In California, many convictions can be “expunged.” (The common term most people use is “expungement,” but it’s not actually an expungement, as will be clear as you read further.)

In most cases, an individual (defendant) convicted of DUI will be eligible to petition the court for this relief. Upon a successful petition, the court permits the defendant to withdraw a plea of guilty and enter a plea of “not guilty,” or on a guilty verdict the court will set aside the guilty verdict. Thereafter, the court dismisses the accusation (complaint) filed against the defendant.

There are several requirements:

A Story:

Michelle was involved in a serious accident at an Orange County intersection. Witnesses reported that Michelle caused the accident when she ran a red light. The occupant of the vehicle Michelle hit was killed. Michelle was injured and transported by ambulance to the hospital. At the hospital, a nurse administered a narcotic to Michelle to subdue her pain. The narcotic affected Michelle’s awareness.

Shortly after she arrived at the hospital, a police officer who was assigned to investigate the accident responded to Michelle’s hospital bed to question her about the accident. As the officer spoke with Michelle, he believed he smelled the odor of alcohol on her breath. The officer asks Michelle if she had been drinking prior to the accident. Michelle told the officer she had one glass of wine with dinner an hour before the accident. The officer asks Michelle to submit to a breathalyzer test, but given her compromised state, she was unable to complete the test. Due to the effect of the narcotics, the officer was unable to ascertain whether she was under the influence prior to her arrival at the hospital.

Whether you think this is a good thing or another step towards a “Big Brother” future, there is an effort to make drunk driving detection a standard feature in all new cars.  New technologies allow impaired driving detection through sensors that can monitor the driver’s eye movement as well as touch and breath sensors that detect alcohol. We already have breath sensors (Ignition Interlock Devices (IIDS)) that many who are convicted of drunk driving are required to install. Reportedly there are approximately 250 such technologies which use smell, touch, camera and/or audio or visual detection.  New regulations may mean that in the future all new cars will be required to install some sort of impaired driving device.

Congress has passed a bill that requires the National Highway and Transportation Safety Administration (NHTSA) to issue a regulation by 2026 that all new passenger vehicles include equipment that monitors for impairment of the driver. This does not mean that all 2026 passenger vehicles are going to be equipped with this technology; the 2026 deadline-if it holds-only requires the NHTSA to issue a regulation.

If the vehicle detects impairment, the new cars must include a means for limiting the driver’s further operation of the vehicle. It is not clear by what mechanism the car could limit the operation of the vehicle. The provision terms the requirement “a national safety standard for passive, advanced impaired driving prevention system.” Some fear that there will be a remote-controlled or automatic “kill switch”. This is unfounded but not outside the realm of possibility since the NHSTA hasn’t issued the regulations yet.  Obviously, the car won’t be disabled amidst traffic. But whatever the technology, it will likely be some form of continuous driver monitoring.

The holidays are upon us – don’t ruin your merriment by driving under the influence. Now is the time to consider your plans. Do you have a designated driver? Is ride sharing an option? Or how about resolving not to drink more than one drink (or none is better) at that Christmas party? Drinking impairs a person’s judgment and that is often why someone gets behind the wheel when they shouldn’t. You should have a plan for your holiday celebrations that includes a strategy for getting back home without getting behind the wheel if you are going to drink.

California law enforcement typically see a 20 to 30 percent increase in DUI arrests during the holidays. One of the reasons for the increased arrests is that most law enforcement agencies across the state intensify their patrols for impaired drivers. At certain dates during the holiday period, when drinking and partying is most prevalent, law enforcement agencies initiate what is termed “maximum enforcement periods.” The other reason for the increase DUI arrests during the holiday is obvious: people are attending parties or otherwise socializing.

Getting arrested for a DUI may be the “second best” outcome next to getting home safely. Driving under the influence can have far more devastating outcomes as everyone knows. Yet, we do it anyway. We all make mistakes. If you find yourself pulled over after drinking even one drink, you risk a DUI.

According to the National Highway Traffic Safety Administration (NHTSA) 13,384 people died in drunk driving related incidents in 2021 (the latest year for which the statistic is available).  This number, according to the NHTSA, represents one-third of all traffic-related fatalities and equates to approximately 37 individuals who die per day as a result of drunk driving.  Approximately 40 percent plus of the drunk drivers who were killed were ages 16 to 24 years old, with 21 to 24 -year-olds having the most drunk driving accidents in the United States. According to Mothers Against Drunk Driving (MADD), 1 in 4 teen vehicle accidents involve alcohol. This is not surprising since this is the age group that is most high risk and presents a disproportionate number of dangers to society.

There is a mix of news in California. Let’s start with some good news. Per the California DMV Annual Report of the California DUI Management Information System (2022) (DUI MIS Report), DUI arrest rates have decreased significantly: more than halved since 2010 from 823 per 100,000 licensed drivers in 2010 to 357 in 2020. Alcohol related vehicle fatalities have also decreased but less so. DUI-related crash fatalities represented 39.1 percent of all traffic fatalities in 2010 and 31.8 percent in 2020. Alcohol related injuries though saw a slight increase from 10.6 percent of all crash injuries in 2010 to 11.4 percent in 2020. Unfortunately, drug related vehicle fatalities have nearly quadrupled over the past 25 years.

Repeat offender convictions have decreased significantly. This is good news and suggests that treatment for those with serious alcohol addiction is becoming more effective and better utilized. California courts have recognized that repeated punishments for DUI offenders with alcohol addictions is not always a successful approach. Collaborative courts allow the repeat DUI offender, under strict individualized supervision and treatment, to avoid incarceration and other punitive measures in favor of rehabilitative treatment. Research has shown this approach to be effective and to reduce repeat offenders from re-offending after successful completion of a DUI court program.

If you have been arrested for a DUI in California, you may be wondering if the police can search your vehicle. The answer is not always straightforward. In general, the police can only search your vehicle if they have probable cause to believe that the search will yield evidence of a crime. This means that they must have a reasonable belief that you have committed a crime, and that the evidence of that crime is in your vehicle.

Here are some examples:

Scenario One: You have been stopped for a traffic violation. The officer smells alcohol on your breath and believes you are over the per se limit of 0.08% BAC. You are placed under arrest for DUI. Can the officer then search your vehicle?

If you are convicted on a DUI (driving under the influence of alcohol or drugs) violation in California, you will be required to attend DUI classes as part of your sentence. The court may also order additional terms of your DUI probation such as attending AA meetings or community service. Failure to abide by the terms of your probation order can result in a number of consequences.

Typically, what happens after the court orders probation on a DUI conviction is that the DUI probationer is required to report his or her progress and/or completion of probation terms. Failing to complete any of the terms of DUI probation is considered a violation of probation and can lead to additional penalties. The court may order you pay fines, complete community service, or even send you to jail for violating probation. In reality though, the court will give you a “pass” on the first and even the second violation, depending on the severity of the violation.

The DMV might not be so forgiving.

For over four years now in California, ignition interlock installations are required after an arrest for driving under the influence of alcohol (even  for first-time offenses) if the driver wants to avoid a temporary suspension of his or her license to drive and mandatory for almost all D.U.I. convictions. The ignition interlock law has been heralded as a “win-win.” The law allows a driver to avoid a suspension of driving privileges and makes it near impossible for that driver to drive under the influence of alcohol as long as the device is installed.

But, how effective has the mandatory ignition interlock device (IID) law been in decreasing drunk drivers and more importantly, decreasing the frequency and severity of DUI-related crashes, injuries, and fatalities?

IIDs have been ordered upon the discretion of the court for many years, and in recent years, these installations have become mandatory in many states, as in California. California actually lags in this respect; by 2013, eighteen states had already made IIDs mandatory for all drunk-driving convictions. According to the CDC, IIDs reduce repeat offense driving under the influence of alcohol by 70%….while they are installed.  Data gathered from these eighteen states suggest approximately 15% fewer drunk-driving related traffic fatalities in a study published in the American Journal of Public Health. The CDC also cites more recent studies that indicate up to 26% reduction in alcohol-related fatal crashes in states requiring an IID upon conviction of driving under the influence of alcohol.

In California, a first-time driving under the influence (DUI) is a misdemeanor offense. However, there are a few exceptions where even a first time DUI may be charged as a felony.

Under Vehicle Code section 23550.5, subdivision (b) a conviction for a first time DUI within a ten-year period can result in a felony conviction punishable by imprisonment in state prison if the defendant had been previously convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5) or vehicular manslaughter (Penal Code section 192.5). While section 191.5 has the element of intoxication, section 192.5 does not. Furthermore, while the DUI statutes generally have a ten-year look back window in prosecuting multiple DUI offenses, section 23550.5(b) does not.

Example: In 2008, Henry, then 18 years old was racing his car in an unlawful exhibition of speed in violation of Vehicle Code section 23109. His vehicle went out of control and broadsided another vehicle killing both occupants in that vehicle. Henry was not intoxicated. He was convicted on two counts of vehicular manslaughter (Penal Code section 192.5). Twelve years later, Henry was arrested for driving under the influence pursuant to Vehicle Code section 23152, subdivisions (a) and (b). It was his first ever DUI arrest. Normally a first time DUI is a misdemeanor and very rarely, if ever, is punished by any jail time at all. But because Henry had a historical conviction of vehicular manslaughter, his DUI was charged as a felony and he faced a potential sentence of imprisonment.

A DUI arrest may surprise the casual drinker. That happened to my client Linda. She is not a big drinker but several years ago she had two glasses of wine while out to dinner. She drank those glasses over the hour-long dinner and thought she was fine to drive. She exited the parking lot onto PCH and got stopped because she failed to use her turn signal. Linda is a small woman and those two glasses of wine put her just over the BAC limit of 0.08%. She was shocked when she got arrested for driving under the influence.

But this post is not about Linda. This post is about most of the DUI clients that come to my office: almost all suffer from alcohol abuse to some degree or another.

Perhaps that is you. And perhaps you have resolved to address your drinking with the new year … as perhaps you have done at the beginning of previous new years. The task may seem overwhelming…how to admit you may have a problem, where to start? For some people, the barrier is the belief that they must quit drinking altogether and that is not something they desire. The prevailing wisdom for many years has been that any alcohol abuse is a sign of alcoholism and the only way to conquer alcoholism is abstinence from alcohol. In recent years, that paradigm is being questioned.