Consequences Of DUI With Passenger Under The Age Of 14

In California, if you are arrested for driving under the influence and you have a passenger in your car under the age of 14, Vehicle Code section 23572 states that any sentence/punishment associated with the conviction of DUI may be enhanced. The enhancement depends upon whether it is your first, second or third offense for driving under the influence. For a first offense, the enhancement would be an additional 48 hours in jail and up to 90 days in jail for multiple offenses. This is in addition to your sentence for the underlying DUI charge.

So what this means is that when the District Attorney is filing their case, they may or may not include the enhancements for having a child under the age of 14 years. This often depends upon the circumstances of the arrest such as, the blood alcohol level of the defendant, the driving pattern, the age of the child, and the officer’s observations of the defendant during the initial stop.

On a more serious note, if someone is arrested for DUI with a child under the age of 18 in their car, they may be charged with Misdemeanor Child Endangerment, under California Penal Code section 273a, for willfully causing or permitting the child to be placed in a situation where his or her person or health may be endangered. The California Courts have determined that driving under the influence with a child in your car falls within the category of placing a child in a situation where his or her health may be endangered. Depending on the circumstances, 273a can also be charged as a felony.

After the case is submitted to the District Attorney, the DA has the discretion to charge a straightforward DUI, a DUI with sentence enhancements or the separate of charge of misdemeanor or felony child endangerment. Under Penal Code 273a, the prosecution may charge child endangerment regardless of the age of the minor.

Not every DUI where a child is present is filed as a misdemeanor child endangerment. The DA will look at everything from the blood alcohol level to how the driver was driving. As an example, if someone is pulled over for a minor traffic violation or mechanical violation, and not due to “drunk driving”, their blood alcohol level was just at or barely above the legal limit and the child is securely fastened in their seat, given this set of circumstances, the District Attorney may chose to file charges of DUI only or DUI with an enhancement for having a child under the age of 14 in the car.

In order for the prosecution to use a sentence enhancement, it must be proven that you were driving under the influence and that you had a minor, under the age of 14, in the car with you. Most prosecutors will take into consideration the following when determining whether or not file use sentence enhancements: 1) whether you intended to harm the child, 2) your blood alcohol level at the time of the arrest, and 3) your driving pattern prior to the stop.

It is important to note that you cannot be charged with enhancements or child endangerment if you are not convicted of the initial DUI. For this reason, it is extremely important to consult with an experienced DUI defense lawyer, as he or she may be able to influence the outcome of your conviction.

In California, when a driver is arrested for driving under the influence, they are given a temporary, 30-day license from the Department of Motor Vehicles. On that notice, it states that the license is good for only thirty days and that after that time, the driver’s license will be suspended unless an Administrative Per Se hearing is requested. This request must be made within 10 days of the date of the arrest. The following is a list of situations for which the DMV may suspend your license:

  1. Driving with a blood alcohol level of .08% or higher;
  2. Refusing to submit to a chemical test or, if under 21 years of age, refusing to submit to a PAS test;
  3. Refusing to submit to a PAS test if you are on DUI probation;
  4. Driving with a blood alcohol level of .01% or higher if on DUI probation;
  5. Driving with a blood alcohol level of .01% or higher if under 21 years of age;
  6. Driving a commercial vehicle with a blood alcohol level of .04% or higher.

As well as the DMV suspension action, all Court convictions for driving under the influence will trigger a license suspension. The only exception to this is if the driving under the influence charge can be pleaded as a “wet reckless”. A conviction for wet reckless does not trigger a license suspension.

The length of the suspension is dependent upon a how many prior convictions the individual has and whether the conviction is for driving under the influence or driving under the influence and causing bodily injury.

For a first time DUI, the DMV will impose a six-month suspension. The good news is that after serving a 30-day “hard suspension”, the individual may apply for a restricted license. To do this, you must first enroll in a first offender program, get a SR22 from your insurance company, and pay a reissuance fee to the DMV. If all of this is done, the DMV should issue you a restricted license, allowing you to drive to and from work and your alcohol program.

It is important to note that if you choose to apply for a restricted license, the total suspension time is six months. If you choose not to apply for a restricted license, and choose to accept the original suspension, the suspension period is four months. It is also important to note that if you refuse to submit to a chemical or breath test when asked to do so by a police officer, your driver’s license will be suspended for one year and, the refusal makes you ineligible for a restricted license.

I always recommend requesting an admin hearing with the DMV, along with a stay on the suspension. However, there are some situations where it may be best to just get the suspension started. An example of this would be if, the evidence is overwhelmingly in the prosecutor’s favor and, the individual is in custody on this or another matter, it might make more sense to let the suspension period start to run.

There are strategic reasons for and against an APS hearing, which is why it is always best to seek the advice and assistance of an experience DUI attorney immediately if you have been arrested for driving under the influence.

 

 

Driving Under The Influence And Hit & Run In Orange County

Under California law, anyone who is involved in an accident is required to immediately stop at the scene, provide the other party involved with contact and insurance information, and to assist anyone who may have suffered injures. Failure to do any of these requirements can result in being charged with hit and run. More seriously, being under the influence of alcohol at the time of the hit and run, will result in multiple charges and potentially serious consequences.

DUI at the time of a hit and run usually involves several offenses and may result in one or more of the following charges:

  • Driving under the influence
  • Hit and run
  • If there were injuries, bodily injury
  • If someone was killed, vehicular homicide
  • Reckless driving

Any prior convictions for driving under the influence will be taken into consideration by the District Attorney and will result in more serious consequences.

DUI with Hit & Run – Misdemeanor or Felony?

Are DUI’s with hit and run charged as misdemeanors or felonies? The answer is it depends. If there were no injures as a result of the hit and run, then it will be charged as a misdemeanor. However, if you have prior DUI’s, it may be filed as a felony and, if there were serious injuries or death as a result of the hit and run while DUI, this would be considered a felony as well.

A first offense of DUI Hit & Run with injuries can still result in a prison sentence and a maximum fine of up to $10,000.00. If it is the second, third or more offense, the penalties and punishments will be much harsher.

Can a Felony DUI Hit & Run be charged or tried as a Misdemeanor?

The answer is yes. It’s called a Wobbler. What this means is that, depending upon the specific circumstances of the offense, the District Attorney can agree to file the case as a misdemeanor, drop the case down to a misdemeanor or try the case as a misdemeanor. The result of this is that the penalties are not as severe. For instance, the penalty may be probation rather than doing time or, jail time rather than prison time. Whether or not the District Attorney can be persuaded to try the case as a misdemeanor will depend on how serious the injuries were, the degree of neglect or malice and any prior DUI convictions, if any.

Vehicular Manslaughter or Homicide as a result of DUI Hit & Run is of course a felony and is considered a violent crime. The consequences are quite severe in that an additional five-year state prison term can be added to any sentence, as well as any other penalties that are applicable.

Anyone who has been arrested for DUI Hit & Run, whether it be a felony or misdemeanor should immediately seek the assistance of an experienced criminal defense lawyer, and one that has extensive experience dealing with this type of crime.

 

DUI’S WITH PRIORS

If you have been arrested for driving under the influence in Orange County California, hiring an experienced DUI Defense Lawyer should be your first step toward getting the DUI arrest behind you. Although a conviction for first time DUI will result in penalties and fines, having an aggressive Orange County DUI defense attorney can help to mitigate the severity of the consequences.

It is true that a first-time DUI can cause extreme stress in someone’s life but, being arrested and charged with a second, third or fourth DUI is very serious and can have long lasting, and devastating effects on a person’s life for years to come. At the very least, consulting with an attorney who has experience in dealing with prior offense DUI’s, will give you an idea of what you may be facing and, whether or not the District Attorney has a slam-dunk case against you.

When dealing with a new DUI arrest with priors, it is absolutely crucial that your attorney look closely at every detail, beginning with the stop, and all the way to the blood or breath collection process. Did the police officer have probable cause to pull you over in the first place? What some people don’t realize is that a police officer can’t just pull someone over because they see them pulling out of a bar at 1:30 a.m. and assume that person has been drinking. The officer has to observe some sort of traffic violation or problem with the vehicle itself, in order to pull that person over.

The administration of the field sobriety tests, if any, must be looked at, as well as any roadside administration of a breath test. If no roadside tests were performed, the whole process of blood or breath collection at the station needs to be evaluated by your attorney to be sure it was legally done. The maintenance logs for the machines used also need to be evaluated to determine that they were functioning properly. These are all extremely important because, this is the basis for the prosecution’s case and it is your attorney’s job to look for holes and errors in their case.

The following is a brief review of the penalties and punishments for DUI convictions and, as can be seen, the severity of the punishment increases with each new conviction:

Conviction for First DUI

Typically, for a first time DUI conviction, you driving privilege will be suspended for up to four months. The Court fines and fees range from $390.00 to $1500.00 and you will be required to attend a 3-month or 6 month alcohol class. The length of the class will depend upon what your blood alcohol level was. The Court can impose a jail term up to 6 months but typically, a 3-year informal probation is imposed instead.

Conviction for Second DUI

If you are convicted of a second DUI, you can be sentenced to 90 days to 1 year in jail. Fines are typically $390.00 to $1,000.00. There is also the possibility of penalty assessment. Your license may be suspended for up to two years and there is a mandatory 18-month or, depending upon your blood alcohol level, 30-month alcohol treatment program.

Conviction for Third DUI

A conviction for a third DUI can carry a jail term for 120 days to 1 year. The fines are the same as the second DUI conviction, which is $390.00 to $1,000.00. However, your license suspension can be for up to three years and the alcohol treatment program is the same, 18 to 30 months.

Conviction for Fourth DUI

If you are convicted for a fourth DUI, you may be facing 180 days to 16 months in jail. With a fourth conviction, the prosecution will typically demand some sort of jail time however; there are alternatives to this which your attorney should fight for. The fines are the same as with a 2nd and 3rd DUI but the license suspension is increased to up to four years.

If you or someone you know has been arrested for driving under the influence, contacting an experienced DUI defense attorney should be the first priority in an effort to minimize the severity of the consequences of a conviction for driving under the influence.

 

 

 

Typically, if you are arrested for driving under the influence or driving while intoxicated, you will be charged with a misdemeanor. However, there are situations that can and will result in a felony DUI. Here are some examples of felony DUI’s:

  1. Fourth or More DUI

A fourth, or more, arrest for DUI, within a ten-year period, will automatically be filed as a felony. A felony is obviously more serious in terms of the consequences but it also has a more serious long-term effect on a person’s life. A conviction for a 4th DUI typically requires jail time. However, depending upon the individual’s circumstances, alternative sentencing may be an option. For someone who has a family and a job, and who may be the sole support of their family, an aggressive DUI defense lawyer is absolutely crucial. Getting creative with the sentencing that will both satisfy the Court and help the individual keep their job, should be the goal of the attorney.

  1. DUI with Great Bodily Injury

If you drive while intoxicated, and cause “great bodily injury” to your passenger or another, you may be charged with felony DUI. In order for you to be charged with great bodily injury, two things must be determined: 1) You have to be at fault for the collision; and 2) The physical injuries sustained by your passenger or another, must be determined to be “great bodily injury”. When the District Attorney is reviewing the file, he or she will review the case to determine how serious the injuries are.

  1. Past DUI Felony Conviction

If you have a prior conviction for felony DUI, even if it is only one prior, you may be charged with a felony if you get a second. The key here is that the prior was a felony.

  1. Vehicular Manslaughter While Intoxicated

Vehicular Manslaughter is defined by Penal Code section 191.5(a) and states: “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where driving was in violation of Section 23140, 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

It’s important to note here that, when someone is convicted of a DUI, at the time of the sentencing, they must sign what’s called a “Watson Waiver”. This waiver basically says that you understand that if you get a DUI in the future, and that the DUI caused the death of another person, you can be charged with second-degree murder rather than manslaughter.

 

Driving under the influence, or driving while intoxicated can result in serious consequences. But, being arrested and charged with DUI in Orange County may elevate the level of severity and make it more difficult to achieve a favorable outcome. The reason for this is that Orange County is generally extremely strict when it comes to drunk driving or drug driving. For this reason, if you are arrested for DUI anywhere in Orange County, your best chance at a favorable outcome is to consult with and engage the services an experienced DUI defense lawyer who is familiar with the district attorneys, judges and court staff in the Orange County Courts.

Most people do not realize how much power the California Department of Motor Vehicles has until they are forced to come in contact with them.  Unfortunately this is usually as a result of being arrested for driving under the influence.

In California, the law allows the DMV to conduct their own administrative hearing to determine whether an individual was driving with a blood alcohol of .08 or higher, regardless of the outcome of any criminal proceedings.  Because the DMV administrative hearing is not a criminal hearing, they are not held to the same standard and the individual being accused of DUI is not afforded the same constitutional protections as they are in a criminal proceeding.

The DMV hearing officers who conduct these administrative hearings are not lawyers or judges and are not required to have legal degrees.  They act as both prosecutor and judge when conducting a hearing.  They rely on the information they receive from the arresting agency and on whatever blood alcohol results the agency submits.  Although the hearing officers should be concerned with whether or not the arresting officers followed proper procedures when stopping, detaining and arresting an individual, their conduct at the hearing seems to indicate that they are not.  For example, if a police officer does not have reasonable cause to pull someone over, and it can be proven, the court case would have to be dismissed, regardless of the results of the blood alcohol level of the individual.  The same should apply to the DMV Administrative Hearing but, as evidenced in a recent case in Orange County, the DMV continually ignores police officer errors.  In this particular case, the police officer illegally obtained a test showing that the individual’s blood alcohol was over the legal limit and therefore, the case was thrown out.  However, even in the face of a court ruling that the test was obtained illegally, the DMV chose to ignore this and suspended the individual’s license anyway.

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Every summer, the Orange County Sheriff’s Department launches their “Summer/Labor Day National Anti-DUI mobilization” in an effort to minimize the number of people who get behind the wheel after drinking.  The campaign has been in effect for several years now, and the Sheriff’s Department has made the campaign public, hoping to deter people from driving after a night of drinking and partying with friends.

The campaign usually starts sometime in late June or early July and continues through Labor Day weekend.  The Sheriff’s Department puts out extra effort to crack down on drunk drivers during this time because the summer months, after school lets out, is the time when people are celebrating the end of school, graduations and vacations.   Also,  summertime in Orange County, with its beaches and great weather, brings people out of their homes to socialize in their beach communities.

The campaign this year began with the “Avoid the 38″ campaign, which started on August 15th and ended on August 24th.  The campaign consisted of officers and deputies from 38 Orange County law enforcement agencies, and resulted in 483 arrests for DUI of alcohol and/or drugs.  This number is up from 374 arrests that were made during the same campaign in 2013.

Over the next several days, the campaign will continue, along with extra DUI Saturation Patrols, through the Labor Day weekend.  It’s not only the DUI task forces who will be on the lookout for drunk drivers, the regular traffic/patrol officers will be especially vigilant  in their efforts to stop and arrest drunk drivers.

Drivers in Orange County can expect multiple DUI/Driver’s License Checkpoints, along with the task force presence, to continue through Labor Day and should plan accordingly when out socializing and drinking.  Even if you have only two drinks, if you end up at a checkpoint and are asked if you have been drinking, your answer “yes” will prompt the officer(s) to check further for signs that you may be over the legal limit of .08.

If you would like to know more about the penalties and consequences for being arrested for DUI or, if you would like to know more about the guidelines for DUI checkpoints, please see the links below.

Driving Under The Influence Penalties

 

What Are Some Of The Guidelines for DUI Checkpoints?

 

 

If you have been arrested for DUI in Orange County, California, you need a lawyer who can protect your rights and who will make sure that your rights are not violated. Orange County is considered very strict when it comes to driving under the influence and they take it very seriously.

It is understandable that you are probably feeling afraid, confused and angry about what has happened and what you may be facing as a result of your arrest. The whole process of being arrested, taken to jail, fingerprinted and photographed is embarrassing and scary and we are very sympathetic to that. But, the reality of the situation is that a conviction of DUI can have very serious consequences. However, having an experienced attorney can help to mitigate the severity of those consequences.

There are many possibilities that can be challenged in an arrest and potential conviction for DUI. An aggressive defense attorney will raise those challenges, and look for those challenges to see if they apply to your situation. Closely reviewing the police report, viewing any video and listening to audio can sometimes reveal inconsistencies in the police officer’s report and/or testimony.

Although our goal is always to have the case dismissed without a conviction, as well as preserve your right to drive, when the evidence is overwhelming against you, the next step is to be aggressive and creative with the ultimate outcome. The first thing we always look at is was the stop and arrest legal. Did the arresting officer have cause to pull you over and ultimately arrest you? Were any of your rights violated with regard to the stop and arrest? These are questions that must be addressed immediately to determine what the rest of the case may look like going forward.

Another very important piece to the arrest is, was any equipment used in assisting the officer with his decision to arrest you? If so, was it working properly and was the officer who administered the test certified to do so. If any of these procedures were not followed properly, it may result in your case being dismissed and preserve your right to drive.

There is no guarantee that any attorney will be successful because each case is different and has a different set of circumstances. Each case has to be looked at individually, looking for those errors, mistakes or inconsistencies on the part of the arresting officer. Further, taking a look at your life, your history, your family and just getting to know you will help us when it comes time to talk to the District Attorney. We feel it is extremely important that the prosecution and judge know you as a person, not just as the person who has been arrested for DUI.

So, even if you know that you were in fact over the legal limit when you were stopped and arrested, you should consult with an experienced DUI attorney to determine whether or not you have a chance at preserving your record.

Anyone who is arrested for driving under the influence faces the possibility that his or her driving privilege will be suspended by the Department of Motor Vehicles. So, not only will you have to defend your case in Court, you will also have to defend yourself to the Department of Motor Vehicle. There are two separate hearings and, one has nothing to do with the other. The Department of Motor Vehicles hearing is an Administrative hearing, not a criminal court proceeding.

The Department of Motor Vehicles’ role is not to determine whether or not you have committed a crime, only to determine whether you were driving under the influence of alcohol or drugs, a violation of the Vehicle Code. This subjects you to suspension or revocation of your driving privilege.

When determining whether or not your driving privilege will be revoked or suspended, the DMV focuses on the following only:

If you took a blood or breath or a urine test:

• Did the officer that pulled you over have reasonable cause to do so; did he/she have reasonable cause to believe that you were under the influence and, did the officer have reasonable cause to believe you were driving the vehicle in which you were in.
• Was the arrest legal, meaning did the officer follow all of the rules and guidelines to make the arrest?
• Did the test results show that you had a .08% or higher alcohol content in your body?

If there was no test given or, if you refuse to complete or submit to a test, the DMV will suspend your driving privilege based on your refusal and/or failure to complete the test. In this situation, the DMV will look at the following:

• Was the stop lawful and were you driving the vehicle.
• Were you asked to take a test?
• Was your arrest lawful?
• Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or urine, (if drugs are suspected), that your driving privilege would be suspended or revoked?
• Did you refuse to submit to or failed to complete a blood or breath test, or a urine test after being requested to do so by a peace officer?

If your response to any of the above questions is No, you may have a chance at getting your driving privilege restored. A good experienced DUI defense attorney can take a look at your case and determine whether or not you have a shot at prevailing at a DMV Administrative Hearing.

It is important to keep in mind that, if you are arrested for DUI, you have only 10 days to request a DMV hearing. If you fail to request a hearing, the DMV will automatically suspend or revoke your driving privilege.

While it is very difficult to win a DMV hearing, it can be done. Hiring an attorney who has experience in conducting these hearings, who knows what to look for, and what types of defenses the DMV Hearing Officers will accept, will help your attorney determine whether or not you will be successful. However, in all cases, your attorney should always request a DMV hearing and attempt to help you keep your driver’s license.

In California, driving under the influence is considered a serious offense and the consequences to such a crime reflect just how serious it is. The consequences are set up so that it impacts one’s life in such a way as to deter the offense from happening again. However, there are those who do end up with multiple DUI’s, and with each new charge, the consequences become more severe.

While driving under the influence in general are filed as misdemeanors, there are situations where it may be charged as a felony. Among those situations is if you are arrested and charge with a fourth DUI, within a ten-year period of time. As mentioned above, with each new conviction, the consequences become harsher. Four a fourth DUI, the maximum period of sentence for a felony DUI, without any injury to any person, may extend up to three years.

Other circumstances that may cause a DUI to be filed as a felony are: 1) Bodily injury to another person and 2) If you have at least one prior felony DUI on your record.

Prison time can be imposed, but it is not mandatory. Before we get to the sentencing stage, let’s take a look at the present arrest for DUI, as well as the priors. A good DUI defense attorney will look carefully at the priors. For instance, were they all within a ten-year period? This is crucial because if even one of the priors was more than ten years ago, it could make the difference in a misdemeanor filing and a felony filing. Also, taking a look at each individual prior to ensure that they were proper convictions is important. If there is any way to take a prior out of the situation, your attorney should pursue this aggressively.

The new DUI should of course be looked at very carefully. Making sure that all law enforcement procedures were followed correctly, the blood or breath tests administered properly, the initial stop was a legal stop, and that the report is accurate. Taking a look at the calibration of the machines used and the blood draw procedures and tests must also be reviewed, looking for any errors or discrepancies. Any errors, inconsistencies or questionable procedures may be enough to get the case dismissed.

However, if it appears that all procedures have been properly followed, and a conviction imminent, we must then turn our focus on alternative sentencing. The maximum sentence for a felony DUI, as mentioned above, may extend up to three years and while prison can be imposed, it is not mandatory. A lot will depend upon the circumstances surrounding the new conviction.

A fourth conviction for DUI is very serious and the prosecution will pursue jail or prison time. An aggressive DUI defense attorney will try to convince the District Attorney and Judge to allow alternative sentencing. But, it depends upon many factors. For example, what was the blood alcohol, how long has it been since your last conviction, what steps have you taken to remain sober and what is happening in your personal life. IN other words, are you married with children? Do you have a job? Are you the sole support of your family? These are all things that will come into play when trying to convince the judge and district attorney to allow alternative sentencing.

Alternative sentencing includes the following:

1) Electronic Monitoring
2) Work Release or Work Furlough
3) City Jail
4) Alcohol or Drug Rehabilitation
5) Sober Living
All of these options should be explored in an effort to avoid going to jail or prison. These types of alternatives will allow you to work or go to school, and allow you to still have some form of regular contact with your family.

Convincing the District Attorney and the Judge that these options are much better solutions than jail or prison, especially when the problem is more than likely addiction, is the best option for you. These options allow the individual to work on their sobriety without loosing everything important to them.