By: Diana Aizman
Founding Attorney at Aizman Law Firm
A person who has been arrested for a first offense DUI in California is typically facing two different government agencies, the California Department of Motor Vehicles and the local criminal court in the area where they were arrested.
After an arrest for a DUI, the arresting officer is required to immediately forward a copy of the notice of suspension or revocation form and any driver license confiscated to the DMV. If the suspension or revocation is upheld during the DMV’s administrative review, you have the right to request a hearing to contest the suspension or revocation.
You must request the hearing from the DMV within 10 days of receipt of the suspension or revocation order, which you will likely receive upon your arrest. This will halt the automatic process of suspension or revocation and until the DMV has conducted an administrative review. If the review at the DMV shows that there is no basis for the suspension or revocation, the action will be set aside and your driving privileges will be reinstated. The DMV will notify you in writing only if the suspension of revocation is set aside following the administrative review.
In California, a person arrested for a first offense DUI potentially faces both administrative and criminal penalties. The severity on the penalties is determined by whether or not you took a chemical test, other aggravating factors, and case-specific details.
In criminal court, the prosecution has to show beyond a reasonable doubt that the officer had (1) probable cause to pull you over, (2) your blood alcohol content (BAC) was above the legal limit, and (3) that your arrest was lawful. Having an attorney knowledgeable in DUI traffic law from the beginning of your case is important in making a solid defense in your DUI case.
1. First offense DUI carries a penalty of administrative license suspension by the DMV for at least four months
2. The courts will require a mandatory completion of an alcohol assessment or treatment evaluation, which is also required for your license to be reinstated.
3. Mandatory installation of an Ignition Interlock Device.
4. License reinstatement, including a restricted license, requires SR-22 insurance coverage.
1. There is a mandatory minimum incarceration of 48 hours for refusing a post arrest chemical test,
2. There is a maximum of no more than six months in a county jail.
3. Fines will be no less than $390 and no more than $1,000.
4. Probation of no less than three years and no more than 5 years, during which you can violate no law that results in an arrest or drive with any measurable amount of alcohol in your blood.
5. Conviction of a DUI will remain on your record for 10 years and will influence any subsequent DUI arrests.
6. You will have to complete a DUI program for three, six, or nine months.
A wet reckless, dry reckless, exhibition of speed or drunk in public is a reduced charge to a DUI, though not a separate criminal offense. In situations where the facts and circumstances of your case are such that the prosecutor may have difficulty proving DUI in a trial they may be willing to plea bargain to a lower offense.
Here are some common situations where a prosecutor may be willing or unwilling to reduce your DUI charge:
It is unlawful to drive with a BAC of 0.08% or higher for drivers 21 and over. You are presumed to be under the influence at 0.08%, but prosecutors are more willing to reduce a DUI to a wet reckless or possible lower offense if your BAC is between 0.08% and 0.11%, since the difference is not substantial. If you were stopped for an equipment violation or a relatively minor traffic offense such as speeding just a few miles over the limit or perhaps not coming to a full stop at a traffic sign, this in conjunction with your relatively low BAC could be used to persuade the prosecutor to reduce your DUI charge as well.
Prosecutors are more willing to offer a reduced charge if this is your first offense compared to situations where there is a history of DUI for the defendant.
There are circumstances where police are unable to definitively determine who was driving. This might arise in an accident where the occupants are outside the vehicle and either point to each other as the driver or refuse to acknowledge who was driving.
Another situation is where someone reported your vehicle’s license number to police and that the motorist was driving erratically. Police come to your home and find you inebriated but cannot establish that you were the driver or that you were even intoxicated at the time you were driving. Still another is where you are found parked or asleep in your vehicle and police observe that you were under the influence. However, there is no evidence that you were ever driving the vehicle.
While there may be some evidence pointing to you as the likely driver in any of these scenarios, the prosecutor might not want to risk losing a prosecution and so will make the offer to reduce the charge.
A prosecutor will likely not offer you a plea to a wet reckless if you refused testing unless the totality of the evidence of your having driven while under the influence is scant. Under California’s implied consent law, all motorists are required to submit to a breath, blood or urine test if an officer finds probable cause to believe you are under the influence. The results of a chemical test, whether it is breath, blood or urine, that indicates your BAC is at least 0.08% is a presumption that you were under the influence.
If you refuse to take the BAC test, the prosecutor can use your refusal to argue at trial that you refused to take the test because you were conscious of your guilt.
Without a BAC test, the prosecutor can use your refusal as evidence of guilt but will likely have to use other evidence to convict you such as your driving conduct, demeanor and results of field sobriety tests, if any. If convicted, your refusal can be used to enhance your sentence with additional jail time and you will receive a minimum license suspension of at least one year with no opportunity for a restricted license.
Since a test refusal is considered an aggravating circumstance, a prosecutor will not offer you a wet reckless unless there is little or no other evidence of your guilt. In such cases, your defense attorney might recommend you take your case to trial with the caveat that your refusal will be used against you.
You do, however, have a right to refuse to perform any field sobriety tests including the PAS, or preliminary alcohol screening test, which is a portable device used by officers to establish probable cause to request you submit to a breath, blood or urine test. These refusals cannot be used as evidence of your consciousness of guilt and a prosecutor would only consider such refusals in conjunction with any other evidence of guilt in determining whether to make an offer of wet reckless or other arrangement.
If you caused an accident or injury in an alcohol-related incident, it is highly unlikely a prosecutor will offer you a wet reckless unless there is evidence of police misconduct or failure to follow certain protocol. Should someone have suffered a serious injury or fatality, you face possible felony DUI charges.
If you were in an accident that was not your fault but the investigating officer determined that you had been drinking and a BAC test result was 0.08% but under 0.12%, you could plausibly argue to the prosecutor that an offer of wet reckless would be reasonable.
In order to start your car with an ignition interlock device installed, you must blow into a handheld mouthpiece that will measure your blood alcohol level. If your breath alcohol level is below the allowed limit, your car will start. If your breath alcohol level is above the limit, the car will not start. In most counties in California, the judge has the discretion to order the offender to install an ignition interlock device on their car, although there are some counties, including Los Angeles County, in which the installation is mandatory.1
If you violate your probation in any way, the court will revoke your probation sentence and re-determine the proper consequences for the DUI and violation of your probation.
The SR-22 insurance is a type of insurance that allows you, after conviction of a DUI, to get your license reinstated after the period of suspension ends or a restricted license if permitted. An SR-22 is a document that shows proof of financial responsibility and the insurer files in with your state’s DMV. You must carry this insurance with you until your probation period ends and at that time the SR-22 insurance will expire.
4. If I was sentenced to jail time and have employment, do I have to serve my county jail time during working hours?
The judge will often allow you to serve out your sentence over the weekends with at least 48 consecutive hours of jail time. It is also accepted for people to use time off from work to serve out their sentence.
5. Will I have to serve a mandatory jail sentence?
Although California law requires a mandatory jail sentence, many judges will grant probation in lieu of jail as long as there are no aggravating factors in your case.
Resolute Defense In Your DMV Hearing: Including
- Review of the police report for any shortcomings in the investigation.
- Subpoenaing the records of maintenance and accuracy logs on the specific PAS and/or ECIR machine used to conduct your exam.
- Strategizing any viable defenses to preserve your license, etc.
Zealous Defense In Your Criminal Proceedings: Including
- Extensive review of the police report for possible defenses.
- Subpoeaning the video footage (“dash cameras”) of the traffic stop, if any taken.
- Have any blood drawn retested by an independent facility.
- File any important Pretrial motions (i.e., Motion to Suppress the evidence against you, Pitchess Motion for officer misconduct at arrest, etc.)
- Plea Negotiations with prosecutors to garner a charge reduction.
- Dismissal of the case, if applicable for insufficient evidence.
Dynamic Defense In Your Trial Proceeding: Including
- File pre-trial motions to seek to exclude any non-relevant evidence that prosecutors may try to use in trial.
- Utilize research on demographic set for jury selection
- Cross examine all witnesses including law enforcement & government expert
- Present expert testimony in your favor
The state of California has implemented some of our nation’s harshest DUI laws, even for a first time offender. It is important to find a knowledgeable dui attorney who can assist you in reducing the charges from a DUI to a wet reckless or lesser offense. The penalties and consequences of a DUI on your record are severe and long lasting. An attorney can help reduce these penalties and create defenses on your behalf to lower the charges.
At the Aizman Law Firm, our attorneys can help you with questions you might have about the entire DUI process and penalties for a first offender. Please call our office at: (818) 351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- Cal. Veh. Code §§23573, 23575 [↩]