FIND YOUR ANSWERS BELOW:
What to Do Immediately after Your DUI Arrest?
If you’re like most drivers arrested on suspicion of driving under the influence (DUI), you may not know where to turn after your drunk-driving arrest. Many individuals arrested for DUI have never been in trouble with the law before, so navigating our complex criminal justice system may seem daunting.
You should do two things immediately after your DUI arrest: request a Department of Motor Vehicles (DMV) hearing and hire a qualified Kavinoky Law Firm DUI lawyer in Riverside, CA and 10 other locations.
Why do I have two cases with one DUI arrest?
It is critical to understand at the outset that a California DUI arrest actually triggers two separate cases. First, there is a court case, where a prosecutor will seek a criminal conviction and all of the direct and collateral consequences that follow it.
What should I consider when hiring a DUI Defense Lawyer?
Selecting one of the best DUI lawyers in Los Angeles who will fight your DUI charge is one of the most important decisions you will ever make. The old saying that you get what you pay for is never truer than when it comes to DUI defense.
While there are never any guarantees in life, these are some indications that a DUI lawyer is qualified to handle your case:
• Years of experience: The more experience your prospective DUI lawyer has, the more prepared he or she will be to handle your case.
• Memberships in professional organizations: Active membership in professional organizations dedicated to DUI defense is an excellent indication that your prospective attorney has the knowledge needed to fight your drunken driving case aggressively.
• Specialized training: Ask your prospective DUI lawyer whether he or she has received advanced training in blood- and breath- testing protocols and field sobriety testing.
• Track record of success: Your prospective DUI attorney should be able to tell you about cases that were resolved successfully for clients.
• Teaching seminars to other attorneys: This is an excellent indication that the DUI attorney you’re considering is respected by his or her peers.
• Communication and response time: How long will it take your prospective DUI attorney to return your phone call or answer your e-mail? How often will your defense lawyer update you about the status of your case? Is your new attorney willing to give you his or her cell phone number, or will you be limited to calling during office hours?
It isn’t ethical for a lawyer to guarantee a particular result at the outset of a case. But the lawyer can guarantee one thing: his or her effort.
What’s the difference between California Vehicle Code sections 23152 (a) and 23152 (b)?
In California, the two most frequently encountered offenses relating to misdemeanor DUI are California Vehicle Code sections 23152 (a) and 23152 (b):
• 23152 (a) says, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”
• 23152 (b) states, “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
In a sense, 23152 (b) is the mirror image of 23152 (a). One focuses entirely on the condition of the driver as being impaired or not, and alcohol levels don’t matter. The other focuses entirely on the alcohol level, and impairment doesn’t matter.
What’s the difference between a Misdemeanor and a Felony DUI charge?
The criminal court process in a California DUI case depends on whether the offense is charged as a felony or a misdemeanor. DUI offenses are typically charged as felonies if you’re involved in an accident that results in injury or death, or if you’re arrested for your fourth drunk driving offense in ten years. The ten-year period is calculated from arrest date to arrest date; the date of the prior conviction does not enter into this discussion.
Misdemeanors and felonies are distinguished by the potential punishment. Misdemeanors, by definition, carry a maximum punishment of up to a year in county jail. (Certain misdemeanors, such as first-offense DUIs, carry less. Currently the maximum punishment for a first-offense DUI is six months in jail.) Felonies are punishable by a year or more in state prison and can even result in life in prison.
How long is a DUI on your criminal record for?
Any conviction will remain on your criminal record forever unless you have it expunged from your record. You must know that a conviction for a DUI is priorable for 10 years even if it is expunged from your record.
How long is a DUI on your driving record for?
Will my home state suspend my license?
That is up to your home state. The California DMV’s decision only effects your driving privilege in California, but your home state DMV may take their own action against your license. Make sure your address is current so you receive any notifications that are sent to you. You are not obligated to tell them anything.
About how long will it take to get the case resolved?
The speed of a case depends a great deal on the particular court your case is in. We do not rush to resolve your case because we want to explore the best defenses you have to the charges filed against you. If you need the case resolved quickly, please let your attorney know.
How much are the fines for a DUI?
The minimum fine is $400 for a DUI, but with penalty assessments, and added fees, the fines range from $2,000 – $4,000 depending on the County.
Why Fight My Case?
Many drivers arrested on suspicion of DUI worry that a conviction is automatic and that there is no point in fighting their cases. Nothing could be further from the truth. However, unless you stand up and fight your DUI charge, there is a 100 percent chance that you will receive the substantial punishment of a drunken driving conviction.
If you decide to challenge your DUI charge, you have a fighting chance at avoiding some or all of those consequences. A DUI charge doesn’t equal an automatic conviction. People make mistakes, and that holds true for police officers, prosecutors, lab technicians, and anyone else in the process. Remember, to convict you, the prosecutor must prove your guilt beyond a reasonable doubt. The burden of proof is on the government to prove your guilt—not on you to prove your innocence.
What is the court procedure for a Misdemeanor DUI case?
In California, your attorney can appear in court on your behalf in a misdemeanor DUI case while you go to work or otherwise go about your business.
The first court appearance is called the arraignment. This is when you (or your attorney) will be formally advised of the charges against you and given police reports that justify the charges.
After your arraignment, there are typically a series of pretrial conferences and hearings. These hearings present an opportunity to conduct additional investigation by way of informal discovery requests or formal discovery motions. Motions are simply requests to the court to order certain actions. In these requests and motions, your defense lawyer should ask the prosecutor to turn over additional items of evidence that are not in the initial arrest reports.
After the various pretrial motions are submitted and weighed by the judge, there will be one of three outcomes: the charges against you will be dismissed; your case will be settled; or it will be set for trial.
A trial in a DUI case is just like any other criminal case. It includes jury selection, opening statements, examination and cross-examination of all witnesses, closing arguments, and jury deliberations. For you to be convicted, the prosecutor must convince all twelve jurors—or the judge, in a court trial—that you are guilty beyond a reasonable doubt, to the exclusion of every reasonable doubt. If not, either you will be acquitted, or a mistrial will be declared.
What is the court procedure for a Felony DUI case?
Felony DUI cases are, by definition, more serious because they are punishable by a prison term that can range from one year to life behind bars. Because of the severity of the potential punishment, the court procedures for felony cases are different from those for misdemeanors.
Unlike misdemeanor cases, where your lawyer can appear on your behalf, if you’re charged with felony DUI, you must be personally present at every court appearance.
A felony case starts with an arraignment, just like a misdemeanor DUI. However, you’re then entitled to a preliminary hearing, also sometimes called a preliminary examination. This is a significant procedural difference from misdemeanor cases, presenting certain opportunities for you and your defense lawyer.
If the judge orders that you be held to answer to your felony charge, your case will proceed to trial once any pretrial motions are heard. Just as in a misdemeanor case, you must be proven guilty beyond a reasonable doubt to be convicted.
How Your Past Can Influence Your Current DUI Charge?
Having a clean driving record doesn’t necessarily help in a DUI prosecution, but the absence of a clean record can certainly hurt, especially if there is a pattern of offenses that are frequent or escalating in seriousness.
Prior convictions, for this purpose, refer to prior convictions of DUI, DUI causing injury, or alcohol-related reckless driving that occurred within ten years of the current offense. The ten years is calculated from arrest date to arrest date; the date of conviction of the other offense is not part of the discussion.
Having a prior conviction for a DUI (or related offense) can have an impact on:
• The length of probation
• The mandatory minimum jail terms
• Whether there will be an impact on professional licensing (e.g., the Department of Real Estate considers a second-offense DUI to be substantially related to professional duties and will routinely seek professional discipline following a conviction)
• Driver’s license consequences at the DMV Administrative Per Se hearing
• The DMV’s mandatory action suspension (which is triggered by a conviction)
• The amount of fines
• The requirement for an ignition interlock device and length of time it may be required
• Cal Trans, graffiti removal, or other hard labor
A DUI accident where there is a fatality and someone has a prior DUI conviction can support a murder charge instead of vehicular manslaughter. The result of this difference is significant and can mean the difference between a release date from prison and a life term.
What if I am on Probation?
If you are on probation, whether formal (where you report to a probation officer) or informal or summary probation (where you do not have to report), and you are arrested for DUI, then you face two separate legal hurdles: the new arrest and an allegation of probation violation.
In a probation violation case, you do not have the right to a jury trial. A judge decides at a hearing on the matter whether the prosecution has met its burden.
In a probation violation, the burden of proof is much lower. Here, the prosecution must prove the violation only by a preponderance of the evidence. This standard, preponderance of the evidence, is sometimes described as “50 percent plus a feather”—just enough to tip the scales of justice to one side or the other.
What do I need to bring to my first meeting with an attorney?
In a word, bring everything. All documents that relate to the incident are potentially helpful, for example:
• Your citation to appear
• Documents relating to bail
• Tow receipts (if the vehicle was impounded)
• Credit card slips related to the drinking and eating that preceded your arrest
• DMV paperwork given when your driver’s license is confiscated
Anything at all that relates to the events giving rise to the arrest should be presented to the lawyer for consideration.
(see separate post on Questions your attorney may ask)
What will happen in the Administrative Per Se Hearing?
Your attorney will generally argue about the admissibility of the reports, the sufficiency of the evidence for your stop, arrest and your blood results, but discuss the specifics with your attorney.
Who makes the decision in the Administrative Per Se Hearing (APS)?
The DMV hearing is an administrative hearing and is brought by the Department of Motor Vehicles. It is judged by a hearing officer, who is a DMV employee who has been trained to conduct these hearings.
How long is misdemeanor probation?
3 to 5 years depending on negotiated terms and the County.
What is the difference between a wet reckless and a DUI?
a. A wet reckless is a lesser related offense. It is a charge of reckless driving – alcohol related. It does not count as a DUI for purposes of the DMV. Generally the sentence for a wet reckless will be less than a DUI.
b. A wet reckless is considered a “prior” DUI if you are arrested and convicted of a DUI in court. It can be used against you to enhance penalties in your court case.
What’s the difference between a Wet and a Dry reckless?
a. Dry reckless means that you were driving recklessly with alcohol in your system and is not priorable.
b. A wet reckless means you were driving recklessly without alcohol in your system and is priorable as a DUI.
What happens if I missed my court date? Can you help me?
We can appear in court, have the warrant recalled and put the matter back on calendar and defend it. You may not even need to appear in court. If you do, we will arrange a time for you to come to court with us.
DMV For DUI
Why is there a DMV hearing?
If you are arrested for DUI in California, you must request a DMV hearing within ten calendar days of your arrest, even if your driver’s license was issued in another state. If you do not request a DMV hearing after your drunken driving arrest, your California driving privileges will be suspended on the thirty-first day after your DUI occurred.
The issues at stake at your DMV hearing will depend on whether you took a breath or blood test following your arrest, or refused the test. If you took a chemical test, your DMV hearing will revolve around three issues:
1. Whether the police had reasonable cause to believe you were driving under the influence
2. Whether you were lawfully arrested
3. Whether your blood or breath test was administered correctly, is admissible, and showed a blood alcohol content (BAC) of .08 percent or greater.
What happens at a DMV hearing?
This is not a court case. The DMV hearing officer acts as both judge and prosecutor. California DMV hearings typically do not feature live testimony. Unlike criminal court proceedings, where both sides usually present live witnesses, DMV hearings usually focus on various documents, such as your arrest report and the result of your chemical test if you took one.
It is possible to fight against the DMV administrative action and win. Your attorney may be able to successfully challenge the admissibility of the evidence against you or establish that you did not have a BAC of .08 percent or greater while driving—the only time period that is relevant.
What are the consequences of a DMV hearing?
If this is your first DUI arrest within the past ten years and you lose your hearing, your driver’s license will be suspended for four months. However, you can obtain a restricted license that allows you to drive to work and alcohol education classes if you meet certain criteria.
If you refused to take a chemical test, your driver’s license will be suspended for a full year, with no opportunity for a restricted license.
If you’re arrested for a second DUI offense and lose your DMV hearing, your driver’s license will be suspended for one year if you took a blood or breath test, or two years if you refused the test.
A third offense will result in a three-year driver’s license suspension.
Do I need to wait the whole 4 months to get a license?
No, you can get a restricted license after your license has been suspended for 30 complete days, so on the 31st day, as long as you have an SR-22 on file with the DMV (through your insurance company), and you pay a re-issue fee to the DMV (currently about $155.00), then you will be able to get a restricted license that will allow you to drive to and from work, in the course of work, and to and from any classes.
What is an administrative review?
Administrative Review is a process in which a supervisor in the DMV reviews the entire record to determine whether or not the Hearing Officer made the correct decision based on the evidence presented.
How long does it take to get an answer from DMV about the administrative review?
It can take up to a month to get a decision from an administrative review.
What is a WRIT?
A writ is an appeal of the DMV decision to a Superior Court. In that case a judge will review the entire record and appellate briefs filed. The Attorney General will generally file the opposing briefs on behalf of the DMV.
How long does a WRIT take to get a result/resolution?
A writ can take up to a year depending on how long it takes for the Court to render a decision.
What’s an SR-22? Why would I need one? Will this increase my insurance premiums?
An SR-22 is a certification from an insurance company that you have liability insurance from a company that knows you have a DUI action with the DMV. You are generally required to keep an SR-22 on file with the DMV for three years after the DMV suspends your license.
If I blew below a 0.08, why wouldn’t the DMV dismiss my case?
The DMV has lots of reasons for making the decisions they make and as described previously, the DMV administrator takes into account many factors in the offense report. Your attorney will make that argument to the DMV.
If the DMV does not pursue the case against me, shouldn’t the court case be dropped also?
There are separate criteria for the DMV and for Court. They are independent of each other. We will use a dismissal on one side to assist us in arguing in the other.
I was arrested for DUI but am leaving the state for a job. How will a suspension of my CA license affect me in the state I am moving to?
We hope that your license will not be suspended, but if it is, it will affect the validity of your California Driver’s License. This may affect your ability to drive in the new state.
My license was already suspended by DMV for unpaid moving violation tickets before I was arrested for DUI. Is there a point in doing an APS hearing if that’s the case?
Yes. If your license is suspended by the DMV through the APS process, you will be required to have an SR-22 in force for 3 years. And your license will be suspended for a period of time even if you pay off your fines.