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Driving under the Influence: What is the law and punishment?

Vehicle Code 23153(b)  "driving under the influence" is a "wobbler" meaning it may be charged as a misdemeanor or felony depending on the circumstances and the prior convictions for DUI.  The complexity of a DUI case and the significant penalties that result from a conviction require an experienced attorney to fight your case with the DMV and the criminal court system to avoid a single DUI from impacting your life for years to come.  Both the VC 23152(a) and VC 23152(b) are often charged together but a defendant can only be found guilty one.

What Must Be Proven in a DUI case?

VC 23152(a) requires the following to be proven:

  1. the defendant drove a motor vehicle
  2. the defendant did so while under the influence of an alcoholic beverage.

 The prosecution has the burden of proving guilt beyond a reasonable doubt that a DUI has occurred.

What are the penalties for a DUI?

The penalties for DUI are determined by the amount of prior DUI convictions the defendant has within the last 10 years using the date of the violation.

0 prior DUI convictions

The maximum penalty is a fine up to $2,000 plus assessments and/or 6 months in county jail.

Required to take 3, 6, or 9 month DUI program depending on BAC.  

Drivers license suspended for 6 months.

1 prior DUI conviction

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 18 or 30 month DUI program.  

Drivers license suspended for 1 year.

2 prior DUI convictions

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 30 month DUI program.  

Drivers license suspended for 2 years.

3 prior DUI convictions

VC 23152(a) with 3 prior convictions is a felony with maximum penalty up to $10,000 and/or 3 years in state prison or county jail if eligible under PC 1170(h).

Required to take 18 or 30 month DUI program.  

Drivers license suspended up to 5 years.

What are the defenses to DUI?

The complicated nature of DUIs will add to the difficulty of proving your guilty.  Here are the most common issues in DUI cases:

The Detention was an Illegal Seizure under the 4th Amendment

When Law Enforcement pull you over, they have temporarily detained you under the 4th Amendment of the United States Constitution.  In order for this detention to be considered "legal", the officer must have had at least reasonable suspicion, meaning at least some fact or information that suggests a law has or will be broken.  Typically in a vehicle stop, the Officer claims to have seen a traffic violation including speeding, crossing lanes without turning signal, or an accident occurred.  The Prosecutor has the burden of proving the Officer had reasonable suspicion.  An experienced attorney will request video and audio recordings from the arresting Officer to challenge the reason for the stop.  

The Arrest was made without Probable Cause

Under the 4th Amendment of the United States Constitution, an Officer must have probable cause for crime they are arresting you for.  An Officer will establish probable cause for a DUI several ways.  He will record smells of alcohol on your breath or coming from your vehicle, he will note your performance on Field Sobriety Tests (FST), and the results from the preliminary alcohol screening test (PAS).  Each fact may be challenged in court.  The presence of alcohol odor has no bearing on whether your impaired or your BAC.  Officer routinely set drivers up for failure by administering confusing and complicated tests requiring extreme balance and precision without considering your medical and physical condition while being performed on uneven terrain with debris.  PAS devices attempt to estimate your BAC by using a mathematical to convert alcohol content in your lungs to estimate BAC.  This makes PAS results inherently less reliable allowing for challenge in court.

The Officer did not obtain your Consent for the Blood Draw

Under VC 23612, every driver agrees to take either a blood or breath test after being placed under arrest for DUI.  This is known as California's Implied Consent Law.  However, there are requirements of the arresting Officer.  In most cases, the Officer must read an admonishment giving you the choice between a blood or breath test unless the arrest is for a drug related DUI.  If you request a breath test or refuse a chemical test and a blood draw is performed without your consent and without a valid search warrant, it is possible that the results may be illegal obtained and inadmissible in court.  

You were not Under the Influence at the Time of Driving

Proving a driver was under influence or BAC was above a certain level at the time of driving is a difficult task for a prosecutor.  A simple traffic violation is not a smoking gun that you were under the influence, drivers receive tickets everyday without consuming alcohol or drugs.  In addition, an Officer typically does not obtain your BAC until significantly after starting his investigation.  Your BAC is constantly increasing or decreasing over time making it difficult to calculate a precise BAC at the time of driving when results may not be obtained until hours after the arrest.  Remember, having alcohol or drugs in your system while driving is not illegal, you must be under the influence of alcohol and drugs and in some charges a BAC of a certain level at the time of driving.  Your BAC at the police station hours later does not automatically make you guilty.

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23152(b) DUI with BAC of .08% or above

VC 23153(a) DUI causing injury

VC 23152(b) DUI causing injury with BAC of .08% or more

California's Implied Consent Law

Field Sobriety Test

Admin Per Se Hearing

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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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