Driving Under the Influence ("DUI") Overview

Driving Under The Influence ("DUI") is a very common criminal charge in California.  Most everyone knows someone who has been charged with DUI.

A DUI charge is very disturbing for most people because they did not feel intoxicated or impaired at the time of their DUI arrest.  They are often shocked and frankly angry after reading a police officer's report stating that they exhibited signs of intoxication such as poor balance and coordination, slurred speech, difficulty counting and watery or bloodshot eyes. 

Most people arrested for DUI take a breath or blood test to measure their Blood Alcohol Concentration ("BAC").  BAC simply means the concentration of alcohol in a person's blood.  Under California law, if you have a BAC of at least .08% at the time of driving, you are presumed to be DUI.  This presumption is often false, and must be vigorously and aggressively challenged to beat a DUI charge.

DUI is an area of criminal law that requires highly specified expertise regarding DUI laws and how to challenge DUI charges.  DUI cases often contain many holes to challenge a DUI charge, from simple mistakes on a police report, false police assertions that an arrestee failed his field sobriety tests, to complex scientific analysis of chemical tests to prove that a person was not intoxicated or impaired at the time of driving.

This section is intended as a general overview of many aspects of DUI charges, however, it should not be considered a substitute for speaking with an experienced DUI attorney at the Weinrieb Law Firm regarding the specific facts of your DUI case.  Because each DUI case is different, you need and deserve individualized and personalized DUI representation.

This section addresses the following aspects of DUI charges.  Clicking on the links below will direct you to your particular area of inquiry and interest.

California Vehicle Code Sections 23152(a) and 23152(b)
Punishments For Misdemeanor Convictions Under Vehicle Code Section 23152(a) and/or 23152(b)
California Vehicle Code Section 23153
Punishment, Penalties and Sentences For Convictions Under California Vehicle Code Section 23153
California DUI Charges: Charge Reductions And Plea Bargains
DUI Chemical Test "Refusal" Cases
Minors Under 21 Charge Charged With DUI
DUI Murder: Second Degree "Watson Murder"
California Penal Code Section 191.5 (a) – Gross Vehicular Manslaughter While Intoxicated
California Penal Code Section 191.5 (b) – Vehicular Manslaughter While Intoxicated
California Vehicle Code Section 23152(a) – DUI Of Drugs
Felony DUI Charges
Negligent Operator Charges

California Vehicle Code Sections 23152(a) and 23152(b)

Most people arrested for Driving Under the Influence ("DUI") are charged with two separate offenses:

In order to understand these DUI charges, it is necessary to understand how these sections are different, but also work together, and possible defenses to each of these DUI charges. 

California Vehicle Code Section 23152(a)

VC § 23152(a) is charged when there exists probable cause to believe that you have alcohol and/or drugs in your system and that your driving is impaired due the alcohol and/or drugs.

Importantly, unlike VC § 23152(b), discussed below, you can be charged and found guilty of violating VC § 232152(a) even if you do not have a Blood Alcohol Concentration ("BAC") of .08% or greater.

If your BAC is not .08% of greater, and you are charged with DUI under VC § 23152(a), the prosecutor will generally try to prove that you were driving under the influence of alcohol and/or drugs with the following evidence:

  • Physical Appearance – While it is often false, police officers nearly always report that a DUI arrestee exhibited the following DUI symptoms:
    • Slurred speech
    • Odor of alcohol on the breath
    • Red and watery eyes
    • An "unsteady gait" (an unsteady walk for example)
  • Poor Performance On Field Sobriety Tests ("FSTs") – FSTs are exercises that police officers use to evaluate a person's balance, coordination and attention.  If you were arrested for DUI you almost certainly took one or more FSTs.  As with physical appearance, police officers, even when it is not true, almost always report that a DUI arrestee performed poorly on one or more FSTs.  Common FSTs include:
    • One-Leg Stand Test
    • Walk-and-Turn Test
    • Horizontal Gaze Nystagmus (HGN)
    • Rhomberg Test (the officer instructs you to close your eyes, tilt back your head, and estimate the passage of 30 seconds)
    • Finger-to-Nose Test
    • Finger Count Test
  • BAC Measurement – Even if your BAC is less than .08% (the minimum BAC to be charged under VC § 23152(b)), your BAC can still be used to charge you with DUI.  For example, your breath test results may show a BAC of only .04%.  However, if the police officer also reports, as they most always do, that other factors indicate that you were DUI – such as slurred speech or poor FST performance – you can be arrested for DUI and charged under VC § 23152(a).

California Vehicle Code Section 23152(b)

Vehicle Code § 23152(b) is the second DUI charge that most people arrested for DUI are charged with. 

VC § 23152(b), often referred to as California's DUI "per se rule", makes it illegal to drive with a BAC of .08% or greater.  If at the time of your breath or blood test your BAC is measured at.08% or greater, you will be charged with violating VC § 23152(b). 

Furthermore, under California's "three hour presumption" rule, if your BAC is measured at 08% or greater within 3 hours of driving, you are presumed to have had at BAC of at least .08% at the time of driving, thereby violating VC § 23152(b). 

Defenses To DUI Charges Under California Vehicle Code Sections 23152(a) and 23152(b)

There are many potential defenses to DUI charges, including in cases with BAC results of .08% or more.  You should never assume that a DUI charge cannot be challenged, reduced, dismissed or even defeated at trial. 

The skilled DUI attorneys at the Weinrieb Law Firm will thoroughly analyze the facts and details of your case to pinpoint every possible defense to a charge that you were driving under the influence.

DUI Defenses

There are many potential defenses to a DUI charge.  Successful defenses to a DUI charge may include the following:

  • No Probable Cause To Pull You Over – The officer did not have a reasonable basis to believe that you had violated any law that would allow him to lawfully stop you.  . 
  • "Bad Driving" Does Note Mean You Were DUI – When you were pulled over perhaps you were grabbing your coffee, talking on your phone or were otherwise distracted.  These are just examples of the many things that could cause "bad driving" having nothing to do with DUI.
  • "Signs Of Impairment" Are Not Necessarily Proof Of DUI – DUI reports nearly always state that the arrestee showed signs of impairment such as red and watery eyes, an "unsteady gait," the smell of alcohol, and slurred speech.  Not only are these accusations often false, but there are often explanations for these "signs of impairment" having nothing to do with alcohol.  For example, people often experience difficulty standing or balancing perfectly because of an injury, clothing (high heels) or due to an uneven surface (an uneven or cracked roadway).  These are just a few of the many possible non-alcohol related explanations for alleged "signs of impairment."
  • You Did Not Fail Your FSTs – DUI Police Reports almost always state that you failed some or all of your FSTs.  There are many defenses to show that you did not fail your FSTs and actually performed in a manner evidencing no sign of alcohol or drug impairment.
  • Challenging Breath And Blood Test Results (Challenging BAC Results) – Contrary to common belief, there are numerous ways to challenge BAC test results.  These include:
    • Tainted breath Samples – If, for example, you had a drink shortly before being breath tested, the alcohol you ingested may still reside predominately in your mouth.  Mouth BAC does not prove DUI.  What is important to a DUI charge is measuring the amount of alcohol in your deep lung tissue, not in your mouth. When mouth alcohol is present, it is far more difficult for a breath machine to measure deep lung air which is the important measurement for DUI purposes.  
    • The Breath Testing Instrument Was Improperly Maintained Or Calibrated – Breath test machines must, by law, be regularly serviced and checked for proper calibration.  You are entitled to review these maintenance and accuracy records.  Such records may show that the breath machine is giving readings that are too high.  Even if the readings are off by .01%, this could be critical in finding you not guilty of DUI.  For example, if your BAC is measured as .08%, but records show that the breath machine is off by .01%, your actual BAC could be .07% which precludes a DUI conviction under Vehicle Code § 23152(b)
    • Retesting Your Blood – The police department's blood test may give an inaccurate BAC reading.  You have a right to have a sample of your blood maintained, and to have it retested by an independent lab.  In certain cases, independent tests will show that the police department's BAC test results were inaccurate and too high.  Even slightly elevated BAC blood test results can be critical in finding you not guilty of DUI.
  • Rising Blood Alcohol Defense – The critical question for a VC § 23152(b) DUI charge is whether you had a BAC of  at least .08% or more at the time of driving.  If, for example, your BAC was measured at .08% 45 minutes after you were pulled over, your BAC at the time of driving was potentially less than .08% because your BAC was rising between the time you were pulled over and the time you arrived at the police station and were tested.  This is called the "Rising Blood Alcohol Defense." 

  • The Police Officer Did Not Comply With Title 17 – Title 17 is the law that requires police officers to follow very specific procedures when making a DUI arrest, such as monitoring you for 15 minutes before administering a breath test and filling out DUI arrest reports with accuracy.  Police officers often times fail to comply with these Title 17 requirements which can result in the dismissal or reduction of your DUI charge.

Punishments For Misdemeanor Convictions Under Vehicle Code Section 23152(a) and/or 23152(b)

If you are convicted of misdemeanor DUI under Vehicle Code §§ 23152(a) and/or 23152(b), there are a wide variety of potential penalties and punishments.  These penalties and punishments will almost always increase for a second or third misdemeanor DUI conviction.  If you are charged with felony DUI your punishment may be significantly increased, including imprisonment in the state prison. 

In addition to any court punishment, the DMV in any DUI case may take separate action against your driving privilege, including suspending or restricting your right to drive.

Beginning July 1, 2010, drivers convicted of a DUI offense in Los Angeles County must install an ignition interlock device on any vehicle they operate.

First DUI Misdemeanor Punishments – Punishments for a first misdemeanor DUI conviction may include:

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • Up to six months in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • A 3 or 9 month alcohol education program, depending on your BAC.
  • A 6 to 10 month driver's license suspension, however, a restricted driver's license may be obtained after a portion of the suspension period.  This license suspension may be separate from any driver's license suspension or restriction by the DMV. 

Second DUI Misdemeanor Punishments – Punishments for second misdemeanor DUI conviction can include:

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • A minimum of 96 hours to up to 1 year in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • An 18 or 30 month alcohol education program, depending on your BAC 
  • A 2 year driver's license suspension, however, a restricted driver's license may be obtained after a portion of the suspension period.  This license suspension may be separate from any driver's license suspension or restriction by the DMV. 

Third DUI Misdemeanor Punishments – Punishments for a third misdemeanor DUI can include:

  • Informal probation for 3 to 5 years (this means you are on probation by the court and do not have to check in with a probation officer)
  • A minimum of 120 days to up to one 1 year in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • A 30 month alcohol education program.
  • A 3 year driver's license suspension, however, a restricted driver's license may be obtained after a portion of the suspension period.  This license suspension may be separate from any driver's license suspension or restriction by the DMV. 
  • Designation as a Habitual Traffic Offender by the DMV.

Fourth DUI Misdemeanor Punishments – Punishments for a fourth misdemeanor DUI conviction can include (NOTE: in most cases a fourth DUI is charged as a felony and is subject to felony DUI punishments):

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • A minimum of 180 days to up to 1 year in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • A 30 month alcohol education program.
  • A 4 year driver's license suspension, a restricted driver's license may be obtained after a portion of the suspension period.  This license suspension may be separate from any driver's license suspension or restriction by the DMV. 
  • Designation as a Habitual Traffic Offender by the DMV.

California DUI Schools

Anyone convicted of a DUI, and certain people convicted of the reduced charge of a Wet Reckless, must enroll in a DUI school within 21 days of sentencing, and complete DUI school within the time period ordered by the Court.

DUI School varies in length depending on the severity of the DUI conviction.

There are four basic DUI programs offered in California.

  • 3 Month First DUI Offender Program – This is the most common DUI school for a first time DUI conviction with a BAC of less than .20%
  • 9 Month First DUI Offender Program – If a first time offender has a BAC of .20% or greater; a refusal; or a wet reckless conviction with a prior wet reckless or DUI within 10 years, the court will typically require a 9 month first offender program.
  • 18 Month Second DUI Offender Program – The 18 month program is required for most second time DUI offenders.
  • 30 Month Multiple DUI Offender Program – The 30 month program is often required for a second DUI with a very high BAC or if you have two or more prior DUI convictions.

Proof of completion of a DUI Program is required to regain full driving privileges

You must show proof of completion of your DUI Program to both the Court and the DMV to regain an unrestricted license to drive in California.

Finding a DUI School in your area

The following website contains a list of local DUI Schools.  http://www.adp.ca.gov/Criminal_Justice/DUI/pdf/DUI_dir.pdf

California Vehicle Code Section 23153

California Vehicle Code § 23153, commonly referred to as "DUI with Injury", is typically charged in cases of DUI causing injury to another person. 

VC § 23153 is a "wobbler," meaning that it can be charged as a misdemeanor or a felony.  The prosecutor will make this decision based on the particular circumstances of the case, such as your Blood Alcohol Concentration ("BAC"), seriousness of the injuries, and prior criminal history, particularly any prior DUI convictions.

What The Prosecutor Must Prove To Convict You Under VC Section 23153

A finding of guilt under VC § 23153 requires the prosecutor to prove the following:

  • You drove while under the influence of drugs and/or alcohol;
  • While driving you broke a law – in addition to driving under the influence – such as speeding, or you acted in a negligent manner while driving; and
  • Your unlawful act or negligence caused the injury to another person.  This means that even if you were DUI and acted negligently, you cannot be convicted under VC § 23153 if you did not cause the injury.  For example, if the injured party ran a red light and hit you it is unlikely that you caused the accident and injury even if you were DUI

Defenses To DUI Charges Under California Vehicle Code Section 23153

Like a non-injury DUI charge under Vehicle Code § 23152, there are many potential defenses to a charge of "DUI with Injury" under VC Section 23153.  the Weinrieb Law Firm will conduct a detailed, individualized analysis of your case to determine every possible defense to your DUI with Injury charge. 

Potential defenses to a DUI with Injury charge including the following: .

  • Defenses available in a non-injury DUI prosecution under Vehicle Code § 23152.
  • No causation – Because a conviction under VC § 23153 requires proof that you caused the injury to another person, evidence that you did not cause the accident and injury, even if you were DUI, is critical to overcoming a VC § 23153 charge.  Proof that you did not cause the accident or injury may require significant investigation into the accident and support by an accident reconstruction expert.  

Punishment, Penalties and Sentences For Convictions Under California Vehicle Code Section 23153

Punishment for violating VC § 23153 significantly depends on if the crime is charged as a misdemeanor or a felony.  Potential punishments for misdemeanor or felony VC § 23153 convictions are as follows:

Misdemeanor DUI with Injury

Punishments for a misdemeanor DUI with Injury can include:

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • 5 days to 1 year in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • A 3 or 9 month alcohol education program, depending on your BAC.
  • A 1 year driver's license suspension.  This action on your driver's license may be separate from any action on your driver's license taken by the DMV.  . 
  • Restitution to any injured parties

Felony DUI with Injury

Punishments for Felony DUI with Injury can include:

  • 16 months to 4 years in state prison, plus the following potential prison enhancements:
    • 3 to 6 years if any victim suffers great bodily injury
    • 1 additional year for each additional person that suffers any injury, up to a maximum of 3 years. 
  • A "strike" on your criminal record under California's Three Strikes Law if anyone other than you suffers great bodily injury
  • 5 days to 1 year in county jail
  • Between $1,015-$5,000 in fines, plus mandatory court ordered penalty assessments
  • Habitual Traffic Offender status for three years
  • 5 year California driver's license revocation.  This license suspension may be separate from any driver's license suspension or restriction by the DMV. 
Restitution to any injured parties

California DUI Charges: Charge Reductions And Plea Bargains

In some DUI cases, typically after significant negotiations with the prosecutor evidencing the weaknesses the prosecution's DUI case, the prosecutor may offer to reduce your DUI charge under California Vehicle Code Sections 23152(a) and/or 23152(b) to some lesser driving-related offense.  This is called a plea bargain.

The three most common charge reductions offered in DUI prosecutions are:

If the prosecutor offers a charge reduction in your DUI case, you should consult with your lawyer and determine if you want to plead guilty or no contest to the new charge, or, alternatively, proceed to trial on the DUI charge.

Wet Reckless – California Vehicle Code Section 23103.5

A "Wet Reckless" – Reckless Driving Involving Alcohol – is generally the first DUI charge reduction that a prosecutor may consider when he is aware of potential flaws and weaknesses in your DUI case. 

A wet reckless has some clear advantages over a DUI conviction, but in some ways a wet reckless conviction and a DUI conviction are treated the same and there is no advantage to a wet reckless. 

The Advantages Of A Wet Reckless Over A DUI Conviction

The advantages of a wet reckless over a DUI conviction include:

  • No mandatory California driver's license suspension – A first time misdemeanor DUI conviction results in a mandatory six-month driver's license suspension.  This suspension is not mandatory (though it may be imposed) if convicted of a wet reckless.
  • A prior DUI or wet reckless conviction does not automatically increase your punishment if you are convicted of a wet reckless – Compare this to a DUI conviction.  If you are convicted of a DUI and have a prior DUI or wet reckless conviction within the previous ten years, your punishment, including your driver's license suspension and jail time, automatically increases.
  • Decreased fine – A fine for a wet reckless conviction is typically one-half of the fine for a DUI conviction.
  • Shorter Alcohol Program – While the court may choose not to order an alcohol class, if it does, it can order a shorter class than the minimum 12 week DUI class
  • Shorter jail sentence – A wet reckless carries a maximum jail sentence of 90 days.  A first misdemeanor DUI carries a jail sentence of up to 180 days.
  • Shorter Probation – Informal probation for a wet reckless usually lasts no more than 2 years.  A first misdemeanor DUI conviction carries probation of 3 to 5 years. 

The Ways In Which A Wet Reckless Conviction Is The Same As A DUI Conviction

  • Priorability – Most importantly, a wet reckless is treated exactly the same as a DUI if you are convicted of another DUI.  Just like a prior DUI, a prior wet reckless conviction always increases the punishment for a later DUI conviction, such as a longer license suspension and longer jail time,

Dry Reckless – California Vehicle Code Section 23103

A prosecutor may offer you a "Dry Reckless" – Reckless Driving – when he is convinced that your DUI charge has significant flaws, such as a low BAC and average FST results, and he is not confident that he will succeed at trial.

The Advantages Of A Dry Reckless Over A DUI Conviction

The advantages of a Dry Reckless over a DUI conviction include all of the same benefits of a wet reckless, discussed above, as well the following significant advantage:

  • A Dry Reckless is not considered a "Prior Conviction" for DUI purposes – Unlike a prior DUI or wet reckless conviction which automatically increase your punishment if you are convicted of another DUI, a dry reckless conviction is not considered a "prior conviction" for DUI purposes, and it will not automatically increase your punishment if you are later convicted of a DUI.  

California Vehicle Code Section 23109 – "Speed Ex" (Exhibition of Speed)

Should the prosecutor offer you a DUI charge reduction even below a Dry Reckless, it will likely be for Exhibition of Speed ("Speed Ex"), a violation of Vehicle Code 23109(c).  A Speed Ex offer is usually only made when the prosecutor views his or her case as highly flawed and highly unlikely to succeed at trial. 

Exhibition of Speed is a reduced misdemeanor offense generally with a shorter probation period – 1 to 2 years, not three 3 to 5 like a DUI – and smaller fines – a Speed Ex has a maximum fine of $500.

While it is highly unlikely that you would serve any jail time if convicted of a Sped Ex, the maximum jail time is 90 days, verses a DUI which permits up to180 days on a first DUI.

Most importantly, a Speed Ex, unlike a DUI or wet reckless, is not a "prior offense" for DUI purposes.  If you are a convicted of a DUI after you are convicted of a Sped Ex, your DUI punishment will not be increased because of your prior Sped Ex conviction.
DMV Hearings In DUI Cases

One of the most unique things about DUI cases is that someone facing a DUI charge must answer to both the criminal court and the California DMV.  The DMV, like the court, has power to suspend and restrict your driving privileges.  Sometimes license suspensions ordered by the DMV overlap with those ordered by the Court.  In other cases, however, they do not. 

The relationship between court and DMV proceedings in a DUI case can be very complex and confusing.  At the Weinrieb Law Firm, we will handle your DUI case from start to finish, including all DMV proceedings, so that you receive careful, individualized representation during all stages of your DUI case.

You Must Request A DMV Hearing Within 10 Days Of Your DUI Arrest Or Your License Will Be Suspended

You have 10 days from the date of your arrest to request a DMV hearing.  This 10 day period is printed on the "Notice of Suspension" a person receives when arrested for DUI.  If you do not request a DMV hearing within this 10 day period, the DMV will automatically suspended your license for 4 months for a first DUI, and for to up to 3 years based on prior offenses or multiple chemical test refusal convictions.

In some instances, such as first DUI, you may be able to obtain a restricted license from the DMV after 1 month of suspension.  In other instances, however, you will be ineligible for a restricted license and will loose your license for the entire suspension period.

The DMV Will Suspend Your License If It Determines That You Were Lawfully Stopped, Arrested, And Were Driving With A BAC Of .08% Or Greater

A DMV hearing can occur over the phone or in-person at one of the DMV Driver's Safety Offices (http://www.dmv.ca.gov/fo/dsolistings.htm).  There is no "judge" at a DMV hearing.  A DMV Hearing Officer presides over the hearing.  You are allowed to present your side of the story by testifying, presenting documents and other evidence for the Hearing Officer to evaluate, calling witnesses and experts to testify, and by cross-examining the police officer(s) that arrested you.

The DMV Hearing Officer considers only three things in determining whether to suspend your driving privileges:

  • Did the arresting officer have a reasonable belief that you were driving a motor vehicle?
  • Were you lawfully arrested? (did the arresting officer comply with the constitutional requirements for a lawful arrest)
  • Were you driving with a BAC of at least .08%?

If the DMV Officer determines that the answer to each of these questions is "Yes," the DMV will suspend your license for some length of time depending on your particular DUI offense. 

In Most Cases The Deciding Issue For The DMV Hearing Is Whether You Were Driving With A BAC Of .08% Or Greater.

In most cases, whether a DMV Hearing Officer suspends your license depends on the third factor – if you were driving with a BAC of at least .08%.  Many of the same defenses applicable in court to challenge a .08% BAC allegation can be used to challenge at .08% BAC determination at the DMV Hearing, though you may need to be support them with expert testimony. 

Defenses at a DMV Hearing to challenge a .08% or greater BAC allegation may include:

  • Tainted Breath Samples – If, for example, you had a drink shortly before being breath tested, the alcohol you ingested may still be residing largely in your mouth.  Mouth BAC does not prove DUI.  What is important to a DUI charge is measuring the amount of alcohol in your deep lung tissue, not in your mouth. When mouth alcohol is present, it becomes far more difficult for a breath machine to measure deep lung air which is the critical test for DUI purposes.  
  • The Breath Testing Instrument Was Improperly Maintained Or Calibrated – Breath test machines must, by law, be regularly serviced and checked for proper calibration.  You are entitled to review these maintenance and accuracy records.  Such records may show that the breath machine is giving readings that are too high.  Even if the readings are off by .01%, this could be critical in finding you not guilty of DUI.  For example, if your BAC is measured as .08%, but records show that the machine is off by .01%, your actual BAC could be .07% which precludes a DUI conviction under Vehicle Code § 23152(b)
  • Retesting Your Blood – The police department's blood test may give an inaccurate BAC reading.  You have a right to have a sample of your blood maintained, and to have it retested by an independent lab.  In certain cases, independent tests will show that the police department's BAC test results were inaccurate and too high.  Even slightly elevated BAC blood test results can be critical in finding you not guilty of DUI.
  • Rising Blood Alcohol Defense – The critical question for a VC § 23152(b) DUI charge is whether you had a BAC of  at least .08% or more at the time of driving.  If, for example, your BAC was measured at .08% 45 minutes after you were pulled over, your BAC at the time of driving was potentially less than .08% because your BAC was rising between the time you were pulled over and the time you arrived at the police station and were tested.  This is called the "Rising Blood Alcohol Defense." 
  • The Police Officer Did Not Comply With Title 17 – Title 17 is the law that requires police officers to follow very specific procedures when making a DUI arrest, such as monitoring you for 15 minutes before administering a breath test and filling out DUI arrest reports with accuracy.  Police officers sometimes fail to comply with these Title 17 requirements which can result in the dismissal or reduction of your DUI charge.

DUI Chemical Test "Refusal" Cases

California has what is called an "implied consent" law.  This means that if you choose to drive a motor vehicle in California, you are considered to have given your "consent" to submitting to a chemical test – a blood, breath or (in limited circumstances) a urine test – if you are lawfully arrested for Driving Under the Influence ("DUI"). 

If you are arrested for DUI, and refuse to take chemical test, you will be charged with DUI and will likely face stiffer DUI penalties from the court and DMV due to your refusal. 

What Qualifies As A DUI Refusal

What constitutes a DUI "refusal"?  This is almost always the contested issue in a DUI refusal case.  The police and prosecutor will allege that you "refused" to take a chemical test, whereas you contend that you did not "refuse", and the police officer's instructions were either unclear or he did not allow you a fair chance to complete a chemical test. 

The following important rules generally apply to "refusal" cases":

  • Once you refuse you don't get a second chance to submit to a chemical test – If you first refuse to take a chemical test, but then change your mind, this is still a "refusal."  The fact that you changed your mind may not matter.  While a nice officer may give you a second chance, he does not have to, and your initial refusal is all he needs to say that you refused a chemical test.
  • The officer may require you to take a particular chemical test – With some exceptions, an officer can require you to take a particular chemical test.  For example, if you choose to take a breath test instead of a blood test, but the officer reasonably determines that the breath test is inconclusive as to your BAC, he can require you to submit to another chemical test (blood or, in some cases, urine).  If you refuse to submit to this second chemical test, this may be considered a "refusal." 
  • Failing to complete a chemical test is treated the same as a refusal – If you agree to submit to a chemical test, but then fail to complete the test, this can be treated as a "refusal."  A common example is when an arrestee submits to a breath test but cannot blow hard enough to obtain an accurate BAC reading.  If, however, it can be shown that your failure to complete the chemical test was not "purposeful," or was truly beyond your control, there is a much stronger argument that you failure to complete the test was not equivalent to a refusal.

Defenses In DUI Refusal Cases

Defending a DUI Refusal case is both similar and different to defending a regular (non-refusal) DUI charge.  The primary difference is that there are no chemical test results, like breath or blood BAC results, to challenge.  However, there are other potentially strong defenses which may apply in a refusal case:

  • The police officer confused or mislead you about your obligation to submit to a chemical test – As often happens, a police officer may cause you real confusion about your obligation to submit to a chemical test.  If you refuse to take a chemical test because the officer failed to warn you that cannot refuse, or failed to explain the consequences of refusing, there cannot be a refusal.
  • You were not DUI – Even in a refusal case, to convict you the prosecutor must still prove that you were DUI.  This is often much harder for the prosecutor to do without chemical evidence.
  • No probable cause to arrest you – If the police officer lacked probable or reasonable cause to initially stop you, or to arrest you for DUI, you cannot be convicted of DUI even in a refusal case. 

Court And DMV Punishments In A DUI Refusal Case

  • Court Punishments – If you are convicted of DUI with a refusal the court may order a longer driver's license suspension (for example, 10 months instead of 6 months) and a longer alcohol class (9 months instead of 3 months).  In other refusal cases, the Court may convict you of a DUI but strike the refusal enhancement.  Or, where there is weak evidence of DUI, the court may greatly reduce or even dismiss the charge.
  • DMV Punishments – The DMV imposes much stricter license suspensions if it determines that the arresting officer informed you about the consequences of a refusal and you refused.  If the DMV finds that you were lawfully arrested, warned about a refusal and refused, it will order:
    • One year complete license suspension for a first DUI
    • Two year complete license suspension for a second DUI
    • Three year complete license suspension for a third DUI

In a DUI refusal case, it is therefore critical to have expert legal representation both in court and at the DMV DUI Refusal hearing.

Minors Under 21 Charge Charged With DUI

California has a DUI "zero tolerance law" for drivers under 21.  If you are under 21 and found driving with even a BAC of .01% there are three possible offenses you may be charged with: 

  • California Vehicle Code Section 23136
  • California Vehicle Code Section 23140
  • California Vehicle Code Section 23152

California Vehicle Code Section 23136 – Under 21 driving with a BAC of .01% or greater

VC § 23136 is a civil offense, not a criminal offense.  If a person under 21 is found driving with a BAC of .01% or greater they can be charged with this civil offense.  It is irrelevant if they were DUI or showed objective signs of intoxication.  This is the strict "zero tolerance law."

Civil punishments for violating VC § 23136 depend on if the minor submits, or refuses to submit, to a blood test.

  • Punishment if the minor submits to a chemical test and has a BAC of .01% or greater – The penalty is a 1 year driver's license suspension or, if the minor is not yet licensed, a 1 year delay in their ability to get a California driver's license.
  • Punishment if the minor refuses to submit to a chemical test – The penalty is a 1 to 3 year driver's license suspension depending on how many prior violations of VC § 23136 they have.

California Vehicle Code Section 23140 – Under 21 driving with a BAC of .05% - .07%. 

A violation of VC 23140 is an infraction punishable as follows:

  • Fines:
    • First conviction – $100
    • Second conviction within 1 year – $200
    • Third conviction within 1 year – $300
  • Suspension of the minor's driving privilege and completion of an alcohol program
    • One year driver's license suspension
    • Three month alcohol program
  • Hospital and Morgue program – The minor may be required to visit a morgue, an emergency room or to observe DUI victims to witness the potentially serious consequences of DUI.

California Vehicle Code Section 23152

VC § 23152 is California's basic misdemeanor DUI statute.  If a person under 21 is found in violation of VC § 23152(a) and/or 23152(b) they can be convicted of misdemeanor DUI just like a person 21 or older.

Punishments for a first violation of VC § 23152 can include:

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • Up to six months in county jail
  • Between $390-$1000 in fines, plus mandatory court ordered penalty assessments
  • Community service or Caltrans
  • A 3 or 9 month alcohol education program, depending on BAC.
A 6 to 10 month driver's license suspension, however, you can immediately apply for a restricted license for driving to work and school.  This license suspension may be separate from any driver's license suspension or restriction by the DMV.

DUI Murder: Second Degree "Watson Murder"

The most serious DUI charge is called a "Watson Murder," which is punished as a second degree murder under California law (Penal Code 187).  Second degree murder carries a sentence of 15 years to life in prison. 

As discussed below, to be convicted of a Watson Murder, the prosecutor must prove not only that you were DUI and caused the death of another person, but that you acted with "implied malice".  "Implied Malice means" that you acted with a conscious disregard for human life.  It does not mean that you intended to kill another person.

"Implied Malice" is considered even more of a conscious disregard for human life than "gross negligence" which is required to convict a person of DUI Gross Vehicular Manslaughter. 

Watson Murder Tends To Be Charged If A Person Has Multiple Prior DUI Convictions

When a person is convicted of a DUI the Judge gives them a "Watson Advisement."  The "Watson Advisement" warns that person that DUI is extremely dangerous to human life and if you kill someone while DUI you can be charged with murder.  The "Watson Advisement" puts someone convicted of DUI on notice that DUI could result in a murder charge.  This warning and notice is critical to finding "implied malice."

To Convict Someone Of DUI Second Degree Watson Murder It Must Be proven That:

  • A person is DUI in violation of California Vehicle Code § 23152 or California Vehicle § 23153
  • Anther person was killed
  • The death resulted from an intentional act
  • The natural consequences of the act are dangerous to human life
  • The person acted with "implied malice" – a conscious disregard that the consequences of that person's actions are dangerous to human life.

Proving Implied Malice
Prosecutors often seek to prove "implied malice" based on the following factors:

  • Multiple prior DUI convictions with Watson Advisements
  • An intent to drive before drinking – For example, a person heads to a bar with friends to drink knowing that he will most likely be driving home
  • A very high BAC
  • Very reckless driving.

Challenging A Watson Murder Charge
Challenges to a "Watson Murder" charge include:

  • Proof that you were not DUI – If you were not DUI then you cannot be convicted of DUI murder.  To prove that you were not DUI, you could assert potential defenses to a standard DUI charge under VC Section 23152, including challenging blood or breath BAC test results.
  • No Watson Advisement – You never received a Watson Advisement for a prior DUI or never completed a DUI class where Watson Murder was discussed
  • No Causation – You cannot be convicted of Watson Murder if proven that your conduct was not the substantial cause of the death of another person.  For example, if the driver killed ran a red light and hit you, you may not have "caused" that person's death and cannot be guilty of DUI Murder.

Watson Murder Punishment – Second Degree Murder

Second degree murder carries a sentence of 15 years to life in state prison (California Penal Code Section 187)

California Penal Code Section 191.5 (a) – Gross Vehicular Manslaughter While Intoxicated

California Penal Code Section 191.5(a), Gross Vehicular Manslaughter While Intoxicated – sometimes called "Gross Vehicular Manslaughter While DUI" – is a felony charged when:

  • A person is Driving Under the Influence ("DUI") in violation of California Vehicle Code § 23152 or California Vehicle Code § 23153;
  • The person acted with "gross negligence."  This means that while DUI the person committed some "grossly negligent" act.  An act is "grossly negligent" when it displays a reckless disregard for human life – acting in a reckless manner that creates a high risk of death or great bodily injury that a reasonable person would have been aware of.  Common examples of "grossly negligent" conduct would be excessive speeding or high speed street racing;
  • The person's "gross negligence" caused the death of another person.

Challenging a Gross Vehicular Manslaughter While Intoxicated Charge

Defenses to charges of Gross Vehicular Manslaughter may include:

  • Proof that you were not DUI – If you were not DUI then you cannot be convicted of DUI murder.  To prove that you were not DUI, you could assert potential defenses to a standard DUI charge under VC Section 23152, including challenging blood or breath BAC test results.
  • Proof that your conduct was not "grossly negligent" – There is sometimes a clear, but often a foggy distinction between conduct that is "grossly negligent" and conduct that is "negligent" but does not evidence a reckless disregard for human life.  If your conduct was simply "negligent" – you did not act how a reasonably careful person would have acted in a situation – but not "grossly negligent," you are not guilty of Gross Vehicular Manslaughter While Intoxicated.
  • No Causation – You cannot be convicted of Watson Murder if proven that your conduct was not the substantial cause of the death of another person.  For example, if the driver killed ran a red light and hit you, you may not have "caused" that person's death and cannot be guilty of DUI Murder.

Punishment, Penalties and Sentences For A Conviction Of Gross Vehicular Manslaughter While Intoxicated.

Gross Vehicular Manslaughter While DUI is a serious felony offense.  Depending on the specific facts of the case, a person convicted of Gross Vehicular Manslaughter While Intoxicated may be sentenced to state prison for 4, 6, 10 to 15 years to life (with certain prior convictions.  A prison sentence may be increased if there are any surviving but injured victims.  This serious felony may be a strike on your record under California's Three Strikes Law.

California Penal Code Section 191.5 (b) – Vehicular Manslaughter While Intoxicated

California Penal Code Section 191.5(b), Vehicular Manslaughter While Intoxicated, is charged when a person is Driving Under the Influence ("DUI") and they commit a "negligent" act that causes the death of another person.  Vehicular Manslaughter While Intoxicated is a "wobbler"  Depending on the facts of the case, Vehicular Manslaughter While Intoxicated may be charged as either a misdemeanor or, when the defendant's conduct is more egregious, as a felony. 

Vehicular Manslaughter While Intoxicated must be distinguished from the charge of Gross Vehicular Manslaughter While Intoxicated under California Penal Code §191.5 (a). 

Vehicular Manslaughter While Intoxicated requires a person to have acted with "ordinary negligence." "Ordinary negligence" means that, while DUI, the person committed some act that a "reasonably careful or prudent person would not have committed in the same situation."  For example, talking on a hand held cell phone while driving in rush hour traffic. 

By comparison, the enhanced charge of Gross Vehicular Manslaughter While Intoxicated requires that while DUI, the person committed some act with "Gross Negligence".  An act is "grossly negligent" when it displays a reckless disregard for human life – acting in a reckless manner that creates a high risk of death or great bodily injury that a reasonable person would have been aware of.  For example, excessive speeding or street racing.

To Convict A Person Of Vehicular Manslaughter While Intoxicated It Must Be Proven That:

  • The person was DUI in violation of California Vehicle Code § 23152 or California Vehicle Code § 23153;
  • The person committed a "negligent act," meaning that the person committed some act that a "reasonably careful or prudent person would not have committed in the same situation; and
  • The person's "negligent act" caused the death of another person.

Challenging a Vehicular Manslaughter While Intoxicated Charge

Defenses to a Vehicular Manslaughter While Intoxicated charge may include:

  • Proof that you were not DUI – If you were not DUI then you cannot be convicted of DUI murder.  To prove that you were not DUI, you could assert potential defenses to a standard DUI charge under VC Section 23152, including challenging blood or breath BAC test results.
  • Insufficient proof of "Negligence" – Proof that your conduct did not rise to the level of "negligence" required for a conviction.
  • No Causation – You cannot be convicted of Watson Murder if proven that your conduct was not the substantial cause of the death of another person.  For example, if the driver killed ran a red light and hit you, you may not have "caused" that person's death and cannot be guilty of DUI Murder.

Misdemeanor and Felony Punishment, Penalties and Sentences For A Conviction Of Vehicular Manslaughter While Intoxicated.

Misdemeanor Punishment
If charged as a misdemeanor, Vehicular Manslaughter While Intoxicated can be punished by 3 to 5 years probation, up to 1 year in jail, potential driver's license restrictions, and possible community service or labor.

Felony Punishment
If charged as a felony, Vehicular Manslaughter While Intoxicated can have far more serious consequences, including a state prison sentence ranging from 16 months to 4 years.  Up to an additional 6 years in state prison may be imposed if any surviving victim suffers serious bodily injuries.  This serious felony may be a strike on your record under California's Three Strikes Law

California Vehicle Code Section 23152(a) – DUI Of Drugs

While less common that alcohol based DUI charges, it is crime to drive under the influence of drugs ("DUID").  It does not matter if the drugs are illegal, obtained with a valid prescription or over-the counter. 

The test for DUID, regardless of the particular drug involved, is whether, as a result of the drugs, you were impaired in such a way that it affected your ability to safely operate a vehicle.

DUI of drugs is most commonly related to marijuana, but it is also frequently related to drugs such as valium, soma, vicodin, PCP, cocaine, methamphetamine, ecstasy, heroin and GHP, as well as other drugs.

Evidence Of DOID

A breath test, the most common test for intoxication in a DUI of alcohol case, is not used in DOID test because a breath test cannot detect drugs in your system.

Evidence of DOID is therefore generally shown in the following ways which can lead to a DOID arrest:

  • Physical signs including:
    • Pulse rate
    • Blood Pressure
    • Eye movement and pupil size
    • Red and watery eyes
    • Slurred speech
    • Flushed face
    • Unsteady gate
    • Odor (typically marijuana cases)
    • Dry mouth
    • Injection marks or sites
  • Chemical tests – Blood or urine testing.  These toxicology tests show what drugs were in your system, but not necessarily the amount of each drug.
  • Field Sobriety Tests – the same Field Sobriety Tests, such as balance, coordination, walking and counting tests, administered to an arrestee for DUI of alcohol (click here for overview of standard FST)
  • Drug Specific Questioning – the arresting officer may ask you drug specific questions such as:
    • Your alleged drug use
    • What drugs you are currently taking
    • Your history of drug use

Evidence of DOID is strongest when the arresting officer is specially trained in drug recognition.  An officer with drug expertise will likely testify as to what drugs he believes you were impaired by when you were arrested.  If the officer is not a drug expert, it will be much harder for the prosecution to prove DOID because the arresting officer will be far less qualified to testify regarding drug related impairment.

Defenses To A DOID charge

In addition to potential defenses to any DUI charge, such as challenging an officer's probable cause to stop and/or arrest you, DOID defenses may include:

  • Not Being "Under the Influence" Of Drugs – The prosecution must prove that you were impaired due to drugs and therefore failed to drive safely.  However, having drugs in your system does not mean that you were under the influence of drugs, or that drugs affected your driving at the time of arrest.  For example, if you smoked marijuana a week before you drove it will likely show in your system in a blood or urine test.  This of course does not mean that you were "under the influence" of marijuana when you drove.  
  • Insubstantial evidence of drug quantity – Because toxicology reports test only the existence of drugs in your system and not the quantity of drugs, it may be very difficult for the prosecution to prove that you were under the influence if the quantity of drugs cannot be accurately determined.
  • Challenging chemical tests – Like challenging blood or breath results in DUI alcohol cases, blood and urine results in a DUID case are not always accurate.  Chemical evidence should generally be retested by an independent lab to challenge the prosecutor's reports regarding the levels of drugs present at the time of arrest.

Punishments for DUID

Punishment for DUID can vary greatly based on factors such as the drug at issue and the defendant's criminal history, particularly a prior DUI charges.  For a standard, first-time DUID, punishment can include:

  • Informal probation for 3 to 5 years (this is probation by the court.  You are not required to report to probation officer)
  • Minimum $390 fine
  • Up to 1 year in county jail
  • A minimum 6 month driver's license suspension
DUI school or drug education class (usually a 3 month program for a first offense)

Felony DUI Charges

The majority of DUI cases are charged as misdemeanors, even for second and usually third time DUI charges.  There are, however, certain circumstances when DUI is charged as a felony. 

Common situations, discussed below, in which a DUI charge is elevated from a misdemeanor to a felony include:

  • DUI causing injury or death
  • 3 prior DUI or wet reckless convictions within 10 years of the current DUI charge
  • A prior felony DUI conviction

DUI Causing Injury or Death

The following felony DUI charges may be filed when a person is DUI and causes injury or death to another person:

  • California Vehicle Code § 23153 – DUI causing injury 
  • California Penal Code Section 191.5 (b) – Vehicular Manslaughter While Intoxicated
  • California Penal Code Section 191.5 (a) – Gross Vehicular Manslaughter While Intoxicated
  • California Penal Code Section 187 – DUI Second Degree Murder ("Watson Murder)

DUI With Three Or More Prior DUI or Wet Reckless Convictions Within 10 Years

If a person is convicted of DUI or a wet reckless 3 or more times within 10 years of the current DUI charge, the new DUI charge can be alleged as a felony.  The 3 or more prior DUI or wet reckless convictions are referred to as "DUI Priors."

Felony DUI Due To A Prior Felony DUI Conviction

If someone was convicted of any prior felony DUI, any new DUI charge, including even the most basic DUI charge, will be charged as a felony.  The prior felony DUI conviction could have resulted from a DUI Causing Injury, DUI Manslaughter or DUI Second Degree Murder.

Felony DUI Punishments

Felony DUI punishments can vary greatly depending on the particular felony chargeMost notably, a felony DUI conviction, unlike a misdemeanor DUI conviction, can be punished by a state prison sentence, as well as much greater fines and a longer driver's license suspension.  A prison sentence for felony DUI can be quite lengthy depending on the facts and circumstances of each case, such as the number of victims and the extent of their injuries.  Each felony DUI case must be analyzed on its specific facts.

Punishment for DUI Causing Injury or Death

  • Please click on the links above under the DUI Causing Injury or Death section for a detailed summary of punishments for each DUI Causing Injury of Death charge. 

Felony DUI Due to Prior Convictions – The following punishments apply to (1) a felony DUI conviction due to 3 or more prior DUI or Wet Reckless Convictions within 10 years and (2) a felony DUI conviction due to a prior felony DUI conviction.

  • 16 months to 4 years in state prison
  • A $390 to $1,000 fine
  • Habitual Traffic Offender status for three years
  • 4 year revocation of the defendant's driving privilege

How To Defend A Felony DUI Charge

Felony DUI charges can carry severe consequences and anyone charged with felony DUI must be represented by expert DUI counsel. 

In addition to common DUI defenses asserted in many DUI cases, specific defenses in any felony DUI case must be determined based on the unique facts of a each. 

For example, if a felony DUI charge is based on prior DUI or wet reckless convictions, each  alleged conviction must be thoroughly investigated to ensure that the conviction was accurate and constitutional.  If there is an opportunity to "strike" a prior DUI or wet reckless conviction, this could be critical in reducing a DUI charge from a felony to a misdemeanor.

If a DUI is charged as a felony because of alleged "great bodily injury" to a victim, a thorough investigation of the victim's injuries must be undertaken, including reviewing all medical records and, in some cases, documenting the victim's daily activities to show they are not seriously injured (a "day in the life" video).

Negligent Operator Charges

The California DMV will seek to classify you as a "Negligent Operator" and potentially restrict or suspend your driving privileges if you accumulate too many points on your driving record within a specified period.  Negligent Operator cases are not handled by the court.  They are handled only by the DMV at a DMV Negligent Operator hearing. 

"Points" are accumulated on your record based on bad driving, such as accidents, moving violations and criminal driving convictions such as a DUI (VC § 23152) or Driving on a Suspending License (VC § 14601).  Each of these violations carries a certain number of points which can adversely affect your driving privileges.

The Negligent Operator Charge Process

A Negligent Operator hearing is triggered as follows:

  • DMV Initial Warning Letter – The DMV will send you a warning letter if you obtain the following points on your record:
    • 2 points within a 12 month period
    • 4 points within a 24 month period
    • 6 points within a 36 month period
  • DMV Letter Of Intent To Suspend License And To Request A Negligent Operator Hearing – The DMV will send you a letter stating its intent to suspend your driving privilege when you obtain the following points on your record.  When you receive this letter, you must request a Negligent Operator Hearing within 10 days.  If you do not make this request, the DMV will take adverse action against your driving privilege.
    • 3 points within a 12 month period
    • 5 points within a 24 month period
    • 8 points within a 36 month period.
  • Automatic 6 month Suspension Without A Negligent Operator Hearing – When a driver accumulates the following number of points his license is automatically suspended for 6 months, without a negligent operator hearing, and he is placed on one year probation:
    • 4 points within any 12 month period
    • 6 points within any 24 month period
    • 8 points within any 36 month period

Probation violations, such as an accident or moving violation, can result in additional 6 month suspension or an entire year license revocation. 

The Negligent Operator Hearing – What Evidence Is Considered

Assuming you timely request a Negligent Operator Hearing (within 10 days of receiving the DMV letter informing you of the right to the hearing) the DMV will set a Negligent Operator Hearing at a DMV Driver's Safety Office.  You, a DMV Hearing Officer and your attorney will be present. 

The purpose of the Negligent Operator Hearing is to determine whether you should be classified as a Negligent Operator and, if so, what action if any should be taken against your driving privilege.  Because the Negligent Operator Hearing is not a criminal case, the Hearing Officer does not need to find "beyond a reasonable doubt" that you are a Negligent Operator.  He only has to determine whether it is "more likely than not" that you are a Negligent Operator, a much lower burden of proof.

The DMV Hearing Officer looks at 4 criteria to determine if you are a Negligent Operator:

  • Your driving record, including any pending driving-related charges, and the seriousness of each violation
  • Whether any of your traffic violations or accidents were alcohol related
  • Whether you were found responsible for your traffic violations or accidents

In analyzing these criteria, the DMV Hearing Officer will also consider evidence that may help your case, such as evidence that:

  • You are taking steps to become a better driver, such as enrolling in a driver's safety program
  • You are remorseful about your poor driving history and show a true intent to drive with caution in the future.  You have learned from your past mistakes.
  • You were not responsible for some or any of the accidents on your record
  • Your overall driving history is good, and it is only recently that you have made poor driving decisions.

Possible Punishments And Actions Against Your Driving Privilege

There are several potential outcomes of a Negligent Operator Hearing.  These are:

  • Set Aside – No adverse action is taken if the Hearing Officer determines that, despite your negative prior driving record, you can still safely operate a motor vehicle without restriction.
  • Probation – You are placed on probation.  Your license is not suspended or restricted, but if you violate your probation with further violations your license may be suspended or restricted.
  • Suspension or Revocation – These are the lease favorable outcomes.  If the DMV Hearing Officer determines that you are Negligent Operator based on your driving history and a lack of evidence of mitigating factors, your license either will be restricted – generally for work and critical non-work purposes – or suspended entirely.  
Once your restriction or suspension is over, in order to reinstate your full driving privileges you must pay the DMV fee, show the DMV proof of insurance, and keep that insurance valid for at least 3 year.

 

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