First Offense

If you are convicted of your first DUI offense, you can be sentenced to as little as 48 hours or as much as 6 months in jail.  You can also be fined between $390 and $1,000 and order to pay penalties and assessments on top of that.  The DMV will also suspend your driver’s license for 6 months.  Finally, depending on whether your blood alcohol level was above or below .20, you will be required to attend either a 6 or 9 month driving under the influence treatment program.

Standard First Offense Plea Offer in Placer County

First-time DUI offenders can generally expect the following plea offer from the Placer District Attorney’s Office:  3 years information probation, 3 days in jail, 3 month first offender DUI program, alcohol testing, and payment of $450 and fees and penalties.

Second Offense within 10 Years

Upon your second DUI offense within 10 years, the judge will sentence you to between 10 days to 1 year in jail.  Alternatively, the judge has the discretion to sentence you to between 48 hours to 1 year in jail AND order you to attend an 18-month alcohol treatment program. In addition, you will be required to pay between $390 and $1,000 in files, plus penalties and assessments.  The DMV will also suspend your driver’s license for 2 years, although you can apply for a restricted license after one year.

Third Offense Within 10 years

Upon being convicted of a third DUI within 10 years, you face between 120 days to 1 year in jail.  The fines are the same as they were for the second offense: between $390 and $1,000, plus penalties and assessments.  The DMV will suspend your license for 3 years upon this conviction, although you can apply for a restricted license after one year.  You will also be required to complete an 18-month treatment program if not already completed.  And finally, you will be designated as a Habitual Traffic Offender for 3 years.

Note that although you face jail time in all three instances, often the judge will grant probation and allow you to complete your sentence by performing a Sherriff’s work project or by serving time outside of jail in say a halfway house.

Habitual Traffic Offender Designation

If you are designated a habitual traffic offender and you are convicted of driving on a license that is suspended due to your DUI, the judge must order you to serve 30 days in jail and pay $1,000.  If within seven years you sustain another offense for driving on a license suspended or revoked due to a DUI, the judge will order you to serve 180 days in jail and you will be fined $2,000.

DUI Insurance Consequences

It should be no surprise that your auto insurance premium will increase as a result of a DUI conviction.  Although the amounts vary depending on many factors, you can expect your car insurance to increase by about $115 per month after the first DUI offense.  Expect an additional increase of an approximately $50 per month if you sustain a second DUI within a 10 year period.

Restoration of Driving Privileges – Restricted License

If the court orders a driver to undergo a DUI program, a driver is not entitled to have their driving privileges restored until he or she provide the DMV with proof of successful completion of that program.  You must also complete a SR-22 form showing proof that you have valid automobile insurance.  And of course, you must pay the $125.00 licensing fee.  Only then will the DMV provide you with a restricted driver’s license.

Let me put my 23 years worth of experience and skills to work for me.  Call me for a free attorney-client confidential conversation about your particular DUI case and I will give you an honest assessment of your case.

~Dan Koukol, Placer County Criminal Defense Attorney

Initial Stop

When you are pulled over and approached by a Placer DUI investigating officer, roll your window down slightly and turn your car off.  When asked, provide you license, registration and proof of insurance through the slightly lowered window.  Keep your registration and proof of insurance clipped together and easily accessible so you don’t have to fumble around to find them.  When the officer starts asking questions – like “have you been drinking” – simply look forward and don’t answer.  If he asks you to step out of the vehicle, tell him you refuse to perform any tests.

On the Scene Testing

If he asks you to perform field sobriety test politely say “I refuse.”  If he asks you to take a preliminary breath test politely tell him again, “I refuse.”  You are not required to perform these tests and you will not be penalized later for refusing.  If anything, you will just anger the Placer DUI investigating officer but he is not on your side anyway regardless of what he says.

Testing after Arrest

The officer will then have to determine whether he has enough probable cause to arrest you.  Regardless of whether he does or not, you will likely be arrested.  Although you may think you can talk your way out of an arrest, most often you are wrong.  You already made one mistake by driving drunk, don’t make things worse for yourself by thinking you can talk your way out of an arrest.  After the arrest you will be asked to provide a blood or breath sample to test for the presence of alcohol or drugs.  Do not refuse this test unless you are willing to have your license suspended for one year. Note that a Placer DUI investigating officer can compel a forced blood draw upon you although this is normally saved for cases involving an accident.

Should I Give Blood or Blow Into the Machine?

Blood Test

Deciding which test to take depends first upon when you had your last drink.  A blood draw is generally the most accurate.  However, it usually takes longer to perform a blood draw because the Placer DUI investigating officers must drive you to the nearest hospital and locate an authorized nurse to draw your blood which can take time.  Thus, if it has been several hours since you last drink and you think buying more time will help you even more, you may want to consider taking a blood test.

Breath Test

Breath alcohol concentrations are generally lower than blood alcohol concentrations.  However, if you are still absorbing alcohol, a breathalyzer machine may read your blood alcohol level high because the distribution of alcohol throughout the body is not uniform until complete absorption occurs.  Thus, I suggest not choosing a breath test if you had a drink within an hour of the test.

If you chose a breath test, there are still ways to challenge the results that may help your case.

A breathalyzer analyzes the amount of alcohol found in the air blown into the machine and converts the air into a blood alcohol level by applying a mathematical ratio.  In 1989, the California legislature settled on a standard “partition ratio” of 210 liters of breath to 100 milliliters of blood.  (See Vehicle Code section 23610.)  However, some people have slightly higher or lower partition ratios which may cause the breath test results to be skewed.  The California Supreme Court recently recognized this fact and held that people challenging a DUI based upon breath test results can offer evidence showing that the standard partition ratio may have yielded inaccurate results in their case.  (See People v. McNeal (2009) 46 Cal. 4th 1183.)

If you find yourself in the unfortunate position of being stopped for DUI, follow the above steps to limit the evidence obtained against you.  If you do this, an experienced attorney will have a much better case of obtaining a favorable disposition in your case.

~Dan Koukol, Placer County Criminal Defense Attorney

Initial Stop

Placer DUI investigating officers initially identify drunk drivers by looking for recognizable patterns of impairment.  For instance, they look for drivers who weave in and out of lanes, fail to obey traffic laws, speed or drive excessively slow.  To combat these purported justifications for the stop, the defense attorney must thoroughly cross-examination the Placer DUI investigating officer at the hearing or trial to challenge his claims and uncover any inconsistencies in his report.

Alcohol Impairment

When gathering evidence of alcohol impairment to support an arrest, Placer DUI investigating officers rely on three main items of evidence:  personal observations, field sobriety test results and preliminary alcohol screening test results.  All three are discussed below in detail.

Personal Observations

After you are stopped, the first thing the Placer DUI investigating officer will do is ask you questions.  They typically ask for your driver’s license, registration and proof of insurance.  The Placer DUI investigating officer will then begin asking questions about where you are coming from, where you are going, etc.  The entire time, the officer is looking for four things, red watery eyes, slurred speech, the smell of alcohol on your breath, and confusion or trouble answering basic question.

Field Sobriety Tests

Next, the Placer DUI investigating officer will usually run you through a set of field sobriety tests.  The most common tests are the walk-and-turn, one-leg stand and the horizontal gaze nystagmus (HGN) test.  The walk and turn test requires the driver to walk heel to toe down a straight line; usually the median line.  In the one-leg-stand test, the driver must stand on one leg with the other leg in front of them elevated 6 inches above the ground and then count out loud to 30.  Finally in the HGN test, the driver is told to keep their head faced forward while following an object with their eyes (usually a pen or finger) moved from side to side by the Placer DUI investigating officer.  The officer is looking for the eye to jump or tug at angle shallower than 40 degrees from center.

Preliminary Alcohol Screening Device

A Preliminary Alcohol Screening (PAS) devise is a small hand-held device used at the scene of the DUI stop to test the level of alcohol in the drivers system.  A Placer DUI investigating officer is required to supervise the driver for 15 minutes prior to administering the test.  Additionally, the Placer DUI investigating officer is required to perform two tests within 2 minutes of each other to obtain accurate results.  Vomiting, smoking, drinking or excessively belching prior to performing a PAS test can dramatically distort the breath test reading.  PAS tests are taken prior to a DUI arrest and are optional unless you are under 21 years of age.  In fact, a Placer DUI investigating officers is required to advise you that you have a right to refuse to take the PAS test.  (See Vehicle Code section 23612(i).)

It is imperative that you choose an experienced attorney to handle your DUI case because defending a DUI is tricky.  You need an attorney who has advanced knowledge about how alcohol impacts the body, the type of machines used by law enforcement to test you, how field sobriety tests are properly administered and whether adequate grounds existed for the stop in the first place.

~Dan Koukol, Placer County Criminal Defense Attorney

Obtaining Evidence

Defending a DUI case starts with reviewing and obtaining the evidence or “discovery” that the prosecutor may present against you at trial. Discovery evidence is all potentially harmful or, on the flip side, beneficial evidence that the Placer County District Attorney’s office has in its possession regarding your case. In a DUI case, this generally amounts to the police reports, witness statements, chemical analysis results, photographs and any evidence seized from your vehicle. Some uncommon items of evidence include videotapes from the camera mounted in the dashboard of the California Highway Patrol vehicle or Placer DUI investigation officer’s car, videotape of you taken at the police station, and your recorded statements.

After obtaining this evidence, you or your attorney must determine whether that evidence was lawfully obtained and whether any of it can be kicked out or suppressed.

Unlawful Traffic Stop

The first main DUI defense focuses on challenging the initial stop. The United States Constitution requires a Placer DUI investigation officer to have “reasonable suspicion” that you are violating a traffic offense before he can stop your vehicle. This means that before making a DUI stop the officer must be able to point to specific facts and objectively reasonable inferences leading him to believe that you were breaking the law. (People v. Aldridge (1984) 35 Cal. 3d 473, 478.) This is usually tested by reviewing the Placer DUI investigation officer’s justification for the stop in the police report. If the reasons for the stop are not objectively reasonable and are not grounded in facts, the DUI stop can be challenged.

Note that the Placer DUI investigating officer need not stop you for erratic driving or some other DUI related suspicion. Rather, he can stop you initially for some innocuous vehicle code violation such as an out tail light, a cracked windshield or expired registration. Then, upon learning of your intoxication after the stop, he can arrest you for DUI.

Unlawful Arrest

Next, it must be determined if the DUI arrest was justified and supported by “probable cause.” This is a higher standard than reasonable suspicion that requires the Placer DUI investigating officer to have an objectively strong suspicion based upon facts known to him prior to the arrest that the suspect is guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410.) Often times it’s the evidence the Placer DUI investigating officer obtains after the stop that leads to probable cause for the arrest. (Look for a future post about the ways you can minimize the amount of evidence the Placer DUI investigating officer obtains after performing a DUI stop.)

Motion to Suppress Evidence

Once the discovery has been reviewed and you or your attorney have identified unlawful stop and arrest issues, the next step is getting evidence “suppressed” or kicked out.  This is done by filing a motion to suppress evidence under Penal Code section 1538.5.  A good motion to suppress that will be taken seriously by a judge requires a written document complete with case analysis, arguments and sworn witness declarations.

I have written and argued thousands of motions to suppress in my 23 years as a Placer County DUI defense attorney.  When successful in these motions, I caused key evidence in the case to be thrown out by the judge.  This always lead to either a stronger defense or the outright dismissal of the case.

~Dan Koukol, Placer County Criminal Defense Attorney

The Offense

Vehicle Code section 23152(d) is the commercial DUI offense. This section states: “It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.” A commercial motor vehicle is a vehicle requiring a class A or B license, or a class C license with an endorsement in order to be lawfully driven.

Rebuttable Presumption

The commercial DUI statute includes a rebuttable presumption that “the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.” This means that if you blow at or over 0.04 % within 3 hours of a commercial DUI arrest, the law presumes you were at or over 0.04 % when you were arrested. The commercial driver would have to overcome this presumption by providing evidence that their blood alcohol level was on the rise when they were arrested and thus below 0.04 % at arrest. The presumption makes this argument a difficult obstacle to overcome, but it can be done.

First Offense – One-Year Ban

If a commercial driver violates any DUI offense (Vehicle Code sections 23152(a), (b), (c) or (d) or 23153(a), (b) or (d)) while driving any vehicle, the DMV will disqualify that driver from driving a commercial vehicle for one year. Thus, even if the commercial driver suffers a DUI while driving his non-commercial vehicle off duty, he will still be subject to the one year disqualification.

Second Offense – Lifetime Ban

Worse yet, commercial drivers convicted of a second DUI offense while driving any vehicle will have their privilege to drive a commercial vehicle revoked for life.

Perhaps the consequences of a commercial DUI are enormously more severe because accidents involving commercial vehicles often involve multiple people. Take for instance the 2008 bus crash in Williams, California, killing 8 people, where the drive was suspected of a commercial DUI. See article here: Commercial DUI Case Link.

The stakes are high if you are a commercial driver arrested on suspicion of DUI and you should hire an experience attorney to defend you. I have helped many commercial driver clients avoid being banned by the DMV and I welcome the opportunity to represent you in your case.

~Dan Koukol, Placer County Criminal Defense Attorney

DMV Drivers License Suspensions

If you are arrest for a DUI in California, you must deal with two separate cases: the criminal case and the DMV administrative action.  An officer making a DUI arrest will usually confiscate your driver’s license and serve you with a written notice of suspension.  Upon receiving this notice, you have 10 calendar days to contact DMV and request a hearing to challenge the suspension.  If you do not request a hearing within that 10 day period, the suspension automatically goes into effect after 30 days.  At that point, your license will be suspended for 4 months and you will not be eligible to obtain a restricted license until after 1 month.

Obtaining a Stay of Suspension

Due to backlog, DMV suspension cases are usually scheduled further than 30 days out.  You or your attorney should obtain a “stay” of the execution of the suspension so that your license remains unrestricted until there is a decision after the hearing.  This will allow you to drive unrestricted for longer and will prevent you from being arrest for driving on a suspended license prior to your hearing.

Obtaining Discovery

In the DMV administrative action, you have the right to obtain the documents and paperwork that will be used by DMV to support their case against you.  This usually consists of the results of the chemical analysis, arrest report and the accident report if applicable.  A good attorney should also seek a document entitled a “Form Returned to Law Enforcement for Completion of Documents” or so-called “go-back from.”  If the arresting officer made any errors or left out information on forms submitted to the DMV, the go-back form will reveal them.  This can uncover mistakes made by the officer which can be used during cross-examination to impeach his or her credibility and thoroughness.

Deposing the Officer

Possibly the greatest advantage of having a DMV hearing is that it gives you the right to depose the arresting officer.  This process allows you to question the police officer while he or she is under oath which can lead to the officer making statements favorable to your case.  Such statements can be used later in an evidentiary hearing or a trial in the criminal proceeding to impeach the officer’s testimony.

You should seriously consider hiring an attorney to represent you at the DMV hearing because a trained attorney may be able to set aside your suspension and gain tactical advantages to be used in the criminal proceeding.  Furthermore, the chips are stacked against you in a DMV hearing and you need all the help you can get.  This is because at the hearing officer is actually a DMV employee with little or no legal training who serves as the prosecutor, judge and expert in the case.  I have years of experience handling DMV administrative proceedings.  I can handle both cases and put my experience to work for you in both cases.

~Dan Koukol, Placer County Criminal Defense Attorney

DUI with 1 Prior Offense

Drivers convicted of a DUI with 1 prior offense within 10 years will experience a higher sentence, an 18 month or 30 month DUI program, a larger fine and a 2 year license suspension.  Remember that the term “prior offense” includes wet & reckless pleas.  Also, if the court finds that the driver is a traffic or public safety risk for things like having children on board or a high blood alcohol content, the judge may refuse to grant him or her a restricted license.

DUI with 2 Prior Offenses

Drivers convicted of a DUI with 2 prior offenses within 10 years will face, among other penalties, mandatory jail time (120 days to 1 year), stiff fines, additional classes, and will have their license revoked for 3 years.

DUI with 3 Prior Offenses

Drivers convicted of DUI with 3 or more prior offenses within 10 years will be charged with a felony and if convicted will face a minimum of 180 days in jail, stiffer fines, additional classes, and will have their license revoked for 4 years.

As with all DUI with prior conviction offenses, the judge has discretion to order the vehicle used to be impounded at the owners expense.  The judge may also require the drive to install an ignition interlock device on any vehicle the driver owns or operates.

Sentencing Enhancement

A driver may face additional jail time if the prosecutor proves that any of the following enhancements occurred during the commission of the DUI: excessive speed (30 miles over on the freeway, 20 miles over on the street), high blood alcohol level (.15% blood alcohol level) willful failure to take a chemical test, having a passenger under 14 years of age, or causing bodily injury or death to multiple victims.

~Dan Koukol, Placer County Criminal Defense Attorney

“Baby DUI”

Drivers under 21 can be arrested for DUI for driving with less alcohol in their system than the amount allowed for an adult.  This is commonly called a baby DUI.  Vehicle Code Section 23140(a) states that “it is unlawful for a person under the age of 21 years who has .05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”  And Vehicle Code Section 23136 makes it a crime for a person under 21 to drive with a blood alcohol concentration of .01 % or more as measured by a preliminary alcohol screening test or other chemical test.  The great thing about these offenses is that they are infractions, not misdemeanors.  Not having a misdemeanor on one’s criminal history is important for employment and licensing purposes which is especially true for a young person.

But the under 21 driver found guilty of a baby DUI will likely lose his or her license for one year under the so-called zero tolerance law.  That law provides that the license will be immediately confiscated and suspended for one year where the blood alcohol concentration of the driver is .01% or greater.

Finally, the under 21 year old driver can also be charged under the adult statutes – 23152(a) and (b).  This is unlikely to occur in Placer County unless the DUI involves some aggravating circumstances such as an accident or serious injury.

Wet and Reckless

When the blood alcohol test show a .08% or lower blood alcohol level, it is common for the prosecutor to accept a plea to a “wet and reckless.”  A plea to this charge avoid a drivers license suspension and prevents the prosecutor from tacking on enhancements for things like high blood alcohol content, driving 20 mph over the speed limit or having a passenger under the age of 14 present.  However, a wet and reckless is not that great of a plea deal any more.  This is because a wet and reckless may be considered as a prior DUI conviction in subsequent DUI cases and the driver must still attend an alcohol education program (commonly called an AB-548 program).  Also, a wet and reckless counts as 2 points on your driving records which is the same for a DUI.

Driving on a Suspended License

Vehicle Code Sections 14601, 14601.1, 14601.2, etc. relate to driving on a suspended or revoked license.  Drivers are often cited for these offenses when found operating a motor vehicle after their license has been suspended as a result of a DUI.  These offenses require a showing that the driver knowingly drove on a suspended or revoked license.  Proving that you did not receive proper notice is the primary defense against these offenses.  Driving on a suspended or revoked license is a misdemeanor, not an infraction, and it can impact your criminal history as such.

Hit and Run

Drivers who make contact with a person or property of another and then flee the scene without leaving their information or rendering assistance to an injured person can be charged with hit and run.  (See Vehicle Code Section 20002 and 20003).  This occurs frequently when a driver hits another car or slams into a person’s fence or mailbox and flees the scene for fear of being arrested for DUI.  If the accident results in another person’s death or serious bodily injury, this offense will be changed as a felony.  In all other cases, a misdemeanor will likely be charged.  When hit and run is charged along with a DUI, a good DUI attorney can negotiate to have this offense dropped in many cases and I have been successful in doing that for several of my clients.

~Dan Koukol, Placer County Criminal Defense Attorney

Felony DUI Causing Injury

DUI causing injury is charged pursuant to Vehicle Code Sections 23153(a) and (b).  Both of these sections require the prosecutor to show all of the following: (1) the accused drove a motor vehicle under the influence of drugs or alcohol or both; (2) he or she performed an act forbidden by law or neglected a legal duty; and (3) he or she proximately caused an injury to another person.  Section 23153(b) also requires a showing that the driver had a .08% or higher blood alcohol content.

Forbidden Acts/Neglect of a Duty

The prosecutor need not show that the driver violated a vehicle code in a felony DUI case but must show that the driver at least committed ordinary negligence.  Some typical examples of acts that satisfy this element include: speeding, weaving, making unsafe lane changes, failing to stop at a stop sign, and driving on the wrong side of the road.

Great Bodily Injury

If the injury caused by a drunk driver is found to rise to the level of “great bodily injury,” there is a 3 year enhancement added to the sentence that may be imposed for each severely injured victim.  Note that this enhancement is a strike offense.  Examples of injuries that have been found to rise to the level of great bodily injury include: fractured bones, severe swelling coupled with contusions and discoloration of the body, prolonged loss of consciousness, and injuries requiring multiple stitches.

Felony DUI – 3 Prior DUI Offenses

Additionally, if a driver has 3 prior DUI convictions within the past 10 years and then sustains another DUI, he or she can be charged with a felony Section 23152 offense.  Legislation recently passed in 2010 stiffening the penalty for those convicted of DUI with three prior DUI’s in the past 10 years.  I will discuss more on that legislation in a later post.

DUI Causing Death

Finally, drivers can even be charged with second-degree murder if they drive unsafe while under the influence of alcohol and cause death to another.  (See People v. Watson (1981) 30 Cal.3d 290.)  Second-degree murder carries a fifteen-year to life sentence and can be proven by showing a combination of a high level of alcohol, dangerous driving and prior knowledge of the dangers of driving under the influence of alcohol.

I have been a Placer County DUI lawyer for over 25 years and have defended hundreds of people facing felony DUI changes.  I have even defended clients facing second-degree murder charges due to a Placer County DUI.  I have been successful in convincing prosecutors to reduce felony DUI changes to misdemeanors and in having charges dropped altogether in some cases.  Call me and I will provide you with a free attorney-client privilege conversation about your case.

~Dan Koukol, Placer County Criminal Defense Attorney

Misdemeanor DUI Offenses

Prosecutors regularly charge two offenses in a misdemeanor DUI case: 23152(a) and 23152(b).  They charge both because it gives them flexibility.  For instance, charging both offenses allows prosecutors to proceed with their case if the results of the blood alcohol test reveal that the driver did not have .08% or more of alcohol in his or her system.  Stacking charges also gives prosecutors the ability to offer to drop a charge in exchange for a plea bargain.  But you should know that if you were to be convicted of both offenses, you could only be sentenced on one of the offenses; not both.

Vehicle Code Section 23152(a)

The first commonly charged misdemeanor DUI offense is Vehicle Code Section 23152(a).  This section states that “it is unlawful for any person under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”  This section does not require the prosecutor to show any degree of intoxication nor does it require a showing that a specific measurable amount of drugs existed in the driver’s system.  Rather, it must only be proven that the driver was “under the influence.”  A person is under the influence if the alcohol or drugs impairs their mental ability to drive a vehicle with the caution and prudence that a sober driver would display.  (People v. Bui (2001) 86 CA4th 1187, 1194.)

Although charged in nearly every DUI case, convictions for 23152(a) usually occur when the driver was under the influence of drugs or when the driver plead to the charge.  Note that “drug” is not limited to illegal drugs as you can be arrested for driving under the influence of prescription drugs such as valium or vicodin.

Vehicle Code Section 23152(b)

The other universally charged misdemeanor DUI offense in California is Vehicle Code Section 23152(b).  This section states that “it is unlawful for any person who has .08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

Whether the prosecutor will go forward on a 23152(b) charge depends on the outcome of the chemical test conducted by the officer.  The arresting officer is required to offer the driver a choice of either a blood, breath or urine test and under the implied consent law, the driver must choose one or be subject to further penalties.  If the results of the chosen test show that the driver had a .08% or sometimes even .09% blood alcohol level, the prosecutor will commonly offer to drop the charge and accept a wet and reckless plea.  This is because the prosecutor will have a difficult time proving that the driver was over the legal limit at the time of driving or that the driver’s blood alcohol level was outside the breathalyzer machine’s margin of error.

If you have been charged with a misdemeanor DUI, it is vital that you consult a DUI attorney with experience handling such cases.  DUI cases are complex, frequently involve constitutional issues and often require expert analysis and testimony.  I specialize in Placer County DUI defense and have been defending DUI cases in Placer County for over 25 years.

~Dan Koukol, Placer County Criminal Defense Attorney