A young man and his mom retained me for his high reading DUI. He swore he only had 1 drink. I said it was impossible to be under the influence with 1 regular drink. I advised him if he was being honest, the machine must have malfunctioned and we would subpoena the maintenance records to see how it was reading for the last week or so.
I asked if he took a red Costco 16 oz. cup and filled it to the first line with Vodka and topped it off with orange juice. When he said yes, I told him the first line is 12 oz. which equaled 12 drinks resulting in the high reading.
I explained it is NOT the NUMBER OF DRINKS but rather the amount of alcohol in the drinks with 1 drink being 1 oz. of alcohol, 12 oz. of beer or 4 oz. of wine. A lawyer looks at the number of drinks; the total amount of alcohol; the weight of the driver; how long since the last drink; whether the driver had eaten and when and how much was protein.
A DUI doesn’t require you be drunk, but rather Under the Influence or Impaired. The Preliminary Alcohol Screening Breath (PAS) Test at the scene, or the breath or blood test at the station determines the reading.
A DUI has always been called a DEUCE because the Vehicle Code always ended in a 2 and thus drunk drivers are referred to as “deuced”. A DUI has gone from a 502 requiring a .15 reading to a 23102 requiring a .10 reading.
Some juries returned not guilty verdicts thinking the driver was not drunk, resulting in a change to its current 23152 (a & b). This allows the DA to file the two counts…DUI and having a .08.
Many juries now split the baby finding the driver innocent of one and guilty of the other. A guilty verdict of either is a DUI with the same sentence.
You are under the influence if your ability to drive is impaired and that takes place at a .08 or higher. Then the burden of proof almost reverts back to you, to show that you weren’t under the influence and/or your blood alcohol was not .08.
The DMV and Court prosecute you and DMV being an administrative agency does not follow the Rules of Evidence. The DMV Hearing Officer, who does not have any legal training, is both the presiding judge and the prosecutor and rules on his own objections.
The statutory hearing is conducted like a miniature trial, without a jury, and with somewhat different rules of evidence. Defenses more “technical” than court with procedure and bureaucratic errors often are the grounds for a “set-aside” of the suspension. Both sides can testify, although the hearing officer usually only produces documents, such as police reports, lab reports and the officers sworn affidavit.
There is no right against self-incrimination so we don’t want our client present. If there the client could be called by the hearing officer as a witness and what is said and taped can be used by the DA at trial.
Neither a plea to a reduced offense nor a dismissal of criminal charges is a defense to a DMV APS suspension. The Administrative Per Se Hearing (APS) is based on the implied consent law which says any person driving in California impliedly consents to chemical testing if suspected of a DUI. The only court proceedings that will have any impact on the DMV is an acquittal or finding of innocence on the .08% charge. A DMV “set aside” has no effect on the criminal proceeding.
Historically DMV suspends your license for four months on a first offense DUI. If you ask for a restricted license, the suspension is for 5 months instead of 4 months. You can request a restricted license 30 days after the DMV suspension. This restricted license allows the driver to drive to and from work and a DUI program.
Whatever you do please hire a LOCAL lawyer and do not attempt to handle a DUI yourself, or better yet…
DON’T DRINK AND DRIVE, CALL A TAXI, UBER or LYFT………IT IS A LOT CHEAPER THAN HAVING AN ACCIDENT OR DUI AND CALLING ME
“Though I am sometimes referred to as a criminal DUI defense lawyer, I choose to not view my clients as “criminals”. I prefer to view them and more importantly to treat them as good, honest people that have found themselves in a scary and unfortunate situation.”
“TOP LAWYER” – Palm Springs Life 2011-2018 (DUI)
“TOP LAWYER” – Inland Empire Magazine Nov 2016
10.0 AVVO Perfect Peer Rating