California has the toughest laws on DUI’s of any state.
Even before you go to court to face a DUI criminal prosecution, law enforcement has the authority to confiscate your license at the time of your arrest – yes, even before you have been found guilty of anything – if your breath-alcohol reading is .08 or greater or if the officer has probable cause to believe your blood-alcohol reading (usually not available for at least three weeks) will be a .08 or greater. This is called the “admin per se” law. If you do not request a hearing within 10 days of the arrest and your blood-alcohol level is determined to be .08 or greater, your driver’s license will be suspended for 120 days, 30 days from the date of the arrest.
This is why it is important to contact an attorney at the earliest opportunity so he can calendar this hearing before the 10 days has run. At the time of your arrest you will be given a pink sheet – equivalent to a temporary license – that will allow you to drive for 30 days. If you have at least one prior DUI conviction within the past 10 years or if you refused to take a chemical test, the suspension is for one year.
At the DMV hearing, if you requested one in a timely fashion, there are four issues:
On the 120-day license suspension, you will be eligible for a restricted license after 30 days of the suspension has run. To obtain a restricted license, you need to show the DMV proof of your enrollment in the First Conviction DUI School, and an SR-22 form filled out by your insurance company verifying that you have the mandatory minimum insurance coverage as required by state law. This license restriction, which runs for 5 months, will allow you to drive to and from work, during the course of work, and to and from the First Conviction DUI School. You cannot get a restricted license if you have at least one prior DUI conviction within the last ten years or you were adjudged to have refused to take a chemical test.
Yes, you can enroll in the DUI school prior to being ordered to do so by the court (so you can obtain your restricted license at the earliest opportunity) by providing the DUI school with a copy of your “pink sheet”, i.e., the 30-day temporary license. There are four locations for these DUI schools: San Diego, Chula Vista, El Cajon, and San Marcos. It is important to bear in mind that the “admin per se” procedure is completely separate from the criminal prosecution you will likely face on the DUI, and has no bearing on whether you will or will not be prosecuted for the DUI.
Assuming your blood-alcohol level is close to an .08 or any amount over an .08, you will most likely be prosecuted for the DUI, which is a misdemeanor in the criminal courts.
Under California law, you can be prosecuted for a DUI on two different theories of culpability:
That you were driving “under the influence” of alcohol, the “subsection (a)” count, for which the prosecution must prove that your driving ability was adversely affected by the alcohol you consumed. If on this count your blood-alcohol level was .08 or greater the prosecution is entitled to rely on a rebuttable presumption that you were driving under the influence, i.e., that your driving was adversely affected, but a rebuttable presumption means exactly what it implies, that this presumption may be rebutted by evidence that your driving was not adversely affected, in which case you can be acquitted of this count.
The alternative theory of culpability, the "subsection (b)” count, however, is a form of strict liability in that it makes it a crime to drive with a .08 or more blood-alcohol level, regardless of whether your alcohol consumption has adversely affected your driving. On this count, the jury is instructed that if your blood-alcohol reading of .08 or greater was taken within 3 hours of your driving, that reading will be considered as your blood-alcohol level at the time of driving. (This is scientifically inaccurate, but, unfortunately, is the law.)
If your blood-alcohol level is .08 or greater you will be charged with both the (a) and (b) counts. A conviction of either count is a DUI conviction with identical penalties. In other words, if you go to trial on a DUI, to be successful you need acquittals on both counts.
On a first DUI conviction you will typically not go to jail. The usual sentence on a first DUI is a fine of approximately $2,000.00, required attendance at the three-month, one meeting per week, DUI school and the one evening MADD course. For high blood-alcohol levels or DUI’s involving non-injury accidents, the court usually imposes anywhere from 3 to 10 days of public work service. There is also a six-month license suspension imposed by the DMV when the DMV receives notification of your DUI conviction which will run concurrent with the120-day “admin per se” suspension usually already in effect, and for which you can also obtain a restricted license.
The DUI conviction will also add 2 points to your driving record and will undoubtedly raise your insurance premiums. Mandatory custody and longer periods of license suspension are imposed upon those with prior DUI convictions.
Marginal blood-alcohol cases (usually under .10) can sometimes be negotiated for a lesser charge, and high blood-alcohol cases can sometimes be negotiated for a lower blood-alcohol reading, thus avoiding or reducing public work service and a more lengthy DUI program. These are additional reasons why it is important to have an attorney on these type of cases.
I do not charge for initial consultations and my reasonable fees are determined by the seriousness of the charges. Selecting the right attorney is a very important decision that can significantly affect your future. Do not take this decision lightly. I can help you, as I have done for hundreds of clients in the past.
The information contained herein is not intended to be advice concerning your individual situation, but rather is general in nature. Please rely upon your own attorney's advice regarding your specific case.
© 2015 Attorney Richard Muir
630 Alta Vista Drive, Suite 205, Vista CA 92084
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