Survive Your DUI
by Joshua M. Dale, Attorney at Law
YOU HAVE BEEN ARRESTED AND CHARGED WITH A CRIME
You are charged with either a felony or misdemeanor. In this area of criminal law, you can be convicted based solely on the "opinion" of the arresting officer.
The penalties for DUI crimes are severe. There are mandatory jail sentences, fines, classes, probation, and other sanctions as punishment.
You can also be subject to "enhancements" and "special allegations" (extra punishments). All this depends on the charges and the facts of your case. Stay tough.
Don't be cheated in the process. An attorney can prepare you for success in court and at the DMV. Be aware that the DMV will revoke your license unless you fight.
TAKE THE 5TH - REMAIN SILENT
Don't talk about your case with anyone except a criminal defense attorney. What you tell your lawyer is confidential. When you discuss your arrest with friends or family, you risk turning them into involuntary witnesses against you.
It is in your best interest to remember the details of your arrest. Jot down some brief notes to remind yourself of what happened. It will help you in your defense.
In any criminal case, you must be represented by a competent defense lawyer, whether appointed by the court, or paid for by you. You may choose a lawyer, ask for a public defender, or risk the consequences of representing yourself.
By hiring an attorney immediately following your citation, you won’t miss any deadlines, and you can avoid ever having to go to court in misdemeanor cases. Most of the time, you won't need to appear until a resolution has been reached if you have an attorney.
Judges won't know if they should protect your rights unless someone defends you. For example, overworked prosecutors may use reports from inexperienced or overzealous police officers to over-prosecute a case. Defense attorneys are aware of these tendencies and are trained to handle such situations.
If you ask the judge to let you be your own attorney, he or she must allow this in most cases. But do not do this.
In all DUIs, get a lawyer quickly. You should interview immediately after arrest if you can (you have a 10 calendar day deadline after arrest).
HOW CASES ARE HANDLED IN COURT
There are three ways most cases are handled in court.
1. plead guilty or no contest.
2. come back with your private attorney.
3. come back with a public defender.
Only if you are indigent (you have little or no money) should you get a Public Defender. In order to get a Public Defender you and your spouse must answer a number of questions about your finances: where you work, how much you make, what cars you own, how much cash you have in the bank and other information. Then you must swear the answers are truthful under the penalty of perjury (a felony).
When you enter the court, you must sit and wait until the judge comes out. Then, arrestees with private attorneys usually are called first.
The first court date is so the attorney can take over the case, get the police reports, request other documents held back and enter your first plea of not guilty at this time.
Remember that feeling guilty about being arrested is not the same thing as being guilty of violating a law.
If you are alone, the only thing you should tell the judge the first time you appear in court is that you want to meet with an attorney who is familiar with drunk driving law to evaluate your case.
If you want to defend your case, there are several types of motions that may be used by you or your attorney.
These include motions to suppress evidence, suppress test results, suppress incriminating statements, dismiss the case altogether, dismiss the prosecutor or dismiss the judge. Any of these may be used in your case.
Eventually your case comes to a judge or jury trial where the prosecutor must meet the standard of proof “beyond a reasonable doubt.” The only way to avoid a jury trial is to take a plea bargain. A plea bargain means giving up your rights and taking a deal to avoid trial.
A “wet reckless” is the most common plea bargain in California law. It is not necessarily the deal to take. A wet reckless has the same effect as a DUI conviction in most cases. A wet reckless may count as a prior DUI offense which could be used in the future to “enhance” the punishment in a new or future DUI charge.
Another plea bargain is a plain reckless driving (dry reckless). And, of course, a plea bargain could include any minor traffic offense rather than a misdemeanor conviction.
FELONY OR MISDEMEANOR?
Crimes are classified as misdemeanors or felonies. Misdemeanors are not minor offenses. Misdemeanor DUI's have a maximum penalty of six months to one year in the county jail. Many times felony convictions are served in the state prison system.
If you're placed on probation in exchange for jail time, more constraints will apply.
You can be required to submit to warrantless search and seizure of your home, your person, your auto, and even your body fluids for up to five years in extreme instances.
Other misdemeanors include suspended license violations, driving without a license, possession of small amounts of marijuana, shoplifting, prostitution, simple assault and battery, etc.
Felonies include injury accident DUIs, injury hit and run accidents, domestic violence and drug possession.
Whether the charge is a misdemeanor or felony, the potential liability to your liberty and property is substantial.
WHAT TO DO IF YOU CAN'T AFFORD AN ATTORNEY
If you have no money to hire an attorney, you may qualify for a court-appointed attorney (public defender). You are eligible for a public defender only if you are considered indigent. Indigent means you and your spouse’s combined income and assets are below a certain level.
But you should know that you might have to pay all or a portion of the fee for this attorney. The judge requires you to fill in a detailed financial disclosure form. Then the court evaluates your financial condition according to its rules. Just because you don’t have enough money right now to pay an attorney doesn’t mean you won’t have to pay anything.
LICENSE SUSPENSION OR REVOCATION
How long will you be suspended or revoked?
If your blood or breath test results showed .08% or more, and it’s your first offense, your license will be suspended for four months.
If you’ve had one or more previous offenses in ten years, your license will be suspended for one year.
If you refused or failed to complete the blood, breath or urine test, and it is your first offense, your license is suspended for one year.
If it is your second offense within ten years, your license is revoked for two years.
If this is your third or more offenses within ten years, your license is revoked for three years.
You cannot get a restricted license if you refused or failed to complete a chemical test.
If it is your first offense you may be eligible for a non-commercial restricted drivers license if you were age 21 or older at the time of your arrest.
To receive a non-commercial restricted drivers license you must provide Proof of Enrollment (DL 107) in a California Depart of Alcohol and Drug Program approved First Offender Program.
You must also file a California Insurance Proof Certificate (SR22). You must also pay a $125 Reissue Fee.
You must wait until the end of the mandatory 30-day suspension before applying for the non-commercial restricted drivers license.
You must also request one of two restrictions:
1. Driving Under the Influence Program Restriction. Your driving privilege is restricted for at least 60 days to driving to and from the DUI program.
2. To and From and During Course of Employment and Driving Under the Influence Program Restriction. Your driving privilege is restricted to driving to and from and during the course of your employment and to and from the DUI program. This restriction remains valid for five months.
** If you enroll and fail to participate or do not complete the DUI program, the DMV immediately revokes your restricted license.
It also re-imposes the suspension for up to four months from the day your suspension began.
About Your Temporary License
If your license is taken by the DMV official, it is automatically suspended or revoked on the date specified on your notice. If you continue to drive, you face a minimum ten day jail sentence. Ask your attorney if an appeal of DMV’s decision would benefit your case.
Remember, to suspend or revoke your license, the State must prove its case by a preponderance of the evidence. If you don’t contact the DMV within ten days, your temporary license expires 30 days after arrest and the suspension automatically begins.
YOUR BEST DEFENSE
If you didn’t get a private lawyer, and you are turned down for the public defender, most judges will give you additional time to seek a defense attorney to represent you.
Ask the judge for extra time, but not more than once, or the judge might think you are purposely delaying the case. The judge will also ask you for your defense (your “plea”). Say you’d like to speak to a lawyer first, nothing else.
Attorneys typically plead you “not guilty” on the first court date so they can study your case, the police reports and other scientific records.
The police viewpoint is that you’re already guilty, but the judge knows different. That’s why the judge will tell you to get a lawyer.
Many cases are settled prior to a trial for a reduction of charges. Sometimes the police discover they are mistaken, or their testing equipment has been poorly maintained. Attorneys who routinely defend people accused of DUI are skilled at finding the best defense.
SHOULD YOU GET A PUBLIC DEFENDER?
If you've just been arrested for DUI, the advantages of a Public Defender are that they are legally qualified to defend you. And, depending on your financial situation, you may only have to pay a portion of their fee or none at all if you are indigent.
In order to receive the services of the Public Defender, you must fill out a form for the court which lists all your income and assets. The judge then evaluates your financial statement and decides if you should be appointed a Public Defender. If you make too much money (according to the court), you may be required to get a private attorney.
If you understate your financial resources because you don’t want to hire a private attorney, you may be charged with falsifying information to the court.
There are several potential disadvantages to using a Public Defender.
Sometimes there is a lack of personal attention and counseling time. Many Public Defenders are overworked and normally handle a high volume of cases at a time, as many as 50 to 100 in some counties. As a result, you may be left with the feeling that your case is not receiving the full attention it deserves.
Their legal representation is often quite good, but since they have so many cases, they often have to cut back somewhere. When they have less time, they often cut back on consultation time with clients. So they may not give you the quality consultation time that you feel you may need. This means that your Public Defender may never have even met or talked with you before you must appear in court together.
If you have questions and concerns before your court date, you may not have the opportunity to get them answered.
Misdemeanor cases, including DUI, are often used as a “training ground” for new lawyers. Many new Public Defenders get their first real court experience on your type of case. To ensure you are adequately represented however, new lawyers are supervised by competent and experienced attorneys.
For many people, the biggest drawback to a Public Defender is that they cannot represent you at the DMV. The law does not provide for a free, appointed lawyer at the DMV.
If it is important for you to retain your driving privileges, you need to hire a lawyer to represent your interests at the DMV.
HAVE YOU BEEN ARRESTED FOR DUI BEFORE?
If so, you should consider immediately enrolling (within a few hours of your release from jail) in an AA or alcohol drug treatment program.
This will help you significantly when you appear before the judge.
Your attorney will be able to convey that you recognized the problem right away and decided to do something about it.
Most judges look favorably on this and may give a lighter or reduced sentence.
Contact Alcoholics Anonymous anytime. The 24 hour help line is (800) 711-6375 or visit their website.
DEFENDING YOUR DUI CHARGE
Being arrested for DUI can be traumatic and embarrassing. Getting your driver's license confiscated on the spot by a police officer is sudden and unexpected.
At this difficult time, an attorney can help you protect all your legal rights and make sure you don't get taken advantage of. Your attorney should try to save your license at the DMV and the court house.
Almost all attorneys offer a free or low cost office consultation. Use this free consultation to get a legal opinion about the issues in your case. The attorney will help you evaluate your chances for a good defense. You should know that attorney fees are based on a sliding scale and an easy payment plan can be arranged.
DEFENSES TO CRIME
Illegal Search or Seizure
All searches or seizures by the police must be pursuant to a valid warrant or a legal exception.
Failure to Give Miranda Warnings
The police are required to read a suspect his or her Miranda Rights prior to any custodial interrogation.
A person is allowed to use reasonable force to prevent imminent danger to oneself, others or property.
The prosecution must prove that the accused was present and committed the crime with which he/she is charged.
Mistake of Fact
A person who was acting under a mistake of fact is innocent.
The government cannot cause a normally law-abiding person to commit a crime.
Statute of Limitations
With some exceptions, the government must prosecute misdemeanors within one year of the offense and felonies within three years.
Lack of Knowledge
Many offenses require knowledge that certain contraband exists, i.e. knowledge that an illegal item is present in one’s home, vehicle or on their person. Lack of knowledge is an absolute defense to such crimes.
Lack of Intent
Certain crimes require a criminal intent, for example an intent to steal. The prosecution must prove criminal intent beyond a reasonable doubt to convict you.
Proof Beyond a Reasonable Doubt
The Prosecution has the burden of proving each and every element of a criminal offense beyond a reasonable doubt.
The government must prosecute or serve an arrest warrant without unreasonable delay.
Confront Your Accuser
Your accuser must appear in court to face cross-examination of their claims. Failure to do so requires dismissal.
Intoxication can be a defense to crimes which require certain mental states, such as intent or knowledge.
Cruel and Unusual Punishment
It is illegal for any punishment to be cruel and unusual.
A mental health condition may be a defense to many crimes.
You cannot be guilty of a crime if you were unconscious during an act, such as when sleep walking or severely injured.
An accused is not guilty of an offense if he/she acted under duress, threat or menace.
An accidental act or misfortune cannot be prosecuted as a crime.
An accused is not guilty of a crime if he/she acted out of necessity.
A criminal offense must have occurred in the jurisdiction in which the offense is charged.
WILL YOUR CASE BE DISMISSED?
All California criminal cases begin in the criminal court of the county in which you were arrested. The City (CA) or District Attorney (DA) receives and reviews the police officer’s report to decide whether to prosecute you. In many counties, police reports in DUI and associated crimes are routinely filed.
The prosecutor knows if you don’t have a lawyer, you’ll probably take a conviction. They assume you are guilty, and either “feel” guilty or just want to avoid going back to court.
Either way you can be convicted of something worse than the truth. Since the police arrested you, you must be guilty of something, right? Wrong!
People are jailed after making hasty decisions. Don’t make the same mistakes.
When charges are filed against you, your court case begins.
This is your first opportunity to investigate the case, since they will turn over the police reports at the first court appearance.
The date cannot be changed and the case cannot be transferred to your county of residence, except in very rare situations. If you or your attorney do not appear, the judge will issue a warrant for your arrest.
TEN DAY DUI TRAP AND YOUR RIGHT TO DRIVE
When driving is involved in your arrest (or citation), your license is in jeopardy. California’s Legislature & Department of Motor Vehicles (DMV) do not care about your need to drive. For all DUIs, the DMV administratively punishes you by suspending your license. Lawyers who save licenses at DUI and related DMV hearings understand the applicable administrative (DMV) laws.
First, you, or your attorney, must write or fax the DMV and demand a hearing within ten calendar days of your arrest.
You do not have the right to a free appointed lawyer at the DMV hearing. You must get your own lawyer. In the hearing, the DMV official acts as both prosecutor and judge. This means the official will try to find out the truth with or without your help. They are trained to rely on the police report over your testimony.
To win, you need to know the ins and outs of the law, the rules of evidence, your rights, and the applicable laws. With these tools your license can be saved.
For DUIs, they will decide whether the police officer had a legal right to stop or contact you, the right to arrest you, and whether you drove with blood, breath, or urine test results which are legally reliable and above the "per se" limit.
A competent lawyer knows what laws apply to your case, and when to bring in a scientific expert on your behalf. Science plays an important role in DUI cases and because the DMV never has their own expert witness, you can win.
If the DMV decides against you, your license is suspended or revoked. You can then appeal through the courts and/or the DMV if you feel the suspension isn't justified.
WARNING TO OUT OF STATE DRIVERS
If you have been arrested for DUI in California and were driving on your out of state, or foreign, license, you should have been given a pink Department of Motor Vehicles Form DS-367 by the arresting officer.
The officer should not have confiscated your out of state license. If the cop took your out of state license, immediately contact the law enforcement supervisor of the cop and get your license back.
This pink paper is a Temporary License only for California licensed drivers and does not allow you to drive in California unless and until you get a California license.
If you are caught driving in California after being arrested, you could face an additional charge of driving without a license which could expose you to more jail time.
Seek an attorney's advice immediately before driving in California after a DUI arrest.
WHAT YOU WEAR IN COURT CAN HELP YOUR CASE
In most DUI cases, if you have an attorney, you don't even have to go to court. But, if you do, you must be very careful. If you've never been to court before, it will be a stressful occasion.
Remember that going to court is a formal occasion. There are rules about behavior, established rules of procedure, and even what you can say is carefully controlled. These rules only apply in the courtroom, but how you manage them may significantly affect your case.
How you present yourself and first impressions are very important. Instead of wearing whatever you feel like (your work clothes, casual clothes, etc.) to court, ask yourself who will the judge pay more attention to?
Men should wear a suit and tie or sport coat and tie. Women should wear a business suit or a nice dress. At worse, wear "Friday" casual. If you don't have these kinds of clothes or don't have time to change, at least be sure your clothes are clean.
Men should remember to shave. Get a haircut if you need one. Think of going to court like you would going to a job interview. Try to look your best. Comb your hair and be sure your hands and fingernails are clean.
Watch what you say to the judge. Rude behavior is not tolerated and you can lose your case on that kind of mistake alone. Instead, be respectful and don't argue. Don't get excited and don't interrupt. Be polite.
Patience is very important. You may have to be there all morning and then return in the afternoon. You are free to leave the courtroom when you need to, but remember to tell an officer of the court that you are leaving. Officers of the court include your attorney or public defender, the bailiff or the court clerk. If your case is called and you haven't told someone you were leaving, the judge can issue a warrant for your immediate arrest.
Cell phones, laptop computers, handheld stereos, CD players and other similar items cannot be used in court. Just sit, wait patiently, and pay attention to how other people interact with the judge. Remember, showing respect for the process and people involved will get you the farthest. Don't agree to anything though unless you've talked your case over with a qualified lawyer.
CA SR22 CALIFORNIA SR-22 INSURANCE RATES AFTER A DUI
DUIs stay on your record for ten years. Your insurance rates are immediately affected by what happens in court and DMV.
If you lose in court or at your DMV hearing, you must file an SR-22 certificate to get your license back.
Do not notify your employer or insurance carrier that you have received a DUI arrest. Get legal advice first.
People lose their jobs, and it is well known that AAA Insurance routinely cancels your policy upon notice of a DUI conviction.
Hiring an attorney can be well worth the insurance savings alone over the next 10 years.
Many insurance companies check your motor vehicle record only once every three years or when you apply for a new policy. Sometimes, accidents, tickets, and drunk-driving convictions can escape your insurer's attention. If your insurer does find out about a DUI conviction, however, you're likely to feel the pinch of higher rates and possibly have to find a new insurer.
Your insurer will likely raise your insurance premiums and label you a high-risk driver. In this case, you must file proof of insurance for three, and sometimes five years with the DMV.
Also, your insurance may be terminated at the end of the term because of your DUI conviction, especially if you are currently in a preferred class.
Your company will notify you if you've been canceled. In that case you must find another insurer while having a cancellation on your claims history. This generally means you must pay higher insurance premiums.
The good news is California does not allow insurance companies to drop you in the middle of the policy term.
It's possible that your insurance company will never find out about your conviction if you don't have to get an SR-22.
Since insurance companies check motor vehicle records about every three years, your DUI conviction might go unnoticed.
You could also plea bargain your conviction down so that it never appears on your motor vehicle record as a DUI.
Your license might only be suspended for 30 days, making it unlikely that your insurer is going to find out about your conviction.
If your insurance company misses the conviction at the time it happens, it has three years to cancel your policy or raise your rates because of the DUI.
You may be surprised to know that when your insurer does find out about a DUI conviction it doesn't automatically impose higher premiums. The insurer will look at your history with the company, your claims record, and then decide.
For example, the action State Farm takes depends on which subsidiary you're with. If the policyholder is with State Farm Mutual Insurance Co. and the company doesn't cancel the policy, it also won't raise the rate based on the conviction.
On the other hand, policyholders with State Farm Fire and Casualty who are convicted of DUI but not dropped will definitely see a premium increase.
Nationwide Insurance Co. will cancel a policy in mid-term if that policyholder has been convicted of DUI.
Nationwide periodically checks the motor vehicle records of its insureds. If one of these checks shows a DUI conviction, the company makes a decision based on the person's driving history and insurance track record.
FREQUENTLY ASKED QUESTIONS ABOUT DUI IN CALIFORNIA
Q. Why should I see an attorney about my DUI?
A. A DUI is a felony or misdemeanor criminal offense, not just a traffic ticket.
If you are convicted of a DUI, there are mandatory legal penalties. Your driver’s license is automatically suspended unless you fight. Your auto insurance rates will skyrocket, and the conviction may be added to your credit report. If you hold a professional license, a conviction must usually be reported to your governing agency.
In short, you have a lot to lose. So it makes good sense to see if you can defend yourself against these charges. An experienced criminal attorney can review the facts of your case to find legal defenses to the charges.
Q. What should I look for in a defense attorney?
A. Most attorneys do not practice criminal law, and you need a specialist to defend your rights. When you’re looking for a criminal attorney, you should evaluate the initial interview carefully. You should feel comfortable with the attorney and confident in his or her ability in this type of case. When you have questions, make sure they’re answered to your satisfaction. Some firms use paralegals or secretaries to interview clients. Be sure you talk directly with a competent criminal defense attorney.
Q. Could I represent myself in court or DMV?
A. Do-it-yourself legal work doesn’t make much sense. DUI is a criminal matter and there are stiff penalties. Take it seriously.
Q. What if I can’t appear in court?
A. Your attorney can appear for you in court in most cases. You don’t have to be present.
Q. Can I discuss my case with family members, friends, or coworkers?
A. No, don't. If you discuss your arrest with others, they can be called as witnesses by the prosecution. Your attorney can’t be a witness against you. Telling people about your arrest can damage your reputation, upset your loved ones, and may jeopardize your job. You should discuss your case only with your lawyer.
Q. Can you guarantee results?
A. Beware of any attorney who guarantees results. In the law, as in most other areas of life, absolute certainty is not possible. However, the best results in any case always come from a good professional relationship with a competent attorney.
Q. Can I get my driver’s license back?
A. Possibly. Each case has its own special facts, and there are valid legal defenses that can be used against your DMV license suspension. One or more defenses may apply in your case.
Q. What is the DMV hearing about?
A. The DMV has the right to suspend or revoke your driver's license if you don‘t challenge the action. To do this, they decide whether the police officer had a legal right to stop you and a legal right to arrest you. Then, depending on the test you took, they also decide whether your blood alcohol content was legally above the limit. Hearings for test refusal cases are held in much the same way.
KNOW YOUR LEGAL RIGHTS IN COURT
1. You have the right to be furnished a copy of the complaint, and you have a right to have the charges explained to you.
2. You have a right to an attorney at all stages of the proceedings.
3. You have a right to a continuance to obtain an attorney, if you want one.
4. If you are unable to hire an attorney due to lack of sufficient funds or property, the Court will appoint one for you at no cost to you.
At the conclusion of your case and after a hearing, if the Court determines you have the ability to pay, you can be ordered to pay all or part of the cost of the attorney.
This order has the same effect as a civil judgment and is subject to execution.
5. You have a right to reasonable bail set by the Court.
If you are not able to post the bail set, the Court will review the amount of bail within five days of your court date upon your request at which time any new facts will be considered.
6. You have a right to use the power of the Court to subpoena witnesses and present evidence in your own behalf.
7. You have a right to confront and cross-examine the witnesses against you.
8. You have a right against self-incrimination, which means you cannot be required to testify against yourself.
You may waive this right and testify in your own behalf if you wish.
9. You may plead guilty, not guilty, or nolo contendere (no contest).
Nolo contendere is the same in legal effect as a plea of guilty but cannot be used against you as an admission in any civil suit when the plea of nolo contendere is used for a crime punishable as a misdemeanor or infraction.
If you are charged with a misdemeanor, you also have the following rights:
1. You have a right to a trial by jury, or you may waive this right and request a Court Trial.
2. You have a right to a speedy trial, which means within thirty days following arraignment, if you are in custody; or, within forty-five days following arraignment, if you are not in custody.
If you are not brought to trial within the time stated your case must be dismissed, unless good cause is otherwise shown.
3. You have a right to wait at least six hours before sentence is imposed after a plea of guilty, a plea of nolo contendere, or conviction following trial; sentence must be imposed within five days, or within twenty-one days if the matter is referred to the Adult Probation Department unless you waive that right.
If you are charged with an infraction, you have the same rights as you would if charged with a misdemeanor except that you have a right to a Court trial and no right to a trial by jury.
You have no right to a court appointed attorney unless you are in custody.
If you plead guilty or nolo contendere to a misdemeanor or infraction crime you waive your right to trial by jury and trial by court, your right to see and cross-examine witnesses against you, your right against self-incrimination and also your right to an attorney unless you have an attorney then.
If you are charged with a felony, you have a right to a preliminary hearing within ten court days following your arraignment or plea, whichever occurs later.
If you are not a citizen, a plea of guilty or nolo contendere, or a conviction following trial may result in your deportation, exclusion or admission to the United States, or denial of naturalization pursuant to the laws of the United States.