Q: Why bother fight it? I was drinking and I know my BAC.
A: The issues that make a real difference in defending a DUI case are never readily apparent, and the person who is accused is probably the worst person to judge the strength or weakness of the prosecution’s case. You can’t judge a book by its cover, and you can’t judge a case based on what is known at the time of the arrest. Knowing your BAC doesn’t tell you whether there is a way to suppress all of the evidence against you, whether the machinery was working properly, whether the person operating the breath machine was properly trained, or administered the test in accordance with their training. If you plead guilty, there is a 100% chance you’ll be found guilty!
Q: Should I wait for my blood results?
A: That’s not the best course of action. There are two things that should be done without delay: first, requesting the DMV Administrative Per Se Hearing, which must be done within the first 10 days following the arrest, and next, to hire a lawyer that really knows the unique issues and defenses that apply in DUI cases. There is no upside to delaying the investigation that can be done at the beginning, and it is precisely this kind of investigation – taking photos of the area where field tests were done, interviewing witnesses, obtaining dental or medical records, and much more – that can turn the case around. It is much better to kill the monsters when they are little!
Q: I got a pink piece of paper when I was released from custody. What do I do next?
A: That pink paper is the Notice of Administrative Per Se Action and temporary driver’s license. If you read the fine print about 2/3 of the way down the page, it will tell you that you have only 10 days from the date of the arrest to request a DMV Hearing, or else your driving privileges will be automatically suspended on the 30th day after the arrest. Get to a lawyer right away; a DUI defense lawyer can help protect your rights, and failure to act can have far-reaching consequences for your driving privileges and your insurance.
Q: If my results come back under a .08 do I still need a lawyer.
A: Just because chemical tests come back under .08 doesn’t mean you’re out of the woods, since the critical time period in a DUI case is the time of driving, not the time of testing. The prosecution will likely try to show that your level was higher at the earlier time based on assumptions about eating and drinking patterns, or will try to convict you of DUI on a theory of impairment that doesn’t require any particular alcohol level for its success.
Q: What are these two charges?
A: California Vehicle Code section 23152 (a) makes it illegal to drive while under the influence of alcohol or drugs, which is defined as being unable to operate your vehicle with the caution of a sober person under the same circumstances; it does not require any particular alcohol level to be convicted. Vehicle Code section 23152 (b) makes it illegal to have an alcohol level of .08 or higher at the time of driving; this code section doesn’t care if you are impaired or not. A conviction under either code section is a DUI on your record, and prosecutors will usually charge both.
Q: If I lose at the DMV hearing is there any chance I can get my license back earlier?
A: Yes, but the remedy to apply will depend on many variables, like whether you were over or under 21 at the time, whether you took a chemical test or refused to test, and whether you have prior DUI convictions. That said, it may be possible to appeal the DMV’s conviction by way of administrative review or filing a writ of mandate; winning a Motion to Suppress Evidence or getting a finding of “not guilty” in the court proceedings can also undo the DMV action. It may also be possible to get a restricted license, that allows driving on a limited basis for work or school, if certain requirements are met.
Q: What is a DMV hearing?
A: A DMV Administrative Per Se (APS) Hearing is a hearing that is conducted at a DMV Driver Safety Office concerning your license suspension following an arrest for DUI. If the hearing isn’t requested in the first 10 days following your arrest, you lose your right to have one (unless a late hearing request is approved) and your California driving privileges will be suspended on the 30th day following your DUI arrest.
Q: What happens to my car insurance?
A: That will depend upon the outcome of both DMV Administrative Hearing and the court case. A DUI conviction is alcohol related, and two points on your driving record, so if you are convicted your insurance company may drop you come renewal time, or at the very least increase your rates. You may also be required to file an SR-22 Proof of Insurance Certificate for three years.
Q: Is this now public record?
A: Arrest data is available to the public. The outcome of the case will also be a matter of public record, absent a finding of factual innocence and the sealing and destruction of your arrest records (under California Penal Code section 851.8).
Q: Will my boss find out?
A: Since arrest and conviction information is a matter of public record, it is entirely possible that they could. Also, many employment contracts include a provision that if you are arrested for any crime, that you have an affirmative duty to disclose that fact to your employer. Consulting with a lawyer right away would be a top priority if you have an employment contract.
Q: Will my husband/wife/partner/parent find out?
A: Maybe. Arrest information is publicly available, so if they search for it, it is quite likely that they’ll find it. The other way relatives and roommates find out is through “jail mail”: there are companies that sell arrest information to lawyers to do direct mail marketing campaigns, and it is not unheard of for someone arrested for DUI to receive 50 or more letters and postcards from lawyers in the week following their arrest.
Q: Will I lose my professional licensing?
A: If you hold a professional license, your licensing agency will likely be interested in the outcome of your case, and could impose professional discipline as the result of a conviction (or, in the case of professional drivers, even the loss of the DMV administrative hearing). However, an arrest is just an accusation, and thankfully you still enjoy a presumption of innocence. The best thing you can do to safeguard your license is to defend the case aggressively; there are many plea bargain options that are much better than a DUI.
Q: My family has an attorney acquaintance, is this something they can handle?
A: A neurosurgeon and a psychiatrist are both medical doctors, but which one would you want doing brain surgery on you? Attorneys are not all alike. DUI defense involves highly technical issues relating to forensic chemical testing of breath or blood samples, law enforcement training relating to proper roadside investigation, and the interrelationship between the court system and DMV. This is not something to be left in the hands of a generalist; even many criminal defense lawyers are ill-equipped to deal with the nuances of a DUI.
Q: Does it matter if I live out of state?
A: There are unique issues that arise for people that come to California for work or play, only to get arrested for DUI while visiting. The short answer is “Yes, it does matter.” Any DMV suspension can still be reported in your home state because of the Interstate Driver’s License Compact, and being from another state can add a layer of complexity to fulfilling any court imposed obligations too. One of the benefits of hiring a private attorney is that the lawyer can appear in court for you, and you can avoid having to travel back to California each time there is a court appearance.
Q: Will I have to go to jail?
A: Whether you will have to go to jail for your DUI case depends on many factors, including whether or not it is your first offense, whether there are aggravating factors involved, what county your arrest took place in (some counties have their own standard dispositions that are more than the minimum allowed by law), whether the case can be plea bargained to a non-DUI charge or even dismissed based on a variety of legal attacks, whether there are alternative sentencing options that may apply to you, and many other factors. The best way to avoid jail is to get the help of a lawyer that knows how to resolve these cases successfully.
Q: I’m getting divorced. Will my spouse find out?
A: It’s certainly possible. Many times the question will arise during a deposition, and it is certainly relevant in the context of child custody issues or even the ability to work and comply with spousal or child support orders. If you are getting divorced, it is wise to put your divorce lawyer and your DUI defense lawyer in touch with each other, so they can best coordinate how to protect you.