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The DUI Guys

How Is A DUI Defined In California?


California has created a variety of ways to prosecute you for Driving Under the Influence. Some states define the violation as DWI (Driving While Impaired or Intoxicated). California is a DUI state, which refers to Driving Under the Influence. There are subtle differences between the states as to how they define the acts constituting violation of the law. In California, the term “driving under the influence” has a very specific legal definition. A person is under the influence if, as a result of consuming an alcoholic beverage [and/or] taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

However, there is a second way the government can prosecute you for DUI, even if your driving is perfectly fine (and you are too). In addition to the charge described above, you can also be charged under what is commonly referred to as the “per se” statute [VC §23152(b)]. This refers to the numeric value representing the percentage of ethanol molecules in your blood being defined as a crime. As a result of coercion from the federal government, all states have criminalized driving a car while having .08% Blood Alcohol Concentration (BAC).

In California, thanks to our legislature making life even easier for prosecutors, you can also be charged for having 0.08% Breath Alcohol Concentration (BrAC) that is unrelated to your actual blood alcohol concentration. That’s right… your blood alcohol concentration could be lower than your breath alcohol concentration, due to unique characteristics of your body or fluctuations based on your physical condition or your state of absorption, and still be prosecuted for the crime of DUI, even if your blood alcohol concentration is below the legal limit!

There are states that require that the breath alcohol concentration be reflective of the blood alcohol concentration, but California has done away with that requirement, making a skilled and knowledgeable DUI defense attorney all the more important if you are accused of a DUI. A breath alcohol test of 0.08% is sufficient to convict somebody of DUI in California, which is why knowing how to attack such a test is critical.

There is a separate per se statute that applies to commercial drivers during operation of a commercial vehicle, and that level is a 0.04%. This means they can be prosecuted under the per se statute even if their driving is not impaired, just by virtue of having a 0.04% blood alcohol concentration (BAC) or breath alcohol concentration (BrAC). To make a point about how draconian the commercial statute is, under another provision of the California Vehicle Code, (section 23610), you are presumed not impaired if your BAC is below a 0.05% blood alcohol concentration. This means even though every other driver would be legally (and scientifically) presumed NOT IMPAIRED, a commercial driver with a 0.04% BAC while working, will be prosecuted for a commercial DUI violation despite the fact they are not impaired.

You can also be prosecuted for driving while under the influence of drugs. Drug DUIs are an area the government views as a growth opportunity. The government is stepping up law enforcement training and starting to ramp up their propaganda machine to increase public fear of “drugged” drivers. Marijuana is getting most of the attention, because it has been legalized in many states, Including California. This has more to do with the politics of marijuana than the effects on traffic safety posed by marijuana. Anti-marijuana advocates, realizing they have lost the public debate regarding the criminalization of marijuana have simply responded by criminalizing your conduct after you have ingested MJ.

Their move is this: “Sure, you can smoke it, but if you drive, we will be waiting to prosecute you for being “impaired” by the marijuana.” This is based on politics, not based on science, which shows drivers who have used marijuana and are feeling the effects of the marijuana are no more likely to get into an accident than a completely sober driver. Additionally, because marijuana is absorbed into the body in a very different way than alcohol, and is retained in the body for a far longer period than alcohol, you can be accused of being “under the influence of marijuana” even though the active ingredient that causes the “high” associated with its use, is no longer in affecting you. Even worse, there is currently a push by the anti-marijuana crowd to have legislation enacted in California to create a “per se” limit on marijuana, like the .08% BAC alcohol law, based on the number of nanograms of Tetrahydrocannabinol Cannabinoid delta 9, the psychoactive ingredient in marijuana.

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Thankfully, there is not yet a per se limit relating to Marijuana in California, and it would be a scientific and societal tragedy if the legislature does enact such a limit because marijuana is a completely different animal than alcohol and it would result in turning a large number of people into “criminals” for no justifiable reason.

Of course, marijuana is not the only drug for which a person can be prosecuted for being under the influence. Any illicit drug can serve as a basis for a DUI drugs charge. What surprises many people, is learning (often the hard way) that medication your doctor has prescribed to you can serve as a basis for charging you with commission of the crime of DUI. There’s a little warning on many prescription bottles that says, “Don’t drive until you understand how this medication affects you.” Even if you have been responsible and taken the time to become familiar with how the particular medication affects you, and feel safe to drive, if you get pulled over for any reason and you inform the officer about any medications you are on, he or she may have you perform roadside field sobriety tests and decide that in his or her opinion, you are “impaired” because of that medication and arrest you for DUI. And, yes, you can be prosecuted and convicted if you are not well-represented by a knowledgeable DUI defense attorney.

What Are The Top Misconceptions That People Have About DUI Arrests?

Probably the biggest misconception stems from the image of DUI that is presented in all the various propaganda relating to DUI: The image of the slack-faced staggering drunk. The current propaganda campaign commercials use the tagline, “They’ll see you before you see them”, and there are these almost invisible cops who blend into the wall, or are waiting in a squad car that is sort of invisible. They watch people stumbling, staggering and laughing their way down the street, just waiting for them to get in the car. That stumbling, staggering, hammered, drunk person has absolutely nothing to do with the legal standard of .08% BAC for DUI. You would certainly be too impaired to drive a car if you were that hammered.

But, many people are shocked to learn (usually as a result of first-hand experience) that you can be arrested for a DUI at a BAC level where you wouldn’t be exhibiting any symptoms of intoxication. You wouldn’t be slurring, or stumbling or staggering, but you could still find yourself arrested and prosecuted. This is one of the many insidious aspects of DUI laws and the propaganda that supports them; responsible consumers see the commercials and think to themselves “I would never get behind the wheel if I was that drunk!” So many people have been conditioned by the propaganda, they inadvertently find themselves victimized by the state when they discover you can just have a couple of drinks and feel fine (and in fact, be fine), and still be arrested and prosecuted for driving under the influence: It is a rude wake-up call and can have significant consequences to you.

Even worse, that misconception exists in the minds potential jurors, who also see those commercials and have that image of the “drunk driver” in their mind when they learn they will be sitting as a juror in a DUI trial. If the arresting officer simply recites the magic DUI “fact” Superfecta (bloodshot/watery eyes, odor of an alcoholic beverage, unsteady gait and slurred speech) the image of the drunk from the propaganda commercials will magically appear in the juror’s mind, demonizing the accused.

Understanding these misconceptions and the psychology behind the propaganda is critical in understanding how to actually defend a client charged with DUI, whether it is a felony or a misdemeanor. Many attorneys claim to defend DUI cases, but, if they don’t understand the law, the science, the procedure and the politics of DUI, they are ill-equipped to successfully defend your interests. It is the difference between hiring someone who understands how to play checkers vs. someone knowing how to play chess.

What Are The Common Mistakes People Make In DUI Cases?

Once arrested for DUI, there are a host of mistakes people can and do make. There are two significant mistakes that, unfortunately, occur regularly. Properly addressing these issues will usually ensure that all the other small mistakes that can happen will be avoided. For the vast majority of the 1.4 million people arrested for DUI annually in the U.S., this will be their first interaction with the criminal justice system. They are uncertain what to do and oftentimes just stick their head in the sand for a couple of weeks in denial before taking action to learn what they need to do next.

Most people don’t realize that there are actually two cases against them when they are arrested for DUI; one administrative, the other criminal. Most of the energy of “the system” is related to the criminal charges and the criminal process, which has constitutional requirements and protections that dictate much of what happens.

For instance, when people are released from jail, they are advised by the Sheriff of the date they are to appear in court and are given a piece of paper with the date, usually 30-60 days down the road, which is the date that sticks in their head. If they bail out, their bondsman will usually remind them of the court date as well. If they don’t post bail and wait to appear in court (within 3 days of arrest, with certain exceptions that can add more time) the court will advise them of their next date to return to court, then they will be returned to jail to be processed out and given paperwork reminding them of their next court date. When they are eventually released, in either scenario, their belongings are returned to them along with some paperwork.

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What many people don’t realize that in addition to the court date paperwork, an inventory of their personal property and their personal belongings, there is another critical piece of paper contained with their belongings; a pink 8.5” x 11” piece of paper chock full of tiny bureaucratic print. Failure to take notice of what is written on that pink paper can have significant consequences.

This Leads To Significant Mistake #1: Failure To Challenge The Administrative Suspension Of Their Driving Privilege Within 10 Days Of Arrest.

Here in California, there is a pink piece of paper that is issued by the officer making a DUI arrest, as an agent of the Department of Motor Vehicles. This document advises you the officer has initiated an administrative action against your driving privilege by taking your driver’s license (sometimes referred to as a “stop and snatch”). This pink, 8.5×11 piece of paper with no picture on it becomes your temporary driver’s license, which is valid for 30 days from the date of arrest.

More importantly, this pink piece of paper informs the driver, in very small print, that their license is going to be suspended for 120 days on the first time DUI (or up to a year for other DUI related issues). That 4-month suspension, or one year suspension, goes into effect 30 days after the date of arrest, UNLESS within 10 days of the arrest, they have challenged that suspension action by requesting an administrative review hearing with the DMV Driver’s Safety Office (a specialized branch of the DMV, not the local DMV office). This means that you can fight to have the suspension action set aside and save your license, but, only if a hearing challenging the suspension is requested within 10 days of arrest. No request? No opportunity to fight; the suspension is a done deal.

You can secure a hearing on your own, but most people have hard time because the DMV doesn’t make it easy. An attorney experienced in DUI defense can handle this process for you and make sure your administrative rights are secured.

Finding excellent legal representation can also save you from losing your driving privilege at the end of the 30 days on your temporary license. Lay people (and many attorneys) don’t understand the legal issues involved with the administrative hearing and think they will just go in and tell the Hearing Officer they are a good person and really need to drive and will walk out with a restricted license. This is one of the small mistakes (that have large consequences) that can be avoided by hiring a knowledgeable DUI defense attorney, because, simply speaking, that is not how the administrative hearing works.

Significant Mistake #2: Making an Educated Decision on Legal Representation.

People seem to fall into one of few categories when hiring someone to defend them against DUI charges:

  • Just hire the first person you speak with, so you don’t have to think about it anymore.

If you just hire the first person you speak with, unless you were fortunate enough to get referred to a quality attorney, you have probably focused on the wrong quality. An attorney’s hunger for your money does not equate to quality representation for you.

  • Wait until the last minute and hire whoever can accommodate you.

Again, unless you were fortunate to stumble onto a great attorney and your stars aligned, you are again focused on the wrong attribute for representation.

  • Shop for the cheapest price or passively pick from the barrage of jail-mail and cut-rate attorneys who bombard you at your home with marketing materials.

The most unfortunate of all mistakes! Remember, a good attorney is not cheap and a cheap attorney is not good. Take the time to find a knowledgeable, experienced attorney who has committed the time and energy into learning all the nuances required for successfully defending DUI cases. If you meet with a few attorneys and ask the right questions, you should get a pretty good idea of what is out there and best able to represent YOU.

Did they bother to learn about the unique circumstances of YOUR case before they launched into telling you how great they are? Have they taken a DUI case to trial? Have they ever won a DUI trial (BOTH charges)? You will be amazed at how much that will narrow the field. Think of it this way: How strong a negotiating position do you think an attorney who has never tried a DUI case has with a prosecutor? How strong a position do you think an attorney who has never won a DUI trial has with a prosecutor?

Most cases do not go to trial, so, how a case resolves will usually depend on legal motions and negotiations. Don’t you want an attorney that takes the time to become familiar with the details of YOUR case? Don’t you want someone with a deep understanding of how to pick apart the prosecution’s case? Don’t you think you are in a better negotiating position if the prosecutor knows that your attorney has actually successfully taken apart the prosecution in front of a jury on other cases in the past?

Remember, time is money and the value of an attorney’s time is directly tied to the knowledge and experience of the attorney. If an attorney is advertising a price to handle your DUI case before they have heard any of the facts of your case, they are not defending your case, they are running a mill. If they are offering some lowball price, they can’t afford to spend much time on your case. Attorneys provide legal services as a business. It is what we do to earn a living. We have overhead and bills to pay. If an attorney is charging a cut-rate, they will have to make it up in volume, by handling a large number of cases. Again, you do yourself a disservice. If they are available to respond to potential new clients 24/7, that means they are always working on sales, rather than focusing on the work involved in the successful representation of existing clients. There isn’t enough time to do both well.

Beware generic criminal defense attorneys, or worse, general practitioners, who provide legal services that dabble in numerous different bodies of law: Criminal Law, Family Law, Bankruptcy, Landlord/Tenant Law, Personal Injury, etc. Successfully defending someone from DUI charges requires the deep understanding of the issues involved in a DUI case. Without that specialized knowledge, your attorney is not going to understand how to find the legal and scientific issues that may get your out of your situation or minimize the consequences. They will likely read the arrest report and assume your guilt, pocketing your fee and just tell you to plead guilty. Why even hire them?

Finding and securing the services of an attorney with expertise in DUI defense will allow you to let them handle all the issues related to your defense in both the administrative and criminal cases. Savvy attorneys actually use the administrative case to flesh out issues and defenses useful in the criminal case. This is one of the many ways an attorney skilled in DUI defense will improve the likelihood of achieving a successful outcome in your case.

There may well be mistakes made by the officer that would enable you to prevail in that administrative action and avoid the suspension of your license. Beneficial evidence may be secured through the subpoena powers arising from the administrative hearing, for use in both your administrative and criminal cases.

So it’s critical that people act within that 10-day window, and unfortunately, a lot of people don’t, or if they do, it is in making a hasty decision about legal representation. That is a very unfortunate and common mistake.

For more information on DUI Charges In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 817-8332 today.

The DUI Guys

Call For A Free Case Evaluation
(619) 817-8332

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