DUI/DMV Defense

The best way to avoid a DUI is to not drink and drive even if you've had a small amount of alcohol and you are not impaired. If you smell like alcohol your chances of being arrested when you are pulled over are very high. Being arrested however for A DUI does not automatically result in a conviction or loss of your driver's license in California. Here are some things that you should know.

WHAT ARE THE POLICE LOOKING FOR IN YOUR DRIVING?
Lane straddling, wide turning radius, weaving, swerving, drifting, almost striking object or vehicle, driving on other than designated highway, speeding or below the limit, stopping without cause in traffic lane, following too closely, braking erratically, signaling inconsistent with driving actions, slow response to traffic signals, accelerating or decelerating rapidly, headlights not being used.

YOU ARE NOW PULLED OVER AND DETAINED: WHAT ARE THE SYMPTOMS OF INTOXICATION THE POLICE ARE LOOKING FOR?

• Odor of alcohol on breath
• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Combative, argumentative, jovial or other "inappropriate" attitude
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other "inappropriate" attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

THE POLICE ENCOUNTER

You are not required to answer potentially incriminating questions. Politely refuse to answer any questions regarding the investigation without an attorney present.

Let the officer know that you are aware Field Sobriety Tests( FSTs) are completely voluntary. Do not agree to perform any of theses tests. If you perform them, you may be arrested anyway. This is not an objective test and the officer will use the results against you in court. Politely refuse to do the field sobriety exercises.
Although officers use a wide range of FSTs, there are only three federally-approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests. These consist of a battery of three tests:

• Heel-to-Toe (also referred to as "walk-and-turn")
• One-Leg Stand
• Horizontal Gaze Nystagmus - The HGN test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical term for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go. This test is not accepted by the medical community however, it continues to be widely used by law enforcement.

Pre-Arrest - Preliminary Alcohol Screening - If you are older than 21, refuse to take a pre-arrest preliminary alcohol screening test. This is a portable on scene breath analyzer. This test is completely voluntary and you have the absolute right to refuse this type of breath test. Ask to go to the station for the real breath test.

Under the implied consent law� you have a legal obligation to take a chemical test this is a breath or blood test and you have a choice. If you choose breath, many jurisdictions permit you to have a second test of blood; this is because a breath sample is not saved and so cannot later be re-analyzed by your defense lawyer. A blood sample will be taken if requested after a breath test is given.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. I f you are confident that you are sober, a blood sample is the wise choice; Breath being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.

Do not refuse the chemical test. The consequences of refusing to submit to a blood or breath test are severe: They include license suspension, jail time, and the fact of refusal may be introduced into evidence as "consciousness of guilt".

Some police officers record or video tape the arrest, testing and/or booking process. Always be on your best behavior. Be polite and respectful to the police officers this will go along way in your defense and your release from custody.

After a DUI arrest, the DMV must be contacted within 10 days to stop the suspension of your license from going into effect. You must request a hearing. It is imperative that once arrested for a DUI, you hire an experienced DUI lawyer. CALL: 1-800-658-1500 24/7 or collect at 310-888-8700.

CALIFORNIA CRIMINAL AND DEPARTMENT OF MOTOR VEHICLE PENALTIES
FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS
(VEHICLE CODE SECTION 23152)

FIRST OFFENSE within 10 Years

96 hours to 6 months in jail, $390 to $1000 fine, and a 6 month license suspension. Attendance at a 3 month, 6 month or 9 month alcohol/drug program, a fine of $390 to $1000, plus either: (A) 48 hours to 6 months in jail; or (B) for arrests prior to September 20, 2005, a 90-day license restriction. Under option (A), the Court may also suspend your license for 6 months. Under either option, your license shall be suspended for 6 months if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. As a result of the court conviction, the DMV will suspend your license for 6 months, but a restricted license may be available. Probation of up to 5 Years.

SEPARATE DMV PENALTIES: .08 or greater 4 month suspension
Refusal: 1 year suspension

SECOND OFFENSE within 10 years

90 days to 1 year in jail, $390 to $1000 fine, and a 2 year license suspension. A fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail and a 2 year license suspension; or (B) 96 hours to 1 year in jail, an 18-month or 30-month alcohol/drug program, and for arrests prior to September 20, 2005, a license restriction allowing driving only for work and alcohol/drug program for the duration of the program. However, your license shall be suspended for 2 years if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. Installation of interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be available after the first year of suspension. Probation of up to 5 years .

THIRD OFFENSE within 10 years

120 days to 1 year in jail, $390 to $1000 fine, and a 3-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years .

FOURTH or Subsequent offense within 10 years

16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; $390 to $1000 fine, and a 4-year license revocation and an 18-month or 30 month alcohol/drug program if you have not completed one before. Probation of up to 5 years or parole of up to 3 years.

SEPARATE DMV PENALTIES: .08 or greater 4 year revocation
Refusal: 4 year revocation

DEFENSES TO THE DUI ALLEGATION
There are many potential defenses to a DUI charge given the complexities of the alleged offense: CALL My offices for a free consultation 1-800-658-1500

Probable Cause for the stop- The evidence will be suppressed if the officer did not have legal cause to stop, detain and arrest the driver.

MIRANDA WARNINGS - Incriminating statements may be suppressed if warnings were not given at the appropriate time.

Implied consent warnings - If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly. This may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.

CHEMICAL TEST VALIDITY - There are regulations for blood-alcohol testing . The prosecution must prove that the blood or breath test complied with state requirements as to calibration, maintenance, etc.

“Rising BAC defense"? - It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood or breath test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below.

"Mouth alcohol" vs. “Breath alcohol� ? "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

DISCLAIMER : This guide is designed to provide general information. It is not designed to render legal opinions.

ALCOHOL IMPAIRMENT CHARTS - DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS /IS ILLEGAL* There is no safe way to drive while under the influence. Even one drink can make you an unsafe driver.

Drinking alcohol affects your Blood Alcohol Concentration (BAC). It is illegal to drive with a BAC that is .08% or more (.04% or more if you drive commercial vehicles; .01% or more if under 21). However, a BAC below .08% does not mean that it is safe or legal to drive. The charts below show the BAC zones for various numbers of drinks and time periods. Remember: “One drink� is a 1 1/2-ounce shot of 80-proof liquor (even if mixed with non-alcoholic drinks), a 5-ounce glass of 12% wine, or a 12-ounce glass of 5% beer. These one drink equivalents change if you are drinking ale, malt liquors, fortified wines, port, brandy, different proof liquor, or if you are drinking on an empty stomach, are tired, sick, upset, or have taken medicines or drugs. HOW TO USE THESE CHARTS: Find your weight chart. Then, look for the total number of drinks you have had and compare that to the time shown. If your BAC level is in the grey zone, your chances of having an accident are 5 times higher than if you had no drinks, and 25 times higher if your BAC level falls in the black zone.

Technical note: These charts are not legal evidence of actual BAC. Although it is possible for anyone to exceed the designated limits, the charts have been constructed so that fewer than 5 persons in 100 will exceed these limits when drinking the stated amounts on an empty stomach. Actual values can vary by body type, sex, health status, and other factors.
Legend:

(.01%-.04%) Possible DUI, Definitely unlawful if under 21 years old

(.05%-.07%) Likely DUI, Definitely unlawful if under 21 years old

(.08% Up) Definitely DUI *

I've just been arrested for DUI. What happens now? The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer's report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

At the time of my arrest, the officer confiscated my driver license. How do I get it back? Your driver license will be returned to you at the end of the suspension or revocation, provided you pay (on or after January 1, 2003) a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.

The officer issued me an Order of Suspension and Temporary License. What am I supposed to do with this document? You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other

The Notice of Suspension that the officer gave me at the time of my arrest states I have ten days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?
The hearing is your opportunity to show that the suspension or revocation is not justified.

For how long will my driving privilege be suspended if I took the chemical test?
If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC or more:

A first offense will result in a 4-month suspension.
A second or subsequent offense within 10 years will result in a 1-year suspension.

If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.

Do I need a hearing to get a restricted license to go to and from work? No. A request for a restricted license cannot be considered at the DMV hearing. You may apply for a restricted license to drive to and from work at any DMV field office.

The officer stated I refused to take a chemical test. What does this mean?

You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:

The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
Both the blood or breath tests are not available, or
You are a hemophiliac, or
You are taking anticoagulant medication in conjunction with a heart condition.

How long will my driving privilege be suspended for not taking the chemical test?
If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

A first offense will result in a 1-year suspension.
A second offense within 10 years will result in a 2-year revocation.
A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

A first offense will result in a 1-year suspension.
A second offense within 10 years will result in a 2-year revocation.
A third or subsequent offense within 10 years will result in a 3-year revocation.

DMV HEARINGS

I am scheduled to appear in court on the DUI charge. Is this similar to a DMV hearing?
No. The DMV hearing is an administrative proceeding regarding the suspension or revocation of your driving privilege only.

Why does DMV offer the right to a hearing if I am already scheduled to appear in court for the DUI charge?
Both our State and Federal Constitutions provide that no person shall be deprived of property without due process of law. Due process of law entitles you to a notice of the action DMV intends to take against your driving privilege and an opportunity to be heard (hearing).

How is the DMV hearing different from the court trial for DUI?
The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act. Only the following issues will be discussed:

If you took a blood or breath or (if applicable) a urine test:
1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or 23153 ?
2. Were you placed under lawful arrest?
3. Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

If you refused or failed to complete a blood, breath test, or (if applicable) a urine test:
1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or, 23153 ?
2. Were you placed under lawful arrest?
3. Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?
4. Did you refuse to submit to or failed to complete a blood or breath test, or (if applicable) a urine test after being requested to do so by a peace officer?

Am I obligated to have a DMV hearing?
No. Your are not required to request a DMV hearing.

Does the DMV hearing substitute for the court trial?
No. The DMV hearing and court trial are independent of each other. The DMV hearing deals with the circumstances surrounding a DUI arrest. The Court trial deals with whether you are innocent or guilty of a criminal act.

The suspension of my driving privilege was sustained following my DMV hearing, but I was found not guilty of the DUI charge in criminal court. Do I get my license back?
When a driver has been acquitted of DUI charges in court, a suspension or revocation will be reversed if it is determined by the DMV that the court decision does, in fact, equal an acquittal.

The suspension of my driving privilege was sustained following my DMV hearing, but the DUI charge was reduced in criminal court to reckless driving. Do I get my license back?
No. A reduction of a DUI charge to reckless driving in the criminal court is separated and/or independent from the administrative proceeding, and does not affect the driving privilege suspension.

The suspension of my driving privilege was sustained following my DMV hearing, but the DUI charges were dismissed in the criminal court or the district attorney decided not to file a DUI charge against me. Do I get my license back?
Not necessarily. Current law may permit a driver a renewed right to a hearing within one year of the arrest date when a DUI charge is dismissed or not filed by a District Attorney due to lack of evidence, or filed, but later dismissed by the court because of insufficient evidence.

I was convicted in court of the DUI charge, but the judge said I could get a restricted license. How do I obtain this restriction?
If you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, file proof of financial responsibility and pay (on or after January 1, 2003) a $125 reissue fee after a mandatory 30-day suspension, you may request a restricted license to drive to and from the DUI treatment program and/or to, from, and during work. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392.

How can I find a Driving Under the Influence (DUI) Program as ordered by the court?
This link will take you to a DUI Program Directory of Service Providers.
Note: You need Adobe Acrobat Reader to view/print this publication.

If you have a commercial driver license and you were not operating a commercial vehicle at the time of the offense and pay (on or after January 1, 2003) a $125 reissue fee after a mandatory 30-day suspension, you may request a restricted license to drive to, from, and during work. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392.
Any driver with a second DUI offense within 10 years may submit proof of enrollment in a DUI treatment program, proof of financial responsibility and pay a $100.00 reissue fee one year after the effective date of the suspension to drive to and from an alcohol program and to, from, and during work.
Any driver with a third or subsequent DUI offense within 10 years is not entitled to apply for any type of restricted license.

I had a DMV hearing and the hearing officer set aside the suspension and let me keep my license. Does this have any effect on what happens to the DUI charge in criminal court?
No. The DMV hearing officer can only set aside the administrative action against your driving privilege. This decision is separate and/or independent from any criminal charge, sanction, penalty, or decision.

DUI Laws

Section 23103. "Reckless driving."

(a) Any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

(b) Any person who drives any vehicle in any offstreet parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

(c) Persons convicted of the offense of reckless driving shall be punished by imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment, except as provided in Section 23104.

Section 23140. "Persons under 21 years of age."


(a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person's blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.

(c) Notwithstanding any provision of law to the contrary, upon a finding that a person has violated this section, the clerk of the court, or judge if there is no clerk, shall prepare within 10 days after the finding and immediately forward to the department an abstract of the record of the court in which the finding is made. That abstract shall be a public record and available for public inspection in the same manner as other records reported under Section 1803.

Section 23152. "Driving under influence."

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

Section 23153. "Driving under the influence and causing bodily injury to another person."

(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.

(c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.

(d) It is unlawful for any person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210, and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after driving.

Section 13353. "Chemical blood, breath, or urine tests."

(a) If any person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:

(b) The notice of the order of suspension or revocation under this section shall be served on the person by a peace officer pursuant to Section 23612. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 23612, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(c) Upon receipt of the officer's sworn statement, the department shall review the record. For purposes of this section, the scope of the administrative review shall cover all of the following issue

Punishments
The statutory punishment for a DUI conviction can be very severe. All of the penalties listed below are within the Court’s discretion:

These penalties do not include any suspension that may be carried out independently by the DMV.

Penalty: First Conviction
23536. (a) If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).

(b) The court shall order that a person punished under subdivision (a), who is to be punished by imprisonment in the county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court. If the court determines that 48 hours of continuous imprisonment would interfere with the person’s work schedule, the court shall allow the person to serve the imprisonment whenever the person is normally scheduled for time off from work. The court may make this determination based upon a representation from the defendant’s attorney or upon an affidavit or testimony from the defendant.

(c) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (1) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.4.

(e) This section shall become operative on September 20, 2005.

Penalty: Second Offense Within Ten Years
23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(c) This section shall become operative on September 20, 2005.

Penalty: Third Conviction Within Ten Years
23546. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver's license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

Penalty: Fourth or Subsequent Conviction Within Ten Years
23550. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

Minor Passenger: Enhanced Penalty
23572. (a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed:

(1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed.

(2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven.

(c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.

Chemical Testing: Refusal to Take or Failure to Complete: Enhanced Penalties
23577. (a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer's request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:

(1) If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.

(2) If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.

(3) If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.

(4) If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.

(5) If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.

(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven

Speeding: Additional Penalty
23582. (a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.

(b) If the court grants probation or suspends the execution of sentence, it shall require as a condition of probation or suspension that the defendant serve 60 days in the county jail, in addition and consecutive to any other sentence prescribed by this chapter.

(c) On a first conviction under this section, the court shall order the driver to participate in, and successfully complete, an alcohol or drug education and counseling program, or both an alcohol and a drug education and counseling program. Except in unusual cases where the interests of justice would be served, a finding making this section applicable to a defendant shall not be stricken pursuant to Section 1385 of the Penal Code or any other provision of law. If the court decides not to impose the additional and consecutive term, it shall specify on the court record the reasons for that order.

(d) The additional term provided in this section shall not be imposed unless the facts of driving in a manner prohibited by Section 23103 and driving the vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, are charged in the accusatory pleading and admitted or found to be true by the trier of fact. A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood.

Mistakes To Avoid

Mistake: Not retaining an attorney to represent you.

The number of people arrested and convicted for "Driving Under the influence" increases everyday. In fact it is very likely that you already know someone who has been convicted of a DUI. It is also very likely that they may tell you that getting an attorney didn't help them because they still got convicted and therefore you shouldn't get one - the public defender can just "plead you out." This is fine if you are willing to automatically give up your license for months, spend extra time (unnecessary) going to classes; maybe spend time in jail, and finally maybe picking up trash on the side of the road. A majority of this can often times be avoided by retaining an attorney, any attorney, who can challenge the District Attorney and who can present the weaknesses in their case - most cases have problems that the District Attorney does not wan to reveal.

Mistake: Retaining the Cheapest attorney you can find.

A large number of attorneys will often send you mail that offers low rates for representing you - in fact it is not uncommon to see offers like "starting at $499.00." The problem with this kind of deal is that the price for services is not set. You can tell this because they use the word "starting." If that is the starting price then how much total will you spend - this is something they won't tell you unless you come in and meet them in their office. You would be better off to retain an attorney who is going to quote you a price that is constant and which includes specific items of work to be done - like a DMV hearing, negotiating the case with the DA, reviewing all discovery and including or excluding a jury trial. High quality, aggressive representation can be found for reasonable flat fees.

Mistake: Not taking an arrest seriously

Many people do not realize the potential for problems when they ignore an arrest and the subsequent court dates. Ignoring a case and the court will result in the court issuing a warrant for your arrest. If this happens you could be placed into jail at anytime - without warning and because you failed to appear in front of the Judge on your own he will probably not be to willing to let you out until you plead guilty - which means you would have given up any opportunity to challenge the case against you.

Mistake: Not retaining an attorney with 10 days of the date of arrest.

It is easiest to explain this by using a recent case as an example. A young gentleman was arrested for a DUI and did not retain an attorney nor did he set a DMV hearing within 10 days of the date of his arrest. As a result his license was suspended 30 days after the date of the arrest but before his first court date. This young man, after talking to several people, decided he should probably hire an attorney which he did before his court date. After his first court date he was then arrested for another DUI and driving on suspended license.

As it turns out the case against the DMV could have easily been won (his first DUI was reduced to "3 one pointers") and as a result he would not have been facing a Driving on a suspended license charge.

Challenging A DUI

There are several things that can be done to when challenging a DUI.

The first of which is to set a DMV hearing within 10 days of the date of your arrest otherwise nothing can be done to save your license.

Some cases rely on breath machine results while others rely on the results of a blood test. If you took a breath test you must realize that the "BA" reading could be inaccurate - very inaccurate. The machine is simply that, a machine. Have you ever heard the phrase "garbage in garbage out." If the operator was not properly trained or the machine was not properly maintained then you may have a basis to fight.

If you blood was drawn in medically approved manner then it should be tested by an independent laboratory to see what result that independent lab derives. Many times the independent lab results vary widely from the results gathered by the government in their effort to convict you.

Did the officer correctly perform the Field Sobriety Tests? Were you contacted by the police based on reasonable cause to suspect you were violating the law? Theses questions and many more can be asked by an attorney on your behalf and can sometimes lead to outright dismissal of cases. That is not to say that it will happen in your case, but how are you to know if you don't hire an attorney?