To get a DUI means a police officer must have PC (probable cause) to stop a vehicle. That often means a driver is exceeding the speed limit of 55 to 65 mph. After the stop if the officer smells alcohol, s/he must determine if the driver HBD (had been drinking). In order to do so FST’s (field sobriety tests) and a breath test are offered. However, most drivers don’t realize they are optional at the scene.
If you agree to take the breath test at the scene, the officer looks for a reading over .08 suggesting you were DUI (driving under the influence). However, the Indio DA’s will prosecute a .07. A DUI, in the past, was initially referred to as a 502 and then changed to 23102 and eventually 23152 A & B. Because it always ended in a 2 a driver is often referred to as DEUCED.
If arrested, the driver has 10 days to request a DMV (Department of Motor Vehicles) hearing …and weekends are counted. A DUI arrest triggers 2 different entities. The Court is only one of them. The other entity is DMV, which is an administrative agency, and they do not follow the Rules of Evidence as a Court would or should.
The DMV Hearing Officer, who does not have any legal training, is both the presiding judge and the prosecutor. Thus s/he rules on his/her own objections and they don’t have the authority to feel sorry for you. If you are .08 or higher, then according to the black letter of the law, you are guilty.
The overwhelming majority of DMV cases are won by DMV (98%). The outcome of the Court proceedings does not necessarily affect the outcome of the DMV Hearing. The DMV hearing is an administrative per se hearing where you are “per se” guilty until you prove otherwise.
This Ad Per Se hearing, is based on the implied consent law, which says any person driving in California is “presumed” to impliedly consent to a chemical test if they are suspected of Drunk Driving. A refusal means a 1 year CDL (California Driver’s License) suspension. Arguably, there is a DUI exception to the Constitution. and a lack of “Due Process” …and the absence of a “Presumption of Innocence”. This arguably also appears to constitute “double jeopardy” in that the driver is charged with a criminal offense and punished in court and then is accused in a separate processing (DMV), and punished again with a license suspension.
The courts have used the logic, that the Court is criminal, and the DMV is administrative. In other words they argue that the license suspension is simply an “administrative sanction and not a punishment.
The DMV hearing is conducted like a miniature trial, but without the jury, and with somewhat different rules of evidence. The legal defenses tend to be more “technical” than in court, with procedure and bureaucratic errors often the grounds for a “set-aside” of the suspension. Testimony can be produced by both sides, although the hearing officer will usually only produce documents, such as police reports, lab reports and the officer’s sworn affidavit.
Many drivers don’t realize there are 2 entities after you once you are arrested…the DMV and the Court. If convicted by either, your license will be suspended for a period of time.
When you go to court if you plead or are found guilty, in addition to a fine and DUI classes, you will be sentenced to summary probation of 3 years. If the case is reduced to a Reckless then it would be 1 year.
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Remember: Silence is Golden and Handcuffs are Silver so DON’T TALK to THE POLICE or INSURANCE COMPANY, without your lawyer’s permission …ON A DUI OR PI.
Though often referred to as a DUI criminal defense lawyer, I choose to not view my DUI 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 after screwing up.
I look upon my job as protecting the Constitutional Rights of every American who drinks, drives, and gets arrested for a DUI or has an ACCIDENT. I “Change Hats”, when I SUE Drunk Drivers for damages to my Injured or Deceased (Wrongful Death) clients.
________________________________________________________________________Dale Gribow, is the “Go-To” “Boutique/Concierge” PI/DUI firm with over 25 Top Lawyer awards. The limited caseload allows calls to be answered the “old fashioned” way… by Dale.
Before you talk to anyone, get a FREE PI/DUI Strategy Analysis Consultation! “If you don’t need a lawyer, I will advise and direct you.”
“Providing Professional Legal Advice and Solutions to the Critically Injured and Criminally Accused for 50 years.”
“We understand when good people make bad decisions”
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