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• Welborne Law Firm: Driving under the influence charges (DUI) can be filed as a misdemeanor or felony. If the case involves serious injury to a person or the client is charged with a fourth misdemeanor conviction within 10 years of three previous convictions then the fourth case can be filed as a felony. Under California law, there are two separate charges for DUI. Vehicle Code §23152(a) ­ It is unlawful to drive a motor vehicle under the influence of alcohol and/or drugs Vehicle Code §23152(b) ­ It is unlawful to drive a motor vehicle with a blood alcohol level of 0.08% or more A person can be charged with the crime of DUI if they have a 0.08 blood alcohol level in their system OR if they have any amount of alcohol in their system and it effects their driving. In addition, a person can be charged with driving under the influence even if no alcohol is present but they have ingested some other mind-altering substance. This includes both illegal and prescription drugs. Examples of some defenses to DUI charges include: (1) an illegal stop-meaning the police officer illegally stopped a client, (2) the arrest was unlawful or lacked probable cause. (3) police failure to follow testing procedures (Title 17), (4) the client burped, vomited or regurgitated prior to giving a breathe test, (5) Chain of custody issues with a blood sample,(6) the blood sample was somehow compromised, (7) breath testing inaccuracies. The client can choose either a blood or breathe test or can choose to take both. A urine test is no longer an option. A refusal to take a blood or breathe test can lead to a 1 year license suspension. In Orange County, a 1st time DUI normally does not include any jail time as long as there is no bodily injury; A 2nd time DUI (within 10 years of a first conviction) requires a minimum of 96 hours in jail but in Orange County most courts require between 30 and 90 days (with exceptions); A 3rd time DUI (within 10 years of 2 prior convictions) requires a minimum of 120 days in jail but most persons convicted of this crime do between 6 and 9 months in Orange County; A 4th time DUI (within 10 years of 3 prior convictions) requires a minimum of 180 days in jail but most people do a year in county jail or 16 months in state prison. Effect of a Driving Under The Influence charge on your license For every DUI arrest, there is both a court proceeding and a separate administrative hearing before the Department of Motor Vehicles. It is possible to win the court portion of the DUI but lose the DMV portion and have your license suspended or revoked and vice versa. It is important to hire a lawyer who has experience with both the courts and the DMV. PLEASE NOTE, YOU MUST CONTACT THE DMV WITHIN 10 DAYS OF BEING ARRESTED OR YOU WILL LOSE YOUR RIGHT TO A HEARING; IF YOU HIRE MR. WELBOURN, HIS OFFICE WILL CONTACT THE DMV FOR YOU, REQUEST DISCOVERY AND IN MANY CASES OBTAIN AN EXTENSION OF YOUR DRIVING PRIVILEGE. The DMV must prove three things in order to take action against your license in the event you are stopped for driving under the influence: That the officer who stopped you had reason to believe that you were driving in violation of Vehicle Code Section 23152 a or b (23152 is the drunk driving code section and this element requires essentially that the officer observed you weaving, speeding or some other articulable traffic offense that justifies you being stopped.). That you were lawfully arrested; That you were driving with a blood alcohol level of 0.08 or greater. While it may seem that these elements are easy to prove in fact the DMV has several vulnerabilities. First and foremost is that there is generally no testimony at these hearings and thus the hearings are restricted to what is contained in the police report. Thus, if the report omits certain critical facts then there is no one to testify at the DMV hearing to correct them. If the DMV hearing is lost then the following can occur to your license. 1st DUI: 4 month suspension (no driving) OR 1 month suspension + 5 month restriction (limited driving) if the client presents to the DMV with (1) proof of enrollment in an alcohol school for first time offenders; (2) an SR-22 insurance form and (3) a $125.00 fee after the 30 days suspension period is over. 2nd DUI: 1 year license suspension. As long as client is enrolled in 18-month alcohol school they can get back at least part of their driving privilege after the 1-year suspension is elapsed even if they have not completed their alcohol school. 3rd and 4th DUI: Revocation of license for 3-5 years. A revocation requires that once the revocation period has elapsed the client must apply to get his driving privilege back.
• Sapra & Navarra:

  DUI OVERVIEW INVESTIGATIVE STAGE Most DUI investigations begin when a police officer observes an individual driving erratically, or observes signs of intoxication after stopping an individual for another Vehicle Code violation. Occasionally an informant will give police information that begins the investigation. This issue should not be overlooked because an informant may be a material witness who could give evidence that might exonerate the individual. Typically, the officer begins by asking investigative questions such as “Where have you been?” “What have you been drinking?” “How many drinks did you have?” and “When did you drink?” If the questions are merely investigative and not part of a “custodial interrogation,” then the officer does not need to give Miranda warnings, and answers to the questions are admissible in court. However if the questions are part of a “custodial interrogation,” the Miranda warnings must be given. The officer may then administer several Field Sobriety Tests (FSTs) to determine if there is probable cause to arrest the individual for drunk driving. There are three “standardized” FSTs recommended by the National Highway Traffic Safety Administration: walk and turn, one leg stand, and horizontal gaze nystagmus. However, these tests are often unreliable for several reasons: Failure of police officers to administer FSTs correctly. Individual differences in mental and physical abilities. Poor test conditions such as noise, poor lighting, uneven surfaces, and traffic wind. Failure of police officers to accurately record the individual’s performance. In addition to the three “standardized” FSTs, there are several “non-standardized” FSTs that are even less reliable. They include the Romberg balance, finger to nose, hand pat, finger count, and alphabet tests. Finally, the officer may use a preliminary alcohol screening (PAS) device to determine if there is probable cause to arrest the individual for drunk driving. The PAS is a portable, hand-held breath testing machine, and the PAS test is another form of FST. So the officer must advise the individual that he may refuse to take the PAS test. ARREST & RELEASE If the officer determines after investigation that there is probable cause to arrest the individual for drunk driving, he may arrest the individual without a warrant. Under Vehicle Code Section 23612, the “implied consent” law, the officer must inform the individual upon arrest that he will be given a chemical test, and that he has a choice between a blood test or breath test. Generally the individual is held until he has sobered up, typically 4 to 12 hours. The individual is then given a citation that informs him of the date, time, and place to appear in court, and released on his own recognizance (“O.R.” release). POTENTIAL DUI CHARGES & ENHANCEMENTS Here is a selection of potential DUI charges and sentence enhancements. The “DUI” Count (VC §23152(a)): A person arrested for driving under the influence of alcohol or drugs is typically charged with a misdemeanor violation of Vehicle Code Section 23152(a). This is commonly called the “DUI” or “A” count, and it prohibits driving a vehicle while under the influence of alcohol or drugs. Impairment must be proven, but evidence of blood-alcohol concentration (BAC) can be offered as evidence of impairment. The “Per Se” Count (VC §23152(b)): If a person submitted to a blood-alcohol test and the results were 0.08 percent or higher, he may also be charged with a misdemeanor violation of Vehicle Code Section 23152(b). This is commonly called the “Per Se” or “B” count, and it prohibits driving a vehicle with 0.08 percent or more alcohol in the blood. “Prior” Convictions (VC §§23540 and 23546): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and has one or two prior DUI-related convictions within ten years, the criminal sentence may be enhanced. “Four Strikes” (VC §23550): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and has three prior DUI-related convictions within ten years, he may be charged with a felony. “Felony Drunk Driving” (VC §§23153(a) and 23153(a)): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and caused injury to another, he may be charged with a felony. “Refusal” (VC §23577): If a person refuses to submit to or complete a chemical test, the criminal sentence may be enhanced. “Excessive” BAC (VC §23578): If a person submitted to a blood-alcohol test and the results were 0.15 percent or higher, the criminal sentence may be enhanced. “Excessive” Speed (VC §23582): If, while violating VC §23152(a) or VC §23152(b), a person drives recklessly and more than 30 miles per hour over the maximum speed limit on a freeway or more than 20 miles per hour over the maximum speed limit on a street or highway, the criminal sentence may be enhanced. ARRAIGNMENT The first court appearance is called the arraignment. Unless a felony is charged or the court ordered the defendant to appear, the defendant need not appear, and his attorney can appear for him. At the arraignment, the court provides a copy of the complaint. The complaint lists the charges and any enhancements such as prior convictions. Then the defendant enters a plea to the charges, typically “not guilty,” and a date and time is scheduled for a pretrial conference. Sometimes, rather than entering a plea to the charges, it may be necessary to challenge or “demur” to the complaint because it is defective in some way. For example, the court may lack jurisdiction; the complaint may be ambiguous; the complaint may improperly join codefendants or several offenses; or the prosecution may be barred by the statute of limitations. PRETRIAL CONFERENCES A pretrial conference is an opportunity to argue motions and plea bargain. A case may have several pretrial conferences depending on the motions filed and complexity of the case. DISCOVERY “Discovery” is information that may be used as evidence, either for the prosecution or defense. Discovery may include, for example, the police officer’s arrest report and “field notes,” reports written by the arresting officer in other DUI cases, prior altercations between the arresting officer and other arrestees, the DMV officer’s affidavit, police manuals, booking slips, “mug shots,” audio and video tapes, radio dispatch tapes, oral and written statements of the defendant, the identity of witnesses, records of felony convictions of the defendant and witnesses, defendant’s driving record, and the results of chemical tests. Sometimes the prosecution does not provide the defense with discovery that may help the defense. So, defense counsel must draft, file, and argue a motion for the court to order the prosecution to provide the discovery. Discovery motions are often critically important to the outcome of a case. MOTIONS A motion is an application for a court order. The court rules on a motion at a hearing. Here are some selected motions: Change venue Demurrer Severance or joinder Bail or O.R. release Recuse prosecutor Challenge judge Grant immunity Reduce felony to misdemeanor Strike a prior conviction Continuance Suppress evidence because of illegal search and seizure (P.C. §1538.5 motion) Suppress testimony based on evidence lost or destroyed by the prosecution (Trombetta/Youngblood motion) Suppress PAS test results based on lack of foundation or violation of Due Process Disclose a police officer’s past misconduct (Pitchess motion) Disclose an informant’s identity Disclose evidence of discriminatory prosecution (Murgia motion) Dismiss case because of discriminatory enforcement, retaliatory prosecution, denial of speedy trial, or failure to prevent deportation of a material witness Dismiss case because of denial of speedy trial Appointment of an expert Discovery Compel production of fingerprints, blood, breath, urine, or voice Preserve police tape TRIAL If a case does not settle, it goes to trial. DUI trials are complex because of the variety and complexity of evidence involved. Scientific experts testify about chemical testing equipment, alcohol absorption and elimination rates, and the physical and mental effects of alcohol. Arresting officers testify about the defendant’s driving, performance on FSTs, appearance, and behavior. Lay witnesses may also testify about the defendant’s driving, appearance, and behavior. A conviction requires that all 12 jurors agree the defendant is guilty. An acquittal requires that all 12 jurors agree the defendant is not guilty. A mistrial occurs when the jury is deadlocked and the judge determines there is no reasonable probability that the jury can reach a unanimous verdict. If such a mistrial occurs, the case may be tried again. SENTENCING OPTIONS DUI sentencing is very complex. In a misdemeanor conviction, the sentence may include jail time or probation and a number of other terms, for example Fine Restitution Community Service CalTrans roadside trash collection Alcoholics Anonymous attendance, or completion of an alcoholic rehabilitation program Residential alcohol treatment Drinking/Driving education programs (“DUI school”) Driver License restriction Ignition Interlock Devices (IID) Work furlough Electronic home detention (“house arrest”) Vehicle Impound/Forfeiture CRIMINAL PENALTIES First offense Jail: 48 hours to 6 months with probation; 96 hours to 6 months without probation Fines: $390 to $1,000 License: 6-month suspension Driving Programs: 3 or 6 months Second offense within 10 years Jail: 96 hours to 1 year with probation; 90 days to 1 year without probation Fines: $390 to $1,000 License: 2-year suspension Driving Programs: 18 or 30 months Ignition Interlock Device: mandatory for restricted license Third offense within 10 years Jail: 120 days to 1 year with or without probation Fines: $390 to $1,000 License: 3-year revocation Driving Programs: 18 or 30 months Ignition Interlock Device: mandatory for restricted license Fourth offense within 10 years Jail: 180 days to 1 year for a misdemeanor with or without probation; 16 months, or 2 years, or 3 years for a felony without probation Fines: $390 to $1,000 License: 4-year revocation Driving Programs: 18 or 30 months Ignition Interlock Device: mandatory for restricted license

• Cromwell Law Firm: It is extremely important to contact an experienced criminal defense lawyer when you are charged with a DUI drunk driving offense. If you do not act promptly, you may loose your right to a hearing and your driver’s license will be automatically suspended. Your legal problems might really start – the punishment for a first offense of driving on a suspended license will earn you a minimum of ten days in jail.
• Coffey & Coffey: California DUI: "DUI" stands for Driving Under the Influence and occurs when someone is operating, or is in actual physical control, of a motor vehicle while under the influence of alcohol or other controlled substance, to the extent that their mental faculties are impaired and/or their blood alcohol content (BAC) is above the legal limit. Even for a first offense, penalties can include license suspension, substantial fines, community service, mandatory attendance at a state or DMV approved alcohol program, mandatory overnight incarceration and required installation (at the offender's expense) of a car ignition locking device. In addition, a DUI conviction stays on a DMV record for at least 7 years, it typically results in higher insurance premiums and an offender may become ineligible for credit. Plus, a DUI could also jeopardize your employment opportunities. However, if someone was injured as a result of the drunken driving accident, it is possible the defendant will be charged with a felony (and if the victim dies, the driver may be charged with vehicular manslaughter). Further, a DUI conviction will likely be raised to a felony if it is the driver's fourth DUI offense or the driver has had a prior felony DUI offense within 10-years of the new charge.
• Amy McDonald: The following are a few of the many defenses to a DUI case.
  
  Motion to Suppress Evidence
  (1538.5 motion)
  
  The best defense to a DUI charge is that the officer did not have proper grounds to make contact with you. If you can convince a judge of this fact through a 1538.5 motion, your case will be dismissed without even going to trial. One of the best examples of a good 1538.5 issues is that the officer stopped you for failing to use your turn signal. The only time using your turn signal is necessary is when “traffic is being affected.” Many police officers don’t understand this concept, but most judges in Orange County do!
  
  
  No Driving
  
  The first issue a prosecutor has to prove in a DUI case is that you were driving a motor vehicle. In some cases the police officer does not actually see you driving. When only circumstantial evidence exists, the defense that you weren’t actually driving can be very effective.
  
  
  Scientific Defenses
  
  There are a variety of scientific defenses that require expert testimony. Some are more effective than others depending on the facts of your case.
  
  The two best scientific defenses are:
  
  Rising Blood Alcohol
  The law requires that you not have a blood alcohol level of .08% or greater at the time of driving. What your blood alcohol level was before or after driving is irrelevant if you can prove that at the time of driving, your blood alcohol level was below a .08%. An expert can testify, depending on your drinking pattern, that even though you were a .08% or greater at the time you were tested, you were actually below a .08% at the time of driving. This has proven to be a very effective defense in many cases.
  
  Margin of Error
  The breath test used to measure your blood alcohol level has a margin of error of .01% to .02%. There is built–in reasonable doubt on a test result of .08%. This is definitely a very effective argument at trial.
• Fred Thiagarajah: In California, DUI stands for Driving Under the Influence. In other states, they use the term "DWI" which stands for "Driving While Intoxicated." There is no difference between these two terms. Currently, in California, there are actually TWO laws that are related to drinking and driving. The first law California Vehicle Code section 23152(a) states that you cannot drive while under the influence of alcohol and/or drugs. The second law California Vehicle Code section 23152(b) states that you cannot drive while their blood alcohol is .08% or higher. If you get arrested for drinking and driving, you are usually charged with violating both of these laws. If you're arrested for driving under the influence of drugs only, then you are only charged with violating the first law. When lawyers and judges talk about DUI, they usually refer to both laws at the same time. DUIs are normally charged as misdemeanor offenses. However, there are three situations where the District Attorneys Office will charge a DUI as a felony: 1. If there was an accident where someone was seriously injured or killed; 2. If this is your fourth DUI within the last 10 years; 3. If you have already been convicted of a felony DUI within the last 10 years. Penalties for a DUI vary widely depending upon the county youre in and the circumstances of your particular DUI. Normally, a person will receive the following types of penalties: Probation Jail Time Fines and/or Fees DUI program Driver's License Suspension or Restriction Ignition Interlock Device (for multiple DUIs usually) The penalties for each of these categories can rise if certain aggravating factors are present, such as: Prior DUI Refusal to complete a chemical test High blood alcohol level Driver under 21 Passengers under 14 Accident Reckless driving and/or excessive speeding However, in some counties, you can get your charge reduced if you're blood alcohol level is close to the legal limit. These reductions require negotiations with the District Attorney's office. It's important to contact an attorney in order to evaluate all your options. In more aggressive counties, it's even possible to charged with a DUI if you're blood alcohol level was under .08%. As mentioned above, there are two DUI laws. You can be charged with the first law -- driving "under the influence of alcohol" -- regardless of your blood alcohol level. In most counties, you will be arrested if your blood alcohol level is .07% and you may even be arrested if your blood alcohol level was . 05% or .06% AND there was really bad driving and/or an accident. By law, you are presumed to be not "under the influence" if your blood alcohol level was .04% or less. However, if you are arrested for driving with a blood alcohol level less than .08%, a good attorney can get the charges reduced and sometimes, get the charges dismissed.
• Rann Law Firm: There is no safe way to drive while under the influence. Even one drink can make you an unsafe driver. Drinking affects your BLOOD ALCOHOL CONCENTRATION (BAC). It is illegal to drive with a BAC of .08% or more (.04% or more if you drive commercial vehicles or .01% or more if under 21). Even a BAC below .08% does not mean that it is safe or legal to drive.
• Daniel Grupenhagen: The charge of driving under the influence, or DUI, sometimes called DWI, usually consists of two charges: VC 23152(a), and VC 23152(b). The difference between them is that one applies when driving is impaired by alcohol and/or drugs, and the other applies when driving occurs when your blood alcohol content is over .08. The similarity among them is that they both carry a maximum of $1,000 fine and/or 1 year in jail for a first offense. See the penalties outlined below for a more complete statement of DUI penalties. If you are convicted of either charge, it counts as two points against your negligent operator count at the DMV. As of 2005, conviction for DUI is "priorable" for the next ten years. If you are arrested again for a DUI within that time, it will count as a second offense requiring mandatory jail time and a license suspension for one year. If you are caught driving while your license is suspended for a DUI in Orange County, the mandatory minimum jail term is 10 days.
• Bassiri & Associates: Dos & Don'ts: When You Get Arrested

  Dos & Don'ts: When You Get Arrested

  The Dos Do be polite and as courteous as possible to the police. Do not give them any reason to find you threatening. Do not give them the impression that you are hard to deal with or irritating. Do ask for the police officer's name and badge number, or read it off of his or her badge. Try to remember it. Try to get a good look at the officer's face so that you can identify him or her later by that method, if necessary. Do, if you are arrested in your car, show the police officer your driver's license and registration information. In other situations, such as when you are stopped while walking down the street, you cannot be arrested for the sole reason of refusing to provide information, including your name and address, to the police. Do, if you are taken into custody, demand the right to have an attorney present before speaking to the police. Do ask if you are under arrest. If you are, you have the right to be told why. Do clearly inform the police that you will not speak to them about anything without an attorney being present. Do, as soon as you can, write down everything that happened during the course of your arrest so that you can use that writing to refresh your memory at a later date. Do, if you are physically injured by the police during the course of your arrest, seek medical attention and inform your medical providers of the cause of your injuries. Take photographs of your injuries as soon as possible. Do remember that you do not need to answer ANY question that the police ask of you. If you answer a question which at first seems harmless, be aware that it may later come back to haunt you. The Don'ts Don't offer information to the police, no matter what tactics they use. Don't assume that the police have a search warrant just because they say that they do. If they say they have a search warrant, ask to see it. Don't get into an argument with the police, no matter how hard they may try to bait you into losing your temper. Don't initiate physical contact with the police, even if you mean them no harm. Don't place your hands where the police cannot see them. Don't run away from a police officer if you see one (or more) approaching you. Running away may give the police reason to suspect that you are hiding something from them, even if you are totally innocent. Don't interfere with or obstruct the police. If you do, you can face additional criminal charges. Don't resist arrest. Even if you think you are innocent, the time to protest comes later. If you resist arrest, you may face additional charges. Don't allow the police to listen in on any telephone call that you make to your lawyer once you have been arrested. While the police may listen in on conversations to other individuals, they cannot listen to a conversation with your lawyer because it is protected by the attorney-client privilege. Don't speak to the police about anything before you attorney arrives and talks to you first. Don't provide the police with any information other than your name and address if you are arrested unless your attorney is present and approves. Don't sign anything, no matter what it is, without an attorney being present. Don't say anything if your attorney instructs that you remain silent. Let your attorney do the talking for you, no matter how hard it may be to resist the urge to speak. Don't agree to participate in a line-up without your attorney being present. Don't lie to your attorney, or to the police if you chose to talk to them.

• Michael Bruggeman: Those accused of crimes have constitutional protections not afforded in other areas of the law. These rights include the right to an attorney of the accused's choosing, the 5th Amendment privilege against self-incrimination, the right to a jury trial within a specified time, the right to see, hear and confront all the evidence presented against them, and the right to present evidence and witnesses on their own behalf. Proof beyond a reasonable doubt must be produced to convict a person of any class of crime.
• Joseph Low: It is a crime for anyone with a blood alcohol level of .08 percent or higher to operate a motor vehicle on a public roadway. It is a crime to drink any alcoholic beverage in a motor vehicle upon a public roadway. It is a crime to have an opened container holding any amount of alcoholic beverage in a motor vehicle on a roadway unless the container is kept out of the immediate control of the occupants. Anyone arrested for driving under the influence must submit to a chemical test (blood, breath, or urine) to determine the alcohol content of the blood. Failure to complete or refusal to take the test will result in suspension of the driver's license for one year. If you are arrested for driving under the influence and your blood alcohol level is .08 percent or more, your driver's license will be taken away by the arresting officer at the time of your arrest. A 30-day temporary permit will be issued by the Department of Motor Vehicles to allow for administrative review and appeal, then your license will be suspended for four months. If you refuse to take a test, your license will be suspended for one year.
• Randell Monaco: If you have been arrested for DUI offense in California, you are facing very serious charges, the possibility of mandatory jail time and maybe even the loss of your driver's license. You will need an experienced and aggressive DUI defense lawyer to immediately assist you in protecting your rights and representing you in both the criminal justice system and with the DMV. These matters are difficult, but they can be successfully defended by an experienced and aggressive criminal defense lawyer.
• John Barton: The police will send various reports to the prosecutor's office. After your case is reviewed, the prosecutor will probably file at least two charges against you: Vehicle Code 23152(a), driving under the influence, and Vehicle Code 23152(b), driving with a blood alcohol of .08% or more. Although these charges are related, each is a separate misdemeanor offense and each carries a maximum penalty of 6 months in jail and a $1000.00 fine. If you have any prior convictions for DUI, the penalties are even more severe. If there was an accident and anyone was injured, the charges could be felonies [VC 23153 (a) and (b)]. The officer will confiscate your license and give you a temporary one good for 30 days. After that, the DMV will suspend your license for four months (on a first offense), one year on a second offense, no matter what happens in court. The only way to attempt to avoid this is to immediately schedule a DMV hearing. The DMV is completely separate from the courts, and there are only a few technical issues the DMV will consider. Your chances with an experienced attorney on your side are much better.