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• Janji, Anthony: Driving Under The Influence Of Alcohol Or Drugs If you have been charged with driving under the influence of either alcohol or drugs, there are some things you should know about this type of offense and its potentially serious consequences. Common Charges California Vehicle Code Sections: * 23152(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or the combined influence of any alcoholic beverage and drug, to drive a vehicle. * 23152(b) It is unlawful for any person who has 0.08 percent or more, by weight of alcohol in his or her blood to drive a vehicle. * 23153(a) Driving under the influence and causing injury, if you were involved in an injury automobile accident while driving under the influence of alcohol or drugs. This offense can be charged as either a felony or a misdemeanor. Maximum Penalties VC 23152 (a) or (b) * 1st Offense- 180 days County Jail + Fine * 2nd Offense within 10 years- 1 year County Jail + Fine * 3rd Offense within 10 years- 1 year County Jail + Fine * 4th Offense within 10 years- Felony with up to 3 years State Prison Maximum Penalties VC 23153(a) * Misdemeanor- 1 yr. County Jail * Felony- 3 years State Prison Suspension Of Your Driver License On a first time offense, the Judge will restrict your license for 90-120 days, allowing you to drive to and from work or school, to and from the alcohol program and in case of emergency and other special circumstances. Remember, the Department of Motor Vehicles (DMV) can and usually will suspend your license separately from the court. Depending on the circumstances, this suspension can sometimes last months longer than the one imposed by the courts. You must request a separate hearing with the DMV in order to address any suspensions through that agency. Handling your court case alone will not help you avoid a DMV suspension. Important Even if you are charged with both (a) and (b) counts of VC 23152, your maximum penalty reamains the same. For 2nd, 3rd, and 4th offenses for DUI, all have minimum jail requirements, ranging from 96 hours to 180 days. You must consult an attorney to discuss your eligibility for alternative sentencing that can allow you to stay out of county jail. If convicted of a DUI, you will most likely be placed on probation for a period of 3-5 years.
• Fauth & Meyer: 1.Ê The Traffic Stop Ê A DUI case typically begins when a law enforcement officer stops a driver onÊ a public roadway.Ê The officer may have observed the person driving in an erratic or unusual manner and may suspect intoxication.Ê Or, the officer may stop the driver for reasons unrelated to drunk driving, such as speeding or driving with a broken tail light, and become suspicious only after talking to the driver or smelling alcohol on the driver's breath. Ê 2.Ê The Roadside Sobriety Tests Ê After the officer stops a DUI suspect, the officer will engage the driver in conversation, asking whether he or she has been drinking (do not make incriminating statements!), and then will typically ask the driver to take one or more so-called field sobriety tests.Ê These tests supposedly determine whether the suspect is inebriated by measuring coordination, balance, eye movement and/or language/memory skills.Ê The law enforcement officer may also ask the suspect to take a Preliminary Alcohol Screening (PAS) test, which is administered roadside using a handheld breathalyzer device designed to measure the taker's blood alcohol content (BAC). What the officer does not tell the suspect is that, unless under 21, the suspect may refuse to take the field sobriety tests, including the PAS, without consequence (except, perhaps, that of irritating the officer). Ê 3.Ê The Arrest Ê When the law enforcement officers decide to arrest you, they will typically ask you to turn around and place handcuffs on you.Ê While theyÕre doing this, they will probably tell you three things.Ê First, they will inform you that youÕre being arrested.Ê Second, theyÕll tell you why youÕre being arrested (e.g., for suspected DUI); and third, theyÕll read you your Miranda warnings.Ê After the arrest, youÕll either be transported to a jail facility or to a hospital for blood tests. Ê 4.Ê The In-Custody BAC Tests Once the driver has been placed under arrest, under California's implied consent law, the driver must submit to a chemical blood alcohol concentration (BAC) test, carried out at the station, a testing center or a nearby hospital, even before the suspect has been allowed to talk to a lawyerÊ Refusal to submit to a chemical test after arrest will result in suspension of the suspect's driver's license and enhanced penalties.Ê California law even allows a DUI suspect in custody to be forceably given a chemical test, although this probably won't happen. What the arresting officer may not tell the driver is that the suspect has the right to choose from among those tests available locally. There are three chemical tests used: (1) a breathalyzer test similar to the PAS test but utilizing a larger and more accurate machine, (2) a blood test, and (3) a urine test.Ê Not all tests are available in all districts.Ê (The urine test is generally no longer given for suspected DUI unless the other two tests are unavailable.) The suspect must choose from among those tests actually available.Ê The blood test is the most accurate, and should generally be chosen where the suspect knows his or her BAC is below the legal limit.Ê (You might not want to choose the blood test if you are concerned about drugs other than alcohol in your blood--then, the breathalyzer test might be least likely to find incriminating evidence.) Ê 5.Ê Jail/Bail Ê After having been tested for the presence of drugs or alcohol, the arrested driver will be taken to the nearest county jail facility.Ê Once there, the driver will have booking photographs and fingerprints taken, will undergo an inventory search wherein his or her personal possessions will be confiscated, and will be locked either into a Òtrunk tankÓ or a regular short-term cell. While the driver is being held in jail, a Judge or Magistrate will review the arresting officerÕs report to determine whether the driver should be released on his or her own recognizance and promise to come to court, whether bail should be set, or whether there are any holds that preclude the possibility of release.Ê Most first-time offenders are released on their own recognizance and promise to appear, without having to post bail. If bail is set, however, the driver will be afforded an opportunity to contact a bail bond company or have a relative arrange bail.Ê When seeking to arrange bail, be sure to have the Name, Date of Birth, Current Location, and PFN (Person File Number) of the driver. Ê 6.Ê DMV Hearing Upon the driver's arrest for DUI, the law enforcement officer will confiscate the driver's license and issue a 30-day temporary permit.Ê Unless the suspect then requests WITHIN TEN DAYS a DMV hearing to contest the matter, the Department of Motor Vehicles will automatically suspend the suspect's driver's license for four months for a first offense and one year for a second offense.Ê That suspension, if allowed to happen, will remain in force even though you have not yet had your trial in court. DMV hearings may be conducted via telephone or in person.Ê The suspect's lawyer should generally request an in-person hearing.Ê The DMV hearing provides an opportunity to examine and object to the evidence, including the police report, chain of custody of any blood samples taken, reports of lab technician, etc.Ê Even in cases where the client's BAC was high, our attorneys have been successful in getting the DMV license suspension set aside because of technical defects in the evidence. Ê 7.Ê The Arraignment Ð Your First Day in Court The Arraignment is the formal process whereby a Judge will inform you of the charges that the district attorneyÕs office has filed against you and ask you how you plead.Ê For example, when your case is called, the Judge might say to you, ÒThe people of the state of California have charged you with a violation of California Vehicle Code section 23152(a) Ð driving under the influence of alcohol or a drug - a misdemeanor carrying a maximum punishment of six months imprisonment; how do you plead.ÓÊ You have three options for pleading: guilty, no contest, and not guilty.Ê If you donÕt enter a plea, the Judge will enter a Ònot guiltyÓ plea on your behalf.Ê Unless your attorney has secured a favorable plea bargain at this early stage, the proper plea at your Arraignment is ÒNot Guilty.ÓÊ It is important to note that your Not Guilty plea will not increase the penalties you might receive, so you should not hesitate to say, ÒNot Guilty, Your HonorÓ when asked how you plead. After your Not Guilty plea, the Judge will set a date for your first Pretrial Hearing, which will be approximately 90 days from the Arraignment.Ê This will allow your attorney time to obtain the evidence against you and to negotiate with the district attorney working the case, if that seems indicated. The Arraignment will be your first opportunity to see the ÒComplaintÓ Ñ the formal document the District AttorneyÕs office files in court when it accuses someone of violating the law. It is usually a single sheet of 8 1/2 x 11 paper.Ê Among other things, the Complaint lists the violations of law with which the suspect is charged.Ê There will probably be at least two violations charged in even the simplest DUI case: (1) for, "driving under the influence," and (2) for "driving with a blood alcohol concentration of .08% or higher," in violation of Vehicle Code section 23152 subsections (a) and (b), respectively.Ê There are also many other DUI-related crimes which may be charged, depending on the circumstances.Ê Also included on the Complaint will be any enhancements (e.g., blood alcohol of .15 or higher) or other violations of law that might have been committed (e.g., reckless driving, driving with a suspended license, etc.).Ê The suspect driver will not receive the Complaint until his/ or her arraignment in court, where it generally must be expressly requested.Ê It is critical that the suspect's attorney obtain a copy of the Complaint as soon as possible in order to check its legal sufficiency and to determine what crimes are charged. Ê 8.ÊÊÊ Plea Bargaining Plea bargaining can happen at any point in the DUI process after you are charged.Ê The Plea Bargain is an offer by the district attorney prosecuting the case whereby the suspect pleads "no contest" to lesser charges in return for a more lenient sentence than would have applied originally.Ê The prosecutor makes the offer to the defense attorney, who will assess that offer in light of the available information. If the defense attorney knows that there is damaging information buried in the file that the district attorney hasnÕt yet noticed because of time pressures in court, the defense attorney may recommend that the offer be accepted right there without delay.Ê Alternatively, if the defense attorney discovers that there are problems with the district attorneys case, but a conviction seems likely, the defense attorney can point out to the district attorney those deficiencies in the case against you and make a counter-offer. There are no hard or fast rules regarding plea negotiations.Ê Instead, the success of plea bargaining depends on the interplay of numerous factors, such as the strength of the case against you, the advocacy of your attorney, and your criminal history. If you enter into a plea bargain, youÕll be changing your plea from Not Guilty to No Contest, which means that, although you do not admit to the charges, youÕll permit a conviction on the terms that your attorney has negotiated for you.Ê That way, you know exactly what sentence you will receive and you can put an immediate end to the case. However, not every case is amenable to plea bargaining. Some cases should be investigated further and possibly taken to trial.Ê The only way to determine this is for an attorney to review all of the information available and weigh the costs and risks of trial or further investigation against any plea offers available. Ê 9.Ê Investigation / Discovery ÒInvestigationÓ is the process whereby both sides (the defense and the prosecution) attempt to bolster their cases by gathering information that might be useful at trial but doesnÕt already exist in the police reports, files, etc.Ê Your investigation might require the use of a licensed private investigator, a forensic chemical expert, or toxicology laboratory for blood or urine retests, among other things. ÒDiscoveryÓ is the process whereby information and evidence gathered through investigations are exchanged between the prosecution and the defense.Ê You have a right to know what information the prosecution has in its possession.Ê Your attorneys will know which information must be disclosed to the district attorney and which can properly be withheld.Ê Your attorneys will also know which information in the possession of the district attorney should be turned over to you in return.Ê In the event that the district attorney does not provide the proper information, your attorneys will file legal documents with the court to force its disclosure. Ê 10.Ê Pretrial Hearing The Pretrial Hearing occurs approximately 90 days after your arraignment.Ê This allows time for investigation and discovery to occur.Ê If investigation and discovery are not yet complete, the Pretrial Hearing can be rescheduled for a later date. At the Pretrial Hearing, your defense attorneys will discuss the case with the district attorneys to determine what must be done before trial and whether any plea bargaining should occur.Ê If more time is needed, the attorneys may agree to come back in two or four weeks for another Pretrial Hearing.Ê If a plea bargain has been reached, it may be entered before the Judge at the Pretrial Hearing.Ê Finally, if both sides are ready for trial, they may ask the Judge to set a date for the trial and inform the Judge of any issues they believe might arise that will require special attention. Ê 11.ÊÊ Trial Most DUI trials last between one and three days.Ê You have a right to have a jury decide whether you are guilty or not guilty; and most suspects choose a jury trial.Ê (The alternative is to have the judge hear the evidence and make the decision.)Ê At the trial, the prosecutor will attempt to prove to a jury that you committed the crimes charge; and your defense attorneys will vigorously challenge the prosecutor's evidence and theories, and will attempt to create at least a reasonable doubt as to whether you committed the crimes charged. Trial begins with an opening statement by the prosecutor.Ê That statement tells the jury about the case, about the evidence the jury may expect to hear against you, and what the prosecutor hopes to accomplish.Ê That opening statement is followed by the opening statement of your defense attorneys, who will explain why the evidence theyÕre about to present will either disprove the prosecutors case or will, at a minimum, raise a reasonable doubt as to whether you really did commit the crimes charged. After both sides have made their opening statements, the prosecutor will present his or her Òcase in chief,Ó which consists of all of the evidence gathered against you.Ê Your defense attorneys will have an opportunity to cross-examine each prosecution witness.Ê Then, your attorney presents your case, challenging each item of evidence presented by the prosecution. When all evidence has been presented and challenged, both sides will give closing arguments to the jury explaining what the evidence means Ð or doesnÕt mean Ð and will ask the jurors to vote for their side.Ê The Judge then instructs the jury on what the law is, how to conduct their deliberations, and that all twelve jurors must unanimously agree on the verdict.Ê The jury is then released into the jury deliberation room, where they will discuss the case and evidence presented and decide whether the prosecutor has proven beyond a reasonable doubt that you committed the crimes charged.Ê This process may take as little as a few hours or as long as a few days.Ê Once the jury has reached a verdict, they will inform the judge of the verdict, and the judge will pronounce the sentence accordingly. Ê 12.Ê Sentence/Penalties If you are found "not guilty," the Judge will immediately inform you of your acquittal, and the case will be closed. Ê If you are found guilty of a DUI misdemeanor, either through a plea bargain or a jury trial, you will have the right to be sentenced six to forty-eight hours thereafter.Ê Most defendants waive this right and ask to be sentenced immediately.Ê The most basic DUI case carries a maximum sentence of six months in jail, and this can be extended to one year or more based on additional charges or enhancements, which are discussed elsewhere on this site.Ê Even where clients are found guilty, we can usually obtain sentences of considerably less than the maximum.Ê It is also often possible to get jail time converted to service in a county work program.