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Your Legal Rights
When you're pulled over for a DUI, there are a few things to bear in mind. Though you are most likely reading this because you have already been arrested for a DUI, this knowledge is useful to have on hand in the future and will assist you in determining if your arrest was conducted improperly.
You are not required to take a sobriety test, but you must agree to a chemical test under California's Implied Consent rule, which specifies that any driver implicitly consents to have their blood tested for drugs and alcohol any time they get behind the wheel. You are not expected to take sobriety tests such as rubbing your nose or walking in a straight line toe to heel. These tests have been shown to be inaccurate in determining an individual's level of intoxication and thus should not be used as the sole basis for an arrest for driving under the influence.
At the time of your detention, you can not make any comments to the authorities. When the police stop you, be careful what you say because something you say can and can be used against you, even though they haven't told you yet. It can be difficult to comprehend how damaging what you claim can be in a court of law.
California Statutes
In California, driving under the influence carries harsh penalties that can impact any driver of any age, but anyone under the age of 21 can face the harshest penalties if they are arrested by police officers. The DUI laws in this state spell out what to expect, how officers will deal with the offender, and which checks will be required if blood alcohol levels are suspected.
Drinking Prohibition in California
California's DUI laws forbid all drivers from drinking or using drugs while driving in the state, regardless of the cause. These prohibitions apply to those who have a blood alcohol content of 0.08 percent or higher because they are legally intoxicated and cannot drive at this stage. This puts him or her under the influence of alcohol, but he or she may also be charged with DUI if drugs taken before or after the drive had a significant impact on him or her. DUI charges can be filed if any of these things are done at the same time. Via BUI laws and related offenses, DUI laws also apply to motorcycles, scooters, boats, and other vehicles.
California's Blood Alcohol Content
When anyone consumes alcohol, the residual drug stays in the bloodstream for a while after the drink is consumed. This leads to a blood alcohol concentration (BAC) that can reach the national limit of 0.08 percent, resulting in total intoxication or worse. When the BAC is much higher than 0.08, some people will get alcohol poisoning and even die. This is a vital aspect of drinking alcohol that anyone who partakes in it should be aware of. When drivers in California drink too much, they are arrested under the national cap, which may result in valid charges being filed against them.
California uses 0.04 percent for commercial drivers and 0.01 for those under the age of 21, which is the legal drinking age in the country and this state, for other types of BAC arrests. California, like other states with these laws, is a zero-tolerance state, meaning that everyone under the age of 21 is prohibited from drinking. As a result, someone caught driving with a blood alcohol content (BAC) higher than the legal limit in this state faces a DUI conviction and subsequent charges due to the risk of endangering others.
Actual Physical Control in DUI Cases in California
Many states charge an individual with a DUI based on their actual physical control of the vehicle. Even if the individual was not driving when they were caught with a BAC of 0.08 or higher, this is appropriate. California, on the other hand, needs more evidence than just physical control of the vehicle. Local cities must apprehend the driver of the car in order to charge him or her with these crimes. Since police officers will pull over a suspect, perform a field sobriety test, and then arrest or release the person if the suspicion is proven to be unfounded, the proof goes a long way in these situations.
DUIs in California is referred to as "per se" DUIs.
A per se DUI occurs when police use a breathalyzer or blood test to ascertain the BAC of the person driving the vehicle. In these cases, the test does not need to use the degree of disability determined by observation. The amount of alcohol in a person's bloodstream at the time of the pullover can vary depending on a number of factors. The gender of the driver, his or her body size, the amount and percent of alcohol in drinks consumed, and when the person drank the alcohol in relation to when he or she became a driver is normally included. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.
In California, BAC Factors with the Driver
There are a lot of factors that can lead to a person's BAC to rise. Sex, body weight, and height are among these variables, but others are unknown. The amount of time that passes will dilute the BAC level significantly, and anyone who drives after the drinks are no longer as high in their system does not have a BAC of 0.08 percent. This amount is also affected by whether or not the individual eats anything before drinking. Medical conditions can also slow or speed up the body's metabolism and the removal of alcohol from the blood.
What Are Your Options?
It is almost always better to contest a DUI charge rather than plead guilty. A DUI arrest can be called into question for a variety of reasons, including the following:
There are over 100 drugs, medical conditions, and equipment malfunctions that can cause DUI breathalyzers to offer inaccurately high readings – police must track the driver for 20 minutes prior to taking a breathalyzer test to ensure he or she does not eat or drink something. This is because any form of food or drink will affect the breathalyzer's accuracy. This extremely delicate equipment is easily misconfigured.
Blood testing may be unreliable – you'd think a blood test would be really reliable, but some law firms have had their clients' blood samples re-tested at independent labs and received different results. This is a major issue, and it may mean that many people are being prosecuted for DUI without any reason.
Police must follow very clear guidelines – the measures that a police officer must take while investigating a possible DUI are very stringent and include several laws. Anyone who has met a police officer knows that they can get a little too big for their own britches and act a little too casually. During an arrest, police officers often miss minor details of police protocol. Make sure you pay attention to all that occurs during your contact with the police and seek legal assistance from a DUI lawyer.
Which Sobriety Test?
According to state laws and regulations, if you are arrested for DUI, you must submit to a blood or breath test, and refusing to do so will result in serious consequences. You will be required to take a voluntary field sobriety test by law enforcement officers. If you refuse to take the field sobriety test, you will be arrested and asked to submit to chemical tests. The chemical tests determine how much alcohol is in your blood. If it is higher than 0.08 percent, you will be charged with DUI, and your driving privileges will be suspended. Breath or blood tests are used to conduct chemical testing.
Breathalyzer/Breath Test
A breathalyzer test is another name for a breath test. When compared to a blood test, the breath test is much less accurate. Breath checks are used by law enforcement to determine if a driver is under the influence of alcohol. The Breath Test is used to determine the suspect's Blood Alcohol Concentration. Breathing into an apparatus that determines one's BAC from the air is how the breath test is done. It isn't thought to be the safest tool for determining Blood Alcohol Content. As a result, it would not be considered admissible in court. When the state is building its case against a driver, the second examination in the police station is thought to be more reliable.
There are two types of breath testing that police officers can use to determine if a person's Blood Alcohol Concentration (BAC) is above the legal limit. The first is a breath testing device that can be taken anywhere, and the second is a breath-testing device that is used in police stations. Before performing a breath test, the breath test machine must be thoroughly calibrated. These devices are used to measure and quantify the amount of alcohol in the air in the lungs. Your driver's license will be revoked if you fail to take a blood or breath test. Different law enforcement departments in Los Angeles are now using a variety of breath instruments. There is one truth that is common to all breath devices, regardless of which one is used. They're given to people who get bad results, get bad treatment, and get bad administration.
Blood Test
Police must obtain a blood test from the individual to obtain evidence that he or she was driving while under the influence of alcohol or drugs. Over a breath test, a blood test is a more accurate and effective way to determine the Blood Alcohol Content. The alcohol concentration in the suspect's blood vessels is determined by a blood test. After a person has finished drinking, the amount of alcohol in their blood vessels reaches its peak about an hour later. This procedure necessitates a blood sample from the perpetrator.
This examination can be done at a police station or a hospital. The sample is placed in a container that contains unique chemicals. These chemicals stop blood from clotting and keep the sample safe until it can be analyzed. This sample is sent to a criminal offense laboratory and an independent laboratory, where it is tested to determine the precise Blood Alcohol Concentration. Only professional blood draw experts are capable of performing a blood test on you since the procedure used to draw the blood can have an immediate impact on the test's final results. The final reports are sent to the police department that requested the blood draw. You may also request a blood test from a third party.
A breath test may often give an incorrect result. The blood or breath test was sometimes performed incorrectly.
What are the legal limits for blood alcohol?
Before we get into the details of California DUI penalties, it's important to first define what it means to be "under the influence." The laws will be different for different people, just like the levels will be different for different people.
- It is illegal for someone to drive a vehicle under the following conditions, according to the California Department of Motor Vehicles:
- If the suspect is 21 years old or older, they must have a BAC of 0.08 percent or higher.
- If the individual is under the age of 21, a blood alcohol concentration (BAC) of 0.01 percent or higher is required.
If the individual is on probation for DUI or DWI, a blood alcohol concentration (BAC) of 0.01 percent or higher is required (any age)
If the individual is driving a vehicle that needs a commercial driver's license (CDL), the following rules apply:
- A blood alcohol concentration (BAC) of 0.04 percent or higher (with or without a CDL issued to the driver)
But what exactly does that imply? How can you tell the difference between 0.07 and 0.08 percent? There are tables that will give you a rough estimate based on your gender and weight, but there are other variables to consider. In general, two drinks will bring most people over the legal limit, and any additional drinks will likely increase a person's BAC. The only way to lower your BAC is to give it time: your blood alcohol content drops by 0.01 percent every 40 minutes.
So, if you drank three drinks in an hour and your blood alcohol level is 0.11 percent, you must wait at least two hours and forty minutes before driving. This will mean that you will not have to face any California DUI fines.
Keep in mind that drugs, both legal and illegal, as well as prescription and over-the-counter medications, can impair your judgment and ability to drive. And California DUI laws refer to both—which is why the terms "California DWI Laws" and "California DUI laws" are interchangeable:
"Driving While Intoxicated" and "Driving Under the Influence" is considered the same.
In California, what are the consequences of a DUI?
Even if this is your first offense, California DUI laws are among the most stringent in the nation. California DWI fines are two points on your record, according to the point system. However, if you are charged with a DWI, the points would be the least of your concerns:
FIRST OFFENSE
- If your sentence requires a period of probation of three to five years:
- You must enroll in a drug or alcohol rehabilitation program.
- Pay a fine (at the discretion of the court)
- Either:
- A minimum of 48 hours in jail and a maximum of six months in prison, plus a six-month suspension of your driver's license.
- A 90-day exclusive license
- If your punishment does not include probation, follow these steps:
- For a minimum of 96 hours and a maximum of 6 months, you will be imprisoned.
- Pay a fine of $390 to $1,000 (at the discretion of the court)
- Suspension of license for six months
A court-ordered ignition interlock system can be mounted in your vehicle for a period of time. It allows the driver to breathe into a tube until the car can start once it is mounted. The engine will not start if the system senses alcohol on your breath. You will be asked to provide clean breath samples when driving to ensure your sobriety.
SECOND OFFENSE
- If your sentence requires a period of probation of three to five years:
- Pay a fine
- Either:
- 10 days in jail – 1 year in prison, with an 18-month license suspension
- 96 hours in jail – 1 year in prison, and an 18-30 month alcohol/drug treatment program with license suspension or restriction
- If your punishment does not include probation, follow these steps:
- The minimum sentence is 90 days, with a maximum sentence of one year.
- Pay a fine
- License suspension for 18 months
THIRD OFFENSE
- If your sentence requires a period of probation of three to five years:
- Pay a fine
- 120 days – 1 year in prison
- Revocation of a license for a period of three years
- 18 to 30 months in a prescription or alcohol treatment facility
- If your punishment does not include probation, follow these steps:
- The minimum sentence is 120 days, with a maximum sentence of one year.
- Pay a fine
- Revocation of a license for a period of three years
FOURTH OFFENSE
- If your sentence requires a period of probation of three to five years:
- Pay a fine of $390 to $1,000 (at the discretion of the court)
- 180 days – 1 year in prison
- Revocation of a license for a period of four years
- 18-month alcohol and opioid treatment program (if not done previously)
- If your punishment does not include probation, follow these steps:
- 6 months to 3 years in prison is the minimum sentence.
- Pay a fine (at the discretion of the court)
- Revocation of a license for a period of four years
Clearly, the only way to escape a DUI arrest—and the harsh California DUI penalties that come with it—is to avoid driving at all if you've been drinking. But, as 200,000 Californian drivers have shown, this isn't the case. People need to be told about safe driving habits from time to time, which is why California traffic school exists. You'll be able to make the best decision if and when the time comes now that you have all the knowledge you need about limits and penalties.
DUI Hearings at the California Department of Motor Vehicles
The officer doing the arrest is allowed by statute to suspend or revoke your driver's license immediately and submit a copy of your suspension, as well as your driver's license and a copy of the police report, to the California Department of Motor Vehicles. The DMV would then conduct its own inquiry into the facts against you presented by the arresting officer in order to decide if the suspension or revocation of your license should be upheld.
The officer will give you an Order of Suspension/Revocation after suspending or revoking your license. This will act as your temporary license for the next 30 days, after which the suspension or revocation will take effect. The California DMV would mail you an Order of Suspension/Revocation if the arresting officer did not give one.
To request an administrative hearing with the California DMV, you will have ten days from the date of your license suspension or revocation. If you do not request an administrative hearing during the ten-day timeframe, the DMV will retain the suspension or revocation, and you will lose your driving privileges.
An administrative hearing is the opportunity to provide proof that challenges the evidence given to the DMV by the arresting officer in order to demonstrate that the suspension or revocation is unjustified and that the driver's license should be restored.
If you want to have a chance of winning your administrative hearing, you'll need to hire a specialist DUI lawyer who has experience scheduling and defending clients at administrative hearings. You do not want to request a hearing and then represent yourself at the hearing; this is a losing proposition. You would want to ensure that the lawyer you hire has experience defending clients at administrative hearings.
If you or your DUI Attorney request an in-person hearing, the California DMV will schedule you for a telephone hearing by default. You and your DUI defense attorney prefer an in-person hearing rather than a telephone hearing because it is difficult to efficiently present evidence in your favor and contest the evidence against you over the phone.
When you or your counsel schedules your administrative hearing, you can ask for copies of the DMV's evidence so that you and your DUI Defense lawyer can prepare an effective defense against the DMV's evidence before your hearing date.
Penalties in California: What To Think About
When there are mitigating or aggravating circumstances added to the case, the judge or prosecutor will decide the penalty when considering a plea deal. These considerations may be present in the actions taken to avoid potential harm to others, such as waiting for the alcohol to exit the system or whether another driver or passenger was injured. Depending on what happens, each factor will dramatically increase or decrease these penalties. Because of their obvious guilt, some California drivers could receive a conviction with fewer penalties. Others can raise the stakes if the defendant is combative or violent in court.
Implied Consent
When a DUI violation happens in California, implied consent is used. All drivers who are facing a lawful arrest for driving under the influence must submit to a BAC exam. The driver can choose between a breath or blood test, but he or she must apply either one or face immediate disciplinary action. If the driver refuses to take any test at the time of detention, he or she will be fined $125, and his or her license will be suspended as a result of the refusal. Since the state uses implicit consent in these cases, there is an administrative action for the rejection.
Refusal and Implied Consent
When arrested for alleged DUI violations, the first refusal would result in a one-year license suspension, two years for the second refusal, and three years for the third refusal. Other factors, such as reckless driving convictions, suspensions due to refusal, and similar conduct, may influence these refusals until the individual faces additional DUI convictions. Suppose the driver has a previous DUI conviction, another conviction for dangerous driving conduct, and refuses to take a breath test for the current case. In that case, his or her driver's license will be suspended for three years.
Your DUI Attorney and the DMV.
When you are convicted for DUI, there are essentially two separate lawsuits brought against you. And there's the DMV situation. Your driver's license can be suspended or revoked in this situation, resulting in the loss of your driving privileges for months or years.
Then there's the criminal case, which is being handled by the California courts. Depending on the specific circumstances and facts of your case, you can face prison time, fines, mandatory alcohol education courses, community service, car impoundment, the installation of an ignition interlock system in your vehicle, or a combination of these and other penalties.
You must request a DMV hearing within 10 days of your arrest if you have been arrested for DUI (or suspicion of DUI). If you do not, your license may be automatically revoked, or you will face license revocation 30 days after your arrest if you do not comply.
The DMV procedure is not the same as the criminal courtroom procedure. A Driver Safety Office (DSO) Hearing Officer, rather than a judge, conduct the DMV hearing. This person is a DMV employee. The "preponderance of the evidence" criterion is used in DMV hearings and is a far weaker standard than the "beyond a reasonable doubt" standard used in criminal trials.
Hearings before the DMV can be extremely technical, and the odds of an individual winning without a criminal defense attorney's assistance are slim.
Unfortunately, the DMV is unconcerned about your personal life or how losing your driver's license would affect your life, job, or family. It doesn't seem to matter to them whether you have to drive to work, school, or even whether you drive for a living.
Individuals have been known to be discouraged from seeking a hearing by the DMV, claiming that they would lose. The paperwork given to a person arrested for DUI can be ambiguous, as it doesn't always make it clear that a hearing must be sought within a certain amount of time. You are not expected to show that the suspension is unjustified, despite what the given forms state. Rather, the DMV bears the burden of proving that the suspension is justified.
Following the DMV trial, the accused must go through the court procedure. The penalties for driving while intoxicated in California are governed by law and can be very complex. The basic law provides for a variety of sentence options, but the sentence must be modified depending on the following criteria.
- Convictions from the previous ten years
- At the time of the arrest, you were going 20 mph or more over the speed limit.
- Being in the car with a child under the age of 14 at the time of the DUI
- Having a blood alcohol concentration (BAC) of more than.20 percent
- Refusal to participate in a chemical test
The sentence in a DUI case will be influenced by a variety of factors within the statutory range, including:
- The specific facts and circumstances of the case
- The prosecutor's and the municipal court's procedures
- The case's flaws or "bugs," as discovered by the defense counsel.
- Your defense attorney's skills and skill level
It's important to remember that the results of your blood, breath, or urine test will play a role in deciding what charges you'll face and the potential sentences you'll face.
It's important to keep in mind that DUI laws apply to the blood alcohol content at the time of driving, not the time of the test. This is a significant difference that could work in the accused's favor because blood alcohol content will increase between the time of the traffic stop and the time of the examination. It's also crucial to realize that the tests used, especially the breath test, are often inaccurate.
What Are Some of the Most Popular DUI Defenses?
While affirmative defenses exist for a driver charged with DUI, there are also other common defenses used in those situations:
- Improper search: Lawyers often claim that their client's initial stop was invalid because the cop lacked probable cause.
- Field sobriety test (FST) accuracy: A test must be performed and administered correctly. The horizontal gaze nystagmus (HGN) test, which detects eye movements in the presence of intoxication, is frequently questioned.
- The criminal defense lawyers can question the accuracy of the portable breathalyzer test if there were intervening conditions such as indigestion and vomiting, as well as if the test was properly administered.
- Standard breathalyzer test accuracy: This is usually done following an arrest at the police station.
- The blood test's chain of custody is as follows: This is a look at whether or not the test was tampered with.
Increasing blood alcohol concentration: This is due to recent alcohol intake that has not yet reached the legal limit.
Aside from these, there are a few less common defenses to DUI charges:
- The accused was not the one behind the wheel.
- Inadequate police operation.
To be charged with a DUI in some jurisdictions, the car does not have to be moving. It is sufficient to charge as long as the individual had physical control and was driving the vehicle. As a result, even though you were in the car, you might be charged with a DUI.
What Are the Arrest Procedures Defenses in a DUI?
To stop a car from a DUI, police officers must have probable cause. As a result, if the police conducted the traffic stop for no reason, the information obtained after the arrest could be considered inadmissible. Furthermore, in addition to a lawful traffic arrest, the officer must have probable cause to suspect the driver violated the DUI rules.
This normally happens after the officers' findings and the multiple sobriety checks have been conducted. If the tests show that the blood alcohol content was higher than the legal limit, the judge will find probable cause. If the individual is in police custody, a recitation of the Miranda rights must be issued before any interrogation can begin. Your DUI Lawyer will know how to handle it from here once you have met them for a consultation.
What are my options for challenging the officer's testimony?
In most states, there are two kinds of DUI charges. The first is an "impairment" DUI, and the second is a "per se" DUI. Here is a list of observations that an officer may use to prove your inebriation or impairment:
- The smell of alcoholic beverages
- Unsafe driving
- Behavior is strange
- Voice slurred
- Eyes that are bloodshot
It may be difficult to refute the officer's observations for defensive purposes. Each situation, however, is unique. You might, for example, call another witness who witnessed a different incident around the time you were arrested for DUI. However, if the witness was a passenger in the car with the driver, the prosecutor often dismisses the witness, arguing that they are biased. You may also offer convincing reasons for your appearance and actions.
Furthermore, if the officer fails to notify you of critical facts, the tests' admissibility can be jeopardized. For example, if you refuse to take a chemical test, your license may be revoked, and the test results may not be admissible in court if the officer fails to notify you of this.
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