You don’t have to be drunk to be guilty of the offense of driving under the influence (DUI) in California. Under California law, DUI means either, driving while “under the influence” of alcohol and/or drugs (legal or illegal), or driving with a blood-alcohol level of 0.08% or greater—0.05% or greater, for people under 21 years old (VC § 23140). This is why it is imperative to always have a DUI lawyer on your side in the event of an arrest.
California’s DUI Laws:
- CVC 23152(a): 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
- CVC 23152(b): 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.
- CVC 23152(e): It is unlawful for a person who is under the influence of any drug to drive a vehicle
- CVC 23152(f): It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
A DUI is a charge based on an impaired ability to drive. In California, driving under the influence of drugs or alcohol is a serious offense that comes with stiff penalties. This is due to the number of accidents and fatalities that occur as a result of impaired driving.
No California driver, regardless of age, may operate a motor vehicle with a BAC of 0.08 or higher.
Drivers age 21 or older who have a .08 percent blood alcohol content (BAC) or greater may be charged with misdemeanor DUI and face the following penalties if convicted:
- First offense — minimum 48 hours in jail, up to a six-month driver’s license suspension, fines between $390 and $1,000, a $125 license reissue fee, alcohol program attendance
- Second offense within 10 years — minimum 96 hours in jail, up to a one-year driver’s license suspension, fines between $390 and $1,000, a $125 license reissue fee, alcohol program attendance for 18 to 30 months, ignition interlock device (IID)
NOTE: If you cause an injury, or if it is your fourth DUI offense or a second felony DUI, you can be charged with a felony.
Drivers who possess a commercial driver’s license may not drive with a BAC of 0.04 or higher, and repeat DUI offenders may not drive with a BAC of 0.01 or higher. Keep in mind that California has an implied consent law, meaning that if a driver refuses to submit to a breathalyzer test, he or she will be subject to a steep fine and automatic license suspension.
How hard is it to beat a California DUI charge?
If the results of your chemical test showed a BAC substantially over the .08% limit, your chances of beating a DUI charge are slim. DUI lawyer statistics show that the chances of beating a drunk-driving charge by going to trial are low. If your case is rife with hopeless circumstances (for example, blood alcohol over 0.15%, dismal failure on coordination tests, etc.), you should be wary of an overly optimistic lawyer who tells you your chances are excellent while demanding more and more money as the case drags on. On the other hand, an experienced California attorney like Wilfredo Trivino-Perez may be successful at reducing the charges and resulting penalties.
At the very least, try to hire an attorney for the limited purpose of fully explaining your options to you, or perhaps to try to work out a plea bargain with the prosecutor. If you’re unable to afford an attorney, you should ask the judge to appoint a lawyer for you when you first appear in court. Ask about our DUI payment plans!
Establishing Probable Cause – DUI STOP
In order to properly be charged with a DUI charge, the prosecutor must first establish probable cause for pulling you over in the first place. The law requires that the officer have good faith probable cause to stop a vehicle, and not a mere pretext or as a result of profiling. As such, the California officer must be held to adequately describe the reasons he or she had to support a finding of probable cause.
We are often able to demonstrate in court or during the pre-trial phase that although the officer may ultimately demonstrate that indeed a driver was impaired by alcohol, however, is unable to adequately state his basis for probable cause—THUS GETTING THE CASES DIMISSED!
In other words, there must be a sufficient basis and evidence to suggest that the traffic stop was valid and not merely on a whim or other unauthorized manner. If probable cause cannot be established, the resulting evidence related to the DUI charge can be suppressed.
If, on account of our successful suppression motions, a prosecutor cannot meet his or her burden of proof beyond a reasonable doubt because key evidence being relied upon to support the allegation that a driver was impaired by alcohol…the charges can be dismissed or the Defendant can ultimately be acquitted of the charges.
PROPER BASIS FOR PROBABLE CAUSE TO STOP A DRIVER INCLUDE:
A regular traffic violation can be probable cause for being pulled over.
For example, any of the following violations can give an officer enough reason to stop you.
- Broken tail-light
- An expired registration
- Weaving onto other lanes
- Un-signaled lane-changes
ATTACKING THE EVIDENCE: PARTIAL LIST
- QUESTION THE STOP – WAS IT LAWFUL?
In order to properly be charged with a DUI charge, the prosecutor must first establish probable cause for pulling you over in the first place. The law requires that the officer have good faith probable cause to stop a vehicle, and not a mere pretext or as a result of profiling. As such, the California officer must be held to adequately describe the reasons he or she had to support a finding of probable cause. We are often able to demonstrate in court or during the pre-trial phase that although the officer may ultimately demonstrate that indeed a driver was impaired by alcohol, however, is unable to adequately state his basis for probable cause—THUS GETTING THE CASES DIMISSED!
- OBJECTIVE SIGNS OF INTOXICATION
The officer upon making the initial stop, will want to further detain the driver, and subject him or her to further testing (Field Sobriety Tests or “FSTs”). In order to do so, he will have to a have proper basis to warrant his further questioning and tests. Often, they will cite to slurred speech, red, watery eyes, shaky hands, etc. These so-called observable symptoms may have a perfectly logical explanation, such as, allergies, Parkinson’s disease, cold weather, fear, etc. We attack these “signs of intoxication” head on; our defensive efforts often lead to a dismissal, acquittal or reduction in charge.
- INNACURATE PRELIMINARY ALCOHOL SCREENING (PAS)
Another potential defense is that the breath test administered on the roadside, or Preliminary Alcohol Screening (PAS), is not accurate, or forced upon the driver to take without properly advising the driver that he or she may refuse to take it. California law enforcement officers are required to monitor the driver for several minutes to ensure that he or she did not burp or vomit. These bodily reactions can cause the test to yield inaccurate results. Our careful itemizations of all procedural steps, and occurrences during the PAS administration may lead to causes for the nullification of the test results. This ultimately provides fertile ground to attack the remaining procedures as unreliable as well.
- IMPROPERLY ADMINISTERED FIELD SOBRIETY TESTS (FSTS)
The Officer is armed with a series of Field Sobriety Tests (FSTs) which measure the driver’s concentration, balance and physiological abilities. These tests are supposed to provide the officer with additional investigative information to form probable cause sufficient to believe the driver was impaired in his or her ability to drive a motor vehicle by the effects of alcohol or another drug. The officer will later utilize the observed results as evidence to aid with his or her testimony in Court or during the DMV hearing.
Often, an eager officer sets out to support his intent to charge a driver with DUI…regardless of outcome on the test, the officer’s report will provide the conclusion he needs to facilitate with his arrest. Other times we learn that officers apply the tests incorrectly, or fatally deficiently. Our scrutinizing of the FSTs and the officer’s training, motivation, lack of experience, often lead to a favorable result for our client’s.
- RISING BLOOD ALCOHOL (BAC) LEVEL THEORY
The theory applies in situations here the defendant had recently consumed alcohol and the alcohol was still being absorbed during the time between the stop and administration of a breath test. As such, when the circumstances and BAC level evidence produced by a breathalyzer test allow; we often use the Rising Blood Alcohol Level Theory defense with excellent results. This theory assists and supports our defense premise that the driver’s BAC was far below the legal limit at the time that he or she was driving, rather, that it continued to rise after the stop through the time the breath test was administered. Often times we are able to effectively disarm a prosecutor by effectively arguing that at the time of the traffic stop the BAC could not have been the same BAC recorded at the time of administration of the breath test.
- FAULTY BREATHALYZER TRAINING OR MAINTENANCE
Our office often challenges the proper functioning or maintenance and calibration of the breathalyzer machine. Improperly recorded maintenance records and lack of proper certification or training by the officer may substantiate this defense.
- DEFECTIVE BLOOD HANDLING CHAIN OF CUSTODY
We may seek to demonstrate that the blood obtained by the driver cannot establish proper chain of custody consistent with the requirements of law. Other times we seek to demonstrate that evidence of proper safe-keeping of the sample is not reliable or that that the blood could have been tampered with or altered.
Trivino Perez & Associates will examine your arrest, police procedure, field sobriety tests and blood or breath tests. If the tests were administered incorrectly or your constitutional rights were violated in any way, we will argue for a dismissal of the charges. In addition to the criminal portion of a DUI charge, we can represent you at the DMV hearings