Hiring an Attorney
The DMV hearing is typically scheduled about four to six weeks after the request, and the person is usually either cited in or bailed out for about three or four weeks after the arrest.
On a misdemeanor DUI in California, the person charged with a DUI will not have to appear in court. Their attorney will make all their court appearances for them so that they don’t miss work, school or time with their family.
The first court appearance is for filing the complaints and arraignments; if the district attorney’s office is ready to file the complaint,they will do so that day. Often they need more time to file the complaint. This happens when the blood test results haven’t yet been received from the lab.
At that first appearance, the DA might announce to the judge that they need more time to gather information before they will be ready to file a complaint. If they are ready to file the complaint that day, then when the attorney appears in court, the DA will give them a copy of the criminal complaint as well as the police report and the test results. The attorney typically enters a plea of not guilty on behalf of his or her clients. He or she then asks the judge to set the case for a settlement conference in a few weeks.
After the attorney has the police reports and a copy of the complaint, they can order additional discovery or evidence that might be needed for the case. Those might include recordings or photographs that were taken during the DUI arrest.
The CHP typically records almost all of their traffic stops with a dashboard camera. That gives us an opportunity to order a copy of the video. We can also get copies of any photographs that were taken, any other audio or video recordings that were made, and copies of the calibration and maintenance records of any Breathalyzer machines that were used.
If there was a blood test, we would also be able to have that blood retested by an independent laboratory. We also meet with our client and discuss possible defenses based on how the police reports were written, and how the facts of their case shaped up.
The first thing an attorney should do once they are retained is request the DMV hearing so that they can try to save the person’s driver’s license from the administrative suspension. The attorney should also start gathering information from the client as quickly as possible while their memory of the event was still fresh. They will want to know everything about the DUI stop and everything about the client’s history and their particular situation that might be relevant to the DUI stop. Again, it’s important to get all this information as soon as possible.
The person could face a fine and, in Sonoma County right now, that fine is $2,427. They will face DUI school for a first offense. That can be six weeks, three months or even nine months. They also face a suspension of their driver’s license for anywhere from six months to a year, depending on whether or not they refused the chemical test.
A person convicted of a first time DUI can be sentenced to anywhere from two days to six months in the county jail. A typical sentence for a first-time DUI would be somewhere in the neighborhood of 2 to 30 days, depending on the circumstances. In most cases, however, the jail sentence would be served on a jail alternative program known as work release. This is where the person works one eight-hour day for the county in exchange for a day of jail. They can do this on weekends or their day off.
In addition, they will be on informal court probation for three years. During that time, if they violate any law or drive when they are not licensed or insured,or if they drive with any measurable amount of alcohol in their system, they can be brought back before the court and charged with a new crime as well as violation of their court probation.
Factors Which Make the DUI Case More Difficult
Getting into an accident makes it worse in terms of the ultimate punishment, even if nobody is hurt, including the driver. The DA and the judge will treat that more severely. Other things that can make the case worse are if a person refuses the chemical test. Punishment will be harsher if the person has a high blood alcohol level.
In California, there is an enhancement if the person’s blood alcohol level is above a 0.15. There is another enhancement if the blood alcohol level is above a 0.20. And if the blood alcohol level is above 0.20, the judge and the DMV will require a person to complete the longer term of nine months of DUI school.
Excessive speeding during a DUI enhances the sentence and makes things worse. It can even be made worse if the DUI occurred in a safety or construction zone. There could be an enhancement for drinking and driving with a minor under the age of 14 in the car. In that case, a person will likely be charged with a misdemeanor or felony child endangerment. That charge carries additional penalties, punishments and probation far beyond what the DUI could impose.
Someone who was under 21 can also face additional penalties, because they would lose their license for a year. And, obviously, if anyone was injured, the penalties would be more severe.
Common Mistakes By Clients
The biggest mistake people make is giving the officer too much information. It can be very difficult to negate those tests if a person said too much about how much they had to drink or when they were drinking. Having a bad attitude with the officer can make the report look even worse. Doing very poorly on the field sobriety tests would obviously also be bad.
The attorney needs to know if you have ever been arrested or convicted of a DUI before. In California, it is considered a second DUI if you are arrested and charged within 10 years of your last DUI. DAs typically can see a previous DUI on someone’s record, even if was more than 10 years earlier, but in that case, you would not be charged with a second DUI. Still, they will make the punishment more severe because, even if the first DUI was more than 10 years ago, the current one is not truly a first offense.
Refusing A Breathalyzer
California has an implied consent law, meaning that everybody with a driver’s license, or who drives a car, has already agreed to submit to a chemical test, a breath test, or a blood test if they are suspected by law enforcement of driving under the influence. The DMV will suspend their license for at least one year on a first offense, two years on a second offense and three years on a third offense if someone refuses that test.
Unlike other DUI suspensions, there will be no opportunity to get a restricted license to driveto and from work or to and from any DUI schools. Additionally, if someone refused a chemical test on a first DUI, the court will require them to go the extended nine month DUI school. The refusal will also result in a harsher punishment, i.e., more time in jail or in a jail alternative program.
What Do Police Look For
Police officers have been trained to look for clues or indicators that suggest some one is under the influence. The officer is also trained to look for clues that suggest that the person’s attention was divided when the officer talked to them. The officer is trained to use their sight, hearing and sense of smell to note any additional evidence during their observation and interview of the driver. They look at how the person’s eyes look, how their clothes look, whether they are fumbling with their driver’s license, whether there are any containers of alcohol in the car, what their speech is like, whether they admit to drinking, whether their answers to questions are inconsistent or unusual and whether there is an odor of alcohol.
They are also trained to use questioning tactics while the driver is still behind the wheelto show they are not able to divide their attention. The officer may ask for two things at once such as the person’s license and registration, and they can ask interrupting or distracting questions, or they might ask unusual questions. If an officer sees any telltale signs, it might mean that the person has an impairing amount of alcohol in their system.
Many people think that just because they have a prescription from a doctor and are taking the prescribed drug within the levels the doctor recommends, they will be immune from prosecution. But that is not true.
Having a prescription for a particular drug is not a defense for a DUI at all if that drug impairs the person and affects their driving – it’s still illegal. It is not uncommon to see a warning not to drive a vehicle or operate heavy machinery on the side of the prescription bottles. If someone’s medication affected them to the point they could not safely operate a car, then they are not legally able to drive, prescription or not.
Contact an Experienced Santa Rosa DUI Attorney