California DUI defense attorneys representing clients charged with DWI, drunk driving or driving under the influence DUI California Your Complete DUI Resource in California California DUI defense attorneys representing clients charged with DWI, drunk driving or driving under the influence
California DUI defense attorneys representing clients charged with DWI, drunk driving or driving under the influence
California DUI defense attorneys representing clients charged with DWI, drunk driving or driving under the influence

Arrested For DUI?

The Chase

The experience of a drunk driving arrest begins at the point where a cop notices your vehicle. It may be that you were speeding or weaving, but cops are actually trained in a dubious "science" of detecting drunk drivers. The training includes directions to stop your car for such mundane activities as gripping the steering wheel too tightly, making wide turns, and failing to stop exactly at the limit line for a stop sign or red light. They get this nonsense from the National Highway Traffic Safety Administration (N.H.T.S.A), an agency known for its indiscriminate pursuit of incompetent bureaucracy. It's all in some videos and brochures for cops called Guide for Detecting Drunk Drivers at Night ,(a fairly accurate rendering of the N.H.T.S.A guide), and The Visual Detection of DWI Motorists and The Detection of DWI Motorcyclists.

DUI Checkpoint Roadblocks

Then again, you may have been stopped at a drunk driving checkpoint roadblock. Did you know that there's no law that says you had to roll down your window? (For those who may be reading this in order to prepare for the possibility of a drunk driving arrest, please note that if the cop orders it, you do have to roll your window down. But that gives your lawyer the ability to argue later that the order was not legal.) Did you know that the flashlight the cop may have stuck through your open window may have had the ability to flash him a red, yellow or green light that indicated whether or not you had alcohol on your breath? N.H.T.S.A has published some standards to be used by law enforcement in conducting drunk driving roadblocks. You can read them in The Use of Sobriety Checkpoints For Impaired Driving Enforcement. California case law says that not everything has to be strictly complied with. But note the last sentence at the end of the last big paragraph in Appendix A, which says,:

A motorist who wishes to avoid the checkpoint by legally turning before entering the checkpoint area should be allowed to do so unless a traffic violation(s) is observed or probable cause exists to take other action. The act of avoiding a sobriety checkpoint does not constitute grounds for a stop.

Good lawyers use this statement of official policy to strike down arrests where the cops stopped the driver only because he or she utilized the required escape route.

The Investigation: Gathering Evidence for Conviction

Once the cop detected the odor of alcohol on your breath you became a DUI suspect. That began the process of gathering evidence to convict you with. He probably started out with, "Have you had anything to drink tonight?" He already knew the answer. If you didn't tell him then how much you drank, that was probably his next question. If you answered, "I only had two beers, officer", he made mental note that you could be lying.

Whatever your answer was, he or she probably then asked you to step out of the car, and asked to see your driver's license and registration. He or she observed your demeanor as you got out of the car and looked through your wallet, making mental notes of your coordination and level of comprehension. If you "fumbled through your wallet looking for your driver's license" that went into the police report. Likewise, leaning against the car, stumbling, not responding to the demand to get out, and anything else but perfect performance. You can see at this point that being a person who just doesn't take orders well puts you at distinct disadvantage.

All this time the cop has also been looking at your eyes to see if they're "bloodshot and watery". Amazingly, whether they were bloodshot and watery or not, this "fact" always gets written in the police report. As with everything that occurs, it's your word against him or her, and they know that. But don't worry, good lawyers can break down the lies into bits and pieces, and show the jury that the pieces just don't fit.

Then came more questions like, "When did you last eat?", and "When did you last sleep?". The cop will later testify that he asked these questions to determine of your apparent lack of coordination could be caused by something other than alcohol. But what he or she was actually doing was asking you questions to gather evidence to use against you, and doing it before you were formally arrested so that Miranda advice would not be required. (Although on TV and in the movies, cops recite the Miranda mantra for everyone they arrest, in real life that's only done when (1) you've been formally place under arrest, and (2) the cops want to ask you questions, and (3) they want to use your answers against you.)

After that the cop had you do some Field Sobriety Tests (FST's). Now this is where things got decidedly whacko because there's no objective scoring of these "tests". Instead they're graded in an entirely subjective manner - you just can't pass them if the cop has already made up his mind that you're a drunk driver. Once again, he or she is just gathering evidence to convict you with. But believe it or not, this is a good thing because good lawyers know how to trip up a cop over the inconsistencies. We know that the cop will later testify that he or she didn't make his mind about your state of sobriety until after the last test was completed.

That knowledge lets us recite all the other symptoms you exhibited - bad driving, odor of alcohol on the breath, stumbling, fumbling through your wallet, leaning on the car, bloodshot and watery eyes, inability to say the alphabet, inability to walk a straight line - everything up to the last FST, and get the cop to agree that none of it is conclusive. None of it means that you're a drunk driver. None of it really matters!

We can do this because we know that the cops will take an oath to tell the truth, then testify to lie after lie, predictably, every time. They do that because they're trained to do it that way. They're trained to gather evidence to use against you and trained to claim that they were really just investigating, trying to determine if you were too intoxicated to drive. See what I mean about picking their story apart in bits and pieces?

Finally, right before your arrest the cop may have asked you to blow into a handheld breath analyzer, a thing called a Preliminary Alcohol Screening Device (PAS). If the cop didn't advise you that you are not required to blow into it, he committed a crime under California Vehicle Code section 23612, subdivision (I), and section 40000.1. (Section 23612(I) requires the advice and section 40000.1 makes it an infraction to not do anything the Vehicle Code requires.) But more important, a good lawyer can use the failure to advise of the right to refuse this test to get the test results thrown out as a nonconsensual search. This approach is based upon the simple idea that the cops can't claim you consented to a search of your breath when they didn't tell you had the right to refuse that search.

In many counties the PAS result isn't admissible anyway because the methods used to operate the device usually lack the technical requirements needed to overcome a scientific foundation objection. But there is no legal authority that makes it inadmissible statewide. Several local appellate courts, most notably Los Angeles County's, have ruled it inadmissible, but for political reasons having nothing to do with justice, none of these courts ordered their decision published. So it's a decision to be reached by the local judges of each county, based upon the skills and knowledge of the attorney handling your case.

The Arrest

You'd be amazed how many times we hear, "I passed all the tests". If you got arrested, you flunked them, otherwise you wouldn't have been arrested. But like it says above, it's more likely that the decision was made to make an arrest long before you did the FST's.

Soon after your arrest you may have been advised of the requirement that you submit to a blood test. (Since January 1, 1999, the urine test has been offered only when both blood and breath testing are unavailable. I say "may have" because in some counties, like Orange County, the routine is to simply tell the arrestee that he or she needs to give a blood sample. They deny people he choice because blood provides more direct evidence of blood alcohol level than breath does.

In any event, if you decline the offer of a chemical test you'll be formally advised of the "implied consent" law. It says that if you refuse to take the test your license will be suspended or revoked for anywhere from one to three years, depending on your past record. Amazingly then, in some counties, they'll strap you down on a table and take your blood by force, if necessary. So you get the double whammy - a long suspension because you refused, and they get their evidence anyway!

Most people opt for a breath test. As with any chemical test, the prosecution has three problems:

  • First, they have to prove that they tested your breath sample accurately. Actually, that's not all that hard to do. unless you were painting that day, or were otherwise exposed to solvents which can give a false read. Toluene found in many paints, is a frequent interferant. The problem is that most breath machines use nonspecific testing methods. The Intoxilyzer, for instance, is an infrared spectrometer that looks for a very abbreviated infrared signature for alcohol, an abbreviated signature that many other solvents share.
  • Then they have to relate that breath test result to the alcohol in your blood at the time you blew into the machine. You can imagine how much guesswork is involved in proving that a certain amount of alcohol on your breath means you got a certain amount in the blood. What they do is guess that you have 2100 times as much alcohol in the blood as you do on your breath, multiply the breath reading by 2100, and call that blood alcohol. There goes the pursuit of truth and justice out the window! The 2100 to 1 assumption is called the partition ratio, and it's very far off if you're still absorbing alcohol from a recent drink, perhaps following a large meal.
  • Then, they have to prove that the alcohol in your blood at the time you were driving was above the legal limit, and they have to do that based upon the amount of alcohol in your blood. You can imagine how difficult that would be, since your body has had a half hour to 45 minutes to burn off some it, and absorb some more from your stomach and intestines. Bottom line - it's easy to show that your blood alcohol level was lower while driving than it was when you were tested.

All this adds up to the need for a 0.16% or more breath test in order to prove a Blood Alcohol Concentration of 0.08% at the time of driving. If your breath test result was 0.14% or less, you have a pretty good case. If it was below 0.10% the odds of being convicted are slim indeed, unless your case is in one of the counties or districts where juries are dominated by white, middle class, middle management types. You'll find them primarily Marin County courts, the Walnut Creek courthouse, much of Orange County and Ventura County courts.

The DMV Stop and Snatch

You're actually being prosecuted twice. First, the DMV prosecutes you in an administrative proceeding presided over by one person who is both judge and prosecutor. He or she wants to take your driver's license for somewhere between one month and three years. Secondly, you're charged with the crime of DUI in the criminal courts. More about the crime later. This discussion covers the DMV proceedings.

The DMV's prosecution starts around the time you were arrested, when your driver's license was probably taken from you (unless it was from another state) and you were served with an ADMINISTRATIVE PER SE, ORDER OF SUSPENSION/REVOCATION, TEMPORARY DRIVER'S LICENSE ENDORSEMENT (Form DS 367). (The name of the actual document may vary, depending on how old arresting cop's forms are.) As this document says in the fine print, you have just 10 days to ask for a hearing. If you ask for the hearing within that 10 day limit, the suspension is stayed, meaning delayed, until the hearing is held and a decision is reached. Use this form to ask for the hearing. But only ask for the hearing yourself if you get to the last day and no lawyer has asked for a hearing for you. For lots of reasons it's better to have the lawyer ask for the hearing. In any event, take a few minutes right now to read the instructions that accompany the form. They explain what that process is all about, how long the suspension or revocation lasts, and what your chances of winning the hearing are - pretty good actually.

Click here for more information on the California DMV, including:
  • Objections to hearing delays and continuances.
  • Official disciplinary guidelines for use in driver's license hearings based on actions related to negligent operator (excessive point count), commercial, certificates, endorsements, physical and mental conditions, fraud and lack of insurance grounds.
  • D.M.V.'s official website.
  • How long convictions stay on the driver's license record and how to get a coy of it.
  • How to obtain your Federal driver's license record.

Click here for information about your driver's license record.

The Crimes

It's important to understand that what the cop arrested you for is not necessarily the crime you'll be charged with by the prosecutor, a City Attorney or county District Attorney.

The Usual Case: Usually you're charged with a misdemeanor violation of California Vehicle Code section 23152, which reads, in relevant part:

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttal presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In any prosecution under this subdivision, it is a rebuttal presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

You might instead be charged with one of three different felony offenses. Each of these is chargeable as either a felony or a misdemeanor. A misdemeanor is a crime punishable by no more than one year in the county jail. A felony is punishable by 16 months or more in a state prison.

Felony Injury to Another: But if you caused injury to another the crime is chargeable as a felony under Vehicle Code section 23153. It reads, in relevant part:

(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
In any prosecution under this subdivision, it is a rebuttal presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical text within three hours after driving.
(c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.

Felony With Three or More Priors: And it's also chargeable as a felony under Vehicle Code section 23550 if you had three or more prior drunk driving or alcohol related reckless driving (wet reckless convictions within the past 7 years. Section 23550 reads:

(a) If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352.
(b) Any person convicted of a violation of Section 23152 punishable under this section shall be designated as an habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

Felony With a Felony Prior: In addition, it's chargeable as a felony under Vehicle Code section 23550.5 if you had any prior conviction of felony drunk driving within the past 10 years which was punished as a felony. Section 23550.5 reads:

(a) A person is guilty of a public offense, p

unishable by imprisonment in the state prison or in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:
(1) A prior violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.
(2) A prior violation of Section 23153 that was punished as a felony.
(3) A prior violation that was punished as a felony under Section 191.5 of, or paragraph (1) or (3) of subdivision (c) of Section 192 of, the Penal Code. The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles under paragraph (7) of subdivision (a) of Section 13352.
(b) Any person convicted of a violation of Section 23152 that is punishable under this section shall be designated an habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350.

DUI Drugs: Click here for an article on Drug-Related Driving Offenses - Rolling Stoned.

The Procedure

Your first court appearance is typically scheduled about one month after the day you were arrested, except in San Francisco where they get you into court within just a few days. This first court date is for arraignment, an occasion to enter a plea (not guilty if you plan on fighting) and set a date for a pretrial conference. But if you do plan on fighting you can instead ask the judge to continue the case for a week or two so you can hire a lawyer.

There will be a tremendous amount of coercion from the judge and prosecutor to convince you of the wisdom of pleading guilty right away. Often this coercion will take the form of nasty threats and outright falsehoods about the law and the punishments possible. Even the judge, especially the judge, will engage in such tactics. Remember that both the judge and the prosecutor benefit greatly from a guilty plea. The judge clears his extremely crowded calendar, and the prosecutor gets rid of a case. Do not trust these people to be either fair or honest with you. Under no circumstances should you plead guilty until your case has been reviewed by an attorney with your interests foremost in his mind.

At the pretrial conference your attorney will plead you guilty if he or she is a dump truck, or there is some other very good reason to do so, like two or more prior convictions that are not charged. But if you've hired a good lawyer he or she will most likely not accept the prosecutor's initial offer. Instead, the case will be set for pretrial motions and/or a jury trial. Most cases don't actually go to trial, but setting a trial date begins to get the prosecution's attention, and convinces him or her that you're serious about fighting. The more additional court appearances there are, the more opportunities there are for further plea bargaining.

But there's nothing like showing up for a jury trial to really convince the prosecutor, and the judge, that maybe now is the time to offer a better deal. Judges particularly want to clear cases on the trial calendar. For this reason they'll often switch hats and start coercing the prosecutor to offer a deal that will settle the case. Better late than never. (This is particularly true if your case is only a 0.13% BAC and they have others on the calendar awaiting trial with much higher BAC's.) What you want is a deal that is better than what you could reasonably expect most attorneys to obtain for you. That's why you hired the best. If you don't get it, you should go to trial, even though the cost - $1000 to $2000 per day - may be quite a burden. By this point you've probably already paid for at least the first day anyway. Of course, the final choice is always yours.

Evaluating Your Case

REMEMBERING: The most important thing in evaluating your case is to preserve your memory of what happened.

What kind of case do you have, what's your chances? There are five primary factors involved in evaluating any drunk driving case. Here they are, accompanied by some comments that assume you've hired one of the best, a "Recognized Leader" in DUI DefenseTM©:

  • The Blood Alcohol Concentration (BAC) - Anything 0.14% or below is a low range reading with a reasonable chance of acquittal. If it's 0.10% or less it's likely in most courts that you'll be found not guilt. If it's 0.08%, the prosecution's own expert will admit that the testing error alone is sufficient to put you below  the legal limit. But if it's 0.18% or more you've got about a one in twenty chance for your attorney to pull a rabbit out the hat and get you off.
  • How likable you are - The jury has to like you and the attorney who represents you in order to put them in the frame of mind to accept the fact that you may be innocent. If you're not the outgoing likable type, don't worry, we'll either teach you to fake it for a few days or do the best we can to at least make you polite and acceptable by others.
  • How you were driving - This one isn't really that serious since the cop himself will usually admit it wasn't decisive, but driving of the type that only someone really drunk could manage can be a real hindrance to acquittal.
  • What you said to the cop - This one is important, like everything else. But even "I'm real drunk" can be explained away. And once again, the cop is likely to say that it didn't convince him he had even as little evidence as probable cause to arrest you.
  • Physical symptoms - Not really all that important. Again, the cop will say that he had trouble making up his mind till the end.

Gastroesophageal Reflux Causes Many Breath Alcohol Testing Errors: This Zantac ad shows how gastroesophageal reflux occurs. Such reflux is a primary source of error in breath alcohol testing.

Calculate Your BAC: It's possible to calculate what your BAC may have been at various relevant times on the day of your arrest. (click here to download the program). Version 2.0 of EZ-ALC remains the world's state of the art in BAC calculations. It's just a simple DOS program, but so far no one has produced a better product. And it's shareware, so you can download it for free.

In addition, in 1990 Mr. Kuwatch first published Fast Eddie's 8/10 Method of Hand Calculating BAC which revealed a new and simple method for hand calculating BAC's. It's so simple that most calculations can be done in your head.

Punishment and Other Consequences If You Are Convicted

Court-Imposed Punishment: Click here for a chart detailing the punishment for a drunk driving conviction.

Interstate Implications of Drunk Driving Convictions

Click here for information about the consequences for a California resident of a drunk driving conviction in another state, and the consequences for a resident of another state with a drunk driving conviction in California. Includes a form for an out of state resident to use to have the California suspension removed without completing a DUI Program. Click here for information about Colorado's liberal reinstatement program.

Your Driver's License Record: 

Any traffic violation, accident, failure to appear, suspension or revocation stays on your driver's license record permanently. But Vehicle Code section 1808 sets limits on how long these events and actions are reportable to persons requesting a copy of your record. Those time limits are described in a DMV memo sent to the courts in 1998 (D.M.V. COURT INFORMATIONAL MEMO 98-4 (May 15, 1998) - Reportability of Driving Record Information) The relevant portion of the memo states:

Overview of Procedures

Suspensions and revocations shall appear on the record for three years following termination of the action or reinstatement of the driving privilege, except non-driving convictions taken pursuant to Sections 13202.6 and 13202.7 of the Vehicle Code or Section 256 and 11350.6 of the Welfare and Institutions Code which are shown only when the action is in effect.
  • Violations designated as two points pursuant to VC §12810 will be reported for seven years from the date of violation.
  • All other violations shall be reported for three years from the date of violation.
  • Accidents shall be reported for three years.
  • Failure to Appear (FTA) violations shall be reported for five years from the date of violation. (No changes from existing policy.)
DMV will disclose suspension and/or revocation actions that have not been reinstated or terminated until the action has been reinstated, terminated (see above), or there has been 10 years of inactivity - whichever occurs first.

Exception: An FTA reported under VC §40509.5(c) shall be reported for ten years from the date of violation.

Effective January 1, 1998, a felony DUI conviction or a felony manslaughter conviction shall be reported to the courts and law enforcement for ten years from the violation date (AB 130).

Note: Current fifty-five and ten-year reporting requirements for specified violations involving commercial vehicles remain unchanged.

Click here for additional details.

Check your national driving record at the National Driver Register (N.H.T.S.A).

Stop Illegal Arrest Billings!

Your attorney can use this letter from the Office of Legislative Counsel to convince judges that drunk driving arrest billings aren't for routine arrest situations.

Court Required DUI Program:

Click here for a list of California licensed DUI Program providers. These are licensed Drinking Driver Treatment Programs, usually required for license reinstatement after a drunk driving conviction. No law requires a court referral for enrollment, but some providers require it. Shop around.

Can't afford the program fees? California law (Title 9, California Code of Regulations, section 9878) requires these programs to admit persons who cannot afford the fees. As you might expect, most of these programs ignore this law, and tell you that if you cannot afford the fees, you cannot enroll. When this happens you should report it to California Department of Alcohol and Drug Programs, 916 445 0834 (1700 K St., Sacramento CA, 95814).

Expedited DUI programs are offered by Driver Benefits, Inc. in Torrance.

Automobile Insurance After a DUI Conviction:

You can expect to pay $1500 to $2200, per year for three years, over what you are now paying for auto insurance as the result of a DUI conviction.

Basic West makes it a specialty to offer insurance to persons convicted of drunk driving. Click here for some inside information about auto insurance.

Consequences for Aliens:

A simple first offense drunk driving can have serious consequences for an alien, but deportation is not one of them. However, any drunk driving conviction which results in a sentence of one year or more in custody qualifies the defendant for automatic deportation. Click here for additional information.

Pilots Must Report to FAA:

Pilots must report drunk driving suspensions and convictions to the FAA. Click here for details of the reporting requirements. Click here for additional information.

Consequences for Attorneys:

As many as three misdemeanor drunk driving convictions may not result in state bar discipline, however discipline might be imposed for just one conviction for drunk driving with injury. Click here for additional information.

Commercial Vehicles and Drivers

Commercial vehicle drivers and their employers have limited DUI reporting requirements. They told you in truck driving school to report DUI arrests immediately, but that's not required! Click here for more information.

Doctors and Nurses

Click here for information about consequences for doctors and nurses. Nurses: Also see the Greater Sacramento Area Chapter of the American Association of Legal Nurse Consultants.

Finding A Lawyer

Click here to find a lawyer in your area

There's a lot of talented salesmen out there, eager to take your money with fast talk, and lots of promises of talent, but beware - lawyers are highly skilled in the arts of persuasion and hype. That's fine if it's put to good use in front of a jury, but not if it's used to simply collect a retainer then hang you out to dry. Unfortunately, that practice is all too common.

DUI Lawyer Bar Associations: The links below connect to websites of bar associations whose members have indicated by their membership an interest in the defense of persons accused of drunk driving. DISCLAIMER: No recommendation is made or implied by the fact that of the link being on this website. Evaluate each attorney independently, without relying on the fact that he or she was found by way of a link from this site.

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