In California, DUI (driving under the influence of alcohol or drugs) arrest results in two separate procedures: the DMV (Department of Motor Vehicles) case, involving driving privileges, and the criminal case, involving statutory violations.
DMV CASE:
The first thing you need to do if you’ve been arrested for DUI in California is request a hearing; you only have 10 days from the date of your arrest to do so, and without it, your license will be automatically suspended 30 days after your arrest whether or not you are found guilty of a DUI by the court. It is advisable to have an experienced Newport Beach DUI attorney with you at the hearing, as it can be highly technical in nature.
When you are pulled over, you should be given the choice of a blood or breath test. If your blood alcohol content (BAC) is .08% or higher, or if the officer believes that your blood sample will test at or above this level, the officer will immediately take your license and give you a pink paper, giving you formal notice of suspension, a temporary 30-day license, and an explanation of the law involved.
If you are an out-of-state driver, California police cannot confiscate your driver’s license because the license is the property of your state government. This means you can still drive outside of the state of California, but officials will likely notify your state’s DMV because of an interstate compact essentially making a driver have only one record across the states involved. Your own state then may suspend your license as well.
This immediate taking of your license is known as an administrative suspension and is based on California’s “implied consent” theory–any person driving in the state is presumed to have impliedly consented to chemical testing if suspected of drunk driving.
CRIMINAL CHARGES:
California has two provisions under which it can charge a drunk driver with a misdemeanor. One is § 23152(a) of the California Vehicle Code, which prohibits “any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle.”
The other provision is part (b) of the same statute, referred to as the so-called “per se” offense because it is based purely on your BAC. If your blood or breath alcohol sample is .08% or higher, you will be charged with this offense; whether you were driving perfectly normally or passed field sobriety tests makes no difference.
You can be charged with violations of both statutes.
California can also charge you with felony DUI if injury to another person occurs in connection with alleged drunk driving, if you have had three prior DUI convictions in the past 10 years, or if you have had a prior DUI felony conviction within the past 10 years.
PENALTIES:
As far as the DMV is concerned, if you are found to have been drinking and driving, your first offense will get your license suspended for four months. Commit a second offense within 10 years, and you face a one-year suspension of your driver’s license. A third offense draws a 2-year suspension. If you had refused a chemical test at the time of your arrest, on your first offense you face a one-year license suspension, for a second offense a two-year suspension, and for a third offense a three-year suspension.
Penalties under California’s Vehicle Code can become quite complicated, and those listed below are the minimums. Generally, however, first offense penalties include: 3-5 year court probation (no probation officer), DUI School (at least three months if BAC was less than .20%; at least six months if over .20%), 48 hours-6 months in jail, 6-month driver’s license suspension, and fine between $390-$1000.
A second offense within 10 years can bring the following penalties: 3-5 year court probation, 18-month DUI School, 2-year license suspension, mandatory 90 days-1 year in jail, and fine. For second offenses and beyond, you also must have an ignition interlock device installed on your vehicle; this requires you to pass a breathalyzer test before you can start the car.
Third offense penalties include 3-5 year court or formal probation (with a probation office), 18-month DUI School, 3-year license revocation, mandatory 120 days-1 year in jail, and fine.
As noted above, a fourth DUI within a 10-year period can result in a felony DUI charge; penalties include up to 5 years in prison, permanent loss of license, and a fine up to $5000. If charged as a misdemeanor, a fourth offense carries a mandatory 180 day-1 year jail or prison term, 4-year license revocation, and fine up to $1000.
Note that California also has penalty enhancement provisions, possibly increasing your sentence, including:
• Driving more than 20 m.p.h. over the speed limit on a surface street or 30 m.p.h. over the speed limit on a highway.
• Having a child under the age of 14 in the vehicle at the time of arrest.
• Having a blood alcohol content over .20%.
• Driving on a suspended or restricted license.
• Having a previous DUI conviction in another state.
Also, California has a zero tolerance policy for those under the age of 21 caught drinking and driving; a blood alcohol content of even .01% can receive a one-year suspension of driving privileges in addition to any other court action.
Because of the complexity of California DUI laws, including the interplay between the DMV and criminal cases, if you are arrested for drunk driving, contact Newport Beach criminal defense attorney Maltaise Cini an experienced California DUI attorney at (949) 660-1389 immediately.