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Must Know DUI Information


 

What is a DUI?

Pursuant to California Vehicle Code (CVC) Section 23152(a):

“It is unlawful to for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Under CVC Section 23152(b), “it is unlawful for a person who has 0.08 or more, by weight, of alcohol in his or her blood to drive a vehicle.”

Under CVC 23612, “a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140; 23152; or 23153…”

By impliedly giving your consent but refusing nonetheless to comply, you are creating a legal presumption that you were impaired by alcohol while driving.

If you are a commercial driver, your BAC cannot be 0.04% or higher. Should you be under 21 or on DUI probation, it cannot be .01% or higher. You can be asked to provide a chemical or breath sample regardless if you were driving safely or were stopped for a simple equipment violation so long as the officer had reasonable cause to believe you were impaired based on other observations of your driving conduct, demeanor, performance on field sobriety tests or responses you gave.

You can also be charged with a DUI if the officer believed you were driving impaired by alcohol or drugs, regardless if you took a blood or breath test or the results of your BAC test. If you are arrested for a DUI, you will typically be charged with 2 counts under CVC Section 23152:

  • Having a BAC of .08% or higher-CVC 23152(b)–so long as you took a test
  • Driving while under the influence of alcohol-CVC 23152(a)

What Happens During a DUI Arrest?

Before you are arrested for a DUI, you first have to be validly stopped by law enforcement. This could be for any traffic violation such as speeding, for a stop sign violation, unlawful use of a cell phone or a tail light that is out. You can also be stopped if you were weaving in your lane or were asleep in your car at the side of the road. Whether you were validly stopped or not, few officers will admit that they stopped you at random or because of your color, appearance or age.

Once stopped, you will be asked for your license, registration and insurance. If suspicious of your behavior or demeanor such as blood shot eyes, slurred speech, fumbling with your documents, or your driving conduct, the officer will ask you if you have been drinking.

Most people will automatically respond with a “yes” or a “no.” If you say yes, the officer will ask you how many drinks and the overwhelming response is 2 drinks. While admitting to any drinking does give the officer a reason to investigate further, a “no” response will also prompt further inquiry as well.

You have no obligation to answer any questions posed by the investigating officer or to perform any coordination, or field sobriety tests (FST), that you may be asked to do. You may also refuse to take any portable breath testing devices called a PAS or preliminary alcohol screening test. Your refusal to do any of these does not violate California’s implied test law.

However, if you are under 21 or on DUI probation, you are required to submit to these preliminary tests and your refusal to do so will result in your arrest and loss of your driver’s license.

What Happens if Your Refuse Chemical or Breath Testing?

You will probably be asked to take a breath test, however. If you refuse, you face up to a one-year suspension of your driving license and will not be given a restricted license for driving for limited purposes. If you are under 21 and refuse breath testing, you will be automatically arrested.

Your refusal to take a test has evidentiary consequences as well. If you go to trial, your refusal can be introduced as evidence that you had a conscious belief of your guilt and impairment. People who do refuse breath testing usually have had multiple prior convictions or feel they are too intoxicated to pass the test and have refused to undergo any other preliminary testing.

Should you have caused a fatal accident and the officer believes you were under the influence while driving, you can be physically forced to submit to a blood test. Certain procedures and protocols must be followed under these circumstances.

The Administrative Per Se Hearing

Once arrested, you are given a 30-day temporary license to give you an opportunity to challenge your license suspension at an administrative review, though you only have 10 days to make the request or your license will be revoked. At the hearing, the state must prove that you committed a crime or traffic violation, that your arrest was lawful or based on probable cause, and that you were driving with a BAC of at least 0.08%. If you refused testing, you have to show that you were properly advised of the consequences of your refusal and that your refusal was reasonable.

Penalties for a First DUI

A first-time DUI is generally a misdemeanor unless a fatal accident or serious bodily injury occurred. The penalties are uniform in some respects throughout California but vary depending on the county where the violation occurred:

  • County jail time of 96 hours to 6 months though you may only receive probation or a suspended sentence in some counties
  • Summary probation of 3 years
  • Fine of $390 to $1,000
  • License suspension of 4-months; if you refused testing, it is one year
  • Participation in a 30-hour DUI education class
  • Possible community service
  • Possible installation of an ignition interlock device

Once you complete the 30-hour DUI class, your license suspension can be reduced to 30-days. You can apply for a restricted license to drive to and from work, school after the initial 30-day suspension is up. If you refused testing, however, you are not eligible for a restricted license at all. A restricted license allows you to drive to and from work, school, medical appointments and your DUI education class.

If you are under 21, you will lose your driver’s license for one year and may not obtain a restricted license.

Sentencing Enhancements

A first-time offender also faces increased penalties for the following circumstances:

  • A BAC of 0.15% or higher–CVC Section 23578, which states:

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation and, if probation is granted, in determining additional or enhance terms and conditions of probation.”

Refusal to submit to testing—CVC Section 23578

  • Having a child passenger under the age of 14 (additional 48 hours in jail)
  • Driving recklessly or excessive speeding (an additional 60 days in jail)
  • Causing an injury accident or fatality–CVC Section 23153, which states in pertinent part:

“It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently to do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

  • Causing property damage