DUI FAQ

California “Driving Under The Influence” FAQ

Does it matter where in California I am arrested for DUI?

The laws against drunk driving are the same throughout California.  The principal statutes relating to drunk driving are found in the California Vehicle Code.  However, there are procedural and practical variations in how DUI cases are handled in different counties and even between different superior courts in the same county.  For example, the caseload and calendar of an individual court and judge will affect the time between events in your case.  That is, upon arraignment in Fremont, the first pre-trial conference might be set for 4 months out, while in Oakland, it might be set for only 3-4 weeks out.  Some prosecutors and some judges are more lenient in plea bargains and/or sentencing than others.  And, where a sentence involves jail time, in some counties a county-work or diversion-program alternative may be available which does not exist in another county.  In representing our clients, we take these venue differences into account, to provide the most effective representation possible under the circumstances.

Do I have the right to refuse the intoxication tests?

Yes and no.  If you are 21 or over, you may refuse the roadside sobriety tests and the roadside breathalyzer test (also called a PAS, or “preliminary alcohol screening” test).  However, if you are under 21, you may not refuse the roadside tests legally.

Once you are arrested, regardless of age, by law you must submit to a chemical test. However, you have the right to choose between those tests made available by the arresting officers, i.e., blood test, breathalyzer or urine test.  Not all of these tests are available in all districts, and you may not refuse to be tested (without consequences, that is) just because the test you would prefer is not available.  The blood alcohol test is considered the most accurate of the three tests, and the urine test the least accurate (for alcohol).

In California, the urine test is generally no longer used when only alcohol-related DUI is suspected (if other drugs are suspected, the police will probably insist on a urine or blood test).

 Why was I charged with two offenses?

California and most other states have enlarged the original DUI (“Driving Under the Influence”) offense into two separate offenses:  (1) driving while impaired by alcohol and/or other drugs (Vehicle Code §23152(a); OR (2) driving with a blood alcohol concentration (BAC) greater than .08% (Vehicle Code §23152(b).  That is, In California, an adult is “per se” DUI if his or her BAC is .08% or greater, regardless of whether the person exhibits any sign of impaired driving ability.

These two separate offenses are usually charged in a DUI case.  You may be convicted of both; but, in most circumstances, you will be sentenced for only one.  So, generally, the main effect is just to give the prosecution two chances at conviction.

Does Age Matter?

Yes, it does.  If the driver is under 21 years of age, the driver is considered per se DUI if his/her BAC is .05% or greater.  A driver under 21 is not allowed to refuse the roadside sobriety tests, including the inaccurate handheld PAS breathalyzer test.  Furthermore, if you are under 21, the DMV will suspend your license if you had a blood alcohol concentration of only .01%.  DUI drivers under 21 may also face other enhanced hurdles, which they should discuss with their attorney.

Should I Request the DMV Hearing?

Yes.  The result of the DMV hearing will not affect the outcome of the charges against you in Court, but it will determine whether your license to drive remains suspended pending the outcome at Court.  If you fail to request a DMV hearing within 10 days of the notice of suspension given you when your license was confiscated,  the DMV will automatically suspend your license for the time set by law–regardless of the outcome of your DUI court case.  As a bonus for requesting the DMV hearing, if the DMV sets the hearing for a date after the expirantion of the 30-day temporary driving permit given you by the officer who confiscated your drivers license, in most cases your attorney will be able to get the permit extended until the date of the hearing.

Can I be found guilty of DUI if I was taking drugs prescribed by my doctor?

Yes, if the medication affected your ability to drive.  It is the driver’s responsibility to make sure that he or she is able to drive safely.  For purposes of California’s DUI laws, “drugs” include over-the-counter and prescription drugs, including medications for colds and allergies.  It is also no defense that the drug rendering the driver impaired was prescribed by a doctor for a medical condition.  However, if the driver experienced an unexpected and/or unusual reaction to medication that a reasonable person would not have anticipated, that may in some circumstances furnish a defense–consult with your attorney.

However, on a slightly different topic, many ingested substances that do not affect your ability to drive will affect the results of a breath test, causing it falsely to indicate that you are above the legal BAC limit.  The same is true of certain medical conditions.  Be sure to discuss these possibilities with your attorney.

Do the DUI laws only apply to driving an automobile on a public highway?

Driving while under the influence is generally prohibited whenever you drive any kind of vehicle.  For purposes of the principal DUI statutes,  a “vehicle” is defined as:  “A device by which any person or property may be propelled, or drawn upon a highway, except a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”  Vehicle Code § 670.  That would include all motorized vehicles.  Does that mean you are safe driving a human-powered bicycle while intoxicated?  Not in California.   Vehicle Code section 21200 specifically states it is unlawful to ride a bike under the influence.  Furthermore, California courts have interpreted the DUI laws to apply even when the driver is driving on a private road instead of a highway.

What about drinking while operating a boat?

Different statutes apply, but the offense is essentially the same.  The California Harbors and Navigation Code section 655 provides:

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

The penalties for boating under the influence are similar to those for vehicular DUI.  A conviction for DUI boating also counts as a prior convinction for purposes of subsequent vehicular DUI.

If I was stopped for DUI while driving a commercial vehicle, do the same laws apply?

Additional laws setting higher standards apply to drivers of commercial vehicles.  For example, a driver of a commercial vehicle is considered DUI if found to have a blood alcohol concentration of only .04 percent. If you were charged for DUI while driving a commercial vehicle, be sure to discuss the ramifications with your attorney as soon as possible.

What if I need to drive to work or school, but my license was suspended?

If you need to drive to work or school, you may be able to obtain a restricted driving license, if certain conditions are met.  Consult your attorney regarding your particular circumstances.

Should I take a Plea Bargain or go to Trial?

That will depend on the evidence against you weighed against the deal that the DA’s office is willing to offer.  After investigating the evidence, we will always press the DA’s office for an offer of the best plea bargain possible, advise you of your chances at trial, and let you make the decision.

If the DA’s office sees that you are represented by counsel who are scrutinizing the evidence for procedural and other defects, who are willing to take the case to trial, it is likely at some point to offer you a fairly attractive deal (compared to the possible sentence that you could receive) to avoid the risk of an outright acquittal at trial.  Conversely, if we think the evidence against you is weak, or if we find serious technical defects in the prosecution’s case, we may advise you to reject all offers and go to trial.  In all cases, it will be your informed decision.

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