Driving Under the Influence Overview

If you have been arrested for driving under the influence (DUI) you must not delay preparing for your defense. That is because in California you have only 10 calendar days following your arrest to request a DMV administrative per se hearing or you will lose the right to a hearing and your driver license will be automatically suspended 30 days after your arrest even though you haven't had your day in court! Therefore, it is imperative that you seek the counsel of an experienced Orange County DUI charges attorney as soon as possible after your arrest for DUI.

When an officer has reasonable suspicion to believe that a person's ability to drive safely is affected by the influence of alcohol or a drug, including prescription drugs, the driver can be arrested for driving under the influence. Usually, charges will only be brought if a chemical test on the driver's breath or blood reveals a blood alcohol level (BAC) of over .08% or if the presence of certain drugs (including some prescription drugs) shows in the driver's blood or urine. However, there are some cases where a DUI will be charged even if the BAC is under .08%, such as for those driving on a commercial driver license and drivers under the age of 21. The DUI laws are very complex. Here we will discuss the most common DUI arrests (Class A drivers over the age of 21 registering a BAC of .08% or more), but the arrest, administrative and court processes, and consequences are often the same for those arrested for driving under the influence of a drug that affects a person's ability to drive safely as for those arrested for a BAC over .08%.1

Whether you were arrested for driving under the influence of drugs or alcohol, you should consult with an experienced attorney immediately. William Weinberg is an experienced DUI charges attorney in Orange County with proven results. He has successfully defended hundreds of clients2, including many charged with all levels of DUI and he will vigorously defend your rights under the law. Contact Mr. Weinberg at any time to set up a confidential consultation without charge. He will work with you and your family to provide a fee structure that best suits your circumstances.

THE DUI ARREST

A vehicle stop and consequent arrest for driving under the influence triggers a complicated and often confusing process. If an officer has reasonable suspicion that the person's ability to drive safely is affected by the influence of alcohol or a drug, including prescription drugs, the officer can and will ask the driver to submit to field sobriety tests (FST). The driver can refuse to take these tests without any consequence under the law.

If the driver refuses the FSTs or if the driver submits to the FSTs and the officer determines that the driver "failed" one or more FST, the officer will then ask the driver to submit to a chemical test, usually this test entails blowing into a breathalyzer or a blood draw. Refusing the chemical test will result in an immediate one-year suspension of the driver's license and other consequences. If the chemical test reveals a violation (.08% and over BAC or drugs), the driver will be taken into custody.

In most cases, when a driver is arrested for driving under the influence of alcohol, the arresting officer will confiscate the arrestee's driver license and provide the driver with a pink California DMV Form DS-367. This document is a temporary license that allows the arrestee driving privileges for 30 days and notifies the arrestee that his or her driving privileges will be suspended thereafter.

The suspension of the arrestee's driver license can be challenged in what is called a DMV Administrative Per Se Hearing. The driver must request the hearing within 10 days of the arrest or the suspension goes into immediate effect in 30 days. It is important for anyone arrested for driving under the influence to understand that the DMV license suspension hearing is separate from the criminal charge and hearing. The DMV hearing is administrative and does not concern the criminal charge, which requires the court and district attorney's involvement in a separate case.

THE DMV ADMINISTRATIVE HEARING

The DMV hearing concerning the license suspension is called an Administrative Per Se hearing. At the hearing, the driver or the driver's attorney, if the driver is represented by counsel, will appear before a DMV hearing officer. The hearing officer will review the arrest report and give the driver (or attorney) an opportunity to present a defense. After the hearing, the DMV will issue written findings. These findings are usually issued within a month. If the DMV finds that the driver was lawfully arrested for driving under the influence, the driver's license will be suspended. (The length of time of the suspension will depend on various circumstances such as the number of DUI convictions on the driver's record in the past ten years.) Whether the DMV finds in the driver's favor or not, the matter does not end there; the driver still must face the criminal charge of DUI.

DUI COURT PROCEEDINGS

A first, second, or third time DUI is most often charged as a misdemeanor (unless there are extenuating circumstances such as injury or death caused by the driver while driving under the influence). A person arrested for his or her fourth (or more) DUI will be charged with a felony. Whatever the case, this is a criminal matter that requires a court hearing and judgment--even if the DMV administrative hearing officer found in the driver's favor.

Before a DUI case is settled by plea bargain or heard by the court or a jury, the prosecution will provide discovery to the defendant driver, which will include results of any blood alcohol testing. Often an experienced attorney can attack the charge by finding flaws in the testing and/or the results. It is rare for a DUI charge to go to trial; these charges are almost always settled through negotiations between the prosecution and defense. That is why it is crucial to have an experienced Orange County DUI charges lawyer representing you. It is often possible for an experienced attorney to argue for a lesser charge, such as a "wet reckless3" or a "dry reckless4." These convictions carry substantially fewer consequences than a charge of driving under the influence.

A WORD ABOUT IGNITION INTERLOCK DEVICES

You may have heard about Ignition Interlock Devices, commonly called IIDs. These devices are units installed on a driver's car that prevent the car from starting until the driver blows into the unit. If the IID detects any alcohol, the car will not start. The devices are sophisticated and have mechanisms that prevent their defeat.

At his or her discretion, a judge can order anyone convicted of driving under the influence to install an IID for a period of time. However, several counties5 in California are running a pilot project that requires all first-time DUI offenders to install an IID. The California Legislature will review the effectiveness of this law and as early as 2015 could implement an IID law statewide. A driver who does not live in one of the pilot counties can still be ordered by the court to install an IID and this becomes increasingly likely for DUI offenders with more than one DUI conviction in the previous ten years.

If you have been arrested for driving under the influence, you are well-advised seek the immediate assistance of a DUI charges lawyer in Orange County who is experienced in the intricacies of the California DUI law. The punishment and consequences for a conviction of DUI, even a first-time DUI, can be serious and long-lasting. For a detailed look at your specific charge, please refer to the related link below:

  • Misdemeanor DUI (1st, 2nd, or 3rd DUI within 10 years)
  • Felony DUI (Four or more DUIs within 10 years)
  • DUI with injuries (Misdemeanor or Felony)
  • Vehicular Manslaughter (Misdemeanor or Felony)
  • DUI 2nd Degree Murder (Felony "Watson Murder")

1Under California statue, it is unlawful for a person who is under the influence of any drug to drive a vehicle. (VEH. CODE §§23152 (e) and 23153(e).)
2Mr. Weinberg defines a successful defense as one where he obtains a dismissal, a reduced charge/conviction, and/or a lower sentence than that sought by the prosecutor.
3VEH. CODE§23103.5
4VEH. CODE§23103
5Alameda, Los Angeles, Sacramento, and Tulare (VEH. CODE §23700.)

Orange County DUI Lawyer Blog - DUI

Anyone who is arrested should contact an experienced Orange County DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.