The following article is a summary of common issues related to California DUI cases. The article is intended to assist the non-attorney reader in understanding the basic DUI process from arrest to appeal. For that reason, the article remains free of anything too complex as far as technical terms or procedures that DUI attorneys generally face when dealing with these types of crimes. The article includes a brief discussion of the issues surrounding the arrest for DUI, the DMV procedures related to DUI cases, license suspension issues, penalties and punishment for DUI crimes, common defenses applicable to DUI cases, and post-conviction remedies related to DUI crimes. If you or a loved one is charged with a criminal offense, contact a criminal defense lawyer without delay.
DUI Stop: A person has a right to be free from unreasonable searches and seizures (4th Amend. U.S. Cont.). This law applies to anyone driving a motor vehicle on a California Highway who is stopped (seized) by law enforcement. In essence, this means that a driver may not be stopped by law enforcement unless the officer has some reasonable suspicion to believe that the driver has committed a violation of the law (or is about to commit a violation of the law).
If law enforcement stops a driver without reasonable suspicion that the driver has commit a violation of the law then any evidence that flows from that illegal stop could be unusable against the driver in a court of law (suppressed evidence). This includes evidence of the driver’s blood alcohol concentration (BAC), which is usually taken from the driver by law enforcement in the form of a chemical test after the driver is suspected by law enforcement of driving under the influence of alcohol or drugs (DUI).
Note: If the driver was stopped by law enforcement without reasonable suspicion that the driver committed (or was about to commit) a crime, then all of the evidence obtained from the driver may be considered illegally obtain in violation of the driver’s Fourth Amendment Right against unreasonable searches and seizures. What is considered to be a reasonable suspicion of criminal activity by law enforcement is based on a case-by-case basis; however, any violation of California’s traffic laws is a valid reason for law enforcement to stop a driver.
The DUI Laws: The laws related to California DUI offenses may be found at various criminal code sections, including VC 23152(a) (Misdemeanor DUI), VC 23153(a) (Felony DUI), VC 23140 (Underage DUI), PC 191.5 (Vehicular Manslaughter), and HN 655(b) (DUI Boating). Essentially, these laws forbid a driver of a motor vehicle from operating that motor vehicle while she is impaired by alcohol or drugs, or a combination of alcohol and drugs. A DUI may be charged even if the defendant is operating a boat, a golf cart, a bicycle, or even a airplane. The following information is related to these various DUI laws.
Checkpoints for DUI: Also, sometimes law enforcement stops a driver as part of a “checkpoint.” Law enforcement does not need to have reasonable suspicion that the driver has committed a violation of the law before an officer stops a driver at a checkpoint. These checkpoints are designed to catch persons driving without insurance, registration, or a driver’s license. That is why these checkpoints are referred to as “regulatory checkpoints.” However, if during a check point the officer forms the reasonable suspicion that the driver is DUI then the officer may conduct a further investigation into that suspected criminal activity. Regulatory checkpoints are often referred to as "DUI checkpoints" despite the fact that the checkpoint is actually set up for a purpose other than to catch DUI suspects.
Suspicion of DUI: If the officer who stopped the driver believes the driver is driving a vehicle in violation of California DUI laws, then the officer will usually administer several tests in order to validate, or invalidate, that officer’s suspicion. These tests fall into two broad categories: Chemical tests and Field Sobriety Tests (FST): A chemical test is used to estimate the driver’s BAC if the officer believes that the driver has alcohol in her blood.
The chemical test that is administered to the driver before arrest, if any, is usually through a preliminary alcohol screening device, or PAS device, which is breath test that purports to estimate the driver’s BAC by measuring the alcohol expelled from the driver’s breath. The PAS device is not an evidentiary tool intended to be used as evidence against the driver; rather, the PAS device is intended to assist the officer in forming an opinion as to whether or not the driver is DUI.
A FST is series of physical exams that the officer administers to the driver in order for the officer to better determine whether or not the driver is DUI.
Chemical Tests: Chemical tests include the PAS device, breathalyzers, blood tests, and urine tests. With some limitations, all chemical tests may be used by law enforcement in California DUI cases. As stated, the PAS device is a breath test, which is administered at the site of the DUI stop. The PAS device is intended to assist the officer in determining whether or not the driver is DUI before arrest, if any. The breathalyzer is a breath test designed to measure the driver’s BAC by measuring the amount of alcohol that is expelled from the driver’s breath as she blows into the breathalyzer. The breathalyzer is an evidentiary tool. This means that evidence of the driver’s BAC results, as measured by the breathalyzer, may be used against the driver in a DUI case. The breathalyzer is a more accurate device than the PAS device when it comes to measuring the driver’s BAC. The breathalyzer is administered at the police station or the jail and after the driver is arrested for DUI.
The blood test is another type of chemical test. A blood test involves withdrawing blood from the suspected DUI driver after arrest. The suspected DUI driver’s blood is then analyzed to measure the driver’s BAC. Blood draws may take place at the police station, jail, or a hospital. The hospital option usually occurs when a DUI suspect is taken to the hospital after a DUI accident with injury case. Urine tests may also be used to measure a driver’s BAC, but the urine test option is only used where a breathalyzer or blood draw option is not available.
Note: Chemical tests in DUI cases must accurately measure the driver’s BAC in order to be considered relevant and reliable evidence in court. There are measures and regulations that officers and lab technicians must follow to ensure that the DUI chemical test equipment works properly. These regulations are found at California Code of Regulations, section 17. Failure to follow proper measures and regulations could render the driver’s BAC evidence inadmissible.
For example, unless the defendant consents, officers must obtain a warrant from a judge before taking the driver’s blood. There are exceptions to this rule for emergency situations or where the driver is believed to have caused injury as a result of DUI. Other measures and regulations that officers and lab technicians must follow in order to render the driver’s BAC evidence usable in court include:
Blood draw must be taken within three hour of suspected driving
Blood draw must use non-alcohol based cleanser to clean the skin
Blood draw must be performed by a certified lab technician
Blood evidence must be stored, preserved, and refrigerated properly
Breathalyzers must be regularly maintained and calibrated
Breathalyzers must be administered according to strict guideline
Blood analysis must be performed by a certified lab technician
Breathalyzers must be regularly calibrated
Officers must monitor driver at least 15 minutes prior to breathalyzer test
PAS devices must be regularly calibrated
PAS device administration must have two completed test at least 2 min apart
Blood draw and analysis must be close in time, and more
For more information, see DUI Chemical Tests
Field Sobriety Tests (FST): FST are performed in the “field.” This means that FST are administered by officers at the site of the DUI stop (or accident). The FST are designed to assist the officer determine whether or not the driver is DUI. These quasi-scientific tests include: the walk and turn test, the eye test (Nystagmus Test), the one-leg balance test (Rhomberg Test), counting tests, hand-eye coordination tests, a “touch your nose with eye closed” test, and more. As stated, these tests are designed to give the officer some objection evidence to determine whether or not the driver is driving under the influence of alcohol or drugs (DUI). The problem with these FST is that the results of the FST are highly subjective and the result of the tests could be the product of poor instruction given by the officer, poor balance or injury of the driver, and more. For more information, see FST in DUI Cases.
Accident with Injury in DUI Cases: If the driver is involved in a vehicle accident that caused injury, and she is suspected of DUI at the time of the accident, the arresting officer will not usually administer FST. This is because the accident itself could affect the driver’s balance and the officer could inadvertently cause greater injury to the defendant by trying to administer a balance test. Plus, when a the driver's airbag deploys in an accident it could cause eye irritation that can affect the Nystagmus test. Chemical tests in accident DUI cases will almost always include a blood draw either from the jail, or the hospital, regardless of whether or not the driver consents to the blood draw. This is because there is an exception to the warrant requirement in DUI cases where injury is alleged to have occurred.
Note: Accident with injury DUI cases are charged as felony offenses in California (VC 23152 & VC 23153). Non-accident DUI cases are usually, but not always, charged as misdemeanor offense (VC 23152) (see below for more information on the classification of DUI offenses and related punishments)
DUI Arrest: If the officer believes that the driver is DUI, then the driver will likely be arrested. On occasion, an officer who suspects a driver is DUI might not arrest the driver, but rather, issue a citation with a court date to appear to face criminal DUI charges. The officer is more likely to not arrest the driver if the driver is already in her home when the police arrive, no injury was related to the DUI suspect, and the driver does not consent to a BAC chemical test. However, as stated, normally the driver is arrested after the officer suspects that the driver is DUI.
Miranda Rights: After arrest for DUI the driver might be read a list of her rights. These rights are known as Miranda Rights. Miranda Rights include: the right to remain silent, the right to have an attorney represent the suspect, even if she cannot afford an attorney, and that anything she says may be used against her in a court of law.
Contrary to popular belief, an arresting officer is not required to read the DUI suspect her Miranda Rights. In fact, in most DUI cases, unless there is an accident involved, police officers do not usually read the DUI suspect her Miranda Rights upon arrest. Miranda Rights only come into play in a DUI case when the arresting officer continues to ask questions of the DUI suspect after the officer has already arrested the suspect. If the arresting officer did not read to the DUI suspect her Miranda Rights, then the district attorney may not use the DUI suspect’s words against her in a court of law. However, the officer who is conducting a preliminary investigation into the suspicion of a DUI suspect is not required to read the suspect her Miranda Rights because the suspect is not yet under arrest. This means that most of the driver’s words and conduct is usually considered admissible evidence in a DUI case because it all takes place before arrest. Miranda Rights law is commonly misunderstood. For a more detailed discussion of Miranda Rights and consequences for police and evidence when Miranda Rights are violated, see Miranda Rights.
Temporary License: Upon arrest for DUI the driver is usually issued a pink piece of paper titled “30 day Temporary License.” This pink paper represents the driver’s permission to drive for thirty days after the DUI arrest (temporary), assuming the driver was not already driving without a license or driving while her license was suspended. The temporary license should be carried by the driver anytime she drives (the actual driver’s driving license is almost always confiscated by the arresting officer upon a DUI arrest). The pink slip also informs the driver that she has only ten days from the date of arrest to notify the Department of Motor Vehicles (DMV) that she will dispute a possible DMV license suspension that will result from the DUI arrest.
DMV License Suspension: As stated, after an arrest for a DUI the driver will be handed a pink-colored “temporary license.” There is information on that pink-colored paper that informs the driver that she has only ten days in which to contact the DMV to request a hearing where her continued driving privilege will determined. If the driver does not contact the DMV within ten days of a DUI arrest she might automatically lose her driving privileges. There are very limited situations where this ten day notice rule might be extended, but those situations are limited to accident with injury DUI cases where notice of the DMV hearing might have been delayed for some reason.
APS Hearing: If the driver contacts the DMV within the ten days of her DUI arrest then she will receive a different date to appear for the hearing. The DMV hearing related to DUI arrests is called the Administrative Per Se hearing, or APS. If the DMV sets the APS hearing beyond the 30 day temporary license suspension then the driver may request that the DMV hearing “stay” any suspension beyond the thirty days so that she may drive at least until there is a decision concerning her license at the APS hearing.
At the APS hearing, the DMV officer will make a determination as to whether or not the driver was driving a motor vehicle with a BAC of 0.08% of more, and whether or not the driver was lawfully arrested. The driver, called the “Respondent” at the DMV APS hearing, has a right to use the services of an attorney who may assist the driver in her effort to keep her license; however, there is no free attorney provided to the Respondent at APS hearings. Additionally, the Respondent does not have a right to a jury trial at an APS hearing and the burden of proof on showing that the driver was DUI is on the DMV hearing officer; but, that burden of proof is set at a preponderance of the evidence, which means that the DMV hearing officer only has to prove that “more likely than not” the driver was driving a motor vehicle with a BAC of 0.08% or more.
If the DMV hearing officer decides that the DMV has not met its burden then the driver’s driving privileges will be restored. If the DMV hearing officer determines that the driver was in fact DUI then the driver will have her driving license suspended or revoked depending on the findings at the hearing. DUI Lawyers familiar with APS hearings should be engaged by Respondents attempting to save driving privileges at the DMV hearing.
Note: There are different “legal limits” for different groups of people when it comes to DUI. Example: for non-commercial driver, who is not on DUI probation, and who is over the age of twenty, the legal BAC limit is 0.08%. However, for commercial drivers (truck drivers), the BAC legal limit is 0.04% when driving a commercial vehicle; for underage drivers, the BAC legal limit is 0.005% (zero tolerance), and for person who are on DUI probation, the BAC legal limit is 0.01%. Keep in mind that these legal limits represent the legal limits at the DMV. The legal limits are similar, but different, when it comes to the criminal court (see below for further discussion). Also, the DMV concerns itself with the legal limit as it relates to alcohol. When drugs alone are involved in a DUI case the DMV will not hold an APS hearing.
Length of Driving Suspension: The length of driving suspension depends on several factors, including whether or not the driver refused to take a BAC chemical test (i.e. breathalyzer, blood test, etc.), how many prior DUI convictions the driver has suffered within the preceding ten years of the current offense, and whether or not the driver is willing to have an Interlock Ignition Device (IID) installed in her vehicle. An interlock ignition device is a breathalyzer that is attached to the ignition of the driver’s vehicle. The vehicle will not start until the driver blows into the device and the device measures zero alcohol on the driver’s breath.
In sum, a driver who refuses to take a chemical test will have her license suspended for a least a year for a first-time misdemeanor DUI offense, and a driver who is willing to install an IID in her vehicle may her license suspension reduced to thirty days in most situations. The length of time that an IID must be installed in a driver’s vehicle depends on how many DUI convictions the driver has suffered within the preceding ten years of her current DUI offense. A driver who chooses not to install an IID will have her license suspended for at least four months after a first offense misdemeanor DUI and for at least ninety days after second offense misdemeanor DUI (zero driving).
Some drivers may choose the option of a “restricted” driver’s license. The amount of time the defendant must have her license restricted after a first offense DUI is five month. A restricted driver’s license means that the driver may only drive to work and DUI classes during the restricted period. The good news is that if the driver chooses the restricted license option then she will not have to install an IID in her vehicle, unless the criminal court otherwise orders her to install the device. For more information, see Interlock Ignition Device & New DUI and License Suspension Law.
Note: The DMV and the DUI criminal court are two different courts involved in DUI cases. The DMV court is mainly concerned with the driver’s privilege to drive. A loss at the DMV APS hearing will only result in the driver losing her driver's license. The criminal court may also suspend the driver’s license, but the criminal court is more concerned with punishing the driver for her DUI. A loss of at the criminal court in a DUI case could result in all of the following: jail or prison, fines, restitution, mandatory DUI classes, loss of the privilege to drive, mandatory AA or NA meetings, loss of immigration status, loss of a professional license, loss of military enlistment ability, loss of firearm rights, and much more (See below at Penalties for DUI).
Drunk Tank: After an arrest for DUI the driver will be taken to jail (or hospital if she is injured). She will be booked and administered a breathalyzer or blood test, and she will spend at least several hours in the “drunk tank.” The driver’s vehicle is usually impounded unless another driver is allowed by law enforcement to take the vehicle, or the driver is already home. The driver will be given a citation with a date to appear in court. In accident with injury DUI cases, or cases where the defendant was on probation at the time of the DUI arrest, the driver could remain in jail until she either bails out of jail (if allowed and possible), the jail releases her on her own recognizance, or until her first court date (arraignment). In accident with injury DUI cases, the driver has a much higher chance of remaining in jail…at least until her first court date. If the driver is released before her first court appearance, and she does not appear at that first court appearance, she will likely be charged with failure to appear on written promise. This criminal charge is added in addition to the DUI charges. For more information see Arraignment, Failure to Appear at Court, and Bail Issues.
Criminal Court: When the defendant first appears in criminal court, the judge will do several things: take the defendant’s plea (guilty, not guilty, or no contest), assign a public defender to the defendant (if the defendant cannot afford a private attorney), set new court dates for the case to be resolved, if possible, and take up the issue of the defendant out-of-custody status. For most defendants, the most important of these events is whether or not the judge allows the defendant to remain free from custody while the criminal case is proceeding. In felony DUI cases, the judge will likely set a bail amount for the defendant. This is an amount of money that must be staked with the court, usually through a bail agent, in order for the defendant to remain free while the criminal case proceeds. The judge will usually allow the defendant to remain free during the criminal process in misdemeanor DUI cases. Other issues such as court formality, demurrers, notice of rights, and more are also related to arraignments, but those issues are more technical and beyond the scope of this basic overview for non-attorneys.
DUI Criminal Process: The DUI criminal process usually includes several court hearings where the defendant’s attorney collects and reviews the DUI evidence in order to make arguments on behalf of the defendant. In many misdemeanor DUI cases, the defendant, through her attorney, and the district attorney, will come to an agreement as to how much penalty, if any, the defendant should receive. If the defendant and the district attorney (or the court) cannot agree on a negotiated settlement of the case (plea bargain) then the defense attorney will prepare for trial. This whole process can take as little as two court hearings or as long as several years, especially in felony cases. In order for the defendant to be found guilty of DUI at the criminal trial the district attorney will need to prove every element of the offense beyond a reasonable doubt. For more information on the elements requirements for different DUI charges, see Commercial Drivers & DUI, Misdemeanor DUI, Felony DUI, Underage DUI, DUI Boating, and Vehicular Manslaughter.
Note: Felony DUI cases have a slightly different court processes than misdemeanor DUI cases. One of the biggest differences is that in felony DUI cases there is court hearing called a preliminary hearing. A preliminary hearing a “probable cause” hearing where the district attorney must show the judge that there is sufficient evidence in the case, at least at an early state, to justify continued prosecution of the defendant. Some felony DUI cases are resolved or dismissed before the preliminary hearing; but, in felony DUI cases that do not resolve by dismissal or plea, the preliminary hearing is inevitable. For more information, see Preliminary Hearings.
BAC Legal Limit at Criminal Court: The DUI legal limit at criminal court is a little different that the BAC legal limit that is required to be proved at the DMV APS hearing. In criminal court, the defendant is guilty of DUI if she is found to have the following BAC level when driving: For Non-commercial driver over the age of twenty (0.08%); commercial driver (0.04%); driver under twenty or “underage DUI” (0.05%). Also, if the defendant was on DUI probation at the time of a her arrest for a new DUI, then the defendant’s probation will be violated if she had a BAC of 0.01% at the time of DUI; however, a violation of probation is not necessarily a new DUI charge. For example, if a driver is arrested for DUI while she is on probation for DUI, but the driver’s BAC was only 0.02% when she was arrested for the latter offense, then the driver may be charged for violating her probation, but she is not likely to be charged with a second offense DUI.
Note: The legal limit refers to a BAC measurement that allows a jury to presume the defendant’s ability to drive a motor vehicle was impaired; however, the defendant could be charged with driving under the influence regardless of whether or not the defendant’s BAC has reach the “legal Limit.” In fact, anytime a person drives a motor vehicle, while her ability to safely drive that motor vehicle is impaired by alcohol or drugs, she may be charged with a DUI. When the defendant’s BAC has not reached the legal limit, the defendant may still be charged with a DUI under VC 23152(a) (misdemeanor DUI), VC 23153(a) (felony DUI), or even PC 191.5 (vehicular manslaughter). Of course, if the defendant’s BAC has not reached the legal limit the district attorney will likely have a more difficult time proving beyond a reasonable doubt the driver was in fact DUI.
DUI Punishment: Whether or not the defendant pleads guilty (or “no contest”), or is found guilty of a DUI crime, the punishment possibilities are the same. Of course, if the defendant pleads guilty in exchange for a negotiated plea bargain, then the defendant will know her punishment before she makes her plea. In any event, the possible DUI punishments include:
Jail: Up to 180 days for a first offense misdemeanor DUI; up to 1 year for a second offense misdemeanor DUI; up to 3 years for a felony DUI. Keep in mind that penalty enhancements may be added to a felony DUI charge that could increase the possible jail sentence for the defendant. If a person dies as a result of the defendant’s DUI then the defendant could face vehicular manslaughter charges and even murder charges (Watson Murder).
Note: Vehicular manslaughter charges carry up to a ten-year prison sentence if the defendant was grossly intoxicated at the time of the DUI accident and up to a four-year prison sentence if the defendant was not grossly intoxicated at the time of the DUI accident. If the defendant had previously been convicted of a DUI, and she kills another person as a result of a subsequent DUI, then the defendant could face a lifetime in prison (15 years to life [Watson Murder]).
Note: If the driver was driving a motor vehicle while her license is suspended for a prior DUI conviction then the driver will be charged with driving while license is suspended for DUI (VC 14601.2(b)). Jail commitment upon a conviction for VC 14601.2(b) starts at ten days and goes up to 180 days. Also, if the driver was under the age of twenty-one at the time of a DUI offense, and the underage driver’s BAC was less than 0.08% BAC, but above 0.05% BAC (legal limit for underage DUI charges), then the driver could be charged with a misdemeanor or an infraction under the criminal code VC 23140. An infraction is the lowest level classification of crime in terms of severity. The reason for this lower-level classification is based on the fact that the underage driver has not reached the normal 0.08% BAC level attributed to persons over the age of twenty, yet, the underage driver is still charged with a DUI even though she has reached the age of adulthood. For more information see Driving with a Suspended License after a DUI Conviction and Underage DUI Crimes.
Prison: Misdemeanor and felony DUI convictions are usually served in jail when a probation sentence is not granted. This is true unless the DUI resulted in a person's death. When a person dies as a result of DUI the defendant could face up to ten years in prison (vehicular manslaughter), or fifteen years to life (Watson Murder).
Note: A “Watson Murder” occurs when the defendant kills another person in a DUI involved accident and the defendant had previously been convicted of a DUI. Essentially, when a person is convicted of a DUI crime she is advised by the court that driving under the influence of alcohol or drugs is extremely and inherently dangerous to human life. Therefore, if the defendant kills another person in a subsequent DUI then she should have known that a death was a probable result of her criminal behavior (from the prior DUI warning). This notice to the defendant creates the justification for charging the defendant with murder in the subsequent DUI that resulted in death.
Note: Most Felony DUI crimes are subject to PC 1170(h) sentencing. This means that if the defendant is convicted of a felony DUI, she did not injury anyone as a result of her DUI, and she is not granted a probation sentence, then she might have that jail sentence split (served partially out of jail on work release), or suspended (not served unless the defendant violates a condition of her out-of-custody release). In addition, any incarceration for a felony DUI crime that did not result in injury may be served in a local county jail, as opposed to a state prison. Keep in mind that the defendant must serve her incarceration, if any, in prison when she is convicted of any DUI offense that resulted in death (PC 191.5 Crimes). For more information, see PC 1170(h) Sentencing, Differences between Jail and Prison, and Vehicular Manslaughter.
Probation Sentence: A probation sentence is a period of supervision instead of jail. Probation sentences are available in both felony and misdemeanor DUI cases, including vehicular manslaughter and Watson murder cases, but a probation sentence is not guaranteed. Whether or not a defendant receives a probation sentences after a DUI conviction depends largely on the facts of the case, the terms of any plea agreements, the number of prior DUI convictions the defendant has suffered, and more.
Probation sentences are more common in misdemeanor DUI cases than they are in felony DUI cases. Sometimes, the judge will order a jail term as a condition of probation; however, when a judge orders a jail term as a condition of probation in a DUI case, the defendant may usually, but not always, serve that jail sentence alternatively on work release or house arrest. Probation sentences in felony DUI cases is called formal probation, which is monitored by a probation officer. Probation sentences in misdemeanor DUI cases is called informal, summary, or court probation. Informal probation is monitored by the court. For more information, see Work Release & House Arrest.
In some cases, a probation sentence may be modified or terminated early in the interest of justice or where the defendant violates her probation. For more information, see Felony v. Misdemeanor Probation, Early Termination of Probation, & Probation Violation.
Fines, Fees, & Restitution: Upon a conviction for DUI the defendant could be ordered to pay court fines and fees, restitution to victims (usually in felony cases with injury to people or property); payment to mandatory DUI classes, and more. These monetary costs are in addition to the costs required for DUI classes and civil lawsuits, if any. Civil lawsuits against the defendant after a DUI arrest are more common when the monetary loss to the victim is great, such as when the defendant causes massive property damage or injury as a result of her DUI.
DUI Classes: A DUI conviction will require the defendant to attend DUI classes before the driver may have driving privileges restored. The length of these classes is generally as follows: 1st offense DUI with a low BAC (3-4 months [AB 541]); 1st offense DUI with a high BAC (9-10 months); second offense DUI within ten years of a prior DUI conviction (18 months [SB 38]). Sometimes theses classes can run concurrently where the driver is convicted of more than one DUI offense and the mandatory DUI classes for the prior offense have yet to be completed. DUI class providers vary in terms of cost and commitment. Average cost is about $30 a week (one class per week). For more information, see DUI Classes.
Driver License Suspension after Criminal Conviction: After a DUI criminal conviction the defendant may have her driver’s license suspended. This is true even if the DMV court did not suspend the driver’s license after the DMV APS hearing (see above). This license suspension is in addition to the suspension that she might have received after a loss at the DMV APS hearing. These suspensions may run concurrently, but in practice, the DMV hearing is usually concluded long before the defendant is convicted in criminal court; therefore, the DMV and criminal court license suspensions usually run consecutively.
The license suspension length is determined by the number or prior DUI convictions the defendant has received, whether or not she refused a BAC chemical test at the time of her DUI arrest, and whether or not she is willing to have an Interlock Ignition Device (IID) installed in her vehicle. For more information, see DUI & License Suspension, and Interlock Ignition Device Information.
Other Punishments: A DUI conviction can lead to any of the following punishments: loss of the right to enter in the military (Space Force, Army, Air Force, Merchant Marines, Marines, Coast Guard, and Navy), loss of a professional license (i.e. doctor, dentist, lawyer, therapist, teacher, nurse, etc.), loss of the defendant’s right to remain in, or enter into, the United States (for non-US citizens), loss of the right to own and possess firearms (felony DUI cases), civil lawsuits against the defendant, and more. For more information, see criminal convictions and military service, criminal convictions and professional licensure, & criminal convictions and non-US citizens.
Note: Most DUI crimes are not considered serious or violent offenses as those terms are defined respectively at PC 1191.7 and 667.5. This means that most DUI crimes are not strike offenses under California Three Strikes Law. There is an exception for felony cases where a person is injured or killed in a DUI accident and the district attorney has either added a penalty enhancement to the underlying criminal charge, or where the defendant is charged under PC 191.5 (Vehicular Manslaughter), or PC 191.5(d) (Watson Murder). For more information, see PC 1192.7, PC 667.5, Three Strikes Law, Penalty Enhancements, and Vehicular Manslaughter.
Felony v. Misdemeanor DUI Charges: A driver arrested for DUI may be charged with a felony or a misdemeanor. The difference in these criminal classification is discussed more at Felony v. Misdemeanor. In short, a felony DUI is charged in three situations: 1) when the driver was previously convicted of a DUI within the prior ten years of the current offense, regardless of whether or not the current offense involved an accident with injury, 2) a DUI where an accident occurred and resulted in injury to some person besides the driver, and 3) where the defendant is charged with a fourth DUI offense (or more) within ten years of the current offense, regardless of whether or not any of the prior offenses were charged as a misdemeanor or as a felony. For more information on the differences between felony and misdemeanor DUI criminal charges see Felony v. Misdemeanor, VC 23152, and VC 23153.
Defenses to DUI: There is not one “perfect” defense that works in a DUI case. The defenses used by DUI defense attorneys are varied because the facts of every DUI case are different. With that said, the most common defenses incorporated into the defense of DUI criminal charges include: illegal search and seizure (no legal justification for the DUI stop which leads to unusable evidence), evidence of lack of required procedures followed by the arresting officer or the lab tech, impeaching the evidence related to the accuracy of blood or breathalyzer evidence (failure to follow regulations and calibration requirements when handling the evidence), witness statements that refutes officers’ report(s), medical records and experts use to show defendant’s true BAC at the time of driving, impeaching the officer’s findings or instructions as to the FST, insufficient evidence (failure of the district attorney to prove the case beyond a reasonable doubt), statute of limitations (1 year in misdemeanor DUI cases and 3 years in felony DUI cases), jury nullification, Miranda violations, and more. For more information on DUI defenses, see Defenses to Crime.
Note: In felony DUI cases that involve an accident with injury to a person other the driver the district attorney must prove beyond a reasonable doubt the defendant committed a traffic violation other than, and in addition to, driving under the influence. For example, if the defendant is intoxicated while driving, but she is properly parked at a red light and waiting for the signal to turn green when another car illegal crashes into her and causes injury to both drivers, then the defendant may be charged with misdemeanor DUI, but she should not be charged with a felony DUI with injury because she did not violate a traffic law other than the DUI at the time of the accident. The theory of this law is that the defendant’s impaired driving did not cause the accident.
Plea Bargain: A plea bargain is common in DUI cases. A plea bargain in a criminal case is a defendant’s promise to plead guilty in exchange for a lowered criminal charge (charge bargaining) or a lowered jail sentence (sentence bargaining). In felony DUI cases, the district attorney might be willing to reduce the classification of the crime to a misdemeanor in exchange for the defendant’s promise to plead guilty. This is allowed in DUI cases because most DUI offenses that are considered wobbler offenses. A wobbler crime is a criminal charge that may be charged either as a felony or as a misdemeanor (i.e. VC 23152(a), VC 23153(a), etc.). Also, the district attorney might willing to reduce the charge from a misdemeanor DUI to a lower level crimes, such as a wet-reckless, or open container violation, in exchange for the defendant’s promise to plead guilty to the lowered offense. For more information, see Wobbler Crimes and Wet-Reckless.
Note: A wet-reckless plea, sometimes called a wet and reckless plea, is not a criminal charge that is filed against the defendant. Rather, a wet-reckless crime is an offense that is only available as a reduced crime offered by the district attorney during some DUI plea bargaining discussions. A wet-reckless is a preferred conviction over a DUI for most defendants because a wet-reckless conviction carries much lower penalties overall than a DUI conviction. However, a wet-reckless conviction is still classified as a misdemeanor and the defendant should be aware of the immigration and professional licensing consequences for a wet-reckless conviction before accepting such an offer from the district attorney.
Post DUI Arrest Options: The defendant who is charged with DUI has several options before the DMV APS hearing or her criminal arraignment. Many DUI suspects will retain the services of a DMV or DUI lawyer familiar with these courts and procedures. In some cases, a DUI lawyer may file a pre-filing litigation letter to the district attorney in an attempt to resolve the case before criminal charges are even filed. Also, if the defendant retains a private attorney before arraignment the defendant will stand a much greater chance of successfully arguing for an own-recognizance release, or at least a lowered bail.
Note: Pre-filing litigation is more common in felony cases where the defendant is a commercial driver, or where the criminal charges alone will negatively affect the defendant's immigration status, professional licensing status, or military enlistment status. The DMV will not likely consider a pre-filing litigation letter. This is because the most punishment that the Respondent may suffer after a loss at the DMV APS hearing is the loss of her driving license. For more information, see Pre-filing Litigation.
Post DUI Conviction Options: After the defendant is convicted of a DUI her post-conviction options depend on how she was convicted. If she was convicted after a plea bargain then her options are limited to filing a motion to withdraw her plea, expungement of criminal record, or petition the court for a grant of rehabilitation. If she was convicted after a court or jury trial the defendant’s post-conviction options include appeal the criminal conviction, expungement of her criminal conviction, and petition the court for a certificate of rehabilitation. For more information, see Withdrawing a Guilty Plea, Expungement, Criminal Appeals, and Certificate of Rehabilitation.
Note: Appealing a criminal conviction is complicated business. Basically, if the defendant is convicted of DUI crime after a jury trial she may appeal that decision to a higher authority court in an effort have some part of the conviction or sentencing overturned. In order to have a conviction overturned in a DUI case the defendant will need to show that some procedure in the case was not handled properly and that the mishandled procedure resulted in an unfair conviction against her. The defendant will also need to show that if the mishandled procedure had not happened, she would not have been convicted. Examples of procedural misconduct that could serve as the basis of a criminal appeal in a DUI case include: jury misconduct, abuse of discretion as to some decision made by the judge (i.e. a judge improperly allowed certain evidence, or improperly excluded certain evidence that would likely have resulted in an acquittal for the defendant without the improper ruling by the judge), defense attorney incompetence, district attorney misconduct, and more. More information on types of misconduct or procedural error that could serve as the foundation for a criminal appeal can be found at Criminal Appeals.
Collateral DUI Issues: If the defendant is arrested for DUI, but the district attorney declines to prosecute the case, then the defendant may petition the court to have her DUI arrest sealed and destroyed. In other cases, where the district attorney actually timely filed a DUI case against the defendant, but thereafter, the district attorney failed to prosecute the defendant because she did not appear as ordered or promised, then the defendant may file a petition to dismiss the criminal charges for failure to prosecute (Serna Motion). That is not say that a person charged with a DUI crime should avoid court. If the defendant fails to appear in court after a DUI arrest the defendant may have a warrant issued for her arrest, be found in contempt of court, charged with failure to appear, or have her bail forfeited and remanded into custody. For more information, Sealing & Destroying Arrest Records, Warrant for Arrest, Contempt of Court, Failure to Appear at Court, & Bail.
Juvenile Cases: When the defendant is under the age of eighteen and she is charged with a DUI offense then the defendant’s case might proceed in juvenile court. In some cases, the defendant’s case could be transferred from juvenile court to adult court upon the juvenile court judge's approval. Whether or not a juvenile DUI case is transferred from juvenile court to adult criminal court depends largely on the defendant’s age (how close she is to 18 years old at the time of the offense), the sophistication of the crime, and the defendant’s criminal record, if any. Most criminal procedures are the same in juvenile court as they are in felony court with the major exceptions being that the goal of juvenile court is rehabilitation, not punishment as it is in adult court. Also, there is no jury trial if the defendant and the district attorney cannot reach a negotiated settlement. Instead the juvenile court judge decides the juvenile's fate after hearing the evidence from district attorney and possibly the defendant's attorney. Other differences between juvenile court and adult criminal court can be found at Juv