First Time DUI Arrest
Having read the previous section of this website entitled “Important First Steps to Take after a DUI Arrest,” 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 a certificate of financial responsibility (SR-22), 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.
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 earlier in the section titled “DUI Field Sobriety Tests in Los Angeles.” 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 hearing process by which you can argue why your license should not be suspended. This hearing, also called the DMV hearing, is your opportunity to show that the suspension is unjust. The particulars of this process, including the hearing, have been discussed briefly 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 your 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 offence 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 (discussed below). 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 further into the various court options, we will explain the importance of the Admin Per Se hearing.
The Admin Per Se Hearing
The Admin Per Se hearing, also called the DMV hearing, is your opportunity to show that you have been wrongly arrested. The hearing must be scheduled within ten days of your arrest. It is best to let your Hurwitz Law Group attorney schedule this hearing for you. We are more likely to obtain a hearing date further out on the calendar thus giving us more time to prepare your case. The DMV hearing is an event that we take very seriously. Our experience has taught us that, even though 90% of suspension challenges are turned down, it is possible to win your driving freedom at the DMV hearing. Many attorneys do not try and prefer to fight a DUI case only in court. To us, that is a missed opportunity and we will explain why below. We have had excellent success at these hearings and we intend to present a formative case for you. Regardless of whether we prevail at this hearing, we will have already accomplished much. Your right to challenge will have been be protected, you will have avoided mandatory license suspension, and, most of all, we will get a glimpse of the evidence the district attorney will have when we get to trial.
But remember, the only role of the DMV is to decide whether your license should be suspended. If you want to bypass the DMV hearing and avoid a license suspension while retaining all driving privileges, you can agree to have an ignition interlock device (IID) installed in your vehicle for one year. This will prevent an otherwise required 90-day “hard suspension,” meaning absolutely no driving for 90 days. If you accept this option, you are deferring to your court appearance to present your case. We at Hurwitz Law Group almost always try to fight a suspension first at the DMV hearing. There is nothing to lose and much to be gained.
The Admin Per Se Hearing: Preparation and Then More Preparation!
So let’s look at what can be accomplished at the Admin Per Se hearing. You have a choice between doing the hearing by phone or in person at a DMV office. We always do the hearing in person, face to face. You and your Hurwitz Law Group attorney meet in an office and sit opposite an employee of the DMV who is not an attorney. He or she comes to the hearing having already decided that you are guilty and is ready to officially suspend your license for the mandatory period for a first time DUI offender.
We are going to pull out all stops in order to beat the charges against you at the DMV level. We will utilize all of the Hurwitz Law Group resources to win at the DMV level, including paralegals, site investigators, witness interviewers, expert witnesses, device calibration experts, and even medical science experts. In the following paragraphs, we will outline the steps we will take to protect your driving privileges at the DMV hearing.
The DMV is determined to keep you off the road. Rather than assume you are innocent, the DMV hearing officer considers you to be guilty of driving with a BAC of .08% or greater and expects you to prove that you are innocent. Proving that you are innocent is a difficult task, but our team is up for the challenge. Our goal is to win at this hearing so that you keep your license and your freedom to drive whenever and wherever you wish at all times without restrictions. When you came to Hurwitz Law Group for help all you had was a pink piece of paper known as an “Order of Suspension” which serves as a temporary license allowing you to drive anywhere you wish for thirty days. The DMV hearing officer comes to your Admin Per Se hearing armed with a file of information gathered from the arresting officer and from an examination of your police record. He or she has no idea whether your arrest was done legally, “by the book,” or whether it is full of errors committed by the law enforcement officer who placed you under arrest. So the burden is on you and your Hurwitz Law Group team to unearth the critical information that will show that your arrest was improperly conducted. We will do our best to prove that you deserve to keep your driving privileges.
Winning an Admin Per Se case requires an extreme amount of preparation, almost as much as a court case. To have success at the DMV level it is essential that we focus our attention on finding seemingly insignificant details and then return to find more such details. When we combine attention to detail with a thorough knowledge of the law and then superimpose our persistence over the entire endeavor, we have a winning strategy. So, as mentioned above, when you come to Hurwitz Law Group, the first step we take is to schedule your DMV hearing as far into the future as possible. This allows us to collect our information and formulate a plan of attack involving you and our entire team. Depending on the complexity of your case and, in particular, whether it involves an accident, it may take several months, and more than one meeting, to resolve all issues. In such a case, we would likely have to request a “Stay” to be put on your license suspension in order to allow time to properly prepare our arguments. The “Stay” simply stops suspension of your license until the hearing is over.
Having convinced the hearing officer that a “Stay” is necessary due to the volume of evidence we intend to present, we begin with a systematic interview of you by several members of our team. This is necessary because the information in the hands of the hearing officer is considered to be accurate. It was collected mainly by the arresting officer and based on his or her observations at the time you were stopped. It includes subjective observations as well as chemical test results. But what it does not take into account are such factors as your activities prior to your arrest nor your medical history. Even if you were asked whether there were any reasons you could not take certain sobriety tests, you may not, while under duress, have recalled all of your possible medical issues which might have affected your behavior during a field test. You may have forgotten that you have leg tightness due to back pain or cramps in your feet. Medical issues such as these, if validated by a doctor, can be presented at the hearing to prove that the sobriety tests may not be accurate.
Another type of evidence that we have used to show that our clients were not under the influence of alcohol when arrested is of a scientific nature. For example, we subpoena maintenance records of the devices used in the breath test, and we ask for laboratory notes from the technician who analyzed our client’s blood sample. We have argued that the BAC test results, in certain cases, were incorrect by showing that our client’s blood alcohol concentration was rising when the BAC test was administered. This argument is based on the fact that the human body metabolizes alcohol at different rates depending on body weight and that the alcohol level rises over time. We try to show that, in specific cases, the BAC tests given to our clients were done prior to full alcohol absorption in the blood stream. Of course, we are fortunate to have experts on this type of argument on-call, and we draw upon their knowledge at the DMV hearings. A similar type of scientific argument is known as the Mouth-Alcohol defense. It can be shown, in some instances, that the arrestee had consumed alcohol so recently that there was still alcohol in his or her mouth when the breath test was taken.
As part of our effort to gather as much evidence as possible prior to the Admin Per Se hearing, we go so far as to visit the site of the arrest to study the conditions under which the sobriety tests were administered. We look for bumps in the road, gravel on the shoulder, and slope of the area. All of these studies are done by the experts at Hurwitz Law Group who have special training in their various fields of expertise. Although it is true that most arresting officers do the tests according to proper protocols, we are often surprised at the carelessness of some officers during an arrest.
Police reports of a DUI arrest contain a wealth of information that often can be challenged as to its accuracy. Since it is this information that forms part of the basis for “probable cause” in a DUI arrest, we spend considerable time studying the description presented by the arresting officer. We often find contradictory statements in these reports. When we find what we think are exaggerations or outright misleading comments, we subpoena the officer to question him or her regarding such statements. We have often had to request dash-cam video to compare it with officer statements. What we want our clients to understand is that there is no limit to the extent to which we will go to win a case at the Admin Per Se hearing.
By preparing diligently for the DMV hearing, we will have a leg up when we get to the criminal trial. Remember that the DMV and the court are two separate entities that must be addressed when fighting a DUI case. It is the court that has the authority to mete out punishment while the role of the DMV is strictly related to license suspension.
The Court Case: How We Fight to Protect Your Driving Privileges
After having perused the extensive steps Hurwitz Law Group takes to prepare for the Admin Per Se hearing, you probably wonder what more can be done to prepare for your criminal trial. Everything we did to get ready for the Admin Per Se hearing will, of course, be used in court. No matter how hard the District Attorney has prepared, we know the ins-and-outs of your case better than he or she possibly could. But we do don’t take anything for granted. We will build upon the evidence and arguments we presented at the DMV hearing in order to further strengthen our case.
The court presumes a person charged with a DUI to be innocent until proven guilty. This may be true, but fighting to avoid a guilty verdict in court for a DUI arrest requires the skill and experience of your Hurwitz Law Group team. Our efforts to get a just resolution of your DUI offense rest with our success at convincing the District Attorney that he or she does not have enough evidence to convict you when we go before the judge or, if necessary, the jury. In the first section of this website, we explain in detail how we have built up relationships over many years with district attorneys and judges in the courtrooms of Los Angeles, Orange, Riverside, and San Bernardino counties. We have also described how the Hurwitz Law Group team mobilizes to collect evidence with which to prepare your case. So now we will enumerate the additional steps we take beyond those employed in the DMV hearing to win your case in court. We shall leave no stone unturned in our fight to protect your driving privileges.
As with DMV hearing officers, district attorneys come armed with a considerable amount of information including your past driving history, field sobriety test results, breath and chemical test results, police officer subjective observations, and other evidence. The one document that your Hurwitz Law Group attorney would hope to bring to the meeting with the district attorney is a finding by the DMV officer that you are not guilty of driving under the influence and that your license will not be suspended. This decision is called a “set aside,” and it means that you can resume driving without further DUI punishment. Even though the court case is completely separate from the Admin Per Se hearing, a “set aside” decision from the DMV hearing officer carries considerable weight when presented to the judge. A “set aside” would be the ideal way to begin discussions with the district attorney, but without it we can still prevail in court.
The first addition to our already thick folder of documents will be a request, in writing, to the district attorney for all of the evidence in your case that he or she has on file. Even though some pieces of evidence will duplicate what we already have, there is the possibility that there are other important bits of evidence that are not in our hands. Such items might include still pictures and videos taken during the arrest in which the police officer is seen administering the field sobriety tests. These pictures would be critical because they may show the ground conditions when the “walk-and-turn” test was given. Better yet, a video (hopefully from a dash-cam) might reveal that the instructions given to you were not done according to proper protocol, or it might show that the officer asked you to stand on one leg for more that the required thirty seconds. We would also hope to get, via this request, logs with communication between your arresting officer and the police dispatcher. This request could even include police reports of a supplementary nature and calibration data for the instruments used in the arrest.
The search for evidence unknown to us would include a request of the arresting officer for all of the documents he or she has pertaining to your arrest. This might turn up notes which contradict statements made when we subpoena the officer to appear in court. Finally, we send a letter to the DMV to get everything they have on your case.
If we feel that we still do not have all of the documents pertaining to your case after we have gathered the information from the above sources, we will file a motion with the judge seeking to discover what else might be available to use in your defense. This is called a “discovery” motion and it often turns up unexpected, useful facts. Another motion that we will use asks for a sample of the blood that was used when (if) you took a blood test after being arrested. We will send the sample to a laboratory of our choice to get an independent reading of your BAC. Quite often we find a measurable difference between the two tests using the same blood. Another possibility is that we may learn that the blood was not stored properly between the time it was taken from your arm and when it was received at the police laboratory. The police are supposed to keep accurate time sheets as the blood is moved and stored from one location to another. If we can prove that improper handling took place, we may have grounds for dismissal of your DUI case.
In our quest to leave no stone unturned in our search for evidence to defend you, we will take one more legal step. If we suspect that you may have been treated improperly by the officer who arrested you, we will file what is known as a “Pitchess” motion. This is a request of the judge to allow your Hurwitz Law Group attorney to see the personnel file of the officer who arrested you. If you (and we) suspect that the officer acted improperly during your arrest by lying in his or her police report, coercing you to say something you did not want to say, or maybe racially profiling you, we will request the file to see if such behavior has occurred often in the officer’s past. Such a request must include specific reasons why you suspect misconduct and how it will be used to support your case. If it turns out that the officer has a history of doing what you claim, such information may lead to our filing a motion to dismiss your case. No matter what the outcome of the “Pitchess,” motion, either it works to get your charges dropped or, if not, no harm has been done to your case.
After Hurwitz Law Group is convinced that all available information has been gathered, we draw up a letter to be sent to the district attorney comparing what we have with what is in the police report. Often the police report lacks important information, or what we have found differs from what is in the police report. In some situations, we may make a motion asking the judge to suppress certain contradictory evidence.
Our thorough search for all available information regarding your case contains a subtle message for the district attorney. We are trying to show that we take your case very seriously because we feel that you are innocent of the charges against you. We want the district attorney to think about whether such an extensive effort to find information would be done if we were not sure we held a “winning hand” in your court case. To bolster your case even further, we employ one last device to improve your chances to win in court. We compile a file of all the good things you have done in your life to show that you are an upstanding citizen in your community. In the file we include graduation certificates from all schools you attended, military commendations and honorable discharge papers (when germane), job recommendation letters, volunteer service appreciation certificates, and other pertinent information. Last, we request letters pertaining to your character from family, clergy, friends, medical providers, and co-workers. So, even though you have let yourself down regarding your DUI, we can show that you are still a positive asset to your community in the eyes of those with whom you relate on a daily basis.
First DUI Penalties: Jail Time and License Suspension
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 older than fourteen in your vehicle, and whether you caused an accident without injuries 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 (discussed below), driving at excess 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 or death, or if there are 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.
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 in a geographical area where driving is a must for living a normal life style. As you know from the discussion above of the Admin Per Se hearing, to avoid license suspension, you must persuade the hearing officer that you were not driving under the influence of alcohol. This is not easy to accomplish and, as you are now aware, it requires expert preparation in conjunction with your Hurwitz Law Group attorney.
Another factor that enters into the DUI penalty discussion is the California implied consent law which states that chemical testing during a DUI arrest is mandatory. If you refused to submit to breath, blood, or urine 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 won 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, for example, 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 thought they had 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 important requirement is that you shall not break any laws while on probation. Also, you will pay a fine of $390 to $1000, and penalties of approximately $1500. In most cases, however, there are options such as community service to pay off fines and penalties. Additionally, 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 (IID) 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.
Before we leave the topic of DUI penalties for a first offense, we want you to be aware of additional available options that may prove valuable as your Hurwitz Law Group team engages in plea bargaining in your defense. Judges in each county have the authority to add other penalties for a first DUI including community service in the form of labor such as litter removal on county roads. In Los Angeles County, for example, a judge can order a DUI offender who is on probation to participate in an activity called the “HAM” program (hospital and morgue) which focuses on positive behavioral change. It consists of four components which are designed to encourage thinking and reflection about the dangers of drunk driving. It both scares and educates by requiring alcohol awareness instruction, a hospital visit to see the gory results of alcohol related accidents, a morgue visit to show where bodies are stored and examined after a fatal accident, and a reflective period requiring an essay about what the DUI arrestee learned including a discussion of positive behaviors focused on healthy choices. The hope is that this set of experiences will help change drinking and driving behavior. Judges also can assign a convicted DUI offender to a program run by MADD, called the Victim Impact Panel (VIP), in which DUI victims share their personal stories about how being injured by a drunk driver has impacted their lives.
Your Hurwitz Law Group attorney may suggest that you try to provide the judge with evidence that you are serious about addressing what you believe may be an alcohol addiction. We are not suggesting that a first DUI is indicative of alcoholism, but if there is the possibility that an addiction is causing you to over indulge and then get on the road, treatment may be the answer to preventing further DUI arrests. Taking pro-active steps to prevent future arrests may convince the judge that you deserve leniency when your penalty is being contemplated. There are a number of programs in which you may enroll prior to your court date. Two of these have been mentioned above, the “HAM” and “VIP” programs. An Alcoholics Anonymous program is another that you can enter voluntarily. Any action that you can take to show that you will no longer be a threat to your community should be pursued.
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 your 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 your Hurwitz Law Group team of experts will work diligently to find inaccuracies in the police accident 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 investigators 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.
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.
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 $4000 to $5,000. As mentioned above the fine for a first DUI can be anywhere between $390 and $1,000 and penalties of about $1500. 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 premiums. These fees, along with an alcohol treatment program, and cost of a DUI defense attorney will set you back $7,000 – $11,000.