Category: dui

Suppression of Evidence in a DUI Case

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).

An attorney can help you file a motion to suppress evidence. Contact RBX Law for a free consultation.

SCHEDULE A FREE CONSULTATION
  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 ↩︎

Felony DUI

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 SectionReason for FelonyMinimum JailMaximum Jail
VC 23550(a)DUI without injury with 3 prior DUI convictions 16 months3 years
VC 23550.5(a)(1-2)DUI without injury with prior felony DUI conviction16 months3 years
VC 23550(a)(3)DUI without injury with prior conviction for vehicular manslaughter16 months3 years
VC 23550.5(b)DUI without injury with prior conviction for gross vehicular manslaughter while intoxicated16 months3 years
VC 23554DUI with injury 16 months3 years
VC 23560DUI with injury with prior DUI conviction16 months3 years
VC 23566(a)DUI with injury with two prior DUI convictions2 years4 years
VC 23566(b)DUI with great bodily injury with two prior DUI convictions2 years4 years
VC 23566(c)DUI with great bodily injury with four prior DUI convictions3 additional years
VC 23558DUI with injury enhancement1 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 LevelNon-InjuryWith Injury
2nd offender2 year suspension3 year revocation
3rd offender3 year revocation5 year revocation
4th offender or higher4 year revocation5 year revocation
2nd offender with a prior felony conviction4 year revocation5 year revocation

Under 21 DUI Guide

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.

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 23136Under 21 DUI (BAC .05% – .07%) Vehicle Code 231401st DUI (BAC .08% – .14%) Vehicle Code 23152
License Suspension1 year1 year6 months
Probation LengthNoneNone3-5 years
Charge TypeInfractionInfractionMisdemeanor
Maximum FineNone$100$1,000
Maximum Jail TimeNoneNone6 months
DUI ClassNone3 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. 

Field Sobriety Tests

What are Field Sobriety Tests?

Field sobriety tests are often divided attention tests (think rub your stomach while patting your head). Although they are not scientific tests, law enforcement uses them to obtain evidence of driving under the influence. The results of the tests are used by prosecutors to convict drunk drivers and to justify DUI arrests.

Refusing Field Sobriety Tests

You may refuse to do any field sobriety tests. One exception to this is that you must provide a blood, breath, or urine sample. However, you are only required to provide a sample if law enforcement arrests you for driving under the influence. Failure to provide a sample can result in further consequences.

“Standardized” Field Sobriety Tests

The following three tests are approved for law enforcement use by the National Highway Traffic Safety Administration.

Horizontal Gaze Nystagmus

field sobriety tests

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that happens when the eyes move to the side from center point. Prior to the administration of this test, an officer must check a subject’s eyes for equal pupil size, resting Nystagmus and equal tracking. The officer administers the test by slowly moving his finger in front of the suspect’s eyes.

An officer administering this test will check for three clues in each eye while checking for HGN:

  • Lack of Smooth Pursuit. When the eyes jerk or bounce as they follow a smoothly moving stimulus.
  • Distinct and Sustained Nystagmus at Maximum Deviation. When the eye jerks when it remains to the side for a minimum of four seconds.
  • Onset of Nystagmus Prior to 45 Degrees. When the eye begins to jerk when it moves 45 degrees from the center.

Four or more cues indicates that the suspect probably has a blood alcohol level over .08%.

Walk and Turn (aka “Walking the Line”)

field sobriety tests

The walk and turn test is a divided attention test. It divides the suspect’s attention between physical and mental tasks. The physical task is balancing and walking on a line. The mental task is completing the test exactly as instructed. The test begins with the instruction phase, followed by the walking stage.


The instruction phase begins with the suspect standing with their feet heel to toe (right foot behind) and arms at their sides. The suspect remains in this position while the officer explains the test. Next, the officer demonstrates three heel-to-toe steps, a turn, and three heel-to-toe return steps.

For the performance part of the test, the suspect must keep their arms at their sides and take nine heel-to-toe steps, followed by a turn and nine heel-to-toe return steps. The suspect must walk a straight line and cannot pause once they start walking. While walking, the must keep their arms at their side, look down at their feet and count each step.

During the test the officer will look for a number of cues for this test, including:

  • Loses balance during instructions;
  • Starts walking too soon;
  • Stops while walking;
  • Fails to touch heel-to-toe;
  • Steps off the line;
  • Uses arms for balance;
  • Makes an improper turn;
  • Takes the wrong amount of steps.

If the officer observes two or more of these cues, it indicates the suspect probably has a BAC over .08%.

One Leg Stand

one leg stand

There are two stages to the one-leg stand test. First the officer instructs the suspect in how to perform the test. Second, the suspect performs the test. During the instruction phase, the officer will provide oral instructions on performing the test. The officer will also demonstrate part of the test. Once this is complete, the officer asks the suspect if they understand the instructions.

During the performance stage, the suspect raises one leg with their foot parallel and approximately six inches off of the ground. With their hands to the side, they count in thousands (one-one thousand, two-one thousand, etc.) while looking at their foot until instructed to stop.

During the test, the officer will look for six possible clues: swaying, using arms for balance, hopping or putting your foot down. If the officer observes two or more clues, it indicates that the suspect probably has a BAC over .08%.

Other Field Sobriety Tests

Law enforcement commonly uses other field sobriety tests including:

Modified Romberg

rhomberg

Moritz Heinrich Romberg, a German neurologist, created the Romberg test to evaluate neurological function. Although it is not approved by the NHTSA, law enforcement uses it to determine intoxication. Like many field sobriety tests, it divides the suspect’s focus between a physical and a mental task.

The basis of the test is that two of the following three functions are needed to maintain balance: vision, inner ear and spacial orientation. If an individual is unable to properly balance using two of these functions, it may be an indication of a neurological problem. When administered as a field sobriety test it is evidence of intoxication.

To administer this test, the officer asks the suspect to stand with their feet together, head tilted slightly back and eyes closed. The officer asks the suspect to estimate when 30 seconds has passed, and say “stop.”

While you are balancing, the officer will look for six clues: amount and direction of swaying, eyelid/body tremors, estimate of when 30 seconds has passed, muscle tone, sounds or statements made during the test, and ability to follow directions.

Finger to Nose

balance test

The finger-to-nose test requires the suspect to close their eyes, tilt their head back slightly and touch their nose with their index finger. The suspect repeats this action three times on each hand, for a total of six attempts. The officer will instruct and demonstrate the test first. Then the suspect will perform the test as demonstrated.

While performing this test, the officer will look for a number of clues that indicate intoxication. These include: inability to follow instructions, swaying, eyelid/body tremors, speaking or making sounds during the test and failing to touch your finger to your nose. If you exhibit several of these clues, law enforcement could arrest you for driving under the influence.

DACA and DUI

DACA and DUI Overview

DACA and DUI do not mix. If you are convicted of a DUI with DACA, USCIS will not renew your DACA. A misdemeanor DUI conviction under Vehicle Code § 23152 or §23153 is a “significant misdemeanor” and a bar to eligibility for DACA. Without DACA protection, USCIC could deport you. One DUI is not ordinarily grounds for deportation. However, USCIS can deport a person with multiple DUI convictions.

Fighting the case

Given the stakes (loss of DACA protection) fighting the case may be your best option. You can fight the case by attacking errors made by the police. You can also fight the case by having a trial to determine whether you are guilty. The burden is on the prosecutor to prove that you were driving a vehicle and: 1) had .08% or greater Blood Alcohol Content (BAC); OR 2) were impaired by alcohol such that it affected your driving. The prosecutor must prove the DUI “beyond a reasonable doubt.”

In order to fight a DUI, you should have an attorney. You can hire an attorney, or if you cannot afford one, request the public defender to represent you.

Alternatives

Diversion with DACA and DUI

Diversion results in dismissal of criminal charges and is therefore the ideal outcome for people with DACA. However, in most counties it is rare for a judge to grant diversion on a DUI case. In the future, the legislature might change the diversion law to ensure that diversion is allowed for DUIs.

Non-DUI Charge

Another option is to resolve the case for a different charge, such as wet and reckless. The prosecutor must agree to change the charge. Usually the prosecutor will not reduce the charge unless the BAC is low (less than .10%). However, sometimes the prosecutor will agree to a wet and reckless conviction with a higher BAC. This happens when there are weaknesses in the prosecutors case or other factors that warrant a lesser charge.

Timing DACA and DUI Conviction

The best time to be convicted of a DUI is immediately after your DACA renewal. This allows the maximum time for rehabilitation and record-clean up. Ideally, by the time your next DACA renewal comes up you will have several years of clean record and rehabilitation.

Expungement and Rehabilitation

A DUI conviction that has been expunged or vacated is not a per se bar to DACA. However, USCIS may still consider an arrest for a DUI offense as a negative discretionary factor in evaluating whether to grant or deny DACA. This makes rehabilitation for a DUI extremely important. Rehabilitation includes attending AA meetings, completing DUI class, paying restitution and remaining crime-free.

Marijuana DUI

What is a marijuana DUI?

A “marijuana DUI” is driving under the influence of marijuana. It is illegal under Vehicle Code § 23152(f).

A person is “under the influence” of marijuana if they are unable to drive with the caution of a sober person.

Recreational Marijuana

Recreational marijuana is legal in California for people over the age of 21. However, it is illegal to drive under the influence of marijuana. Drivers who fail sobriety tests and are in possession of marijuana are often arrested for DUI.

Marijuana DUI Investigation

The reason for a DUI stop is usually poor driving, or a crashed or stopped vehicle. Officers start by making contact with the driver of the vehicle and asking them to roll down their windows. Once the windows are down, officers look for signs of marijuana use.

The smell of fresh (unburned) marijuana by itself is not reason for investigation. However, law enforcement can investigate if they observe:

  • Indications of marijuana use;
  • An open marijuana container;
  • Evidence of other illegal activity.

Typically officers will note the smell of marijuana smoke and red eyes. If officers observe these indicators, they will initiate a DUI investigation by asking you to step out of your vehicle. Officers usually ask DUI suspects to perform field sobriety tests during the DUI investigation.

TIP: You may refuse any law enforcement request…refusing an order can result in further consequences.

Marijuana DUI Arrest

If law enforcement has “probable cause” to believe a driver is under the influence of marijuana, they can arrest the driver. Common facts and circumstances used by law enforcement to support probable cause include:

  • Smoke or paraphernalia in car.
  • Smell marijuana smoke on hands or breath.
  • Strong smell of marijuana in vehicle.
  • Appearance and actions of driver.
  • Failed field sobriety test(s) (ok to refuse).
  • Suspect confesses to illegal conduct.
  • Pay/owe sheets, scales, large quantities of money.
  • Driver is sole occupant and/or car full of luggage.

Once the officer arrests a suspect, they will ask that person to submit to a blood test. Refusing to provide a blood sample can result in a suspended driver’s license.

Criminal Charges

The arresting officer will send a copy of their report to the local prosecutor. The prosecutor decides whether to file the charge or charges recommended by law enforcement. Law enforcement also provides the driver with a notice to appear in court.

Fighting the Charge

At the date listed on the notice to appear, the court proceedings begin. The defendant or their attorney needs to appear in court on that date. Failure to appear can result in a bench warrant. A bench warrant is an order for law enforcement to arrest the defendant.

The following are four ways to fight a marijuana DUI:

  • You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search.
  • For misdemeanor DUI charges, you may ask the court to divert your case by filing a motion.
  • The prosecutor may be willing to resolve your case for a wet and reckless.
  • You may go to trial and have a judge or jury determine your guilt.

Punishments for Marijuana DUI

The sentence for marijuana DUI conviction is a suspended driver’s license, fines, 3-5 years of probation, a conviction on your criminal record, and at least 3 months of DUI classes.

DUI Court Hearings

What are DUI court hearings?

DUI court hearings begin with an arraignment. The next steps are pre-trial conferences, and motions (if necessary). Most DUI cases are resolved during the pre-trial stage by plea agreement with the prosecutor. However, the defendant has the right to go to trial and have a judge or jury determine their guilt.

Arraignment

At arraignment, the court will advise the defendant of their constitutional rights and the charges against them. The defendant will have the opportunity to plead guilty or not guilty, and to admit or deny any other allegations.

At arraignment for a DUI, the court will also determine whether to put any pre-trial conditions on defendant. Common pre-trial conditions include:

  • Supervised release;
  • Attendance at AA meetings;
  • Wearing a SCRAM alcohol-monitoring bracelet;
  • Installing an ignition interlock device;
  • Enrolling in a treatment program.

It is more likely that the court will impose these conditions if the defendant had a blood alcohol content over .15%. Conditions are also likely if the DUI resulted in an accident or injury, or the defendant already has one or more DUI convictions.

You may be able to avoid some conditions if you take steps toward rehabilitation before your first court date. Attending AA meetings and enrolling in the appropriate DUI class are good ways to show you are not a risk to commit another DUI while your case is pending.

Also at the arraignment, the prosecutor will provide the defendant or their attorney with police reports and other items of “discovery.” In addition, the prosecutor typically provides an offer to resolve the case.

Pre-trial Conferences

During pre-trial conferences, the judge, prosecutor and defendant (or their attorney) discuss the status of the case. Topics include the status of discovery, anticipated motions, and trial readiness. In between pre-trial conferences, the prosecutor and defense counsel discuss settlement of the case. Typically that settlement includes a plea to a DUI charge, 3-5 years of probation, and a fine. If your blood alcohol content was at or near .08%, the prosecutor may be willing to resolve your case for a wet and reckless, or dry and reckless charge.

DUI Court Motions

Motions can be an effective tool to fight a DUI case. Motions are used to exclude evidence from the case or to request a dismissal or diversion.

Motion to Suppress

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search. This is commonly referred to as a motion to suppress under Penal Code section 1538.5. If the motion is granted, the judge can suppress evidence. This means that the the prosecution cannot use that evidence in the case against you.

Motion for Diversion

Diversion is not permitted for DUI’s, with the exception of military diversion under Penal Code section 1001.80(l).

Trial

At trial, the key issues will be 1) whether the defendant was the driver of the vehicle, 2) whether the defendant was under the influence when they were driving and 3) whether their blood alcohol was over .08% (or .01% if under 21) at the time they were driving. You have the right to a jury trial, where a jury of your peers determines if you are guilty. You may also have a court trial, where a judge makes that determination. At trial, the defendant bears the burden of proving that they have a valid defense to DUI charges.

DMV Hearing for DUI Case

Overview

You are entitled to a DMV hearing to contest the suspension of your license by the DMV. However, if you fail to request a hearing, the DMV will suspend your license. The DMV has the power to suspend your license if you refused to submit to a blood, breath or urine test. The DMV also has the power to suspend your license if law enforcement arrests you for driving under the influence and your blood alcohol is over the legal limit.

Step 1: Officer Seizes License

When you are arrested for DUI, law enforcement will take your driver’s license and give you 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.

The officer also sends notice of the arrest to the DMV on form DS 367. Once the DMV receives that form, they will take steps to suspend your license unless you contact them to contest the suspension within 10 days.

Step 2: Scheduling the DMV hearing

You must contact the DMV and request a hearing within 10 days of your DUI arrest or the DMV will suspend your license. You can contact them by phone by calling (916) 657-0214 or find the number for your local Driver Safety Office and contact them directly.

Step 3: Prepare for Hearing

You can request documents from law enforcement using a DMV subpoena. If you intend to use documents in your case, you need to provide a copy to the DMV prior to your hearing.

Step 4: Attend the DMV Hearing

You can contest the suspension of your license by presenting evidence, cross-examining witnesses, and testifying. Hearings typically occur over the phone. You can request an in-person hearing by contacting the driver safety office.

DUI

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

Legal Limit (Vehicle Code § 13353.2)
Under 21.00%
Over 21.08%
Commercial License.04%
DUI probation.00%

Refusal

If a person refuses to submit to a chemical test for alcohol, the DMV will suspend their license. The same is true if a person submits to a test but fails to complete the test. The DMV hearing will address the following issues: 1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153; 2) Whether the peace officer placed the person under arrest; 3) Whether the person refused to submit to, or did not complete, the test or tests after a peace officer’s request; 4) Whether law enforcement told the person that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.

DMV Hearing Outcome

It is likely that the DMV will decide to suspend your driver’s license following a hearing. This is because a DMV officer is responsible for deciding if your license will be suspended. However, it is possible to negotiate what date the suspension begins with the DMV officer.

DUI Arrest and Investigation

A DUI arrest begins with a law enforcement encounter, followed by a DUI investigation, and eventually an arrest.

A DUI arrest starts with an encounter with law enforcement. The following are the most common ways that law enforcement encounters a DUI driver:

  • Checkpoints
  • Traffic Stops
  • Accidents
  • Stopped Vehicle

Preliminary Investigation

Officers start by making contact with the driver of the vehicle and asking them to roll down their windows. They ask the driver for their license, registration, and proof of insurance. Although you are required to provide this documentation, you are not required to roll down your window all the way when you do so. Rolling the window down allows officers to get close enough to the driver to observe signs of alcohol intoxication. Typically officers will note an “odor of alcohol emanating from the driver” “red or watery eyes” and “slurred speech.” If officers observe these indicators, they will initiate a DUI investigation by asking you to step out of your vehicle. You may decline to exit your vehicle if an officer asks. However, if an officer lawfully orders you to exit your vehicle, failing to exit can result in additional criminal charges of delaying arrest.

DUI Investigation

Officers usually ask DUI suspects to perform field sobriety tests during the DUI investigation. Common field sobriety tests include: walk the line, stand on one leg, follow the finger (also known as Horizontal Gaze Nystagmus), and count to 30. Another common sobriety test is the preliminary alcohol screening device, which takes a breath sample. You may refuse all tests prior to your arrest, unless you are on parole or probation.

DUI Arrest

If the officer has enough indications that you are driving under the influence, they will typically ask you to stand so that they can handcuff and arrest you. Once arrested, you must provide a sample of your blood, breath, or urine for purposes of determining your blood alcohol content (BAC). If you refuse, the DMV could suspend your license for one year under Vehicle Code section 23612.

Once you are arrested, officers typically take you to jail and impound your vehicle. However, it is possible that officers will not arrest you and will issue you a notice to appear instead. Similarly, officers can release your vehicle to a sober friend or relative instead of impounding it.

Officers will also take your driver’s license and provide you with a temporary paper license good for 30 days.

Declining to cooperate

As noted above, there are certain parts of the DUI arrest that you can decline. However, failure to provide your license, registration or insurance, failure to obey a lawful order, and failure to provide a blood alcohol sample after arrest can result in additional criminal charges. If you decline to participate, make sure that is your right, and be respectful to the officer when you do so.

Second DUI Guide

A basic guide for people charged with their second DUI. Learn about the processes and events involved in a second DUI case.

Overview

The five parts of a second DUI case are: arrest, DMV hearing, court hearings, conviction, and sentencing. After an arrest, law enforcement sends notice of the arrest to the DMV on form DS 367. Once the DMV receives that form, they will take steps to suspend your license unless you contact them to contest the suspension within 10 days.

Law enforcement also sends a copy of their arrest report to local prosecutors. Prosecutors review the report and decide which criminal charges to file. If the defendant schedules a hearing within 10 days, the DMV mails a copy of the report to the defendant. The prosecutor also provides a copy of the report to the defendant’s attorney after charges are filed. Law enforcement does not provide a copy of the report to the defendant until the criminal case is resolved.

DUI Investigation and Arrest

Officers usually pull DUI suspects over for poor driving or speeding. However, they also find DUI suspects using checkpoints, when responding to accidents, and when they locate parked vehicles. Once officers are close enough to smell alcohol or observe symptoms of alcohol (red eyes, slurred speech), they have enough suspicion to initiate a DUI investigation.

Officers typically ask DUI suspects to perform field sobriety tests during the DUI Investigation. Common field sobriety tests include: walk the line, stand on one leg, follow the finger, and count to 30. Another common sobriety test is the preliminary alcohol screening device, which takes a breath sample. You may refuse all tests prior to your arrest, unless you are on parole or probation.

Once law enforcement has placed you under arrested, you must provide a sample of your blood, breath, or urine for purposes of determining your blood alcohol content (BAC). If you refuse, the DMV can suspend your license for one year under Vehicle Code section 23612.

Documentation

When you are arrested, law enforcement will take your driver’s license and give you 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.

Charges

For a second DUI where no injury occurred, there are two charges on the citation. Both charges are misdemeanor DUI charges under sections and (a) and (b) Vehicle Code section 23152. Vehicle Code sections 23152(a) makes it illegal to drive “under the influence.” Vehicle Code section 23152(b) makes it illegal to drive with over .08% BAC. The defendant can be charged with both counts but can only be convicted and sentenced to one count. If the driver is arrested for driving under the influence of drugs, they are typically charged with one count (Vehicle Code section 23152(f)). If someone (other than the driver) is injured as a result of driving under the influence, the driver can be charged with felony driving under the influence under Vehicle Code section 23153.

DMV Hearing

You must contact the DMV and request a hearing within 10 days of your DUI arrest or the DMV will suspend your license. 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. Hearings are typically conducted over the phone, but in-person hearing are also available. It is extremely likely that the DMV will decide to suspend your driver’s license following that hearing.

License Suspension by DMV for DUI Arrest

For a second DUI, the DMV suspends the driver’s license for one year.

Court Hearings

If you bail out of jail or are released on your Own Recognizance, your first court date will be in a few weeks to several months down the road. The jail will give you paperwork with your court date when you are released. If the jail does not release you on OR, you will have a court date within 3 days of your arrest. At that hearing, the Court will consider whether they will release you on your Own Recognizance, change your bail amount, or release you on pre-trial supervision. Under pre-trial supervision, the jail releases the defendant but the defendant must follow specific restrictions until their case ends.

It is common for multiple Court Hearings to occur before the criminal case is resolved. The first hearing is called the arraignment. At the arraignment, the defendant enters a plea and the Court advises the defendant of the charges and their constitutional rights. If the defendant enters a not guilty plea, the case continues to pre-trial hearings, followed by trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.

Settling the Case

Before the first court date, the defendant can attend AA meetings, enroll in a recovery program, or wear a SCRAM alcohol monitor. These methods are regularly used and accepted by the Court. The Court and prosecutor typically see these as favorable factors when deciding the outcome of a case.

If your blood alcohol content was at or near .08%, the prosecutor may be willing to resolve your case for a wet and reckless, or dry and reckless charge.

Fighting the Case

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search. This is commonly referred to as a motion to suppress under Penal Code section 1538.5. You may also take your case to trial. At trial, the key issues will be 1) whether the defendant was the driver of the vehicle and 2) whether their blood alcohol was over .08% (or .01% if under 21) at the time they were driving.

DUI Conviction

A conviction occurs when the defendant enters a plea or is found guilty. A plea can be based on a plea agreement with the prosecutor or an “open” plea to the Court. Under an “open” plea, the defendant pleads to all charges and the Judge determines the sentence. At trial, the judge (court trial) or jurors (jury trial) determine whether the defendant is guilty.

DUI Sentencing

If the defendant enters a plea agreement, the Court typically sentences the defendant according to the terms of the plea deal. If a defendant is convicted by a judge or jury after a trial, the judge will determine the sentence. The judge also determines the sentence for defendants who plead “open” to the court. The judge may accept input on the sentence from the prosecutor, the defense attorney, the victims (if any), and any relevant agencies (IE: probation, law enforcement).

Maximum and Minimum Sentence

For a misdemeanor second DUI (without injury), the maximum sentence is 1 year in jail and a fine of $1,000. The minimum sentence is 90 days in jail and a fine of $390. A misdemeanor second DUI with injury is punishable by a maximum fine of $5,000 and 120 days to one year in jail. The punishment for a second felony DUI is 16 months, 2 years, or 3 years in prison. The judge may suspend the jail or prison sentence and place the defendant on probation. This allows the defendant to avoid or limit their actual jail time, provided they comply with the terms of probation for the duration of probation (3+ years).

Jail Time

Many counties in California allow a defendant to serve jail time via electronic monitoring or community service. These programs are typically referred to as “alternative custody” programs. However, some DUI convictions require actual jail time, even if the court places the defendant on probation.

ChargeMandatory Jail Time
2nd DUI (Vehicle Code section 23542)96 hours
2nd DUI with injury (Vehicle Code section 23562)120 days

Fees

In addition to fines, the court can order the defendant to pay additional fees, penalties, and assessments to the court. The total amount due to the court for a second DUI usually exceeds the $1,000 maximum stated in Vehicle Code section 23540. The exact amount of your fine will depend on the fines and fees in the county of conviction.

DUI Class

The DUI class for a second DUI is 18 months or 30 months long, depending on the county of conviction.

License Suspension by DMV for DUI Conviction

If the Court convicts you of a second DUI, the DMV will suspend your license for 2 years. The suspension will run concurrent to the DMV suspension of your license. That means that the suspension will last for no more than 2 years. If the Court convicts you of a DUI causing injury under Vehicle Code section 23153, the DMV will revoke your license for 3 years.

Restricted Licenses

In order to continue to drive during your suspension, you will need to obtain a restricted license from the DMV. There are two types of restricted licenses: ignition interlock device (breathalyzer); and restricted. However, for a second DUI, only the ignition interlock restricted licenses is available. The driver must keep an ignition interlock installed in their vehicle for one year. In addition to installing an ignition interlock device, you must obtain an SR-22 from your insurance company, pay a fee to restore your license, and enroll in the appropriate DUI class. Learn more about restricted licenses here.