Articles Posted in DUI Penalties

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In a recent California appellate decision, the appellate court considered the denial of a motion to suppress in a case involving felony DUI within 10 years of three prior DUI convictions in exchange for formal probation and dismissal of an enhancement and other charges. The DUI arose when a police officer saw the defendant’s vehicle travel into a field. He came up in his patrol car and directed his spotlight to the front of the defendant’s vehicle.

The defendant left his vehicle and tried to talk on a cell phone. The officer came up and asked what he was doing there. He smelled alcohol within moments of talking to the defendant and saw the defendant became nervous when providing responses to questions.

Later, the defendant identified himself, but the patrol officer suspected this identification was false and put him in handcuffs. The defendant gave his true name, and through a records check, the patrol officer learned his license had been suspended and he was on probation for prior DUIs. The defendant refused a chemical breath test, which was a condition of his probation. He refused a second time, and was then arrested and taken to the hospital for a blood draw, which revealed his blood alcohol concentration (BAC) was .093.

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Sometimes drunk driving leads to someone’s death. In that case, you may face multiple charges on top of any DUI charges that apply. In a recent California appellate decision, the defendant appealed a conviction for gross vehicular manslaughter while intoxicated and challenged the lower court’s denial of probation, among other things.

The prosecutor filed a three county felony complaint charging the defendant with a gross vehicular manslaughter while intoxicated under section 191.5(a), DUI causing injury under Vehicle Code section 23153(a), and driving with a measurable blood alcohol concentration (BAC) triggering injury under Vehicle Code section 23153(b). With regard to these two other counts, it was alleged the defendant personally caused great bodily injury, that his BAC was at least 0.15% or greater, and proximately caused bodily injury or death to more than one person.

The defendant pled guilty and admitted the truth of the enhancement allegations. The factual grounds for the plea was that he had knowingly and unlawfully killed someone without malice aforethought while drunk driving and the killing was the result of an illegal act that was not a felony, which resulted in death. He also admitted his blood alcohol was .15 or greater.

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California Vehicle Code Section (VC) 14601.3 states: “It is unlawful for a person whose driving privilege has been suspended or revoked to accumulate a driving record history which results from driving during the period of suspension or revocation. A person who violates this subdivision is designated a habitual offender.”

Once the person has been deemed a habitual offender, any subsequent driving offenses are subject to more severe penalties, including jail time. Upon a first conviction under this statute, the person shall be sentenced to 30 days in jail and a $1000 fine. A second or subsequent conviction within seven years of a prior conviction will result in 180 days in jail and a $2000 fine.  Under 14601.3(e)(3), any habitual offender who is convicted of driving on a suspended license and the suspension is due to a DUI, the penalty is 180 days in jail, to be served consecutive to any other jail time imposed for violating any other law, plus a $2000 fine.

To convict someone under this statute, the prosecutor must prove: Continue reading ›

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Typically, when you are sentenced, and your sentence includes probation, one of the things you are ordered to do is not violate the law. If you are arrested, the arrest itself is not a probation violation. However, what ends up happening, is you will have a new open case and the probation violation trailing behind it, waiting to see what happens on your new case.handcuffs

If you plead guilty to the new charge or are found guilty after a trial, the judge will then address the probation violation in a probation violation hearing. Typically that is done in front of the sentencing judge who put you on probation on the first case. However, the judge on your new case, if s/he has jurisdiction over the first matter, may address probation with the new case, in what is often called packaging or bundling both together.

The probation violation hearing has a lower standard of proof, meaning a judge only has to find that you violated the terms of probation “by a preponderance of the evidence” not “beyond a reasonable doubt” as required in criminal cases.

At the hearing, both the prosecutor and the probationer will be able to present evidence. If the judge finds that it is more likely than not that the probation terms were violated, Continue reading ›

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Driving under the influence of drugs, or DUID, is essentially the same as a DUI with alcohol. The code section reads: “It is unlawful for a person who is under the influence of any drug to drive a vehicle. “

pillsIn essence, the prosecutor has to prove that the defendant drove a vehicle, and when s/he drove, s/he was under the influence of a drug. The drug can be an illegal substance, a prescribed medication or even an over-the-counter medicine that could affect the nervous system, brain, or muscles of a person.

“Under the influence” is the hardest element for the government to prove. According to the California Jury Instructions (2110), “A person is under the influence if, as a result of…taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

Unlike drunk driving cases involving alcohol, Continue reading ›

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In California, if a person is initially arrested for driving under the influence, the case may be negotiated down to other, less severe charges such as a wet reckless, dry reckless, drunk in public, or even an exhibition of speed charge. Successful negotiation will depend upon the facts of the case.

In my experience in San Diego courts, exhibition of speed as a reduction from a drunk driving charge is rarely available as a negotiated plea, unless the case has some serious flaws and the prosecutor believes the DUI case cannot be proven in trial. However, I have been able to obtain such a result in a case that was filed in the Los Angeles Metropolitan Courthouse. My client had a .08 BAC on both the preliminary alcohol screening test and the evidentiary breath sample.

The exhibition of speed charge is found in California Vehicle Code Section 23109(c), and it does not mention alcohol, drinking, drugs, blood alcohol content, or under the influence. Therefore, it is a much better result for the defendant because the penalties are a lot less severe. There is no license suspension, unless Continue reading ›

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Recently, California Governor Jerry Brown signed SB 1046 into law after the State Senate and Assembly voted overwhelmingly in favor, (unanimously with the exception of one “no vote recorded” in the Assembly).  This law will require that all persons convicted in California of a DUI, even a first offender, to install an ignition interlock device, or IID, in all the vehicles s/he owns for a specified period of time.

An IID is a machine that is installed in your car’s ignition. In order for your car to start, the driver must first blow into the machine. If no alcohol is detected, the car will start. If alcohol is detected, the car will not start. In addition, as the car is running, it requires additional breath samples with no alcohol detected to keep the car operational.

The penalty will be as follows: Continue reading ›

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justice scales.jpgOnce a driving under the influence defendant pleads guilty or is convicted after a jury trial, their criminal record will reflect this indefinitely. Since criminal records are public records, they can be easily searched and found by law enforcement agencies, employers, and state licensing agencies. Most probationers want to get their criminal record cleaned up as soon as possible so their record does not hinder them.

A standard DUI sentence includes a term of probation. Under California law, Penal Code Section 1203.4, a person is eligible for an expungement “in any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” There are a few exceptions to this rule where an expungement is not available. Examples of this are when the person served time in prison for this offense or the offense was a sex crime.

Most drunk driving cases are eligible for expungement.

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If you are arrested for drunk driving in San Diego, you may be ordered to SCRAM, (which stands for “Secure Continuous Remote Alcohol Monitor”). The judge may include this in your sentence after you enter a guilty plea, after a conviction after a trial, or, any time before the conclusion of the case if the judge is concerned about public safety, recidivism, or your continued alcohol use. Typically, repeat offenders and cases involving high blood-alcohol content and severe accidents are ordered to abstain from all alcohol use and are often monitored by this program.

SCRAM is a bracelet that is worn on the ankle, 24/7, for the period of time ordered by the judge. You are also given a base station to plug into your landline telephone or internet router at home or work, which stores and transmits the data collected by the bracelet.

The offender is required to pay $100 to install the device, plus a daily fee of $15, paid two weeks in advance. This can be scaled from $7 t0 $15, depending on the offender’s ability to pay. They accept cash, checks, money orders, and all major credit cards.

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Currently, there are four counties in California that are participating in the ignition interlock device, IID, pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, per California Vehicle Code Section 23700.  The pilot program requires all driving under the influence, DUI, defendants, including first time offenders, to pay for, install, and then maintain the IID for a period of time as determined by the number of drunk driving convictions the individual has.

An IID is a breathalyzer instrument that is professionally installed in the defendant’s vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during a random sample, the car will stall and become inoperable.  These are referred to as “sample failures” and are reported to the court.

Recently, the Department of Motor Vehicles released its report to the Legislature of the State of California of its findings regarding the “General Deterrent Evaluation of the Ignition Interlock Pilot Program in California.”  According to this sixty page report, the DMV study found “the IID pilot program was not associated with a reduction in the number of first-time and repeat DUI convictions in the pilot counties.  In other words, no evidence was found that the pilot program has a general deterrence effect.”  (See “Report Documentation Page.”) Continue reading ›