DUI First Offense
Second, you need to make sure that you get a DMV hearing request on file within the first 10 days of your arrest. Ideally you want your lawyer to do that for certain tactical reasons, but whatever you do, do not miss this ten-day deadline if you can help it. Do that request in writing and send it by fax so there’s proof that it actually went to the DMV. Don’t just make a phone call and think that it’s done.
Most first-time DUI’s Include a charge of violating two different vehicle code sections 23152(A) and 23152(B) and you may actually see one or both of these numbers written on your citation.
23152(A) is charging you with driving under the influence of alcohol drugs or combination of the two
23152(B) is charging you with having an alcohol level of .08% or higher at the time you were driving.
A conviction for either charge means a DUI on your record. It’s actually two bites at the apple for the prosecutor.
The consequences for a DUI conviction are severe: being on probation, fines, possible jail time, losing your driving privileges, having to file an SR-22 proof of insurance certificate, and so on. Some courts are now even requiring a breathalyzer to be installed in your car to prevent it from starting unless you blow into it first to prove that you’re alcohol-free.
If you’re facing criminal charges we know you’re going through a challenging time, on behalf of everybody here at the Kavinoky Law Firm we hope this information helps you.
Getting arrested for a DUI in California is a very scary experience. Many times, this is your first arrest and experience with the criminal courts. It is important to hire an experienced California DUI attorney who can navigate through the many nuances of the California judicial system. A good defense attorney can mean the difference between being charged with a misdemeanor or felony DUI in California.
A first time DUI in California will trigger two different types of actions. There will be a criminal case brought by the city prosecutor or the District Attorney’s Office. Additionally, the California DMV will take a separate action to suspend your license based on your arrest for DUI. The cases are related because they both arise from your DUI arrest. However, they proceed independently, and the result obtained in one case generally has no effect on the other.
Criminal Proceedings in a California Court
At the time of your arrest for DUI, you were likely given a notice to appear in court. This first court appearance is called the arraignment. In most cases, your attorney will be able to appear for you at this event; you do not need to be present. One of the benefits of hiring a private attorney to represent you in a misdemeanor case is that your attorney is able to appear on your behalf, and you are free to go about your normal business.
If the case is a first time DUI with injury, the prosecutor can file a felony. You do need to be present for all felony appearances, and a DUI with injury that is filed as a felony is no exception. However, California Vehicle Code Section 23153(a) and 23153(b), DUI with injury, is considered a “wobbler”, and can be filed as either a misdemeanor or a felony. You will need to check with your attorney to determine if you need to appear in court.
At the arraignment, your attorney will receive the initial charges, police reports and other discovery upon which the prosecutors will base their case. In a typical first time DUI case without injury, the prosecutors will charge two counts; California Vehicle Code Section 23152(a) and California Vehicle Code Section 23152(b). These are both misdemeanor charges. California Vehicle Code Section 23152(a) states that you cannot drive while under the influence of alcohol or drugs. California Vehicle Code Section 23152(b) states that you cannot drive with a blood alcohol concentration of 0.08 or higher at the time of driving.
If you refused to give a blood or breath sample after receiving the chemical test admonition, then you will be charged with a refusal and only Vehicle Code Section 23152(a). The prosecutors will not have evidence that your blood alcohol concentration was above 0.08 at the time of driving. The consequences of a refusal conviction, however, require that you serve a minimum of a 2 day jail sentence.
As discussed above, if there is an injury to another person as a result of the DUI, the prosecutors have the option of filing charges under Vehicle Code Section 23153(a) and 23153(b), DUI with injury. This can be filed as either a misdemeanor or a felony, depending on the severity of the injury. A good lawyer can get the prosecutorial agency to reduce a felony charge of 23153(a) or 23153(b) to a misdemeanor. This greatly reduces the exposure to certain punishments under the law.
After a review of the initial discovery, your attorney will likely enter a “Not Guilty” plea and schedule your case for a pre-trial conference. There is also the possibility to simply continue the arraignment until a future date, or in some circumstances, enter a plea of guilty or “no contest” at the arraignment. No course of action is better than the other; there are simply different customs in different courts, and the action that is taken initially is designed to allow the lawyer time to investigate the case or achieve other tactical benefits.
A California DUI attorney should ask for additional discovery at your arraignment. If you took a breath test, the prosecutors must provide calibration records of the equipment you took. It is also possible to ask for video or audio of the arrest. If your case involved a blood test, your attorney should get a court order for the blood sample to be split testing by an independent lab. There, the lab will check the blood for alcohol content, as well as anticoagulant and preservative levels and bacterial growth. Integrity of the sample (or lack thereof) is a key issue for both court and the DMV when dealing with a first time DUI.
Following the arraignment, your case will be set for a pre-trial conference. The pre-trial conference is an opportunity for your attorney to meet with the prosecutor, review the case for possibility of settlement, and perhaps get a plea-bargain offer. Because of congested court calendars, or for other tactical reasons, it is not unusual for a case to have a series of pre-trial conferences. This is typical, and, candidly, delay is sometimes a tactic that a good, California DUI lawyer can employ to the benefit of your case.
During the pre-trial phase, your attorney may choose to file one or more motions. Motions are simply a formal request that the judge order something. Examples of typical motions in a California DUI case are motions to suppress evidence, motions to force the prosecutor to turn over additional discovery, or motions to delve into the arresting officer’s private personnel file for complaints of excessive force or dishonesty.
Some of these motions can be accomplished without you being present in court; others will require your presence. There are tactical reasons for everything, and sometimes it will benefit your DUI case to appear in court even when you are not required to be there.
At the conclusion of the pre-trial phase, the prosecutor will give your attorney an offer for a case settlement. This offer may be an opportunity to plead to a reduced charge from the first time DUI, such as reckless driving; or may simply be a negotiation about the consequences to be imposed if you admit to driving under the influence. Because every case is different, what is a good deal in one DUI case may be a bad deal in another. The particular circumstances of your case and how they will affect your situation will determine if you decide to accept or reject the prosecutor’s plea-bargain offer.
If the plea-bargain is accepted, this will bring an end to the criminal case. Typical plea-bargains include being placed on probation for a period of time (as short as one year or as long as five years, depending upon the nature of the case), as well as the imposition of a variety of terms and conditions of probation. Typical terms and conditions include paying a fine, taking a California first offender DUI educational course (either a 3 month, six month, or nine month class), or having a restricted driver’s license. The court can order you to attend a Mothers Against Drunk Driving / Victim Impact Panel or a Hospital and Morgue program, where you visit the hospital and morgue and listen to lectures about the dangers of driving under the influence. There is also a possibility of serving up to 6 months in county jail, or having to perform community labor like Caltrans. The terms and conditions of probation vary widely, as they will reflect the plea-bargain that is unique to your case.
A first offense DUI with injury in California will carry a sentence of mandatory jail time or potentially prison time. The amount will depend on the facts of your case and the deal that is reached with the prosecutor. The deal will also depend on whether your case is a felony or misdemeanor.
If the plea-bargain is not accepted, the case will be set for a jury trial. Every person charged with a crime in California has the Constitutional right to a jury trial, where 12 citizens are selected from the community to listen to the evidence, be instructed on the applicable law, and render a verdict by applying the facts to the law.
A jury trial generally lasts about one week or so, depending upon which courthouse is assigned your case. A jury trial in a first offense DUI case is like any other criminal case. It begins with jury selection, and proceeds through opening statements, examination and cross-examination of each of the witnesses, closing arguments, jury instructions, deliberations, and verdict.
In a typical California DUI case, you are charged with Vehicle Code Section 23152 (a) and Vehicle Code Section 23152 (b). The prosecutor will need to prove beyond a reasonable doubt that you are guilty of at least one charge for you to be convicted of a DUI. If the jury does find that you are guilty of one count but not the other, you will still be convicted of a DUI. If the jury finds you not guilty of either charge, then you will not face any penalties for a DUI.
If you are unsuccessful in a jury trial, there is no longer an option for a plea bargain. The judge will have the authority to sentence you under the guidelines of the vehicle code. A misdemeanor DUI in California carries a variety of different punishments. The court may order a jail term of up to 6 months. It will impose a fine of $390 to $1,000 (but this will be significantly increased by penalty assessments.) The court will order you to complete a 3 month, 6 month or 9 month program. Finally there will be a 6 month driver’s license suspension. Felony convictions carry much stiffer penalties than the ones described above.
Ignition Interlock Devices
In Los Angeles, Alameda, Tulare, and Sacramento counties, the DMV will require an Ignition Interlock Device to be installed if there is a conviction for a first time DUI in court. This means that you must install a device, which you blow into each time you start your vehicle, to determine that you do not have any alcohol in your system. You must keep this device on your car for 5 months. This is done in lieu of serving the six month suspension. You would serve 1 month of the suspension and then install the device in your car for the remaining 5 months. If you are ordered to install the device, you are allowed to drive anywhere you would like, at any time, as long as the device is installed in the car you are driving.
If you are charged with a violation of Vehicle Code Section 23152 (b), driving with a blood or breath alcohol level of .08% or higher, and if you are acquitted of that charge (meaning that all 12 jurors agree you are not guilty of the charge), then the DMV case is automatically set aside. This is the only thing that can happen in court that will impact the DMV Hearing.
You may have been required to post a bail in your case. The amount of the bail that you post will depend on the charges. The bail amounts for a first time DUI can range from $5,000 for a misdemeanor, up to $100,000 for a felony. If you post bail or a have a bail bondsman post the bail on your behalf, you must make all appearances to make sure that the bail is not forfeited. If you have a private attorney, your lawyer can make those appearances on your behalf if you are charged with a misdemeanor.
Drivers arrested for a DUI first offense face two separate cases at the DMV and in court. California Department of Motor Vehicles (DMV) will attempt to suspend a suspected drunk drivers license in what is known as an administrative per se (APS) hearing. A motorist arrested for drunk driving has only 10 calendar days to request a DMV hearing (* This document is in PDF format. You will need the free Adobe Acrobat Reader® software to view the document). If no hearing is requested within 10 days, the DMV will automatically begin the process of suspending a driver’s license. A charge for a 2nd DUI offense or 3rd DUI offense faces its own special challenges.
First-time DUI drivers who refuse to take a chemical test face harsher consequences. Drivers who refuse a chemical test face a license suspension of one year, with no opportunity for a restricted license. In order to suspend a driver’s license at an APS hearing, the DMV must determine three facts: 1) that police had a reasonable belief that the driver committed a crime, 2) that the arrest was lawful, and 3) that the driver had a blood alcohol content of .08 percent or greater while behind the wheel.
Although the DMV can suspend the driver’s license of a first-time DUI arrestee as a result of an unsuccessful APS hearing or a criminal court conviction, neither outcome is inevitable. An experienced California DUI attorney can launch an aggressive defense at both the DMV and in court, and keep negative consequences to a minimum.