By: Diana Aizman
Founding Attorney at Aizman Law Firm
Measurement of Intoxication:
In addition to the Field Sobriety Tests (i.e,walking in a straight line, standing on one foot, etc.), the officer likely conducted an exam to evaluate your Blood Alcohol Content (BAC). There are three possible methods to test your BAC:
- Pas Exam
- EC/IR Exam
- Blood Test
Commonly known as the “breathalyzer exam,” the preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant and accurate measure of your blood alcohol concentration.
This test can be influenced by various internal factors, such as your last meal, certain medications, and certain medical conditions such as acid reflux. With the right evidence and the right attorney, the results of this test can be significantly called into question.
The evidentiary breath test is an intoximeter exam that you take at the jail or police station. If you took this breath test, the officer will likely include a printout in the police report with your breath alcohol results on it.
This test is typically more reliable, and depending on your level of intoxication, is often lower than the results on the PAS exam.
A blood test should be conducted at a health care facility, and is even more reliable than breath testing. This test is not mandatory for officers to conduct, but rather, is an elected option.
This exam may raise issues in regards to the amount of time between the arrest and when the sample was collected, care of the sample, training of the person testing the sample, and the maintenance and condition of the equipment used.
Effect On Your License:
After your breath test (or other chemical test), the officer will complete a DMV form. The officer will take away your license, and issue your “temporary license” (a pink sheet of paper). The form is called the “Administrative Per Se Suspension/ Revocation Order and Temporary License.” Your temporary license has full driving privileges and will expire after 30 days.
After your arrest: YOU HAVE TEN (10) DAYS TO SAVE YOUR LICENSE AND REQUEST A DMV HEARING!
Being cited for a violation of Vehicle Code §23152(a) Driving Under the Influence triggers two (2) proceedings against you:
In most circumstances where DMV orders a discretionary action against a person’s driving privilege, that person has the right to a hearing before the department to contest the action and review the evidence supporting it. You are allowed to continue driving through the outcome of your hearing.
About the Hearing:
- The hearing can take place via telephone or in person.
- The hearing is held before a Driver Safety Hearing Officer of the department.1
- The hearing is recorded2
At the Hearing:
- The driver is informed of the legal grounds for the action.3
- The driver has the opportunity to review and challenge the evidence of the department, to present evidence, witnesses and testimony to persuade the department to modify or rescind the action.4
- Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action.5
Legal Standard of the Hearing:
- Were you driving?
- Were you lawfully pulled over? (i.e, was there probable cause to stop your vehicle)
- Was your B.A.C. at .08 or higher?
If you WIN your DMV Hearing: The Driver Safety Hearing Officer will set aside the DMV action and your license will be restored as valid
If you LOSE your DMV Hearing:
- FIRST 30 DAYS: Your license will be revoked for a period determined by the Hearing Officer, usually a period of 30 days for 1st time DUI offenders, where you cannot drive anywhere at anytime.
- 1- 5 MONTHS AFTER: At the end of that time period, your license will be reinstated with restriction.
Note: Restrictions typically depend on the requirements of your conviction, but you will likely be allowed to ONLY drive to and from your alcohol program and from home to work/school for a period as designated (usually a period of 4-6 months for 1st time DUI offenders)
- 6-12 MONTHS AFTER: At the conclusion of the five month restricted period, depending on the requirements of your conviction, you will likely be allowed to drive anywhere for the following five months so long as your vehicle, or any vehicle that you drive, is equipped with an Ignition Interlock Device (IID).
- AFTER 12 MONTHS: Once the suspension period has ended, you will be able to obtain your regular driver’s license by paying a fee of $125.00 to the DMV and filing proof of financial responsibility, provided by your car insurance company usually with a Form SR-22.
VERY IMPORTANT NOTE: IF YOU REFUSE TO TAKE THE BREATHALYZER EXAM YOUR LICENSE WILL BE AUTOMATICALLY REVOKED FOR A PERIOD OF ONE YEAR FOR A FIRST OFFENSE DUI. YOU WILL NOT BE ENTITLED TO A DMV HEARING.
Former Prosecutor, Diana Aizman Providing Legal Analysis
Depending on numerous circumstances regarding your intoxication and your driving, including the involvement of a collision, the extent of injuries sustained by passengers, or other third parties, whether a hit-and-run was a factor, your DUI can be classified as either a misdemeanor (standard) or, in rare and egregious cases, a felony
Misdemeanor (standard classification)
- California has two standard drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b). Vehicle Code section 23152(a) states that it is a misdemeanor to drive under the influence of alcohol and/or drugs. Vehicle Code section 23152(b) states that it is a misdemeanor to drive with .08% or more of alcohol in your blood.6 If you are driving with a BAC over .08% you will likely be charged with a violation of both Vehicle Code sections.
- In addition to your one-year license suspension, any combination of the following are possible consequences for vehicle code 23152(a)
In Recognition Of Our Work, We Have Been Awarded
|Probation||1-3 years summary probation|
|Alcohol Program||3-9 months|
|AA/MADD Classes , Victim Impact Program||As determined by the court|
|Ignition Interlock Device||Yes|
|Community Service/Labor||Amount determined by the court|
|Restitution To Any Victims||An amount determined by the court|
|County Jail||0-6 months|
Assuming you are not a repeat offender, three requirements must be met for your DUI to be treated as a felony: while under the influence, the driver must commit a traffic violation, such as running a red light or speeding; secondly, the driver must have caused injury or death to a third-party; and finally, that injury must have been caused by the violation in question. Your DUI can also be increased to a felony if you have multiple prior DUI convictions and/or a prior felony DUI conviction.
In addition to a possible up to four (4) year license suspension, any combination of the following are possible consequences for a standard 1st time DUI felony Offense:
- 6 months -3 years jail time
- $3,000+ fine
- 18-month alcohol education program
- 3-5 years formal probation
- AA Classes, an amount as determined by the court
- IID installed in vehicle
- Participation in a class conducted by Mothers Against Drunk Driving (MADD) and/or Victim Impact Program
- Community Service/Labor, an amount as determined by the court
- Restitution to any victims involved, an amount as determined by the level of damage caused to the third party
- Charge enhancements if passenger in vehicle at the time
- If serious injury and/or death: May be a “strikeable” offense, may be eligible for state prison sentence. If you kill someone while driving under the influence, you can also be charged with vehicular manslaughter or murder.
- Consequences of felony conviction: Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, may lead to immigration consequences, as a drug abuser, if you are a noncitizen.
- Vehicle Code 23220- Drinking Alcohol While Driving
- Vehicle Code 23221- Drinking Alcohol While In Vehicle
- Vehicle Code 23222(b) – Possession of marijuana while driving
- Vehicle Code 23223- Possession of an Open Container in Vehicle
- Vehicle Code 23225- Presence of Open Container in Vehicle
- Vehicle Code 23226- Possession of Open Container in Passenger Compartment
If you cause the death of another, while driving under the influence:
Diligent Defense In You 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.
Diligent 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.
Diligent 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 exam all witnesses including law enforcement & government expert.
- Present expert testimony in your favor.