San Diego DUI Lawyer
DRIVING UNDER THE INFLUENCE (DUI)
Driving under the influence is a specialized and highly technical area of the law. What used to be considered a glorified speeding ticket, now is one of the most severely punished misdemeanors on the books. A person convicted of a DUI is facing jail, fines, alcohol classes, driver's license suspensions, points on the driver's license and higher insurance costs.
When a driver is arrested for a DUI, the Department of Motor Vehicles takes an automatic administrative action on the driver's license. This is completely separate from the court process. A driver only has 10 days from the day they were arrested to request a hearing with the DMV. This hearing is called an "administrative per se" hearing and if one is not requested within the 10-day time frame, the right to a hearing is gone. Without a hearing it is virtually certain the DMV will suspend your driver's license.
DUI: Not Always Cut and Dry
Those who have been charged with driving under the influence (DUI) may be deceived into thinking that it's a simple cut and dry matter. They already know about the fines, the points in their license and even the possibility of losing their license; however, they are not aware that there are other much larger and life impacting penalties that can be assigned with the DUI. While an experienced DUI attorney would be able to assess the case to see if these penalties would be included, many non-specialized lawyers are unaware, leaving the defendant to face the dark.
Penalties for Excessive Speed
In California, a DUI isn't judged simply by impairment, rather, it's viewed from a number of different angles. For example, should the person have been driving on a freeway 30 miles per hour over the speed limit, they can get an additional term of sixty days in jail. This is also applied if the person is only going 20 miles per hour over the speed limit on a street or a highway. These can be applied even if it is the person's first offense and in addition to the jail time, the person will be required to complete an alcohol / drug program even if a probation term wasn't assigned.
Penalties for Passengers
If a parent or guardian has a passenger who's younger than the age of 14, more penalties can be assigned. If this is a first time DUI offense, the person will get 48 additional hours in jail. Should it be the second offense, the jail time increases to 10 days. The third offense warrants an even longer jail time extension: thirty days in jail. Should this be the person's fourth or more offense, 90 days of jail time will be added to the sentence.
Refusal of a Chemical Test
Even if the person was pleasant and listened to the officer during the time of the arrest, they can still be penalized if they refuse to take the chemical test. If the refusal occurred during the person's first DUI offense, they will receive an additional 48 continuous hours in jail and a one-year driver's license suspension. The penalties become more severe if it is the person's second time: an additional 96 continuous hours in jail and a two-year driver license suspension. A third offense receives 10 days in jail while a fourth offense receives 18 days in jail.
Without hiring a lawyer who specializes in DUI cases, the average person won't have the slightest idea how severe the penalties in their cases will be. A skilled DUI lawyer can examine the case with the client, look at all the angles and evaluate the potential penalties, and even find ways to reduce these penalties or eliminate them entirely. For those who think they can brave the courtroom alone, be wary: a DUI is not as cut and dry as it appears.
DUI's & Injuries: Not Just About Insurance
Driving under the influence can have serious consequences, especially when another person is injured. While many people immediately think of their car insurance rates and law suits, they fail to realize that the court also has very heavy penalties for those who are charged with a DUI and have injured someone. These penalties also vary depending on whether probation was granted or if probation was not permitted. Unfortunately, many people get so caught up in the idea of a lawsuit that they don't think to contact a lawyer who specializes in DUI's to examine their situation for their own protection. These people find themselves facing the following penalties:
If probation is granted, the person can expect to get a fine from between $390 to $1,000, along with some penalty assessments. They will also be required to attend a three-month alcohol / drug program. They be required to attend a nine-month program if their blood alcohol level (BAC) was .20 percent or more or if they refused a chemical test. They can also expect at least five days in jail and a six-month driver license suspension. Should the person not be eligible for probation, they can expect the same number of fines, but the other penalties will be more severe. They will face 90 days to 1 year in county jail if the crime is labeled as a misdemeanor, 16 months to 2-3 years in state prison if it is labeled a felony, and one additional one-year term for each additional injured victim and a one-year driver's license suspension.
Second OffenseIf the person commits another offense within ten years of the previous offense, they can expect more penalties. If probation is granted, the person will get a three year license suspension which can only be changed by completion of an alcohol / drug program, a fine between $390 to $5,000 with penalty assessments coupled with 120 days to 1 year in jail, or a fine of $390 to $1,000 with penalty assessments and 30 days to a year in jail as well as required attendance at an 18 to 30 month alcohol / drug program.
If probation is not granted, the person can expect a fine of $390 to $5,000 plus any penalty assessments, 120 to 1 year of jail time in a county jail if it is a misdemeanor, 16 months or 2-3 years in jail if it is a felony as well as an additional one-year term for each additional injured person. This is topped off with a three-year driver's license suspension.
The penalties continue to increase in amount and severity the more times the crime is committed. While a person might believe they will receive probation simply because it is their first offense, it is not always a guarantee. This is why it is important to contact a lawyer who specializes in DUI cases as they will be able to properly analyze all aspects of the situation and find ways to cut back the severity of the penalties.
Wrong Place, Wrong Time: DUI's & a Suspended License
While it's universally understood that a person should not drive while their license is suspended, revoked, or restricted, many believe they can get away with it regardless. Even though it is violating the law, many of these people are correct in that they are able to drive during this time and not get caught; however, not every person is so lucky. If a person should be arrested and charged with driving under the influence while their license is suspended, revoked, or restricted, they can face maximum penalties if they do not hire a specialized DUI lawyer who understands the vehicle code and penalty structure.
Vehicle Code 14601
If the person is a first-time offender and they fall within vehicle code 14601, they can expect to receive five days to six months in jail, a $300 to $1,000 fine with penalty assessments, and an ignition interlock device will be installed if there is a plea agreement for a charge of VC § 14601.2. Should this be their second, third or more offense within five years of another conviction of VC §§ 14601, 14601.1, 14601.2 or 14601.5 they can face: 10 days to 1 year in jail, $500 to $2,000 in fines with penalty assessments and they will have to install an ignition interlock device if a plea agreement for a charge of VC § 14601.2 is reached.
Vehicle Code 14601.1A first time offense with this vehicle code will get a person up to six months in jail or $300 to $1,000 in fines with penalty assessments. They may even have to install an ignition interlock device if there is a plea agreement for a charge of VC § 14601.2. Should this be the any other time after the first, a person can expect at least five days to one year in jail, $500 to $2,000 in fines with penalty assessments, and they will have to install an ignition interlock device if a plea agreement for a charge of VC § 14601.2.
An experienced DUI lawyer will usually use a three-prong attack to challenge a DUI.
Was it a Legal Stop?
The first prong is attacking the initial detention or stop under the 4th Amendment. Police are trained to assume everyone driving at night is DUI. So, law enforcement look for any reason whatsoever to light them up and pull them over to check. Often times, the police stop someone without enough evidence to establish reasonable cause or reasonable suspicion, the legal requirement for a warrantless detention under the Constitution. We call that “fishing.”
Most DUI’s start with a traffic stop
An experienced DUI lawyer will know how to challenge the stop with a motion to suppress evidence if there was not a legally justifiable reason for the stop. If the motion before a judge (not a jury) is granted, all the evidence that was gathered, the officer’s observations, the results of field sobriety tests, the driver’s statements and most importantly, the blood or breath test results cannot be used in court. It is called “the fruit of the poisonous tree” and that can mean a complete dismissal of the case. That may also include statements made without Miranda rights being given. If we can beat the DUI case before it gets to trial, that is a win!
Did the Officer Follow Proper Procedure in Your DUI Arrest?
Years ago, back in the 1970’s and early 1980’s, police around the country used all sorts of tests to try and determine if someone was under the influence of alcohol. Most of them had little or no basis in any scientific research and were inaccurate to worthless. During the 1980’s, an attempt was made to study all the various field sobriety tests to determine which were the most accurate and useful in determining if someone was under the influence of alcohol. The research was done by NHTSA (the National Highway Traffic Safety Administration). The research concluded that three tests done properly were the most reliable indicators if someone was under the influence or not. They are the Horizontal Gaze Nystagmus Test (follow the pen), the Walk and Turn Test (heel to toe test) and the One Leg Standing Test (balancing test.) Together they are referred to as the Standardized Field Sobriety Tests. (You may have heard that these tests are optional.)
The tests only have value if they are done properly, ergo the term “Standardized.” An experienced DUI lawyer knows how the tests are supposed to be done and in what ways police most often err in doing the tests. Furthermore, even if the tests are done properly, a good DUI lawyer knows how to minimize their impact on a jury. Lawyer Jon Pettis is regarded as the best lawyer in cross examination of officers who perform these tests.
Despite having “Standardized” field sobriety tests, police still regularly use other tests. It is important for your DUI lawyer to know how to point this out to a jury, so they can see how unreliable the investigation and decision to arrest you was.
SDD Challenges Blood and Breath Tests
Similarly, to field sobriety tests, there are established protocols for blood and breath tests. One avenue to attacking the tests can be if the breath test was not done properly by the officer or the blood was not properly drawn or processed by the crime lab.
Breath tests can be misleading or inaccurate for a number of reasons as they are an extrapolation of what is in your blood. They can also be thrown off if your recently drank or simply burped.
Blood or breath tests can also only indicate what your BAC was when you were tested, not when you were driving. If your BAC was still going up when the police stopped you, even if you were over the legal limit when you were tested, you could have been below it when driving.
San Diego Defenders DUI Defense Team
San Diego Defenders’ lawyers, Daniel Smith and Jon Pettis, together with the help of certified paralegal Layla Villegas Smith work on every DUI case together. You will see the name of Attorney Daniel Smith and Attorney Jon Pettis on every agreement for legal services together because they “round table” each and every case. Mr. Smith, a 3rd generation lawyer and son of a judge who handled nearly 20 years of DUI cases in his court, has a strong constitutional background and focuses heavily on the any client’s constitutional rights that may have been violated by the arresting officers. Mr. Pettis, a UCLA law school grad is meticulous in his attention to detail and the science of DUI field sobriety testing and chemical testing by the State’s toxicologists and any mistake in drawing the blood test or the calibration of the breathalyzer is scrutinized by Mr. Pettis. Ms. Layla Smith is outstanding in her organization of the exhibits, evidence and communicating with SDD clients with most questions. Even more important is her insight as a to how a juror will receive the evidence and testimony that the lawyers might overlook after years of examining details as a lawyer and not a juror. SDD clients come to the office just to say hello, which speaks volumes about the San Diego Defenders family in the community. Call us anytime for advice and we will always try to help.
Other ConsequencesRegardless of which vehicle code a person falls under, there are other penalties that can be added to the final list. For a first-time offense, a person could have their vehicle impounded for up to 6 months. Any time after the first offense can be even more costly: the vehicle may be impounded for up to one year or declared a nuisance and ordered to be sold.
These are only a few of the vehicle codes and just some of the possible penalties that can stem from a DUI arrest when driving with a suspended, revoked or restricted license. A court appointed lawyer, or a general practice lawyer will likely miss many tell-tale flags that could potentially lessen the penalty of the offense. By hiring a skilled lawyer who specializes in DUI's, the case will be thoroughly analyzed from all angles and all potential penalties will be assessed and reviewed for the client's maximum benefit.