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DUI/DWI IN CALIFORNIA LAW

Driving Under the Influence of Alcohol or Drugs.

Note: DUI laws vary from county to county.

Blood Alcohol Concentration ("BAC")

Blood alcohol concentration ("BAC") is a measure of how much alcohol is in the driver’s blood divided by the driver’s blood volume. BAC is not an absolute number – but a percentage. For example, if the BAC is .01%, then there is 1 part alcohol for 100 parts blood in the driver’s body. The driver is legally drunk when the amount of alcohol in his or her body is at or above the legal limit. A blood test, urine test or breathalyzer can be used to find the driver’s BAC. Below are the BAC limits for California.

  1. Standard BAC –.08% or above.
  2. Zero Tolerance BAC (drivers under the age of 21) – .01% or above.
  3. BAC for professional drivers – .04%.
  4. High BAC – a BAC of .15% or higher can lead to higher penalties at the discretion of the judge, even on a first offense.
  5. Probation BAC – if a driver is on probation for a DUI and driving with a BAC of .01%, probation is violated and the stop may result in another DUI conviction.

Procedure

Initial encounter with law enforcement

A police officer, who lawfully arrests a driver for a suspected DUI, can require the driver to take a "chemical test" for the purpose of determining the driver’s BAC. The combination of driving a car and then being lawfully pulled over is considered consent for the test. The officer is required to tell the driver that the driver can choose between a breath, urine or blood test. If a chosen test is not available, the driver may have to take another test. The driver does not have to consent to a breathalyzer test in the field – but the driver does have to consent to one of the available chemical tests. The driver has a right to have an attorney present during the blood, urine or breathalyzer test.

Implied consent & chemical test refusal

If the driver refuses to take the chemical test, the police officer is required to tell the driver that the refusal will result in a fine, a mandatory jail sentence and a mandatory suspension of the driver’s license for one year after a first offense, for two years after a second offense and for three years after a third offense within a ten year period. If the driver refuses to submit to a chemical test on more than one occasion, the officer is required to advise the driver that he or she will be disqualified from operating a commercial motor vehicle. If the driver refuses to take the test or the driver’s BAC is above the legal limit, the driver will be arrested.

If the driver is found guilty, the refusal to take a chemical test can be considered by the judge for the purpose of increasing penalties otherwise incurred (example: whether probation should be granted in place of imprisonment).

Evidence ("probable cause") the police require for a lawful arrest:

  1. General observations of behavior when pulled over
  2. Information from talking to the driver
  3. "Field Sobriety tests" - ex: balancing on foot, line-walking or reciting alphabet (warn the officer of any physical conditions that interfere with your ability to perform a sobriety test).
  4. Chemical test

Navigating the System after the arrest (No-injury DUI)

Administrative Procedure Vehicle Code 13577, Vehicle Code 13578.

Note: It is possible for the administrative and criminal proceedings to come to opposite results. For example, the DMV administrative proceeding may not suspend the license, but the court may still find the driver guilty and then suspend his or her license.

  1. Automatic Review

    The officer automatically forwards the police report to the DMV. The DMV automatically holds an administrative review. If the driver is found to have driven under the influence, the DMV issues and sends a license suspension report to the driver.

  2. Hearing

    If the suspension or revocation is upheld at the review, the driver has 10 days to request an administrative hearing. The administrative hearing is held before a Driver Safety Hearing Officer. The driver can bring a lawyer to the hearing, but does not have a right to counsel. At the hearing the driver can bring witnesses and cross examine the witnesses against him or her. At the hearing, the following are reviewed:

    • Police officer’s report.
    • The suspension or revocation order.
    • Any test reports (chemical tests and field tests).
  3. Review

    After the hearing, the driver has a right to request an administrative review or appeal to the courts. The driver is required to pay a fee of $120. The request for a review does not stop the penalties from going into effect.

  4. Driver’s License Consequences
    • First DUI:
      • License suspension: 6 months, possibility to restore for hardship after 30 days.
      • After 90 days, the driver may be eligible for a restricted driver’s license.
      • Under 21 – one year suspension; Mandatory DUI School.
    • Second DUI in ten year period
      • License suspension: 2 years.
      • After 12 months driver may be eligible for restricted license.
      • DUI School: either 18 – 24 months.
    • Third DUI in ten year period
      • License suspension: 3 years.
      • DUI School: either 18 – 24 months.
      • After 12 months, driver may be eligible for restricted license.
  5. Restricted License under the following circumstances
    • Enrollment in an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code; or, enrollment in a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code.
    • Installation of an "ignition interlock device." A driver has to breathe into the device installed in the car. If the driver is sober, the car will turn on.
    • Proof of ability and willingness to pay for any harm caused by the driver when he committed the DUI.
    • Driver pays all required fees.

Criminal Procedure

NOTE: The criminal case is separate from the administrative case. A result from the administrative case does not affect the criminal case and vice versa (even when the administrative case ends up in court on appeal). In legal terminology, the administrative case has "no collateral estoppels effect on a subsequent criminal prosecution."

The criminal case against the driver ("the defendant") is governed by generally applicable criminal procedure.

  1. Charges

    Drivers are generally charged with a misdemeanor under "23152(a)" or "23152(b)/(d). The first charge applies when the driver could not drive with regular caution because the driver was intoxicated. The second charge is based entirely on the chemical test. "23152(b)" applies to a driver of a non-commercial vehicle and "23152(d)" applies to the driver of a commercial vehicle. For the purpose of the second charge it is irrelevant whether the driver was able to perform field sobriety tests or how the driver was driving at the time of the stop.

  2. Defenses

    The driver may be able to challenge the evidence against him or her, or challenge whether the stop was lawful. The driver may also be able to work out a plea agreement with a prosecutor. Defenses are very fact specific and an attorney may be needed to assist in understanding the available options in a particular situation.

  3. Consequences of a 23152(a) or 23152(b)/(d) conviction
    • FIRST DUI OFFENSE IN CALIFORNIA
      • Fine: $390-$1,000.
      • County Jail: From 96 hours to 6 months.
      • Probation: 3 years. During the probation period there is no requirement to meet with a probation officer.
      • Community service: May be eligible to work off some of the fines.
    • SECOND DUI OFFENSE IN CALIFORNIA
      • Fine: $390-$1,000.
      • County Jail: From 90 days to a year.
      • Probation: 3-5 years. During the probation period there is no requirement to meet with a probation officer.
    • THIRD DUI OFFENSE IN CALIFORNIA
      • Fines $390-$1,000.
      • County Jail: 120 days to 1 year.
      • Probation: 3-5 years. There is a requirement to meet with a probation officer.

Felony DUI

A DUI charge, which is generally a misdemeanor, may become a felony in the following three circumstances:

  1. Driver injured a person, while intoxicated and the injury was the drunk driver’s fault. For each additional person the driver injures, the driver can receive another year in state prison.
  2. This is the driver’s fourth DUI conviction - the district attorney may ask for either a misdemeanor or a felony conviction.
  3. The driver was convicted of felony DUI within the last ten years.

Driver’s Insurance consequences

To be eligible for the restricted license or to regain the general license, the driver has to show proof of his driver’s insurance coverage. The insurance company must submit SR -22 forms to the DMV. After learning about the driver’s DUI conviction, the car insurance carrier may choose not to insure the driver or to increase the premiums. If the driver cannot find an insurance plan, he or she can go through the California Automobile Assigned Risk Plan ("CAARP"). CAARP is specially designed for individuals who are unable to find an insurer. CAARP is not an insurer, but is a service that helps the driver find driver’s insurance. When going through CAARP the driver does not have the option of choosing which insurance company he would like.

Under 21 and Possession of Alcohol

Drivers or passengers under 21 may not have alcohol in their cars or on their persons, unless accompanied by a parent or responsible adult designated by the parent. A driver or passenger who violated this provision is guilty of a misdemeanor and may be fined up to $1,000 and sentenced to the county jail for up to six months. If the vehicle is registered to the driver or passenger, the car may be impounded at the owner’s expense for up to 30 days.

DUI & Enhanced Penalties

If there is a minor passenger in the car under the age of 14, the penalty is enhanced according to how many previous DUI convictions the driver already has.

  1. First DUI: Addition of 48 continuous hours in county jail.
  2. Second DUI: Additional 10 days in a county jail.
  3. Third DUI: Additional 30 days in a county jail.

Open Container Laws

In California, while driving, it is illegal for both the driver and passengers to have open bottles of alcohol in their possession.

Dram Shop Laws

In California, vendors of alcoholic beverages and people who serve alcohol at social events cannot be held liable for any harm caused by the intoxicated driver, except when the vender is selling alcohol to visibly intoxicated minors or on a military base with a federal permit to visibility intoxicated customers of any age.

California Resources

Department of Motor Vehicles

California Traffic Safety Institute

California County Specific DUI information

California Courts Self Help Center

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