There are two main ways the state charges DUI’s: Vehicle Code Section 23152(a) and Vehicle Code Section 23152(b). Both carry essentially the same results / penalties. The section (a) says it is unlawful to drive with any amount of alcohol in our system, if that alcohol impairs our ability to drive, so we can’t drive with the same care and caution as an “ordinarily prudent, sober driver.” The (b) section says it is illegal to drive with .08 or more alcohol in our system – regardless of whether we are impaired as described in the (a) section. Click here to view the Table of Contents for the Vehicle Code Section.
If you were arrested for a first offense DUI and your blood alcohol was .12 or more, there is a substantial likelihood that you don’t need to hire an attorney – you probably cannot win your case or negotiate a reduced charge – so you can represent yourself and save attorney fees. (Remember – that “probably” means just that – you may have a defense because of an illegal search, invalid breath or blood test, or other good reason to fight the case – so check with an attorney before making your decision!)
If your blood alcohol level was .09 or lower, there is a high possibility that you can successfully represent yourself and negotiate a reduced charge of “wet reckless.” Again, check with an attorney first because that reduced charge may not be the best result available or appropriate in your case!
Should you end up representing yourself in court, a good reason to have an attorney’s help fighting the DMV suspension of your license may still exist. Attorneys look at your police report and can then advise you whether it is worth your time and money to fight. (See the DMV section.)
Note that it is important to see an attorney quickly. Sometimes there are important procedural rules that have to be followed or grave consequences can result. For example, many people who have been arrested for a DUI have consulted with me and said they didn’t realize they must contact the DMV within ten days of their arrest or lose their right to keep their license while they fight their drivers license suspension. The temporary drivers license people are given after they are arrested are very confusing in this regard.
For some people, the fight with the DMV over their license suspension is more critical than the court fight over the DUI charges. See below for more information.
First Offense DUI’s
When I look at a potential client’s police report, I can usually tell quickly whether the case is worth fighting in court and/or at DMV. The single most important factor is the person’s blood alcohol test result (BA). As I mentioned above, a BA over .12 almost always ends up in a conviction. If there are unusual circumstances, then this “rule” of course does not apply. For example, sometimes people are not tested correctly. Breath tests and even blood tests may be inaccurate. Also, often people have had their last drink just before they drive. If stopped soon after that “last drink” then they may be below .08 at that point but when they are tested later, the test results are higher – the alcohol was still entering their system at the time they were stopped. In other words, the delay in testing means the test doesn’t reflect their blood alcohol at the critical time: when they were driving!
Absent unusual circumstances though, people who have a BA over .12 and up to .19 for their first offense do not need an attorney to help them in court. The penalties are fairly standardized in Santa Cruz, Monterey and San Francisco Bay Area courts.
If a first offender’s BA is .20 or above, OR, if there was an accident, then they probably do need an attorney because of increased sentences by the judges.
Remember – it is always best to talk to an attorney and go over your facts to see whether there is a reason to fight the charge.
If a person’s BA is .09, .08, or lower, then again, probably you can go to court without hiring an attorney and get the usual reduced charge in those cases, a “wet reckless.” This is a reduced charge from DUI and has some benefits which are explained below.
A BA lower than .08 may lead to a further reduction with important benefits. Sometimes a higher BA may result in one of those reductions, too. But there are many people who can get the wet reckless charge without an attorney’s help. You can always go to court for the arraignment and ask for a continuance if the wet reckless reduction is not offered. However, remember it is always best to talk to an attorney to make sure you are getting the best “deal.” If you go to court alone and ask for a continuance, be sure to ask for a copy of your police report to show attorneys.
Defendants with second, third, or fourth DUI’s (within ten years) or first offense cases with additional charges like driving on a suspended license, an accident, or child endangerment should usually get an attorney’s help for court. The range of penalties is significant. An attorney may help you avoid a long jail sentence whereas the unrepresented defendant will go to jail.
The following are the usual penalties for first offense DUI’s – remember that these are not exact and may be altered in a case depending on the particular facts of that case. However, this reflects the current sentencing in Santa Cruz County courts for the vast majority of first offense DUI cases (as of January 2014):
* Two days of work for the Sheriff (picking up trash at a local beach or working at the animal shelter for two eight hour days on your days off);
* Approximately $2,500.00 in various fines (paid at the rate of at least $40.00 per month);
* a DUI school (a 30 hour program over 4 months costing ($714.00); If your breath or blood test was .20 or over than a nine month program costing $1075.00);
* Five years of “informal probation” (no reporting to a probation officer – but you are subject to being returned to court for possible punishment if you should: drink and have a “measurable” amount of alcohol in your system when you drive; fail to pay fines; fail to give a chemical test if asked to; or, fail to complete DUI school, etc.).
Wet Reckless Penalties
Approximately 30 years ago, the legislature created a new statute known as “wet reckless” – reckless driving that is related to alcohol (Vehicle Code Section 23103.5). It is a bazaar fiction to call this “reckless driving” because there is no requirement that there is any reckless driving. The legislature’s purpose was to encourage plea bargains in close cases – giving defendants a reason to plead guilty and yet giving to government a way to get convictions. The following are the approximate usual penalties imposed for cases reduced from a DUI to a “wet reckless” (as of September 2013):
* $1400.00 in fines;
* a two month wet reckless class costing $328.00 (if your test was below a .08);
* three years of “informal probation with no driving without a license, insurance or with a measurable amount of alcohol in your system.”
It is important to remember that a person who receives this reduction is still viewed as having suffered a “prior” DUI conviction should they receive another DUI arrest in the next ten years. This means you are treated the same by the DA and the judge as if you had pled to a DUI instead of the wet reckless. DMV and insurance companies treat the charges the same also (two points against your license and increased insurance premiums… four points in a year or six in two years leads to a license suspension).
If a person is arrested lawfully for driving with a BA of .08 or more, their license will be suspended for 30 days. Then they have the option of two more months of suspension or five months of restricted license (Ok to drive to and from work or school and the required drinking driving school .
It may be wise to challenge the suspension of your license. You must contact DMV within 10 days of your arrest and request an “administrative hearing” to challenge the suspension. Everyone should do this. You can always cancel the hearing without penalty – but if you fail to make the request then you lose your right to keep your license until the decision on your hearing. Currently the hearings are set 30-60 days from the arrest. Until you review your police report, you and your attorney usually cannot decide whether it is worth fighting the suspension. You can set up the hearing by calling DMV for in San Jose at (408) 229 7116. Or you can fax them a DMV DUI HEARING REQUEST form at (408) 229 7129: BE SURE YOU KEEP PROOF OF THE FAX REQUEST WITH SOME FORM OF FAX RECEIPT.
If you elect to seek a restricted license, you need to submit an application for Critical Need Restriction form.
Minimizing Your Risk Of Being Convicted Of DUI
1. When questioned by police investigating a possible DUI before arrest, you are not in custody for the purposes of Miranda warnings – no warning is required – so any statements you make may be used against you. If you politely refuse to answer any of the officer’s questions concerning the DUI investigation, either before or after the arrest, then there will not be any statements that can be used against you in court. Always be polite and explain that you want to cooperate, but have been told too many times that it is best not to make statements at a time like this. (One of the common problems I face when trying to help someone arrested is dealing with their statements that they “only had two beers – three hours ago.” The math just does not work out when their breath or blood test shows a blood alcohol level of .09 or .10. Even while we drink – the alcohol in our body is “burning off” at approximately .015 or .02 per hour. So two beers three hours ago would measure .01 or .02! (Problem is my client should have read this web page and not been driving or at least not made any statement at all!)
2. Field Sobriety Tests (standing on one foot, counting backwards, etc.) are completely voluntary. If you perform them, you may be arrested anyway. It may be better not to give the officer evidence that will be used against you in court. You may politely refuse to do the Field Sobriety Exercises. If you think you are probably under the influence – just be polite and take your chances with the breath test at the hospital or jail.
3. You do not have to take the preliminary alcohol-screening test. This test is administered with a hand held device the police keep in their cars. It is not as accurate as the machines at the hospital or police station. Taking that test – does not take the place of the required later blood or breath test administered at the hospital. If your drinking pattern was such that you are very sure you will pass the test at the location of the car stop – take it. Otherwise politely decline and hope that the intervening time it takes to get to the hospital or jail and the required breath machine will allow your body time to burn off of the alcohol in your system and get you under .08.
4. If given a choice of a blood or breath test after an arrest (if you didn’t take the preliminary alcohol-screening test discussed above) choose a breath test. The breath test is the more unreliable of the two chemical tests and gives you more of an attack against the charges.
5. Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety. Have them tape record your speech. Note that video cameras are recording your behavior in the jail and can show you looking and acting either intoxicated or sober and securing those recordings have helped me show my client appeared sober.
6. Always be polite and respectful to the police officers. How a jury perceives you is extremely important and the police will note if you are not polite. Some officers video or audio-tape the arrest, breath testing and/or booking process – and all officers note how you act and look. Always be on your best behavior.
7. Make a detailed list of all the events and witnesses before being stopped by the police, up to and including being released from custody, to share with your attorney.
8. Retain an experienced DUI/DMV defense attorney to consult. Only an experienced DUI/DMV defense attorney is able to spot your favorable issues and present them to prosecutor, judge, jury, or DMV hearing officer. Make sure your attorney is a trial attorney – the District Attorneys know who we are and if your attorney does not do trials – you have lost your ultimate leverage.
Remember, the best way to avoid a DUI conviction or DMV suspension is to not drink and drive. That $50.00 cab fee does not look so expensive compared to the thousands of dollars associated with a DUI defense and or conviction. Unfortunately, the way our laws are going, even if you have had only a small amount of alcohol and you are not impaired, as long as you smell like alcohol, your chances of being arrested are very high.
Being arrested for a DUI does not automatically result in a conviction or loss of your drivers license. Protect your rights and save your license!