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Penal Code section 1538.5 authorizes suppression of evidence in DUI cases. It also authorizes return of property seized by law enforcement. It is a means to contest a search conducted with or without a warrant. The court will order the suppression or return of items if the prosecution cannot justify the search and seizure. The court usually excludes suppressed evidence from being used at trial or hearing.

In a DUI case, a judge could suppress the following evidence:

1. A blood or breath sample
2. Observations of law enforcement made after an illegal stop or detention

Legal Standard for Suppression of Evidence

Searches with Warrants

Warranted searches are presumptively reasonable. The defendant can attack the validity of the warrant by proving that there are false facts in the affidavit¹ for the warrant. The false facts must be material. Material means that without the false facts, the judge would not have issued the warrant. The defendant must also prove that law enforcement knew that the facts were false.

The defendant can also attack the validity of the warrant by proving that the facts in the warrant affidavit did not establish probable cause for a warrant.

Warrantless Searches

Once the defendant establishes that there was no warrant for the search, the burden shifts to the prosecution to justify the warrantless search. There are numerous exceptions to the warrant requirement. The two exceptions that are most applicable to DUI cases are discussed below.

Vehicle stops and DUI investigations

To stop a vehicle, officers must have reasonable suspicion to believe the defendant violated the vehicle code or some other law. Officers also need reasonable suspicion in order to detain a driver for a DUI investigation. Reasonable suspicion is an objective standard based on all the facts available to the officer at the moment of the stop. The test is whether those facts would warrant an officer of reasonable caution to believe that the action taken was appropriate.

DUI arrest

To arrest a defendant for DUI, officers must have probable cause to believe the defendant is driving under the influence of alcohol. Like reasonable suspicion, probable cause is an objective standard. The test is whether a reasonable officer, based on all the facts known to them, would believe the defendant is guilty of driving under the influence.

Procedure

The defense must file a motion that complies with the California Rules of Court and Penal Code section 1538.5. Requirements include a notice of motion, a motion, a memorandum, and a proof of service. The motion must:

• Identify the specific items to be suppressed
• State that the search was unreasonable because law enforcement did not have a warrant
• State that the defendant had a reasonable expectation or privacy in the item searched

The defendant must tell the prosecutor about the motion at least 10 days before the hearing date or 5 days before a preliminary hearing.

Fruit of the Poison Tree

The “fruit of the poison tree” rule provides that evidence that is the indirect product of an unlawful search is subject to suppression. For the rule to apply, the defense must show that the evidence is tainted by the initial illegal search. This requires a showing that there is a causal connection between the illegal search and the evidence.

If the Court Orders the Suppression of Evidence

When the judge grants the defendant’s motion to suppress, the suppressed evidence is usually inadmissible against the defendant. However, there are a few exceptions when suppressed evidence is admissible:

• To impeach the defendant
• In a different case
• In a motion to reinstate the complaint by the prosecutor²
• On certain appeals by the prosecutor³

If the Court Does Not Order Suppression of Evidence

When the judge denies the motion, the prosecution may use the evidence in a trial or hearing. One disadvantage of losing the suppression motion is that the prosecution could revoke their prior offer to resolve the case.

The defendant can challenge denial of a motion to suppress by appeal in misdemeanor cases. If the suppression hearing occurred within 45 days of the arraignment, the defense can challenge a denial of the motion by writ. On felonies cases, the defendant can challenge denial of the motion by a motion to dismiss under Penal Code section 995 or a special hearing under Penal Code section 1538.5(i).

1. An affidavit is a declaration by law enforcement made for the purpose of securing a warrant ↩︎
2. Penal Code 871.5 ↩︎
3. Penal Code 1238; Penal Code 1466 ↩︎

The prosecution can charge a felony DUI if:

1. The driver causes an accident that results in injury or death. (VC 23554)
2. The driver has three prior convictions for misdemeanor DUI or wet and reckless. (VC 23550(a))
3. The driver has a prior felony DUI conviction. (VC 23550.5(a)(1)-(2))
4. The driver has a prior conviction for vehicular manslaughter. (VC 23550.5(a)(3))
5. The driver has a prior conviction for gross vehicular manslaughter while intoxicated. (VC 23550.5(b))
6. The driver caused injury and has one prior DUI or wet and reckless conviction. (VC 23560)

Wobbler

The felony charges listed above are “wobblers.” A “wobbler” is a charge that can be a misdemeanor or a felony. A wobbler is a misdemeanor when:

• The court does not sentence the defendant to prison or jail;
• The court grants probation and thereafter changes the conviction to a misdemeanor;
• The prosecutor decides to file the case as a misdemeanor;
• The judge determines that the offense is a misdemeanor.

Mandatory Felony DUI

A felony DUI cannot be reduced to a misdemeanor if the driver caused an accident that resulted in injury and has 2 prior DUI convictions (Vehicle Code section 23566).

Prior “DUI” Conviction

A conviction is a prior DUI conviction if it occurred within 10 years. Prior DUI convictions include convictions for the following sections:

• Vehicle Code section 23103 – reckless driving (“dry and reckless”)
• Vehicle Code section 23103.5 – reckless driving involving alcohol or drugs (“wet and reckless”)
• Vehicle Code section 23152 – misdemeanor DUI
• Vehicle Code section 23153 – DUI with injury

DMV Proceedings

You must contact the DMV within 10 days of your DUI arrest. If you don’t, the DMV will suspend your license 30 days after the arrest. When you contact the DMV, they will schedule a DMV hearing. The hearing will be by phone in approximately 1-2 months.

The issues at the DMV hearing are 1) whether you were driving a vehicle; 2) whether your blood alcohol was over .08% when you were driving; 3) whether the officer had probable cause to arrest your for driving under the influence.

You can contest the suspension of your license by presenting evidence, cross-examining witnesses, and testifying. The DMV typically conducts hearings over the phone. You can request an in-person hearing by contacting the DMV. It is extremely likely that the DMV will decide to suspend your driver’s license following that hearing.

Felony Court Proceedings

Release from Jail

Before the first court date, the defendant can bail out or the jail can release the defendant on their own recognizance. If the defendant remains in jail, they will have a court date within 3 days of their arrest. At that first court date, the judge can release the defendant on their own recognizance, change their bail amount, or release them on pre-trial supervision. Under pre-trial supervision the defendant is out of jail but must follow specific restrictions until their case is resolved. It is common for multiple court hearings to occur before the criminal case is resolved.

Arraignment

The first hearing is called the arraignment. At the arraignment, the defendant enters a plea and is advised of the charges and their constitutional rights. If the defendant enters a not guilty plea, the case continues to pre-trial hearings, followed by a preliminary hearing and a trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.

Preliminary Hearing

The defendant is entitled to a preliminary hearing in a felony case. A preliminary hearing is basically a mini trial. It tests the legal sufficiency of the prosecutor’s evidence. The prosecutor must prove that there is probable cause to believe that the defendant committed the crime. Probable cause is a lower standard than the “beyond a reasonable doubt” standard for a conviction. If the judge finds that there is probable cause, the defendant is “held to answer,” meaning the prosecution can move forward with the case.

Defenses to Felony DUI Charges

There are a number of defenses to DUI charges, including law enforcement failure to follow proper procedures, the defendant did not drive the vehicle, or the defendant was not intoxicated at the time of driving. In addition, there are several defenses that apply to felony DUI charges.

No “Injury”

To be convicted under Vehicle Code section 23153, the defendant must cause bodily harm. The bodily injury must be more than shaking up, fright, or a minor headache. There must be harm to the body, such as cuts, bruises, broken bones, pain, stiffness, or strained muscles.

Did Not Cause the Accident

To be convicted under Vehicle Code section 23153, the defendant’s drunk driving must be the cause of bodily harm. If the defendant caused the accident or injury, they are guilty even if another person or driver also caused the accident.

No Prior Convictions

Sometimes the defendant’s criminal record contains mistakes. If the defendant does not have a prior DUI conviction, they cannot contest the felony charge on that grounds.

Incarceration for Felony DUI Charges

Code Section	Reason for Felony	Minimum Jail	Maximum Jail
VC 23550(a)	DUI without injury with 3 prior DUI convictions	16 months	3 years
VC 23550.5(a)(1-2)	DUI without injury with prior felony DUI conviction	16 months	3 years
VC 23550(a)(3)	DUI without injury with prior conviction for vehicular manslaughter	16 months	3 years
VC 23550.5(b)	DUI without injury with prior conviction for gross vehicular manslaughter while intoxicated	16 months	3 years
VC 23554	DUI with injury	16 months	3 years
VC 23560	DUI with injury with prior DUI conviction	16 months	3 years
VC 23566(a)	DUI with injury with two prior DUI convictions	2 years	4 years
VC 23566(b)	DUI with great bodily injury with two prior DUI convictions	2 years	4 years
VC 23566(c)	DUI with great bodily injury with four prior DUI convictions	3 additional years
VC 23558	DUI with injury enhancement	1 year for each additional victim

Felony DUI Probation

The court can grant probation instead of or in addition to sentencing the defendant to jail or prison. The minimum length of probation for a DUI is 3 years. The maximum length of DUI probation is five years or the maximum possible jail or prison sentence.

Suspended License

Suspension Following DUI Arrest

The DMV will suspend the driver’s license for 1 year for each DUI arrest where the driver had a prior DUI arrest.

Suspension Following Felony DUI Conviction

The DMV increases the suspension for prior DUIs and for DUI involving injury.

Offender Level	Non-Injury	With Injury
2nd offender	2 year suspension	3 year revocation
3rd offender	3 year revocation	5 year revocation
4th offender or higher	4 year revocation	5 year revocation
2nd offender with a prior felony conviction	4 year revocation	5 year revocation

This guide goes over the process of an under 21 DUI. This includes arrest, DMV hearing, loss of license, temporary driver’s license, restricted license, and court proceedings.

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• Arrest
  • Blood Alcohol Content
  • Refusal of Chemical Test
• Temporary Driver’s License
• License Suspension
• Court Consequences
• Under 21 DUI v. Over .08% DUI
• Restricted License

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Under 21 DUI Arrest ⬆️

Law enforcement must have a justification for conducting a traffic stop. This is usually a traffic violation such as speeding or weaving between lanes. Law enforcement must also justify their reason for conducting a DUI investigation and a DUI arrest. If the officer cannot justify their conduct, the court can exclude the blood or breath sample from the case. Contact an attorney to learn more about law enforcement justification (also known as probable cause). You may refuse all field sobriety tests.

Blood Alcohol Content ⬆️

Persons under 21 years of age cannot drive with any amount of alcohol in their system. This means that law enforcement will arrest a person under 21 if they have a blood alcohol percentage of .01% or more.

Refusal to Do Chemical Tests ⬆️

Persons under 21 years old must provide a sample of their blood or breath if a law enforcement officers requests it. Refusal to provide a sample results in a 1-year license suspension. This includes a preliminary alcohol screening (PAS) test. You must also provide a sample if you are on probation or parole. Failure to do so could result in a probation or parole violation.

Temporary Driver’s License ⬆️

Upon arrest for DUI, law enforcement takes the driver’s license and provides a temporary paper license that is good for 30 days. The temporary license has information on how to contact the DMV to prevent your license from being suspended. Law enforcement also provides a citation which includes a future court date, the charges, the arresting officer and their agency, and the citation number.

You must request a DMV hearing within 10 days our your license will be suspended 30 days after your arrest. If you request a DMV hearing, the DMV will send you a new temporary license that will last until your DMV hearing.

Under 21 DUI License Suspension ⬆️

The DMV will suspend the driver’s license for 1 year for under 21 DUI. The DMV suspends the driver’s license if:

• Law enforcement informed the DMV that they arrested the person for driving with a blood alcohol level of .01% or greater.
  • The DMV will suspend the license 30 days from the date of arrest.
• A criminal court convicts the person of Vehicle Code sections 23136 or 23140.
  • The DMV will immediately suspend the license.

Court Consequences ⬆️

Conviction of underage DUI is an infraction. Therefore it is not punishable by jail time or probation. There is no fine if the blood alcohol level was .01% – .04%. If the blood alcohol was .05% – .07%, the maximum fine is $100. If the blood alcohol is .08% or higher, the maximum fine is $1,000 and the maximum jail sentence is 6 months. The punishment for a DUI over .08% increases if the person has prior DUI convictions, the Blood Alcohol Content is over .20%, or if the driver injured someone while driving.

Under 21 DUI vs. Over .08% DUI ⬆️

There are two different laws that criminalize DUI under 21 years of age. Vehicle Code section 23136 makes it unlawful for persons under 21 to drive with .01% or more Blood Alcohol Concentration. Vehicle Code section 23140 makes it unlawful for persons under 21 to drive with .05% or more Blood Alcohol Concentration. In addition, persons under 21 years old can be charged with driving under the influence under Vehicle Code section 23152 if their Blood Alcohol Concentration is .08% or greater.

	Under 21 DUI (BAC .01% – .04%) Vehicle Code 23136	Under 21 DUI (BAC .05% – .07%) Vehicle Code 23140	1st DUI (BAC .08% – .14%) Vehicle Code 23152
License Suspension	1 year	1 year	6 months
Probation Length	None	None	3-5 years
Charge Type	Infraction	Infraction	Misdemeanor
Maximum Fine	None	$100	$1,000
Maximum Jail Time	None	None	6 months
DUI Class	None	3 months (if the driver is over 18 years old)	3 months

Restricted Driver’s License ⬆️

The only form of restricted license available for an underage DUI conviction is a “critical needs” license. To obtain a critical needs license, the driver must show that

• School or other transportation facilities are inadequate for regular attendance at school and at activities authorized by the school.
• Reasonable transportation facilities are inadequate and operation of a vehicle by a minor is necessary due to illness of a family member.
• Transportation facilities are inadequate, and use of a motor vehicle is necessary in the transportation to and from the employment of the applicant and the applicant’s income from such employment is essential in the support of the family, or where the applicant’s operation of a motor vehicle is essential to an enterprise from which an appreciable portion of the income of the family will be derived.

The existence of public transportation at reasonable intervals within one mile of the residence of the applicant may be considered adequate grounds for refusal of a critical needs license.