Tag: wet and reckless

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.