Driving Under the InfluenceDRIVING UNDER THE INFLUENCE (DUI) / DRIVING OFFENSES
*** IF YOU ARE ARRESTED FOR A DUI, YOU OR YOUR ATTORNEY MUST REQUEST A DMV HEARING WITHIN 10 CALENDAR DAYS TO PLACE THE SUSPENSION ON HOLD AND GET A LICENSE HEARING.
DUI‘s and driving offenses are the largest category of charges to which our firm is dedicated, forming approximately 80% of our practice at any given time. The reason is our client base - professionals and normally law-abiding persons, and their children. These are the most common charges that our clients face.
Mike Brewer has personally handled thousands of such offenses over the years, as both prosecutor and defense attorney. He is a top-rated lecturer to other criminal defense attorneys in the demonstration of how to conduct DUI trials before a jury. While we don‘t condone the commission of DUI or driving offenses, most offenders are good people, whom we can help deal with their situation and put it behind them.
Driving offenses can range from infractions, such as common traffic violations, all the way up to felonies. Most DUI‘s are criminal misdemeanors, unless it is a fourth or subsequent offense within 10 years, or someone is injured or killed during the offense. Misdemeanors and Felonies are criminal offenses that carry fines, as well as jail or prison time. Infractions are not considered crimes, carrying only fines and no jail time.
These offenses do not require any intent to violate the law, but simply an intent to commit the underlying act, or negligence in some form. People who commit DUI‘s usually do not have an intent to violate the law. They are simply making a bad decision to drive. This decision occurs when the party does not know their blood alcohol level, and is a decision that often occurs during the haze of the alcohol involved, which has slipped up on them.
Vehicular manslaughters can occur even when no alcohol or drugs is involved. They may be based only on an alleged traffic violation that results in someone being killed. The traffic violation may not be egregious, may not have any bad intent involved, and may not even be known to the person charged. There is a theory in many prosecution agencies that, "if somebody dies, somebody has to pay, and there is a crime somewhere."
Driving Without a License and Driving with a Suspended Driving Privilege are also common driving offenses that are often charged as criminal misdemeanors.
DUI‘s and other driving offenses are often treated as serious offenses, carrying incarceration and a loss of driving privileges for long periods. A person charged with any offense beyond a simple traffic violation should always have the representation of an experienced criminal attorney.
DRIVING UNDER THE INFLUENCE (DUI) / DRUNK DRIVING / 502‘S *** IF YOU ARE ARRESTED FOR A DUI, YOU OR YOUR ATTORNEY MUST REQUEST A DMV HEARING WITHIN 10 CALENDAR DAYS TO PLACE THE SUSPENSION ON HOLD AND GET A LICENSE HEARING.
Driving Under the Influence of Alcohol or Drugs (DUI), is also sometimes incorrectly called drunk driving or a 502. The term "drunk driving" is incorrect, because under the law of California and most other states, a person does have to be "drunk" in order to be guilty. The term "502" is also incorrect, as it refers to the vehicle code section that was used for Driving Under the Influence many years ago in California. The proper terms and code sections are discussed below, along with an explanation of their elements.
Driving Under the Influence can involve the use of alcohol or drugs, or a combination of the two. The drugs can be illegal drugs, or even legal medications. The basic principle is that it is illegal for a person to drive a motor vehicle in California if their ability to safely operate that vehicle is impaired to a significant degree by any substance, legal or illegal. Moreover, contrary to the belief of most lay people, a person can be legally under the influence of alcohol, even at levels below .08. This is discussed further below.
VEHICLE CODE SECTION 23152(a) - IMPAIRMENT
This section prohibits driving a "motor vehicle" under the influence of alcohol or drugs, or a combination of the two. It prohibits a person from driving a vehicle while under the influence of any substance that impairs their ability to drive with the care of a normal sober person. That includes otherwise legal medications, including prescription or over-the-counter medications, if the substance causes impairment. This also includes marijuana, even if the person has a medical marijuana certificate. The extent to which marijuana in small doses impairs a person‘s ability to drive is the topic of heated debate among experts in the field. As with legal medications, even though a person may have a medical marijuana certificate from a doctor, it does not allow a person to drive if the marijuana impairs their driving.
It comes as a surprise to most people that prosecutors increasingly use this section to charge and attempt to convict people with tested blood alcohol levels below .08, even with no drugs in their system. The theory is that people can be too impaired to drive even at blood alcohol levels below .08. Toward that end, over the years state crime lab toxicologists have lowered their opinions of the level at which people are impaired. They now commonly claim that people can be too impaired to drive at levels as low as .05, and that all people are too impaired to drive at levels as low as .08, irrespective of their size and drinking history! Mothers Against Drunk Driving (MADD) continues to exert tremendous influence on our politicians and government agencies.
As stated above, the use of even legal medications and drugs can result in a DUI if the substances cause impairment. If there is a DUI involving a drug or narcotic that is illegal, it leads to an additional violation of California Vehicle Code section 11550. This section prohibits being under the influence of a controlled substance, whether driving or not.
Conviction for a violation of California Vehicle Code section 11550 carries a sentence that includes a minimum of 90 days in jail, and a maximum of 1 year. In addition, if the offense involved driving, the person is not eligible for a drug treatment Deferred Entry of Judgment program under Penal Code section 1000. The result is that the person is faced with actually serving the 90 days ï¿½ 1 year of jail time.
VEHICLE CODE SECTION 23152(b) - .08% OR HIGHER
This section prohibits driving a "motor vehicle" with a tested blood alcohol level of .08 or higher. This is not as cut and dried as most people would think on first impression. First, the tests used are often inaccurate, and even vary in their readings from person to person. Even the blood tests are often inaccurate, as they do not use the same testing procedures as blood tests performed by medical professionals. Second, the tests cannot determine a person‘s blood alcohol level at the time of driving, which is the important point in time.
Police departments frequently change the devices that they use to test blood alcohol levels, claiming that the "new" devices are more accurate. They have all been fatally flawed over the years, and will likely continue to be inaccurate in the future, particularly breath devices. Police departments succumb to the desire to have devices that are quick and easy to use, overlooking the inherent problems with those devices for the sake of convenience. For many years, and until recently, the state allowed urine testing to determine blood alcohol levels, as illogical as that may seem. Common sense tells even those with no scientific training that the levels of a substance in the urine tells little about a person‘s blood alcohol level at any given time. The state only grudgingly abandoned that practice, and still offers it as a backup test!
In order to be guilty of DRIVING under the influence, a person has to be DRIVING a vehicle. Seems simple, right? WRONG! Driving becomes an issue in a surprising number of cases, situations in which officers do not observe a person driving, and jump to unwarranted conclusions.
One of the most common situation where the issue of driving arises is where police get the WRONG driver. This often involves an accident where there is more than one person in the car. In some cases, the actual driver leaves the scene of the accident. The actual driver leaves to either seek help or out of fear of the consequences of the accident. The actual driver has often been drinking himself, is not legally in the country, or lacks a valid driver‘s license or insurance. When the actual driver leaves the scene, it leaves his passenger at the scene to take the blame for the accident. If he has been drinking, police officers are quick to jump to the false conclusion that he was the driver, especially where the actual driver is nowhere to be found.
There are also situations where a police officer comes into contact with a person sitting in a vehicle while under the influence. Many police officers will try to prove that the person was driving the vehicle while under the influence at some earlier time, a conclusion that is often unwarranted. Our office obtained a dismissal of a DUI in which our client, distraught over the death of a relative, sat in his parked car and drank in a parking lot, without driving under the influence at any point.
There are many other odd cases that I have seen over the years involving the issue of driving, including cars being pushed by hand and people sitting with the engine running. The bottom line is that the law requires "volitional movement of the vehicle", actual intentional movement of the vehicle in some form.
A MOTOR VEHICLE
This is another issue that would seem simple, but occurs in real life from time to time. Creative police officers, often inexperienced and trying to push to make a name for themselves, sometimes stretch to try to make a DUI case in which a motor vehicle is not involved. There are reported cases on such items as skateboards, bicycles, wheelchairs, and even horses.
Any device that is moved exclusively by human power is not a vehicle. In order to qualify as a vehicle, the device must have some type of motor, but there is an open question even as to some of these.
Note, however, that even though the vehicle may not qualify under the DUI statutes, there may be other statutes that prohibit operation while under the influence, such as with a bicycle.
BLOOD ALCOHOL LEVEL AT THE TIME OF DRIVING
An issue that commonly occurs in DUI cases concerns the issue of the party‘s blood alcohol level at the time of driving, which is the important point in time in a legal sense. Obviously, a person is not and cannot be tested at the time of driving. The test of a person‘s blood alcohol level always occurs at some later time, often significantly later. In some cases, such as those involving accidents, the blood alcohol testing may occur hours later.
Our office had one such case that occurred in the desert between Palm Springs and the Colorado River. The blood alcohol test occurred three and one-half hours later, due to the travel time of the officer to and from the location, and the length of the investigation.
The problem with later testing is that a person‘s blood alcohol level does not stay constant. A person‘s blood alcohol level rises and falls over time, as the alcohol enters the bloodstream, and the liver starts the process of eliminating it. The rate at which a person‘s blood alcohol level rises and falls depends on the circumstances in which the alcohol is consumed, and the person‘s own unique metabolism. Factors affecting the process include whether a person has food in their stomach, and the manner and rate in which the alcohol was consumed. Additional factors include the person‘s sex, height, weight, body type, and history of drinking. Scientists now believe that there may be other unknown factors involved in the process.
In order to try to get around this timing issue, the "experts" that work for the state use a process called "retrograde extrapolation". This is a process that uses a series of calculations, based on reported drinking history, to try to "figure back." Obviously, this process is riddled with problems, even more than you might realize at first glance.
A Swedish scientist developed this process before World War II, by testing a small number of Swedish college students. Our state governments seized on this, and ustilize this process to this day. They base their calculations on a series of assumptions based on these old studies, and the averages that those studies reported. Individual people are not average, however, and today‘s Americans of all ages, sizes and ethnic backgrounds do not correspond to a small group of pre-World War II Swedish students.
More recent studies, of which most government "experts" are unaware, or rejected out of hand, show the unreliability of this process. The numbers seen vary wildly from the old study on which the government relies. The modern studies prove, and even many government people will now concede, that the retrograde extrapolation process overestimates the blood alcohol level of more than 30% of people tested. This can result in innocent Americans being wrongly convicted by the government.
RISING BLOOD ALCOHOL LEVEL
The issue of blood alcohol level at the time of driving can often be affected by situations in which a person is tested when their blood alcohol level is still rising. A person‘s blood alcohol level can be below the limit at the legally important time of driving, but have risen to a level above the limit by the time that they are tested. This is particularly important where a person‘s tested blood alcohol level is close to the legal limit, up to .12% or more.
This scenario usually occurs when the drinking ends at a point close in time to the contact with the police, such as where a person has just left the bar or other place where they were drinking. If a person "chugs" a drink just before leaving, it impacts the test even more. This can happen in many cases, as people tend to "chug" or down the last part of a drink just before leaving, particularly if it is at closing time for a bar or restaurant. That person‘s blood alcohol level may continue to rise for well over an hour. It is likely that if the person is stopped for a traffic violation and DUI investigation, it will occur quickly after drinking, while the driver is on their way home.
Unfortunately, police officers may incorrectly document the drinking history reported by a driver, particularly when the officer is inexperienced, distracted or in a hurry. In addition, it has been my experience that many drivers incorrectly report their drinking history. Drivers who are afraid of being arrested often underreport their drinking and state that it has been several hours since their last drink. This makes it appear that a rising blood alcohol scenario is not involved, when the truth would in fact help their defense.
Another scenario affecting blood alcohol level at the time of driving is where a person consumes additional alcohol after the time of driving. You would think that a person wouldn‘t consume additional alcohol in such a situation, but it happens in the real world.
This situation usually occurs where the driving is witnessed by a civilian who summons the police, particularly where there is an accident alleged. Typically, the driver in question does not realize that he will later be the subject of a police investigation, such as where the "accident" is a minor affair in a parking lot, with no damage to the vehicles. He proceeds into his home, or a nearby bar or restaurant, where the alcohol is consumed.
In some cases, the person may even be drinking in the vehicle. While drinking in a vehicle is itself a minor offense, it is not the more serious crime of DUI. I have even seen cases where a person drinks while waiting for the police to arrive, particularly where the person suffers from alcoholism.
Having over 17 years of experience as a prosecutor or criminal defense attorney as of the time of this writing, I have seen almost everything. As they say, "truth is stranger than fiction." Having assisted in writing scripts for Law & Order and other television programs, I can also tell you that what I have seen in real life far exceeds what I have seen writers produce. When dealing with human beings, you can expect almost anything. Expect the unexpected.
Breath testing is also an inaccurate method of testing blood alcohol level, which is the important issue. Alcohol level on the breath itself has no effect on a person, as it is only when alcohol enters the bloodstream, which takes it to the control centers of the brain, that a person becomes affected. The desire for an immediate and simple testing method, without the messy extraction and storage of body fluids, has clouded the collective judgment of those in law enforcement. Officer can wrap up cases quickly, and have the results when they make an arrest and write their reports, and can tailor those reports accordingly. I have seen cases wherein officers misread the results, yet the physical observations of the defendant in their reports corresponded with what they believed to be the readings.
A number of companies now market breath-testing devices to law enforcement, and greatly exaggerate the reliability of those devices. Some companies even claim that their devices can eliminate the possibility of false positives due to incorrect sampling, or the reading of substances that mimic and appear to be alcohol, when they in fact are not. This is discussed in more detail below.
All breath-testing devices are inaccurate, even when reading within the allowed margin of error of the machine. There is an inherent allowed margin of error of ï¿½ .01, even if the machine is "reading accurately". In addition, there is a difference in the way that breath machines read different people who otherwise have the same blood alcohol level. This is based on such factors as sex, weight, and even body type.
Even the blood testing methodology that the government uses is fraught with problems. The government does not use the same methodology that you would get from a hospital or your doctor. They don‘t even use the same vials, which have to be kept separate to ensure that they are not used for medical purposes. In the end, these samples are tested using a type of breath device, which extracts only molecules of the sample, and then blows it through the testing device! This is not a methodology with which you would want your sample tested or that of your child.
In addition to the problems with the test methodology, blood tests can be wrong due to spoilage of the sample. As with other living body products (we are most familiar with milk), blood oxidizes or spoils over time unless mixed with a preservative agent. As the blood spoils it produces alcohol, causing the alcohol to rise right in the tube!
In order to prevent spoilage, a preservative agent must be mixed with the blood sample. Today the state typically does this by using vials with preservative already added. There are cases, however, in which a sufficient amount of preservative is not added. In addition, after the blood is drawn, the sample must be sufficiently shaken in order to mix the preservative with the blood. Many police officers are unaware of this, and fail to do it.
In cases involving blood samples, we typically have the sample re-tested. We have the crime lab involved remove a part of the sample and send it to an independent laboratory for re-testing of the sample. The sample is tested for alcohol level and preservative content. We routinely have cases in which the reported alcohol level of the re-test is different than that of the original, which can be important in close cases. We also see cases in which the re-test is significantly higher than the original, proving spoilage, which invalidates the original test, as it also likely occurred after the effect of spoilage.
DMV HEARINGS ON DUI CASES
When a person is arrested in California for a DUI, it triggers an Administrative Per Se action (APS) by the California Department of Motor Vehicles. If the DUI arrestee has a California license in their possession, the arresting officer confiscates that license on behalf of DMV. (Although officers sometimes mistakenly do so, they have no legal right to confiscate a driver‘s license issued by another state.)
Whether the arrestee has a California license in their possession or not, the arresting officer serves them with a notice of suspension, which also serves as the DUI arrestee‘s temporary license for 30 days. If the DUI arrestee takes no action, a suspension his driving privilege goes into effect after 30 calendar days. Even if a person has a driver‘s license from another state, the suspension is placed on his ability to drive in California. The length of the suspension depends on whether the arrestee has any prior DUI convictions or APS actions within 10 years preceding the current arrest. These suspension periods are discussed further below.
IF THE DUI ARRESTEE OR HIS ATTORNEY REQUESTS A DMV HEARING WITHIN 10 CALENDAR DAYS OF THE ARREST, THE ARRESTEE CAN HAVE THE SUSPENSION PLACED ON HOLD UNTIL THE CONCLUSION OF THE HEARING.
The APS hearing is held at the DMV Driver‘s Safety Office for the jurisdiction in which the arrest occurred. A DMV employee serves as both the judge and the prosecutor (no kidding). The hearings are typically based on the forms and reports submitted by the arresting officer, unless the DMV or the defense calls witnesses to testify at the hearing.
There issues at a DMV hearing are as follows: 1. Whether the arresting officer had reasonable cause to believe that the licensee had been in violation of one of the DUI laws, 2. Whether he licensee was lawfully arrested, and 3. Whether the licensee was driving a motor vehicle with a blood alcohol level of .08% or higher.
The hearing officer does not typically issue a ruling at the hearing, but instead notifies the licensee of the ruling by mail, typically within several weeks. If the licensee prevails at the APS hearing, the suspension is set aside and his license is returned. The licensee may still face a suspension of driving privileges if convicted of a DUI offense in court, which is discussed below.
If the DMV hearing officer rules against the licensee, the suspension will go into effect on the date stated in the written ruling, which is typically 2-3 weeks after the hearing. The licensee can challenge the ruling through two procedures. The first is a DMV Administrative Review, wherein the DMV itself reviews the ruling. The second is a writ to the Superior Court, wherein a judge determines whether the ruling was appropriate.
For the most part, the DMV and the court actions are independent of each other. There are two major exceptions: 1. If the licensee obtains an acquittal on the DUI case in court, the DMV must set aside any suspension that it imposed as a result of the DUI. 2. If the licensee is convicted of a DUI offense in court, the DMV will impose a suspension, even if the licensee had prevailed in the DMV APS hearing procedure.
DUI DRIVING SUSPENSIONS
As discussed above, a person may receive a suspension of their California driving privileges if convicted of a DUI offense in court, or as a result of the DMV‘s internal Administrative Per Se (APS) procedure. The courts are typically no longer involved in the suspension of licenses for DUI offenses. The licensee still faces, however, 2 possible suspensions of their driving privilege as a result of a DUI arrest. DMV may suspend based on its own internal APS procedure, which goes into effect after 30 calendar days if the licensee fails to request a hearing within 10 calendar days of the arrest, or after ruling against the licensee at the hearing. DMV may also suspend the driving privilege if the licensee is convicted of a DUI offense in court. These suspensions can be of varying length, and do not necessarily run together.
Many people end up with longer suspensions because they do not have a lawyer who knows their legal rights with respect to DMV. I have even seen and later represented attorneys who fall into this category, because they were not experienced in the intricacies of DUI and DMV law. The sanctions for driving in violation of a DUI suspension are severe, and call for mandatory periods of jail time. Compliance is essential, and unnecessary longer periods of suspension due to ignorance can be avoided.
DRIVERS FROM OTHER STATES AND COUNTRIES
We routinely represent business people and tourists on DUI cases who are from other states and countries, and who therefore have driver‘s licenses issued by those other jurisdictions where they reside. These cases pose special jurisdictional problems, especially with regard to the license issues, and require special attention and knowledge. These people face DUI actions against their driving privilege not only in California, but in their home jurisdictions as well.
Unlike California licensees, the arresting officers are not legally entitled to confiscate a license issued by another jurisdiction, although they sometimes do so. If this happens, action must then be taken to have the license returned.
The reason that California can take action against people with driver‘s licenses from other jurisdictions, or even people with no license at all, is that the action is against the driving privilege. A driver‘s license is separate from a driving privilege. A person must have both in order to legally drive.
If a person has a driver‘s license from another jurisdiction, and has not become a California resident by living in the state for 180 days or more, that person has a privilege to drive in California, if no action has been taken against that privilege. If action has been taken against that privilege, the person may not drive in California, even if legally licensed in another jurisdiction.
A DUI action may not only suspend the California driving privilege of an out-of-state licensee, but it may also lead to action against his license and driving privilege in his home state. This happens through an Interstate Compact, which 45 of the 50 states have now signed. Under this agreement, these states have agreed to share information on drivers, and to actually notify each other of actions taken against drivers. Moreover, in this day of computerized records and the internet, it is very easy for states to obtain information from other jurisdictions.
In addition to the driver‘s license problems posed for the out-of-state driver in their home state, they face particular driving problems in the state of California. The result for these drivers is stiffer sanctions on their ability to drive in California. This can pose special problems for business people who, will residing in another state, need to drive in California on a regular basis.
If convicted of a DUI offense in court, these drivers face special problems in trying to comply with their sentence. These drivers need special assistance in trying to comply with court-ordered alcohol education programs, which are a mandatory part of any DUI sentence. While these programs are becoming more uniform as a result of the interstate compact, there are still differences between states that pose special hurdles that the driver must navigate in order to comply with court orders.
If for no other reason, drivers from other states arrested for DUI offenses need an experienced DUI attorney to make court appearances on their behalf, and to ensure compliance with court orders. Compliance with court orders is a maze that a person must navigate, and having the knowledge of the procedure is a necessity, particularly for a person trying to do so from a distance. The last thing that any person wants is to end up in jail by violating a grant of probation, either unknowingly or due to a clerical oversight.
BASIC DUI PENALTIES
The penalties on even basic first-offense DUI cases are severe. The law provides for possible incarceration of up to 6 months in the county jail, a fine of $390-1,000 plus penalty assessments and court costs, impoundment of the vehicle used for up to 6 months, installation of an ignition interlock device on the vehicle for up to 3 years, a driver‘s license suspension, and completion of an alcohol education program. The penalty assessments and court costs approximately quadruple the base fine, so that the totals generally range between $1,475 and $1,850. The length of the alcohol education program varies according to blood alcohol level.
Under the new law, there are two possible driver‘s license suspensions. A 4-month suspension can result from the DMV‘s own internal APS procedure, separate and apart from any action as a result of what happens in court. If the person is convicted of a DUI offense in court, then the DMV imposes a second 6-month suspension. The two suspensions do not necessarily run at the same time. In our experience, most drivers who do not have an experienced DUI attorney suffer a longer total period of suspension than is legally necessary.
For second DUI offenses occurring within 10 years of a prior offense resulting in a DUI conviction, there is a legal minimum of 96 hours and a maximum of up to 1 year in the county jail. Many jurisdictions now attempt to impose minimums of 60-120 days in jail on second offenses. This is in addition to the fines, vehicle impoundment, ignition interlock device, and alcohol education program. There is a driver‘s license suspension of 2 years or longer, the actual length dependent on how the driver handles the matter. In our experience, most drivers who do not have an experienced DUI lawyer suffer a longer suspension than is legally necessary.
On third DUI offenses, occurring within 10 years of the commission of 2 prior DUI offenses resulting in DUI convictions, there is a legal minimum of 120 days in jail. Many jurisdictions now attempt to impose minimums of 6 months or more in jail. This is in addition to the fines, vehicle impoundment, ignition interlock device, and alcohol education program. There is a driver‘s license revocation of 3 years or longer, the actual length of which depending on how the driver handles the matter. In our experience, most drivers who do not have an experienced DUI lawyer suffer a longer suspension than is legally necessary.
On fourth DUI offenses, occurring within 10 years of the commission of 3 prior DUI offenses resulting in DUI convictions, the offense is a "wobbler". This means that it can be charged as either a misdemeanor, carrying up to 1 year in county jail, or a felony, carrying up to 3 years in state prison. Most jurisdictions charge the offenses as felonies, and seek state prison sentences. This is in addition to the fines, license revocation, etc.
DUI offenses occurring within 10 years of a prior felony DUI offense in any form, can also be charged as felonies, and typically are in most jurisdictions. In addition, any DUI offense in which someone is injured can be charged as a felony, and often are in most jurisdictions. See DUI WITH INJURY, below.
UNDER 21/ JUVENILE DUI ï¿½ VEHICLE CODE SECTION 23140
While they can still be charged with all of the other DUI offenses, there are additional and specific DUI laws that apply to drivers who are under 21 year of age at the time of commission of the offense. The limit is lower, and the consequences are more severe. Moreover, the court procedure is often different, with fewer rights available to the charged driver.
California Vehicle Code section 23140 provides that such drivers can be punished for blood alcohol levels of .05% or above. The offense is an infraction, as opposed to a misdemeanor or felony, resulting in the loss of the right to a trial by jury. The penalty for a first offense is only a $100 fine. The most important part, however, is that there is a mandatory 1-year driver‘s license suspension. The driver may apply for a critical needs restriction to allow limited driving within that year.
COMMERCIAL LICENSE DUI
California Vehicle Code section 23152(d) prohibits commercial license holders from driving with a blood alcohol level of .04% or higher. This applies even where the driver was not driving a commercial vehicle at the time.
The commercial license holder faces a 1-year suspension of the commercial license for a first offense, in addition to the other DUI penalties. The hazardous materials transport commercial license suspension is 3 years. For second or subsequent offenses, there is a lifetime ban on each type of commercial license. Such license holders may be able to obtain basic drivers licenses within the shorter period applicable to other drivers license holders.
BOATING UNDER THE INFLUENCE (BUI)
As with a motor vehicle, Boating Under the Influence is a crime in California in most jurisdictions. The per se level in California is .08%, but as with a motor vehicle, it is also a crime to operate a vessel while impaired by alcohol or drugs, or both. The penalties are similar to DUI‘s involving a motor vehicle, including a driver‘s license suspension.
Another important factor is that Boating Under the Influence counts as a conviction for Driving Under the Influence. For example, if a person is convicted of Boating Under the Influence and commits a DUI within 10 years, the DUI is a second offense. The reverse is not true, however, as there are no multiple offenses for Boating Under the Influence. Therefore, the DUI followed by a BUI would not make the BUI a second offense. In addition, a BUI would legally be the same even with prior BUI convictions. The Court could, however, seek to impose an enhanced penalty. It would just not be legally required.
DUI WITH INJURY
Driving Under the Influence which results in injury to another person, including a passenger in the DUI driver‘s own vehicle, is an enhanced form of DUI. This offense is what is called a "wobbler", meaning that it can be charged either as a felony, which potentially carries a state prison sentence, or a misdemeanor, in which the maximum sentence is one year in a county jail. How the offense is charged generally depends on the policy of the jurisdiction where the offense is committed, and the extent of the injury. Other factors may also come into play, such as whether the blood alcohol level was much higher than the legal limit, the number of injured parties, and whether the driver has a record of prior DUI or other serious convictions.
If a person dies as a result of an accident involving a motor vehicle, the charge can be vehicular manslaughter, whether a DUI is involved or not. If a DUI is involved, then a Vehicular Manslaughter charge is almost certain. If the DUI driver has one or more prior DUI convictions, however, the charge is likely to be Second-Degree Murder. As of January 1, 2008, the charge may be Murder, even without prior convictions, (See the next section, below).
Even with no alcohol or drugs involved, a driver can be charged with some form of vehicular manslaughter if the driver is determined responsible for an accident that results in the death of another person. This includes a passenger in the driver‘s own vehicle. All that need be shown is that the driver was negligent to some degree or committed some traffic violation, and caused the accident that led to the death of the other party.
Vehicular Manslaughter can be charged as either a misdemeanor or a felony, depending on the level of negligence. If the level of negligence is highly elevated, the charge can be Gross Vehicular Manslaughter, which brings an elevated penalty above the simple version.
Over the years, I have seen many cases of Vehicular Manslaughter that should not have been brought. This is one of the most over-charged penal sections on the books. As a prosecutor, I saw that many other prosecutors had the belief that, "if somebody dies, somebody must pay for it", irrespective of whether the driver was truly blameworthy. Moreover, there is a corresponding belief among many prosecutors that a driver has an absolute duty to avoid an accident, irrespective of whether it is humanly possible to do so as a practical matter. Lastly, many prosecutors are afraid to refuse to file or resolve such cases because someone died, particularly if family members of the deceased are calling for blood, however irrational it may be in a case.
SECOND-DEGREE MURDER DUI (WATSON MURDER)
There is a legal theory that when a person commits an act with "depraved indifference" to human life, and that act results in the death of another person, it is Second Degree Murder even though the actor has no actual intent to kill the dead person. The classic example taught in law school is shooting into a crowded room, wherein a person is hit and dies. Even though the shooter had no intent to shoot the person killed, and may not have even known the person or of that particular person‘s presence, the "natural and probable consequences" of the shooting was the death of another person.
The California courts have extended this concept to DUI‘s, if the DUI driver is involved in an accident and kills another person while driving under the influence. The deceased may even be a passenger in the driver‘s own vehicle. This offense carries a mandatory life sentence in state prison.
Historically, the courts have required the DUI driver to have specific knowledge of the dangerous nature of the act of Driving Under the Influence. This has typically occurred wherein the driver has a prior DUI conviction, and there is proof of the driver‘s attendance at the alcohol education programs that is a mandatory requirement of a DUI sentence. There is a new law that is expected to go into effect in 2008 that eliminates this requirement that there be proof that the driver previously attended an alcohol education program ï¿½ we will have to wait and see the law as actually enacted.
I personally disagree with this concept that these situations are Murder, despite the dangers that DUI‘s pose. Persons who drive while under the influence bear no ill will and intend no harm to other people. By trying to drive, they are simply making a mistake in judgment. This occurs after their judgment has been clouded by the very substance of which they are under the influence. They are often suffering from the effects of alcoholism, which we know today is often the result of genetics and/or factors in their environment. They need help. They don‘t need to be put in prison for the rest of their lives. Extending Murder to cover these situations is an absurd emotional and political maneuver.
DRIVING ON A SUSPENDED LICENSE (OR DRIVING PRIVILEGE)
Driving on a suspended license and driving on a revoked license are basically the same offense. For some reason, DMV has taken action against a person‘s ability to legally drive in the state of California. The reasons can include a DUI arrest, a DUI conviction, failure to pay tickets or satisfy a legal judgment, failure to pay child support, and accruing too many points against the driving record due to traffic violations.
A person can be guilty of driving on a suspended license even if that person never had a license in the first place. Driving without a license is a separate offense. Even if a person never had a license, it is considered driving on a suspended license if the person‘s privilege to drive was suspended for some reason in addition to simply not having a valid license.
In order for a person to be guilty of driving on a suspended license, there has to be proof that the driver had knowledge of the suspension. This is typically done in either of two ways: 1. There is proof that the driver was personally given notice by a court or DMV that their driving privilege was suspended, or 2. There is proof that DMV served written notice of the suspension on the driver, typically by certified mail to the driver‘s address of record, and that the mail was not returned unclaimed.
DMV often fails to notify drivers of suspensions, and often fails to maintain proof of such notice. We always check the records in these cases to determine whether proper notice is present.
Driving on a suspended or revoked license is often treated as a serious offense in most jurisdictions, albeit still a misdemeanor. They can often carry jail time, as most judges and prosecutors view these offenses as a deliberate flouting of the law and rules of society. Some suspended license offenses carry mandatory minimum jail sentences. This depends on the specific suspended license offense committed, which is determined by the reason for which the license was suspended (see below). The penalties are also increased by the presence of prior suspended license convictions, and often carry mandatory minimum jail sentences in such cases.
VC 14601(a) ï¿½ NEGLIGENT OPERATOR
This offense may be committed if DMV suspends a driver‘s license after finding the driver to be a negligent operator. This typically results from the driver being found at fault for an injury accident. The driver may contest the suspension at a negligent operator hearing, and we routinely represent drivers at such hearings. The law provides a mandatory minimum jail sentence for this offense.
VC 14601.1(a) ï¿½ SUSPENSION DUE TO TRAFFIC VIOLATIONS, UNPAID TICKETS, ETC.
This is the basic catch-all offense for driving on a suspended privilege. Prosecutors and courts in most jurisdictions still treat this offense very seriously. They may seek jail time, particularly if the driver has prior similar offenses on their record.
VC 14601.2(a) ï¿½ SUSPENSION DUE TO DUI CONVICTION
This offense may be committed if the driver‘s license was suspended because of a DUI conviction, even if the sentence for that conviction has already been completed. This offense is treated very seriously by courts and prosecutors, and the law provides a mandatory minimum jail sentence of 10 days. The sentence can, and often is, enhanced beyond the minimum due to additional factors. These factors can include the recency of the DUI conviction, whether the driver is still on probation for the DUI offense, whether the driver has a record of similar offenses, and the driver‘s overall record. If the driver is still on probation for the DUI, this offense is also a violation of probation in that case, potentially leading to an additional and consecutive sentence on the DUI probation case.
VC 14601.5(a) ï¿½ SUSPENSION DUE TO DUI ARREST
This offense is committed when a party drives in violation of the suspension imposed due to a DUI arrest, but prior to, or without, there being a DUI conviction in court. The officer serves the notice of suspension on the driver at the time of the arrest, which goes into effect 30 calendar days thereafter, unless the driver requests a DMV hearing within 10 calendar days of the arrest. If so, then this is the suspension that follows and adverse ruling at the Administrative Per Se hearing. If the driver is convicted in court, then the offense is a violation of VC 14601.2(a). (See above for DUI offenses, DMV APS hearings in DUI cases, and VC 14601.2(a)).
DRIVING WITHOUT A LICENSE ï¿½ VC 12500(a)
Driving without a valid license is a misdemeanor offense, potentially carrying a jail sentence and a fine. The sentence is often affected by the driver‘s prior record, if any, particularly the commission of any similar offenses.