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Understanding CA Penal Code 21A – “Attempted DUI”

Glass of alcohol, keys and handcuffs

Driving under the influence can result in a serious criminal charge in California. However, you do not have to drive an automobile to be charged with a crime. Your intent to drive while intoxicated could result in fines and jail time. 

An attempt to commit a crime is defined as taking steps to commit the crime even though you are unsuccessful. Under California Penal Coe 21A, an attempt to commit a crime has two elements:

  • A specific intent to commit the crime
  • A direct step toward committing the crime 

An attempted DUI is less serious than driving under the influence. However, it is a criminal charge, and you should treat the matter seriously. Because you could go to jail, it is wise to seek legal counsel from an experienced California DUI defense lawyer.

What is Considered Intent to Commit DUI?

Intent means that you were drunk and intended to operate a motor vehicle in that condition. For example, a police officer detained you after you got behind the wheel but before you could drive away. Another example would be stating that you would drive home after drinking alcohol at a friend’s house or a bar.

Any indication you give that you will drive a vehicle after consuming alcohol could be construed as intent to commit DUI. For example, picking up your car keys and heading toward your vehicle could qualify as intent to commit DUI.

So, is it possible to be convicted of attempting to drive under the influence? Does such an offense even exist?

The courts are not in agreement on whether there is such an offense as attempted drunk driving. In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not.

In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was "not unmindful that there might be some troublesome questions which will have to be resolved in later cases."

In that case, the defendant was found in the driver’s seat of her vehicle which was in the fast lane with her hazard lights on. The vehicle began to roll backward and officers observed the defendant attempt to start the car. The car would not start, but the defendant was able to stop the car by putting it in “park.” The court held that the California Penal Code sections dealing with “attempt,” are applicable to DUI cases.

California Penal Code section 21(a) states that an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.”

Specific intent crimes require the intent to commit the actual crime. For example, the crime of burglary requires that the defendant intend to commit a felony, usually theft, once they have entered into the dwelling place of another. Without the intent to commit a felony, the crime becomes trespass. Driving under the influence, on the other hand, is a general intent crime because it only requires that the person intend to commit the act of driving. Attempt is a specific intent crime because it requires the defendant to specifically intend to commit the crime.

The fact that California Penal Code section 21(a) applies to a general intent crime when it requires specific intent is counterintuitive. Maybe this is what the Garcia court was addressing when it stated that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later cases.”

What is Considered Attempt to Commit DUI?

An attempt must be a direct action you take to drive under the influence of alcohol or drugs. It goes beyond merely stating that you intend to drive while intoxicated. 

For example, you open your car door to enter the vehicle or walk toward your car with your keys. At that point, you have both intent and a direct step to commit DUI. Intent and attempt can occur together, but intent without a direct step toward committing the crime would not be sufficient to convict under Penal Code 21A.

When Do Police Officers Charge a Person with Attempted DUI?

Attempted DUI is generally used when a person is found drunk in a parked vehicle or walking toward a parked vehicle. The prosecution may also offer attempted DUI as part of a plea bargain.

What is the Sentence for Attempted DUI?

California Penal Code 664 states that the penalties for an attempted crime are one-half of the potential fine and one-half of the potential jail sentence for the actual crime. Therefore, if you are convicted of attempted DUI, the court orders you to pay one-half of the fine you would have paid had you been convicted of DUI. In addition, you also serve one-half of the jail sentence for a DUI conviction. 

However, there is no requirement to suspend your driver’s license or attend DUI school. In addition, attempted DUI will not count as a prior DUI offense if the police arrest you for drunk driving in the future. Therefore, negotiating a plea deal for attempted DUI is much better than being convicted of drunk driving in California.

Are There Defenses to Attempted DUI in California?

You could raise several defenses to attempted DUI charges in California. Some defenses your attorney may argue include:

  • You were not intoxicated at the time of the arrest 
  • You did not intend to operate a vehicle under the influence of alcohol
  • There is no evidence of a direct step toward driving while intoxicated 
  • You abandoned your plan to drive your vehicle after consuming alcohol or taking drugs
  • The prosecution has insufficient evidence to prove both intent and attempt 
  • The arresting officer violated your civil rights by arresting you without probable cause 

A California DUI lawyer examines all evidence against you to determine the best defense strategy to fight attempted DUI charges. In some cases, the best defense may be negotiating a plea bargain. 

However, do not tell the police officers or the prosecution even if you believe you are guilty. The state has the burden of proving your guilt, so do not make it easier by confessing. Instead, talk with a California DUI attorney before making statements or accepting a plea agreement. 

What is Considered Drunk Driving Under California Law?

California Vehicle Code §23152 defines drunk driving as:

  • Being under the influence of an alcoholic beverage while driving a vehicle
  • Having a blood alcohol content (BAC) of .08% or higher while driving a vehicle

The law presumes you are too drunk to operate a motor vehicle safely when your BAC is .08% or higher. Therefore, you are arrested for DUI if you agree to take a pre-arrest breathalyzer test and your BAC is .08% or more.

However, the police officers may arrest you for driving under the influence if they have probable cause without administering a breathalyzer test. The police officers may base their decision on the results of field sobriety tests or FSTs. Standardized field sobriety tests include:

  • Walk and Turn Test
  • Horizontal Gaze Nystagmus Test
  • One-Leg Stand Test

You can refuse to take the pre-arrest FSTs and breathalyzers in California without penalty. However, California’s implied consent law requires you to submit to chemical testing for blood alcohol after being arrested for drunk driving. 

The code states that refusal to submit to a chemical test can result in a fine and mandatory imprisonment if you are convicted of drunk driving. Furthermore, refusal to submit to a post-arrest chemical test results in an administrative suspension of your driver’s license for at least one year or two years if the refusal is within ten years of a prior DUI conviction. 

What Are the Penalties for Driving Under the Influence in California?

The potential penalties for a DUI conviction depend on your prior DUI history and the circumstances of your arrest. DUIs are priorable offenses in California. If you have a previous DUI conviction within ten years, the severity of the punishment for your current drunk driving conviction increases. Felony DUI convictions count regardless of when the court convicted you of felony drunk driving. 

The potential penalties for a misdemeanor DUI charge include:

  • Fines and assessments
  • Incarceration in county jail or state prison
  • Court-approved alcohol or drug education program
  • Three to five years summary (informal) probation 
  • Driver’s license suspension
  • Up to 30 months in California DUI school
  • Mandatory installation of an ignition interlock device (IID)
  • Designation as a habitual traffic offender for repeat DUI convictions
  • Restitution to injured parties
  • Strike against your record under California’s Three Strike’s Law for a felony DUI

Additionally, if aggravating circumstances are present when the police arrest you for DUI, the penalties for a conviction increase. Aggravating circumstances for a DUI conviction include:

  • Causing a DUI accident that results in injury or death of another person
  • Excessive speeding while driving under the influence
  • High blood alcohol content of .15% or more
  • Refusing to submit to a chemical blood test after a DUI arrest
  • Being under the age of 21 years at the time of the DUI arrest
  • Having a child under the age of 14 years in the car while driving under the influence 

Aggravating circumstances enhance the penalties for a DUI conviction in California. However, you could also face additional criminal charges for some aggravated offenses. 

For example, you could be charged with underage drinking and driving or child endangerment. Those charges would carry additional penalties for a conviction. 

Fighting DUI Charges in California 

The consequences of a DUI conviction go beyond jail time and fines. A drunk driving conviction causes your car insurance rates to increase. You could lose your job because you serve time in jail or have a DUI on your record. A DUI conviction could make it more difficult to find employment in the future if driving is required as part of your job duties.

You can fight DUI charges instead of pleading guilty. A California DUI defense lawyer investigates your DUI arrest and the steps taken after your arrest to determine if errors or police misconduct occurred. Depending on the facts of your case, a DUI lawyer could raise one or more defenses, including:

  • Challenging the results of the DUI chemical test
  • Alleging the police officers lacked probable cause for a DUI stop or DUI arrest
  • Presenting evidence that a medical condition caused you to appear drunk, such as a brain injury, diabetes, or epilepsy
  • A medical condition caused a false BAC level, including GERD, acid reflux, or diabetes
  • Challenging the accuracy of field sobriety tests 
  • Alleging a failure to maintain the chain of custody for chemical tests
  • Arguing that you were not driving or operating a motor vehicle at the time of your arrest
  • Arguing that your ability to operate a motor vehicle was not impaired at the time of your arrest

Accepting a plea deal without talking to a California DUI attorney is not in your best interest. The best way to protect your rights is to understand the law and potential defenses to DUI. A prosecutor is not a trusted source for legal advice since it is their job to convict you of a crime.

Instead, talk with a DUI lawyer before accepting a plea deal or pleading guilty to drunk driving charges. Even if you cannot avoid a conviction, having a lawyer on your side can help you obtain a more favorable plea agreement that could avoid jail time for DUI charges. 

The post Understanding CA Penal Code 21A – “Attempted DUI” appeared first on Law Offices of Taylor and Taylor - DUI Central.

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