"Each of us is more than the worst thing we’ve ever done."
- Bryan Stevenson
DUI Attorney in San Francisco
Driving Under the Influence (“DUI”)
• What Qualifies as DUI
“DUI” is used as a catch-all term for a number of different criminal offenses. California Vehicle Code section 23152 is the main DUI law in our state. Most people think of a DUI as driving “over the limit”—the limit being 0.08% blood alcohol content in California. But that is only part of the story.
The second part of section 23152 does indeed make it a crime to drive if you have a blood alcohol level of 0.08 per cent or more. But the first part also makes it a crime to drive “under the influence of any alcoholic beverage,” regardless of what your blood alcohol level is. In short, even if you are under the limit, you could still be guilty of DUI if you are “under the influence” of alcohol. This begs the question––what qualifies as being under the influence of alcohol?
This is where things get murky. California courts have defined “under the influence” as when “the liquor or liquor and drug(s) . . . have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.” (People v. McNeal (2009), 46 Cal. 4th 1183, 1192-93 quoting Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058).
In layman’s terms, this means that, even if you are under the limit, if you are not driving like a sober person ordinarily would, you may still be guilty of DUI.
In addition to the two general categories of DUI discussed above, there are also special DUI laws for drivers under 21 years old, commercial drivers, those with previous DUI convictions, those whose DUI offense results in injury or death, those who refuse a chemical test after arrest, and for DUIs involving drugs or a combination of drugs and alcohol.
For example, it is unlawful for anyone under the age of 21to drive with a blood alcohol level greater than 0.01 per cent, or for a commercial driver driving a commercial vehicle, to drive with a blood alcohol level greater than 0.04 per cent.
• Components of DUI Investigation/Arrest
DUI investigations and arrests often unfold in a predictable way. An investigation usually begins when police first encounter your vehicle. This may be because an officer was driving on routine patrol and happens to see your car weaving between lanes or committing some other traffic offense, such as speeding, failing to signal before changing lanes, or even just having a broken taillight. It may also be because you got into an accident and police were called to the scene to assist, or because another driver was concerned about your driving and called police to report a possible drunk driver.
However the encounter happens, the police must have at least reasonable suspicion that you are doing something illegal to detain you. You get “detained”—not free to leave—once the police pull you over. This is NOT the same as an arrest. It is a “temporary detention” where the officers are allowed to conduct a short investigation to determine if you are under the influence or not.
The beginning of the encounter usually resembles a traffic stop. Some good tips to remember to protect yourself: always be polite to the officer, even if you feel you are being wrongly detained (though this does NOT mean agree to everything you are being asked to do, as we will discuss below); keep your hands visible on the steering wheel as the officer approaches; when asked to present your driver’s license, insurance card, or registration, advise the officer that you will be reaching into your purse, glove compartment, etc. to retrieve it; keep your movements slow and deliberate; do not offer information or make conversation with the officer.
Once you are detained, the police then often look for signs that you are intoxicated. The most common are red, watery eyes, an odor of alcohol coming from you or your vehicle, slurred speech, and unsteadiness on your feet. Officers will also typically ask you questions, such as if you drank alcohol, how much, and at what time. As you are probably aware from decades of film and television: you have the right to remain silent. You are under no legal obligation to answer questions and anything you say can be used against you, including any denials of wrongdoing. It is best to avoid answering any questions that may incriminate yourself. A simple and polite “Officer, I am exercising my right to remain silent at this time” should suffice. However, you must still present your license, registration, and insurance information when asked.
- Field Sobriety Tests
Officers may then decide to do a series of field sobriety tests. You can and should refuse to do these tests. You are not required to complete these tests by law and an officer can almost always find something wrong with how you perform them, making it virtually impossible to “pass” these tests. There are an endless number of non-standardized tests that officers administer that have no basis in science whatsoever (the alphabet test, balance test, finger-to-nose test, finger tap test, numbers backwards test – just to name a few.) There are only a handful of tests that are standardized by the federal government. These include the horizontal gaze nystagmus test (where an officer looks at the movement of your eyes), the walk-and-turn test, and the one-leg-stand test. However, even with the standardized tests, there are many things other than alcohol that may make it hard for you to complete such tests successfully—previous injuries, certain medical conditions, lack of sleep, anxiety, stress, caffeine intake, age, to name a few—and the officers administering the tests are looking at any errors, no matter how minor, as evidence of intoxication.
Therefore, when asked to complete a field sobriety test—often not phrased as a choice but rather, “I’m going to have you stand here and do a test for me”—you can respond, calmly and politely, with “Officer, I am going to decline to perform any field sobriety tests.”
- Roadside Breath Test (Preliminary Alcohol Screening Test)
Officers may then ask you to do a roadside breath test called a Preliminary Alcohol Screening (“PAS”) test. This is done using a handheld breathalyzer device. You are not required by law to complete this roadside test and may refuse to do so. This is different than a breath test after arrest that is usually completed at the police station, jail, or other facility. This test is used to determine what your blood alcohol content is. It requires forcefully blowing into the testing device and waiting for a numerical result. This test is usually administered at least twice. If you have ANY alcohol in your system, even if it has been a few hours and you feel perfectly sober, you should decline to do this test.
After this investigation, if the officer believes that you were driving while under the influence of alcohol, you will be arrested. This usually involves having handcuffs put on and being placed in the back of a patrol car. If you do not have someone on scene who can legally and safely drive your car, your car will either be parked on the street or towed. Your car may be searched, especially if the officer believes there may be evidence of a crime in your car, such as drugs, opened bottles of alcohol, or weapons. You will then be transported to either the police station, jail, or a medical facility.
- Chemical Test (Breath or Blood)
Once arrested, you are required by law to complete either a breath or a blood test. While you may think it is a good idea to refuse this test, it is usually not. Refusing to complete a chemical test (breath or blood) after arrest will almost certainly result in a license suspension of 1-3 years. At this time, the officer is supposed to tell you that you must complete a chemical test and the consequences for refusing.
Most of the time, it is your choice whether to do a blood test or a breath test. There are some exceptions. If an officer thinks you are under the influence of drugs, he or she may require you to do a blood test. If one or the other test is not available for some reason, you may also be required to do the remaining test. Both breath and blood tests are usually done at the police station, jail, or medical facility. Both tests have advantages and disadvantages. Breath tests are less invasive, not painful, and quicker. However, breath tests do not retain a sample of your breath for later testing and there are fewer ways to challenge a breath test result in court later. Blood tests, while more accurate and sometimes easier to challenge in court, are painful, invasive, and open you up to the possibility of infection, however slight. When you take a blood test, the sample is sent to a laboratory for testing, which may take several weeks or even months to complete. The laboratory is also required to keep a sample of the blood so that you or your lawyer can have it retested by an independent laboratory at a later date.
If you refuse to do a chemical test, the police will usually get a warrant, signed by a judge, saying that they are allowed to take your blood by force. The warrant process generally happens very quickly, as there is always a judge on call available to sign a warrant. Once the warrant is authorized, the police will have someone draw your blood with or without your consent.
- Booking or Release
After your chemical test is complete, you will most likely be either released right away or booked into the county jail overnight and released the next day. In these cases, you will be given a citation telling you when to appear in court—usually a month or two in the future. Do not lose this citation and make sure to mark your court date in your calendar.
In some cases, you will be held in jail until your court date, which must be within 3 days of your arrest. You may be held in jail for a number of reasons, such as you have a warrant from another case or from immigration authorities, you have a significant criminal history, or your case is more serious than most (i.e. it involves injury/death, or it is not your first DUI.)
• Court vs. DMV Proceedings
When you are arrested for DUI, there are generally two separate proceedings that start – criminal proceedings in the county where the DUI happened and administrative proceedings through the Department of Motor Vehicles (“DMV.”)These two processes happen simultaneously and usually have little to do with each other. For example, your criminal case can be dismissed, but the DMV can still impose a suspension (with some exceptions) or the DMV case can get dismissed but the criminal case continues. The more serious of these two proceedings is the criminal one.
- Criminal Proceedings
If you have never gone through a criminal case, the whole process can seem complicated and scary.The good news is that most (though not all) DUI cases are misdemeanors. Misdemeanors are the less severe category of criminal offenses, compared to felonies. However, a DUI may be charged as a felony if someone is seriously injured or killed, if you have a prior felony DUI, or if you have three prior DUIs within the last 10 years.
In any criminal case, you have a constitutional right to have a lawyer represent you. If you cannot afford to pay for a lawyer yourself, the court will appoint one for you for free. You should never attempt to represent yourself in a criminal case.
The first step in any criminal case is called an arraignment. It is your first court date. At arraignment, you will enter a plea to the charges against you(usually “not guilty”) and the judge will decide if you should be allowed to stay out of jail while the case is pending with no bail at all, some bail, or some other restrictions. While the judge will usually let you remain out of jail with no bail and no conditions, sometimes the judge will ask that you pay bail, attend 12-step meetings such as Alcoholics Anonymous, attend an intensive treatment program, wear an alcohol-monitoring device, or regularly check in with a court-based program. This generally depends on your own criminal history and the particular facts of your case.
Additionally, at arraignment your lawyer will receive copies of the police report and other documents relevant to your case. These disclosures are called discovery. The discovery process is crucial as discovery informs you and your lawyer of the evidence against you.
- Pretrial proceedings
Following arraignment, pretrial conferences are held where negotiations occur, discovery issues are settled, motions may be heard, and schedules are set for future proceedings. During this time your lawyer will negotiate with the prosecution to try and arrange the best resolution of your case under the circumstances, and, if relevant, file motions to challenge evidence or certain practices by the prosecution or police.
Most DUI cases resolve through a negotiated plea deal. This happens when you, the prosecution, and the judge all agree to a particular conviction and sentence. For example, you might agree to plead “guilty” or “no contest” to driving under the influence in exchange for a term of probation instead of jail time. There is no standard plea deal that you can expect for all DUI cases. Any negotiated plea deal depends heavily on the specific facts of your case and other factors specific to you.
If you agree to a plea deal, you can accept the deal in court in front of the judge and your case will be complete. Sometimes you will have more court dates after that so the court can make sure you are doing the things you agreed to do as part of the deal, such as attend DUI class, do community service, pay restitution to any victims, install a breathalyzer device in your car, or participate in an alcohol treatment program.
Once you agree to do certain things as part of a plea deal (for example, remain on probation for a number of years, attend DUI classes, or pay restitution), it is your responsibility to do them. If you do not, you can be brought back to court for violating your probation and face more severe consequences.
If you, the prosecutor, and the judge cannot agree on a resolution, your case may proceed to trial. You have a constitutional right to a trial if you want one and no one—not even the judge—can force you to take a plea deal that you do not want to take. If you do not agree to a plea deal (or if the prosecutor does not offer one), your case will be set for trial.
Most trials, especially DUI trials, are far less exciting than they appear on television. A typical misdemeanor DUI trial will usually last a few days to a couple of weeks. During the first phase of a trial, your lawyer, the prosecutor, and the judge make decisions about what evidence is allowed to be presented at trial. After that comes jury selection, where the lawyers and the judge are tasked with picking 12 fair and impartial jurors from a large jury pool. After opening statements, it is the prosecutor’s turn to make their case. The prosecution has the burden of proving your guilt on each and every charge beyond a reasonable doubt. During the prosecution’s case, your lawyer will have a chance to question each witness. After the prosecution’s case is presented, you have a turn to present evidence in your defense, if you wish. If you want to testify, this is your opportunity to do so. After the defense’s case, the prosecution has one last shot to respond to anything presented by the defense. When that is done, both sides give their closing arguments and the case is handed off to the jury to decide if you are guilty or not guilty.
If you are found not guilty on all charges, you are acquitted. No criminal conviction goes on your record as a result of this case and you will not have to serve any sentence. If, on the other hand, the jury finds you guilty on all or some of the charges, you will be convicted. It is then up to the judge to decide the appropriate sentence.
- Punishments for DUI
For a first DUI offense (meaning you have no previous DUI convictions within the last 10 years), the punishment can range from 2 days to 6 months in the county jail, fines ranging from $390 to over a $1000 (not including additional “assessments”); suspension of your driver’s license for up to 6 months; participation in a 3-, 6-, or 9-month driving under the influence program; and 3 years of informal probation.
For a second or third DUI conviction within the last 10 years, the punishment can include 4days to 1year in the county jail, fines ranging from $390 to over a $1000 (not including additional fees and assessments),a license suspension of 2 to 3 years, participation in an 18- or 30-month DUI program, and probation, either formal or informal.
A felony DUI carries more severe punishment, including potentially years in state prison.
- DMV Proceedings
While DMV administrative proceedings may not carry the same risk of jail and criminal conviction, they can still have a significant impact on your life. The DMV may suspend or revoke your license, require you to install a breathalyzer device in your car, require you to attend DUI classes, and impose fees before you can get your license back. For many of us in California who rely on our cars to get where we are going, these penalties can make life very challenging.
- Beginning a DMV Proceeding
The most important thing to remember about DMV proceedings is that, after you are arrested for a DUI, you have 10 days to call the DMV and request an APS (“Administrative Per Se”) hearing. If you do not do this within 10 days, your license will be automatically suspended and you will have given up your right to challenge the suspension at a hearing. The quickest way to request a hearing is to call the DMV Driver Safety Office in or near the county where you were arrested. You can find a list of DMV Driver Safety Offices here. Have your driver’s license number handy when you call.
Once you have requested a hearing, your license will usually remain valid until the hearing is complete and a decision is rendered. This is called a stay of your license suspension. This means that you can drive as you normally would while the case is pending, so long as your license is otherwise valid.
- APS Hearing
An Administrative Per Se (“APS”) hearing is your chance to show the DMV hearing officer why your license should not be suspended. An APS hearing is separate from the criminal proceedings that arise from an arrest for DUI. Also, unlike in criminal court, you do not have a right to have an appointed attorney. However, you may hire a private attorney to represent you at this hearing and we highly recommend that you do so. Having an experienced lawyer at this proceeding is critical to protect your rights and privileges. An experienced lawyer will know which questions to ask, issues to contest, and which experts may be necessary to help you receive a positive outcome.
- License Suspension
After your hearing, the hearing officer will mail you and your lawyer a decision about your license within 2-3 weeks. If the hearing officer decides not to suspend your license, you may continue to drive as you normally would, without restriction. If the hearing officer decides to impose the APS suspension, your license will be suspended. For most cases, the license suspension will last for 4-6 months. However, suspensions for drivers under 21 years old, people found to have refused to take a chemical test, and people with prior DUI suspensions can face suspensions of a year or more.
For the standard 4-6-month suspension for first DUIs (not including refusals and persons under 21), you are usually eligible to get a restricted license for all or part of the suspension period. There are different types of restricted licenses available with different requirements. Your lawyer can help you decide which, if any, restricted license option works best for you.
Once you complete your suspension period, your license will become fully valid again and you can drive as you normally would, assuming you have no other matters affecting your license (such as unpaid traffic tickets, for example.) However, the record of the suspension will remain on your driving record for 10 years. Every subsequent DUI you get within 10 years will carry a longer license suspension period, in addition to possible criminal consequences.
• The Importance of Good Legal Representation
Navigating through this complicated area of law requires the skills of an experienced criminal defense lawyer familiar with DUI law to assist you. It is essential that you have good legal representation in both criminal court and at the DMV. Your freedom, livelihood, financial stability, and ability to drive are at stake. A good attorney can advocate on your behalf and help get you the best outcome under the circumstances of your case.
The Law Offices of Marsanne Weese has handled hundreds of DUI cases in all Bay Area and surrounding counties. Our lead attorney, Marsanne Weese, started her career as a District Attorney, giving her the unique experience of understanding and practicing this field of law from both sides. Additionally, Marsanne has a reputation as one of the leading DUI and traffic defense lawyers in the state. Marsanne has been the key speaker at numerous DUI and traffic symposiums around California. Her associate, Rose Mishaan, has 10 years of experience as a criminal defense attorney, and has had a particular focus on DUI and traffic law for over 8 years. By retaining our firm as your legal representative, this wealth of knowledge, skill, and unique insight into the legal process will be used to help ensure the best outcome for your criminal and DMV proceedings. We look forward to working with you!