California Penal Code Section 23152 defines a DUI as operating a motor vehicle with a blood-alcohol content (BAC) of .08% or higher, with a lesser BAC that nonetheless impairs your driving capabilities, or while intoxicated and impaired by any chemical substance (drug), be it an illegal narcotic, a prescription drug, or an over-the-counter drug. It further sets a BAC limit of .04% for commercial drivers and .01% ("Zero Tolerance") for drivers under the legal drinking age of 21.
It is important to understand that the DMV hearing is completely distinct from a DUI criminal hearing, which may follow. If you win your DMV hearing, it is possible (though not especially likely) you could still be prosecuted on the charge of DUI. If you lose your DMV hearing, your license will be suspended for at least 6 months; but you can still go on to challenge the DUI in court. Alternatively, you could accept a plea deal at the DMV hearing to get access to a restricted license, which allows you to drive to/from work and DUI Class.
As to the DUI criminal hearing, most DUIs in California are charged as misdemeanors. Aggravating factors, however, can raise the charge to a felony in extreme cases.
Here is a breakdown of the basic possible penalties:
- 1st DUI: Up to 6 months in county jail, a fine of $390 to $1,000, a 6 to 10 month license suspension, and 3 to 9 months of DUI Class.
- 2nd DUI: Up to 12 months in jail, a $390 to $1,000 fine, a two-year license suspension, and 18 to 30 months of DUI School.
- 3rd DUI: Up to 12 months of jail time, the $390 to $1,000 fine, a three-year license suspension, and 30 months of DUI School.
- 4th and Subsequent DUI, a felony charge: 16 months to 3 years in state prison, the $390 to $1,000 fine, a four-year license suspension, and up to 30 months of DUI School.
- Misdemeanor DUI-with-injury: Up to 12 months in jail, full restitution plus a fine of from $390 to $5,000, a 1 to 3 year license suspension, and 3 to 30 months of DUI School.
- Felony DUI-with-injury: 16 months to 16 years in state prison, full restitution plus a fine of $1,015 to $5,000, a five-year license suspension, and an 18 to 30 month DUI Class.
At Pasadena Criminal Attorney, we have a large repertoire of defense strategies we use in DUI cases, including:
- Poor driving does not prove DUI. Most traffic violations have nothing to do with DUI, and "driving pattern" is not a reliable way to identify DUI offenders, as even the NHTSA admits.
- Physical appearance does not prove DUI. Red eyes, slurring of speech, unsteady gait, and the alleged detection of alcohol in one's breath are often used by the prosecution, but in reality, there are other possible explanations to all of these "objective symptoms" of DUI.
- FSTs are often inconclusive. Fatigue, nervousness, weather, and medical conditions can all affect a suspect's performance of field sobriety tests. Additionally, the tests are not always administered properly by arresting officers.
- Mouth alcohol throws off breath tests. Residual alcohol from any source (including mouthwash and medicine) can cause a falsely high BAC result when breathalyzers are used.
- Still-rising BAC. If there was a significant time-gap between being pulled over and taking your BAC test, you could have had a lower BAC while behind the wheel than what test results showed.
- Ketones threw off the BAC reading. Those with diabetes, fasting, or on a high-protein or low-carb diet produce extra ketones, a substance similar to alcohol and some of which is exhaled in the breath. California breathalyzers can mistake ketones for ethyl alcohol.
Police violated protocols or your rights. If arresting officers violate California Title 17 when collecting and storing blood and breath samples, the resulting evidence will be suspect. And if police gathered evidence against you by an illegal search and seizure, stopped or arrested you without probable cause, or failed to read you your Miranda Rights, we can seek to have that evidence declared inadmissible, which will usually make the prosecution's task impossible.
