Implied Consent And The Fourth Amendment

Implied Consent And The Fourth Amendment

The Fourth Amendment to the U.S. Constitution provides the people the right against unreasonable searches and seizures, however, a person who has obtained a California driver’s license has given the state, under Vehicle Code § 23612, “implied consent”. Implied consent means that if lawfully arrested for DUI the license holder must submit to chemical testing. When challenged in Nevada and Nebraska, the state supreme court upheld the constitutionality of the concept of implied consent when it applied chemical blood alcohol tests.

For most states, mandatory chemical testing is the final word. In California, however, things are a little different in that for any reason such as the accused being a heavy smoker or asthmatic, the person may refuse the breath test and must instead take a blood test. It is the constitutionality of the physically intrusive blood test that has been successfully challenged.

The Supreme Court has ruled on the appeal from states cases that implied consent does not produce the requisite physical intrusion into a person’s privacy when they are mandated to perform a breath test since only the test results remain. Blood tests are different since there is an intrusion into a person’s body with a needle to take blood. The Supreme Court held that the state cannot penalize a person for refusing to submit to the blood test. It is feasible to challenge sentences for refusal to submit to the blood test, and criminal charges for failing to consent could be overturned.

If after being arrested and taken into custody the person refuses both breath and blood testing, additional severe penalties are applicable. First-time DUI offenders face a 1 one-year license suspension, and jail time up to 48 hours coupled with 9 months of substance abuse education classes.
For the second-time offender, there will be a 2-year driver’s license suspension, possible 96 hours jail time. Third-time DUI offenders will have their driver’s license suspended for 3 years and may have to spend up to 10 days in jail.

When you receive your California driver’s license you have given your consent to chemical blood alcohol testing in the event you are lawfully arrested on suspicion of DUI. If you refuse the breath test you must take the blood or urine test.

Felony Versus Misdemeanor DUI Charges in California

Felony Versus Misdemeanor DUI Charges in California

First, second and even third California DUI’s are normally treated as misdemeanors, however, if you have been convicted of DUI three times within a 10-year period or have been involved in a motor vehicle accident causing personal injury or property damage, you will be charged with felony DUI, a serious life-altering crime. If either is the case it may be in your best interest for your California DUI defense attorney to plea bargain with the prosecutor to reduce your charges to a misdemeanor and save you from potentially larger fines, extended jail time and other life-changing consequences of the more serious felony charge. The starting date of your first and subsequent DUI’s are determined on the dates of arrest.

Although most first, second, or third California DUI are treated as misdemeanors, you may be charged with a felony if you involved in a motor vehicle accident that causes personal injury or property damage while DUI. You may also be required to pay restitution to your victims in a civil court lawsuit.

California Felony DUI Penalties

The penalties for receiving a California felony DUI are severe and include a maximum fine of up to $5,000, 16 months in state prison, vehicle impoundment for up to 90 days with forfeiture a possibility or the loss of your vehicle, revocation of your driver’s license for four years, and forced participation in a 30-month alcohol treatment program leading to your driver’s licences being returned. If someone is killed during your DUI accident you could go to state prison for five years.

It may be to your advantage to accept misdemeanor California DUI charges if a plea bargain is offered that reduces the charges from felony to misdemeanor rather than risk the consequences of the more serious charge, although sometimes it may be better to go to trial. California DUI charges vary depending on whether or not someone was injured or killed, the number of previous DUI convictions within 10 years from your first DUI arrest, and your blood alcohol content when you were arrested. Hiring a knowledgeable and experienced California DUI defense attorney will enable you to not only to attempt to get the charges against you thrown out of court, but also could provide you with the proper guidance in making the decision as to whether or not to accept a plea bargain and reduce your DUI charges the lesser misdemeanor or attempt to challenge a felony charge in court. Understanding the choices between misdemeanor and felony DUI can save you money, your driving privileges, and your freedom.


Almost every adult American is familiar with what happened to Tiger Woods in May of 2017. It’s important to recognize the need to pay attention to prescription drug labels, understand how your body reacts to prescription drugs, and protect yourself!

According to the Palm Beach County arrest report in May 2017, Tiger Woods failed a sobriety test administered by police, but was not found under the influence of alcohol. Tiger Woods was charged with driving under the influence when he was found asleep in his car, apparently under the influence of a prescription painkiller and sleeping medication.  He agreed to plead guilty to reckless driving.

In a statement released by Woods about the DUI, he stated, “What happened was an unexpected reaction to prescribed medications. I didn’t realize the mix of medications had affected me so strongly.”

I sat down with Darren Kavinoky, founder of 1.800.NoCuffs to better understand the legal issues surrounding DUI, impaired driving, and driving under the influence of prescription drugs.

“We all have seen how quickly negative information can spread. It is important to quickly handle all risk issues surrounding your reputation,” advises Kavinoky.

According to the American Society of Addiction Medicine, in 2015, two million Americans age 12 or older had a substance-use disorder involving prescription pain relievers, and there were 20,101 overdose deaths related to prescription pain relievers.

According to the National Institute of Health, misuse of prescription drugs means taking a medication in a manner or dose other than prescribed; taking someone else’s prescription, even if for a legitimate medical complaint such as pain; or taking a medication to feel euphoria (i.e., to get high).

The term non-medical use of prescription drugs also refers to these categories of misuse. The three classes of medication most commonly misused are::

  • Opioids—usually prescribed to treat pain
  • central nervous system [CNS] depressants (this category includes tranquilizers, sedatives, and hypnotics)—used to treat anxiety and sleep disorders
  • stimulants—most often prescribed to treat attention-deficit hyperactivity disorder (ADHD)

One of the most widely-abused prescription drugs is Xanax. Since 2005, it has also been the most-commonly prescribed drug in the U.S. with 48.5 million prescriptions filled in 2013 alone.

In many states, Xanax has surpassed marijuana as a leading cause of DUI. Research has shown even just taking 1 milligram of Xanax has resulted in weaving and sleepiness behind the wheel.  Kavinoky points out the current trends in prevalence of drugs.with DUI arrests.   “You should think of it as alcohol in a pill form,” according Kavinoky, “While intoxication by alcohol can be easily measured with a breathalyzer, it’s harder to measure with Xanax or other prescription medications.”

Kavinoky adds, “California prosecutors have to rely on field sobriety tests and identifying physiological symptoms, including pupil dilation and body temperature, to identify impairment. The increased difficulty in identifying a DUI from Xanax certainly doesn’t make these drivers immune from prosecution.”

Kavinoky reminds readers to examine the warning labels on prescription drugs like the list below:

  • Adderall
  • Ambien
  • Attivan
  • Buprenorphine
  • Hydrocodone
  • Methadone
  • Morphine
  • Oxycodone
  • Oxycontin
  • Percoset
  • Ritalin
  • Suboxone
  • Tramadol
  • Ultram
  • Valium
  • Vicadin
  • Xanax




Zolpidem is the hypnotic sedative, for the brand name Ambien. Physically, it helps put you to sleep by slowing activity in the brain, causing relation and drowsiness, allowing one sleep. It also causes one to feel relaxed and have lower muscle tone.

Ambien is prescription only and often prescribed by doctors to help people with insomnia or those diagnosed with sleeping problems caused by psychiatric disorders. The main effect of the drug is to  is to induce sleep. Because it induces sleep, doctors prescribe Ambien as a sleep aid (more popularly known as sleeping pills) for people with insomnia problems.


There are reports of patients who performed complex behaviors while seemingly asleep after using Ambien. In the reports, patients are reported to prepare and eat food, drive vehicles, make phone calls or perform sexual activities while half-asleep on using Ambien. Upon awakening, patients have difficulty recalling or remembering, or cannot totally recall, their behavior or activities done because Ambien causes short-term amnesia.

Some people use Ambien for recreational purposes. Some use Ambien for its intoxicating effects. Users report that Ambien causes bouts of difficulty in distinguishing imagined things and reality, false sensory perception, disorientation, and drifting in and out of consciousness.


Kavinoky explains further, “When someone thinks of driving under the influence (DUI), we think about   breathalyzers, checkpoints, alcohol, and open containers. Alcohol is the most common cause of DUI, but most states take a broader view of what it means to be under the influence. The numbers continue to rise with those people arrested for driving under the influence of drugs, both illegal and prescription. Increasingly, the insomnia treatment drug Ambien (Zolpidem) has lead to more DUI arrests.”

Police officers, law enforcement officers and Drug Recognition Experts (DRE) are trained to identify people whose driving is impaired by drugs other than, or in addition to, alcohol.

According to Kavinoky, “The 12 step procedure, called a Drug Influence Evaluation (DIE), is followed by all DREs to determine which category of drugs is causing the driver to be impaired. If a DRE determines that a driver was too impaired to operate a vehicle in a safe manner, they will look for indications of the drug(s) suspected, by the common perceivable effects the drugs have on the human body There are seven categories of classifications a DRE is looking for, including; Central Nervous System depressants (Benzodiazepines), CNS stimulants (Methamphetamine), Dissociative anesthetics (PCP), Cannabis, hallucinogens (mushrooms), inhalants (glue), and narcotic analgesics (opiates).”




Drug companies have placed warnings on the Ambien bottle and in the instructions of the potential side effects of “Sleep Driving,” as ordered by the FDA.  Sleep driving is similar to sleep walking, where an individual may do common things out habit, although in an induced type of hypnotic state. The FDA classifies  Ambien  as a “sedative-hypnotic product,” and it falls under the FDA’s definition of sleep driving. Sleep driving is recognized by the FDA as an involuntary side effect of the medication. Again, the warning on the bottle is important.


The “involuntary act,” defense for DUI Ambien has been considered in several state’s court cases. Look at it this way– a person’s actions must have been under their control in order to be found guilty of a DUI. If you didn’t know what you were doing, and it was involuntary, then you may have a case.

However, this is not a catch-all defense. Typically, the driver must have taken Ambien as prescribed by the doctor. Exceeding the normal Ambien dose, combining Ambien with other drugs or alcohol, and using the medication prior to any other activity than sleeping, can negate the “involuntary act” defense.




According to Kavinoky, “Just like with medical marijuana, it doesn’t matter if you have a valid prescription for the medications you are taking. If the drug has an impairing effect on your ability to drive, you can still face a DUI. Common medications including Valium, Ativan, Xanax or Percocet may lead to impaired driving and a prescription drug DUI. If a driver is found to be in possession of prescription medications without a valid prescription, he/she could face additional criminal charges.” He adds, “ The charge can affect job opportunities and carry a very heavy stigma.”


Prescription medication behavioral effects vary widely. Not just the drug itself, but the person taking it.  Anti-anxiety drugs, can slow reaction time and dull alertness. Stimulants on the other hand, can encourage risk-taking and impair the ability to judge distances.

Impairment can be magnified by mixing prescriptions, researchers  say, or taking them with alcohol or illicit drugs. States enforcing  zero tolerance laws, have made it illegal to drive with any detectable level of prohibited drugs in the blood.

Complicating matters is the complex chemistry of drugs and setting any kind of limit for predicting the effects of prescription medications. How do you determine whether a driver took a drug? Was it immediately before getting on the road? Some prescription drugs can linger in the body for days or weeks.

The prescription drug era presents a whole new set of problems. How to maintain the delicate balance of those people who need their prescription medications and protecting the public?

REFERENCES causes a serious delay in motor skills, especially when driving



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How a DUI Can Prevent You from Entering Canada


Did you know that a DUI on your criminal record could prevent you from traveling to Canada?

Individuals with any kind of a criminal history, including white-collar crimes or arrests for seemingly small offences, including a DUI may be ineligible to enter Canada due to Canada’s policy on criminal inadmissibility. Be it for work, vacation, or other reasons, thousands of American citizens travel to Canada every single day. However, if you take the proper steps, you may be able to travel to Canada and overcome your inadmissibility.

Having a DUI on your record does not mean you can never enter Canada again. There are a few legal options to make sure a criminal charge does not prevent you from traveling.

A Temporary Resident Permit

If it has been 1-5 years since your latest offence (based on the date of completion of all the terms of your sentence), you can get a Temporary Resident Permit (TRP) to enter Canada. These permits can be used to temporarily overcome inadmissibility for a specific reason on a specific trip. TRPs can be used for business or pleasure travel but are issued for specific dates so do not cover endless travel. You can apply for a multiple entry TRP, but again this will be used for specific trips across the border.

Criminal Rehabilitation

If it has been over 5 years since the completion of your sentence, you can apply for Criminal Rehabilitation. This is a permit that allows you to permanently overcome your inadmissibility so you can travel freely over the Canadian border. However, this permit can take up to 9 months to be processed. If you have an urgent need to travel, we recommend also applying for a Temporary Resident Permit. Criminal Rehabilitation is permanent. Therefore, if you are a frequent traveler, it is a great permit to have. If you commit another offence after being granted Criminal Rehabilitation, your permit will be revoked.

More good news is that, in some cases, criminality might not even affect your ability to enter Canada. If you only have one offence on your record and it has been over ten years since the completion of its sentence, you will be Deemed Rehabilitated. In this specific case, you will have been deemed rehabilitated simply by the passage of time. In cases like this, we do still recommend obtaining a Legal Opinion Letter which is written by a Canadian attorney and certifies that you are in good legal standing under Canadian law. Carrying this letter with you, along with any court documents, is not required but highly recommended to avoid any refusals or confusion at the border.

FWCanada offers all of these services and more! Our lawyers are experts on inadmissibility and the procedures to overcome it. Our Supervising Attorney, Marisa Feil is an expert on Canadian immigration and overcoming criminal inadmissibility. She is viewed by her peers as an authority in the field. For more information on Temporary Resident Permits, Criminal Rehabilitation, Deemed Rehabilitation, and Legal Opinion Letters, please visit our website at or call us for a free consultation at 1-855-316-3555.


About the Guest Blogger – Marisa Feil:

FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on FacebookTwitter, and Linkedin.

Cannabis and the Changing Landscape of Impaired Driving

California voters approved Proposition 64 Adult Use of Marijuana Act in February of 2016, legalizing recreational pot. The state of California has become the world’s largest cannabis market and will be issuing sales licenses by January 1, 2018 for direct distribution. Navigating this new landscape, includes evaluating THC-related DUIS, sometimes called DUID as an acronym for driving under the influence of drugs. I caught up with Darren Kavinoky, founder of 1.800.NoCuffs for a clearer understanding of impaired driving, and why it is illegal no matter what the substance.

Driving while stoned isn’t a good idea, and even though it’s a crime in all 50 states, it’s a tough one for police and prosecutors to prove!

Police across California are challenged as there is no ‘bright line rule’ in California for driving under the influence of drugs, like there is in your typical DUI involving alcohol. Everyone is familiar with the legal limit of .08 for people over 21. While Colorado, for example, has an established legal limit for THC of .05 nanograms of active tetrahydrocannabinol (THC) in their blood, and can be prosecuted for driving under the influence (DUI),”[1] says Kavinoky.

“California certainly has the ability to prosecute DUI cases involving marijuana under California Vehicle Code section 23152, even in the absence of any chemical test. The key, when it comes to impairment, is whether the driver is unable to drive with the same caution as a person of ordinary prudence in similar circumstances.”

Currently, the saliva test is voluntary in California. Drivers can refuse. The science is still developing. According to Kavinoky, “Law enforcement officers are now being trained to spot the signs of impairment. California is also unique, in that the decision of what testing devices might be used can differ not just from county to county, but by different law enforcement agencies within a county. So for example, in Los Angeles, DUI tests are done by one kind of machine when the arrest is made by the CHP, but a different one if it’s LAPD, and a different one still if LASD made the DUI arrest. We can look forward to the same kind of chaos in the world of testing for THC. Of course, it’s widely known that THC metabolites can stay in the system for a long time, which makes it even more difficult for prosecutors to prove impairment at the time of driving, which is the only time that matters in a DUI case, whether it involves alcohol or drugs, legal or illegal.”

Roadside, drug driving device tests are now being tested in Kern, Los Angeles and Sacramento counties. California police departments are using the saliva tests after a Kern County judge last year accepted the results as evidence in a drugged driving case. More California police departments will be using saliva tests.

California Vehicle Code 23152(e) and Drugged Driving applies to all drugs, not just illegal ones.  If a drug impairs your ability to drive, it doesn’t matter whether it was a prescription drug or not, or whether it is legal or illegal. If your ability to drive safely is impaired by marijuana, don’t drive.

Interestingly, THC blood levels don’t have much to do with impairment. Cannabis metabolites can remain in fat cells after you stop smoking and can be detected for as long as three months in frequent pot smokers. Medical marijuana patients may regularly have elevated THC blood levels.

According to Darren Kavinoky, “There are more people getting high and coming face-to-face with a law enforcement officer. Johnny Law has a whole array in his arsenal from Drug Recognition Experts (DREs) to state-compliant drug and alcohol testing devices. There’s little doubt the pendulum is swinging around the legalization or decriminalization of marijuana, both for medical use and recreational. There’s no question this will lead to heightened awareness on the part of law enforcement, and then to increased arrests because of the tools available to police.”



The following excerpt from the National Highway Traffic Safety Commission: Drugs and Human Performance Fact Sheet, summarized the known effects of cannabis on driving:

“Data from road traffic arrests and fatalities indicate that after alcohol, cannabis is the most frequently detected psychoactive substance among driving populations.


Cannabis has been shown to impair performance on driving simulator tasks and on open and closed driving courses for up to approximately three hours.”


Reported reactions include:

  • Decreased Car Handling Performance
  • Increased Reaction Times
  • Impaired Time and Distance Estimation
  • Inability to Maintain Headway
  • Lateral Travel
  • Subjective Sleepiness
  • Motor Incoordination
  • Impaired Sustained Vigilance


The report continues, “Cannabis may particularly impair monotonous and prolonged driving. Decision times to evaluate situations and determine appropriate responses increase. Mixing alcohol and cannabis may dramatically produce effects greater than either drug on its own.”


Kavinoky explains, “Even though California doesn’t have an established legal limit for the amount of THC in a driver’s system, law enforcement and prosecutors will still try and demonstrate the driver was impaired using the very same elements they use in a DUI alcohol case, where the person refuses to submit to a chemical test. They are:

  • Driving pattern;
  • Physical signs and symptoms (such as red eyes, or being unsteady on your feet);
  • Field sobriety test performance (typical tests include Horizontal Gaze Nystagmus or HGN, which is simply an involuntary jerking of the eyeball; the Walk-and-Turn test of nine steps out, a turn, and nine steps back; and the One Leg Stand, where the subject lifts a foot six inches off the ground, and counts aloud 1001, 1002 and so on for 30 seconds).


“Prosecutors will also use a chemical test, if one is given, and typically bring in a crime lab ‘expert’ (who never personally observed any of the pertinent events) to give an opinion about impairment at the time of driving.”


“From a criminal defense lawyer perspective,” says Kavinoky, “one of the gifts of a DUI marijuana case is that because of the unique chemical properties of THC. Its metabolites cause it to linger in the system, often making it difficult, if not impossible, to show impairment at the time of driving…….. which is the only relevant time in a DUI case, whether it’s DUI drugs or DUI alcohol. It’s not illegal to be impaired at the police station later; the key is the condition of the driver when they were behind the wheel of their car.”


DUI laws currently governing the use of a motor vehicle following the use of cannabis fall into one of three categories:

1) effect-based laws

2) per se driving under the influence of drugs (DUID) laws

3) “zero tolerance” laws.


  • Effect-based laws require evidence of impairment, as described above, to be presented in order to convict someone of driving under the influence.
  • Under per se laws, a person is assumed to have committed a violation if the drug concentration exceeds a defined concentration (typically in the blood) and there is no requirement to obtain evidence of impairment beyond that required for the probable cause to obtain the specimen.
  • Under zero tolerance laws, any detectable amount of the proscribed substance in the blood constitutes the offense.



Kavinoky’s comments are supported in the AAA Foundation Report released in 2017 on Highway Safety. There is an accelerating trend in the U.S. towards liberalization of laws around the cultivation, possession, and use of cannabis, either for medical purposes or more recently for recreational use, the question of the link between cannabis use and driver impairment has come to the forefront.


Increasing attention is being paid by the public, legislators, and the criminal justice system, to the issue of drug impaired driving not only in California, but across the United States.


This can be attributed to many factors including:

  • increased training of police officers in recognizing signs of drug impairment
  • increased interest in prevalence of recreational and medicinal use
  • demographic and relative risk studies through new models and available technology
  • increasing resources being applied to drug testing suspected impaired drivers






The effects of THC on driver impairment include:

  • relaxation
  • changes in perception
  • euphoria
  • feelings of well-being
  • reduced stress
  • mild sedation


These effects have been cited as possible contributors to the documented rates of arrest and crash involvement in various driving populations.



Driving under the influence of marijuana is a crime in California under Vehicle Code 23152(e) VC. You are guilty of DUI marijuana if you drive a motor vehicle while your mental abilities are impaired by marijuana, to the extent that you are unable to drive with the caution of a sober person using ordinary care.

Vehicle Code 23152(e) VC reads: “(e) It is unlawful for a person who is under the influence of any drug [including marijuana] to drive a vehicle.”

Penalties for DUI marijuana

The consequences of a conviction for DUI of marijuana are the same as the California DUI penalties involving alcohol. Penalties for a first-time DUI of marijuana may include:

According to the California State Office of Highway Safety in 2014, 38% of drivers who were killed in motor vehicle crashes in California tested positive for drugs, whether legal or illegal. Obviously, many factors can contribute to these statistics, including the increase in prescription drugs and the well-publicized opioid crisis in America. Since these numbers are up from 32% from the year before, law enforcement will have a heightened sense of awareness concerning DUI cannabis!




Most of the attention surrounding Proposition 64 centered on how the measure made it legal for adults to consume recreational marijuana. Its reach may also give an opportunity for reduced sentences and could clear old criminal records related to marijuana.

More than 6,000 people serving time could potentially have their time behind bars shortened. Cannabis may now be legal in California, but many Californians remain behind bars on marijuana-related charges according to drug policy experts at the Drug Policy Alliance.

A survey published last fall by the Drug Policy Alliance, a group that pushes for drug law reform, estimated that more than 2,100 people were jailed for marijuana-only offenses in California in 2015.

According to Kavinoky, the Drug Policy Alliance indicates another 1 million Californians convicted of marijuana-related misdemeanors and felonies could petition to have their records changed or cleared. Benefits include wider access to housing, jobs, and other services that are currently out of reach.

Kavinoky highlights, “Officers are trained to recognize the symptoms of drug impairment. They will look for various indicators that a driver is high:”

  • unsafe driving maneuvers/turns
  • bloodshot eyes and or blank stares
  • the odor of marijuana

As California has voted to make weed legal, it is still illegal to drive under the influence. Tens of thousands will continue be prosecuted for allegedly driving when their ability to see, think or operate their motor vehicle is impaired by any psychoactive substance, including weed. Makes good sense to stay out of the weeds, know your rights, and hire the best attorney should you need one.


  2. New York Times, Driving Under the Influence, of Marijuana By MAGGIE KOERTH-BAKERFEB. 17, 2014
  3. Drivers on pot could be detected with new device. (Los Angeles Times)


When is a DUI Considered a Felony in Los Angeles County?

When you are arrested and charged with a DUI you California DUI attorney will first seek to clarify the exact charges that you are up against. Most California first, second, and third DUI convictions are misdemeanors but under certain circumstances, you could be facing a felony, the most serious form of criminal charge. Felonies carry severe, life-altering penalties in the form of mandatory prison sentences, heavy fines and loss of driving privileges.

There are several instances where a DUI could be charged as a felony. If you caused injury or death while driving under the influence, if you have had three or more DUI convictions during the previous ten years, or if you have had a previous felony DUI conviction the DUI charges could be a felony. The type of felony you are charged with depends on the facts that are unique to your case, your criminal record and the prosecutor in charge of your case.

If while driving under the influence you were driving negligently and caused an accident where another person was injured or killed, you could be charged under California Vehicle Code 23513 VC, “driving under the influence causing injury.” You could also be charged with DUI vehicular manslaughter or DUI murder. Prior offenses include a DUI or “wet reckless” committed in California, or a DUI-equivalent conviction committed out of state. A “wet reckless” is a charge that is commonly levied when DUI charged are reduced through a plea bargain. You can not be initially charged with wet reckless.

The ultimate goal of DUI laws is to save lives, so when a person is killed by an intoxicated driver the penalties are severe. Depending on the number of prior DUI convictions, if someone is killed by the negligence of a drunk driver, the driver could be found guilty of a felony and incarcerated for up to five years in state prison. The more prior convictions, the longer the prison term. The penalties for a California felony DUI include an 180-day minimum jail sentence, a $3,000 fine, a driver’s license suspension of four years, and the completion of an 18-month alcohol education program. You will also have a felony conviction on your criminal record preventing you from ever owning a firearm. You also con not vote while in jail or on parole. If you are charged with a California DUI you need an attorney that specializes in California DUI law. Call our firm the moment you are arrested and taken into custody.


What to do When You Are Pulled Over by the Police?

Apprehending drunk drivers is a top priority of California police using routine traffic stops and DUI sobriety checkpoints. Being in a position to be arrested for a DUI can come suddenly and unexpectedly. Nobody wakes up in the morning thinking that today is the day you will be arrested for a DUI. It is a good idea that everyone knows in advance a little about what they should do if they are pulled over and suspected by police of DUI.

California police are required to have a reasonable suspicion that the suspect has committed a traffic violation in order to legally make a traffic stop. Running a red light or a stop sign, failing to use a turn signal, or failing to stay in the correct driving lane are just a few reasons that give police a probable cause. When pulled over a person should have their vehicle and personal identification readily available as police will ask you for your license, registration and insurance card. Do not automatically search for these documents until the police officer asks for them. Be polite and answer police questions with yes or no answers. Do not offer explanations as police questions are part of their investigation and your extended answers can only be incriminating. Do not get into an argument either. Be aware that police will ask pre-planned questions in which either choice of your answer is an admission of guilt such as “how many drinks have your had tonight?”, not “did you drink tonight”. If you answer 3 or more, the police officer may ask you to get out of your car and make an arrest on the spot based on your admission, or at least attempt to administer field sobriety tests. The answer to how many drinks you had tonight is always none.

Most likely, if the officer suspects you have been drinking he/she will ask you to get out of your car in order to have you perform field sobriety tests. You are not required to perform the tests as the results can only reinforce the case against you. In all practicality, you can not pass the test and be let go. If the officer asks you to perform the test he has probably already made up his mind to arrest you for DUI and wants to secure the case against you with further evidence.

If the police ask you if they can search your vehicle politely say no. If a police officer sees or smells alcohol marijuana or any other contraband in your vehicle they have all the probable cause they need to search your vehicle. No search warrant is necessary.

Being pulled over and suspected of DUI needn’t be a stressful situation if you know your rights and what to expect. Remember that you are under no obligation to help the police to arrest you so keep your answers short and polite.

What to Do About a Second DUI

Getting a DUI in California is a serious crime that requires your full attention. Getting a second DUI in California can be a life-altering event that requires that you pay hefty penalties and spend time in jail. According to California Vehicle Code ßß 23152, 23540 (2017), if you have been convicted of a first DUI within a ten-year period, a DUI is considered a second offense.

If you are convicted of a second DUI you will face mandatory jail time ranging from 96 hours to one year as well as monetary fines of between $390 and $1,000. Being convicted of a second California DUI includes having your driver’s license suspended for 2 years, being put on probation for three to five years, and having to attend DUI school for 18-months. A second DUI is usually a misdemeanor.

If you are lawfully arrested and charged with a second DUI you should immediately contact your attorney. From the moment you are arrested and taken into custody, you have the right to remain silent and to have an attorney present at questioning.

Although jail time is mandatory, you may be able to have the time reduced to house arrest or participate in a work release program, both better alternatives than spending up to a year behind bars. You may be able to get credit for the time you have already been locked up and also credit for having a relatively low blood alcohol content (BAC). In addition, if the lawful reason for being pulled over was a minor traffic violation and you did not have an automobile accident that caused property damage or personal injuries, you have a better chance at using your automobile and keeping your job. If you have a family that depends on your income you may be able to have your license suspension reduced and operate on a restricted license, one that allows you to get back and forth to work and not much more. In order to do so, you may have to install an ignition interlock device, at your own expense, on all the vehicles under your control.

On the other hand, your second DUI is not just about receiving a second DUI within a 10-year period or about having a BAC over the legal limit. A second DUI can mean a probation violation from your first DUI. If such is the case and you do not win your DMV hearing, you are not eligible for a restricted license. Ignition Interlock Device privileges apply only to second-time DUI offenders that have not violated their DUI probation.

It is imperative that you contact an experienced and knowledgeable California DUI attorney that concentrates their practice on DUI defense and not just as a sideline. Our California DUI defense attorneys have represented thousands of California residents and have had successful outcomes. Call us the moment you are taken into custody, 24-7, on weekends or on a holiday.

Uber Faces DUI Fines

Uber often cites statistics indicating that the incidences of DUI have fallen in areas where the ride-sharing service operates. The company has partnered with Mother’s Against Drunk Driving (MADD) to offer free rides on holidays like New Year’s Eve and St. Patrick’s Day when celebrations usually include alcohol consumption. The problem now, however, is to what extent are Uber drivers themselves illegally intoxicated. The Californiaís Public Utilities Commission has recommended a $1.13 million fine, $7,500 for each of 151 incidences, be levied on ridesharing service Uber in the state of California, for failing to immediately suspend Uber drivers accused by California passengers of driving while intoxicated.

California’s Zero-Tolerance for Taxi Driver Dui Complaints

Failing to take action to suspend those driving under the influence of drugs or alcohol has been the subject of approximately 2000 complaints made by Uber passengers against Uber drivers. Once a passenger has complained to Uber, a functionality of the Uber app, Uber addresses the problem but has terminated only about one-quarter of the accused drivers, and none were immediately suspended. Uber’s policy is to suspend drivers accused of “multiple unconfirmed incidences” of driving under the influence. The state of California has a “zero-tolerance” policy on driving under the influence for Taxi and ride sharing services. California law requires that taxi and ride-hailing services immediately suspend and investigate any instance of drunk or drugged driving alleged by a passenger.

Uber’s Driver Background Policy
Currently Uber requires all drivers undergo a general background check that includes one’s driving record. Prospective Uber drivers need to have a clean motor vehicle record and no more than 3 violations in the last three years. Nationally, an Uber driver can not have received a DUI or been convicted of reckless driving for three years, however, in California Uber drivers can not have been convicted of DUI within the previous 10 years. The company also screens applicants that have committed felonies or misdemeanors involving theft, violence or drugs and those convicted of speeding within the last three years.

Reporting Uber Drivers
Uber’s internal company policy on reporting driver violations has also come into question. Currently, the company has an in-app function that allows for consumer complaints however the app does not differentiate drunk or drugged driving complaints from other complaints. Drunk driving accusations have to be dealt with by hand individually and that takes days to process making immediate suspension impossible. In the state of California and other states with zero-tolerance DUI/Taxi laws, it may be advisable to update the app to include drunk or drugged driving selections and instant suspensions for accused drivers.