Driving Under the Influence Overview

If you have been arrested for driving under the influence (DUI) you have only ten calendar days to make your first decision if the arrest was for driving under the influence of alcohol or alcohol and drugs. Immediately upon your arrest, your driver’s license will be suspended and you will receive a 30-day temporary license. You are afforded ten calendar days following your arrest to request a DMV Administrative Per Se (APS) 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. This is a function of what is called the per se blood alcohol content (BAC) law (Vehicle Code section 23152(b)) that makes a driver presumptively over the legal limit if he or she tests 0.08% or above BAC.

If you believe there is any reason to challenge the automatic suspension of your license, it is imperative that you seek the counsel of an experienced Orange County DUI charges attorney as soon as possible after your DUI arrest or you may miss the ten day window in which to challenge the suspension.

A new California law effective on DUI arrests after January 1, 2019 allows some drivers to retain their driver’s license without driving restrictions if they install an ignition interlock device (IID). Generally, most DUI offenders who do not want to contest the suspension of their license can install an ignition interlock device within the 30-day temporary license period and avoid losing their driving privileges after the 30 days have passed. For first time DUI offenders who did not cause any injuries related to the DUI, installation of the IID is optional. For most other drivers, it is required if they want to continue driving. The IID law is discussed in more detail at this link.

When a driver is arrested for DUI, the officer must be able to articulate a reasonable suspicion that a person's ability to drive safely is affected by the influence of alcohol or a drug (this includes prescription drugs). Usually, charges will be brought only if a chemical test on the driver's breath or blood reveals a blood alcohol level (BAC) of over 0.08% or if the presence of certain drugs (including some prescription drugs) shows in the driver's blood. 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.

If you are arrested for a DUI, you may not know what to do next; the process can be overwhelming. A DUI defense attorney can help you through every step and make sure your rights are fully protected. Here we will discuss the most common DUI arrests (i.e., Class A drivers over the age of 21 registering a BAC of 0.08% or more). The arrest, 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%.

Whether you were arrested for driving under the influence of drugs or alcohol, you should consult with an experienced attorney immediately. Attorney William Weinberg has been defending those charged with a DUI in Orange County for over 30 years. He has proven results and has successfully defended hundreds of clients in obtaining a dismissal, a reduced charge or convictions and/or a lower sentence than that sought by the prosecutor. No matter whether this is your first offense or you face a more serious DUI charge, Mr. Weinberg will vigorously defend your rights to the full extent allowed by 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.

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 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. However, you cannot refuse chemical testing (breath or blood) once you are arrested for DUI.

If, during the stop but before the arrest, the driver refuses the FSTs and the officer has reasonable suspicion to believe the driver is under the influence or if the driver submits to the FSTs and the officer determines that the driver "failed" one or more FST, the officer will place the driver under arrest and then ask the driver to submit to a chemical test. This test cannot be refused without consequences. After an arrest on suspected DUI, refusing the chemical test will result in an immediate one-year suspension of the driver's license and other consequences.

Usually the chemical test entails blowing into a breathalyzer or a blood draw. If the chemical test reveals a violation (0.08% and over BAC), the driver will be taken into booked. In the case of suspected driving under the influence of drugs, the driver will be arrested and a blood test will be administered at the police station or a medical facility. Once the results are received, the driver will be charged with driving under the influence of drugs if the blood test is positive for any drug that could affect the driver’s ability to drive safely.

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 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. In most suspected driving under the influence of drugs (without alcohol), the driver’s license will not be immediately suspended but will be if the results of the drug test reveal the presence of a drug that would affect the driver’s ability to drive safely, his or her license will be suspended.

The suspension of the arrestee's driver license can be challenged in a DMV APS Hearing, but the driver must request the hearing within 10 days of the arrest or the suspension will go into immediate effect 30 days after the arrest. In the alternative, many drivers arrested for DUI (alcohol-related only) can install an IID during this 30-day period and avoid a hard suspension of their license. However, by installing an IID during this 30-day period, the driver has forfeited his or her right to challenge the license suspension.

It can be confusing because an arrest for driving under the influence triggers two separate events: the administrative DMV license suspension and a criminal charge. The immediate affects on the driver concern the DMV administrative process, while the criminal case usually proceeds after the DMV proceedings.

If a driver desires to contest the DUI arrest, he or she must request an Administrative Per Se hearing. This almost always occurs before the criminal case proceeds and therefore, before the driver is actually convicted of driving under the influence. An astute DUI defense attorney may be able to identify defenses to present at the hearing that would not be evident to a layperson. For example, if the initial traffic stop was unlawful, your attorney can contest the entire DUI arrest on that basis. Since the suspension of your driver’s license is at stake, it is the wise driver who consults with a DUI defense attorney right away to review the circumstances of the stop and arrest. Orange County DUI defense attorney William Weinberg will thoroughly review the circumstances of your stop and arrest and identify any potential defenses.

At the APS 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. Even if the DMV finds the suspension lawful, the driver will still have the IID option. 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.

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.

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")

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. Sometimes an experienced attorney can contest the charge by finding flaws in the testing and/or the results or perhaps the arresting officers did not follow the law.

Any defenses to the charge will be vigorously argued by a skilled and attentive DUI defense attorney. Oftentimes the defense will not rise to a complete dismissal of the charge but may sway the prosecutor to offer a plea bargain to a lesser charge and conviction or a punishment more favorable to the driver. It is rare for a DUI charge to go to trial; these charges are almost always settled through negotiations between the prosecution and defense. It is very important to have an experienced Orange County DUI defense lawyer representing you. A skillful attorney can negotiate on your behalf, which often results in a conviction and/or punishment that carry substantially fewer consequences than a charge of driving under the influence.

If you have been arrested for driving under the influence, you are well-advised seek the immediate assistance of a DUI defense lawyer who is has a firm knowledge of California’s complex DUI laws and the defense of DUI charges. The punishment and consequences for a conviction of DUI, even a first-time DUI, can be serious and long-lasting.

Attorney William Weinberg sincerely cares about each client’s case and works hard to obtain the best possible outcome, no matter how serious the charge. You may contact him for a complimentary consultation regarding your matter by calling his Irvine office at (949) 474-8008 or by emailing him at bill@williamweinberg.com.