Vehicle Code Sections 23152, 23153
Driving under the influence charges (DUI) can be filed as a misdemeanor or felony. They are usually misdemeanors unless the case involves serious injury to a person, or the client is charged with a fourth DUI within 10 years. Three previous convictions, the fourth case can be filed as a felony.
A person can be charged with the crime of Driving Under the Influence if they have a 0.08 blood alcohol level in their system OR if they have any amount of alcohol or drugs in their system and it effects their driving. In addition, a person can be charged with driving under the influence even if no alcohol is present but they have ingested some other mind-altering substance, including prescription drugs.
The client can choose either a blood or breathe test or both. A urine test is no longer an option. A refusal to take a blood or breathe test can lead to an Automatic License Suspension for 1 year, and depending on the facts of the case usually makes the client worse off. However, the client can refuse the Preliminary Alcohol Screening (PAS) test without any negative repercussion. The PAS test is usually a hand held device given to the client to breathe into as part of the DUI investigation conducted prior to arrest.
In Orange County a 1st time DUI usually does not include any jail time as long as there is no bodily injury.
A 2nd time DUI (within 10 years of a first conviction) requires a minimum of 96 hours in jail but in Orange County most courts require between 30 and 90 days (with exceptions-see home confinement);
A 3rd time DUI (within 10 years of 2 prior convictions) requires a minimum of 120 days in jail but most persons convicted of this crime do between 6 and 9 months in Orange County;
A 4th time DUI (within 10 years of 3 prior convictions), is a FELONY and requires a minimum of 180 days in jail, but most people do a year in county jail or 16 months in state prison.
Effect of a DUI Charge on the DMV
For every DUI that goes to court there is a DMV component which includes a hearing separate from what occurs in court. It is possible to win the court portion of the DUI but lose the DMV portion and have your license suspended or revoked and vice versa. That is why you must make sure that whomever you hire to defend your DUI case also has experience with the DMV portion of a drunk driving case. PLEASE NOTE, YOU MUST CONTACT THE DMV WITHIN 10 DAYS OF BEING ARRESTED OR YOU WILL LOSE YOUR RIGHT TO A HEARING.
The DMV must prove three things in order to take action against your license in the event you are stopped for driving under the influence:
- That the officer who stopped you had reason to believe that you were driving in violation of Vehicle Code Section 23152 a or b (23152 is the dui code section and this element requires essentially that the officer observed you weaving, speeding or some other traffic offense that justifies you being stopped.);
- That you were lawfully arrested;
- That you were driving with a blood alcohol level of 0.08 or greater.
Defenses at DMV Hearing
There is generally no testimony at these hearings and thus the hearings are restricted to what is contained in the police report. If the report omits certain critical facts then there is no one to testify at the DMV hearing to correct them.
If the DMV hearing is lost then the following can occur to your license:
1st DUI: 4 month suspension (no driving) OR 1 month suspension + 4 month restriction (limited driving) if the client presents to the DMV with (1) proof of enrollment in an alcohol school for first time offenders; (2) an SR-22 insurance form and (3) a $125.00 fee after the 30 days suspension period is over.
2nd DUI: 1 year license suspension. As long as client is enrolled in 18-month alcohol school they can get back at least part of their driving privilege after the 1-year suspension is elapsed even if they have not completed their alcohol school.
3rd and 4th DUI: Revocation of license for 3-5 years. A revocation requires that once the revocation period has elapsed the client must apply to get his driving privilege back.
Contact Orange County criminal defense attorney Katie Walsh if you need help with driving under the influence or any other criminal matter.