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 driverís blood divided by the driverís blood volume. BAC is not an absolute number Ė but a percentage. For example, if the BAC is .01%, then there is 1 part alcohol for 100 parts blood in the driverís 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 driverís BAC. Below are the BAC limits for California.
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 driverís 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 Ė 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.
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 driverís 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 driverís 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:
Navigating the System after the arrest (No-injury DUI)
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.
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.
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:
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.
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.
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.
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.
A DUI charge, which is generally a misdemeanor, may become a felony in the following three circumstances:
Driverís Insurance consequences
To be eligible for the restricted license or to regain the general license, the driver has to show proof of his driverís insurance coverage. The insurance company must submit SR -22 forms to the DMV. After learning about the driverís 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 driverís insurance. When going through CAARP the driver does not have the option of choosing which insurance company he would like.
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 ownerís 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.
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.