Q: Why have I been charged with two counts of drunk driving?
A: California has adopted two drunk driving laws. One law deals with being under the influence of alcohol, the other law deals with driving with .08% or more of alcohol in your blood. The prosecuting agency normally charges you with both counts.
Vehicle Code section 23152(a):
"It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle."
Vehicle Code section 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."
Q: I was not read my Miranda rights. Will my case be dismissed?
A: Probably not. Numerous DUI defendants complain that they were never given Miranda warnings when they were arrested for DUI. The police officer's failure to give Miranda will not result in a case dismissal. Because most of the questions asked by the police officer occurred before you were in "custody", there may have been no legal obligation for the police officer to advise you of your Miranda rights. If there was a Miranda violation, it may result in the suppression of statements obtained as the result of the violation.
Q: Do I have to appear in court?
A: Generally, California law requires you to attend all court appearances in a criminal case. However, if your case is a misdemeanor DUI, California law allows an attorney to attend your court appearances on your behalf.
Q: How can the DMV suspend my license if I haven't been convicted yet?
A: The California Vehicle Code gives the DMV the authority to suspend your license simply if you have been arrested for driving with a .01% or higher BAC while under 21 years of age; driving with a .08% or higher BAC; or refusing to submit to a chemical test (refusal to submit to a PAS test if you are under 21 years old). You will be given a pink form that is used as a notice of suspension and a 30 day temporary license.
Q: Will the DMV suspend my license if I plead guilty to a "wet reckless" (Vehicle Code section 23103.5)?
A: A DMV "Administrative Per Se" suspension under Vehicle Code section 13353.2 for a drunk driving arrest remains in effect after a wet reckless conviction. Further, although the court may only order the "educational component" of the First Offender DUI Program, the entire first conviction DUI program is required if you want a restricted license after a one-month Administrative Per Se suspension for a first offense.
Q: I've missed the 10 day deadline to schedule a DMV hearing. Is there any way to schedule a hearing and save my license?
A: Maybe. Sometimes the DMV re-serves the "Order of Suspension". If this is the case, it may extend the deadline to schedule a DMV hearing for up to 14 days from the date of the new order. Also, in cases of drivers who are under 21, the deadline may be extended.
Q: If I lose the DMV hearing, how long is my license suspended?
A: This may depend on your prior DUI history. In most cases if you have no prior DUI history, the DMV will suspend your license for four months. You may apply for a restricted license after one month by providing the DMV with:
1. A $125.00 fee to reissue your driving privilege;
2. An SR-22 obtained from your insurance company;
3. Proof of enrollment in one of the First Conviction Programs listed below:
East County Accord
(619) 741-8147
MAAC Project DUIP
(619) 409-1780
1355 Third Avenue, Chula Vista, CA 91911
Occupational Health Services
(760) 891-1500
1637 Capalina Road, San Marcos, CA 92069
Central District DUIP
(858) 467-6810
9245 Sky Park Court, #101, San Diego, CA 92123
Q: What will the DMV do if I've had one or more separate DUIs?
A: If these separate offenses occurred within the last 10 years, you may be suspended for one full year or more. Also, you may be ineligible for a license restriction.
Q: What if I have an out of state license?
A: The State of California is not allowed to take the license from you. However, the DMV may still take away your driving privileges in the state of California. They will also notify your licensing state.
Q: What if I refused the blood, breath, or urine test?
A: The DMV will suspend your license one year for a first offense. Your license will be revoked for two years if this is your second offense in ten years. Your license will be revoked for three years if you have three or more offenses in ten years.
Q: I'm under 21. If I lose the hearing how long will my license be suspended?
A: One year. However, we can apply to the DMV for a "critical need" restricted license.
Q: What is "BAC"?
A: Drinking alcohol affects your Blood Alcohol Concentration (BAC). It is illegal to drive with a BAC that is .08% or more (.04% or more if you drive commercial vehicles; .01% or more if under 21.) However, a BAC below .08% does not mean that it is safe or legal to drive.
Q: What are the standard alcohol conditions that go along with my sentence for DUI?
A: You cannot drive with any measurable amount of alcohol in your blood. You must submit to any test at the request of a peace officer for detection of alcohol and drugs. You cannot violate any laws regarding driving a motor vehicle while under the influence or in possession of alcohol or drugs. You cannot drive without a valid license or proof of insurance.
Q: Why must the police officer observe me for 15 minutes prior to taking my breath test?
A: If you eat, drink, smoke, belch, or vomit before the test, it could affect the accuracy of a breath test.
Q: What is the handheld device the officer used to test my breath?
A: These devices are called PAS, PBT or EPAS devices. PAS stands for Preliminary Alcohol Screen, PBT stands for Preliminary Breath Test, and EPAS stands for Evidentiary Preliminary Alcohol Screen.
The two devices most used are the Intoximeter Alco-Sensor IV and the Draeger Alcotest 7410.
The main case involving the device is People v. Bury (1995) 41 Cal.App.4th 1194. In this case, the court stated that a Kelly/Frye hearing was not necessary on a PAS device as the "PAS device is not a novel technique," as "[b]reath tests for alcohol content have been admissible by decisional law before the enactment of implied consent" and that "fuel cells themselves are not a new scientific development."
A handheld roadside device may be unreliable, and a trained attorney will be able to show this inherent unreliability to a jury. For example, these devices do not contain a failsafe mechanism called a "slope detector'. This is needed to show that the true breath (deep lung alcohol) is measured, rather than "mouth alcohol".
Also, an officer must observe you for at least a 15 minute period prior to administering the test.
There are also calibration problems with these devices that must come under close scrutiny in order to protect your rights. The device may be drawing in less air, and therefore register a higher BAC.
Finally, if a person has Gastro Esophageal Reflux Disorder (GERD), this may effect the results of the breath testing device.
Q: What are the penalties for drunk driving?
A: It depends on the facts of each case. The penalties may be modified if you have a prior conviction within ten years, if you were speeding, if you had a child in the vehicle, if your blood-alcohol reading was over .20%, and if you refused to submit to chemical testing, among other things.
Q: Will my license be suspended?
A: In many cases, the police officer may confiscate your license if you:
1. Took a breath test showing .08% blood-alcohol or higher;
2. Gave a blood or urine sample that will be anlayzed later;
3. Refuse to be tested.
The officer will give you a form that serves as a notice of suspension and a 30-day temporary license. You must contact the DMV within 10 days of the arrest to request a hearing to contest the suspension.
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