Driving while under the Influence (DUI’s)
My first assignment when I started my legal career as a Deputy Public Defender was supervising a DUI court. From that time, I have represented my own clients charged with a DUI (driving under the influence) while contracting my services with several DUI firms.
Unfortunately a DUI arrest can happen to anyone that drives the roadway or is in the wrong place at the wrong time. Moreover, DUI’s with their related DMV action can result in potential license loss, probation, fines, alcohol classes and an ignition interlock device.
If you are charged with a DUI, typically you would face two misdemeanor charges:
- Driving under the influence of alcohol, under California Vehicle Code 23152(a) VC, and
- Driving with a blood alcohol content of 0.08% or greater, pursuant to California Vehicle Code 23152(b)
In order to convict you of driving under the influence, the following elements of the crime must be proven:
-that you drove a motor vehicle, and
-that you were under the influence of alcohol or drugs at the time you drove.
DRIVING can be proven or established by either direct or circumstantial evidence.
If an officer actually observes you driving, then obviously the first element necessary for Vehicle Code 23152(a) “driving” under the influence is obviously satisfied.
But it is not every case where an officer is following someone and observes “driving”?
What if you were involved in an accident and law enforcement was dispatched to the scene, arriving after the accident?
What if you fell asleep in the car?
What if the motor of the vehicle is running but you have not moved the car?
The courts have held that some movement of the vehicle is required in order to constitute “driving.” And courts have further held that this movement may be proven as well by circumstantial evidence.
"Circumstantial evidence" is any evidence that doesn't directly point to guilt, but can be inferred from the surrounding circumstances.
An Example of “Circumstantial evidence” of driving occurred when the defendant’s vehicle was in "park” with "the brakes ... on," the vehicle was stopped partly on the shoulder of the freeway at an angle with its left rear portion partially intruding into lane. Clearly, this was not a normal parking place or position for a vehicle to be stopped. Furthermore, the defendant was the only occupant in the vehicle, seated in the driver's seat the vehicle belonged to him and at no time did he ever claim that anyone else had driven the vehicle to that location.
On the other hand, in the case of Mitchel S, a case that I successfully defended, my client was asleep in his vehicle, parked in an empty Starbucks parking lot at 4:00 a.m. The windows were rolled up and the engine was running. When police officers arrived and noticed the sole vehicle in the closed Starbucks parking lot, they approached the vehicle and knocked on the window. They had to knock several times to awake my client seated in the driver’s seat.
Upon awaking and rolling down the windows, the officer asked my client if he drove the vehicle to which he responded, “No.” The officer smelled alcohol and immediately began a DUI investigation for which my client was ultimately arrested.
During the pendency of my client’s case it was learned that he had been out with his friends that night, all meeting up at the Starbuck’s initially. My client initially drove his car with his friends to various drinking establishments but at end of the night became too intoxicated to drive home. After unsuccessfully attempting to get a ride for my client they drove his car back to the Starbucks and left him in his car while they drove their own vehicles back home. They did situate my client in the driver’s seat with the engine on to provide heat from the cold weather. My client ultimately fell asleep where his friends left him.
UNDER THE INFLUENCE
According to California Vehicle Code 23152(a) VC, you are "under the influence" when, as a result of drinking alcohol, your physical or mental abilities are impaired so that you can no longer drive as well as a normal cautious sober person under the same or similar circumstances.
In other words, this means that you are DUI under VC 23152(a) if the alcohol in your system has impaired your judgment to the point where you can't drive your car in the same way as someone who is not intoxicated.
VC 23152(a) DUI is considered a somewhat "subjective" standard for determining DUI in that it does not address a specific alcohol level. So, how does a prosecutor attempt to establish the elements of 23152(a) of the Vehicle Code? Let’s look at some of the factors.
This is where the arresting officer’s testimony and report is Key. The Arresting Officer will usually include in his report such things as:
Observations of driving, by the officer who is trained to observe the vehicle in operation and note any initial cues of possible impairment: The symptoms of a driver under the influence vary depending on the person’s reaction to alcohol, but often include:
- Making wide turns
- Erratic braking
- Swerving across lanes
- Driving erratically
- Almost striking an object or another vehicle
- Varying speed
- Driving without headlights at night
- Driving in opposing lanes or wrong way on one way street
- Looking intoxicated
Observations about one’s physical appearance:
- Red and watery eyes
- Slurred speech
- Odor of alcohol emitting from your breath
- "Unsteady gait" (or wobbliness on your feet)
- Disheveled appearance
- Admission of drinking alcohol
Performance on the Field Sobriety Tests, a variety of physical tests including: heel-to-toe, finger-to-nose, one leg stand, alphabet recitations, fingers to thumb…, as to whether they were performed satisfactorily or not as explained and demonstrated by the officer.
While it may seem overwhelming to rebut, when the prosecution relies on the information received from the arresting officer, there can be many plausible explanations, not alcohol related, as to an officers noted observations.
Your attorney, experienced in DUI law can point out that there was “no bad driving” which means that you were not driving in a reckless or dangerous manner. There could have been speeding involved, but not excessively or your vehicle may have only had a broken taillight for instance.
Your attorney can also provide any medical documentation that may contribute or explain symptoms of red and watery eyes, long work hours that may show tiredness and exhaustion or prior sustained injuries enabling poor performance on the field sobriety tests.
There are many factors that could legitimately explain and challenge one’s physical appearance and poor balance that might be misinterpreted as being “under the influence.”
If you were driving under the influence of drugs, you will be charged under Vehicle Code 23152(e) VC, California's DUI of drugs law. This law applies regardless of whether the drugs were illegal, as with driving under the influence of marijuana; prescription, as with driving under the influence of Vicodin; or even over-the-counter.
Vehicle Code section 23152(b), on the other hand, sets forth the "per se" definition of DUI, which in most cases is driving with a blood alcohol content (BAC) of 0.08% or higher.
California Law requires you to take a blood or breath test if ever stopped on suspicion of a DUI.
However, it is not over just because you rendered a chemical test result of .08% or higher.
The law penalizes driving with a BAC of .08% or above, NOT having a Blood Alcohol level over the legal limit of .08%, 1-2 hours later when an officer tests your blood or breath. In fact, in some cases where an accident occurs or a person is discovered after falling asleep in their vehicle, it could be several hours that pass with no certainty as to the time of actual driving.
Because the alcohol that you consume does not absorb into your blood stream immediately, the amount of time that has lapsed between the time you consumed alcohol and the time of your chemical test is critical. It may be as little as 30 minutes to several hours for alcohol to get into your blood stream so depending on how much time has passed, alcohol may still be absorbing in your stomach which means an alcohol level may be higher at the time of the test than at the time of actually driving. If several hours have passed from the time of driving or the time of driving cannot be determined, then calculating blood alcohol level at the time of driving becomes even more challenging, if not impossible.
As well, there are regulations that require the breath machines are tested for accuracy and calibrated after a certain number of days or after a specified number of tests.
If you give a blood sample, the sample must be preserved according to specific rules so that it can be re-analyzed independently as part of your defense.
Additionally, when an alcohol level reads somewhere close to the legal limit of .08 % BAC, a negotiated plea by an attorney may include a reduction to a plea to a “wet or dry reckless” depending on what the blood alcohol level is.
For example, in the case of Nancy P., my client’s alcohol level was .11%. While she was charged with both counts of a DUI, we negotiated a plea to a “wet reckless” charge. The disposition was based partly on the lower alcohol level, however, other mitigating factors that contributed to the resolution was that there was evidence that my client drove the vehicle for only a brief period of time, had no prior criminal record and was in the process of obtaining a County level job that required a driver’s license. All of those factors resulted in a dismissal of her DUI charges. Instead, my client resolved her case with a reduced charge with penalties of a 12 hour alcohol class, minimal fine and 2 years of informal probation.
While every DUI case has different facts and circumstances to it, an individual arrested for a DUI faces a variety of penalties if convicted. However, whether a conviction is for a misdemeanor or felony offense, there are a range of possible severe consequences, including:
Jail or prison time - 0-1 year in jail or up to 3 years in state prison;
A 1st offense conviction does not require mandatory jail time;
A 2nd offense conviction requires a minimum of 4 days in jail;
A 3rd offense conviction requires a minimum of 120 days in jail;
A 4th or subsequent DUI conviction can be a felony that requires a minimum of 180 days in jail or 16 months in state prison;
Alternative sentencing – community service or labor, monitoring device, MADD classes;
Extensive fines - $1,800 -$2,500 fine;
Alcohol treatment programs - 4-30 month alcohol education program;
- Probation - 3-5 years of formal or informal probation;
- Ignition interlock device requirements
- License suspensions or revocations
- Insurance cancellation or increase
- Restitution, if there is an accident.
There are many other variables associated with a DUI conviction that may aggravate a sentence such as if the DUI involves, to name a few:
- Multiple Offenses
- Young children in the vehicle at the time of the incident
Equally as important are some of the collateral life-long consequences of a DUI conviction such as:
- Immigration consequences if it is a Felony or includes travel to Canada
- State Licensing such as nursing, real estate, CPA, doctor….
- Employment which requires Driving a Motor Vehicle
- Entry into the Armed Forces
DMV action is as much as part of a DUI as any CRIMINAL COURT action
When stopped for a DUI, most often, the arresting officer will seize your physical driver’s license and issue to you a notice of suspension. This pink form is your temporary driver’s license from 30 days following your arrest and instructs you on how to request a hearing regarding the suspension of your driver’s license with the DMV. WARNING: YOU HAVE ONLY 10 DAYS FROM THE DATE OF YOUR ARREST TO CONTACT THE DMV AND REQUEST THIS HEARING.
While some defenses were discussed above, there are a multitude of defenses that may be available depending on the facts of any particular case. Some of them include:
- A Lack of probable cause to stop, detain or arrest you
- A Lack of evidence you were driving the vehicle.
- A Lack of proper admonition of choices and consequences of taking a chemical test.
- A Lack of reliable chemical test results.
- A Lack of reliable observations by trained officer or witness.
For many people, being arrested for a DUI is the very first time they are ever being arrested and faced with the criminal justice system. A conviction for a DUI can bring the harshest of penalties, adversely affecting every area of your life. But as discussed, DUI charges can be successfully defended whether it is to attack the administration of field sobriety tests, a proper admonishment of your choice of chemical test or possibly the identity of the driver of the vehicle in cases where there was an accident.
It is critical to get Michele on board to discuss the facts of your case, consequences you might be facing, scheduling of your DMV hearing, laying out the investigation necessary beyond the initial police report, strategy employed once your case is filed in court and guidance to navigate through the DMV administrative proceedings and criminal process. Since DUI cases are unique, they require a knowledgeable and skilled defense attorney like Michele. Her DUI experience over the years and professional relationships within the courts will bring a sense of comfort and security to you. Call DUI and defense attorney Michele Ferroni at (818) 203-8300 to discuss in detail the facts of your case and the viable options that you have.