The state of California has some of the stricter laws against drunk driving in the country. The main two laws which cover the legality of driving under the influence are as follows:
- Vehicle Code 23152 – It is illegal to drive under the influence of drugs or alcohol. It is specifically illegal for an individual over 21 years of age to operate a motor vehicle with a blood alcohol content of 0.08% or higher.
- Vehicle Code 23153 – It is illegal to cause injury to another person while driving under the influence of alcohol or drugs. It is specifically illegal for an individual over 21 years of age to injury another individual while operating a motor vehicle with a blood alcohol content of 0.08% or higher.
Of course there are several other laws relating to driving while intoxicated, such as when the driver is under 21 or when the driver injures another person due to their drunk driving. A first offense of an of-age individual drunk driving can result in the following:
- Fines of up to $2,000
- 48 hours in jail
- License suspension lasting months
- The requirement to complete a 3-month alcohol education program
The penalties increase with every DUI that occurs within a 10 year period, as well as when the driver is under 21 or injures another person while drunk driving. If you are being charged with a DUI contact Sacramento DUI defense lawyer for consultation today.
Boating Under the Influence
Similar to a DUI, operating a boat or other motorized watercraft while under the influence of drugs or alcohol (at or above a BAC of 0.08%) is a criminal offense in the state of California.
Also not unlike a DUI when driving a land vehicle, the actions that bring about the attention of responding officers include excessive speeding, erratic operation of the water vehicle, as well as violations of rules and regulations. As with land DUIs, the suspected drunk driver will be asked preliminary questions, required to complete field sobriety tests, as well as chemical testing, such as a breathalyzer.
What to do After a DUI Arrest
After a DUI arrest, there are two main hurdles that must be overcome:
- The DUI Hearing – You must request a DUI hearing at the courthouse within 10 days of the arrest and then attend the hearing on the scheduled date.
- A Court Case – You must go to Court to face your DUI charges
Soon after a DUI arrest, the officer will notify the driver that their license has been suspended for 30 days. The officer will take the driver’s license in exchange for a temporary pink form that serves as a license until the suspension goes into effect. The driver’s license is then sent to the DMV, which suspends the license automatically if the arrested driver fails to request a hearing within ten days of the arrest. After a hearing is requested, the suspension of the driver’s license is delayed until the hearing takes place and the outcome (win or lose) is known.
At the DMV hearing, the officer will ask three questions to decide whether to suspend the driver’s license. These questions are essentially:
- Was the officer reasonable in his or her belief that you were driving under the influence?
- Where you lawfully arrested?
- Was your BAC 0.08% or above?
The DMV hearing is a chance for the driver to defend his or her driving privileges as well as a way to prepare for the DUI Court. If the DUI hearing is won, the license is not suspended at that time. It may be suspended by the Court after the DUI case is heard. If the DMV hearing is lost, the license may be suspended for up to 3 years, depending on details of the arrest and if the defendant has any priors.
There are three options regarding how to be represented in the DMV hearing and in Court. You may:
- Represent yourself
- Be defended by a public defender
- Hire a private DUI lawyer
It is very rare for it to be advisable to represent yourself in DUI court. The law and procedures are quite complicated and prosecutors and judges are very tough on DUI offenders. Unless you are trained in law and are very familiar with DUI laws and processes, you are not likely to be an effective advocate for yourself.
The DMV hearing can be conducted in-person or over the phone and while it’s separate from DUI Court proceedings, defendants are permitted to be represented by an attorney. Private attorneys may conduct the DMV hearing on your behalf, but public defenders will not represent you in this hearing.
During the DMV hearing, the private attorney can cross-examine the arresting officer and question the details of the arrest. This can help to expose weaknesses in the prosecution’s case. Testimony from this meeting may be used in DUI court.
Get a California DUI Attorney
DUI cases are very complicated and involve more than just a Court case. Without being very familiar with the DUI proceedings and laws, self-representation can be very damaging and result in lifelong consequences. Public defenders will not represent clients at DMV hearings and are often overloaded and apathetic. The best course of action is to seek an attorney experienced in DUI law who is passionate about your case.
DUI Arrest in California: Information You Should Know
Whether you were lawfully arrested for driving under the influence or not, there are several events that take place in every DUI arrest.
- The officer will confiscate your license – In exchange for the physical license of the driver, the arresting officer will provide a temporary pink slip that serves as a driver’s license for 30 days.
- The defendant must request a DMV hearing within 10 days of the arrest – The DMV hearing is a way for the defendant to show that the license suspension was not justified and to get the permanent license returned to the driver. Public defenders will not assist defendants in their DMV hearings.
- There will be a Court case – The defendant must attend Court to face his or her charges for driving under the influence. California is quite serious about drunk driving and the judge and prosecutors are not likely to be at all lenient.
If you are reading this before an arrest you must consent to a chemical test. It is the law! Refusing a chemical test can be used against the defendant in Court and can increase penalties if the defendant is convicted of a DUI.
The DUI Stop
Police or highway patrol officers must have “reasonable suspicion” that a crime is occurring in order to pull over over a driver. “Reasonable suspicion” is similar to but not quite the same thing as “probable cause,” though it is similar. The officer doesn’t have to specifically suspect that the driver is under the influence, just that there is some reason or violation. For example, a burnt-out taillight or swerving into another lane are violations that could constitute a good reason to pull a driver over. This is not required for DUI checkpoints, however.
Officers also need to have reasonable suspicion before beginning a DUI investigation after stopping the driver. Officers can’t start questioning every driver they pull over regarding whether they had been drinking – they have to have some reason to be suspicious. Many officers will simply ask drivers they pull over at night whether they had been drinking. Though a driver may have only had one drink earlier in the day, saying “yes” would give the officer reasonable suspicion and permit the officer to conduct sobriety investigations. Other evidence that may give an officer sufficient reasonable suspicion includes:
- Observing an open container in the vehicle
- The smell of alcohol coming from the car or driver
- Slurred speech, reddened eyes or face, or other physical traits of drunkenness
If the officer didn’t have reasonable suspicion to enter into an investigation regarding the sobriety of the driver, the case may be thrown out.
Field Sobriety Tests & Chemical Tests
Fields Sobriety Tests, or FSTs, are exercises conducted by law officers when there is a suspicion that the driver is under the influence of drugs or alcohol. These exercises test the driver’s physical capabilities including balance, coordination, and divided attention to determine if these skills are impaired. There are several exercises officers may request the driver to partake in, but only three have convincingly been shown to accurately examine whether an individual is impaired. California has ignored these findings and continues to execute whichever exercises they feel like. Unlike chemical tests, these exercises are not required by law and drivers may decline to participate with no legal repercussions.
Whenever anyone gets behind of the wheel, they implicitly enter an agreement to obey the rules of the road. Many people feel that it’s something like a Constitutional right to drive, but it is indeed a privilege that can be revoked upon bad behavior. As a part of this implicit agreement, drivers agree to be tested for alcohol when asked by a law enforcement officer. This is called the “Implicit Consent” law. California law generally allows drivers to choose between a breath and a blood test. If neither are available, drivers must submit to a urine test. The law also requires arresting officers to explain that the driver does not have the right to contact a lawyer before the test and that the consequences of refusing the test include fines, license revocation, and jail time if convicted of a DUI in Court.
Contact a California DUI Lawyer for Legal Representation
DUI procedures and laws are quite complicated. Even if you feel you were arrested without cause and that innocent people don’t need a lawyer, unfortunately you are wrong. California Courts and prosecutors are very aggressive against individuals they believe to be drunk drivers, and not for no reason. Be sure to at least consult with an experienced Sacramento DUI attorney regarding your case.
The DMV Hearing After a DUI Arrest in California
Getting arrested for a DUI is a shameful and stressful event. It’s important not to get too distracted by your emotions and to understand what to expect going forward. It’s going to happen whether you’re prepared or not, so you may as well be prepared!
What is a DMV Hearing?
When you are arrested and your license is confiscated, the arresting officer will send this license to the DMV. In exchange for your license, the arresting officer will provide a temporary license in the form of a pink “Notice of Suspension” note. This “Notice of Suspension” serves as a valid license for 30 days as well as information regarding the DMV hearing.
Drivers must request a DMV hearing, which is technically called a Driver Safety Administrative Per Se “APS” Hearing, within ten days of the arrest in order to have the opportunity to defend oneself against license suspension. If the driver does not request this hearing within a mere ten days of the arrest, the license will automatically remain suspended after the 30 day temporary license expires. If the hearing is requested within the ten days, the license suspension will be delayed until the hearing occurs. If the driver neglects to request the hearing, the license may be reinstated after the Court case concludes and once the following has been completed:
- Enrolling in California DUI school
- Submission of an SR-22 insurance form
- Payment of the $125 reinstatement fee
- Installation of an ignition interlock device (depending on the case)
Differences between DMV Hearings and Court
DMV hearings are much more relaxed than court trials. The DMV hearing officer typically doesn’t have any formal legal training and is in charge of the proceedings in place of a judge. The rules regarding burden of proof and proving one’s innocence aren’t as stringent as in a Court case. They are so relaxed that they can even take place over the phone or at least in an office as opposed to a courtroom.
For all its casualness, DMV hearings are very serious and you should understand your rights in this process. The following are your rights at a DMV hearing:
- You have the right to be represented by a private attorney – This means that you can hire your own attorney at your own expense, but public lawyers will not represent you at this hearing.
- You have the right to review and challenge any evidence that is brought forth against you
- You have the right to subpoena and interview witnesses, such as the arresting officer – This is a very important thing to note as finding weaknesses in the officer’s story can lead to winning the DMV hearing and DUI Court case.
- You have the right to testify on your own behalf – You can defend yourself against the charges brought against you and make a case that your license should not be suspended.
Scheduling the Hearing
You must contact the DMV driver safety branch office within ten calendar days of the arrest or you lose your right to the DMV hearing and the chance to get your license back until the court case. The DMV driver safety offices are different from the regular DMV where you go to get your license renewed, etc.
If you hire a private lawyer within the ten days after being arrested, he or she can make the appointment for you and can even attend the hearing on your behalf, meaning you get to stay home if you don’t intend on testifying. These hearings can also occur over the phone rather than in-person.
What Happens if I Win?
If you win the DMV hearing, the hearing officer sets aside the license suspension, meaning you can drive again. This driving privilege is again on the line in the DUI court case.
Winning a DMV hearing also means that there was some reason the DMV hearing thought it was inappropriate for you to lose your license. Whatever this reason is should be again used in the DUI criminal case, which is completely separate from this hearing.
What Happens if I Lose?
Losing your DMV hearing means that the license suspension is upheld – you will have to go without a license for the foreseeable future. The length of this license suspension depends on several factors, including whether this is your first offense. If it is your first offense, you will lose your license for up to ten months after the DMV hearing except for travel to and from:
- California DUI school
In order to get your license back after the revocation period, you must also:
- Complete California DUI school – You must also pay for it
- Submit an SR-22 insurance form – This includes a fee and will likely affect your insurance rates
- Pay a $125 fee
Losing the DMV hearing does not automatically mean you will lose the DUI criminal case – remember that these are completely separate proceedings. Even if you do lose, your attorney, if you have one, may have learned valuable information during the hearing. This information could be used to reduce the charges, which may ultimately lead the DMV to reinstate the license after all.
How to Win the Hearing
The main things the DUI hearing officer can consider when deciding whether to uphold your license suspension are:
- Was there probable cause in believing you were driving under the influence?
- Was there reasonable cause to have you submit to a chemical test?
- Was there lawful cause to put you under arrest?
- What were the results of the chemical test?
- Were the chemical test results accurate?
If you refused a chemical test, the following questions can be considered:
- Did the arresting officer inform you that refusing a chemical test would revoke driving privileges for up to three years?
- Did you actually, willfully, refuse to submit to a chemical test?
If any of the above issues are shown to be in violation of DUI arrest regulations, the DMV hearing officer should set aside the license revocation. The following are some of the more common defenses that skilled DUI defense attorneys may use to assist their clients:
- The defendant was not driving
- The arrest was made at a sobriety checkpoint that violated strict legal regulations
- There was no probable cause to stop the driver, execute a chemical test, or arrest the defendant
- The officer did not conduct the chemical test according to strict legal regulations
- The breathalyzer was not calibrated or working properly
- There are other physiological explanations for the chemical test results
- The officer neglected to inform the defendant of the consequences of refusing to submit to a chemical test
- You did not refuse the chemical test
- There were errors in the officer’s paperwork
Contact a Sacramento DUI Lawyer for Legal Representation
DUI laws and proceedings are very complicated. The DMV hearing is an important aspect of the DUI arrest and it’s important to take advantage of its offering. This is why you should seek experienced private legal representation as soon after the arrest as possible. Don’t forget you only have ten calendar days after the arrest to request a hearing!