The purpose of this document is to take some of the mystery out of what happens after you are stopped for a DUI.
1. How Much Alcohol Does It Take To Be Over The Legal Limit In California?
Even One Or Two Drinks May Cause You To Be Over The Limit
Some drinkers believe that they can have a few drinks and still be able to drive. That may or may not be true. It is in your best interest to not drive if you have been drinking.
A shot (1-1/2 fl.oz.) of 80 proof liquor, 5 fl.oz. of a table wine, and a 12 fl.oz. can of beer all contain approximately the same amount of alcohol. These are so-called "standard drinks."
However, one (1) Long Island Iced Tea is approximately equal to five (5) "standard drinks" and one (1) Pina Colada is approximately equal to three (3) "standard drinks."
2. You Have Certain Constitutional And Statutory Rights. You Must Understand And Exercise These Rights!
Basic Drunk Driving Offences
When you are stopped for a DUI, you will usually be charged under the following Vehicle Code Sections: 23152(a) or 23152(b). Subdivision (a) makes it illegal to drive a vehicle while under the influence of alcohol; subdivision (b) makes it illegal to drive a vehicle with a blood or breath alcohol concentration (BAC) of 0.08% or more. You may be charged with a violation of 23153 if you are DUI and a person is injured, with 23154 if you are on probation for DUI, or 23140 if you are under the age of 21.
What Rights Are Involved?
Although you should cooperate with law enforcement, that does not mean that you should waive or give up any of your constitutional or statutory rights, nor should you be stupid.
The U.S. Constitution states that you have a right to remain silent. It has been my experience that the truth is that most people do not keep track of how many drinks they had. They don’t carry a drink counter. If you are uncertain as to how many drinks you had, you should never guess. If you think that maybe you had 8-10 tall ones but you are not sure, then you should definitely not tell that to the officer. Similarly, if you say that you had 2 beers, the officer will know that you are lying because everybody says that they had 2 beers. Therefore, if you are uncertain, state that you are uncertain how many drinks you had and do not say anything more on this subject. Also, do not guess about how much time you spent at a particular bar, or other location. In summary, the officer is likely to ask you a number of relatively innocent sounding questions. Remember, you have a right to remain silent and not answer any of these questions especially if you are unsure of the answer. Just tell the officer that you are exercising your to remain silent under the Fifth Amendment to the U. S. Constitution. The officer will not be happy, but last time that I checked, it was not unlawful to exercise a Constitutional Right.
A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.
Field Sobriety Tests (FSTs)
A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test.
The officer will try to establish that there is reasonable cause to arrest you. The officer is first likely to ask you to blow into a Preliminary Alcohol Screening (PAS) device.
If the officer intends to use the results of these tests against you, the officer must advise you that you have a right to refuse the PAS Test. I will bet you a dollar to a donut hole that the officer will not advise you of your right to refuse this test although, if he does not intend to use the results of this test against you, there would be no reason to conduct the test! "The officer shall advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test." California Vehicle Code (CVC) §23612. YOU SHOULD REFUSE TO TAKE THIS TEST UNLESS YOU ARE ON DUI PROBATION.
Although it is likely that you will be arrested if you refuse the test, there will at least be no possible later dispute over the admissibility of these invalid test results. Moreover, you would have been arrested anyhow since that was the whole purpose of the test!
In addition to a PAS test, the officer will also typically ask you to perform certain Field Sobriety Tests (FSTs). YOU SHOULD ALSO REFUSE TO TAKE THESE TESTS. However, if you choose to take these tests, the following may be of some help to you.
There are three (3 ) so-called "standardized" FSTs. These tests are: (1) Horizontal Gaze Nystagmus (HGN) Test which assumes that there is a relationship between certain repetitive eye movements and a person’s alcohol level. The officer instructs the driver to hold his/her head still and have his/her eyes follow a pen or other device. The officer is not supposed to shine a light directly into your eyes because this may invalidate test. If the officer uses a flashlight and shines the light directly into your eyes, be sure to tell your lawyer about this; (2) One Leg Stand (OLS). The officer asks the driver to stand on one leg with both hands at their side and balance; (3 ) Walk and Turn (WAT). In this test, the officer will ask the driver to place his/her foot heel-to-toe, and when so advised, take 9 steps on an imaginary straight line, turn, and walk back 9 steps on that line.
It is rare that the officer will have you walk on an actual straight line and, therefore, there will always be some confusion since there is no way to be sure if the line in your imagination is the same as the line in the officer’s imagination.
The OLS and WAT should be conducted on a flat surface without rocks or gravel. If you are female in high heals, you are presented with the impossible choice of taking the test in your high heals, or taking off your shoes and walking on the gravel or rocks. Regardless of gender, it is difficult to walk on gravel or rocks. Most roads have a crown in the center of the road for water runoff. As such, it is normally the only part of the road which is not slanted to one side or the other. Of course, the officers do not conduct this test in the center of the road. If the test is conducted on a dirt shoulder, it is likely to be bumpy and/or covered with rocks. Although you do not need to mention these problems to the officer, you should be sure to describe these conditions to your lawyer.
These FSTs are designed for failure. Very few persons can successfully perform these tests even if they are sober. Also, many officers ask you to perform other tests like non-standardized finger counting or other tests that are not recognized as having a scientific basis to identify whether or not a person is under the influence.
If you have difficulty with your balance when you are sober, be sure to give this information to the officer. Similarly, if you are handicapped in any way, make sure to tell this to the officer.
If you are taking medication such as sleep medication, do not mention this to the officer. It will not help you because driving under the influence of a drug or alcohol is a crime. The officer will simply use this information to argue that you were under the influence of a drug, or a drug and alcohol.
3. If I am Taken Into Custody, What Test(s) Should I Take, If Any?
The possible tests are blood, breath or urine.
DO NOT TAKE A BREATH TEST
The BREATH TEST has become more difficult to challenge with new breath machines and new procedures.
Tell the officer that you want to take a BLOOD TEST. There are numerous problems that may arise in the handling of blood samples which may be used in your defense. Insist on a blood test if no drugs are involved. Don’t be deterred if the officer complains that if you request a blood test that it will be necessary to transport you to some distant location, or to keep you in custody for a longer period of time.
An exception is if you have used any illegal drug, you should request the breath test, although you may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that you are under the influence of a drug, or the combined influence of an alcoholic beverage and a drug, and if the officer has a clear indication that a blood or urine test will reveal evidence of your being under the influence.
Breathalyzer Tests Are Not Accurate
Breathalyzer Tests only estimate BAC level. The Breathalyzer attempts to convert your breath alcohol content to BAC by measuring blood alcohol in your breath from your lungs. This estimation is little more than an educated guess! Further, it is affected by mouth alcohol which may increase the true value of BAC due to dental appliances, burping, and acid reflux
In order to make this conversion, the Breathalyzer assumes a standard ratio of 2100:1 between BAC and breath alcohol content. The ration assumes that the man or woman being tested is an "average person" in terms of weight, health and other factors. It has been shown that this ratio may vary anywhere from 1700:1 to 2400:1 among individuals. This means that a breath test result of 0.08% may actually vary anywhere between 0.65% to 0.09%!
4. Do I have A Right To Have A Lawyer Present Prior To Testing?
The officer should advise the person that he/she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.
Therefore, once you are taken into custody, YOU MUST SUBMIT TO A CHEMICAL TEST. Failure to do so can result in draconian consequences.
"The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (I) the suspension of the person's privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person's privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person's privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the revocation of the person's privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions, or if the person's privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions, or if there is any combination of those convictions or administrative suspensions or revocations. " CVC §23612
5. What Are The Legal Consequences Of A First Time DUI?
A first-time DUI can result in a license suspension of 4 months, a fine approaching $2,000, 48 hours to 6 months in jail, and a 3-month alcohol/drug counseling program if your alcohol content was less than 0.20. If your alcohol content was 0.20 or more, or if you refused a chemical test upon your arrest, you must complete a 9-month treatment driver’s program. The DMV will also impose a 6-months driver’s license suspension, or a 10-month license suspension if the 9-month program is required. Other consequences of a conviction are not measured only in dollars and time, but also the costs and inconvenience of taking off work to attend multiple court hearings; not to mention, jail time. 48 hours is not too bad but I have never heard any client say: "I can handle the jail time, no problem!"
6. What Are The Immigration Consequences of a DUI in California?
I am not an immigration lawyer and this summary is not intended to substitute for contacting a experienced and qualified immigration attorney regarding the immigration consequences of a DUI conviction in California. Because this issue often arises in the representation of non-citizens in DUI cases, I thought that a brief summary of the immigration consequences of a DUI conviction would be helpful to an accused. However, this summary is primarily intended to inform an accused of the need to contact an immigration lawyer in certain specific circumstances.
In California, driving under the influence has severe consequences including the possibility of jail time, high fines, extended probation, loss of driving privileges, higher insurance premiums, and the possible seizure of your vehicle. If the defendant is not a citizen, there can be possible serious consequence including the possibility of deportation. Generally, however, it takes more than one relatively minor misdemeanor to result in deportation.
In this brief summary, I will discuss the dangers of a drunk driving conviction for non-citizens in the United States, in general, and in California, in particular. For example, under U.S. immigration laws, a conviction of DUI may, under certain circumstances, be determined to be a "crime involving moral turpitude," a "crime of violence," a "serious criminal offense," or "an offense involving controlled substances." Such a conviction could lead to inadmissibility to or deportation from the U..S., and/or a finding of bad moral character at a naturalization interview.
Crime Involving Moral Turpitude
Under Section 237 of the U.S. immigration laws, an undocumented person is deportable if he/she commits a "crime involving moral turpitude." U.S.C. §§ 1182(a)(2)(A) and 1227(a)(2)(A).
"Moral turpitude" is not defined in the Immigration and Nationality (INA) Act, but various courts have recognized that moral turpitude generally refers to conduct that involves fraud or is inherently base, vile, and deprived, and contrary to the accepted rules of morality and the duties owed to persons and to society in general.
However, in California, in order to involve "moral turpitude," a crime must have an intent requirement. Some examples are: murder, voluntary manslaughter, kidnaping, rape, robbery, fraud, aggravated assaults, spousal abuse, child abuse, theft, and incest. In determining if a crime involves "moral turpitude" the courts will examine whether or not the prosecutor was required to establish a culpable mental state, such as knowledge, intent, or reckless conduct.
By comparison, certain other crimes do not have an intent requirement. For example, in California, a DUI requires that a person was driving with a certain blood level of alcohol or other intoxicating substance above that legally permissible under California law. There is no reference to intent. That means, one does not have to have intended to drive drunk. The mere fact of being over the legal limit of 0.08% is enough to constitute a violation of the law.
Under U.S. immigration laws, an ordinary DUI conviction is not considered a "crime involving moral turpitude" unless it is combined with an aggravating factor such as driving on a suspended license, or having a minor in the car which could constitute child endangerment. These offenses require a culpable mental state, therefore, a defendant who is not a citizen and who is convicted of a DUI with these aggravating factors could be deported.
Even if the DUI conviction does not involve a crime involving moral turpitude, it could still have serious immigration consequences if, for example, that conviction is determined to be an "aggravated felony". 8 U.S.C. § 1252(a)(2)(C) The definition of "aggravated felony" is found at 8 U.S.C. § 1101(a)(43).
Aggravated felonies, are generally violent or other specified crimes for which the wrongdoer can be sentenced for one year or more, and can lead to deportation.
Crime of Violence
In California, the Ninth Circuit Court of Appeal has held that drunk driving does not constitute a crime of violence because it does not involve the intentional use of force.
A California DUI can also result in the imposition of enhancing provisions, under which a second or third DUI conviction may result in a sentence of more than 365 days imprisonment thereby triggering immigration consequences.
Multiple DUI convictions can also result in a determination that an applicant for citizenship is a habitual drunkard and result in inadmissibility, and even removal frm the U.S. 8 U.S.C. § 1101(f)(1).
Serious Criminal Offense
A crime of reckless driving or of driving while intoxicated or under the influence the influence of alcohol or of prohibited substances is potentially a serious criminal offense if such crime involves personal injury to another. U.S.C. § 1101(h).
Offenses Involving Controlled Substances
A non-citizen who is convicted of possession of a controlled substance, or driving under the influence of a drug listed in the Controlled Substances Act (CSA) may or may not be subject to deportation. The relevant inquiry is whether or nor the drug listed in the California definition of controlled substances is also listed in the federal list. Generally, only drugs listed on the federal list will trigger adverse immigration consequences under federal law. It is important to note that the California Vehicle Code defines "drugs" for driving purposes as any substance that may adversely affect the ability to drive, even if it is not listed in the CSA. A controlled substance must be on the federal list of controlled substances before a state conviction will constitute a controlled substance conviction under immigration law.
The immigration consequences of a DUI conviction in California can be severe for non-citizens. If charged with a DUI, a defendant with a history of multiple DUIs or any of the aggravating circumstances listed above would be wise to consult with an experienced immigration lawyer as well as an experienced DUI lawyer before pleading guilty to a DUI, or a lesser offense.
Even an accused with multiple DUIs may avoid deportation as long as a sentence is less than 365 days. One way around this limitation is for the attorney to get the judge to sentence defendant to 364 days, or less.
The best advice, however, is do not drive after drinking!
7. Issues At An Administrative Per Se (APS) Hearing
a. Did the peace officer have reasonable cause to believe driver was driving a motor vehicle in violation of California Vehicle Codes sections 23152, 23153, 23154, or Penal Code sections 191.5(a) or 192(c) ?
b. Was the driver legally detained while on DUI probation or lawfully arrested?
c. Was driver driving a motor vehicle with a blood alcohol content of 0.08% or more [or 0.01% or more while on probation; or 0.04% while driving a commercial vehicle?
For Refusal Cases
a and b above plus:
c. Was driver advised that his/her driving privilege would be suspended, or revoked for one, two or three years if driver refused to submit to, or failed to complete a chemical test?
d. Did driver refuse to submit to, or fail to complete a chemical test, or PAS test if on DUI probation after being requested to do so by a peace officer?
8. Things You Must Do Following Your Arrest
It is likely that the officer will take your license and issue you a pink form entitled "ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER’S LICENSE." This temporary license will allow you to legally operate a motor vehicle for a period of 30 days, or to the decision of the DMV hearing officer following your APS Hearing.
It is necessary for you to contact the DMV within ten (10) of your arrest and request a DMV APS Hearing. These are 10 calendar days not 10 business days. In Kern County, the number to call to request a hearing is: (661) 833-2103. If you retain my office before the expiration of the 10 days, we will request a date for the DMV APS Hearing on your behalf which is convenient to our calendar. If you do not contact the DMV within 10 days, you may forfeit your right to a hearing!
It is necessary for you to appear in court on the date and time on your citation unless you have made other arrangements with your lawyer. If you hire this office to represent you in court, and if you are not charged with a felony, we can generally appear on your behalf. This will avoid your having to miss time from your employment. or your family.
9. If I Lose My DMV APS Hearing, Are There Any Other Remedies?
If your driver’s license is suspended following a hearing, there are still other options. It is possible to have the result reversed if you win the case in court. However, if you refused to take a test at the station or in the hospital, you must win the DMV hearing to prevent your license from being suspended. It is also possible to request a review by the DMV, and/or "appeal" the DMV suspension to the Superior Court.
10. Hire A DUI Lawyer
If you have been arrested for a DUI in the State of California, you need a good lawyer to defend you. The penalties are very serious and costly. The attorney’s fees will be substantial so don’t kid yourself. If you cannot afford a competent DUI specialist, take a Public Defender. Do not try to represent yourself! In making this decision, ask yourself how important it is to have a valid driver’s license.
There are two components in the defense of a DUI: an administrative hearing before the DMV which can result in a suspension of your driving privilege; and a prosecution in a court of law which also may result in a suspension of your driving privilege as well as a fine and probation. You need a lawyer to try to win both the administrative and criminal case. You are not getting your money’s worth if the lawyer that you retain does not handle both the administrative and the legal parts of your case. What good is it if you win one part but lose the other?
If you hire a reputable and knowledgeable attorney to represent you who specializes in DUI Law, it is likely that the attorney can obtain a result which is substantially better than you would do without such a lawyer. Even if the facts are such that the lawyer cannot prevail on every issue, it is possible that the lawyer can negotiate a plea bargain which minimizes the consequences.
Whatever you do, do not go to court or to the DMV without a competent DUI lawyer on your side. There are many issues involved in the defense of a DUI, and you are most likely to get the best outcome with a lawyer who specializes in DUI Law.
Therefore, do not assume that you should just lay down and accept your punishment. Stand up for your rights! You just might be surprised by the outcome.
11. We Would Be Happy To Help You With Your DUI Case
We are willing to discuss your case with you without charge to determine if there is anything that we can do for you. Please call us at (661) 822-8200 to arrange a telephonic conference.
We have a reputation for being honest, reputable, competent, and result-oriented.
Harry M. Reynolds
Attorney at Law
Member: California DUI Lawyers Association,
California Attorneys for Criminal Justice
Nothing in this document is intended to constitute legal advice and no such document can substitute for, or replace the advice of an informed and competent lawyer retained to represent you who has access to all the unique facts of your case. This document is intended to describe general facts to help you in getting a feel for what to expect in most DUI Cases in the State of California. It would be a mistake to assume that this document will aid you in representing yourself in court or at the DMV on a DUI.
© 2003-2015 by Harry M. Reynolds, Attorney