Driving Under the Influence (DUI) frequently asked questions

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Frequently Asked Questions

What are the standard charges?


Unless you injured or killed someone, California DUIs are charged under Vehicle Code section 23152. Specific kinds of DUIs are tailored under this section depending on which substance you were under the influence of at the time of driving. For example, subdivision (e) prohibits driving while under the influence of drugs and subdivision (f) prohibits driving under the combined influence of alcohol and drugs. For the vast majority of DUI cases, where only alcohol is alleged, the DA's Office will generally file two charges:

  • in Count 1, a violation of section 23152(a), driving under the influence of alcohol; and
  • in Count 2, a violation of section 23152(b), driving with a blood alcohol content (BAC) of 0.08% or more.




Why does the DA file two charges for only one alleged drunk driving offense?


Put simply, the reason the DA charges both crimes is to increase the chances of convicting you of at least one offense. Both charges relate to the same act but are alternative theories to convicting you of DUI. Imagine a 250 pound guy who can drink many alcoholic beverages without it seemingly affecting him. Let's say he got pulled over and his blood alcohol content (BAC) was .09% (over the legal limit of .08%). What if he performs really well on the field sobriety tests and felt perfectly fine to drive? Then the DA may struggle to prove he was, in fact, under the influence of alcohol in violation of Vehicle Code section 23152(a)(Count 1). BUT, the DA can nevertheless prove that he's guilty of having a BAC that's .08% or more, a violation of section 23152(b)(Count 2). Now imagine a 130 pound guy who's a "lightweight" when it comes to drinking. After just one stiff drink, he feels the effects of alcohol and shouldn't be driving. Say he got pulled over and his BAC was only .05% (well below the legal limit) but he performed terribly on the field sobriety tests and showed clear signs he shouldn't be driving. Here, the DA wouldn't be able to prove that he's guilty of Count 2 (having a BAC of .08% or more), but may still be able to prove he was under the influence of alcohol, a violation of Count 1. In sum, prosecutors file both charges to cover both scenarios and increase the odds of convicting folks in cases that proceed to trial.




What's the punishment if convicted of DUI?


Whether you plead guilty (or “no contest”) or get convicted at trial in criminal court, DUI penalties are significant. First and foremost, you’ll face criminal consequences—e.g., the judge will sentence you to jail time, fines, DUI classes, etc. Second, and often equally devastating (if not more so), the DMV can administratively revoke your license for extended periods of time. This can greatly affect your ability to live and work. Third, your insurance rates can skyrocket, which is an often overlooked consequence of a DUI conviction. Fourth, you will have a criminal record, no matter how you slice it. This can certainly affect your current employment (depending on your profession) and opportunities in the future. The degree of punishment in your criminal case depends on a number of factors. The significant factor is whether this DUI was a first-time offense or you have prior DUIs within the last ten years. Additionally, the court will look at whether:

  • the level of your blood alcohol content was very high (Were you twice the legal limit or worse?);
  • you were involved in an accident and whether anyone was injured;
  • you were speeding;
  • you had a passenger in the vehicle 14-years-old or younger;
  • you refused to submit to a breath or blood test after you were arrested;
  • you committed other offenses in addition to DUI, such as
    • driving with a suspended license
    • driving with no insurance
    • driving with an open can of beer or marijuana in the car, etc.; or
  • whether you were on probation for a prior offense.
Below is a general summary of the basic consequences you’ll face when convicted of DUI in the criminal courts. Every case is unique. Further, this generic summary includes neither added punishment for any factors listed above nor separate consequences imposed by DMV regarding your license. Please note that some counties have harsher punishments than others. The specifics of what you’ll actually face in terms of jail time and fines differs county-by-county. However, overall, the minimum punishments are relatively similar throughout California. In general, in criminal court, if you plead guilty (or no contest), or you’re convicted after a jury trial, you will be sentenced in the range of what’s listed below. The times in jail listed can be served on a Sheriff’s Work Program (e.g., picking up trash on the road instead of actual jail time). Also, if you’ve already been booked and spent any time in custody, you’ll get credit for that time. First-Time Offense
  • 3 years of informal / summary / court (unsupervised) probation (a few counties require more than 3 years court probation to help lower monthly fine amounts, but 3 years is generally the norm)
  • Generally between 2 to 30 days of jail / work program
    • Maximum punishment is technically 6 months, but no one gets that (unless extreme circumstances exist)
  • 3 months “First Offender Program” DUI classes to reinstate your license
    • But could be sentenced to 9 months of classes if your blood alcohol was particularly high (e.g., .20% or more)
  • Approximately $1,700 to $2,000 in court fines and added penalty assessments, which can be paid off in monthly installments
Second-Time Offense
  • 3 years of probation (but could be as much as 5 years)
    • May be formal, supervised probation where a probation officer monitors you
  • Generally between 10 and 90 days of jail / work program (it varies by county)
    • Maximum punishment is technically 364 days jail
  • 18-month DUI “Multiple Offender Program” to reinstate your license
  • Approximately $1,700 to $2,000 in court fines and fees, which can be paid in monthly installments
  • Up to $100/mo. for probation supervision fees (if you're on formal probation)
  • Possibly the requirement to install an Ignition Interlock Device (a breathalyzer connected to your car's ignition) in your vehicle
  • Possibly the requirement to attend AA classes
  • Possibly the probation condition that you not consume any alcohol or go into any bars or stores where alcohol is the chief item of sale
Third-Time Offense
  • 3 years of probation (but could be as much as 5 years)
    • Likely formal, supervised probation where a probation officer monitors you
  • Generally between 120 and 180 days of jail
    • Maximum punishment is 364 days jail
    • May not be able to serve all or part of time on work program
    • May be able to serve all or part of time in a residential treatment program
  • 18-month DUI (or possibly 30-month) “Multiple Offender Program” to reinstate your license
  • Approximately $1,700 to $2,000 in court fines and fees, which can be paid in monthly installments
  • Up to $100/mo. for probation supervision fees
  • Requirement to install an Ignition Interlock Device in your vehicle
  • Possibly the requirement to also attend AA classes
  • Probation condition that you not consume any alcohol or go into any bars or stores where alcohol is the chief item of sale
Fourth-Time Offense
  • You will be charged with a felony at this point.
  • As a felony, the punishment, if you don't receive probation, would be one of the following prison sentences: 16 months, 2 years, or 3 years (served in county jail).
If You Injured Someone While Drunk Driving
  • It doesn't matter if it's your first, second, or third offense, you will be charged as a felony if anyone was seriously injured. If you didn't get probation, you'd serve 16 months, 2 years, or 3 years in prison (but served locally in county jail).
If You Killed Someone While Drunk Driving
  • If you had a prior DUI, you'd be charged with murder.




What are my rights during a DUI traffic stop investigation?


During a DUI investigation, it's important to understand that an officer’s main objective is to collect evidence that shows you were driving under the influence. When speaking to you, make no mistake about it: his or her questions are specifically designed to incriminate you. Some questions will be obvious (e.g., “Did you have anything to drink tonight?” or “When was your last drink?”). But others will be subtler (e.g., “Where you driving from?”, “When do you last eat?”, or “Do you have any injuries or take any medication?”). Everything you say is fair game later on at a trial; however, everything you DON’T say is equally fair game. Although you can remain silent during questioning, 12 jurors may interpret your silence as a sign of guilt. Some jurors may feel a simple admission to drinking is less damaging than silence. Remember, it’s not illegal to drink alcohol and drive; it’s only illegal if you were actually under the influence of alcohol (or drugs) while driving. You have a right to refuse to participate in any of the standard field sobriety tests (FSTs). The most common FSTs are the following:

  • the horizontal gaze nystagmus (HGN) test
    • The officer will ask you to track an object (e.g., a finger or pen) to the peripherals of your vision. If you have alcohol in your system, your pupil, in general, will jerk or bounce at the maximum deviations (like a marble rolling on a unsmooth surface).
  • the Rhomberg balance test
    • The officer will ask you to tilt your head back, close your eyes, silently count 30 seconds in your head, and then open your eyes and indicate when you've counted 30 seconds.
  • the one leg stand test
    • The officer asks you to stand on one leg, keep your hands to your side, balance your lifted leg 6 inches above the ground, and count outloud (e.g., 1001, 1002, 1003, etc.)
  • the walk-and-turn test
    • The officer asks you to take nine steps in a straight line heel-to-toe, then turn around and take nine steps back to the starting point.
  • the preliminary alcohol screening ("PAS") test
    • This is the breathalyzer test where they collect two breath samples of you in the field
    • This test is generally their last FST before arresting you.
    • If you're anywhere near .08%, they're going to arrest you.
The PAS test, which is the breathalyzer test on scene BEFORE you're arrested, is the most important FST for the officers in their investigation. Again, you are NOT required by law to submit to the PAS test, so it's typically wise to refuse to submit to the PAS. However, you do NOT have a legal right to refuse the breath or blood test AFTER you're arrested. In other words, there are two tests—one before you’re arrested and one after. As a condition of having a driving license, every Californian is required to submit to a breath or blood test after being arrested for DUI. If you refuse the second (post-arrest) test, you face further consequences plus officers can force a blood draw, but only if they get a signed seach warrant from a judge. Jurors that hear you refused to participate in the tests may interpret your refusal to participate as guilty behavior. But, that's generally a smaller hurdle to overcome at trial than the incriminating evidence gathered if you do participate. Ideally, it's best to strike a balance where your refusal to cooperate is somewhat excusable (for example, participating in some, but not all tests). Remember that whether or not you participate in the tests, the officer will undoubtedly still note that you smelled of alcohol, had red and watery eyes, exhibited slurred speech and unsteady gait. That is, regardless of your level of participation, law enforcement will still build the case that you were under the influence based on their observations on scene. And, understandably, they're not going to take chances with safety by letting you drive off if they suspect you're under the influence. Understand that if you refuse to participate, you will be arrested. Participating in the tests, particularly, the PAS test, is a gamble. If you really only had one small drink and you're positive that your blood alcohol is well below .08%, then submitting to a PAS and showing the officer your low blood alcohol level could mean you're sleeping in your bedroom rather than jail or a drunk tank that evening. But, I wouldn't advise that route unless you were absolutely certain that you consumed only a minimal amount of alcohol.




What are the field sobriety tests (FSTs)?


When it comes to the FSTs, there are several. Law enforcement will first check your eyes and then make you:

  • balance on one leg and count out loud;
  • walk a straight line heel-to-toe for nine steps and then turn and walk back nine steps;
  • tilt your head back, close your eyes, and estimate 30 seconds in your head;
  • place your finger to your nose;
  • count fingers on your hand; AND
  • ask you to submit to a Preliminary Alcohol Screening (“PAS”) device.
There could be additional tests, but those are the most common. All of these tests are designed for the officer to form probable cause that you were under the influence while driving. This is the standard they need to legally arrest you. There are three important points about FSTs to keep in mind. First, understand that these tests may seem easy, but they are not—often times even for sober people. Second, these tests are voluntary, but law enforcement will do no favors in explaining that to you. You can choose to perform all, some, or none of the tests. An officer cannot force you to do them. This includes the PAS test—the preliminary breath test administered before you are arrested. The PAS test is typically their last test to ultimately justify placing you under arrest. Officers are required to explain how this test is voluntary, which they sometimes fail to do. Even when officers explain it, most folks don’t understand or they’re too nervous to say no to the test. Importantly, if you do choose to refuse any or all of the tests, explain your position respectfully or politely to the officer. Do not be argumentative, combative, or play games with the officer. This could get you arrested for violating Penal Code section 148 (Resisting Arrest or Causing Undue Delay to a Criminal Investigation). This charge can have worse consequences than a DUI. Third and finally, even if you refuse all tests, there is likely still probable cause to arrest you. Remember the officer undoubtedly still has OTHER evidence—he or she has potentially observed you:
  • drive poorly;
  • fumble while handing over your license and registration;
  • have red and watery eyes;
  • stagger while standing or display an unsteady gait;
  • smell of alcohol;
  • etc.
In sum, refusing to do any tests or answer any questions will not prevent you from being arrested. Law enforcement will arrest you because they're not going to take any chances with public safety at risk. But, as explained in the previous FAQ regarding your rights during a DUI investigation, politely refusing to cooperate in some or all FTSs prevents further evidence against you. A jury may interpret refusing to cooperate as guilty behavior, but willingly providing a further collection of guilty evidence may be worse.




What is the chemical (breath or blood) test?


Generally, in DUIs, the most significant piece of evidence is the breath or blood sample. That’s because, when determining guilt, nothing is more persuasive than blood alcohol content (BAC). You are required to submit to a breath or blood test after you’re arrested. This is different than the preliminary (PAS) breath test during field sobriety tests before you are arrested, which is voluntary. Driving is considered a privilege, not a right. In California, that privilege is conditioned upon you consenting to provide a breath or blood sample if arrested for DUI. It’s called “implied” or “advance” consent. If you refuse to provide a breath or blood sample, law enforcement generally cannot force you. Historically, forced blood draws were permitted. But, in 2013, the United States Supreme Court in Missouri v. McNeely changed the law. Now, if you refuse to take a test, officers must get a search warrant to force a blood draw. If not, they violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. As a practical matter, getting a judge to sign a warrant on short notice, and most often late at night, may present challenges for law enforcement. However, warrants for blood draws are increasingly occurring as law enforcement agencies take steps to address that challenge. Refusing to provide a breath or blood sample after being arrested for DUI is certainly not without consequence. The DMV will automatically suspend your license for at least one year with no recourse to apply for a restricted license to allow you to drive to work. If you’ve refused the test in the past, then your suspension will be at least two years. Additionally, if prosecuted for DUI, the prosecutor will likely charge an “enhancement” special allegation for your refusal, which can increase your punishment if convicted. But even with these added consequences, there are folks who’d still refuse to submit to a test (and gamble that law enforcement fails to obtain a search warrant) because they'd rather face these other consequences than allow law enforcement to gather BAC evidence.




Which test is better -- the breath test or blood test?


When arrested, most people end up submitting to a breath or blood test. The question often asked is which test provides you the best chance to prevail in your DUI case. The answer depends on the circumstances of your case. Are you 250 lbs or 100 lbs? Did you drink 15 minutes before getting on the road or has it been five hours since your last drink? Did you smoke marijuana, ingest prescription meds, or take any other narcotics? Do you want the ability to retest the sample later on? These are the kinds of factors that weigh into which test is more strategic to take. The bottom line from a defense perspective is there are potential advantages to either test. As an introduction, I’ll discuss some bigger picture factors and considerations. First, with breath tests, there’s generally more susceptibility to inaccurate readings. Blood tests are more accurate are thus typically harder to attack later at trial. The agencies administering the breath devices must comply with strict regulations requiring routine maintenance, calibration and accuracy checks. These accuracy checks must be all be written down in logs that you will have access to. Any competent defense attorney can spot potential errors in the device, which could help out your case. Also, there are many rules that must be followed with regard to the manner in which these devices are administered. For example, the officer must wait 15 minutes before you submit to the test. The more rules for law enforcement to follow, the more opportunities there are for officers to make a mistake, which is good for your potential defense. Second, the timing of the tests can have a significant effect on your blood alcohol level. That’s because alcohol takes time to absorb into your bloodstream as well as leave your bloodstream. Roughly speaking, your blood alcohol will rise over the course of the hour you had a drink and then drop off the following hour. The exact rates depend on your weight and sex. Most of the alcohol from a drink is absorbed within 15-20 minutes; the rest of the hour, it’s still slightly rising. But after approximately an hour, the alcohol will start to drop off. Of course, the more drinks you had, the longer it will take for alcohol to leave your bloodstream. As an example, for most people, a single drink (e.g., a small shot, a can of beer, a glass of wine, etc.) will translate roughly into .02% blood alcohol, but lighter skinnier folks, that amount is higher. Many people mistake a pint of beer (which is 16 oz. and probably the most common serving size at bars and restaurants) as equaling one drink when in reality it’s 1.3 drinks. In other words, two back-to-back pints of beer is closer to three drinks than two. Within an hour of consuming those pints, most men, again depending on their weight, are either above or getting close to the legal limit of .08% blood alcohol at the end of the hour they consumed the pints. Thus, they’ll have to wait at least an hour for the alcohol to start tapering off, which generally occurs at a rate of .018% per hour. The main point about timing in helping you choose between a breath test or blood test is determining, during your DUI arrest, whether the alcohol in you is still absorbing (thus increasing) or whether you’re fully absorbed (thus the alcohol is tapering off). With that in mind, understand that if you choose a blood test, it will generally take the officers at least an hour to get the phlebotomist (the blood technician or nurse) to a specific location to draw blood. This is a general observation, not a rule. Blood draws must occur under sterile conditions. That is, the officer isn’t going to bust out a needle right there in the street after arresting you. These things take time. By contrast, the breath test is typically more immediate—it can be administered on the road after placing you under arrest. However, most agencies will conduct the official breath test at the booking station. Even if an officer takes you back to the station to perform the test, it is still often a faster process than the blood test. So...if you suspect you’re still absorbing because you drank very shortly before driving, then the FASTER you take a test, the LOWER the blood alcohol content will likely show. Thus, choosing a breath test in that scenario would generally be your best bet. On the other hand, if you stopped drinking a few hours before driving, that means you’re probably fully absorbed and the alcohol is in the downward process. Therefore, the LONGER you wait to take the test, the LOWER your blood alcohol will most likely be, in which case a blood test may make more sense. Remember, however, that there’s no guarantee that a blood test will take longer. But, generally, they’re slower. Finally, there are other considerations that may be important to you. For example, with a breath test, unlike blood, there’s no sample that can later be retested. Another example is if you were a drunk and high, a breath test won’t detect anything other than alcohol. A blood sample, however, can be tested for almost any kind of drug. And, lastly, of course a breath test doesn’t involve being injected with a needle, which isn’t easy for many folks. BLOOD ALCOHOL SCIENCE There are many decades’ worth of complex scientific studies and data addressing the accuracy and reliability of blood alcohol reading instruments and correlation studies involving FSTs. A skilled defense attorney will be able to reference certain studies that call into question the accuracy and reliability of these tests, and thus effectively cross-examine the DA’s toxicology expert.




What are the best defenses to win a DUI case?


The best defense to use depends, of course, on the facts of your individual case. There are a variety of ways to fight a case, but generally here are four main avenues of attack: Rising Blood Alcohol One way is to attack the science regarding the rate of your blood alcohol absorption. Alcohol doesn't immediately absorb into your blood stream; it takes time. So do DUI investigations during at a traffic stop. By the time you're actually arrested and submit to a breath or blood test, time has elapsed (often times at least an hour or two), which can leave open the argument that your blood alcohol was still absorbing, or rising, at the time of your arrest. To prove you guilty of driving under the influence or having a blood alcohol of .08% or more, the DA has to show you were, in fact, under the influence or had a BAC of .08% or more at the time you were driving. It doesn't matter if you were above .08% after the fact or, in other words, getting drunker after being pulled over. If you can raise a reasonable doubt, through scientific circumstantial evidence, that your blood alcohol was lower than .08% at the time you were driving, you can win at trial. The "rising" blood alcohol defense is an effective and popular defense. But you may be limited in reasonably making the argument if, for example, you submitted to a preliminary alcohol screening (PAS) test (the breathalyzer on scene before being arrested) and it showed your blood alcohol was higher than the breath or blood test you submitted to after your arrest. For example, if your preliminary test result showed your BAC at .11% and your chemical test post-arrest taken 1.5 hours later was .09%, the DA will surely argue that the alcohol was already absorbed in your system and thus falling, not rising. Faulty Equipment or Mistakes by Officers to Challenge Accuracy Another potentially effective way to fight the evidence in a DUI case is to challenge the accuracy of the blood alcohol instruments used. Law enforcement is required to comply with a lengthy set of administrative rules with respect to ensuring accuracy. You are entitled to see the accuracy check logs. If there were any mistakes or signs of inaccuracies in the readings, your attorney can surely argue those points to raise a reasonable doubt. No Driving Defense Critical to any driving under the influence case is proof that you were, in fact, driving. If officers came upon a scene where your car was in park, or off, there is often the argument that the DA can't definitively prove you drove. For example, this scenario often occurs when there's a solo vehicle car accident or a person is found sleeping in his or her car. Without a witness to you driving, the proof of your driving is entirely circumstantial. Who knows whether you had someone else in the car before officers arrived on scene? A jury can understand why this mystery person, especially if drunk, may not have wanted to stick around to be interviewed by law enforcement. Of course, if you told the officers that you drove, claiming someone else drove may appear unreasonable, but people cover for their friends and loved ones all the time. Suppress the Evidence Before Trial If any aspect of an officer's DUI traffic stop and subsequent investigation potentially violated your Fourth Amendment right to be free from unreasonable searches and seizures by the government, your attorney can file a motion to suppress evidence pursuant to Penal Code section 1538.5. In sum, at motions to suppress, the DA has the burden to show the officers complied with the law when they conducted their investigation. Potential law violations are too numerous to list here, but in general, if you can show the officers violated your Fourth Amendment right, as a remedy the judge may prohibit (or suppress) the prosecution from using critical evidence against you if the case proceeded to trial. Without, for example, the ability to use the blood alcohol test results, the prosecution will not be able to prove the case and, consequently, will dismiss the case before trial.




Do I need an attorney?


That depends. I'm not a lawyer who tells everyone that they absolutely need a lawyer. If you want to simply show up to court and plead guilty and thus avoid the added expense of legal fees, that is most certainly your right. But even if you feel you're totally guilty, you still may have a legal defense or at least avenues to negotiate your case so I wouldn't be quick to face this alone. In other words, if you're serious at all about potentially fighting your case or at least making sure you don't suffer unnecessary consequences, you'll need a lawyer. First of all, a lawyer will know how to review the evidence to spot weakness or avenues of attack. Secondly, a lawyer will have experience and know the best way to negotiate with the prosecutor and to convince a judge to lighten penalties prior to trial. Lastly, defending oneself in court, regardless of the type of case, is very complex. It takes attorneys years and years to become even just proficient in the rules of evidence, let alone show signs of mastery. And then there's the law itself. DUI cases can be very scientific and complex. If proceeding to trial, you'll need to need to know how to pick a jury that gives you the best chance for success. You'll probably have to cross-examine an expert forensic toxicologist in addition to the officers. You'll need to know when and how to properly object when the skilled and trained prosecutor presents the case. You'll need to know how to file motions. You'll need to know how to concisely and cogently argue your defense to a jury. I can go on and on about the nitty-gritty of litigation, but the bottom line is that you'll be at a major disadvantage to fight your case without legal representation. Lastly, as a practical matter, with a retained lawyer, you don't need to deal with the hassle of going to court in most cases, which means you don't need to miss work or other obligations.




What does it cost to hire an attorney for a DUI case?


The range of prices widely vary. As a quick answer, DUI representation will generally range anywhere from $2,000 to $15,000. For first offenses, most attorneys keep their retainers at $5,000 or less. My fee starts at $2900. (If your case is a 2nd, 3rd, 4th offense, etc. or you have other more complicated factors like an accident with injuries, for example, retainer fees become more expensive.) Also, keep in mind that a retainer fee rarely includes representation at jury trial if your case goes to trial. The vast majority of cases do not go to trial, but in such instances where they do, most lawyers will charge at least $3000 more. I generally cap my trial fee at $2000.





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