For years many people viewed driving under the influence as not a big deal. But times have changed. As the density of the population has grown and as the impact of drunk driving on society has increased, the legislature and courts have responded in kind. Today, while driving under the influence in most cases remains a misdemeanor in California, the penalties and possible legal ramifications are cause to take careful consideration to how you attend to your rights in a drunk driving case. 


Though all courts in California are subject to the same laws, be aware that there exist a broad range of differences in how such matters are handled between counties, courts, judges and prosecutors. Moreover, many factors can lead to additional charges and/or penalties such as being a minor at the time of arrests, whether an accident occurred, whether a child under 14 was in the vehicle with you at the time of arrest, whether excess speed was involved, having a blood alcohol content in excess of .15%, having a commercial license etc. Naturally, the possible punishment and fines increase significantly for drivers that have prior drunk driving convictions.


When you are arrested and charged with drunk driving in California it routinely results in the generation of two distinct cases - one with the court and one with the Department of Motor Vehicles (DMV). Each case is derived from separate statutory authority and as such most drunk driving cases involve allegations of the violation of two separate vehicle code sections; California Vehicle Code Section 23152 (a), and also Vehicle Code Section 23152 (b).


Section 152 (a) prohibits the operation of a motor vehicle while a person’s mental and/or physical faculties are impaired by alcohol and/or drugs to the extent that they are "unable to drive their car with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances". Hence, the driving pattern of the driver and how they perform in the Field Sobriety Tests are of significance in the prosecution of cases under this section. 


Whereas Section 152 (b) is a related charge that deals with a prohibition of operating a motor vehicle with a blood alcohol content (BAC) of .08 or higher. If a driver is arrested and charged with drunk driving they are required by law to submit either a breath or blood alcohol sample.  While for most of us driving is considered to be absolutely a necessity, it should be noted that driving is not a right it is a privilege that can be suspended or revoked by the DMV.  Pursuant to Vehicle Code Section 23612, as a condition of being granted the privilege to drive, every driver impliedly consents to submit to chemical testing for alcohol and drugs if lawfully arrested for any offense allegedly committed in violation of the California drunk driving laws. 


Submission to the handheld PAS Vr machine that officers often ask suspects to blow into prior to the DUI arrest. If you intend to refuse to submit to the PAS test be sure you are clear that your refusal is not construed by the officer as a refusal to submit to chemical testing. If an individual refuses to submit to chemical testing their driver’s license is immediately confiscated by the officer and their license is suspended by the DMV. Moreover, it will likely lead to being charged with an “enhancement” to your DUI charge that will lead to additional penalties ranging from a one year to three year license suspension.


There are numerous technical concerns that require a driver’s immediate attention after an arrest. The most pressing of which is a 10 day window in which to contest the DMV license suspension at an administrative hearing.  If you do not request from the Drivers Safety Office of the DMV an Administrative Hearing within 10 days of your arrest you have waived your right to challenge the matter and the 30 day license you were given by the arresting officer will run and the license suspension will go into immediate effect.


Whereas, the request for a hearing will stay the suspension and the temporary license will extend until the administrative hearing takes place and a decision is reached by the DMV. Since you may prevail in the Administrative Hearing and as there are no adverse consequences for trying, it is recommended you request a hearing.


If your license is suspended and if this was your first offense within 7 years, it will be suspended for 4 months. However, this can be reduced to 1 month followed by 5 months of work restriction (includes going to and from your treatment program) if the individual files proof of enrollment in a DUI school and proof of insurance (the "SR-22" form).


There are numerous defenses that can be employed at both the DMV hearing and in court. While there may be a presumption of innocence under our legal system, when you are being prosecuted for a crime by the government it certainly does not seem that way.  Prosecutors are highly

trained professionals that know the system and the law. Our legal system and hearings at the DMV are adversarial processes that require effective and competent advocacy to prevail against the government’s case against you.  Call us today to see if we can assist you in mounting a solid, spirited defense of your rights.