Driving Under The Influence of Alcohol or Drugs/DMV Hearings

Driving under the influence charges (DUI) can be filed as a misdemeanor or felony. If the case involves serious injury to a person or the client is charged with a fourth misdemeanor conviction within 10 years of three previous convictions then the fourth case can be filed as a felony.

Under California law, there are two separate charges for DUI.

Vehicle Code §23152(a) – It is unlawful to drive a motor vehicle under the influence of alcohol and/or drugs
Vehicle Code §23152(b) – It is unlawful to drive a motor vehicle with a blood alcohol level of 0.08% or more

A person can be charged with the crime of DUI if they have a 0.08 blood alcohol level in their system OR if they have any amount of alcohol in their system and it effects their driving. In addition, a person can be charged with driving under the influence even if no alcohol is present but they have ingested some other mind-altering substance. This includes both illegal and prescription drugs.

Examples of some defenses to DUI charges include: (1) an illegal stop-meaning the police officer illegally stopped a client, (2) the arrest was unlawful or lacked probable cause. (3) police failure to follow testing procedures (Title 17), (4) the client burped, vomited or regurgitated prior to giving a breathe test, (5) Chain of custody issues with a blood sample,(6) the blood sample was somehow compromised, (7) breath testing inaccuracies.

The client can choose either a blood or breathe test or can choose to take both. A urine test is no longer an option.

A refusal to take a blood or breathe test can lead to a 1 year license suspension.

In Orange County, a 1st time DUI normally does not include any jail time as long as there is no bodily injury;

A 2nd time DUI (within 10 years of a first conviction) requires a minimum of 96 hours in jail but in Orange County most courts require between 30 and 90 days (with exceptions);

A 3rd time DUI (within 10 years of 2 prior convictions) requires a minimum of 120 days in jail but most persons convicted of this crime do between 6 and 9 months in Orange County;

A 4th time DUI (within 10 years of 3 prior convictions) requires a minimum of 180 days in jail but most people do a year in county jail or 16 months in state prison.

Effect of a Driving Under The Influence charge on your license

For every DUI arrest, there is both a court proceeding and a separate administrative hearing before the Department of Motor Vehicles. It is possible to win the court portion of the DUI but lose the DMV portion and have your license suspended or revoked and vice versa. It is important to hire a lawyer who has experience with both the courts and the DMV.

PLEASE NOTE, YOU MUST CONTACT THE DMV WITHIN 10 DAYS OF BEING ARRESTED OR YOU WILL LOSE YOUR RIGHT TO A HEARING; IF YOU HIRE MR. WELBOURN, HIS OFFICE WILL CONTACT THE DMV FOR YOU, REQUEST DISCOVERY AND IN MANY CASES OBTAIN AN EXTENSION OF YOUR DRIVING PRIVILEGE.

The DMV must prove three things in order to take action against your license in the event you are stopped for driving under the influence:

That the officer who stopped you had reason to believe that you were driving in violation of Vehicle Code Section 23152 a or b (23152 is the drunk driving code section and this element requires essentially that the officer observed you weaving, speeding or some other articulable traffic offense that justifies you being stopped.).

That you were lawfully arrested;

That you were driving with a blood alcohol level of 0.08 or greater.

While it may seem that these elements are easy to prove in fact the DMV has several vulnerabilities. First and foremost is that there is generally no testimony at these hearings and thus the hearings are restricted to what is contained in the police report. Thus, if the report omits certain critical facts then there is no one to testify at the DMV hearing to correct them. If the DMV hearing is lost then the following can occur to your license.

1st DUI: 4 month suspension (no driving) OR 1 month suspension + 5 month restriction (limited driving) if the client presents to the DMV with (1) proof of enrollment in an alcohol school for first time offenders; (2) an SR-22 insurance form and (3) a $125.00 fee after the 30 days suspension period is over.

2nd DUI: 1 year license suspension. As long as client is enrolled in 18-month alcohol school they can get back at least part of their driving privilege after the 1-year suspension is elapsed even if they have not completed their alcohol school.

3rd and 4th DUI: Revocation of license for 3-5 years. A revocation requires that once the revocation period has elapsed the client must apply to get his driving privilege back.

To read more about DUI Defense and DUI Frequently asked questions please click here.
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