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.
You have 10 days to dave 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:
- DMV Hearing
- Criminal Proceeding
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. Important note, if you refuse to take a chemical test your license will be automatically revoked for a period of one year for a first DUI. You will not be entitled to a DMV 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
- 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?
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
- 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)
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.
|Fine||$1400 -$3,000||Up to $10,000 + penalty assessments|
|Probation||1-3 years summary probation||3-5 years formal probation|
|Alcohol Program||3-9 months||3-30 month alcohol program|
|AA/MADD Classes , Victim Impact Program||As determined by the court||As determined by the court|
|Ignition Interlock Device||Yes in pilot counties||Must be installed in pilot counties|
|Community Service/Labor||Amount determined by the court||As determined by the court|
|Restitution To Any Victims||An amount determined by the court||As determined by the level of damage cause to the 3rd party|
|Jail or Prison||0-6 months county jail||6 months – 3 years state prison|
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.
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.