Peter Tiemann:
The following are
commonly asked questions by those arrested for DUI and Drunk Driving in
California. However, each case is unique in its facts and circumstances
and you will have your own individual concerns. Please contact our
office to discuss the specific issues in your individual case.
DUI Frequently Asked Questions
Will
I need to attend court?
What is an ignition interlock device and when is it required?
What is
an arraignment?
Will I have to
do an alcohol education program?
What is a
"D.U.I."?
Should I take my case to
jury trial?
What is my
"B.A. C."?
What is a
P.A. S. test?
What does it
cost to hire an attorney for a DUI?
What is
"discovery"?
What
is a DMV "APS Hearing"?
What is a
"blood split"?
Could I go to
jail?
Can I drive while
awaiting my DMV hearing?
What is a restricted license?
What are the
usual Court penalties for a DUI?
Do I need
an attorney?
What is a
"Wet Reckless"?
Will my insurance company cancel my auto insurance or substantially
increase my premiums if I am convicted of a DUI?
What "penalties" can the
DMV impose?
Q.
Will I need to attend court?
A. If you are charged
with a misdemeanor D.U.I., we can make most court appearances for you.
It is our intention to protect your legal rights and we will advise you
when or if it is in your interest to attend court with us.
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Q.
What is an ignition interlock device and when is it required?
A. The ignition
interlock device is an instrument which, when installed in an
automobile, requires the driver to blow into the device before the
engine will start. The device detects the presence of alcohol on the
driver's breath and will disable the vehicle's engine in that event. The
device is expensive and must be calibrated regularly. The Court can
order the device be installed in any vehicle owned or operated by the
defendant, for up to three years. It will be considered a possible
condition of probation whenever a defendant has a prior conviction, or
where a first offender's breath or blood alcohol reading is over .20
percent. In addition, in circumstances where the licensee has been
suspended for two or more years by the DMV for a second or subsequent
offense, the DMV may require proof of installation of the device before
granting a restricted license after a year of the suspension has
elapsed.
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Q.
What is an arraignment?
A. The arraignment is
your first court appearance at which the Court will require you to enter
either a "guilty" or "not guilty" plea. Depending on the circumstances
of your case, we will normally attend the arraignment for you, obtain a
copy of the arrest report, enter a "not guilty" plea, and continue your
case for a pre-trial conference with the prosecutor and/or judge.
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Q.
Will I have to
do an alcohol education program?
A. Upon conviction of
a DUI or "Wet Reckless," the Court will require, as a condition of
probation, that the defendant complete an alcohol education program. For
a first offense, the length of the program is usually three months,
involving weekly meetings of two to three hours in length. However, a
six or nine month program may be required if the breath or blood alcohol
reading is high (over .15% blood-alcohol). For a second or subsequent
offense, the length of the program is normally 18 months, but may be 30
months in duration. There is a limited, 12 hour program for a conviction
of "wet reckless."
The programs are
privately run, but licensed by the state. The cost of the "wet reckless"
program is approximately $220.00. The DUI programs vary from
approximately $450.00 for a three month program to approximately
$1400.00 for an 18 month program.
In addition, if a
licensee is suspended by the DMV for four months for a first time DUI
arrest, the DMV will require enrollment in a three month program (or a
six month program if the blood or breath alcohol content is over .20%)
before granting a restricted license.
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Q.
What is a "D.U.I."?
A. D.U.I. stands for
"driving under the influence," and typically involves two criminal
charges. These are:
Driving under the
influence of drugs or alcohol (section 23152(a), California Vehicle
Code).
Driving with a blood
or breath alcohol concentration of 0.08% or more (section 23152(b),
California Vehicle Code).
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Q.
Should I take my case to
jury trial?
A. We will explore all
available issues and defenses and advise you at each stage of the
proceedings. You will be given full advice on the benefits of jury
trial, depending on the particular circumstances of your case. We
meticulously prepare every case as if it were going to trial, and are
ready to try your case should you choose to do so. Additionally, this
level of preparation promotes the possibility of dismissal or reduction
of charges or other settlement, before trial.
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Q.
What is my "B.A. C."?
A. This is your Blood
Alcohol Concentration as measured by a blood, breath or urine test.
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Q.
What is a PAS. test?
A. A Preliminary
Alcohol Screening (P.A. S.) test involves the use of a small hand-held
device that indicates the presence of alcohol in your breath. If you
blew into a P.A. S. machine before your arrest, its reading may be an
important issue in your case. If necessary, we will challenge the
relevance and admissibility of the PAS test reading.
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Q.
What does it
cost to hire an attorney for a DUI?
A. Fees vary depending
on the law firm or attorney, the facts and seriousness of the case and
whether the case is settled or tried. However, for a first offense
without aggravating factors, fees will generally range from as little as
$1000.00 (typically charged by an attorney with limited experience and
no expertise in drunk driving defense), to between $3,500.00 to $15,000
(for an attorney with extensive experience and a practice devoted
exclusively to the defense of Driving Under the Influence cases).
However, as practitioners dedicated to the art and science of DUI
defense, we urge you to consider that it is the quality, not the cost,
of your legal representation that should be of your greatest concern
when retaining an attorney. Remember, the decision you make today in
choosing Counsel will affect your rights, driving privileges and
life-style for years to come, in that a Court conviction and DMV
suspension due to Drunk Driving will remain on your Court and DMV
records for the next ten years. If you've just been arrested for
Drunk Driving, the most important decision you make is the selection of
your Attorney!
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Q.
What is "discovery"?
A. Discovery is the
process by which we obtain all relevant documents, evidence and witness
details from the prosecution that may assist in your defense.
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Q.
What is a DMV "APS Hearing"?
A. In addition to
court proceedings, a drunk driving arrest triggers a Department of Motor
Vehicle (DMV) administrative action to suspend your privilege to drive.
The Administrative Per Se Hearing (APS) is your opportunity to challenge
the DMV's attempt to restrict or suspend your license. It is essential
you contact us within ten (10) days of your arrest to enable us to
obtain a hearing for you with the DMV. We will advise you of the issues
to be addressed at the hearing and will use our best efforts there to
protect your privilege to drive. We may be able to present your case
solely upon the written documentation in your case, but occasionally it
may be necessary for witnesses to testify, including yourself, the
arresting officer and our blood alcohol expert.
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Q.
What is a "blood split"?
A. This is the process
by which we obtain a portion of your blood sample to enable us to
independently re-analyze the accuracy of your blood test results, and to
measure the level of chemical preservative in the sample.
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Q.
Could I go to jail?
A. Although jail is
always a possible penalty for D.U.I. in California, avoiding custody is
our priority in every case. In some cases, particularly if you have
prior convictions, a residential or outpatient treatment program may be
an effective alternative to jail-time. The attorneys at the Law Offices
of Peter B. Tiemann are experienced in working with such programs to
present rehabilitative treatment recommendations to the court.
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Q.
Can I drive while
awaiting my DMV hearing?
A. We may be able to
obtain a "stay" (postponement) of any driver's license suspension
pending the result of the DMV hearing. However, you must contact us
within ten (10) days of your arrest to enable us to petition the DMV for
your stay.
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Q.
What is a restricted license?
A. You may be entitled
to a restricted license, which will enable you to drive to, from and
during work, and to and from your home and alcohol program. We will
assist you in applying for the restricted license, if it is available to
you.
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Q.
What are the
usual Court penalties for a DUI?
A. The penalties
imposed by the court for a DUI conviction vary considerably depending on
the facts of the case, the defendant's individual circumstances, and
whether there are any prior convictions for DUI. Factors that increase
penalties and result in county jail time include prior convictions, a
traffic accident, excessive speed combined with reckless driving, a high
blood or breath alcohol content, refusal to submit to a chemical test or
the presence of young children in the vehicle. In addition, penalties
can vary from county to county and from court to court. Courts in some
counties routinely impose jail time even on a firsttime DUI with none of
the referenced aggravating factors.
The following is a
summary of the minimum and maximum penalties for DUI depending on the
presence of any prior convictions for DUI, or "Wet Reckless," within ten
years of any new offense. The following penalties assume that the Court
grants "probation." Probation is a period of Court supervision during
which time you must not commit any new violation of law and must comply
with all Court-ordered terms and conditions. Probation may be "formal"
or "informal." Formal probation requires active supervision by a
Probation Officer. If probation is denied, lengthy jail time should be
expected.
First Offense:
Minimum penalties
include three years of informal probation, a fine of $390.00 plus
penalty assessments (additional, punitive court assessments) and
mandatory fees (totaling approximately $1500.00), a three month alcohol
education program and a 90 day license restriction.
Maximum penalties
include five years of informal probation, a fine of $1000.00 plus
penalty assessments and mandatory fees (totaling approximately
$3000.00), a six or nine month alcohol education program, a six month
license suspension and six months county jail.
Second Offense:
Minimum penalties
include probation as above, a fine as above, an 18 month alcohol
education program, 96 hours of county jail and a license restriction for
18 months.
Maximum penalties
include probation as above, a fine as above, a 30 month alcohol
education program, a two year license suspension and one year in county
jail.
Third Offense:
In addition to the
probation, fines and alcohol programs that may be imposed for a second
offense, a third offense conviction mandates minimum county jail time of
120 days up to one year in custody. There will also be a three year
license revocation.
Fourth Offense:
A fourth offense may
be filed as a misdemeanor, but is more typically filed as a felony. The
penalties for a felony DUI include probation, fines and alcohol programs
as above, but will include a four year license revocation and 180 days
county jail, or up to three years state prison.
It should be noted
that the Court can always impose additional penalties, including the
following: forfeiture or impoundment of a vehicle used in the commission
of the offense; a requirement that any vehicle owned or operated by the
defendant be installed with an ignition interlock device for up to three
years; Caltrans or Community service; attendance at the county morgue or
hospital (Hospital and Morgue, aka HAM program) or attendance at
Alcoholics Anonymous (AA) meetings or meetings of Mothers Against Drunk
Driving (MADD).
If a defendant is
involved in an accident involving personal injury, or if a defendant has
been convicted of a felony DUI within ten years of the present offense,
the case may be filed as a felony, with the possibility of state prison
being imposed.
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Q.
Do I need an attorney?
A. Failure to retain
an experienced attorney essentially guarantees a court conviction and a
license suspension. The prosecutor is not your attorney and has no
obligation to counsel nor be fair with you. Defending yourself in the
criminal justice system is a very stressful experience in a potentially
hostile environment and may lead to severe penalties. Obviously, we
cannot guarantee a result or outcome in your case, but we will fully
investigate and prepare your case for your best possible defense, and we
know best how to minimize or avoid court penalties and protect your
driving privileges.
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Q.
What is a "Wet Reckless"?
A. Reckless driving is
a misdemeanor. It carries penalties of informal probation, a fine and
the possibility of up to 90 days county jail. Depending on the facts,
this offense can be negotiated as an alternative to a DUI conviction in
the settlement process. A conviction for "wet reckless" and dismissal of
DUI charges can be a hard-fought victory, depending on the
circumstances, but the following should be understood:
There is an important
difference between a "dry" and a "wet" reckless. The term "wet" or "dry"
denotes whether alcohol was involved in the commission of the offense. A
conviction for a "wet reckless" will typically require the completion of
a 12 to 32 hour alcohol education program, depending on the
circumstances. More importantly, a "wet reckless" is still considered a
"prior conviction" for DUI charging purposes, so that if a person is
convicted of another DUI in the next ten years, the penalties will be
increased as if the defendant has had a prior conviction for DUI,
itself.
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Q.
Will my insurance company cancel my auto insurance or substantially
increase my premiums if I am convicted of a DUI?
A. According to the
Automobile Club of Southern California, a driver convicted of a first
time DUI can expect an increase in insurance premiums of up to $6600
dollars over three years. However, policies and rates vary, and it is
possible that an insurance company may choose to cancel insurance
coverage, depending on individual circumstances.
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Q.
What "penalties" can the DMV
impose?
A. The DMV has power
to revoke, suspend or restrict a licensee's (driver's) privilege to
operate a motor vehicle in California because of an arrest for DUI. This
procedure is separate from the court proceedings in the case, and any
"penalty" imposed is in addition to any court penalties.
If a licensee has no
prior convictions for DUI and no prior suspensions for a DUI arrest, the
period of suspension will usually be four months. However, it is
possible to petition the DMV for a restricted license, enabling a
licensee to drive to and from work, during the scope of work, and to and
from the alcohol program. An attorney properly experienced in DMV
procedures will advise you how best to secure just such a restricted
license.
If the licensee has
one or more prior convictions for DUI, or "Wet Reckless," within ten
years of the present offense, the DMV will suspend driving privileges
for at least one year.
If a licensee is under
the age of 21, or has refused to submit to a chemical test, there is a
mandatory period of suspension for at least one year.
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