Articles Posted in DUI

NEW LAW WILL REQUIRE IGNITION INTERLOCKING DEVICES FOR MOST DUI OFFENSES

A new law, scheduled to go into effect across the state on January 1, 2019, will put ignition interlock devices (IID) in almost every vehicle driven by someone who was convicted of drunk driving. IIDs are akin to a breathalyzer installed in a vehicle. The devices include a small camera that shows who is blowing into it and have other mechanisms that prevent the driver from any attempts to defeat the device. They are, in fact, pretty much fool-proof.

The new law is, in one way, less restrictive because it will give first time DUI offenders, who caused no injuries by his or her drunken driving, an option of installing an IID for six months with full driving privileges. As the law stands now, a first time (non-injury) DUI offender can only drive on a restricted license usually for a period 4 to 6 months. With the new law, if a person declines the IID, he or she will be subject to a one-year restricted license. .A restricted license allows the driver to only drive to and from work or school and to DUI-ordered treatment programs.

DUI OFFENDERS OFTEN HAVE AN ADDICTION

After 20 years of defending DUI cases I am convinced that many of the individuals who have been arrested for driving under the influence of alcohol or drugs — and especially those who have been arrested for DUI more than once — have an addiction and are in need of treatment. Statistics indicate that on average, the person who is arrested for DUI drove drunk 80 times before his or her first arrest. While it is true that some drivers are just unlucky find and themselves arrested for drunk driving after say a family gathering or other occasion where the driver uncharacteristically had a little too much to drink, most drivers who end up on the other side of my desk have a drinking or drug problem.

I don’t write this to judge or accuse; my goal here is to help. The courts and the DMV almost always order DUI classes and perhaps attendance at AA meetings but I have seen all too many multiple DUI offenders walk into my office. Clearly, the DUI classes and AA meetings don’t always work.

It’s summer travel season and maybe you are planning a trip to another country. Don’t let your R&R be ruined by a driving under the influence arrest. You may not be aware of this but most countries have harsher DUI laws than those in the United States. Now, how strictly those laws are enforced may be another matter but here’s the low down:

In Canada, the BAC threshold runs from 0.05% to 0.08% depending on the province. Same in Mexico, where the BAC limit is determined by state and can run between 0.04% and 0.08%, but the national limit is 0.08% for those states that do not impose their own law.

Going to Europe? You might want to lay off the alcohol altogether if you are driving. In Scandinavia, for example, you can be arrested for a DUI with just a 0.02% BAC (Norway and Sweden). Denmark is slightly more lenient with a 0.05% BAC threshold. Elsewhere in Europe, the BAC reading at which you can be arrested for drunken driving is generally 0.05% although many European countries have a lower threshold if you are involved in an accident. For example, in Germany you can be arrested for drunken driving if you are involved in an accident (regardless of fault) with a BAC of 0.03%. Only Malta and the U.K. have a 0.08% BAC threshold; the rest of the countries run between 0.00% and 0.05%. (Yes, 0.00%: in the former Eastern bloc countries of Hungary, The Czech Republic, Slovakia and Croatia you can be arrested for drunken driving with any amount of alcohol in your system.)

Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

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THE DUI CRIMINAL COURT PROCESS

So you were arrested for DUI. You’ve already requested (or decided not to request) an Administrative Per Se Hearing with the DMV, what comes next? Separate and apart from the DMV hearing, you will be required to appear before a judge in criminal court for an arraignment. This is the first step in the criminal proceedings. Arraignments can often be confusing and it is therefore advisable that you hire an attorney to represent you prior to the arraignment. (If you cannot afford an attorney, a public defender will step into to represent you but often the first time the public defender even sees your criminal file is right before you appear in front of the judge for your arraignment.)

At the arraignment, the judge and prosecutor will throw around a lot of legal terminology that may be unfamiliar to you but what you need to know is that the purpose of the arraignment is for the judge to inform you of the charges against you and for you to plead guilty, not guilty, or no contest. Usually at the arraignment the prosecutor will offer a “plea bargain” wherein you agree to plead guilty in return for a particular sentence. You can accept the offer and plead guilty at the time of the arraignment. If that is what you choose to do, the criminal part of your DUI case will essentially be over. The judge will sentence you and you will only need to complete paperwork at the clerk’s desk and serve your sentence.

WHAT HAPPENS IF YOU VIOLATE THE CONDITIONS OF YOUR DUI PROBATION?

First- and second-time DUI charges that don’t involve an accident, injury, or death almost always end in a sentence of probation, or what is more correctly termed, a grant of probation in lieu of a jail sentence. What happens if you violate the terms of your DUI probation?

First let’s discuss how you might find yourself in violation of probation. Probation on a DUI offense almost always requires that you pay certain fines and fees, that you attend DUI classes, and often that you attend other alcohol-related programs such as a MADD program, attendance at AA meetings. You might be required to complete community service work also. Assuming you are granted a restricted license after the mandatory suspension of your license, a condition of DUI probation will prohibit driving at any time with any measurable amount of alcohol in your system (“zero tolerance”). You may be required as a condition of probation to install an Ignition Interlock Device. The violation of any laws (misdemeanor or felony) while on probation is a violation of your DUI probation; that would include such things as driving without a valid license or without valid auto insurance but not minor traffic infractions.