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San Bernardino DUI: What is the law and punishment?

California Vehicle Code 23152 VC can be a misdemeanor or felony with varying punishments depending the facts of the case.  DUIs are by their nature complicated cases that involve penalties in both the criminal court and with the DMV.  The complexity of the cases and the robust rights afforded to a criminal defendant can make even the worst case winnable if the right tactics and strategies are applied.

What Must Be Proven in a DUI Case?

VC 23152 consists of seven subdivision: a, b, c, d, e, f, and g.  The following must be proven for each subdivision:

(a)- the driver was under the influence of alcohol while driving;
     
(b)- the driver was under the influence of alcohol and the driver's blood alcohol content (BAC) was .08 or more at the time of driving.  Almost always charged with the (a) count but a driver cannot be sentenced to both;

(c)- the driver is addicted to drugs and not in a narcotic treatment program;

(d)- The driver was a commercial driver and the driver's blood alcohol content was .04 or more at the time of driving;

(e)- The driver was had a passenger for hire and the driver's blood alcohol content was .04 or more at the time of driving;

(f)- The driver was under the influence of drugs while driving;

(g)- The driver was under the influence of alcohol and drugs while driving.

In the United States justice system, a defendant is presumed innocent until proven guilty.  The prosecutor has the burden of proving guilt beyond a reasonable doubt for the DUI count you are charged with.

What are the penalties for DUI?

The maximum penalty will depend on how many prior DUIs you have been convicted of in the past 10 years.  This is based on the date of the violation and not the date of conviction.  The penalty increases greatly for each subsequent DUI prior and can even result in your DUI being charged as a felony.

1st DUI:

Summary Probation.  Generally you will placed on summary probation for a period of 3 to 5 years.  You will violate probation if you are convicted of a crime other than an infraction or you fail to pay the fine, attend required classes, or any other term agreed upon in your case.
Fines.  The maximum fine is $1,923.  An additional $25 may be assessed for installment payments.  
Jail. 6 months in county jail.
DUI Classes.  Typically the 3 month AB541 is required if your BAC is below .15 costing approximately $400 to $500.              If your BAC is .15 or above you may be required to attend the 9 month AB1353 costing approximately $1,250.
License Suspension.  At the time of arrest, your driver's license will be surrendered and a 30 day temporary will be                  issued.  The DMV will automatically suspend your license once the temporary expires unless an Admin Per Se Hearing            is requested with the DMV within 10 days of the arrest date.  The length of the suspension will depend on circumstances of your case.  A BAC of .08 or above with chemical test is 6 months.  A chemical test refusal is a year long suspension with no possibility of restricted license.  Failure to request the hearing within 10 days will result in a forfeiture of your right to the hearing.  If convicted in criminal court your license will be suspended for 6 months under VC 13352.
Ignition Interlock Device.  The DMV will typically not require the IID to be installed.  You may choose to have the device installed for 6 months to maintain full driving privileges.  If the IID is not installed after the 30 day temporary has expired your license will be suspended for 4 months and you will be eligible for a restricted license.

2nd DUI:

Summary Probation.  Generally you will placed on summary or informal probation for a period of 3 to 5 years.  You will violate probation if you are convicted of a crime other than an infraction or you fail to pay the fine, attend required classes, or any other term agreed upon in your case.
Fines.  The maximum fine is $1,923.  An additional $25 may be assessed for installment payments.  
Jail. 1 year in county jail.
DUI Classes.  Typically the 18 month SB38 is required costing approximately $2,100.
License Suspension.  At the time of arrest, your driver's license will be surrendered and a 30 day temporary will be issued.  The DMV will automatically suspend your license once the temporary expires unless an Admin Per Se Hearing is requested with the DMV within 10 days of the arrest date.  The length of the suspension will be 2 years.  After 1 year, you may elect to install the IID in order to receive a restricted license for the remaining year. 

3rd DUI:

Summary Probation.  Generally you will placed on summary or informal probation for a period of 3 to 5 years.  You will violate probation if you are convicted of a crime other than an infraction or you fail to pay the fine, attend required classes, or any other term agreed upon in your case.
Fines.  The maximum fine is $1,923.  An additional $25 may be assessed for installment payments.  
Jail. 1 year in county jail.
DUI Classes.  Typically the 30 month SB1365 is required costing approximately $3,000.
License Suspension.  At the time of arrest, your driver's license will be surrendered and a 30 day temporary will be issued.  The DMV will automatically suspend your license once the temporary expires unless an Admin Per Se Hearing is requested with the DMV within 10 days of the arrest date.  The length of the suspension will be 3 years.  After 2 years, you may elect to install the IID in order to receive a restricted license for the remaining year. 

After 4th DUI or 1 prior felony DUI conviction:

Felony.
Fines.  The maximum fine is $5,000.  An additional $25 may be assessed for installment payments.  
Jail. 16 months, 2, or 4 years State Prison
Habitual Offender.  Habitual offender status for 3 years.
License Suspension.  At the time of arrest, your driver's license will be surrendered and a 30 day temporary will be issued.  The DMV will automatically revoke your license once the temporary expires unless an Admin Per Se Hearing is requested with the DMV within 10 days of the arrest date.  The length of the revocation will be 4 years.  You may elect to install the IID for 3 years in order to receive a restricted license for the remaining year. 

What are the defenses for 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 23153 Driving Under the Influence with Injury

Admin Per Se DMV Hearing for DUI

Field Sobriety Test

Implied Consent Law

 

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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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