Can police make a warrantless DUI arrest if they did not observe the suspect driving?
Yes. Police can make a warrantless DUI arrest even if they did not observe the suspect driving.
Observation of Crime Usually Required
Generally, police must observe a crime before they can make a warrantless arrest. (see Penal Code § 836) However, a peace officer with probable cause could arrest a person for misdemeanor driving under the influence of alcohol or drugs not committed in the officer’s presence where evidence could be destroyed unless the person was immediately arrested.
Observation of Driving Not Required for Warrantless DUI Arrest
Vehicle Code § 40300.5(e) created an exception to the presence requirement of Pen C § 836, because evidence could be destroyed by the simple passage of time unless the person was immediately arrested. However, this does not authorize a peace officer to forcibly enter a residence to effect such an arrest. People v. Schofield (Cal. App. 2d Dist. 2001), 90 Cal. App. 4th 968.
Police can also make a warrantless arrest if:
The driver is involved in a traffic crash.
The driver is observed in or about a vehicle that is obstructing a roadway.
The driver will not be apprehended unless immediately arrested.
The driver may cause injury to themselves or damage property unless immediately arrested.
Specific Examples
In Shaffer v. Department of Motor Vehicles, the warrantless DUI arrest of the driver was valid even though the arresting officer did not see plaintiff drive. In that case, a citizen complained and the officer observed visible paint transfer on the driver’s car and that the driver was intoxicated to the point of incompetence. The 1st District Appellate Court ruled that under Vehicle Code § 40300.5, when there has been a traffic accident, an officer having probable cause to believe that an involved driver “had been driving while under the influence of intoxicating liquor…” may make an arrest without a warrant.
Similarly, in People v. Burton, 219 Cal. App. 4th Supp. 9, the warrantless arrest for misdemeanor driving under the influence was proper where a civilian witness observed defendant driving erratically and an officer then located defendant standing near his truck, noticed signs of intoxication, and confirmed that he had been driving the truck.
If Police arrested you for DUI but did not observe you drive, contact RBX Law to discuss your case!
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.
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”)
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
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
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
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 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.
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.
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 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.
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.
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 lawfulorder, 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.
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. Ifthe 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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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.
A basic guide for people charged with their first DUI. Learn about the processes and events involved in a first DUI case.
Overview
The five parts of a first 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. Ifthe 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. However, the prosecutor usually does not provide the report until the first court date. Law enforcement does not provide a copy of the report to the defendant until the criminal case is resolved.
Officers usually pull DUI suspects over for poor driving or speeding. 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 field sobriety tests. However, if you are on probation or parole, you must provide a breath or blood sample. Failure to do so could result in a probation or parole violation. In addition, refusing to perform field sobriety tests is considered evidence of guilt.
Once you are arrested, you must provide a sample of your blood, breath, or urine. The sample will be used to determine your blood alcohol content (BAC). If you refuse, the DMV could suspend your license for one year under Vehicle Code section 23612.
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.
For a first 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 prosecutor can charge the defendant with both counts. But the Court can only convict and sentence the defendant to one count. If law enforcement arrested the driver for driving under the influence of drugs, the prosecutor typically charges them with one count of violating (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.
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. 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.
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 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 specific restrictions while their case is being resolved.
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 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 trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.
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.
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.
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.
A defendant who enters a plea agreement is typically sentenced 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).
For a misdemeanor first DUI (without injury), the maximum sentence is 6 months in jail and a fine of $1,000. The minimum sentence is 96 hours in jail and a fine of $390. A misdemeanor first DUI with injury is punishable by a maximum fine of $1,000 and 90 days to one year in jail. The punishment for a first 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 (3-5 years).
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 defendant is granted probation.
In addition to fines, the court can order the defendant to pay additional fees, penalties, and assessments to the court. The total amount that the defendant has to pay to the court for a first 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.
For a first DUI, the Court will order you to complete a DUI class that is at least 3 months long if your blood alcohol content was under .20%. If your blood alcohol content was over .20%, the Court will order a DUI class that is at least 9 months long. The exact length and type of DUI class varies depending on the county.
If the Court convicts you of a first DUI and your blood alcohol was under .20%, the DMV will suspend your license for 6 months. However, if the Court convicts you of a first DUI and your blood alcohol was over .20%, the DMV will suspend your license for 10 months. The suspension will run concurrent to the DMV suspension of your license, meaning the suspension lasts for no more than 6 to 10 months. If the Court convicts you of a DUI causing injury under Vehicle Code section 23153, the DMV will suspend your license for 1 year.
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. 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.
After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.
right to remain silent
It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.
Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.
Tips and Tricks to Remaining Silent
Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.
“if you didn’t do anything wrong, tell me what happened.”
You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.
waiting for you to start talking
If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”
“you have the right to remain silent…”
The Rule
If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.
Miranda Limitation
However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.
Police Strategy
Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”
right to refuse search
It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.
If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.
Tips and Tricks to Refuse Search
Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.
“sign a consent to search form to get your phone back”
If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.
“if you don’t consent, we will get warrant”
You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.
“if you have nothing to hide, let us search”
Your personal items are private and you have the constitutional right to refuse search.
“if you work with me, I’ll work with you”
Even if you cooperate with police, they are not legally required to help your case.
