Elements of a driving under the influence/drunk driving charge
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.
A person can be charged with the crime of Driving Under the Influence 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 to include prescription drugs.
Defenses to Drunk Driving/ Driving Under the Influence
Defenses to DUI charges include: a bad stop, meaning the police officer did not have a good reason to initiate contact with the client; the arrest was unlawful or lacked probable cause; the client burped, vomited or regurgitated prior to giving a breathe test; there is a chain of custody issue with a blood sample; the blood sample was somehow compromised and other defenses.
The client can choose either a blood or breathe test or can choose to take both. A urine test is no longer an option.
How does the DMV get involved with a drunk driving/driving under the influence charge?
For every DUI that goes to court there is a DMV component which includes a hearing separate from what occurs in court. 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. That is why you must make sure that whomever you hire to defend your DUI case also has experience with the DMV portion of a drunk driving case. PLEASE NOTE, YOU MUST CONTACT THE DMV WITHIN 10 DAYS OF BEING ARRESTED OR YOU WILL LOSE YOUR RIGHT TO A HEARING.
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:
(1)That the officer who stopped you had reason to believe that you were driving drunk; (2) there was probable cause for the arrest; (3) you had a blood-alcohol level of 0.08 or more.
Sentencing for Drunk Driving/ Driving Under the Influence Charges in California
A 1st time DUI usually 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 most courts require between 30 and 90 days (with exceptions-see home confinement);
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 .
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.
Jail can be avoided potentially no matter how many Drunk Driving/Driving under the influence charges you have by going on home confinement or going into a residental program. The options a Defendant has are only limited by the imagination of his/her attorney.
Effect of a Drunk Driving Charge on the Driving License
1st DUI: 4 month suspension (no driving) OR 1 month suspension + 4 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. However, after the first 90 days of suspension the Defendant can apply for a restricted license as long as he/she installs an interlock ignition device (IID) on the vehicle's steering wheel.
3rd and 4 th 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.
Alternative Sentencing (Home Confinement) for Drunk Driving/ Driving Under the Influence Charges.
In many instances a client can get out of serving actual time in jail by serving his time on home confinement. Attorney William W. Bruzzo has had many, many clients do their time on home confinement and NEVER SET FOOT IN JAIL. It is occasionally referred to as "Alternative Sentencing."
Once a client is sentenced by the court the client is given a jail report date 4-6 weeks later; during that time the client applies for home confinement. In Orange County Home confinement may be given to persons convicted of misdemeanor crimes (and on occasions felonies) UNLESS they are convicted of a violent crime or have a conviction for a violent crime in the past. For example a misdemeanor conviction for domestic violence, current or past, would exclude most people from getting home confinement. Judges do not order home confinement (except in rare instances), they simply permit the client to postpone jail time which gives the client time to apply.