California DUI: An Overview
In each U.S. state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. Depending on the state where an offense happens, the action may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI).
Regardless of the description contained in each state’s laws or statutes, it is illegal for a person to operate a car, truck, motorcycle, or commercial vehicle if:
- After the driver’s consumption of alcohol, illegal drugs, prescribed medications (such as painkillers), or even over-the-counter medications (such as antihistamines) a driver’s ability to safely operate the vehicle is impaired; or
- The driver is intoxicated at or above a level set forth by law, such as blood-alcohol concentration (BAC).
Field Sobriety and Chemical Tests
If a police officer pulls over a vehicle and suspects that the driver may be under the influence of alcohol or drugs, the officer will conduct a “field sobriety test” on the driver, and may ask for his or her consent to some form of chemical test for intoxication.
Field sobriety tests: a police officer will ask a driver to perform a number of tasks to assess if the driver’s physical or mental ability is in any way impaired, such as walking a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer’s use of the “horizontal gaze nystagmus” (eye and penlight) test.
Chemical tests can be conducted during the vehicle stop: a police officer can measure a driver’s blood-alcohol concentration (BAC) by using a Breathalyzer at the scene of the vehicle stop, or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.
Refusing a Chemical Test: “Implied Consent” Laws
Every U.S. state has “implied consent” laws that require vehicle drivers suspected of DUI to submit to some form of chemical test, such as breath, blood, or urine testing. These laws follow the legal concept that if a person drives on state roads and highways, they are, in effect or as a consequence, giving their consent to chemical testing to any police officer who may reasonably believe that the driver is under the influence of alcohol and drugs.
If a driver refuses to submit to such testing, these laws carry penalties such as mandatory suspension of a driver’s license (usually for six months to a year). In some cases, the time period for suspension is longer than those imposed after chemical test failure. In most states, a driver’s refusal to submit to a chemical test may be used by the prosecutor and judge to seek heavier penalties for the driver if he or she is convicted for DUI.
“Per Se” and “Zero Tolerance” DUI Laws
All U.S. states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) at or above a set limit (that limit can vary from state to state).
It is important to note that:
(a) if a driver’s BAC meets or exceeds that state’s set limit, a person can be found guilty of DUI even if they are not driving badly or appear to be under the influence of alcohol or drugs. For example, in California and New York, drivers with a BAC at or above .08% are considered legally intoxicated and will likely be arrested; and
(b) a driver may still be arrested and convicted for DUI without proof of “per se” intoxication (meeting that set limit), when other evidence of impaired driving is displayed. For example, a driver with a .06 BAC level can be found guilty of DUI if a police officer testifies that he/she observed the person driving erratically, and that the driver exhibited both slurred speech and was not paying proper attention to the officer during questioning after a vehicle stop.
All states also carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02.
DUI Convictions: Criminal Penalties
A DUI conviction may result in a variety of criminal penalties including fines, jail time, probation, and community service. There are some states that require minimum penalties for first-time offenses. After a first offense, most states increase the penalties for each offense thereafter. There are several things that a judge will likely consider when trying to determine the extent of penalties that will be handed down in a DUI conviction, such as:
- Does the driver have a history of DUI violations?
- Was the driver operating a commercial vehicle at the time of the DUI?
- Was the driver excessively speeding while driving under the influence?
- Did the driver register an excessive BAC (blood alcohol concentration) over the set limit for that state?
- Was there a child in the vehicle while the driver under the influence?
- Was the driver also charged with another dangerous moving violation, such as reckless driving, while under the influence?
- Did the DUI violation involve a car accident in which property damage occurred?
- Did the DUI violation involve a car accident in which another person was injured or killed?
- Was the driver under the legal drinking age at the time of the DUI violation?
Plea Bargains in DUI Cases
In recent years, courts have handed down harsher penalties for DUI convictions. Additionally, the laws of most states limit the ability of the prosecutor to offer or accept a plea bargain in a DUI case. A DUI suspect needs an aggressive and experienced lawyer to competently pursue the defense of their DUI case in order to enter into any plea bargain discussions that can ultimately benefit the client.
At the Law Office of Johnson & Johnson, we will not guarantee you success; However, we will guarantee that we will take all steps to insure that your legal interest are advocated to an extent that exceeds what would be expected of a professional, experienced advocate. In doing this we can accomplish success. Call us today for a free consultation at (925) 952-8902.