How we can attack the charges and possible Court and DMV consequences.
Overview of a California DUI|
Chances are you came into contact with the police in one of three ways: by being pulled over, sobriety checkpoints, or
in response to an accident. Whether you know it or not, you were asked incriminating questions, probably without your
Miranda rights advisement and without any right to consult with an attorney. You were "asked" to do a series of
"field sobriety tests" under emotionally stressfull conditions.
These field "sobriety" tests are nearly impossible for most to pass while sober. You may have been given a hand-held
"PAS" (preliminary alcohol screening) breath test. You probably didn't know that the officer probably did not read the advisement that you dont have to take that test (unless you are under 21).
After your arrest, you were then required to submit to breath or blood testing, usually at the police station, again,
without any right to speak with an attorney. Contrary to popular belief, the breath machines used by the police are
inaccurate and highly unreliable, and many officers administering them are unfamiliar with proper procedures.
If you refuse, or if the police feel you are not cooperating to the officers satisfaction, blood can be forceably
drawn. Whether blood is drawn or not, a refusal will trigger a mandatory jail sentence and a one-year license
If the breath test is over .08%, or if there is a blood sample withdrawn or a refusal reported, the police will
confiscate the suspect's license and issue him a notice of suspension and 30-day temporary license (the 8 1/2 x 11
The DMV Automatic License Suspension:
Problem #1 is the DMV's action to suspend your license. If the breath test was over .08%, or if there was a blood test,
or a if the officer decided you refused to test, the officer will take your license and issue you a notice of
suspension and 30-day temporary license.
A first offense involves a four-month suspension; a refusal or a second offense within seven years starts a one-year
These suspensions can be successfully fought by Los Angeles Criminal Defense, but it is critical that we, CONTACT THE
DMV WITHIN 10 DAYS OF THE ARREST. The importance of this cannot be overstated; absent a timely request, there will be
no hearing and the suspension will automatically take effect 30 days after the arrest.
The Criminal Prosecution:
Next, you must deal with a criminal prosecution in the court where you are charged with driving under the influence of
alcohol and/or drugs. If the breath or blood test was over .08%, you most likely will also be charged with driving
with over .08% blood-alcohol. YES, you can be convicted of both offenses, only punished for one.
The criminal charges will involve several court appearances, but if you are represented by Los Angeles Criminal
Defense, you should not have to appear at most of these, though we always suggest that our clients make court
appearances if they can.
Both the Criminal Prosecution and the DMV Suspension can effectively be handled by an experienced attorney who
specializes in blood-alcohol analysis and drunk driving cases. It is an unfortunate fact, however, that many general
practice attorneys attempt to represent clients with little or no training or experience in this very complex &
unforgiving area of the law. You wouldn't trust a dentist to perform heart surgery, why trust any firm other than
Los Angeles Criminal Defense. Dont gamble with your future; Call us now at (310) 460-3541.
This is the date on your ticket, about 30 to 60 days after your arrest. If you have an attorney and are not on bond,
you may not have to appear. At the arraignement, you are read the criminal complaint (accusatory pleading), given a
copy and asked what your plea to the charges are.
Your attorney will discuss your case with the Prosecuting Attorney and negotiate the best plea bargain possible.
This is usually after the Motor Vehicle Hearing.
The Court may suppress some or all of the evidence against you if your constitutional rights have been violated. If
applicable, we will file a motion to suppress. At the hearing, the Prosecutor must show that the government did not
violate you rights.
If a deal is not struck with the prosecutor, then you have a right to demand that the State prove the accusations to
a jury of 12. The burden on the prosecutor is "beyond a reasonable doubt," the highest standard in our legal system.
The Court imposes a sentence after a conviction at trial or after a plea bargain is accepted and a plea entered.
Sentences may include jail time, in home detention, public service, alcohol classes and fines.
DMV License Suspension|
When you are arrested in California for a DUI, you should be ven a choice of a breath or d test.
If (1) a breath testicates .08% blood-alcohol ore, or (2) a blood
is taken for later analysis, or (3) you refuse to submit to chemical testing, your driver's license is immediately
confiscated by the police and you are issued a pink sheet of paper. This paper serves as (1) a formal notice of
immediate suspension, (2) a temporary license valid for 30 days, and (3) a technical explanation of the laws and
If this is you first offense in 7 years, your license will be suspended for 4 months. This can be reduced to 1 month
followed by 5 months of work restriction if you file proof of enrollment in a DUI school and an SR-22 proof of insurance
form. If you refused to submit to chemical testing, the suspension is for 1 year; no work restriction is possible. A
2nd offense within 7 years carries a 1-year suspension, 2 years if a refusal.
You have ten days to call a Drivers Safety Office of the DMV to challenge the suspension at an administrative hearing.
This is called the Administrative License Suspension.
If you cannot hire us withing the 10 day period, you should file a hearing request yourself. A form can be downloaded
here with instructions included.
There is a good chance of having the suspension thrown out. When you fight the suspention, the worst thing that can
happen is that the same suspension will simply take effect, but later than 30 days.
Because the DMV is so overworked with these hearings, they usually will not be able to provide a hearing before the
30-day temporary license expires. If that is the case we will demand and will receive a stay of the suspentions until the hearing is provided and a decision rendered
At the hearing itself, a defense is more technical than in court, with procedural errors often the grounds for a "set-aside" of the suspension. Because of the technical
nature of these hearings it is not advisable to represent yourself. For a list of approved DUI schools please visit this link:
Alcohol Levels and Testing|
Principle of Testing:
Alcohol that a person drinks shows up in the breath because it gets absorbed from the mouth, throat,
stomach and intestines into the bloodstream. Alcohol is not digested upon absorption, nor chemically
changed in the bloodstream. As the blood goes through the lungs, some of the alcohol moves across the
membranes of the lung's air sacs (alveoli) into the air, because alcohol will evaporate from a
solution -- that is, it is volatile. The concentration of the alcohol in the alveolar air is related
to the concentration of the alcohol in the blood. As the alcohol in the the alveolar air is exhaled
it can be detected by the breath alcohol testing device, instead of having to draw a driver's blood to
test his alcohol level. Officers can test the drivers breath on the spot and instantly know if
there is a reason to arrest the driver.
Because the alcohol concentration in the breath is related to that in the blood, you can figure the
BAC by measuring alcohol on the breath. The ratio of breath alcohol to blood alcohol is 2,100:1. This
means that 2,100 milliliters (ml) of alveolar air will contain the same amount of alcohol as 1 ml of
For many years, the legal standard for drunkenness across the United States was 0.10, but many states
have now adopted the 0.08 standard. The federal government has pushed states to lower the legal limit. The American Medical Association says that a person can become impaired when the blood alcohol level hits 0.05. If a person's BAC measures 0.08, it means that there are 0.08 grams of alcohol per 100 ml of blood.
There are three major types of breath alcohol testing devices, and they're based on different
Breathalyzer - Uses a chemical reaction involving alcohol that produces a color change
Intoxilyzer - Detects alcohol by infrared (IR) spectroscopy
Alcosensor III or IV - Detects a chemical reaction of alcohol in a fuel cell
Regardless of the type, each device has a mouthpiece, a tube through which the suspect blows air,
and a sample chamber where the air goes.
The Breathalyzer device contains:
A system to sample the breath of the suspect, two glass vials containing the chemical reaction
mixture, a system of photocells connected to a meter to measure the color change associated with
the chemical reaction.
To measure alcohol, a suspect breathes into the device. The breath sample is bubbled in one vial
through a mixture of sulfuric acid, potassium dichromate, silver nitrate and water. In this reaction,
tThe sulfuric acid removes the alcohol from the air into a liquid solution. The alcohol reacts with
potassium dichromate to produce chromium sulfate, potassium sulfate, acetic acid, and water.
During this reaction, the reddish-orange dichromate ion changes color to the green chromium ion when
it reacts with the alcohol; the degree of the color change is directly related to the level of alcohol
in the expelled air. To determine the amount of alcohol in that air, the reacted mixture is compared
to a vial of unreacted mixture in the photocell system, which produces an electric current that
causes the needle in the meter to move from its resting place. The operator then rotates a knob
to bring the needle back to the resting place and reads the level of alcohol from the knob -- the
more the operator must turn the knob to return it to rest, the greater the level of alcohol.
This device uses infrared (IR) spectroscopy, which identifies molecules based on the way they absorb
IR light. Molecules are constantly vibrating, and these vibrations change when the molecules absorb
IR light. The changes in vibration include the bending and stretching of various bonds. Each type of
bond within a molecule absorbs IR at different wavelengths. So, to identify ethanol in a sample, you
have to look at the wavelengths of the bonds in ethanol and measure the absorption of IR light. The
absorbed wavelengths help to identify the substance as ethanol, and the amount of IR absorption tells
you how much ethanol is there.
In the Intoxilyzer, a lamp generates a broadband (multiple-wavelength) IR beam. The broadband IR beam
passes through the sample chamber and is focused by a lens onto a spinning filter wheel. The filter
wheel contains narrow band filters specific for the wavelengths of the bonds in ethanol. The light
passing through each filter is detected by the photocell, where it is converted to an electrical
pulse. The electrical pulse is relayed to the microprocessor, which interprets the pulses and
calculates the BAC based on the absorption of infrared light.
Modern fuel-cell technology (which may power our cars and even our houses some day) has been applied
to breath alcohol detectors. Devices like the Alcosensor III and IV use fuel cells.
The fuel cell has two platinum electrodes with a porous acid-electrolyte material sandwiched between
them. As the exhaled air from the suspect flows past one side of the fuel cell, the platinum oxidizes
any alcohol in the air to produce acetic acid, protons and electrons.
The electrons flow through a wire from the platinum electrode. The wire is connected to an
electrical-current meter and to the platinum electrode on the other side. The protons move through
the lower portion of the fuel cell and combine with oxygen and the electrons on the other side to
form water. The more alcohol that becomes oxidized, the greater the electrical current. A
microprocessor measures the electrical current and calculates the BAC
Punishment and Other Consequences|
||MINIMUM AND MAXIMUM SENTENCES WHEN PROBATION IS GRANTED (3 TO 5 YEARS PROBATION TERM)
||MINIMUM AND MAXIMUM SENTENCES WITHOUT PROBATION
within 10 years
Two options, both requiring attendance at a 3 month or 6 month alcohol/drug program, a fine of $390 to $1000, plus either: (A) 48 hours to 6 months in jail; or (B) for arrests prior to September 20, 2005, a 90-day license restriction. Under option (A), the Court may also suspend your license for 6 months. Under either option, your license shall be suspended for 6 months if the offense occurred in a vehicle which requires a class 1, 2, A, or B license. As a result of the court conviction, the DMV will suspend your license for 6 months, but a restricted license may be available.
96 hours to 6 months in jail, $390 to $1000 fine, and a 6 month license suspension.
within 10 Years
Two options, both carrying a fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail and a 2 year license suspension; or (B) 96 hours to 1 year in jail, an 2 years or 30-month alcohol/drug program, and for arrests prior to September 20, 2005, a license restriction allowing driving only for work and alcohol/drug program for the duration of the program. However, your license shall be suspended for 2 years if the offense occured in a vehicle which requires a class 1, 2, A, or B license. Installation of interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be available after the first year of suspension.
90 days to 1 year in jail, $390 to $1000 fine, and a 2 year license suspension.
within 10 years
120 days to 1 year in jail, $390 to $1000 fine, a 3-year license revocation, and an 18-month or 30 month alcohol/drug program if you have not completed one before.
120 days to 1 year in jail, $390 to $1000 fine, and a 3-year license revocation.
|FOURTH or Subsequent Offense
within 10 years
180 days to 1 year in jail, $390 to $1000 fine, a 4 year license revocation, and an 18-month or 30 month alcohol/drug program if you have not completed one before.
16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; $390 to $1000 fine, and a 4-year license revocation.
|DMV PENALTIES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS|
||.08 or greater
|4 month suspension
1 year suspension
within 10 years
|.08 or greater
|1 year suspension
2 year revocation
within 10 years
|.08 or greater
|3 year revocation
3 year revocation
within 10 years
|.08 or greater
|4 year revocation
4 year revocation
If you are convicted of a DUI or alcohol related reckless
driving ("wet reckless") you will need to file an SR-22 insurance form with the DMV. Additionally, your auto
insurance will probably go up. To help you, we have provided links to companies who have given our clients good
deals in the past,
Auto Insuance Specialists