California's DUI and DWI Law
After many Supreme Court decisions and laws have changed in recent years, the penalties for "drunk driving" no longer consist of just a slap on the wrist and an escort home. An individual driving under the influence of drugs or alcohol will, first and foremost, be charged with a DUI or DWI (driving while intoxicated). Following this charge, overwhelming, and possibly devastating, charges will be put in place. For many, penalties received for drunk driving are more extreme than others might receive for felony charges.
The story often begins with an individual being stopped by police at a "sobriety checkpoint" or for driving erratically. After stopping the individual, the officer immediately begins to interrogate him. Without being given any right to an attorney, or even a Miranda warning, this individual is forced to make incriminating statements that can be held against him. The officer might request a breath test be taken with a hand-held "PAS" (preliminary alcohol screening). Then, under already very stressful conditions, the individual is asked to take 3-5 "field sobriety tests"; tests that are often difficult for most of the general public to pass correctly. In most cases, the officer will also fail to inform this individual, if they are over 21, that these tests are not mandatory by law.
Once the arrest has been made, typically back at the police station, a chemical test is required of the suspect. Still without an attorney present, the individual can choose either a breath or blood test. There is the option to refuse testing, however this automatically mandates a one-year license suspension and a jail sentence. Breath tests are administered using a breathalyzer which, unknown to the general public, is a highly unreliable piece of technology. What is more, the officers administering the test are very often inexperienced with the correct procedures. The suspect's license will be suspended if the breath test result is over .08%, if a blood sample is taken, or if the suspect refused chemical testing. The officer will then issue a pink "Notice of Suspension" slip, which also serves as a 30-day license.
Following the arrest, the individual has two separate proceedings to deal with. First, the suspect must acknowledge the administrative license suspension. It is very critical that the suspect, or more ideally his attorney, contact the DMV within 10 calendar days from the time of the arrest to schedule a hearing. After 10 days, the individual forfeits his right to a hearing, and in turn any chance to have the charges "set aside". If one of the above situations occurred, and a notice of suspension was issued, the suspect will face a few automatic penalties. If this was a first time offense, there will be a license suspension of four-months. For second time offenders (within the past 10 years), or if chemical testing was refused, the suspension will be one year. While these penalties can be challenged by a qualified attorney, a hearing must be scheduled in the first place.
The second proceeding the individual must be involved with is a criminal prosecution in court. The suspect will be charged with two offenses and can, surprisingly, be convicted of both of them. The penalties are the same, however, and the individual will only have to serve one of the two. The first offense: driving under the influence of alcohol (and possibly drugs). The second: if chemical test results proved the individual was driving with a blood-alcohol level above .08%, the offense is called a "per se" offense. If the chemical testing was refused, the court will not have the evidence to charge the suspect with the per se offense. However, keep in mind the heightened charges that will ensue. Again, a qualified attorney is highly recommended. The proceedings will most likely involve multiple court hearings. The suspect will not have to appear at most of them if he is properly represented.
It is unfortunate that many general criminal attorneys and general practitioners will try to represent individuals facing the charges mentioned above. As they have very little training in the area, or none at all, the outcome of the case is all too easily foreseen. However, represented by a qualified attorney – one who is experienced with DUI cases and even specializes in the field – the individual dealing with these administrative proceedings will be in much safer hands and can feel more secure about the outcome.
There are laws in place for while intoxicated that are very similar to DUI charges. Please refer to "California DUI Boating: Boating Under the Influence of Alcohol" within this site.
