In California, DUI is defined by operating or driving a motor vehicle while impaired by some amount of alcohol, drugs, or a combination of both, or by operating or driving a motor vehicle when the blood alcohol content of the individual’s blood is higher than 0.08. As a lesser charge, DUI can be defined as a wet reckless, which is to operate a motor vehicle in a reckless manner when there is some measurable amount of alcohol in the individual’s system, as stated in California Vehicle Code, Section 23103.5.
An individual may be pulled over for a DUI if the officer observes any indication of impaired driving, but oftentimes, a driver will be stopped for committing a traffic law violation. Upon approaching the driver, the officer will perceive or observe some type of behavioral conduct which leads the officer to believe that the driver is operating the vehicle while impaired. These perceptions or observations include but are not limited to red or watery eyes, slurred speech, fumbling while retrieving the driver’s license, the odor of alcohol coming from inside the vehicle or from the driver, or stumbling or staggering upon exiting the vehicle.
The officer may request that the driver perform a series of field sobriety tests to further evaluate whether or not the driver is impaired. These tests include the horizontal gaze nystagmus test or vertical gaze nystagmus test, the walk-and-turn test, the hand path test, and the finger-to-nose test. The officer may also request that the driver consent to a preliminary alcohol screening (PAS) device test. The driver may choose to refuse any and all of these tests. If the officer decides that they believe the driver is impaired, then a DUI arrest will occur.
In most cases, the police officer will ask the driver to consent to a breath or blood test when they are on the way to the police station, or once they arrive at the station. The suspect will be informed of their right to choose either a breath, urine, or blood test; the driver must be given this option, because only urine and blood can be retained for future retesting. If the officer fails to give the suspect a choice, a motion may be brought to dismiss the case under a 1984 case called California v. Trombetta. California v. Trombetta (1984), 467 U.S. 47. A Trombetta motion is a motion to request that the court dismiss the case because the evidence that was gathered that would be helpful to the defendant was destroyed or mishandled.
A judge will make the decision of whether a Trombetta motion to dismiss is filed by considering a two-step process. The first step is to determine how favorable the missing evidence was to the defendant, and the second step is to determine whether the government acted in bad faith. If a judge finds that the missing evidence was not favorable, the judge can still grant the motion that the government acted in bad faith, which is defined as a government intentionally destroying or mishandling evidence.
When a person obtains their driver’s license, the law implies that the person must consent to give a blood or breath sample should they be requested to do so by a police officer. If they refuse, then their driver’s license or driving privileges can be suspended or revoked for one year on a first-time offense.
A person is not allowed to contact an attorney before deciding whether or not to take an evidential breath or blood test. This is because a person’s Sixth Amendment right to counsel attaches when formal judicial proceedings are initiated by way of an indictment, formal charges are brought on a complaint or a document called an “information” at arraignment or at a preliminary hearing. This is decided under the 1984 case, United States v. Gouveia (1984) 467 U.S. 180. The relevant language in the Sixth Amendment states that “In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” The 1964 case, Massiah v. United States (1964) 377 U.S. 201, held that it is a Sixth Amendment violation to question or attempt to question a suspect after arraignment without the presence or consent of that suspect’s attorney, so long as that suspect requested the appointment of counsel.
Questioning in a case that is not yet charged is not precluded by the Sixth Amendment according to United States v. Baez-Acuna case (1995) 54 F3d 634, a federal case out of the 10th Circuit. After a defendant’s Sixth Amendment right to counsel attaches, that defendant has a right to counsel at any stage of the prosecution, whether formal or informal, or in or out of court. Holloway v. Arkansas (1978) 435 U.S. 475. This right continues even if released from custody as long as that case against them exists.
But because the 6th amendment does not attach until formal proceeding is initiated by a formal charge, a preliminary hearing, information or arraignment, a DUI suspect cannot successfully invoke the right to advice of counsel before deciding on whether or not to take the evidential breath or blood test.
Upon refusal to provide law enforcement with a breath or blood sample during a DUI arrest, nothing will happen immediately to the defendant’s driver’s license; they will be given up to 10 days to challenge any accusation with the DMV. If a driver refuses to give a blood or breath sample, law enforcement can obtain what is called the McNeely warrant, which is a search warrant to forcibly, within reason, obtain a sample of blood. This warrant is usually obtained within one or two hours of the driver’s refusal to give a blood or breath sample. The hard copy of the driver’s license is usually taken from the driver unless he or she doesn’t have it on his or her person or it’s an out-of-state license. The person will be issued a temporary driver’s license that is valid for 30 days to allow for the hearing to be set to challenge the pending suspension or revocation.
There are enhancements that may be charged in addition to a DUI charge. The prosecutor will be looking at a suspect’s driving record to determine whether there are prior DUI convictions within the last 10 years; if there are, mandatory minimum sentences will apply. The prosecutor will also be paying close attention to the blood alcohol level. If the level of the blood alcohol content is 0.15 or higher, then they will add an excessive blood alcohol enhancement. While that enhancement does not carry any specific additional jail time, it is a fact that the judge will consider in determining the amount of jail time that will be imposed. If the blood alcohol level (BAC) is 0.20 or above, the DUI school requirement will be increased from a three-month course to a nine-month course.
The refusal to provide a chemical sample also carries additional penalties. The first DUI offense refusal will result in a one-year driver’s license suspension. A second DUI offense refusal will result in a two-year driver’s license suspension and a third DUI offense refusal will result in a three-year driver’s license suspension.
A commercial driver’s license could be suspended for one year or even permanently after a refusal, which is stated in the California Vehicle Code, Section 15300(a)(1) and 1530(a)(2). If a minor is in the vehicle while a DUI arrest is conducted, a first-time DUI may be turned from a misdemeanor with a maximum of 180 days in jail, to a felony child endangerment case by filing a felony 273a(a) of the Penal Code, which is punishable by either two, four, or six years in prison. If the prosecutor is feeling lenient, they may just file an enhancement to a misdemeanor DUI charge instead of a separate felony charge of child endangerment.
If there is an accident causing injury as a result of the DUI, it will likely be filed as a felony under California Vehicle Code 23153, which is punishable by one, two, or three years; an additional one-year sentence may be charged for each additional victim, and the sentences may run consecutively. The court may also order one-year suspension or delay of issuance of license except in critical needs to a defendant who is under 21. Excessive speed defined as over 30 miles or more per hour on the freeway or over 20 miles or more per hour on any other street or highway will be charged as reckless driving under California Vehicle Code Section 23103.
For a first-time DUI offense, the minimum jail sentence is 48 hours and the maximum is six months. The minimum fine is $390 and the maximum is $1,000, plus any fees and penalty assessments, which can possibly raise the fine by a factor of four. The driver’s license will also be suspended by the DMV for a minimum of six months or until the driver attends and passes a three-month or nine-month treatment program, depending upon the blood alcohol level.
For a second-time DUI offense within 10 years, the minimum jail sentence is 96 hours and the maximum is one year, but the fines are the same as they are for first-time DUIs. A two-year license suspension and required participation in an 18-month treatment program will also apply to a second-time DUI offense. In many cases, a driver will be allowed to obtain a restricted license after 12 months in the treatment program.
A third-time DUI offense within 10 years carries a minimum jail sentence of 120 days and a maximum of one year, but the fines are the same as they are for first-time DUIs. An 18-month or 30-month treatment program will also be required.
A fourth or subsequent offense becomes a felony and may be punishable by imprisonment in the state prison for 16 months, two years, or three years. The fourth offense may be served locally but subsequent offenses may be served in the state prison. Fines and assessments are the same as above. There will also be a four-year license suspension or revocation, and an 18-month treatment program. All of the above apply when probation is granted.
A diversion is not normally available unless the driver is presently or formerly a member of the military and meets other specific criteria. Sentencing alternatives vary by county but normally include the ability to serve the time through some type of alternative sentencing scheme, which may include performing community service for the length of the sentence. In Kings County, it’s usually when the sentence is no longer than 60 days. Often, it can be argued to the court that in lieu of jail time, the defendant should be allowed to wear an ankle monitor that detects the presence of drugs or alcohol in the defendant’s system. Since the court’s primary concern is for public safety, this alternative sentence is sometimes granted.
For more information on DUI, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (559) 500-3557 today.