney can also contest the accuracy of the field sobriety tests. It is widely believed that FSTs are accurate in predicting alcohol-related impairment 91% of the time. Nevertheless, that accuracy percentage assumes an arresting officer administered other DUI tests with adequate training and expertise in ideal test conditions.
In reality, the above-mentioned factors may vary significantly, making it a potential DUI defense to contest the accuracy of the FSTs’ results.
The Arresting Officer Failed to Conduct the Mandatory Observation
Law enforcement should monitor you for 15 minutes before administering a chemical test. Nevertheless, most instead handle paperwork or set up the breath-test machine.
Proving that the arresting officer did not adequately monitor you as required calls into question the test results and the whole DUI investigation.
The Officer Failed to Adhere to Title 17 Rules
California Title 17 governs the administration of DUI chemical tests, including breath, urine, and blood tests. Here are some of the requirements:
- The police should observe you for more than 15 minutes before administering the chemical test duration
- Routine maintenance and calibration of testing machines
- Appropriate collection, management, and storage of necessary samples
- The correct training of officers performing the chemical tests
Violations of Title 17 rules may taint chemical test results. If the officials fail to adhere to even a single regulation, it can jeopardize the whole DUI investigation.
Chemical Test Refusal
In California, driving means you have consented to blood alcohol level testing or testing for drugs when lawfully arrested for a DUI. The presumption of consent is referred to as implied consent.
It is illegal to drive with a Blood alcohol content (BAC) of 0.08% or more, even when not impaired.
Pre-Arrest Tests
After your traffic stop, but before your arrest, the police might require you to undergo a preliminary alcohol screening (PAS) breath test. There are no penalties for declining this breath test unless you are below 21 or serving probation for another DUI conviction.
Unfortunately, law enforcement hardly tells you that a preliminary test is optional. Still, the breath test is just an FST. The test helps the arresting officer determine whether to arrest you.
If you agree to the preliminary test, the arresting police officer could utilize the results against you in court. Therefore, the best move is not to agree to a PAS test unless you are on DUI probation or below 21.
Post-Arrest Blood and Breath Tests
Once the police arrest you, you cannot refuse a breath test without repercussions under California’s implied consent law, even if you had already taken a preliminary test.
Refusals Due to a Wrongful Arrest
You have no constitutional right to decline a post-arrest DUI test due to what you deem to be a wrongful arrest. Although if the judge rules that the police pulled you over illegally or your apprehension was unlawful, the court could dismiss the charges even when the test demonstrates you were drunk driving.
Choice of DUI Tests
Upon your arrest for presumed drunk driving, you should be allowed to choose between a blood test and a breath test. Note that, once you are arrested, requesting the administration of a blood test is better than blowing into any handheld DUI testing device. Blood tests offer better accuracy.
The police can only offer you a urine test if any of the following apply:
- There is suspected drug use, and you cannot undergo a blood test
- You have certain medical conditions
- The blood or breath tests, one or both, are not available.
Penalties and Legal Defenses for the Chemical Testing Refusal
If you are found guilty of DUI, you will lose your driver’s license and face enhanced consequences. The enhanced penalties are in addition to and consecutive to your primary DUI sentence, and they are as follows:
- A first DUI crime attracts forty-eight hours
- A second DUI crime within the lookback period carries an additional ninety-six hours
- A third DUI crime within the lookback period carries an additional ten days
- A fourth DUI crime within the lookback period carries an additional eighteen days
Some of the ways to beat your chemical test refusal case are as follows:
- You were illegally arrested
- The arresting police officer failed to advise you of the responsibility to agree to a chemical test.
- The refusal warning was misleading or confusing.
- You refused to take the chemical test due to a disease or serious injury unrelated to taking drugs or drinking alcohol.
Zero Tolerance Law
California’s Vehicle Code 23136 VC is the zero-tolerance law. It makes it illegal for any person under 21 to operate a vehicle with a BAC of 0.01% or more.
Even a small quantity of alcohol may increase your BAC very fast. In addition to alcoholic beverages, other possible alcohol sources can include the following:
- Mouth-numbing medicines
- Homeopathic medications
- Cold formulas and cough syrups
BAC for zero-tolerance cases is measured using a preliminary alcohol screening (PAS) test.
The test is administered by the roadside using a handheld device or similar breathalyzer.
For drivers 21 or older, undergoing a PAS test is optional. Drivers below 21 are assumed to have consented to a preliminary test if the police suspect them of drunk driving. Therefore, if at 21 or below, you are pulled over for an alleged drunk driving, and you decline to undergo a preliminary test, the Department of Motor Vehicles (DMV) can automatically suspend your license for 12 months. Also, if your driver’s license is under suspension for refusal to take a PAS test, you are not eligible for a restricted license in California.
Zero Tolerance Penalties
If you commit an underage DUI, you are guilty of a civil crime.
The punishment for violating this law is that the DMV can suspend or revoke your license.
If you had no license during the violation, you will be subject to a delay of 12 months when applying for one.
A citation for an underage DUI means the arresting officer can withdraw your driver’s license (if you have one) and transfer it to the Department of Motor Vehicles. Your license will be replaced by a temporary license, legally valid for thirty (30) days.
Upon the conclusion of 30 days, your driver’s license or revocation takes effect, but you can, within ten days of your citation, request a hearing to challenge your suspension.
You may also request a DMV hearing if your license was suspended because you refused to submit to a preliminary test or chemical test.
How You Can Secure a Restricted Hardship License After a Zero Tolerance DUI
Factors the DMV considers when determining your eligibility for a restricted license include:
- You agreed to a PAS test or its equivalent
- All available forms of transportation are inadequate according to the DMV’s assessment
- A vehicle could facilitate your school, work, family’s ailment, or business travels
Regardless of whether you qualify for a restricted hardship license following an underage DUI, you must complete a thirty-day suspension before it can be issued.
License Reinstatement
Here is how underage drivers may reinstate their license after the DMV’s revocation or suspension:
- Paying $100 to the Department of Motor Vehicles for a reissue
- Filing evidence proving financial responsibility
- Maintaining evidence proving financial responsibility for 3 years
Commercial DUI
A commercial DUI crime is operating a commercial vehicle with a BAC above 0.04 percent, regardless of whether you were driving safely.
The BAC limit is only applicable when you are operating a commercial vehicle.
If arrested for a commercial DUI, the law presumes you are guilty if the chemical test results show your BAC was above 0.04 percent within three hours of driving. You can challenge the presumption with evidence that there was police misconduct, you suffer from a disease that led to the high BAC reading, or the chemical test equipment was faulty.
If your first-time commercial DUI did not cause injuries, you will face the following potential penalties:
- Informal probation for up to five years
- Six months in jail
- A fine that does not exceed one thousand dollars
- A one-year suspension of the commercial driver’s license
A commercial DUI that causes injuries to another person is a wobbler (the prosecutor can charge it either as a felony or misdemeanor). If convicted of a misdemeanor, you will face the following:
- A year in jail
- Up to three years of your driver’s license suspension
- Pay a maximum fine of $5,000.
- Complete a thirty-month drug or alcohol education program
- Pay victim restitution.
A felony attracts the following penalties:
- Up to five thousand dollars in fine
- Thirty months in DUI school
- Being designated as a habitual traffic offender for three years
- Driver’s license revocation for five years
Find an Aggressive Defense Attorney Near Me
If you have been charged with DUI in Los Angeles, you have a lot at stake, from a criminal record to incarceration to paying fines. That is why you need a tenacious, experienced counsel like the Leah Legal Criminal Defense Attorney. We understand that this is a difficult moment for you, which is why we can guide you throughout the legal process and answer your questions. We can also aggressively fight for your rights and freedom. Please call us at 213-444-7818 to schedule your free case review.
