First Time DUI

 

Having read the preceding pages, you realize that driving under the influence is a serious offense.  Conviction can result in substantial fines and prison time.  As you will see below, penalties, fees, insurance premium increases, treatment charges, DUI class tuition, and legal fees can amount to as much as $7,000 to $11,000.  In addition, you may have to spend two days in jail or perform community service.

The impact on your automobile insurance premium alone will be shocking and may consume a large portion of your income.  Due to the requirement that you must carry an SR-22 Certificate (defined above), you can expect a premium increase of double or triple your current cost.  Most people see their payments rise by an average of $2,500 per year after one DUI conviction.  To make matters worse, your DUI conviction will remain on your record for ten years and is likely to show up on employer-conducted background checks.

© Alex Proimos

© Alex Proimos

Once an officer has made brief observations of your behavior before and after your traffic stop, and is convinced that you are intoxicated, you will be arrested.  To be convinced, the officer is looking for several telltale signs of drunkenness.  For example, you may forget to turn on your headlights, you may weave in and out of lanes, or your response to traffic signals may be slow.  The officer will arrest you for driving under the influence if he or she believes you were drunk after making these brief observations of your behavior.  These are very subjective judgements.  At this point, the officer has no evidence but rather a hunch that you are intoxicated.

Under California Vehicle Code 23152(a)VC, this is all that is needed to charge you with DUI.  This charge is the first of two charges that you will face when you are pulled over.

After you have been arrested under California Vehicle Code 23152(a)VC, the officer will get down to business collecting evidence to prove that you were actually drunk.  You will be asked to submit to field sobriety tests and the chemical tests described above in the section titled “How California DUI is Defined and Measured.”  The purpose of the chemical tests is simply to determine your blood alcohol level through scientific means.  This testing is authorized under California Vehicle Code 23152(b)VC.  If one of these tests results in a BAC of .08% or higher, you will be charged with a second DUI offense.  At this point the officer will seize your license and issue an “Order of Suspension.”  The “Order” issued by the officer is a legal document that begins the process of denying you the right to drive.  You will also receive from the officer a temporary driving permit, and he or she will explain the Administrative Per Se procedure by which you can argue why your license should not be suspended.   This is your opportunity to show that the suspension is unjust.  The particulars of this procedure, including the DMV hearing, have been discussed above in the section on “Important First Steps to Take after a DUI Arrest.”  Following the hearing, you may be able to get a restricted driver’s license by enrolling in an approved DUI Offenders program which, for a first time DUI, lasts three months.  You will also have to provide an SR-22 form and pay a $125 fee at the DMV office.  The restricted license will allow you to drive to and from work or school and to treatment programs.

Let’s take a step back for a moment to explain more about the chemical tests.  You do have the right to refuse to take the breath, blood and urine tests, but doing so may not be wise.  When you got your driver’s license, you agreed implicitly to be tested if you are stopped for drunk driving.  However, there are legitimate reasons for some people to refuse to take tests when arrested for DUI.  Because the laws regarding the consequences of test refusal are complicated, Hurwitz Law Group will guide you through the process.  Our attorneys understand the nuances of the DUI laws and have experience preparing cases in which clients have refused to be tested.

If your request to lift your suspension fails, the courts will determine your fate.  The penalties you’ll face if convicted of DUI in California hinge on several conditions.  Here is where the characteristics of the offender and the facts of the case come into play.  These characteristics are often labeled as “aggravating and mitigating factors.”  They matter whether the sentence results from a jury verdict or a plea bargain.  A judge may deem your offense minor and let you off with an informal probation. The minimum and maximum penalties a judge can impose for a first time DUI conviction are set by statute and range from probation to jail time.  But before we get into the various court options, let’s look closely at the costs associated with a DUI arrest.

 

Potential Costs of First DUI

If you are granted probation, you may still be ordered to serve time in the county jail as a condition of your probation.  Terms of probation for a DUI charge include court costs and a hefty fine.  You may also have to pay for urinalysis, and probation fees.  Total monthly fees can be significant.

 

© Sonny Abesamis

© Sonny Abesamis

Bail can range from $100 to $2,500.  You can also expect to pay up to $1,200 for impound fees or car towing.  Attorney fees can run as high as $5,000.  The fine for a first DUI can be anywhere between $390 and $1,000.  If you have to do community service, the county might charge a supervision fee of about $100.  You will also need to pay for any treatment or education classes mandated by the court.  The cost of these classes is between $600 and $1,200.  Getting a DUI means paying fees, fines, and increased auto insurance.  These fees, along with an alcohol treatment program, and cost of a DUI defense attorney will set you back $7,000 – $11,000.  A DUI arrest consists of two legal actions against the driver.  The first is the optional DMV administrative hearing.  As you know by now, this hearing is to determine whether the DMV should allow you to keep your license. Suspension of a license is the only penalty a DMV hearing officer can decide.  The DMV verdict is separate from and cannot affect the criminal case.  It also has no bearing on sentencing in the criminal case.  The second legal action against an individual arrested for DUI is a criminal trial to establish guilt or innocence.

 

First DUI Jail Time

The court presumes a person charged with DUI to be innocent until proven guilty.  This statement may be true, but fighting to avoid a guilty verdict in court for a DUI arrest requires a skilled and very experienced attorney.  As you can see from our earlier treatment of the many aspects of DUI law, a careful preparation for your DMV hearing, during which you seek dismissal of your case, is essential.  Should you fail at the hearing, the effort to beat the charges in court takes on major significance.  It will necessitate gathering of all the facts of your arrest as well as the analysis and selection of relevant medical and other arguments.  As was explained earlier, there are numerous ways to challenge the charges against you, including questionable instrument calibration, improper administration of sobriety tests, and possible impact on your coordination from medications you are taking.   To ensure that you are well represented at both the DMV hearing and in court, we, at Hurwitz Law Group, will draw upon our considerable experience and knowledge of California DUI law to prepare a creative defense on your behalf.

When you go to trial, the judge will listen to the prosecutor review all of the reasons you were charged with a violation of DUI law.  He or she will then consider your criminal record,   BAC level, and driving behavior as reported by the arresting officer.  Whether there were children in your vehicle, and whether you caused an accident are also important factors in the judge’s deliberation of your case.  As your guilt or innocence is being determined, there are certain aggravating factors that the judge will take into consideration.   Some examples of aggravating factors include having a BAC of .15% or higher, refusing to submit to a chemical test, driving at excessive speed, being under age 21, driving with children in your vehicle who were under age fourteen, and causing an accident resulting in serious injury or death of an individual.

If there are no unusual circumstances or aggravating factors, your first DUI is considered a misdemeanor punishable by up to six months in jail, but in LA and surrounding counties, jail time is seldom more than two days.  However, if there is a serious injury, death, or other aggravating factors, the law classifies your first DUI as a felony.  For such a crime, you might face a jail sentence of several years.

 

First DUI License Suspension

© UGA CAES/Extension

Jail time is, of course the most feared California DUI punishment.  But driver’s license suspension is also feared because it threatens your ability to get around by car in a geographical area where driving is a must for living a normal life style.   As you know by now, to avoid license suspension, you must request a DMV hearing and persuade the hearing officer that you were not driving under the influence of alcohol.  This is not easy to accomplish and requires expert preparation in conjunction with your Hurwitz Law Group attorney.

Don’t forget that you must ask for a DMV hearing within ten days of your arrest or your driving privileges will automatically expire at the end of 30 days. You’ll then have to wait until the judge in the criminal case determines your fate.  Be reminded also that chemical testing is mandatory according to California’s implied consent laws.  If you refused to submit to testing, the DMV will suspend your license for one year.  However, even in such cases, Brian Hurwitz, at Hurwitz Law Group has been successful in refuting prosecutor arguments.  Clients have been successful in cases in which they refused the tests by showing that there were physical reasons for refusing.  If an individual suffers from asthma or a lung disease, it may be difficult to take a breath test since the test requires blowing into the testing device.  Another argument may be that the client did not understand the consequences of refusing and, due to language problems, became confused.  Although we may not get a dismissal in such cases, we have had success at lowering penalties during the plea bargaining process.

Plea bargaining, referred to above, is a tactic that we at Hurwitz Law Group use when it is not possible to convince the judge that our clients are totally innocent and deserve dismissal of their cases.  It is often better to accept a plea bargain than to risk going to trial and receiving a final outcome that could be worse than that offered by the district attorney in a plea bargain.  District attorneys often have an incentive to reach a deal rather than go to trial.  This occurs when they may not have the open and shut case they think they have after we present our evidence to them.  We have been quite successful in negotiating plea bargains for first-time DUI clients which reduce the severity of the charge and, consequently, lower the penalties.  For example, DUIs have been reduced to “wet reckless,” (reckless driving involving alcohol, but not a DUI), “dry reckless” (reckless driving without alcohol being involved), public drunkenness, and exhibition of speed (racing).  Each of these examples has penalties which are substantially less than those for DUI.

If the final court verdict in your first-time DUI is guilty, in most cases you will be sentenced to three years of probation with several requirements.  One is that the convicted person pay a fine of $390, and penalties of approximately $1500.  There is an option to do community service to pay off the fine.   Also, a required thirty-hour education program (over a three month period) must be completed.  But it is possible to obtain a restricted license which can be used to drive to and from work, school, or a DUI education/counseling program.  Since these penalties overlap those imposed by the DMV at the Admin Per SE hearing, the court defers to the DMV to assign the final penalties.  Thus, once the DMV is notified that the defendant was found guilty, a letter is sent ordering that an ignition interlock device (IDD) be installed.   If the convicted individual prefers to avoid the IID, he or she may opt to refrain from driving by formally signing paperwork to that effect.  This requires that the individual not own a car or drive for five months.  Once the five month period is over, his or her license will be reinstated and the defendant will be able to drive again without restrictions.  Another option available is to apply for a 12-month restricted license for driving to and from places like school and work.  This restricted license can also be used to drive to and from an alcohol treatment program.

 

First DUI Involving an Accident

No one wants to get in a car accident.  Certainly no one wants to be held responsible for one.  California police check the BAC of all drivers involved if there are injuries in an accident.  The police will charge you with aggravated DUI if you cause an accident while driving with a BAC of .08% or higher.  Whether or not this charge is a misdemeanor or felony depends on the severity of the accident.

The penalties for an aggravated DUI are far more severe than for an ordinary DUI.  If you are found by the court to be responsible for an accident while driving drunk, you will receive a felony conviction.  Such a conviction can lead to years of imprisonment.  It can also lead to license suspension and will appear on your criminal record.  It may even cause you to forfeit important education and career opportunities.  Further, an aggravated DUI conviction can result in civil liabilities which will result in your being sued for property damage and medical expenses incurred by any party to the accident.

In general, prosecutors are very reluctant to reduce charges in a DUI involving an accident. This is true even if it involves only one car.  Your chances of a reduction lie in part with your BAC level and the nature of the other parties’ injuries.  If there is any other evidence against you in the case, you will have little chance for a reduced charge.  But if you contact Hurwitz Law Group, we will work diligently to find inaccuracies in the police report and soft spots in the district attorney’s arguments.  Here is where you need our experience and expertise to develop a creative defense which explores all legal options.  We have an investigative team to determine if the police used proper arrest procedures and accident reconstruction experts to search for the minute details needed to support our defense arguments.  Our people, with their know-how and winning attitude, will assemble a plan to implement an aggressive attack against the prosecution.

 

 

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