First DUI Guide

First DUI Guide

Overview

The five general parts of a DUI case are arrest, DMV hearing, court hearing, conviction, and sentencing. This is assuming that the case ends in a conviction, which happens to approximately 3/4 of DUI cases.

DUI Arrest

Prior to your arrest, you are not required to do any field sobriety tests. 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.

Once you are arrested, you must provide a sample of your blood, breath, or urine for purposes of determining your blood alcohol content (BAC). If you refuse, you may be charged with refusing a chemical test under Vehicle Code section 23612, and your license could be suspended by the DMV for one year. 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.

For a first DUI where no crash occurred, the charge is typically misdemeanor DUI under Vehicle Code section 23152. The defendant is usually arrested and charged with two separate counts: section 23152(a) and section 23152(b). The former makes it illegal to drive “under the influence,” and the latter makes it illegal to drive with over .08% BAC. The defendant cannot be convicted and sentenced to both counts. If the driver is arrested for driving under the influence of drugs, they are typically charged with one count (Vehicle Code section 23152(f)).

DMV Hearing

The DMV will automatically suspend your license following a DUI arrest, unless you contact the DMV within 10 days to schedule a hearing. At the hearing 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 suspend your driver’s license following that hearing. For a first DUI with a blood alcohol under .20%, the DMV will suspend your license for 4 months.

Court Hearing

If you bail out of jail or are released on your Own Recognizance, your first court date will likely be several weeks if not months down the road. The jail will give you paperwork with your court date when you are released. If you are not released from jail, 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 defendants are released from jail but must follow certain conditions while their case is being resolved.

Before your first court date, you 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.

You may fight your case by contesting the reason 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 most important 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

The conviction occurs by plea or by verdict. The 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. The Judge may also dismiss some counts at the time of sentencing. A conviction based on a verdict can occur after a court or jury trial. In a court trial, the Judge determines guilt and innocence, whereas in a jury trial, the jury make the decision.

DUI Sentencing

If the defendant is convicted, the Judge will determine the sentence. For a misdemeanor, the maximum sentence is 6 months in jail and a fine of $1,000. The minimum sentence is 48 hours in jail and a fine of $390. The punishment for a felony DUI is 16 months, 2 years, or 3 years in prison. For DUI cases, it is common for the Judge to suspend the jail or prison sentence and place the defendant on probation. This allows the defendant to avoid actual jail time, provided they comply with the terms of probation for the duration of probation (1-5 years).

If you are convicted of a first DUI, your license will be suspended for 6 to 10 months. The suspension will run concurrent to the DMV suspension of your license, meaning your license will be suspended for no more than 6-10 months. 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. Both types of restricted license require that you 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.