In any traffic stop, the officer must have a “PC” also known as Probable Cause. This means that the officer must reasonably believe that a crime has been committed and you likely committed that crime. Keep in mind that traffic violations are also crimes. In a California DUI situation, the arrest occurs after several events take place. Usually the suspect is observed committing a violation of California traffic laws. The driver is then puled over for investigation and is usually athis stage is “detained”. Other California DUI arrests start with a checkpoint.
After the officer initiate communication, he/she will ask a series of questions. Answering any of these questions may incriminate you. Also, because you’re only “detained” for investigation purposes, the officer is not required to read you your Miranda Rights. Miranda right, such as the right to remain silent and the right to an attorney are rights the officer must read you after you are under arrest. This is commonly known as “custodial interrogation”>
At the investigation stage, the officer asks a series of questions and perform FSTs (Field Sobriety tests) which is often followed by asking you to take a breath teat. After arrest, the officer will take you to the station or a hospital and will ask you to participate in a blood or breath test. (you’re required by California DUI laws to participate and complete this test.) refusal results in tough penalties including a one-year drivers license suspension.
You’re not required to perform FSTs at the scene and/or submit to a breathalyzer test at the scene.
In misdemeanor cases, you are released after a few hours. Sometimes you may be required to post bail. This is specially true if you are arrested and booked on a felony DUI or accident case.
Upon release you should be given two documents: a citation to appear in court, and a pink temporary license. The cops will usually take your California drivers license and mail it to the DMV. If you’re from out of state and get a California DUI, the police here will not take your physical license.
The DMV Process
You must contact the DMV within 10 days of your arrest to demand a hearing. Otherwise you forfeit your right to a hearing and your license automatically goes into suspension after 30 days. If you hire a California DUI lawyer, he/she can request the hearing for you. This way the lawyer can ask for a hearing further out and give himself time to prepare and also time to issue and serve the necessary subpoenas.
The California DUI lawyer either conducts the hearing telephonic-ally or in-person. You may or may not be asked to participate. Your California DUI lawyer’s primary objectively is to do whatever is legally possible to prevent your license from being suspended.
An experienced Califronia DUI Attorney can subpoena records and calibrations as well as witnesses to testify at the hearing.
If Your License is Suspended
If you do sustain a drivers license suspension, you can usually get a restricted license within 30 days. This allows you to drive to and from work as well as religious locations such as a church and related activities and any court or DMV imposed alcohol program. Sometimes we can make arrangements to get you a restricted license right away. But you must heed the suspension while it’s in effect. Driving with a suspended license in California is a crime and can lead to jail time, a probation violation and a much longer license suspension.
DUI Court Proceedings
First, one may be charged with a DUI even if his BAC (Blood Alcohol Content) is below .08. Here the prosecution must prove beyond a reasonable doubt that the individual was under the influence of alcohol, drugs or a combination of the two. When the BAC is greater than .08 then the individual can be charged with the statutory violation of 23152 (b) of the Vehicle Code (VC).
Your objective is to avoid conviction for either of these offenses.
Our California DUI attorney /California Criminal attorneys will attend all DUI court proceedings on your behalf unless there’s a hearing where you have to attend. From the first time you signup with a DUI attorney to the time of trail, your DUI attorney collects evidence, files and argues motions, and negotiates with the judge and prosecutor seeking a dismissal or a reduction in the charges.
If a settlement is reached involving you pleading to a DUI or a lesser charge, this can be completed by you signing notarized documents in advance and handing them to your lawyer to appear for you or to appear with your lawyer on the day of the hearing.
If no settlement is reached, the DUI case ultimately will get set for jury trial. fter a case gets set for trial…as there may be more trials on the docket than courtrooms available to accommodate them. Also, problems in the state’s evidence become more apparent when a trial D.A. finally takes a hard look at the case.
1. California’s “Implied Consent” DUI Law
California DUI law, like that of most other states, contains an “implied consent” rule. This law states that if you drive a car in California, and are lawfully arrested for a California DUI, you are deemed to have given consent to the chemical testing of your:
- breath, or
- urine (only in cases where you are suspected of driving under the influence of drugs).
Simply put, this means that you must submit to a chemical test to determine the alcohol and/or drug content in your body after you have been lawfully arrested for a California DUI.
Submitting to the PAS and then refusing to submit to a subsequent chemical test after your arrest will be considered a refusal.
Although the PAS test is optional for adults, it is mandatory for those under 21. If you are under 21 and suspected of DUI, you are also deemed to have given consent to the PAS and an additional blood, breath, or (where applicable) a urine test.
“One offer plus one rejection equals one refusal”. 1 California DUI law holds that you only have one opportunity to submit to a test. This means that if you initially refuse to provide a blood, breath, or urine sample (but then later change your mind and agree to take one), it may be too late. The officer is under no duty to provide you that second chance. Similarly…
- Your Silence will be Construed as a Refusal
- Failing to Complete a Test is the Same as Refusing a Test
When you are advised by the arresting officer of your duty to submit to a chemical test, he/she specifically advises you that:
- Your failure to submit to, or
- Your failure to complete a chemical test will result in additional penalties, including jail time and a driver’s license suspension.
The DMV and California DUI Chemical Test Refusals
If you refuse to submit to a chemical test, the DMV will automatically suspend your license. Once you are arrested, you have ten days to request a California DMV hearing to contest that suspension. Doing so may postpone your suspension, pending the outcome of the hearing.
There are only four issues that will be addressed at the hearing:
- Did the arresting officer have reason to suspect that you were DUI?
- Were you lawfully arrested?
- Were you properly advised that your license would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
- Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so?
If you prevail at this hearing, you license will not be suspended by the DMV. If, however, you are unsuccessful, your punishment will include:
- A one-year driver’s license suspension for your first DUI offense,
- A two-year license revocation for your second DUI offense within ten years, or
- A three-year license revocation for your third DUI offense within ten years.
It is important to note that the DMV takes this action regardless of what happens during your court proceedings. That being said, there are circumstances where a license suspension/revocation could be lifted. Those will be addressed below.
The Court and California DUI Refusals
Refusing a chemical test could actually have a positive impact on your court case. Without corroborating chemical test results, the D.A. may not believe that the arresting officer is credible or articulate enough to convince the jury that you were DUI. In that event, your DUI charges could be reduced or dismissed.
- Reduced Charges and the DMV
Suppose you plead guilty or “no contest” to a reduced charge of California reckless driving, but the DMV ruled against you at the DMV hearing. Your DMV license suspension/revocation will remain in effect. Similarly, if the prosecutor dismisses the refusal allegation but still has you plead guilty to a DUI, your suspension/revocation will remain. But…
- Dismissed Charges and the DMV
Suppose your charges get dismissed by the court or the D.A. decides not to file your case. You may be entitled to have a subsequent DMV hearing to try to get your suspension/revocation lifted. However, even with this favorable court result, there is no guarantee that the DMV will follow suit.
If the D.A. is unwilling to reduce your charge and requires you to either (1) plead guilty or “no contest” to DUI with the refusal enhancement, or (2) take your case to trial and lose, a conviction will result in the following sentence:
- An additional 48 hours in a county jail for your first DUI offense and a minimum nine-month California DUI school,
*This DUI School requirement is in lieu of the three-month program that is imposed for California DUI convictions that don’t involve refusals.
- An additional 96 hours in a county jail for your second DUI offense within ten years,
- An additional 10 days in a county jail for your third DUI offense within ten years, or
- An additional 18 days in a county jail for your fourth or subsequent DUI offense within ten years.
*These penalties are enhancements that will be imposed in addition and consecutive to any other DUI sentence imposed by the court.
Defending Against a California DUI Refusal:
- There was no “lawful” arrest
- You were not driving under the influence
- The arresting officer didn’t advise you of your obligation to submit to a chemical test
- You were incapacitated and therefore weren’t able to consent
If you had a medical condition which rendered you incapable of submitting to a test, your refusal can’t be held against you. However, neither voluntary intoxication nor any other self-induced condition will excuse your refusal.
- The “refusal admonition” was confusing or misleading
The refusal admonition must be given in a clear and unambiguous manner.