Driving Under The Influence

1. If stopped for a DUI should you take a chemical test?

Yes. Willful failure to take a chemical test will result in the forfeiture of your drivers license for a year. Even if you are found not guilty of the DUI for which you were stopped, California's Implied Consent Law states you must submit to a test if requested by law enforcement.

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2. What is the difference between taking a blood or breath test?

That is a difficult question without a clear cut answer. The breath test may give rise to a greater number of issues if you want to contest the results. However, it cannot be retested by the defense at a later date. The advantage to the blood test is that is can be retested if necessary by the defense.

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3. Who controls how I get my drivers license back?

All issues controlling your license are handled by the Department of Motor Vehicles, or the DMV.

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4. What is the role of the DMV?

Once you are arrested for driving under the influence, law enforcement will confiscate your license. They will then send a report both to the DMV and the District Attorney.

You have 10 calendar days from the date of your arrest to contact the DMV and ask for a hearing. If you don't request a hearing within this time frame, then 30 days later the DMV will suspend your driving privilege for 4 months. If you are found not guilty of having a .08 or greater blood alcohol level then the suspension will be overturned. If you request the DMV hearing in a timely manner, you can also request a stay, meaning that your driving privilege will be remain in effect pending the outcome of the DMV hearing. You have a right to a hearing before a DMV Hearing Officer. If you have hired an attorney the attorney can appear at this hearing either with or without you.

At the DMV hearing the hearing officer will look at 3 issues:

1. Was there probable cause to detain you?
2. Was there reasonable cause to think you were under the influence?
3. Were you a .08 or greater at the time of driving?

The hearing officer decides based on a preponderance of the evidence. In other words the DMV looks to see if it is more likely than not that the answers to these questions are true. If he finds that they are true, you will lose your license for 4 months. If he decides that it isn't more likely than not that the answers are true, your license will be restored.

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5. How can I apply for a restricted license?

After 30 days on a suspended license, you can apply to the DMV for a restricted license. In order to obtain a restricted license your insurance company must file an SR22, which is a form from your insurance company showing you have current automobile insurance. In addition you must pay a reissue fee, and enroll in a DUI school. A restricted license will allow you to drive to and from and within the course and scope of your employment and to and from the alcohol program.

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6. What is the role of the courts?

On the court side, the DA decides whether there is enough evidence to prove you were driving under the influence. If so, you will be charged with 2 vehicle code violations; driving while under the influence of alcohol, CVC 23152 (a) and driving with more than a .08 blood alcohol, CVC 23152(b) and you will be given a date to appear in court for an arraignment. If there are no injuries, this will be a misdemeanor. If there are injuries you may be charged with either felony drunk driving or misdemeanor drunk driving.

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7. How likely is jail time?

This depends on the jurisdiction. The maximum penalty is 6 months in jail, however, depending on the jurisdiction, the level of blood alcohol and whether there was an accident, the likelihood of jail time will vary.

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8. How long does a conviction for DUI stay on my record?

For most purposes, such as insurance companies and employment applications, the conviction is only pertinent for 3 years. But if you get a second DUI, the court can look back 10 years and this can be used to increase your punishment.

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9. DUI and Vehicular Manslaughter

Let's say you're driving and have 0.08 blood alcohol content (BAC). That is right at the lowest level which the state has deemed to be driving under the influence. Or maybe, just to make the example more dramatic, you have a 0.16 which is twice the legal limit. Or even a 0.25 BAC. You have an accident and someone is killed. Because you are driving under the influence are you automatically guilty of DUI and vehicular manslaughter?

The answer, of course, is not as clear cut as you may think. The answer is... maybe. It all depends on the circumstances surrounding the accident.

If you are driving with alcohol in your system you may or may not be guilty of a DUI. That would depend on the level of alcohol that is demonstrable by the DA. But, the vehicular manslaughter part is separate.

What if, in our example, you were sitting at a red light? You have a 0.25 BAC. Someone rear ends you and your passenger dies. Are you guilty of vehicular manslaughter? You did nothing to cause the accident and couldn't possibly have avoided it either. The fact that you had alcohol in your system is irrelevant as far as causation goes. Therefore it was just an accident as far as you are concerned. Your drunk driving played no part in causing it. You may be guilty of a DUI but NOT vehicular manslaughter. On the other hand, if someone else is sitting at that red light and you rear end them, then the fact that you have a 0.25 BAC will definitely be considered as a possible cause of the accident.

The bottom line is that your lawyer must know the ins and outs of the law. Like most areas of the legal system, things can be much more complicated than they appear at first and when faced with this situation, the consequences can be huge. There is no substitute for knowledge, experience and plain old fashioned hard work. Don't forget, not all lawyers are created equal.

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10. Are DUI Checkpoints Constitutional?

A checkpoint allows the police to pull cars over in order to check for drunk drivers. You might be asking yourself how this fits in with the constitution which says citizens are free from unwarranted search and seizure and that probable cause that the person was involved in a crime must be shown in order to detain someone. In most cases this is true, and knowledge of the constitution can help an experienced criminal defense attorney win many a case based on violations of the defendant's constitutional rights. But in 1990 the US Supreme Court under the guidance of Chief Justice Rehnquist upheld the legality of DUI checkpoints essentially saying the ends justify the means. In other words, the necessity of getting drunk drivers off the streets was more important than upholding the individual's rights to be free from random search and seizure.

Eleven states have refused to abide by the Federal decision and do not allow random checkpoints. California, however, does allow DUI checkpoints as long as they are publicized ahead of time.

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11. How Do Ignition Interlock Devices Work?

Beginning July 1, 2010 all motorists convicted of even first time DUIs will be required to install ignition interlock devices in order to drive. This will be required in 4 California counties as part of a pilot program. The counties involved are: Los Angeles, Alameda, Sacramento and Tulare.

An ignition interlock device is a computer based instrument that is installed in the car. In order to turn the car on, the driver must blow into the device and must have a .03 or less BAC (blood alcohol content). If the driver fails to blow into the device or blows into it and has a BAC greater than .03 the car motor will not turn on.

For a first time DUI conviction, the defendant will have to use the ignition interlock device for 5 months. A second conviction will result in the driver being forced to use the device for 1 year.

The defendant convicted of a DUI will have to pay $75 for the device to be installed and must maintain it which costs approximately $50 a month. If the court finds that the defendant cannot afford to pay the full price, he or she may be able to pay less.

The cost, both in terms of actual money and in inconvenience, for a DUI conviction is going up dramatically, which makes it that much more important to retain the services of a qualified attorney to protect your rights. At the Law Office of Rudolph E. Loewenstein, we handle DUI cases every day. Not all attorneys are created equal and the outcome of your case is often directly related to the quality of your representation.

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12. What Happens When You Get A Speeding Ticket For Going Over 100 mph?

How much trouble can you be in when you're driving over 100 mph? If you're convicted of driving over 100 mph the judge is supposed to, but is not required to, suspend your license for 30 days. Reckless driving is driving while showing a reckless disregard for the safety of yourself and others while on the road. Additional consequences for reckless driving are up to 90 days in jail, even without any alcohol involved. Many DA's and judges consider that the mere fact of driving over 100 mph is evidence of reckless driving. If there is any alcohol involved even if it is under the legal limit of .08 it can be used as an aggravating fact which helps the DA prove that, even if you are driving a high performance vehicle and you are a NASCAR driver, that speed of 100+ mph equals reckless driving.

In spite of everything outlined above, which is how the system looks at this kind of driving, it is still possible to avoid the charge and huge penalties. We were recently able to negotiate a case of 100+ mph speeding to a simple speeding infraction and 5 days of community service. No jail time required, no suspension of the driver's license.

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13. What is the Open Container Law?

Let's say you go over to your friend's house and wine is served. The friends offer one of the opened and partially full bottles for you to take home. You cork it, thank the host and get into your car to drive home. Right? Not so fast.

What about that pesky Open Container Law? You didn't even drink at the party and you're certainly not planning on taking a swig from the wine bottle on the way home. So what's wrong? Here's the crux of the problem: as long as you COULD get your hands on that bottle and take a drink while you're driving, you are violating the Open Container Law. So, just put the bottle in your trunk and you're good to go. No trunk? Put that bottle as far back as possible in your car, in an area not normally occupied by the driver or passengers. If you are in an off road vehicle that bottle needs to be in a locked compartment. Keep in mind that the glove container, even if it has a lock, is not allowed no doubt because it is too accessible. Thinking about it logically, the law is simply designed to give you a way to carry home that unfinished bottle in a way that is safe and prevents the driver having access to it.

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