Driving Under the Influence (DUI)

aggressive-217027_640Aside from the high fines, potential criminal conviction on your record, and the inconvenience of being involved in the criminal justice process, a DUI can affect your driving privilege, your ability to obtain gainful employment, and can result in increased car insurance premiums. Simply put, you can’t afford to have a DUI conviction on your record. This is why you need an effective Sacramento DUI lawyer on your side.

A lot of people think that DUIs are open and shut cases. I do not agree with that train of thought. I have personally witnessed evidence thrown out, inaccurate  breathalyzer readings and incorrect investigative work on the part of law enforcement to believe otherwise. In fact, the near-bounty system that many police departments place on DUI arrests makes me realize that every DUI charge needs experienced representation perhaps more than any other common crime.

Fairness isn’t a factor in DUI Enforcement

A recent news report from a nearby state detailed the career of a highly decorated Highway Patrol Officer (Officer of the Year). The officer was especially recognized for her incredible number of arrests for DUI along with an impressive conviction rate. Her strategy was finally discovered though. She would arrest individuals, sometimes indiscriminately, who looked like they couldn’t afford an attorney and would consequently not fight the charge. Some of her victims lost everything in the process. Many of them hadn’t even touched alcohol before their arrest.

The current attitude toward DUI is so prejudiced that officers and courts often miss important details in a case. I don’t. I also know that most DUI cases aren’t as solid as they appear.

Fight for your rights!

Pleading guilty is never the right thing in a DUI case, or in any case for that matter. When you do, you surrender your rights to the court. The right thing to do is to give me a call and fight your charge. I am experienced in DUI cases. I win cases. My goal is a dismissal. I will fight for you and not give up.

Driving Under the Influence cases can be complex. Such cases are often referred to as DUI cases, DWI cases, drunk driving cases, or “deuces.” For more help with DUI terminology, view the DUI terms page.

In most cases, if you are arrested for a DUI, you will be booked, and released within 6 to 14 hours. You may however be kept longer if you have prior DUI convictions, are on probation or the facts of the current offense are more serious. If you are not released on O.R. (own recognizance) bail will likely be set. You will then be given a court date to appear for your arraignment where your charges will be read out loud. In most DUI misdemeanor cases an attorney can appear on your behalf. After negotiations with the District Attorneys office, the case will either resolve, continue, or be set for trial (or Preliminary Hearing in felony cases).

Generally, as long as no injuries are involved, DUI cases are charged as misdemeanors. These cases can nevertheless be complicated. Experienced Sacramento DUI lawyer at The Law Offices of David W. Bonilla. are thoroughly familiar with scientific and medical evidence applicable to such cases, rules of evidence, examining expert witnesses, using admissible documentation, hearsay rules and the applicable law.

DUI Arrest and Release

Most arrests for misdemeanor violations of Vehicle Code section 23152 are made without a warrant when
a police officer observes an individual driving erratically, or observes signs of intoxication in a driver stopped for another Vehicle Code violation.

If you are arrested for a DUI, you should be admonished under Vehicle Code section 23612, the “implied consent” statute, that you will be given a chemical test and have a choice of (1) a blood test; (2) a breath test; or, if arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, (3) a urine test. If you are uncooperative, the police agency may compel you to submit to a blood test conducted in a reasonable manner. Most times they will videotape this forcible blood draw.

Generally, you will be held until you have sobered up. A six to fourteen hour hold is not out of the ordinary. When released, you will be given a citation and promise to appear (i.e., on O.R.). A citation will inform you of the date, time, and place to attend court. If you are not released in this manner, bail will be set according to the local bail schedule.

Potential DUI Charges

Unless a special circumstance exists, if you are arrested for driving under the influence of alcohol, drugs, or both you will be charged with violating Vehicle Code section 23152(a), commonly referred to as the “DUI count,” and will be prosecuted for a misdemeanor.

If under the influence of alcohol with a Blood Alcohol Level (BAC) measured at 0.08 percent or more, you will also be charged with violating Vehicle Code section 23152(b), commonly called the “0.08 per se count.”

Depending on the circumstances, you may also be charged with:

  • Drunk driving of a commercial vehicle if you have a BAC of 0.04 or above. Vehicle Code section 23152(d).
  • Driving while addicted to any drug. Vehicle Code section 23152(c).
  • Drunk driving resulting in injuries to others. Vehicle Code section 23153(a)-(b).
  • Child endangerment. Penal Code section 273a.

 

  • Driving with any measurable amount of alcohol (typically BAC of .01 or greater) if you are on probation for DUI. Vehicle Code section 23154.
  • A DUI that results in a death may be prosecuted as a vehicular manslaughter or even a second degree murder. While second degree murder charges are rare in DUI cases, prior DUI convictions may be used to show that the person charged knew the dangers of drunk driving.

Upon any DUI conviction in California, the courts are now required to read the following advisement under Vehicle Code section 23593(a):

“You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.”

Juvenile DUI

Juveniles who drive while under the influence are subject to prosecution. In addition charges can also be brought against adults who lend their cars to such juveniles. See Vehicle Code section 23140; Penal Code section 193.8. The minimum required BAC for a person under age 21 to be DUI is only 0.05. Vehicle Code section 23140.

DUI Enhancements

Some of the various enhancements that apply specifically to DUI cases:

  • Felony charges if you have three or more prior DUI or “wet reckless” violations within the last 10 years that led to convictions.
  • Felony charges if you have a prior felony DUI conviction within the last ten years.
  • Felony charges if you have a prior felony conviction for a DUI related vehicular manslaughter.
  • Reckless driving and speeding.
  • Passenger under age 14.
  • Refusal to submit to a chemical test.

DUI Vehicle Impoundment

If you are convicted, the court may order that your car be impounded for a period of 1 to 30 days, or longer if you have prior DUI related convictions. Vehicle Code section 23594.

Felony DUI

There are three circumstances in which the law allows the prosecution to file felony DUI charges. One situation in which felony DUI charges can be filed involves a DUI with injuries. The most common circumstance in which a felony DUI charge is brought is when the accused person suffered at least three prior misdemeanor DUI convictions within the last ten years. Lastly felony DUI charges can be brought if the accused person suffered even one prior felony DUI in the past ten years.

Felony DUI charges are often filed in cases where a third party was injured. The injury however must be serious enough to sustain felony charges. In borderline cases where the injury to another is not clear, a DUI attorney can subpoena the medical records of the person claiming an injury. Having handled many felony DUI cases, our attorneys have the experience and knowledge to discern whether the medical proof conforms to the charges brought by the DA. We have successfully negotiated felony charges to regular misdemeanor DUIs after reviewing the medical records and pointing it out to the DA.

If you have three or more misdemeanor DUI convictions in the last ten years, a new DUI accusation will likely be filed in the form of felony charges. When looking at DUI priors, it is the date of the violation that matters. For the purpose of the DUI – 10 year rule you have to look at all prior violations or arrests that ended up in convictions. If the prior conviction occurred within the last 10 years but the date of the prior arrest falls outside the ten years, the DUI may not be counted. This is important as the exact dates surrounding the prior arrest and conviction may make the difference between new misdemeanor or felony charges.

Lastly, if you have even one prior felony conviction for a DUI within the last ten years, the new DUI charges qualify to be felonies. In situations where the only reason the current charges are felonies is because the prior conviction was felony, it is imperative that your DUI lawyer subpoena or obtain certified copies of the prior conviction court file. Our qualified DUI lawyers are able to look at the record of prior conviction and determine if it is legally proper. If your DUI attorney is able to knock down the prior felony conviction, the current charges are typically reduced to misdemeanors.

Felony DUI charges are treated very seriously. A felony DUI without injury is punishable in state prison for up to three years. A DUI with injuries is also punishable by up to three years however if the accident caused great bodily injury to the person hurt, the court can add a three year great bodily injury (GBI) enhancement. Because of the negative perception of multiple DUI convictions, judges are not reluctant to send people convicted of felony DUI to prison for at least sixteen months.

First Misdemeanor DUI

An arrest for a first-time misdemeanor DUI can be a frightful experience. Most people in this situation don’t know what to expect or how to handle the situation. Because we believe in the power of being informed, on this website we want to arm you with information so that you know what lies ahead and feel a bit more comfortable as your California DUI case proceeds to court or a DMV hearing.

Possible Penalties for a 1st Misdemeanor DUI
A first misdemeanor DUI is punishable by:

  • Three (3) years of informal probation
  • Up to six months in jail
  • A three to nine month first offender DUI program
  • Between $390 to $1000 in fines
  • Ignition interlock device (in certain counties)
  • A California driver’s license suspension of between six to ten months.

The fine amount generally does not include penalty assessments which can more than triple the amount of the DUI fine. The driver’s license suspension can also generally be converted into a restricted license after thirty days following an administrative suspension. The length of the DUI program ordered depends directly on the measured level of alcohol in your blood.

In Sacramento for example the standard first DUI offer from the Sacramento District Attorney’s office is:

  • Three years of informal court probation
  • 48 hours of actual jail time
  • First offender DUI program
  • Driver’s license suspension
  • Required installation of an ignition interlock device
  • A fine of $480 + penalty assessments (about $2300 after penalty assessments)

How a first offense DUI affects your license
After you have been arrested for a first misdemeanor DUI, your California Driver’s License status may be suspended by either (1) suffering a DUI conviction in court or (2) by having a DMV officer rule against you at a DMV hearing.

Court Ordered License Suspensions
After you are convicted in court of a first time misdemeanor DUI, an automatic six month suspension is imposed by the DMV per California Vehicle Code section 13352(a)(1).

Administrative Suspensions
If you have been arrested for a DUI and your BAC measured %.08 or more, the DMV will seek to impose an administrative suspension, separate and independent from the court triggered suspension. You are entitled to an administrative hearing, however that hearing must be requested within ten (10) days of your arrest. You are entitled to be represented by a DUI defense attorney at that hearing. If you win the hearing, the DMV will not impose any administrative suspension. If you lose the hearing the DMV will impose a four (4) month administrative suspension per California Vehicle Code section 13353.3.

You may be able to apply and receive a restricted driver’s license after thirty (30) days following an administrative suspension. In certain counties including Sacramento you will have to install an ignition interlock device in any vehicle you operate for a period of no less than five (5) months. If your California driver’s license was suspended administratively, you must wait at least thirty (30) days before applying for a restricted license or being allowed to drive with an ignition interlock device.

Second Misdemeanor DUI

Being arrested for a second misdemeanor DUI can have very serious consequences. In order for a DUI charge to be counted as a second offense, the violation must have occurred within ten (10) years of the first DUI violation. The ten year rule is not triggered by the date of conviction but rather by the date of the actual DUI violation. The possible punishment for second and subsequent DUI conviction can rise exponentially:

Possible Penalties for a Second Misdemeanor DUI in California

A second misdemeanor DUI is punishable by:

  • Three (3) to five (5) years of informal probation
  • Up to one year in jail
  • An eighteen (18) month or thirty (30) month California DUI program
  • Between $390 to $1000 in fines
  • Ignition interlock device
  • A California driver’s license suspension of two yearsThe DUI fine does not include penalty assessments which can more than triple it. The California driver’s license suspension following a second misdemeanor DUI conviction can generally be converted into a restricted license after one year. At least four days must be served in jail.In Sacramento for example the standard second misdemeanor DUI offer by the Sacramento District Attorney’s office is:
    • Four years of informal court probation
    • 10 to 60 days county jail
    • 18 month California alcohol program
    • Driver’s license suspension
    • Ignition interlock device
    • A fine of $480 + penalty assessments (about $2300 after penalty assessments)The ordered jail time may typically be completed in a Sheriff’s out of custody work or ankle bracelet program with the exception of 4 days which must be served in jail. The length of the jail time is related to factors surrounding the DUI arrest, such as: blood-alcohol level, vehicle code moving violations and whether the accused driver caused a collision.
    • How a Second Misdemeanor DUI affects your license
      If you have been arrested for a second misdemeanor DUI, your California license may be suspended by either (1) being convicted of a second DUI in court or (2) by having a DMV officer rule against you at a DMV administrative hearing. Check our DMV consequences page for more info.
    • Court ordered suspensions for Second Misdemeanor DUIs
      After you are convicted in court of a second misdemeanor DUI, a two year suspension is imposed by the DMV per California Vehicle Code section 13352(a)(3).
    • Administrative suspensions for second offense DUI
      If you have been arrested for a DUI and your BAC measured %.08 or more, the DMV will seek to impose an administrative one year suspension. This driver’s license suspension is separate and independent from the court triggered suspension. You are entitled to an administrative hearing; however that hearing must be requested within ten (10) days of your arrest. You are entitled to be represented by a DUI defense lawyer at that hearing.You may be able to apply and receive a restricted driver’s license after one year following an administrative suspension however you must provide: proof of enrollment in a the California DUI program, proof of SR-22 insurance, and proof of having an ignition interlock device installed in your car.

    Third Misdemeanor DUI

    A third misdemeanor DUI within ten years can carry severe penalties including prolonged jail time and California driver’s license revocation.

    Possible Penalties for a Third Misdemeanor DUI in California

    A third misdemeanor DUI is punishable by:

    • Three (3) to five (5) years of informal probation
    • Up to one year in jail (minimum 120 days)
    • A thirty (30) month California DUI and alcohol program
    • Between $390 to $1000 in fines plus penalty assessments
    • Ignition interlock device
    • A California driver’s license revocation of three years
    • Designation as a habitual traffic offender.

    Penalty assessments can significantly increase a DUI fine. The California driver’s license revocation following a third misdemeanor DUI conviction can generally be converted into a restricted license after 18 months.

    In Sacramento, for example, the standard third misdemeanor DUI offer from the Sacramento District Attorney’s office is:

    • Four or five years of informal court probation
    • 120 to 180 days in county jail
    • 30 month California alcohol program
    • Driver’s license revocation
    • Ignition interlock device
    • A fine of about $3000
    • Designation as a habitual traffic offender.

    The ordered jail time may typically be completed in a Sheriff’s out of custody work or ankle bracelet program with the exception of 6 days which must be served in jail. Being designated as a habitual traffic offender has the effect of drastically increasing penalties for future driving-related convictions.

    How a third misdemeanor DUI affects your license
    If you have been arrested for a third misdemeanor DUI, your California license may be suspended or revoked by either (1) being convicted of a third DUI in court, or (2) loosing a DMV hearing.

    Court ordered suspension for a third misdemeanor DUI
    After you are convicted in court of a third misdemeanor DUI, a three year license revocation is imposed by the DMV per California Vehicle Code section 13352(a)(4).

    Administrative suspension for a third time misdemeanor offender
    If you have been arrested for a third DUI and your BAC measured %.08 or more, the DMV will seek to impose a one year suspension. This administrative driver’s license suspension is separate and independent from the court triggered suspension. You are entitled to an administrative hearing which must be requested within ten (10) days of your arrest. You are entitled to be represented by a DUI attorney at the DMV hearing.

    You may be able to apply and receive a restricted driver’s license generally after 18 months, however you must provide: proof of enrollment and completion of at least 12 months in a the California DUI program, proof of SR-22 insurance, and proof of having an ignition interlock device installed in your car. DMV may also require you to pay a driver’s license reissue fee.

DUI DMV Consequences

If you are arrested and charged with driving under the influence of alcohol or drugs, you face potential criminal penalties, but you also face suspension of your driver’s license by the DMV. It is important act quickly and contact an experienced Sacramento DUI DMV hearing attorney today.

A DUI arrest begins two parallel proceedings. The first proceeding is a criminal prosecution, which may be a misdemeanor or felony proceeding, depending on a number of factors. The second proceeding is a Department of Motor Vehicles (DMV) license suspension or revocation proceeding. Many people arrested on suspicion of DUI focus on the criminal proceeding, and do not realize that there is a DMV proceeding. In fact, it is important to act very quickly to preserve your rights in the DMV proceeding, to help ensure that you retain your driving privileges.

Upon arrest, the driver’s license of the suspected drunk driver is taken away by the arresting officer. The officer issues the driver an Order of Suspension and a temporary driver’s license. The Order of Suspension tells you that you have ten (10) days to request an administrative hearing. If you do not request an administrative hearing during those ten days, the DMV will conduct an administrative review of the officer’s report and accompanying documents, and in nearly all cases will uphold the suspension ordered by the arresting officer. The hearing – called an Administrative Per Se (APS) hearing – is your only real opportunity to contest the automatic suspension of your license and present your side of the story. It is essential that you act quickly to request a DMV hearing.

The DMV hearing is an administrative proceeding. It is not presided over by a judge and there is no jury. The hearing officer will review the evidence submitted by the arresting officer to determine whether the officer had reasonable cause to believe you were driving under the influence, whether you were placed under lawful arrest, and whether you were driving a motor vehicle with more than .08% blood alcohol content. An attorney on your side can help to prevent evidence from being considered by the hearing officer based on the rules of evidence, and can also present evidence that shows your innocence, helping to preserve your driving privileges.

The DMV proceeding is separate from the criminal proceeding. If the hearing officer sets aside your suspension, it has no impact on the outcome of the criminal proceeding. However, if your license is suspended by the DMV, but you are ultimately found not guilty in criminal court, the DMV will reverse the suspension. A reduction or dismissal of charges in criminal court will not necessarily help to get your suspension reversed.

The length of suspension depends upon the severity of the offense, as well as the existence of past DUI convictions. A first offense will result in a suspension of four months. A subsequent offense within 10 years of a prior offense will result in a one year suspension. Refusal to take a blood or breath test will also result in a one year suspension. Suspensions can be converted to restricted licenses in some cases.

Losing your driving privileges can be one of the worst consequences of a DUI arrest. Many people rely on their ability to drive in order to work, see family, and perform other basic tasks. But losing your license is not automatic. Consulting quickly with a Sacramento DUI DMV defense attorney can mean the difference between keeping or losing your driving privileges.

DUI Related Terms And Definitions

To be convicted of a DUI, the prosecution must prove beyond a reasonable doubt that you drove a vehicle while under the influence of any alcoholic beverage or drug. VC23152(a).

In a typical alcohol related DUI, the prosecution will also charge subsection (b) of the same code section. They will be required to prove that you drove a vehicle with a BAC of 0.08 or higher.

Below are some definitions that are used by the court in DUI cases. While some definitions are common sense, others may be surprising. Contact our office to speak with a DUI lawyer who can answer your questions about your case.

What constitutes driving?

Driving is any voluntary movement of a vehicle and can be proven by circumstantial evidence. In other words, you can be convicted even if no one saw you driving but other evidence leads to a reasonable conclusion that you probably were driving. Also, you can be convicted of a DUI if you were simply steering a car that someone else was pushing.

What is considered a vehicle?

Vehicle Code section 670 defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

What qualifies: Cars, trucks, motorcycles, scooters, snowmobiles, etc.

What does not qualify: handicap wheelchairs and motorized tricycles and quadricycles, operated by persons who, because of physical disability, are unable to move as pedestrians. California Vehicle Code sections 415 and 467.

Being Under the Influence

A person is under the influence of an alcoholic beverage or drug or the two combined when as a result of drinking the beverage, using the drug, or both, his or her physical or mental abilities are so impaired that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

If it is proven beyond a reasonable doubt that the driver had a BAC of 0.08 percent or more, the jury may presume that the driver was under the influence of alcohol at the time of driving.

Definition of an “Alcoholic Beverage”

An “alcoholic beverage” is a liquid or solid intended to be consumed that contains ethanol. Ethanol is commonly known as drinking alcohol. See Vehicle Code section 109 Alcoholic beverages include intoxicating liquor, malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy, and any mixture containing one or more alcoholic beverages whether found or ingested separately or as a mixture. California Vehicle Code section 109. Business & Professions Code section 23004.

Yes, it is possible depending on your size and the type of beverage to have only one mixed alcoholic drink and be under the influence for the purposes of a DUI.

DUI For Drugs

“Drug” means any substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his or her ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of his or her faculties, using reasonable care, would drive a similar vehicle under like conditions. California Vehicle Code section 312.

Contrary to common belief, the drug need not necessarily be an illegal drug to qualify under the DUI laws. A person can be considered under the influence of a drug even if that drug was lawfully prescribed to the person. Strong sleep aids and pain medication are the main drugs encountered in prescription drug DUI cases.

Contact our office if you have been accused of a DUI and need an aggressive defense attorney at your side.

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