Articles Posted in Uncategorized

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(This post applies only to persons over the age of 21 or who are not on probation for a previous DUI.)

What should you do if you are stopped while driving a vehicle and the cop suspects you are driving under the influence of alcohol? The laws that govern a DUI stop provide you with less rights than you would have during an ordinary police contact. The premise underlying this diminished due process on a DUI stop is that driving on California roadways is a privilege, not a right, and therefore you are not afforded all the protections provided in the Constitution. But you still have certain rights when you are stopped on suspicion of DUI.

When you are pulled over for suspected driving under the influence, you are considered detained and you are not free to go. Even though the officer has not yet read you your “Miranda rights,” which is not required until you are arrested, your right to remain silent is triggered at the time of the detention. You must provide the officer with your driver license (and car registration) but beyond that you do not have to answer the officer’s questions. As with any police detention or arrest, your best approach is to be politely cooperative and provide your identification, but to let the officer know that you wish to remain silent.

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Many people don’t know that a DUI conviction may have other consequences beyond the driver’s license suspension, probation, and mandatory DUI classes. In California, there is a huge body of administrative law, much of it quasi-criminal. The immediate administrative per se suspension of a DUI arrestee’s driver license is an example of an administrative law. Although the courts have ruled that most administrative laws that sanction an individual are constitutional, many, if not most, of the quasi-criminal administrative laws do not afford the individual the same due process protections that the United States and California Constitutions guarantee in a criminal prosecution.

Many who are arrested for DUI in California will only experience the administrative consequences of a per se suspension of his or her driver’s license and DMV sanctions. However, what many don’t understand is that a DUI goes on the person’s criminal record and that can trigger other administrative sanctions in California.

For example, a person convicted of a DUI—even a first-time DUI—and who works as a child caregiver, or even just volunteers in an after-school program, will very likely hear from their employer that the State of California will no longer allow him or her on the premises. In other words, a childcare employee could find themselves barred from their place of employment simply because he or she was arrested and convicted of a first-time DUI.

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HOW LIKELY IS IT THAT I WILL GO TO JAIL IF I AM ARRESTED FOR DUI?

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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BOATING UNDER THE INFLUENCE

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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WHAT HAPPENS WHEN A CALIFORNIA DRIVER IS ARRESTED FOR DUI/DWI IN ANOTHER STATE

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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Can I Fight My DUI Case

Being arrested for driving under the influence of alcohol or drugs doesn’t mean that you will be convicted of driving under the influence. An experienced DUI defense lawyer will know the defenses available and will know what to look for when reviewing your case.

Your driving pattern is usually the first thing an arresting officer notices, and is usually the first thing the District Attorney will focus on. The police report will most likely document some sort of traffic violation or weaving within your lane. But, just because you are a bad driver doesn’t mean you were intoxicated. People commit traffic violations all the time while sober and weave within their lanes for a variety of reasons. So, these driving patters, which an officer relies on, are not a reliable indicator that an individual is driving drunk.

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When you hear the word “enhancement”, it sound like a good thing. But when you are talking about enhancement as it relates to a DUI sentence, it means that the potential sentence may be enhanced, meaning additional penalties.

An enhancement adds additional penalties to a dui penalty due to some other factor associated with the dui incident. Here are some situations, which may cause an enhancement:

  1. If you refuse to submit to a blood alcohol test after you have been arrested, the District Attorney may add an enhancement, which could result in additional jail time or higher fees and fines.
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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.

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Being arrested for DUI is embarrassing and can cause extreme anxiety, as well as the effect is has one one’s day-to-day life. My job is to help you through this long, complicated process. From the DMV Administrative hearing all the way up to Trial, if necessary. In prior blogs, I have discussed some of the different defenses to driving under the influence. There are many ways to challenge a DUI but each case is unique and must be looked at individually. In some situations, when none of the defenses seem to fit your case, you may decide that you want to go to Trial rather than pleading. It is also my job to advise you of both the pros, as well as the cons to such a decision.

There are many charges that can be associated with a driving under the influence. They include DUI of not only alcohol but also prescription drugs or marijuana. Police Officers can now charge you with DUI even if they didn’t see you drive but you were behind the wheel. This is known has having physical control over the vehicle. These types of cases are complex but can be successfully challenged and won. Reckless driving and negligent driving are also charges that can come with a driving under the influence charge. Driving on a suspended license, hit and run, minor in possession of alcohol and furnishing liquor to a minor are other charges that I have defended that were associated with DUI charges.

A conviction for driving under the influence is a serious charge and the consequences can be quite extreme, depending on the circumstances. As discussed in prior blogs, the punishments for DUI vary depending upon whether it is your first, second, third, etc., how high your blood alcohol level was, was there an accident involved, were there children in the car, etc. A conviction results in a loss of your driving privilege for a period of time, along with other consequences. Just the loss of your driver’s license is bad enough. So taking the time to find the right attorney and ask questions is important and can make all the difference in the outcome.

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As anyone who has been convicted of driving under the influence can tell you, the consequences definitely have a negative impact on one’s life. But, the consequences of multiple convictions will result in much more than just having a negative impact; it may, and usually does, result in jail time. How long depends upon several things such as 1) how many priors you have; 2) your blood alcohol level for this arrest, as well as the other; and 3) whether the priors are “priorable” meaning were they within the past ten years.

In a situation where the evidence in your most recent arrest for DUI is so overwhelming that a conviction is imminent, your defense attorney should begin to focus on alternatives to jail time. Because law enforcement and courts are cracking down on driving while intoxicated, they are demanding that multiple offenders be ordered to spend time in jail, or in some cases prison, depending upon the circumstances. One alternative to spending time in jail is “SCRAM” and could be the alternative to jail time if you have a good DUI defense attorney. Below is more information on SCRAM and how it works.

SCRAM stands for Secure Continuous Remote Alcohol Monitor. It is a high-tech monitoring tool used to track an individual’s alcohol consumption and is worn like a bracelet on the ankle of the individual being monitored. The individual wearing the bracelet can be monitored 24 hours a day, seven days a week. The bracelet is able to read the blood alcohol level and report those readings to law enforcement. The difference between a blood or breath test and SCRAM is that, unlike blood and alcohol tests, the bracelet can obtain a sample of the wearer’s sweat and can detect any alcohol that may be present in the person’s skin. While being worn, the wearer’s sweat is tested every half hour. Any amount of alcohol detected would be a violation in that those who are fortunate enough to wear the SCRAM bracelet in lieu of jail time are not allowed to consume any alcohol at all, regardless of how little they consume.

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