Articles Posted in DUI Penalties

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California has an implied consent law, which requires a driver that is lawfully arrested, suspected of driving under the influence, to submit to a chemical test. The tests that are typically offered for suspected alcohol intoxication is a breath and blood test.  A blood test is usually offered for suspected drug intoxication.  Occasionally, a urine test may be offered if it believed the driver is under the influence of drugs and is unable to give a blood sample for medical reasons, or the blood and /or breath test is not available.

The officer is only required to give you one chance to complete the test. If you refuse, but then change your mind, or you fail to pick one of the tests offered, that can be considered a refusal.

If you refuse, the police may forcibly draw your blood if they obtain a warrant or they can show exigent circumstances that justify the blood draw without a warrant.   In addition to the administrative penalties through the DMV regarding your privilege to drive, there are also enhanced criminal penalties for refusing to submit to a chemical test.

For a first DUI with a refusal enhancement, an additional 48 hours in jail will be added to the penalty. In addition, instead of the 3-month First Conviction Program, the 9-month program will be ordered.  With a second drunk driving conviction within 10-years, 96 hours in jail is added.  For a third driving under the influence conviction within 10-years, 10 additional days in jail are added to the sentence.  And, lastly, for a fourth or subsequent DUI conviction within 10-years with a refusal, the enhanced penalty is 18 additional days in jail. Continue reading →

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Summer 2014 is here! The summer brings BBQ’s, parties, boating, beach time, Sunday Fundays, cold beers and margaritas, and lots of fun times. It is important, however, to plan ahead so your fun does not end with criminal charges.

Often, people use their bikes as transportation when they know they are going to be drinking alcoholic beverages thinking it will prevent them being arrested for drunk driving. But, they are still at risk of being arrested and here is the law.

If the bike can be propelled, moved, or drawn upon a highway, such as a motor bike, you can be charged with driving under the influence of alcohol, drugs, or a combination of both. All the penalties of a standard drunk driving offense involving an automobile would apply. However, if your bike is self-propelled, you will not be subjected to the DUI statutes. Instead, you can be charged with BUI or CUI, biking or cycling under the influence, under California Vehicle Code Section 21200.5.

This code section specifically states: “…it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood…”

The biggest difference between a DUI and a BUI is that there is no specific blood alcohol limit in a BUI case. In a criminal DUI matter, the “Per Se” limit is a .08. Also, the penalty for a conviction for BUI is a fine of not more than $250.00, which is a substantially lesser penalty than in a standard DUI case.

Riding a bicycle while under the influence is a hard case for the prosecutor. These cases can be attacked on several fronts. If you have been arrested and/or charged with riding a bicycle while under the influence, you deserve to hire the Law Offices of Susan L. Hartman, an exclusively DUI defense firm that will aggressively defend your case.

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An SR-22 is a certificate of insurance. It is proof that you have met the state’s minimum requirements for liability car insurance. This form is obtained from your insurance company and they file it with the California Department of Motor Vehicles, to show proof of financial responsibility.

The DMV may require an SR-22 when you reinstate your driving privileges after a suspension or revocation. This happens after a DUI arrest if you lose the Administrative Per Se (APS) Hearing challenging the license suspension, you do not request a hearing and your driving privileges were automatically suspended, or you were convicted or plead guilty to a drunk driving charge and the sentencing included a suspension or revocation.

After a specific amount of time, (depending on certain factors), you may be eligible for a restricted driver’s license. The restricted license allows you to drive to, from, and during the course of your employment and to and from the DUI program. The DMV will not issue the restricted license unless you register in and attend the requisite drunk driving program, pay the reissuance and restriction fee, and file an SR-22 with the department. The SR-22 must be maintained for a period of three years after a DUI suspension.

Most people request the SR-22 from the insurance company that is currently insuring them. However, that is not recommended. Insurance companies have millions of customers and it is not cost effective for them to run a record check on each and every customer. Instead, they rely on self reporting. Once you tell your insurance carrier that you need an SR-22, they will check your DMV record, looking for things like a DUI.

In many cases, the insurance company will not insure a driver with a DUI on their record, so they get dropped and the policy is cancelled. Other companies will issue the SR-22 but then raise the premium, as you may be deemed to be a “high risk driver.”

If you are dropped or you fail to maintain the SR-22 for the entire three years, the insurance company is required to notify the DMV. Your driving privilege will again be suspended unless you immediately obtain another policy.

The Law Offices of Susan L. Hartman recommends you do not self report. Instead, we provide our clients with the names of insurance brokers that specifically deal with drivers with driving under the influence matters. Through these brokers, the licensee can obtain a supplemental insurance policy and an SR-22; thus, maintaining their current car insurance. And, in the event that the original insurance carrier finds out about the DUI and raises the premium or cancels the policy, the brokers will help the client find another insurance company that will insure them regardless of their DUI arrest.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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In San Diego County and throughout California, driving under the influence penalties are getting harsher. In most cases, alleged DUI incidents are charged with two penal code violations:

  1. Driving a vehicle while under the influence of alcohol, drugs, or a combination of both; and,
  2. Driving with a blood-alcohol content (BAC) at or above .08 percent.

Along with these (or other possible) charges, the prosecuting agency may also add penalty enhancements to the complaint. Just as it sounds, if alleged, these can increase the penalty imposed if a person pleads guilty or is found guilty of the enhancement.

Typical enhancements include prior convictions within the past 10 years, high BAC, refusals, speeding, child endangerment, and accidents/injuries.

If a person was convicted or pleaded guilty to a DUI or a wet reckless within 10 years of the current offense, the sentence for the new drunk driving matter will be increased in the criminal court proceeding. Also, the DMV will suspend the driving privileges for a longer period and the driver will have to attend a longer DUI program. Each prior offense will increase the penalties. If the person has 3 prior DUI offenses on their record, the 4th could be charged as a felony, thus exposing him or her to a prison sentence. This is true even if none of the drunk driving offenses involved an accident or any injuries.

If a person’s blood-alcohol content is proven to be .15% or more or .20 or more, additional penalties may be imposed. On a first DUI with a .20 BAC, the 9-month alcohol program will be ordered instead of the 3-month program. In addition, the judge may also impose additional terms such as mandatory AA meetings, public work service, or an ignition interlock device.

If the driver refused to do a chemical test after a lawful arrest, additional administrative penalties are imposed through the DMV. For instance, on a first DUI with a refusal, the DMV will suspend the driving privileges for one year, instead of the usual 4 months. Plus the court will use this to enhance the sentence, including 2 days of mandatory jail time.

If a person was driving 20+ mph over the speed limit on surface streets or 30+ mph over the speed limit on the highway, the enhancement is called reckless driving. Under California Vehicle Code Section 23582, the judge will order a mandatory 60 days in custody in addition to all the other penalties imposed for the DUI.

If the DUI driver had a minor under the age of 14 in the car when the offense occurred, they will likely be charged with the child endangerment enhancement. The court may enhance the drunk driving sentence by adding an additional 10 days of jail time.

If an accident was involved and there was property damage, the court will order restitution. If a person was injured in the accident, the charges will often be felony DUI or a misdemeanor DUI with injuries, both will include enhanced penalties.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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iStock_000012855950Large.jpgAn alleged driving while intoxicated accident killed six people after a “girls night out” in eastern Los Angeles County, California, on February 9th, 2014. Horrific events such as this strikes up the debate about whether owners and/or bartenders of bars and restaurants should be held liable when their patrons consume alcoholic beverages, drive, and then injure or kill someone.

Olivia Carolee Culbreath, a 21-year-old Californian, was charged with six counts of murder, (felony drunk driving and felony manslaughter), but has yet to be arraigned. At 4:45 a.m., she was driving a red, Chevrolet Camaro the wrong way on westbound 60, the Pomona Freeway, in Diamond Bar, when she hit a Ford Explorer, killing all four in the Explorer. In addition, two of Culbreath’s passengers, her sister and a friend, both died. The defendant remains hospitalized but held on $6 million bail. As though this case is not sad enough, she is a mother of a new born and is now facing life in prison.

Culbreath had a prior DUI conviction when she was just 17, and her driving privilege restrictions from that incident were lifted just days before this catastrophic incident.

So can the owners and/or bartenders of the bars or restaurants where Culbreath was served be financially or criminally liable for this accident? The answer is found in the “dram shop laws,” which in California are found in the Civil Code Section 1714.

This law actually protects bar owners and bartenders from civil liability if their patron drives while intoxicated and injures or kills someone. The code specifically states, “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…the furnishing of alcoholic beverages is not the proximate cause of injures resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” Section (c) extends this provision to a social host.

The exception is found in Section (d), which states an adult who furnishes alcohol to a person that s/he knows or should have known is under 21, may be found to be the proximate cause of any resulting injuries or death.

However, the bartender can be charged with a misdemeanor under California Business and Professions Code Section 25602(a), which states, “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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Previously, the Law Offices of Susan L. Hartman wrote a blog article on how a DUI conviction can impact a professional license. In addition, we did a specific entry on the affects of a drunk driving conviction on a pilot’s license. Here, we will discuss the consequences of a DUI on a licensed vocational nurse’s (LVN) license.

An LVN is an entry-level health care provider who is responsible for rendering basic nursing care. They work under the direction of a doctor or registered nurse. Before becoming a licensed LVN, a person must complete the requisite education and training and then apply for a license with the State of California Board of Vocational Nursing & Psychiatric Technicians, (BVNPT).

According to the BVNPT website, the initial application process includes a background check and the applicant is also required to report any past convictions. In addition, when LVN’s renew their license every two years, they have a duty to self-report any new convictions since their last application. The initial application and renewal documents are signed under penalty of perjury; therefore, all applicants must make sure all the information in the documents are true and correct.

As a condition of renewal, the licensee must disclose whether, since their last renewal, if they have “had their license disciplined by a government agency or have been convicted or plead guilty to any crime.” This means, if a person had been arrested but no charges were filed, or if arrested and charged, but the charges were dismissed or they are still pending at the time the licensee is applying for renewal, the licensee does not have to report this on their application. However, once the licensee is convicted of, or pleads guilty or no contest to a crime, they must disclose that information to the BVNPT. This includes any conviction for an infraction, misdemeanor, or felony, except for minor traffic offenses where the fine was less than $300 and did not involve alcohol or a controlled substance.

If the conviction had subsequently been set aside (expunged) or dismissed, the licensee is still required to report the conviction but then note that the case was expunged or dismissed.

Failure to report convictions can be grounds of disciplinary action or a denial of your license.

If you are arrested for DUI and you currently hold a LVN license or want to apply for one, you need to speak to a criminal defense attorney who specifically deals with drunk driving and its impact on your professional license.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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There are three big advantages to hiring a DUI defense attorney to handle your drunk driving matter: 1.) Their knowledge of criminal law, specifically driving under the influence statutes and defenses; 2.) Using this knowledge to negotiate the case with the prosecutor to reduce the charges or the punishment; and, 3.) Give you advise on whether to accept the prosecutor’s offer or proceed with motions and/or a trial.

Your DUI attorney will use their criminal defense knowledge when reviewing the discovery, looking for weaknesses in the prosecutor’s case. Those weaknesses may be shared with the prosecutor when negotiating the case with the hopes of getting an offer of a reduced charge or reduced punishment.

The negotiation between the criminal defense attorney and the prosecutor is commonly known as plea bargaining. The prosecutor gives an offer on the case, which is their recommended sentence if the defendant agrees to plead guilty, thus avoiding the time and expense of a trial. Defendants should be aware that the judge has the final say in accepting the plea bargain.

The advantage of the plea agreement is the defendant knows before entering a change of plea what the sentence will be. This is unlike if the case went to trial and the defendant was subsequently convicted. Then the judge sentences the defendant, and that sentence can be more or less punishment than what was originally offered, depending on the evidence at trial.

Typically, in a misdemeanor DUI case, the defendant may be given the option to plead to a lesser crime of a wet reckless or a dry reckless. These are found under California Penal Code Section 23103.

A wet reckless is recklessly driving a motor vehicle after consuming an alcoholic beverage or drug. It is a misdemeanor. This is the first level of reduced charges because it still involves alcohol and/or drugs. The probation term and fines and fees are typically less than a DUI. The standard alcohol program is not mandatory. There is no license suspension in addition to any suspension given by the DMV. However, a wet reckless will be considered a prior DUI if you are charged with drunk driving within 10 years of pleading to the wet reckless.

A dry reckless is a misdemeanor reckless driving charge without the element of alcohol or drugs. Therefore, it does not count as a DUI on your driving record or criminal record. The probation and fines/fees are the same as the wet reckless but there is no DUI program requirement, (other than what may be imposed by the DMV). There is no license suspension in addition to any suspension given by the DMV. But, it does count as two points against your license.

If the criminal lawyer is unable to get the prosecutor to agree to the wet or dry reckless, then reduced punishment is negotiated. The DUI lawyer will convey the offer to the client, explaining their rights and best options on how to proceed. The defendant may decide to accept the prosecutor’s offer and enter a guilty plea or they may decide to proceed with motions and /or a trial.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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Recently, a young San Diego man was arrested after an intoxicated pedestrian stepped into oncoming traffic and was struck by his car, according to 10news.com. The pedestrian suffered a broken leg and arm and the driver was later arrested for felony hit and run because he left the scene. What if the driver had consumed an alcoholic beverage before this incident? He may have also been charged with DUI causing injury in addition to his current charges.

In San Diego and throughout California, if a person drives while under the influence of alcohol and/or a drug, and while driving either broke a law (other than DUI) or acted in a negligent manner, and that unlawful act or negligence injures another person, the prosecutor can bring charges under California Vehicle Code Section 23153. This statute is called a “wobbler” because it can be charged as a misdemeanor or a felony.

Under CA Vehicle Code Section 23153, the driver is under the influence, if as a result of drinking an alcoholic beverage, (and/or taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive with the caution of a sober person, using ordinary care, under similar circumstances, (see California Jury Instructions, CALCRIM 2100).

So, if the prosecutor can prove that the driver would have been able to avoid hitting the drunk man who fell off the curb right into his driving path if he did not consume an alcoholic beverage or drugs, the driver could be charged with DUI causing injury.

The penalty for a misdemeanor DUI causing injury could include: Up to five years of informal, summary probation; Five days to a year in jail; $390-$5,000 in fines; A court-approved DUI program for three, nine, eighteen, or thirty months; One to three years suspension of your California driver’s license; And, restitution to the injured parties.

The penalty for a felony DUI causing injury could include: State prison sentence of two, three, or four years; Additional and consecutive three to six year prison sentence if any victim suffers great bodily injury; Additional and consecutive one year sentence for each additional person that suffers any injury (three year maximum); A “strike” on your record if anyone other than the driver suffers great bodily injury; $1,015-$5,000 in fines; A court-approved DUI program for eighteen or thirty months; Habitual Traffic Offender (HTO) status for three years; And, five year revocation of your California driver’s license.

The consequences for a DUI causing injury is severe. If you, or someone you know, has been arrested for violating California VC Section 23153, contact a drunk driving attorney in your area. Protect yourself and get help immediately!

The above blog is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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If you have a drunk driving conviction in San Diego County, or anywhere in California, and you want to enter into Canada you may be inadmissible and denied entry whether the conviction was for a misdemeanor or a felony.

Although you may be criminally inadmissible, you may be able to overcome the inadmissibility through Criminal Rehabilitation or by obtaining a Temporary Resident Permit, TRP, through Citizenship and Immigration of Canada. (Criminal Rehabilitation was discussed in an earlier blog entry titled, “CA Misdemeanor DUI Conviction & Travel To Canada“.)

A TRP may be granted to individuals, who are otherwise inadmissible, for a specific purpose and for a specific period of time. A TRP is a temporary solution to inadmissibility and it is required until the criminal inadmissibility status has been overcome.

You can apply for a TRP at any Canadian visa office or port of entry. The application process can take several weeks to months, so if you are planning a trip, it is imperative that you file the necessary paperwork as early as possible. You should not wait and apply at the port of entry, as your application may be denied and you may not be allowed entry.

If you are granted a TRP, you will have to present it upon entry into Canada. You will be allowed to travel as long as it is valid. Once you are eligible to apply for and are granted rehabilitation, you will no longer need the TRP, as rehabilitation permanently removes the inadmissibility from your file.

If your drunk driving sentence included probation, you should petition the court, in the jurisdiction where you were convicted or plead guilty, for an early termination of probation and expungement. If granted, that would officially conclude the case and that date would be used to start the clock ticking on your ability to file your application for Criminal Rehabilitation.

The above blog article is by no means all-inclusive and is not legal advice. Laws can change. For information about a specific DUI case, speak to a drunk driving attorney in your area. For the most up-to-date information on Canadian immigration, contact a Canadian immigration lawyer.

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If you have a driving under the influence conviction in San Diego County, or anywhere in California, and you want to enter into Canada you may be denied entry whether the conviction was for a misdemeanor or a felony.

Canada may refuse entry to any person who has a criminal record. The United States is now sharing driver’s license and court record databases with Canadian immigration officials. Therefore, it is likely that if you chose to attempt to enter into Canada, the Canadian government will find out about it. It is a crime to enter Canada without a valid permit if you are inadmissible. If you violate the law, you can be arrested, imprisoned, and/or deported.

Criminal inadmissibility makes it illegal to enter Canada for any reason without prior authorization from Citizenship and Immigration of Canada. You can overcome the criminal inadmissibility by obtaining a Temporary Resident Permit or Criminal Rehabilitation.

Criminal Rehabilitation is a permanent solution, allowing the applicant a clean slate. To be eligible, the crime must have been committed outside of Canada, there must have been a conviction or an admission to the crime, and 5 years must have passed since all sentence requirements have been completed.

Once outside the ten year period from the date of completion of your entire sentence, including probation, and assuming you only have the one conviction, you may be Deemed Rehabilitated without filing any documents with the government. If 5 years have passed since the completion of your entire sentence, you can apply for a finding of Criminal Rehabilitation. If 10 years have passed, and you have more than one conviction, you can also apply for Criminal Rehabilitation, as such a person cannot be Deemed Rehabilitated.

If you are not eligible for Criminal Rehabilitation, you may be eligible for a Temporary Resident Permit (TRP), which will be discussed in the next blog entry.

The above blog article is by no means all-inclusive and is not legal advice. Laws can change. For information about a specific DUI case, speak to a drunk driving attorney in your area. For the most up-to-date information on Canadian immigration, contact a Canadian immigration lawyer.

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