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DUI and Drunk Driving Arrest Frequently Asked Questions
DUI charges are the most common criminal charges filed against individuals in the State of California (not including simple traffic tickets, which are technically "criminal" violations). Even for a first offense, the penalties can be serious-including license suspension, fines of almost $2,000, mandatory attendance at State or DMV Approved alcohol programs, and potential jail time. In addition, a DUI conviction stays on your DMV record for at least 7 years, and may result in higher insurance premiums. Furthermore, you may become ineligible for credit, and even lose your employment. If you have prior convictions, stopped for speeding, or had an accident while driving under the influence, the penalties may be far worse.
"Don't ever plead guilty to a DUI without at least consulting an attorney first - there are too many defenses to just plead guilty." Police Sergeant Jack Anderson, Garden Grove Police Department, in speaking to traffic offenders at Orange County Superior Court, Harbor Justice Center, Newport Beach.
The information on this page is specific to California. If you are in another state, your laws may differ, and we invite you to consult our DUI Attorney Directory for attorneys outside of California.
| 1. |
The Law: What are California's Drunk Driving Laws? |
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| 2. |
Is a DUI a felony or a misdemeanor charge? |
Answer |
| 3. |
The Punishment: What is the punishment for a DUI? |
Answer |
| 4. |
The DMV - What Happens to My License? |
Answer |
| 5. |
What are the effects of a DUI conviction on Commercial Licenses or Drivers? |
Answer |
| 6. |
What are the rules regarding a DUI conviction or FAA rules as to Airline Pilots? |
Answer |
| 7. |
What defenses are there in drunk driving or DUI cases? |
Answer |
| 8. |
What if the police didn't read me my rights in a DUI case? |
Answer |
| 9. |
Should I just show up and plead guilty? |
Answer |
| 10. |
Can I get at Public Defender for free? |
Answer |
| 11. |
What can an attorney do for me? |
Answer |
| 12. |
Will I pay an attorney and end up losing or paying anyway? |
Answer |
| 13. |
How do I know I'm getting the best attorney? |
Answer |
| 14. |
Why should I hire your firm? |
Answer |
| 1. |
The Law: What are California's Drunk Driving Laws?
The California Vehicle Code, specifically, VC section 23152(a) and 23152(b), sets the law on DUI cases, and states as follows:
VC 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
The two sections above are typically charged together. The first has to do with your ability to safely operate a motor vehicle, irregardless of your blood alcohol level. The second, or (b) count, requires that you have a .08% blood alcohol content, or BAC, by weight, California's "legal limit". The term "alcoholic beverage and drug" or "alcoholic beverage or drug" in the (a), or first count, does not mean that you were driving with drugs in your system, but that either alcohol or drugs, or both, were found at the time of driving, not that you in fact did have both in your system.
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| 2. |
Is a DUI a felony or a misdemeanor charge?
Most DUIs are misdemeanors. (California has three levels of criminal prosecution - infractions, like speeding tickets, misdemeanors, for which the maximum penalty is one year in jail, and felonies, for which the potential maximum penalty is more than one year, meaning state prison time). For anything higher than a third time DUI charge, the law allows prosecution as a felony, at the discretion of the District Attorney. If there is an accident with bodily injury to anyone other than the driver while drunk driving or DUI, Vehicle Code section 23153 applies, as a felony. That section states:
23153. (a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the
driver.
(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
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| 3. |
The Punishment: What is the punishment for a DUI?
Typically, each court has a different policy and procedure for DUI arraignments. You truly should talk to someone that knows the local court where your matter is pending. In general, the maximum penalties for a First Time DUI, below .20% blood alcohol level, no accident, misdemeanor, drunk driving case includes all of the following:
- Informal, or summary, probation for three to five years;
- Six months in the county jail;
- Six months license suspension;
- A fine of $1,000 plus penalty assessment, or a total of $2,710, (the minimum is $390 plus penalty assessment); (The "penalty assessment" is a state tax created by statute in the late 1960s, and is now larger than the fine. Currently, the penalty assessment is 171% of the fine, meaning that on a $100 fine, the total payment is $271 - almost triple the original fine. Current legislation pending will increase the penalty assessment).
- Contribution of $100 to the California State Restitution Fund;
- Proof of enrollment in, and proof of completion at, a Level 1, or AB-541 Alcohol Education Program;
- An "Alcohol Abuse Prevention" fee of $50.00
- A "Blood Alcohol Content" testing fee of $37.00
- A $20.00 Court Security Fee
In addition, there are additional penalties for being above a .20, being involved in an accident, or having a child in the vehicle.
Second time DUI:
The potential maximum, and all other penalties increase, in addition to all of the above, to one year in the county jail, having your car impounded for 30 days, an 18 months license suspension, part of which can be restricted if you participate in an 18 month alcohol abuse treatment program. The minimum includes 10 days in jail.
Third or Fourth time DUI:
The potential maximum and all other penalties increase, in addition to all of the above, to a mandatory license revocation for up to 4 years by the DMV. Even after the revocation, you still cannot get a license until you've completed a 30 month long alcohol treatment program. As mentioned above, a fourth or higher DUI can be prosecuted as a felony, and the minimum of 120 days for third offenses, or 180 days for fourth offenses, up to the maximum of 16 months in state prison, or the maximum of 3 years, applies to felonies.
Failure to do ANY of the above terms of your sentence is a probation violation.
What are the COSTS of a drunk driving case?
In addition to the court's punishment, the financial cost of a DUI charge can be staggering. The information below is provided on the Auto Club's website as a community service from the Auto Club and is part of their ongoing awareness program as to drinking and driving. It is reprinted here with the permission of the AAA/Auto Club of Southern California:
| Fines (minimum) |
$390 |
| Penalties (minimum) |
$663 |
| Tow/Impound Fee |
$150 |
| Alcohol Education Class |
$375 |
| Auto Insurance Increase* |
$6,600 |
| Restitution Fund |
$100 |
| Attorney and Legal Fees (fees will vary) |
$2,500 |
| Total |
$10,878 |
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*insurance increase is $2,200 annually for three years, based on an average premium increase for a motorist with 9 to 13 years driving experience |
Costs above do not include:
- Value of lost work time and wages
- Medical costs
- Vehicle property damage
- Cost of ignition interlock device if required by judge.
For more information on fees see AAA
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| 4. |
The DMV - What Happens to My License?
We maintain a separate page for DMV advice and information.
Note that for DUI cases, a request for a D.M.V. hearing must be made within 10 days of the arrest.. If there is no request made within 10 days, the driver's license will be suspended/revoked 30 days from the date of arrest, and suspended for a four month period of time. The length of time of the suspension will depend upon how many DUI convictions the arrestee has suffered in the preceding seven years. Certain actions, such as refusal to submit to a blood test or breath test, can cause your license to automatically be suspended for one year, or longer if priors exist.
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| 5. |
What are the effects of a DUI conviction on Commercial Licenses or Drivers?
Those with commercial vehicle licenses have a different standard of .04% BAC, whether felony or misdemeanor. The DMV action against Commercial Drivers is also more severe.
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| 6. |
What are the rules regarding a DUI conviction or FAA rules as to Airline Pilots?
Commercial Pilots (including ATP license holders) who are convicted (not simply arrested for) DUI/DWI must report that conviction on his or her medical application at time of renewal. He or she must also notify the FAA Civil Security Division, at the following address ONLY:
FAA, Civil Action Security Division (AMC-700), P.O.
Box 25810, Oklahoma City, OK 73125
not later than 60 days after the motor vehicle action. Contacting the local FAA FSDO, or the disclosure on the medical certificate, is not compliance under the rule. A pilot must also report any action taken on his driver's license that emanated from the drunk driving arrest, i.e., a suspension for either failing the breath/blood test or for refusing a breath/blood test. This report, too, is made to the FAA Oklahoma Office Civil Security Division and must be made within 60 days of the suspension. In cases where a pilot suffers both a DUI/DWI conviction as well as an administrative license suspension that arose out of the same factual circumstances, he must timely report both of them to the Security Division or face a non-reporting violation. (Note, however, that only one of the two reports can be used for suspension/revocation purposes under FAR 61.15 (d), i.e., the FAA needs 2 separate incidents within a 3 year period to deny an application or suspend/revoke a pilot license.
We have a former pilot on staff and can help you through this maze and protect your license. The Aircraft Owners and Pilots Association (AOPA), also has a pilot assistance hotline for members at 1-800-USA-AOPA (1-800-872-2572) and a web site with more information (AOPA).
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| 7. |
What defenses are there in drunk driving or DUI cases?
DUI defenses in any given drunk driving case are almost too much to mention due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
- Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
- Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
- Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may affect admissibility of the test results, as well as the license suspension imposed by the motor vehicle department.
- "Under the influence". The officer's observations and opinions as to intoxication can be questioned, the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.
- Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100- to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
- Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
- Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
- License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.
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| 8. |
What if the police didn't read me my rights in a DUI case?
The police have to read you your Miranda rights if they intend to question you after you are in custody. If they don't do that after your arrest and before questioning you, evidence the police obtained from your statements and the statements themselves might be excluded at trial. Although most DUI cases are based upon scientific evidence, such as a breath or blood test, a skilled DUI defense attorney can determine whether a motion to exclude evidence is warranted in your case.
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| 9. |
Should I just show up and plead guilty?
You certainly could. However, because the judge is not the one prosecuting you, he or she cannot change, reduce lower, or dismiss the DUI charges only offer you, at best, the minimum punishment. You may have defenses that could make a big difference in your drunk driving case - but you would never know if you pled guilty. (And you may kick yourself later while attending classes, paying fees, and reviewing your insurance bill, for not fighting your DUI when you could have).
Also consider this — If you plead guilty:
- You will have a criminal record for the rest of your life if you do nothing.
- Your driving record will contain a DUI record and increased points for the rest of your life (which cannot be expunged), and will affect you.
- Under Federal and California laws, becoming a teacher, a police officer, an attorney, or a government employee may be next to impossible if you get a conviction for drunk driving.
- You will automatically lose your full driving privileges for at least four months from the DMV and the court. If you're like most Southern California, that will have a devastating impact on your job and on your family. If you get caught driving while suspended you will go to jail and your car will be impounded.
- Your car insurance rates will increase many times over, and you may be cancelled if your rates don't rise out of sight.
- You may suffer immigration consequences if you are not a United States citizen.
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| 10. |
Can I get at Public Defender for free?
A Public Defender is legally qualified to defend you, but you must qualify for their services. In order to receive the services of the Public Defender, you must fill out a form for the court which lists all your income and assets. The judge then evaluates your financial statement and decides if you are indigent, and should be appointed a Public Defender. If you earn income that is not WIC, welfare, or other government benefits, you may be required to get a private attorney.
There are also several potential disadvantages to using a Public Defender.
- Public Defenders typically have anywhere from 35 to 50 cases per day, so it is almost impossible to give the personal attention and counseling time that a private attorney does. As a result, your case cannot receiving the full attention you deserves.
- Because of the heavy caseload, there is an incentive for you "just to plead guilty", and get the case taken off their plate, and not deal with it.
- You cannot have the attorney show up for you if you have a public defender, because they want you in court at each appearance.
- You cannot choose the public defender you get, and you may get a different one every time you show up to court.
- In most courts, your Public Defender may never have even met or talked with you before you must appear in court together. If you have questions and concerns before your court date, you may not have the opportunity to get them answered.
- You may find a lack of experience. Misdemeanor cases, including DUI, are often used as a "training ground" for new lawyers, and many new Public Defenders get their first real court experience on your type of case.
- Public Defenders cannot represent you at the DMV. The law does not provide for a free, appointed lawyer at the DMV.
Even if you qualify, the judge can order you to pay back the entire value of the public defender services at the end of the case - hardly free. With the states and counties in a budget crisis, this is becoming more common.
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| 11. |
What can an attorney do for me?
A good lawyer can do everything possible to protect you, fight for you, and minimize the impact of this case on you in all areas of your life. You should at least consult with an experienced criminal defense lawyer, someone that has experience representing people accused of drunk driving or DUI. Drunk Driving defenses can be extremely complex and require extensive knowledge of chemical scientific testing, field sobriety testing, and DUI police procedures. The police often make mistakes in conducting their investigation and in your arrest, but it's the complex nature of DUI cases that lead to defenses. Only a lawyer experienced in this area will know how to make the complex nature of a DUI case into drunk driving defenses, and more important, what to do about it.
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| 12. |
Will I pay an attorney and end up losing or paying anyway?
You shouldn't believe that a conviction will always happen, because you can win. Drunk driving cases are complicated, but not impossible to win. Because Dui cases are criminal defense matters, you need an attorney familiar with criminal law, and your rights under the Constitution. First, an attorney must review whether the police had a right to stop you under the Fourth Amendment to the US Constitution, and California Law. Next, the police must prove that they had probable cause to believe that you were operating under the influence of alcohol, or drugs. Finally, they have to prove that the breathalyzer was in proper working order, maintained and calibrated according to law, that the test was given by a properly trained officer, and that you took two tests within 15 minutes of each other, that were within .01 of each other, and were within 3 hours of your driving. As you can see, this is complicated - which means that you can win. An attorney with experience will leave no stone unturned and do a full factual and legal review of each of your defenses. Contrast that to just pleading guilty, which can happen very quickly, the effects on your life from having a criminal conviction, having your license suspended, and suffering classes, insurance increases, and other costs, will continue for years, sometimes for life, and you will always wonder what would have happened had you hired a good attorney to protect you.
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| 13. |
How do I know I'm getting the best attorney?
Finding and choosing a DUI lawyer in a California drunk driving case can be a difficult process. Consider that DUI defense is a technical and highly specialized field and ask the following questions:
- Does the lawyer handle drinking and driving cases?
- Does the lawyer have access to technical expert witnesses in police procedures and blood/breath analysis? Will blood samples be reanalyzed by a lab?
- Does the attorney make promises as to the results he can get in the case? This is something no ethical attorney would do, as specific results are unpredictable.
- Are fees fully explained and set forth in a written contract? Is the fee simply an initial retainer, or is it all inclusive? Do the fees cover such "extras" as the DMV license hearing, expert testimony, blood reanalysis, trial, subpoena costs, etc.?
- Have there been any State Bar complaints or actions of discipline against the attorney? (You can check at the State Bar website)
- Is the lawyer a member of the National College for DUI Defense? Is he a member of the California DUI (Deuce) Defenders?
- Will the attorney, or the attorney's firm handle the case, or are you being sent to another firm for handling for a fee?
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| 14. |
Why should I hire your firm?
Here are five reasons:
- Experience: With over 15 years of combined experience, our firm has substantial trial experience and a commitment to providing premium DUI representation.
- Knowledge: We know the local courts, the judges, and the prosecutors, as well as the procedures, where your case is pending. We also regularly attend state and national meetings of other DUI defenders in order to share ideas and scientific knowledge. Put this expertise to work for you.
- Personalized Service: Our offices are staffed with legal professionals dedicated to serving our clients' legal needs. We take pride in knowing our clients personally and even make it a point to assist you with other problems related to your case. Since you're the most important person in our office, we listen carefully to what you have to say.
- Accessibility: You'll always be able to talk to an attorney in person, via phone, or through email. From your first call to the resolution of your case or jury verdict, you'll have an experienced attorney working on your file along with our experienced staff of legal professionals.
- Reasonable fees: We are not out to charge the highest fees we can. We listen to clients and other attorneys, and make our fees reasonable, so that you can obtain value from high qualify service at a more competetive price than most law firms at our skill level.
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