DUI cases constitute the largest group of misdemeanor violations in many counties. Notable legal enactments: the lowering of the unlawful blood alcohol level, the addition of a statute prohibiting DUI while driving a commercial vehicle, enhanced penalties for DUI with a minor in the vehicle or the requirement that ignition interlock devices be installed in offender’s vehicles are some examples of both the public and legislative demands for stricter penalties.

Depending on the gravity, i.e. death or serious bodily injuries, property damage or criminal history of an offender, the chargeable statutes under the Vehicle Code (“VC”), 23152 (misdemeanor, no-injury) and 23153 (felony-misdemeanor injury offense), the prosecuting agency has discretion to file a DUI either as a misdemeanor with maximum county jail incarceration of 1 year, penalties and fees in the thousands, court approved DUI treatment programs, restitution to the victims, work release programs (“Caltrans’) and/or community service. Felony charges could invoke a sentence of state prison. Both mandate probation which could either be summary (simply obey all laws) or formal (mandatory meetings with an assigned probation/parole officer).

VC 23152 (a) focuses on the driver’s impairment. A person is under the influence of an alcoholic beverage or drug or under the combined influence of both when as a result of drinking an alcoholic beverage or using the drug, the person’s physical or mental abilities are IMPAIRED to such a degree that the person no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.

While the common public perception is that the person must be “DRUNK”, the legal standard is an objective test of “IMPAIRMENT.” Consequently, when I was a prosecutor, I never used the word “drunk” to describe the defendant. I always used the word impaired. Why? Individuals manifest the physical description of being drunk, such as, “slurred speech, red/bloodshot eyes, the smell of alcohol emitting from their breath or person” differently. Simply put, some are “better drunks” than others. Thus, the crucial debated question between a prosecutor and a defense attorney is defining impairment.

VC 23152 (b) prohibits driving at a time when the driver’s blood alcohol level is 0.08 percent or more by weight. The crux of the inquiry that the prosecution must prove beyond a reasonable doubt to the jury is that “AT THE TIME OF DRIVING”, the blood alcohol level is 0.08 and above. As for the defense, it must sway the jurors to find that offender’s blood alcohol level was at the level of 0.08 “AT THE TIME OF TESTING” but not at the time of driving. Clearly, hiring a good defense attorney to focus on this critical difference is key whether a defendant will be found guilty or not.

DUI OFFENDERS BETWEEN THE AGES OF 13 AND 21: These offenders are subject to a mandatory driver’s license suspension (if licensed), or a 1 year delay in issuing a driver’s license (if unlicensed) upon conviction for a first offense whether in adult or juvenile court.

VC 23157: authorizes police officers to give immediate notice of license suspensions to person who refuse to take or complete a chemical test. The officer is also permitted to confiscate the person’s license and issue a temporary 45-day driving permit. Enhancements for willful refusal to take or complete chemical tests: (1) first time: 48 hours in jail; (2) second: 96 hours (3) third: 10 days in jail (4) fourth or above: 18 days.

DEPARTMENT OF MOTOR VEHICLE (“DMV”) ADMINISTRATIVE HEARINGS VS. CRIMINAL COURT TRIALS: These are 2 very different and distinct arenas when one is arrested for a DUI. The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act. In the DMV hearing, the questioning is generally limited to the following: (1) Did the police have reasonable cause to believe you were driving a vehicle in violation of certain VC statutes? (2) Were you lawfully arrested? (3) Were you driving a vehicle with a blood alcohol level of 0.08 or more?

An arrestee is not required to request a DMV hearing; however, a good criminal defense attorney will request either a telephonic or an in-person proceeding with a DMV hearing officer. Moreover, a defense attorney should advice you accordingly in obtaining a restricted driver’s license after one month of the suspension.

A DUI conviction WILL increase your car insurance and require payments of fines and penalties that could total in the thousands. Based on the facts of the case, an effective attorney may attack the legality of the traffic stop and subsequent arrest. If an attorney is successful in proving to the court that the traffic stop was invalid, the criminal case will be dismissed. This conclusion in the criminal arena may initiate a favorable set aside of your license suspension by the DMV. In a nutshell, hiring an effective criminal defense lawyer immediately to fight your DUI arrest is critical in obtaining a favorable result.