Articles Posted in DUI Penalties

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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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In California, it is illegal for anyone under the age of 21 to consume alcohol. Further, anyone under the legal limit must be alcohol-free when driving. This is codified in California Vehicle Code Section 23136, the Zero Tolerance Law, which states, “[I]t is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle.”

The Zero Tolerance Law is a civil offense and is handled through the DMV. Any underage driver who is detained or arrested for drunk driving is required to submit to a preliminary alcohol screening test (PAS) or other chemical test. If the driver refuses or fails to complete the test or the blood-alcohol content (BAC) is .01% or more, the DMV will suspend or revoke the youth’s driver’s license.

If the under 21 year old driver took the PAS or other chemical test and the results were .01% or higher, their driver’s license suspension is one year. If the driver refused or failed to complete the test, the license suspension is one year for the first offense, revoked for two years for the second offense within 10 years, and revoked for three years for three or more offenses within 10 years.

The Suspension/Revocation Order and Temporary Driver License will allow the driver to continue to drive with the same privileges and restrictions as they had under their driver’s license for a period of 30 days from the date it was issued. After that 30-day period, the driver’s license is automatically suspended or revoked unless within 10 days after the date of detention or arrest the DMV is contacted to request a hearing to challenge the suspension or revocation. You may hire a San Diego criminal defense attorney to represent you and your interests at the DMV hearing. If you prevail at the hearing, the suspension or revocation will be set aside and your driving privileges are restored in full.

On the first offense, if the suspension or revocation is not challenged or if you do not prevail after the DMV hearing, but the driver completed a chemical test, the driver may apply for a critical need restriction after the 30-day suspension, under CVC 12513, 13353.8. This will only be granted if the driver can show a critical need to drive and that other transportation options are inadequate.

California Vehicle Code (CVC) Section 23136 does not preclude further criminal prosecution under the other driving under the influence statutes including CVC Section 23152 and 23153, which are wobblers, meaning they can be charged as a misdemeanor or felony. In addition, there is another CVC section that specifically deals with under 21 drivers, CVC Section 23140. Under this section, is it an infraction for anyone under 21 years old to drive with a blood-alcohol content of .05 — .07%.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

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A DUI arrest often results in the prosecuting authority filing official charges in the San Diego Superior Court. The most common driving under the influence charges involving an alcoholic beverage or drug, or a combination of an alcoholic beverage and a drug, does not involve an accident, personal injury or property damage, and is filed as a misdemeanor under California Vehicle Code Section 23152 (a) & (b).

Once the case is filed, the DUI defendant is given notice of an arraignment date. At the arraignment or the first hearing, (the Readiness Hearing), the defendant or his or her DUI attorney and the prosecutor will negotiate the case. If the blood or breath test was around a .10% or if the prosecuting attorney believes there are problems with their case, the offer may be for a lesser included charge called a wet reckless.

If the driving under the influence defendant wants to accept the deal and enter a guilty plea to the wet reckless, the judge will either order the 3-month First Conviction Program or the 12-hour, education only program as a condition of DUI probation. If the blood alcohol content was below a .08% or showed a positive for drugs, the 12-hour class will be ordered. If the blood alcohol was at or above a .08%, the 3-month program will be ordered.

In order to comply with the court ordered first conviction program, the defendant must attend a court approved program. These can be found on the San Diego Court’s website. This course costs $190.00 and includes:

• Six education classes, 1 class per week, 2 hours per class.

Defendant’s should be cautious with the interaction between this criminal court process and the DMV administrative process, as the DMV may require the licensee enroll in a different program to be eligible for a restricted license or to have the driver’s license reissued. The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

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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sleep.jpgIn the San Diego courts, if you plead guilty or you are convicted of a first drunk driving offense, the court will order you to enroll and complete a first conviction program. There is a 3-month program and a 9-month program.

The 3-month Drunk Driving First Conviction Program is the standard program ordered by the court. However, the court will impose the enhanced 9-month program if the blood-alcohol content (or BAC) was at or above .20%. Defendants must be aware of this if they want to obtain a restricted driver’s license after the Administrative Per Se suspension imposed by the DMV. The DMV will only require enrollment in a 3-month program for the restriction; however, after the court process is complete, the defendant may have to enroll and complete the 9-month program instead.

In order to comply with the court ordered 9-month first conviction program, you must attend a court approved program. These can be found on the San Diego Court’s website. The nine month course costs $1,190.00 and includes:

  • Six education classes, 1 class per week, 2 hours per class;
  • Thirty counseling group sessions, 1 session per week, 1.5 hours per session;
  • Twenty face-to-face interviews, 1 bi-weekly, 20 minutes per interview; and,
  • Thirty-nine self-help meetings, 1 per week.

You can enroll using the DMV DUI paperwork or the court referral form. However, you want to make sure you enroll in the right program.

Failure to enroll and/or complete the ordered program by the dates set by the court will result in a probation violation. In addition, the DMV will not allow you to apply for a restricted driver’s license until you enroll and you will not be eligible to reinstate your driving privileges in full until you complete the requisite program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

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meeting.jpgFirst off, if you are stopped by law enforcement and they have probable cause to believe you are driving while under the influence of alcohol with a .08% blood alcohol concentration (BAC) or higher, they will give you an “Administrative Per Se Suspension/Revocation Order and Temporary Driver License” form. This document allows you to drive with all your normal privileges like your original driver’s license for thirty days after the date of your arrest. After the thirty days, your license will automatically be suspended unless you contact the DMV within ten days after the date of arrest to request a hearing to challenge the automatic suspension.

If you fail to request a hearing or you lose the hearing, the DMV will suspend your driving privileges for four months. However, after thirty days into the suspension, you can apply for a restricted driver’s license. This restricted license will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs, and will last five months.

In order to get this restriction, you will need to register for a First Conviction Program (FCP), pay a $125 reissuance fee, and file proof of financial responsibility (SR-22 form).

If you plead guilty to drunk driving in court or you are convicted after a trial, the court will suspend your driving privileges for six months and order you to complete the FCP.

If your BAC was below .20%, you will be ordered to complete a three month FCP. If your BAC was .20% or greater or you refused to take a chemical test after a lawful arrest, the court will order you to complete the nine month First Conviction Program. (Note: The nine month FCP will be discussed in a later blog.)

In order to comply with the court ordered program, you must attend a court approved First Conviction Program. These can be found on the San Diego Court’s website. The three month course costs $477.00 and includes:

  • Six education classes, 1 class per week, 2 hours per class;
  • Twelve counseling groups, 1 session per week, 1.5 hours per session;
  • Three face-to-face interviews, 1 per month, 20 minutes per interview; and,
  • Three self-help meetings, 1 per month.

You can enroll using the DMV paperwork or the court referral form. However, you want to make sure you enroll in the right program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information and to discuss your specific facts and issues, contact a criminal defense attorney in your area that exclusively deals with drunk driving matters.

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In California, a bill was introduced that would require all people with a second or subsequent drunk driving conviction to install an ignition interlock device, or IID, in their car, State Senator Jerry Hill announced on Friday, according to NBCSanDiego.com. According to the bill, a second conviction would require the installation and use of the IID for one year. Upon the third conviction, the IID would be required for two years. On a fourth or subsequent conviction, the defendant would be ordered to comply for three years.

An ignition interlock device 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.

As of July 1, 2010, California began a pilot program for IID use. According to the pilot program, if the DUI violation occurred in Alameda, Los Angeles, Sacramento, or Tulare, California, the convicted is required to install an IID in all vehicles that s/he owns or operates, even on their first drunk driving offense, before applying for a restricted driver’s license. First time offenders must maintain the device for 5 months. Second time offenders must maintain the device for a year. Third time is 2 years and the fourth and subsequent offenders must comply for three years. (Note: This program is expected to expire on January 1st, 2016.)

Under the current law, if you are not in one of the above-referenced counties, such as San Diego, you usually will not be ordered to install an IID on a first driving under the influence conviction. However, courts do have discretion to order this and it “shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest.” (See California Vehicle Code Section 23575.) The court has discretion in ordering a term not to exceed three years from the date of conviction.

In a second or subsequent DUI conviction that involved alcohol not drugs, the defendant may shorten the license suspension or revocation by agreeing to install the IID.

Even if the court does not order the IID, the DMV is required to order the installation when a person is convicted of driving with a suspended or revoked license and that suspension or revocation is due to a prior DUI, California Vehicle Code Section 14601.2, 14601.4, or 14601.5.

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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spilled beer.jpgDrunk driving rates of U.S. high school students have drastically fallen over the past 20 years, according to the Centers for Disease Control and Prevention, (CDC). In a report that was released this week, the CDC claimed it analyzed data from 1991-2011. The data was collected from self-reporting, voluntary, and anonymous surveys in 41 states. The teens were asked in a questionnaire if they drove a motor vehicle one or more times after consuming an alcoholic beverage within 30 days before taking the survey.

The survey found that in 1991, 22.3% of teens aged 16 years or older admitted to driving after drinking alcohol, while only 10.3% admitted to this behavior in 2011. The results in the reporting states varied. There was a higher rate in the Gulf Coast region but some states such as Utah were much lower (4.6%). No data was available for California.

The study did not report how many students were driving in 1991 versus 2011. With the fall in the economy, higher gas prices, and higher unemployment rates among teens, it can be assumed that the amount of teenage high school students that are driving at all is less than in 1991. In addition, the survey only asked students if they had been drinking and driving within the month prior to taking the survey. Considering these shortfalls, the reported drinking and driving rates may be very low.

Over the years, Mothers Against Drunk Driving (MADD) have been lobbying states for zero-tolerance laws. California has complied. This means if you are under the age of 21, it is unlawful to drive a motor vehicle in California with a measurable amount of alcohol in your blood. In addition, you must submit to a preliminary alcohol screening (PAS) test. The DMV will suspend your driver’s license for one year for the first offense of driving with a blood alcohol content (BAC) at or above a .01%.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

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