Driving in California takes a lot of patience—from traffic that never ends to the highest gasoline prices in the country. But, you may not know that California also has some of the most stringent laws concerning driving under the influence of alcohol (and/or drugs) in the Country.
The first arrest, assuming no injuries, is usually charged as a misdemeanor offense. It usually costs about $2,000 in penalties and fines, carries a maximum of 6 months in county jail, several months of your license being suspended, and completion of a three-month alcohol program.
If you are arrested for a second DUI, those penalties only increase to double the fines, jail and program…
And a third DUI—within a 10 year period, you will have to complete an 18 month DUI program, do mandatory jail time, deal with longer suspensions and more severe DMV consequences.
A fourth DUI is most troublesome, where people can be sentenced to a FELONY, and may have to serve state prison time, roughly $18,000 in penalties and fines and the requirement of a 30-month alcohol treatment program.
Understanding the law will not only help you avoid committing a DUI, but if arrested, it is important to understand what you could face, and contact an attorney who understands the Court system ASAP.
Note: if there is any bodily injury caused with a DUI, or even death, the above penalties may be so much more extensive…and many must pay restitution costs for any resulting physical injuries or property damage to anyone involved in the accident.
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BAC of .08% or higher: If you are an adult of 21 years of age or older and hold a regular driver’s license, with no other restrictions.
BAC of .04% or higher: If you hold a commercial driver’s license (CDL), regardless of what vehicle you were driving.
BAC of .04% or higher: If you are presently on DUI probation for a previous charge.
BAC of .01% or higher: If you are under the legal drinking age of 21 years old. Zero Tolerance for those under the age of 21.
Please Note: You can still be convicted of DUI even if you are not above the legal limit or if you refuse tests! How?
If it can be proven that you were “ under the influence”—impaired—by a substance, then the exact BAC does not matter. The officers can use how you were driving, how you communicate with them in order to assess if you were driving under the influence.
Note: I always tell my clients, not only must you deal with the Court, but the DMV (which sometimes is more difficult to deal with than the criminal Court).
When you get pulled over, the officer takes your license into possession and forwards that to the DMV…to fight the DMV suspension, you or your lawyer must schedule a DMV hearing WITHIN 10 DAYS OF YOUR ARREST.
DUI arrests for many are the first time they ever have contact with the police. Don’t worry, and don’t judge yourself! Call an attorney who understands the DMV process and the process the Court takes. It is important to go over the arrest and come up with a strategy to fight the case and the DMV hearing with an experienced criminal defense attorney.
When someone is arrested for DUI, the person has 10 days to schedule a DMV hearing. The suspension of your license can be delayed pending the hearing. Please note: You are not required to have a DUI hearing, but if you have one, you MUST request it within 10 days of your arrest.
The DMV hearing is an administrative hearing and only effects your driving privilege—not if you are guilty or innocent. In DMV hearings, an attorney can only address whether the police officer had reasonable cause to believe you were driving; whether the arrest was lawful and whether you were driving with a .08 or higher level of alcohol.
It is important to note that a hard suspension follows if you lose the DMV hearing. A hard suspension can be as little as 30 days and up to a year or more depending on your conviction history. After the 30 days, you can get a restricted license if you enroll in a Court approved DUI program.
Felony DUI and Watson murder
A DUI is usually charged as a misdemeanor, but you can be charged with a felony if someone is seriously injured or killed. You can also be charged with felony DUI if you have been convicted of three prior DUIs within a 10 year period.
DUI-related deaths are prosecuted as murder rather than Penal Code 192(c) PC vehicular manslaughter.
You can be charged with DUI murder or Watson murder– if you kill someone while under the influence of alcohol or drugs and —
1. You are a repeat DUI offender; and
2. You have taken a DUI class or were warned—the “ Watson advisement” by the Court. That is when the Court tells you, “ you are hereby advised if you drive while under the influence of alcohol or drugs, and someone is killed, you will be charged with murder.”
With a first time DUI, it is possible to get a WET RECKLESS charge and not a DUI conviction. The wet reckless usually has less penalties and fines, no court suspension of your license and definitely looks better on your record than a DUI. BUT NOTE!!! This conviction STILL counts as a PRIOR—what this means if you are arrested again for driving under the influence, the wet reckless serves as a FIRST, and your arrest can count as a second DUI with higher penalties and fees.
The problem is, marijuana can stay in a persons system for weeks—thus officers still have issues proving their cases of impaired driving when marijuana is the only substance in the drivers’ system.
Officers will use certain tools to assess whether someone is actively driving with marijuana in their system.
1) Observed Impairment: Trained officers use field tests and observe driver behaviors and judge the impairment of a driver. This is 100% objective—it is from what the officer observes directly. For instance, watery eyes, trouble standing or walking, trouble talking…smell of marijuana on breath or person.
2) Chemical Test: While there is no standard legal limit of active tetrahydrocannabinol (THC) as there is with alcohol, states accept five nanograms of active THC as the limit. When a blood test shows levels above this limit, the driver often faces charges. The blood test checks for the THC level in whole blood, and if you exceed the legal limit–you may face impaired driving charges.
Note: If someone is a regular user, there is usually SOME LEVEL OF THC present in the system! This can prove very effective when fighting a marijuana DUI charge.
Note: The longer it takes the officers to take your blood for tests, the more INACCURATE the result may be.
There are more reliable tests used within the state—one device is like a Breathalyzer for marijuana and other drugs—and another method is a mouth swab device to better ascertain the amount of marijuana in the system at the time of driving. It takes only a few minutes to return results. A positive result would likely lead to a warrant for a blood test to identify the amount of drugs in the driver’s system.
It is so important to contact an attorney when one is arrested for a DUI–marijuana charge. Since marijuana is recently legalized, police departments all over the State are trying to better their testing methods—and they are not perfected!!! A trained and experienced attorney can fight these charges. Make sure to document what happened at the time of your arrest and talk to your attorney about your options!