DUI Info – DUI Laws

I am extremely experienced in defending DUI cases.  The majority of first, second or third DUI offenses are misdemeanor charges.  When charged with a misdemeanor, I am able to attend Court hearings and negotiate without the client present so you will be able to go on with your daily life while I handle your case.  I investigate and conduct an in-depth analysis for each case my firm handles to explore a wide range of possible defenses.  I understand the procedures and policies of the police agencies and the mistakes they may have made at the time of your arrest.  My firm’s goal is to obtain the most successful outcome with the least amount of inconvenience to you and your personal life.

Prior to going to Court on your behalf, I will go over your case in detail with you to find out what happened leading up to, and after  your arrest.   After every hearing, I will update you on the status of your case and analyze it with you.  I understand that your record and your freedom mean a great deal to you.  I will research, investigate, argue and litigate aggressively on your behalf to ensure an optimal result for you.

VC 23152(a), and VC 23152(b).  The “VC” portion stands for “Vehicle Code,” which is the set of laws in California that controls, DUI laws among other things.

VC 23152(a) is a DUI statute that covers driving under the influence of alcohol without requiring a specific alcohol content level to do so.  For example, a person can be convicted of this charge if they were under the influence of alcohol and  had a Blood Alcohol Content of 0.07.    

VC 23152(b) is a more specific alcohol related DUI charge.  To be charged with this, a person must have a Blood Alcohol Level of 0.08 or higher.  For example, if after getting arrested a person submits to a Breath Test and the results come back at 0.10, the cop can list both VC 23152(a) and VC 23152(b) on the citation.  Keep in mind that if a person submits to a blood test as opposed to a breath test, the cop mayll only list VC 23152(a) on the citation.  But, if the results come back at 0.08 or higher, the Court prosecutor will likely add the VC 23152(b) charge.  Also, it is possible that even if the Blood Alcohol Content level result comes back lower than .08, the Prosecutor may still try to charge you with VC 23152(b) under a theory of “Retrograde Elimination.”  That theory has holes in it though, and just like other factors relating to DUI charges, it’s reliability can be challenged and defended against.  

FIRST OFFENSE DUI

If convicted of a first offense DUI, the penalty may include anywhere between 48 hours to 6 months in jail, a fine between $390 to $1,000 plus penalty assessments*, probation period between 3 – 5 years, and an alcohol course ranging from 3 months to 9 months in length.  The Court also has the power to impound your car, require an IID (Ignition Interlock Device), enforce community labor or community service, attendance at AA meetings, and take other additional action.

*Penalty Assessments are fees and taxes that the Court adds to a fine.  Currently, the penalty assessments are approximately 4 and a 1/2 times the actual fine.  That is why it is important to keep those fines as low as possible.  A $390 fine with penalty assessment will total approximately $1,850, but a $1,000 fine will be almost $5,000!

SECOND OFFENSE DUI

If convicted of a second offense DUI, the penalty may include anywhere between 96 hours to 1 year in jail, a fine between $390 to $1,000 plus penalty assessments*, probation between 3 – 5 years,  and an 18 month alcohol program.  The Court also has the power to impound your car,  enforce community labor or community service, attendance at AA meetings, require an IID (Ignition Interlock Device), and take other additional action.

It is important to hire an attorney that you feel confident will defend you vigorously in Court.    I know how to get DUI charges dismissed and have done so time and time again.  In cases where that  is not feasible, I know how to get favorable results even when pleading to DUI.  I know the importance of your freedom and how jail time can affect your job, among other things, and I will fight on your behalf.  I also know how this recession has affected people financially.  If the Court is imposing a fine, I will keep it to a minimum.  Additionally, I will fight to get an extended amount of time to pay that fine, or get alternatives to reduce the fine substantially.

If convicted of a DUI with Refusal, the drivers license suspension (as well as other potential consequences ) are much more severe as compared to a DUI without a refusal issue (in most cases).  It should be noted that prior to considering you a “refusal,” the officer is supposed to properly admonish you pursuant to VC 23612.  Not being properly admonished is a defense to the refusal allegation.  

Many people ask me which test they should submit  to if arrested for DUI.  The answer to that question is quite complex, and can change depending on the situation.  To better answer that question, it is good to have an idea of the accuracy issues each machine has.

There are many potential issues that can occur to breath machines when they attempt to calculate someones blood alcohol content (without ever testing the actual blood).   For example, If someone is in the absorption phase, it is much more likely that the breath machine will give an inaccurate high result.  Further, mouth alcohol issues, if someone is a diabetic, a smaller woman (who likely has a smaller lung capacity), maintenance and calibration issues with the breath machine, to name some of the issues that breath machines can have.

Likewise, blood tests also have their issues when it comes to accuracy.  For example, If the blood sample is not properly preserved, fermentation can occur causing the alcohol in the blood sample to increase prior to the lab testing the blood.  Issues with the lab equipment, bacteria, contamination, etc. can play a factor in blood results coming back in accurate.   That is why in most blood situations, I recommend to my clients that we retest the blood to expose inaccuracies and issues with the alleged blood alcohol content level as reported in the prosecutors case.

So which chemical test is a better option if arrested for DUI?  It really depends on a

lot of variables, and really can only be determined on a case by case basis.

 

UNDER 21 DUI CITATION

If you are under 21 years old, there are additional possible violations on top of VC 23152 DUI charges that you can face.  Under VC 23136, someone under 21 years old can get cited for having a .01 BAC level or higher.  VC 23140 is for under 21 with a .04 BAC or higher.  

DMV HEARINGS

With a few exceptions, DMV hearings must be requested within ten (10) days of your arrest for a DUI.  If you do not request a DMV hearing within that time frame, it is very likely that the DMV will automatically suspend your drivers license 30 days after the date of your arrest.

The three major points discussed at your DMV hearing are based on a DUI arrest for having a .08 blood alcohol or higher content:  1)  Whether there was Probable Cause to pull you over, 2) Whether there was a lawful Arrest, and 3) Whether your Blood Alcohol Content (BAC Level) was 0.08 or higher.  Even if you think that these elements are met in order for the DMV to suspend your license, it is important to have an Attorney experienced in discovering flaws in the DMV’s case represent you at this hearing in order to defend you.

Further, there can be different issues on an under 21 DUI arrest (ie. under the zero tolerance standard), or in case of a Refusal to submit to a chemical test.  Call me at (818) 336-1384 to discuss your case in further detail.

CALIFORNIA RIGHT TO DMV HEARING; POTENTIAL LICENSE SUSPENSION

This is a brief summary explaining the action the California DMV can take against your license after being arrested for a DUI in California, even without a Criminal Court DUI conviction. Note that this is a generalized summary and there are exceptions which may not be discussed.

1. Two possible license suspensions for a DUI
There are two possible license suspensions associated with a DUI. The first is a license suspension based on a DUI conviction in criminal court. Once there is a DUI conviction, the DMV receives notification of this conviction and starts a license suspension. The length on the time of that suspension depends on some variables, such as whether this is a 1st offense DUI (6 month suspension), a 2nd offense DUI (2 year suspension), etc. The second possible license suspension as a result of a DUI is issued directly from the DMV, without the Criminal Courts involvement. Again, the length of time on that suspension depends on some variables, such as whether this is a 1st offense DUI (4 month suspension), a 2nd offense DUI (1 year suspension), etc. This article focuses on the suspension that would be issued directly by the DMV. Note that when both suspensions can run at the same time so there is no overlap, thus minimizing the time that your license is suspended.

2. Temporary license issued at time of arrest
If arrested for a DUI with a .08 Blood Alcohol Level or higher, generally speaking, the officer will take your California drivers license away and issue you colored piece of paper that acts as your temporary license for 30 days. If issued this piece of paper, if you do nothing about it, you can lawfully drive for 30 days after the arrest. There are exceptions to this, for instance, if your license is already suspended for something else. In that case, you did not have a valid license to begin with, so you will not be able to lawfully drive with a temporary license. Also, if within the 30 days after your arrest, you get convicted in Criminal Court of the DUI, then a separate license suspension will be issued, over-riding the temporary license.

3. 10 days after arrest to request a DMV hearing
After being arrested for a DUI, you will have 10 days to request a DMV hearing. There are some potential exceptions to this for good cause, such as serious injury or incapacity immediately following the DUI arrest. If the 10th day falls on a weekend or holiday, your time to request a hearing will go to the next regular business day. If you do not request a DMV hearing, the DMV will perform their own review of the file, which generally leads to a drivers license suspension at the end of your 30 day temporary license.

4. Who can request a DMV hearing? and where do you go to do this?
You can request a DMV hearing yourself within the 10 day time frame, or have a privately retained attorney request it on your behalf. At the time of this request, you or your attorney can also ask for a “stay” on the suspension of your license. After it is granted, you will receive a new temporary license that will be good for an extended period of time (usually 3-4 months) or until there is a adverse ruling on your DMV hearing. Additionally, if there is a suspension on your license based on another factor (such as a DUI conviction in criminal court) your temporary license will not be valid.

5. Should you retain an Attorney to deal with this portion of your DUI?
I, along with many other DUI attorneys, when retained to handle the Criminal portion of the DUI, will include handling the DMV request , setting the DMV hearing date, getting an extended temporary license, and defending you at the DMV hearing as part of the retainer. Keep in mind that with few exceptions, you must retain the attorney within 10 days of the arrest to give the attorney time to request the hearing, etc. Although anyone can represent themselves at a DMV hearing, if you are unfamiliar with the process and do not want to invest the time in learning the intricacies of fighting DUI’s at a DMV hearing, I recommend hiring an experienced DUI attorney in your area to handle this for you.

This Article is for informative purposes only
As there are many variables that can be involved in a DUI arrest, you should not rely on this article, as it is intended for general informative purposes only. There is no attorney-client privilege generated from this article. If you are in Los Angeles County, Ventura County, San Bernardino County, or Orange County, feel free to call me at 818-336-1384 or www.philhachelaw.com to have further correspondence about your specific case.

Link to California DMV driver safety office addresses and phone numbers: Driver Safety Offices

UNDERSTANDING THE MANDATORY IGNITION INTERLOCK DEVICE (IID) REQUIREMENT FOR DUI CONVICTIONS IN PILOT PROGRAM COUNTIES (VC 23700):

Summary:
Effective July 1, 2010, anyone convicted of VC 23152 or VC 23153 in one of the following counties; Counties of Alameda, Los Angeles, Sacramento, and Tulare, is mandated by the DMV to Install an IID device on each car they own for a time frame which varies depending on whether this is a 1st offense DUI, 2nd Offense DUI, 3rd Offense DUI, etc. During the IID restriction period, the person affected by this pilot program can NOT legally drive a car unless that car is fitted with a certified IID device.

1. Convictions affected by this Pilot Program:
A conviction of VC 23152 (DUI) or VC 23153 (DUI causing injury)

2. Counties Affected by the Pilot Program:
Counties of Alameda, Los Angeles, Sacramento, and Tulare. If your DUI conviction is not in one of the above mentioned counties, this Pilot program does not affect you as of the date of this legal guide.

3. What does this pilot program require?:
This pilot program requires that anyone convicted of VC 23152 or 23153 in the affected counties install an IID on each car they own for set time frame, and show proof of installation to the DMV.

4. Cost of IID:
Cost may vary depending on provider, but there is generally an installation fee for each IID installed. Quotes seem to range from about $25 – $150 and can depend on the type of car/ignition. There is also a maintenance fee for every time the IID device is maintained. Quotes generally seem to be around $75 per maintenance visit.
Additionally, depending on the income as compared to the federal poverty level, the person may only have to pay as little as 10% of the cost of the ignition interlock device. The offender’s income may be verified by presentation of that person’s current federal income tax return or three months of monthly income statements.

5. Maintenance of IID:
The IID is required to be serviced by the installer at least once every 60 days in order for the installer to recalibrate and monitor the operation of the device. The installation and maintenance of the IID device is monitored by the DMV.

7. IID Conditions:
A person affected by this pilot program must install IID(s) in order to be issued a restricted driver’s license and reissued a driver’s license. Additionally, Courts may make compliance with the DMV on the IID restriction a term of the probation.

8. Time length of IID restriction for VC 23152 (DUI) conviction:
(i) First offense DUI, mandatory term of five months.
(ii) Second offense DUI, mandatory term of 12 months.
(iii) Third offense DUI, a mandatory term of 24 months.
(iv) Fourth offense DUI or any subsequent violation, mandatory term of 36 months.

9. Time length of IID restriction for VC 23153 (DUI causing injury) conviction:
(i) First offense DUI, mandatory term of of 12 months.
(ii) Second offense DUI, mandatory term of 24 months.
(iii) Third offense DUI, a mandatory term of 36 months.
(iv) Fourth offense DUI or any subsequent violation, mandatory term of 48 months.

10. Exemption from this Pilot Program:
If within 30 days of the notification of the IID requirement, the person certifies to the department all of the following:
(i) The person does not own a vehicle.
(ii) The person does not have access to a vehicle at his or her residence.
(iii) The person no longer has access to the vehicle being driven by the person at the time of arrest for a violation that subsequently resulted in a conviction for a violation of VC 23152 or VC 23153.
(iv) The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with a functioning ignition interlock device.
(v) The person acknowledges that he or she is required to have a valid driver’s license before he or she can drive.
(vi) The person is subject to the requirements of this section when he or she purchases or has access to a vehicle.

11. Motorcycles not included:
For the purposes of this pilot program “vehicle” does not include a motorcycle until the state certifies an ignition interlock device that can be installed on a motorcycle. A person subject to an ignition interlock device restriction shall not operate a motorcycle for the duration of the ignition interlock device restriction period.

12. Additional Restrictions:
Installation of an IID device on car(s) does not allow the person to drive without a valid driver’s license.

13. This Article is for informative purposes only:
You should not rely on this article, as it is intended for general informative purposes only. Further, there may have been changes or amendments to this program after this Article was written. There is no attorney-client privilege generated from this article. Feel free to contact me at (818) 336-1384 or www.philhachelaw.com if you have additional questions regarding this pilot program.

14. Full Statute: 
Similar statute: IID option for multiple DUI Defenders in Order to get a restricted license. CA state wide program, optional. See SB 598 (Info on this to be updated soon)

REFUSAL AFTER A DUI ARREST

If you were charged with a DUI and refusal for failing to complete a breath or blood test after being arrested, the consequences can be increased in both criminal court and the DMV.  Click the attached link for more information on:  Consequences of a DUI Refusal

TRAFFIC VIOLATIONS

Phil Hache has appeared on countless numbers of traffic offense violation handling cases for Class A (truck drivers) and Class C license holders, regularly getting misdemeanor and infraction offenses dismissed, thishttps://www.philhachelaw.com/2018/02/21/aggressive-dui-criminal-defense/ includes charges such as:

• DRIVING WITHOUT A LICENSE
• DRIVING ON A SUSPENDED LICENSE
•  SPEEDING TICKETS
• HIT AND RUN
• RED LIGHT TICKETS
• LOGGING VIOLATIONS
• CELL PHONE TICKETS
• AND MORE. . . .

If your case is in Southern California, contact me at 818-336-1384 to discuss for a free consultation.

Sincerely,

Phil Hache,
DUI Attorney 
www.philhachelaw.com