In general, DUI is an acronym for “driving under the influence.” A person is under the influence if, as a result of drinking alcoholic 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. 1
It is important to note that there is no specific blood alcohol or drug level related to a DUI charge because the crime of DUI focuses on the effect that the alcohol or drug has on the driver, i.e. being impaired to the point that the driver cannot drive safely.
The ‘’per se” charge makes it illegal for a person to drive when having blood alcohol concentration of .08% or more.2 Thus a driver can legally drive while having a level that is less than .08 % so long as they are not “under the influence” of the alcohol.
A DUI charge can affect a commercial driver in two ways. First, while driving a non-commercial vehicle, if a commercial driver is convicted of DUI because they were “under the influence” of alcohol or a drug, or they drove a car while having a blood alcohol concentration of .08% or more , the DMV will suspend the commercial driver license for 1 year on a first offense.3
Second, while driving a commercial vehicle, if the commercial driver is convicted of having a blood alcohol concentration of .04% or more, or “being under the influence” of alcohol or a drug, the DMV will suspend the commercial driver license for 1 year on a first offense.4
It should be noted that on a second conviction, the suspension of the commercial license is for life.
Winning a DUI charge begins by having the courage to contest it. The best DUI defense attorneys in Riverside and San Bernardino Counties begin with a confident attitude, even when a case seems bleak.
Successfully defending against a DUI charge requires specialized knowledge and multiple skills. Understanding how DUI investigations are supposed to be handled is critical. Understanding field sobriety tests and how to contest them is essential. Knowing the science and procedures involved with breath testing and blood sample analysis is imperative. The ability to persuade jurors is a must. So yes, you can win a DUI charge with the help of an expert DUI defense lawyer.
Any criminal charge can be dismissed. Prosecutors have the powerful and critical role to decide what is dismissed and what goes to trial. How they decide which case is dismissed depends upon many factors, including the strength or weakness of the evidence, the availability of witnesses, the relative credibility of witnesses, the circumstances at the time of the arrest, the defendant’s criminal record or lack thereof, and the expertise of the defense attorney.
When you were arrested for an alcohol DUI, you should have been given a pink DMV document called the Administrative Per Se Suspension/Revocation Order and Temporary License. This is a 30 day temporary license that you must carry with you when you drive. It is not a restricted license. It is a temporary license given to you because, if you possessed a California driver license, the officer took your driver license when you were arrested. With this temporary license, you may drive without any restrictions. It is also a notice to you that your license will be suspended in 30 days and that you have 10 days to preserve your DMV hearing rights to contest the suspension.
After receiving the “Pink” Administrative Per Se Suspension/Revocation Order and Temporary License, you have 10 days to request an Administrative Per Se (APS) hearing from the DMV to contest the driver license suspension. If you fail to request the hearing within the 10 day period, you will waive your right to a hearing and the driver license suspension will go into effect automatically at the end of 30 days when the temporary license expires. The length of the suspension depends on whether you have prior alcohol related suspensions.
Once the APS hearing has been requested, the DMV will stop all action against your driving privilege. No action against your driving privilege will occur until the APS hearing is completed and the DMV rules on your case.
You will receive another temporary license in the mail from the DMV before the Pink temporary license expires. You will be able to continue to drive normally until the DMV Administrative Per Se (APS) hearing process has been completed and the DMV issues their ruling, the DMV Findings and Decision.
The purpose of the DMV Administrative Per Se (APS) hearing is to determine if a driver license suspension is justified as a result of the arrest.
In a typical alcohol DUI case, the DMV hearing officer must decide three issues:
To suspend your driving privilege, the DMV must prove that all three of these issues are true with evidence that is admissible by a “preponderance” of the evidence, which means “more likely than not.”
In order to win this hearing your defense must show that one or more of the above issues are not true. The Law Office of Manuel J. Barba does this by gathering all of the evidence related to the DUI investigation and chemical test results (this is the evidence that the DMV will use to try to suspend your license); analyze all of the evidence to determine its strengths and weaknesses; contest the DMV’s evidence at the hearing; and present affirmative evidence where applicable.
DMV APS hearings are somewhat informal; however they must follow legal evidentiary rules. Remember the DMV APS hearing is separate and independent of the court case.
If you were under 21, there is ZERO tolerance; if the underage driver is found to have a blood alcohol concentration of .01% or more, the DMV will try to suspend the driver license for one year or more. The issues at this DMV Administrative Per Se hearing are as follows:
These hearings follow the same procedures as discussed above. If the DMV finds against you, there will be a 1 year license suspension. If you had a previous DMV alcohol related suspension, the suspension could be longer. Remember the DMV APS hearing is separate and independent of the court case.
If there is a refusal allegation, meaning that you refused to take a chemical test AFTER you were arrested, the DMV will attempt to suspend your driving privilege for a minimum of one year on a first offense and two years on a second offense (or if you have had a prior DUI suspension). There is no restricted license opportunity on a refusal.
As discussed above, you are entitled to a DMV APS hearing on the refusal allegation to determine if you willfully refused to take a chemical test after you were arrested.
If the DMV rules against you, it will impose a four-month driver’s license suspension on a first offense DUI. A two year suspension will be imposed on a second DUI and a three year suspension for a third DUI offense within ten years.
On a first time DUI suspension, you are eligible for a restricted license after the first 30 days of the four month suspension has passed. To get the restricted license, you must enroll in the first offender alcohol program (AB541), file an SR-22 (proof of insurance) with the DMV, and pay the license re-issue fee. The license will then be restricted for 5 months thereafter.
In the alternative, you may sit out the entire four month suspension, and get your unrestricted license back when the four month suspension is completed. However, you still must file the SR-22 with the DMV, and pay the re-issue fee.
On a second and third DUI, you are eligible for a restricted license after 1 year of suspension and are enrolled in the multiple offender (SB38) alcohol class and file the SR22, however other DMV rules may apply that may allow you to get a license sooner if you agree to install an ignition interlock on your car. The license will then be restricted for the remainder of the suspension period.
An Arraignment is your first Court appearance. Your Arraignment date is normally written at the bottom Notice to Appear that you signed promising to appear in Court on the date indicated. If you fail to appear on that date, the Court will issue a warrant for your arrest for violating your promise to appear.
At the Arraignment hearing you are formally informed by the Court of your constitutional rights and the charges filed against you by the District Attorney. The court will also ask you how do you plea? If you plead GUILTY or NO CONTEST at the Arraignment hearing you will be convicted of the charged crimes and sentenced at that time. This is usually not a smart thing to do as you have not seen any of the evidence against you or had the opportunity to contest the evidence; at this point the only thing you know is what you are being accused of.
If you enter a NOT GUILTY plea, the court will accept your plea and set a Pre-Trial hearing date about 6-8 weeks into the future. If you do not have an attorney, the court will also likely set a Trial date.
If the charges against you are misdemeanors, you can have an attorney appear for you without you being present. In some cases the judge can require you to appear in court even though the charges are misdemeanors and you have an attorney.
If the charges against you are felonies, you MUST appear in court at all court hearings.
Pre-Trial hearings are intervening hearings before an actual Trial. There may be several Pre-Trial hearings usually 6 to 8 weeks apart. The purpose of Pre-Trial hearings is to give the defense attorney the opportunity to gather all of the evidence related to your case so we can analyze the strengths and weaknesses of the criminal case against you. In addition Pre-Trial hearings provide the defense attorney the opportunity to negotiate a resolution of your case with the District Attorney and avoid having to go to trial.
No. Although you have a right to attend all court hearings, most court appearances are informal so there is no need for you to be in court. In many cases the Court Clerk handles the Pre-trial hearing appearances, so the judge never deals with the case. The judge or prosecutor will not look at you differently if you do not appear. Nor will it affect the outcome of your case.
There are some circumstances that your appearance in court may be required such as: having prior DUI convictions, having an auto accident with injuries, or if the prosecutor is asking that bail be set due to the facts of your case. If your case has charges that are felonies, your appearance in court is required.
It depends on the case. Occasionally, because of prior DUI convictions or a high blood alcohol concentration allegation, the judge, at the arraignment, will require you to attend a certain number of AA (Alcoholic Anonymous) or NA (Narcotics Anonymous) meetings each week as a condition of your release while your case is ongoing. If the judge requires AA or NA attendance, you will be required to provide proof of attendance of those meetings to the court at each court appearance usually through your attorney.
Keep in mind that even if the Court does not require that you attend AA/NA meetings, you are free to attend them voluntarily. The Prosecutor may take into consideration your voluntary AA/NA attendance when your attorney is negotiating a resolution to your case.
In most misdemeanor cases, you will be allowed to remain out of custody on your own recognizance pending the outcome of your case. This means that you won’t have to post bail and your promise to appear in court will be all that the Court requires from you.
There are some instances where the judge will give you conditions to remain out of custody and on your own recognizance and not have to post bail.
Typically, a judge could require that you post bail if you have two or more prior DUI convictions or it is alleged that you had a very high blood alcohol concentration, or it is alleged that you violated probation on another case. In lieu of posting bail a judge could require you to attend AA/NA meetings (as discussed above), or some sort of alcohol counseling. You are wise to accept these terms in order to avoid posting bail.
If your case is a felony, you likely would have to post bail before being released from jail after you were arrested.
If you were released from jail without posting bail, but the District Attorney files felony charges against you in Court, the judge may require you to post bail at the Arraignment or be taken back into custody.
A good defense attorney may be able to provide alternatives to bail so that the Court allows you to remain free pending the outcome of your case. These alternatives may involve AA meetings, in-patient or out-patient rehabilitation, or other type of monitoring. Each case is different, and a good defense attorney will explore all options for you.
Your case will go to trial only if you decide that you want to exercise your right to a jury trial. The goal is always to resolve any case without having to go to trial, but there are circumstances where you may want to go to trial and have a jury decide your case. A good defense attorney will discuss all options and ramifications with you before you make this very important decision.
Without a doubt, YES, and the sooner the better. And don’t just hire any attorney, be sure you hire a lawyer that is an expert in defending DUI cases. Some evidence, by its very nature, is most valuable and obtainable for a short time. Delay may prevent the development of some evidence. DUI cases are very complex, involving a great amount of law and science. In addition, failure to quickly request a DMV hearing can also negatively affect your defense. It is critical that you obtain expert legal counsel quickly. Conviction for DUI can lead to severe and far-reaching consequences.
Although word of mouth is usually a good indicator, it’s not perfect. Reputation in the community is earned. Unpaid reviews of an attorney’s results are invaluable. Be sure to look for an attorney who defends DUI cases exclusively. Google the attorneys name to see what you find. Do they practice other areas of law as well? Family law? Bankruptcy? Personal Injury? Some attorneys handle whatever case walks in the door; unfortunately they are not experts in any particular kind of case.
How many DUI trials has the attorney won? How many DUI trials has the attorney even done? There are many “DUI defense lawyers” on AVVO that have never taken a DUI case to Trial. They simply help their clients plead guilty.
The bottom line is make sure the attorney you hire is an expert in DUI defense. DUI cases are very complex to defend and require specialized knowledge in DUI investigation, field sobriety testing, how the human body processes alcohol and drugs, as well as expertise on breath and blood testing for alcohol, and blood and urine testing for drugs.
Keep in mind that even if an attorney works in criminal defense, he or she is not necessarily qualified to handle a DUI defense case. There is a difference between helping a client get convicted of DUI by helping them fill out court plea forms and actually defending a client against DUI charges. Without an expert DUI defense attorney defending you, you will likely not be able to get the best possible result in your DUI case.
No. Failure to read someone their rights does not require dismissal of the case. Miranda warnings inform a person of their right to remain silent, their right to an attorney, and their right to have an attorney appointed if they cannot afford one. Miranda warnings are generally not required unless the police question a suspect while the suspect is in custody, meaning they are under arrest. Even then, the only “penalty” for failing to read Miranda rights to a suspect is that the statement made by the suspect might not be allowed in a trial.
In a typical DUI investigation, the officer asks the driver questions before they are arrested so Miranda generally does not apply. Once the driver has been arrested, then Miranda would apply and any statements made as a result of being questioned by the officer may be excluded from trial if the officer failed to give Miranda warnings.
1 Vehicle Code 23152 (a)(e).
2 Vehicle Code 23152 (b).
3 Vehicle Code 23152 (a)(b)(e).
4 Vehicle Code 23152 (a)(b)(d)(e).
California Vehicle Code 23152
(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
(f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
(g) This section shall become operative on January 1, 2014.(Amended (as amended by Stats. 1995, Ch. 455, Sec. 31) by Stats. 2012, Ch. 753, Sec. 2. Effective January 1, 2013. This version is operative January 1, 2014, by its own provisions. Note: Previously operative was the version as amended by Stats. 2012, Ch. 753, Sec. 1 (replacing the version from Stats. 1995, Ch. 445, Sec. 31), which self-repealed on January 1, 2014.)
Please contact us if you or someone you know recently got a DUI. DUI cases are EXTREMELY time sensitive. We’ll be happy to answer your questions at no cost or obligation. Our team typically contacts you back immediately when available, if not always the same day. For immediate assistance use our contact phone numbers below.