1. I have been arrested for DUI. What should I do?
The first and most imperative thing is to protect your driver’s license. You have only 10 days to contact DMV at their Driver Safety Division and request an Administrative Per Se Hearing and a stay of suspension until the hearing date. If you do not do this within 10 days of your arrest your license will be automatically suspended effective 30 days from the date of your arrest. Our office will be glad to contact DMV on your behalf or instruct you how to do so for yourself. It is always in your interest to contact an experienced DUI Defense Lawyer. DUI defense is a specialized area though not designated as an official specialty by the California State Bar. Most general practitioners and even State Bar designated criminal law specialists do not have the skills and information to effectively defend DUIs effectively. We are proud of providing over 30 years of winning DUI defense.
2. My citation shows two different code sections, 23152(a) driving under the influence of alcohol and/or drugs; and 23152(b) .08 BAC or above. Why?
There are two components to the Driving under the Influence sections of the California Vehicle Code. This is also true of the Driving under the Influence with Injury sections 23153. The A section alleges that no matter how much or how little alcohol (or drugs) (or a combination thereof) you consumed, that your ability to drive was impaired.
The B section is what lawyers call a presumptive or per se law, namely that if your blood alcohol is measured by a breathalyzer (breath test) or blood test to have a concentration of .08 or above you are legally presumed to be Driving under the Influence of Alcohol.
3. What is a “wet reckless”?
The term “wet reckless” applies to the section of the California Vehicle Code (23103.5) wherein DUIs that are reduced to reckless driving offenses are still “priorable” as an alcohol-related offense. That is they will still count as enhancements making any subsequent alcohol-related driving offense a second (or third, etc.) offense resulting in the same penalties as if a person had been previously convicted of DUI. Thus a plea to a “wet” may result in a lower fine, no jail sentence, and a lesser driving program, but is still much the same as a DUI.
4. What are the penalties for DUI in Monterey County?
First offense DUI’s without aggravation (such as an accident, an excessively high BAC, refusing a blood test or a probation violation on another matter) are generally sentenced to 5-10 days which often can be performed on Monterey County’s Work Alternative Program (effectively community service); a fine of approximately $2000 plus add-ons on which you may make monthly payments; a three-month first offender driving program (nine months if your BAC is .20 or above) and five years non-reporting court probation. The DMV will also suspend your license for a minimum of 30 days. A first offense conviction will also enhance any subsequent DUI conviction for 10 years.
Second offense DUI’s (without aggravation) are sentenced in Monterey to a minimum 40 days but most often 60 days in custody. Sometimes, but not always, this may be served on a home confinement sentence with an electronic monitoring device on the ankle or wrist. This is at extra cost to be paid for by the convicted person. The fine imposed for a second offense varies according to the judge generally from $2000-$3500 and may be paid in monthly installments. You will be sentenced to attend and complete, a multiple offender (SB 38) 18 month driving program. You will be sentenced to install an interlock device in your vehicle for 1-3 years which will prevent you from operating the vehicle with any measurable alcohol in your system and you must also pay the fees for this service to the program. You will be on probation for five years and the DMV will suspend your license for a minimum of one year.
Third offenses will receive a minimum of 180 days, will often be denied any alternate programs, will have all of the conditions set forth in the second offender sentence above, and will often be declared an habitual traffic offender and have their license suspended for three years.
Fourth offenses in Monterey County are charged as Felonies and often result in Felony Probation with a one-year sentence in County Jail, but can result in a Prison Sentence.
5. What can a DUI Defense Lawyer do? How can you defend against DUI charges?
There are many defenses to DUI depending on the fact situations:
Constitutional Defenses are often exercised by “suppression motions” where the police did not have or did not articulate sufficient facts justifying the original stop, detention, search or arrest. A new Supreme Court decision in the McNeilly case provides extra protection where blood tests are taken without actual consent.
Legal defenses, based on the law, such as the driving not occurring in the officer’s presence or relying on an anonymous informant, or an informant that is not available to testify.
Trial defenses to so-called “Field Sobriety Tests” where the officers give coordination and other tests that are inconsistent with NHTSA standards (National Highway Traffic Safety Administration). Often police officers fail to instruct according to standards and fail to score these tests correctly.
Title 17 violations including failure to properly observe a person in custody for the required 15 minutes prior to administering a breath test.
Defenses to the Breathalyzer test such as residual mouth alcohol, RFI (radio frequency interference from sources as various as radio antennas, cell phones, microwave ovens and even car radios) interfering with the machine’s reading. There are specialized medical type defenses like ketosis, induced by Atkins type diets, GERD defenses based on acid reflux disease. Many law enforcement agencies in Monterey County use a Draeger EPAS DOJ model breathalyzer that has been shown to have numerous problems, as well as not having a slope detector capable of detecting residual mouth alcohol. Other defenses to breathalyzer tests are based on rising blood-alcohol where the test is taken considerably later in time than the driving occurred.
Blood Test Defenses include rising blood-alcohol defenses as with the Breathalyzer above, and improper preservative ratios, yeast fermentation and other chemistry based defenses. It is also the job of the DUI Defense Attorney to save your driver’s license at the in-person DMV hearing. Some of the same defenses stated above apply as well as additional defenses based on the police officers’ paperwork and legal declarations to the DMV. Oftentimes the police record different times of testing and arrest that are not consistent or impossible, they give the chemical test prior to formally arresting the person, the lab reports are not signed at a time close enough to the sample’s analysis. For these various defenses to be properly identified and employed it is necessary to have skilled legal representation in the specific field of DUI Defense. At the Law Office of Thomas Vinson Nash we pride ourselves in our successful over 30 year winning record of defending people wrongly accused of Driving Under the Influence.
Resource: DUI Attorney Blog