Even a first-time DUI carries a potential sentence in California of up to six months in county jail but such a sentence is rarely, if ever, handed down. A driver who is arrested for a first-time DUI may end up in the “drunk tank” after booking but that is usually the only time he or she will spend behind bars for the offense.   Most often, a driver convicted on a first-time DUI (within a ten year period) will be sentenced to a period of probation and ordered to attend DUI classes. Some counties in California will also sentence a first-time DUI offender to complete community service. But a jail sentence? In 99.9% of the cases, the offender will not receive a jail sentence.

However, spending time between three walls and the fourth wall of bars becomes increasingly likely with subsequent DUI convictions (if the convictions occurred within a ten-year period of time). In fact, a third DUI carries mandatory minimum jail time of 120 days although some counties will allow the offender to serve the sentence under a work-release program or house arrest, or sometimes even by serving the sentence by “volunteering” in a community service program.

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You have probably heard that the so-called “War on Drugs” has been lost. Increasingly law enforcement and the courts are recognizing that punishment does not resolve the offender’s drug addictions. New sentencing schemes are being developed that focus less on punishing the chronic drug offender than addressing the underlying cause of his or her arrest, i.e., drug addiction.

Although many people don’t put alcohol in the same category as drugs because alcohol is legal, it is actually one of the most potent drugs available. Some individuals are addicted to alcohol and it is a drug addiction even though we call it “alcoholism.”

People addicted to alcohol fill our California courts in greater numbers than other drug addicts, often on DUI charges. Unfortunately, for a person addicted to alcohol, a DUI conviction usually does not stop at one and the law metes out increasingly severe punishments for the multiple DUI offender. Granted, the law also provides for rehabilitation by mandating that the offender attend DUI classes, but as we have often heard, an addict can only work on his or her recovery from addiction if he or she wants to.

One California county is has implemented a promising alternative to punishing DUI offenders. With a grant of federal and state money, the San Joaquin County’s DUI court system has a program that identifies DUI offenders who are alcohol dependent and places these offenders in the DUI Treatment Court. The DUI Treatment Court recognizes that DUIs committed by those with alcohol dependence will only be reduced if the alcohol dependence is addressed. Those sentenced to this program are called “clients” and even though they are punished under the California DUI statutes, they also receive help with their addiction.

The program is an attempt to address the underlying problems of alcohol dependence. The key to this program is that the DUI defendant client is assigned a caseworker. And the caseworker isn’t just window dressing. The court-appointed caseworker evaluates the client in an effort to identify the reasons for his or her alcohol dependence. This might include understanding the client’s history and lifestyle as well as identifying resources that will help the client recover from his or her alcohol addiction. The caseworker is there for support and finding real and meaningful ways to help the offender recover. Often clients of this program will get therapeutic and/or housing help.

The program has been in effect since 2008 and has reported a high success rate. Recently Monterey County announced a similar program under the banner of the “therapeutic collaborative court model” based on the successful Drug Court program in that county, which not only punishes but treats the drug addict. El Dorado County, as well as several other counties in California, also have similar programs underway. These programs, which are established to address the underlying reasons a defendant commits multiple DUI offenses, show a promising approach to the recognition that punishment is often not enough to stop a driver who is addicted to alcohol from driving under the influence of alcohol.


Have you ever heard of the “One Drink an Hour Rule?” According to this rule, if have only drink per hour, your blood alcohol level (BAC) will remain under the legal DUI limit of .08%. (One drink is roughly defined as 1 1/4 ounce of hard liquor, one beer or one glass of wine.) Is this true?


Well, it depends. There is actually no hard and fast rule and a variety of factors can affect your BAC. Things such as your weight, whether you’re eating while you are drinking, and whether you are male or female will influence your blood alcohol level. For example, a female who weighs 110 pounds and has only two drinks in two hours will almost certainly have a BAC of over .08%, while a man weighing over 210 pounds might not register a BAC of over .08% until he has had four drinks during those two hours. Different body types process alcohol differently for several reasons, including body fat content and the concentration of the liver enzyme that breaks down the alcohol. Hormones may also be a factor.


It helps to understand how your body metabolizes alcohol. As alcohol enters your body, small blood vessels carry it to your bloodstream. It is then metabolized by your liver, where it is broken down by enzymes. In general, the liver can process a one drink an hour. But if you drink more than your liver can metabolize, the alcohol accumulates in your blood and body tissues until the liver can do its work. That is why you get much drunker if you have several drinks in a short period of time versus several drinks over a longer period of time.


Perhaps you have had the experience of feeling unusually tipsy after having only one drink before a meal. When you drink on an “empty stomach,” the alcohol is quickly absorbed into your bloodstream, whereas if you have a full stomach, that absorption is slowed down. Because the absorption of the alcohol into your bloodstream is slower when you have a full stomach, there will be a lower blood alcohol concentration in your blood. This doesn’t mean you wouldn’t get a DUI if you took to the wheel after drinking during a big meal, it just means that it might take a bit longer and a bit more alcohol for your blood alcohol level to reach the legal driving limit of .08%. However, this is only one factor and your particular BAC will be influenced by other factors including your weight, your metabolism, and the amount of food you consume.


It is safe to say that if you are a small woman, after the first drink, the one drink an hour rule will almost never apply. However, the larger your body mass, the more relevant this rule becomes. That being said, there many factors that can affect how much alcohol is concentrated in your blood. With each drink, even if it’s only one per hour, you will become increasingly impaired. The best rule is to simply not drink if you are driving.


california supreme court holds that circumstantial evidence of intoxication may be considered in dui hearings

A driver was pulled over in Orange County by the CHP when the officer observed her car swerving erratically. Upon contacting the driver, the officer observed indications that she had been drinking alcohol. The officer performed various field sobriety tests on the driver, the result of which further indicated to the officer that the driver was under the influence of alcohol. The driver was placed under arrest and it was determined by a breath test that she had a blood alcohol level near the threshold legal limit of .08%. A later blood draw indicated a blood alcohol level slightly over the limit at .096%.

She exercised her option to have a DMV Administrative Per Se Hearing to challenge the automatic suspension of her driver license. At the hearing, an expert testified on her behalf. According to the expert, the blood alcohol tests suggested that here blood alcohol level was rising and that at the time of the stop, her blood alcohol level was not at the legal limit of .08%. The expert’s testimony is technical and not relevant for purposes here. Suffice it to say that the gist of the driver’s argument was that she introduced evidence of a fact that rebutted the presumption that she was driving under the influence but the administrative hearing officer and the trial court discounted that evidence (the expert’s testimony) in part by relying on the reports made by the CHP officers who stopped her. The Supreme Court was ultimately tasked with deciding whether the trial court erred by considering the circumstantial evidence established by the officers’ reports of their observations. On April 6, 2015, the Supreme Court issued its ruling where it held that the trial court did not err.

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Drugged Driving, A Growing Threat


Drugged driving is a dangerous trend on US highways. According to The National Highway Traffic Safety Administration, there is a significant increase in drivers driving with illegal, prescription and over-the-counter drugs in their system. Part of this may be due to the fact that people don’t realize that, just because you have a prescription for a drug, doesn’t mean that it is legal to drive while under it’s influence. The same holds true for some over-the-counter drugs. While they are not illegal, if you are driving while under it’s influence and it affects your driving, you are driving under the influence.   The drug showing the greatest increase is marijuana or THC, most likely due to it’s recent legalization in some states. However, the two most common prescription drugs found in fatality and serious accidents are benzodiazepines and opiates.


Although drug-impaired driving is evident in all age groups, the focus seems to be on teens and seniors. According to the NHTSA, two-thirds of senior drivers take five or more medications daily that may affect their driving. Also disturbing is that approximately 23 percent of all fatally injured drivers who test positive for drugs are younger than 25.

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An arrest for DUI with a blood alcohol level (BAC) over 0.08% triggers two entirely separate proceedings: 1) a DMV administrative per se hearing/determination with possible license suspension and 2) a criminal hearing that also carries a possible license suspension. It can happen that the DMV suspends a driver’s license pursuant to the DMV administrative per se determination and then a court conviction on the DUI triggers another license suspension. Usually, these suspensions will run concurrently, but not always.

How can a driver essentially be punished twice for the same offense? Isn’t this double jeopardy? Well, according to the United States Supreme Court, it is not. (Hudson v. United States, 522 U.S. 93 (1997).) The reasoning behind the Supreme Court’s decision has to do with the nature of the “punishment.”

The DMV suspension is considered a sanction that is civil rather than criminal. The California Courts have held that the statutory provisions concerning the DMV administrative per se license suspension have the intent to protect the public rather than punish the licensee. Therefore, when a driver’s license is suspended administratively by the DMV, the driver is not being criminally punished. You might be thinking….well, if it walks like a duck…. but the courts have reasoned otherwise.

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California offers an abundance of outdoor activities. In the summer, we head out for the ocean, lakes and rivers with boats and jet skis in tow. Sunscreen? Check! Beach towels? Check! Beer in the cooler? Check! Designated boat driver? Ummm….

In California it is just as illegal to drive a boat while under the influence of alcohol or drugs as it is to drive a car. The laws concerning boating while under the influence are virtually the same as those for driving under the influence. You can be arrested for driving a boat, manning jet skis, or any motorized device, or, for that matter, manipulating water skis or similar equipment, if you are under the influence of any alcoholic beverage, drug, or combination of the two. In other words, the law encompasses more than just driving a boat; it’s illegal to operate or manipulate almost any equipment on the water while under the influence. Yes, you can be arrested for waterskiing or wakeboarding if you are under the influence while doing so!

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Most states, including California, are members of the Interstate Driver’s License Compact (DLC), which is administered by the U.S. Department of Transportation, National Highway Traffic Safety Administration. The DLC is an agreement between member states to share information about driver violations, including DUI/DWI driving convictions. Pursuant to the DLC, member states are required to report driving convictions to the state in which the driver holds a driver’s license.

Let’s say you are on vacation in Arizona, you go out for a night on the town and get stopped and arrested and eventually convicted of driving under the influence (DUI). Or let’s say you used to live in Texas but now live in California. Four years ago, you were convicted of driving while intoxicated (DWI) in Texas. In both of these cases and in almost any case where a California driver has an out-of-state DUI/DWI conviction on his or her record, it will be treated as a DUI on the California driver’s record as if the DUI conviction occurred in California.

In the case of our hypothetical California driver convicted of DUI in Arizona, the statute mandates the suspension or revocation (depending on prior DUI convictions) of the driver’s California license to drive, just as if the conviction occurred in California. In the case of the Texas driver who moved to California, the DWI conviction will remain on the driver’s California record just as if the driver had been convicted four years ago of a DUI in California . In both cases, the out-of-state DUI/DWI conviction will appear on the California driver’s record and will count as a prior DUI under California law.

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Many of us are familiar with the blatant corruption in some countries where you just pay off the cop that stopped you and be on your merry way. Well, Orange County apparently has its own version of corruption, a court clerk who we might call “The Fixer”.

According to news reports, an unidentified court clerk was fixing DUI charges… for a hefty fee. This clerk was charging thousands of dollars to drivers who were facing DUI and misdemeanor traffic cases in Orange County courts to alter their case record. Among the alterations were changes to case records to create fake plea bargains to a lesser charge, dismissed charges and lowered penalties.

The fixed cases go back to 2006 and are reported to involve over 1,000 cases. It was first discovered late this winter when a single missing document in a DUI case triggered an investigation. The deception was brazen as this clerk not only made up a plea bargain but also “assigned” to the defendants a defense attorney who never actually represented the defendant. The clerk achieved this fraud by figuring out how to enter the computerized court system and make the unauthorized changes.

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Just as it is illegal to drive under the influence of alcohol, it is illegal to drive under the influence of marijuana. It does not matter if the driver has a Medical Marijuana Identification Card; it is still a violation to drive while under the influence of any substance, including marijuana, if that substance affects your ability to drive safely. The statute[1] itself is vague and requires the subjective observations of the officer.

An arrest for driving under the influence of marijuana is treated much the same as an arrest for drunk driving except that the arresting officer will not suspend the driver’s license to drive immediately upon arrest. However, if the driver is convicted of the charge, the court will inform the DMV of the conviction and the DMV will proceed on suspension of the driver’s license to drive and the driver will be required to take DUI classes.

But just how does the prosecution prove that someone was driving under the influence of marijuana? After the arrest, the driver’s blood or urine will be tested for the presence of THC (tetrahydrocannabinol). But detection of THC in a person’s system does not establish evidence that the driver was impaired by this substance. The compound THC, which is the chemical that causes a person to get “high” on marijuana, can stay in a person’s system long after the high has worn off. In fact, THC can stay in a person’s system for days. Therefore, it is not enough for the prosecution to establish that the person had THC in his or her system at the time of the arrest, there must be a connection between the THC levels detected in the driver’s system and his or her driving impairment. Even the National Highway Traffic Safety Administration has stated that it is difficult to establish the effects of THC in a person’s blood and his or her driving performance.[2]

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