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18: DUI/DWI



1. What options are available to an individual who does not want to plead guilty in a DUI/DWI case? (e.g. when is it convenient for an individual to plead no contest/not guilty in a DUI/DWI case?)
2. Can a DUI/DWI ever be erased from the driving records of the offender?
3. Describe the typical procedure for a DUI/DWI case in California. Make sure to include any pretrial procedures as well as the penalties associated with each DUI/DWI conviction.

1)   What options are available to an individual who does not want to plead guilty in a DUI/DWI case? (e.g. when is it convenient for an individual to plead no contest/not guilty in a DUI/DWI case?)

In any case involving a breath test, the lawyer will obtain the calibration records, maintenance history, and accuracy checks of the machine that was used to test the client. If there are problems in any of these areas, the results may be excluded. If it is a blood test, the lawyer should insist upon obtaining a “split” of the blood sample for independent testing. There are certain requirements about how these blood samples are to be taken and preserved. If there is an inadequate level of preservative or anti-coagulant, the blood may actually ferment and produce its own alcohol, rendering the results completely meaningless.

There are four distinct aspects to the case that a prosecutor will use: driving pattern, physical appearance, Field Sobriety Test performance, and chemical test results. The case is like a table with four legs; if one of those legs is broken, the table cannot stand. Likewise, if there is reasonable doubt regarding any aspect of the case, an accused should be acquitted.

2)   Can a DUI/DWI ever be erased from the driving records of the offender?

For misdemeanor:

California Penal Code Section 1203.4. This section provides, in pertinent part, that:

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, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any new offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

Felony convictions, where probation is not granted, and a term in state prison is imposed, presents an entirely different situation. In those cases, the only relief available is a Certificate of Rehabilitation and Pardon, or Direct Application for Governor’s Pardon.

3)   Describe the typical procedure for a DUI/DWI case in California. Make sure to include any pretrial procedures as well as the penalties associated with each DUI/DWI conviction.

In California, the time limit is 10 days from the date of your arrest to request a DMV hearing. In California, if you miss that deadline, you have waived your right to a hearing, and your license will automatically be suspended after 30 days. By filing the hearing request your driving privileges are not suspended after 30 days. Instead, you are allowed to drive as if the DUI arrest never happened, until and unless you lose the DMV hearing, which will be scheduled for months away.

The criminal case filed against California DUI / DWI defendants consists of two different statutes: California Vehicle Code Section 23152 (a), and Vehicle Code Section 23152 (b). The first count focuses on whether the driver was under the influence of alcohol or drugs to the extent that they are “unable to drive their car with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances.” This is the legal standard for being considered under the influence of alcohol or “DUI” in California courts.

The second count, known as the “per se” charge, concentrates on whether the driver’s blood alcohol content (BAC) was .08 percent or greater. Whether the motorist seemed to be driving perfectly before the traffic stop or performed field sobriety tests with textbook precision doesn’t matter with this count. It is a charge that is based purely on body chemistry.

The California DMV will suspend the driver’s license for a minimum of four (4) months for a first-offense (1st) DUI / DWI arrest if the driver loses the hearing. The DMV will suspend the driver’s license for one year for a second offense (2nd) and two years for a third offense (3rd). These are the repercussions faced by California drivers who submit to a chemical test of their blood or breath. In the case of a refusal, the DMV punishment is increased: a first-offense (1st) will trigger a one-year suspension with no opportunity for a restricted license. A second offense (2nd) with refusal will result in a two-year suspension, and a third offense (3rd) will cause a three-year suspension.

Certain drivers may face felony DUI / DWI charges after a California drunk driving arrest. Anyone with three prior drunk driving convictions within the past 10 years will be charged with a felony after a fourth arrest. A driver who causes injury to another person also may face felony charges. A DUI / DWI with an injury is considered a “wobbler” offense in California, meaning it may be charged as either a felony or a misdemeanor. Also, any motorist who has been charged with felony driving under the influence (DUI / DWI) within the past 10 years will be charged with another felony for any subsequent drunk driving arrests within that time period.

California has a DUI / DWI “washout” period of 10 years, calculated from arrest date to arrest date. This means that anyone arrested for drunk or drug driving within 10 years of the last arrest date will be charged with a second offense, with increased penalties and punishment. The punishment in court for a second or third drunk driving conviction is much harsher than for a first offense – a multiple-offense drunk driving conviction carries mandatory jail time, an 18-month alcohol education program, a required ignition interlock device (such as Smart Start), and more.

If convicted, jail time is not necessarily the only possibility. A lawyer can try to get electronic monitoring, rehab, a short stay at a city jail, or work release or work furlough instead.

All information from http://www.1800duilaws.com/states/ca.asp

This section researched & edited by Amy Brooks

General Legal Procedure

Introduction:

“In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The specific offense may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI). Whatever the specific title, DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

  • The driver’s ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
  • The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC).”

http://dui.findlaw.com/dui/dui-overview/dui_basics.html

General Court Setting/Hearing Procedure:

DUI/DWI cases are typically assigned a DMV hearing as well as a criminal court trial.

http://www.dmv.ca.gov/dl/driversafety/dsadminvscriminal.htm