Getting convicted of DUI (Driving Under the Influence) in California depends on a variety of circumstances. These circumstances are what are known as mitigating (or, sometimes aggravating) factors. Having a criminal defense attorney that knows what these circumstances are and how they may apply in your case is a big help if you are facing a DUI charge. Orange County Criminal Attorney is a firm made of experienced criminal defense attorneys. They have helped many clients in the Orange County, CA area. Here are a few facts that you will probably want to consider while deciding on representation for your case.
The minimum and maximum penalties for a DUI conviction are set by statute in the State of California. The judge who will hear your case – should it go to court – will choose a sentence that will most likely be determined by whether this is your first, second, or third DUI offense.
DUI convictions appear on your record for 10 years; if it has been more than ten years since you were convicted of DUI in California, then the previous conviction will not be counted – it disappears from your record – for the purpose of determining the number of DUI offenses that you have.
Here is what to expect from the time of your DUI arrest through to your court proceedings.
What Happens in a DUI Arrest
Traffic stops and checkpoints are the most common sources of DUI arrests in California. A field officer will ask you to participate in a few exercises known as field sobriety tests. Most officers will administer what is known as a Standardized Field Sobriety Test (SFST), which is made up of 3 different tests. These are known as the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests.
The HGN test measures whether a driver’s eyes jerk involuntarily as a light source or other visual item moves back and forth, or from one side to the other. In the case of the stand on one leg test and the walk and then turn test, the officer is using what is known as a “divided attention” test. Sober persons can usually perform these tasks quite easily, as they require you to listen to the instructions and perform a simple physical task at the same time. A person who is under the influence of alcohol or drugs finds it difficult to do this.
Additionally, you will be asked to blow into a handheld device known as a breathalyzer, and when taken to a jail, police station, or hospital, you may be required to submit to an additional blood or breath test. You are required to take these tests by California law; if you do not, your penalties may be increased if you are convicted, and you will usually incur an automatic one-year suspension of your drivers’ license.
Most DUI arrests result in release from custody in only a few hours, provided the charge is considered a misdemeanor. If there is a felony charge, bail will probably be required before you are released. When you are released, you should be given two important documents: your citation, which lists your expected court appearance date, and a pink paper that serves as your temporary drivers’ license. Your regular license will be surrendered and mailed to the Department of Motor Vehicles (DMV). If you are an out-of-state driver and get charged with DUI in California, you are not required to surrender your physical license.
A new feature of the law in 2019 provides for an Ignition Interlock Device (IID) to be installed on your car after a first-time DUI. The IID is basically a breathalyzer that will not allow the car to start if alcohol is detected on the breath of the driver. A special IID restricted license can be issued that restores your full driving privileges if the IID remains in the car.
The Process at the DMV
One of the requirements of a DUI arrest is that, if you want a hearing, you must ask for it within 10 days by contacting the DMV. If you do not request a hearing, you will forfeit your right to one and your license will automatically be suspended after 30 days. One of the things your criminal defense attorney can do for you is to file the request for a hearing. An experienced attorney can usually arrange the hearing process so that it works to your advantage. You will want significant time to prepare your case with your attorney, and they may be able to influence the assignment of the hearing officer that will hear your case
Another advantage of having a skilled attorney is that they can conduct your DUI hearing on your behalf. You may not even have to attend the hearing, depending on the circumstances of the case. What the attorney most often wants to accomplish at the hearing stage is to prevent the suspension of your license. Additionally, they may be able to gain information from the prosecution that might be helpful to your case when it comes to court. This could include the right to subpoena breathalyzer logs, officer testimony, and other items that could be used against you.
After the hearing is concluded at the DMV, the hearing officer will consider the evidence and will issue written findings a few days later. This finding is usually mailed to your (and/or your attorney) within 30 days or less. If you receive a favorable ruling, there could be no suspension of your license. Of course, this is not the final determination, as the court could later suspend your license if you are found guilty. If you do not receive a favorable finding at the hearing, your license will be suspended within a specified number of days after receiving the notice.
It is important to note that DMV hearings are only available for alcohol-related arrests; if there were drugs involved – most notably marijuana, Ambien, or Vicodin – you are not eligible for a DUI hearing. Suspension of your license will depend on the finding of the court.
What to Do If Your License is Suspended
If your license is suspended after the DMV hearing, you can usually apply for and receive a restricted license within approximately 30 days. The restricted license will allow you to drive to and from any court-required activities (such as attending an alcohol education program) and can include travel to and from work or school. Again, your attorney can often get this process speeded up, allowing you to begin driving right away. But at all costs, you should never drive without a valid license of some type (restricted or otherwise.) It is a crime to drive with a suspended license, and an arrest on this charge will only aggravate the DUI charge and can result in substantial jail time, an even longer suspension of your license, and can be considered a violation of probation.
The DUI Court Case
When it is time for your case to be heard in court, your DUI criminal attorney can most likely attend the hearing and speak on your behalf. Sometimes, you might be required to attend in order to testify on your own behalf. In actuality, the court process occurs over multiple sessions, which can take a number of months. During these sessions, your attorney can accomplish several things such as collecting evidence, applying motions, and negotiating with the judge and prosecuting attorneys in order to seek a reduction in charges or even a dismissal.
There are two ways to reach a settlement in your case for a plea deal to the charge of DUI, or perhaps a lesser charge. You may be able to appear in court and offer your plea in person before the judge. Optionally, you may be allowed to sign a notarized statement (known in California as a Tahl waiver) pleading either guilty or “no contest” and have your attorney submit it on your behalf. The Tahl document waives your right to a jury trial and can be a speedy resolution to your case.
If an early settlement is not reached among your attorney, the judge, and the prosecuting attorney, then your case will be set for trial, which will include a jury. This can actually work in your favor, as judges and prosecutors sometimes offer better terms the closer a case gets to the actual trial date. Problems with evidence or a full court docket can be problems the court would rather not have to endure. You should, of course, discuss this with a qualified DUI criminal attorney.
Penalties for DUI Convictions
Most DUI convictions are recorded as misdemeanors, unless the case involves bodily injury or death, or if the defendant has four or more prior DUI convictions. That puts the charge in the category of a felony.
First time DUI convictions for a misdemeanor carry the following penalties:
- An informal probation (also known as summary probation) that lasts for 3-5 years;
- As much as six months’ time served in county jail;
- Fines between $390-$1,000;
- Attendance at a court-approved alcohol education program for either 3 or 9 months; this is also known as an AB541 class.
- There is usually a suspension of the drivers’ license for 6-to-10 months unless an IID in installed is the drivers’ car and a restricted license is granted.
Second time DUI convictions carry similar, but more severe penalties:
- Summary probation for 3 to 5 years;
- Time served in a county jail of at least 96 hours up to a maximum of 1 year;
- Fines between $390-$1,000;
- Court-approved completion of an 18- or 30-month DUI school;
- Installation of an IID for 1 year, which will allow the defendant to drive unrestricted, or a 2-year suspension of the drivers’ license, which may be changed to a restricted license after 1 year.
Third time DUI convictions are similarly more severe still:
- Informal probation for 3-5 years;
- Time served in jail for a minimum of 120 days and up to one year;
- Fines between $390-$1,000;
- Completing a court-approved 30-month DUI education course;
- Installation of an IID for 2 years, which will allow the defendant to drive unrestricted, or a 3-year suspension of the drivers’ license, which may be changed to a restricted license after 18 months; and
- Being designated as an HTO (habitual traffic offender) in the records of the DMV.
Penalties for a felony DUI conviction will include:
- Jail time in a California State Prison from 16 months to 3 years;
- Fines between $390-$1,000;
- 1-year mandatory IID installation; or a suspension of the drivers’ license for up to 4 years; and/or
- HTO designation by the DMV.
If a bodily injury is involved in the DUI charge, the penalties for either a misdemeanor or a felony are increased and will include restitution to all injured parties.
Defense Strategies for DUI
There are a number of ways that an experienced DUI criminal attorney could help you in your court case; there are three defenses that are most commonly used to lessen DUI penalties or achieve a complete acquittal.
The first type of defense holds that you weren't actually intoxicated at the time of your arrest. This can include the fact that you were driving poorly, but that intoxication was not the cause. Similarly, you could have exhibited certain physical characteristics (such as watery eyes or slurred speech) that were brought on by something other than intoxication.
Secondly, you could argue that your driving was not actually impaired. You could have driven poorly due to other circumstances, such as being distracted or tired.
Finally, your charge could be dismissed if the arresting officer did not follow proper protocol in administering your sobriety tests. California law requires that you be observed for 15 minutes before any tests are administered. If you were rushed into the tests, you could have grounds for dismissal.
The bottom line is that DUI is a serious charge, no matter the level at which it occurs. A qualified DUI Criminal Defense Attorney can guide you through every step of the process and can help to get the best possible outcome for your case. Reach out to the professionals at Orange County Criminal Attorney by calling 714-831-1858 today.