Introduction

DUI charges can range in seriousness from a first offense misdemeanor charge to serious felony charges depending on the circumstances of a person’s case.  A DUI conviction can result in driver license suspension, jail time, thousands of dollars in fines and fees, probation and a mandatory DUI program.

Don’t fight a DUI case with such serious consequences alone.  An experienced local Chico DUI lawyer is your best option, and we’re ready to fight for you.  DUI Lawyer Matthew Luzaich defends DUI charges at DMV Hearings and in county courts in Butte, Glenn, Sutter, Tehama, and Yuba.  We are available right now to discuss your driving under the influence case with you for free.  Call, email, or make an appointment to come in today.

The Statute(s)

Adults arrested for an alcohol DUI usually face two different charges:

Vehicle Code § 23152(a):  It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

Vehicle Code § 23152(b):  It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

The Elements

  1. Code § 23152(a)

To prove that the defendant is guilty of this crime, the People must prove that:

  • The defendant drove a vehicle;

AND

  • When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. CALCRIM 2110.

The People must prove that the person drove a motor vehicle.  That means there must be direct or circumstantial evidence of “volitional movement” of the vehicle.  Slight movement of the vehicle is enough to prove this element.

A person is under the influence if, as a result of drinking an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

A jury may be permitted to presume the defendant was under the influence if a chemical test was taken yielding a BAC of .08% or more.  Veh. Code § 23610.

  • Vehicle Code § 23152(b)

To prove that the defendant is guilty of this crime, the People must prove that:

  • The defendant drove a vehicle;

AND

  • When (he/she) drove, the defendant’s blood alcohol level was 0.08 percent or more by weight. CALCRIM 2111.

Veh. Code § 23152(b), unlike the (a) subdivision above, requires only that the People prove driving at a time when the person had a specific BAC of .08% or more.  There is no requirement that the People prove the defendant was under the influence.  Thus, a chemical test yielding a result of .08% or more may be the sole evidence used to prove the alleged BAC.

There is a rebuttable presumption that is treated as a “permissive inference” that the defendant was a .08% or more at the time of driving if a chemical test (blood or breath test) was taken within three hours of driving and it yielded a result of .08% or more.  In the criminal case this permissive inference is used to ease the burden of proving a defendant’s guilt for driving with a specific BAC.  Because defendants in criminal cases are presumed innocent, the court may not instruct the jury that they may presume the person was at or above a .08% within three hours of driving, it may instruct the jury that they may merely infer the requisite BAC.

However, in DMV hearings based on the same circumstances, the DMV Hearing Officer is allowed to presume the person had a .08% if a test was taken within three hours of driving and it yielded a .08%.  This is because DMV hearings are considered civil in nature, not criminal.  Because they are civil, the presumption of innocence is inapplicable.

Penalties

An experienced DUI lawyer will be able to get you the best outcome possible based on the facts of your case.  If you are convicted of a standard first offense misdemeanor DUI:

  1. The minimum county jail sentence is 48 hours and the maximum sentence is 6 months (though in many counties alternative sentencing is available).
    b. Informal probation for at least 3 years.
    c. 3 month DUI program that you must pay for. Longer if you had a high BAC.
    d. You must pay fines and fees totaling around $2,000.00.
    e. Your license will be suspended for at least 6 months if you are 21 years old or older, and 1 year if you are under 21 or if you refuse to submit to a chemical test.
    f. A first offense DUI will be used in any future prosecution for a subsequent DUI as a prior for 10 years to enhance subsequent DUI punishment.
    g. If your BAC was .15% or more when you took a chemical test, the District Attorney will add an enhancement charge that will significantly increase the penalties.

(Note: Different counties have different penalties, this is general information not meant to be relied upon as a substitute for legal advice from a DUI lawyer)

Defenses

No proof beyond a reasonable doubt on all of the elements of the crime

As with all charges, the first defense to consider is lack of proof beyond a reasonable doubt on any of the elements of the crime.  For DUI charges, a DUI lawyer will look into lack of proof on the elements of driving, being under the influence “at the time of driving,” and/ or having a BAC under .08%.  There are numerous ways for a skilled DUI lawyer to attack lack of proof of the elements.

One common way to attack the “drive” element is demonstrating that there is no direct evidence of driving.  The officer may not have seen the person driving, the person may not have even been in the vehicle at the time the officer arrived on scene.  A skilled DUI lawyer may also challenge proof of the drive element by pointing out the lack of circumstantial evidence of driving.  For example, where a vehicle is lawfully parked in a place other than the side of a road, like a person’s driveway.  Another way officers establish recent driving is by feeling the hood of the vehicle to determine the temperature.  Lack of a warm hood indicates there may not have been recent driving.

Being under the influence at the time of driving can also be attacked by proof of satisfactory performance on field sobriety tests and proof of “good” driving.  For example, if the officer pulled the person over for a taillight violation, and there are no other Vehicle Code violations, one may infer that the person’s driving indicates sobriety.

The prosecution in the vast majority of alcohol DUI cases charges both Vehicle Code § 23152(a) (driving under the influence), and Vehicle Code § 23152(b) (driving with a BAC of .08% or +).  If the prosecution is required to prove the person had a BAC of .08% or more, a host of more technical DUI defenses may be available.  A DUI lawyer will want to gather evidence regarding the scientific instruments used to test your blood and/or breath to make sure they were maintained and properly calibrated.  The machines must have also been used properly otherwise the results may be inaccurate.  For example, Title 17, of California Code of Regulations specifies that before a breath test may be taken, the person administering the test must have continuously observed the subject for a minimum of 15 minutes to ensure the person’s result is not contaminated with “mouth alcohol.”

Another commonly employed argument DUI lawyers advance is the so called “rising BAC” argument.  The foundation of this argument is that alcohol takes time to be absorbed into the blood stream.  The time needed for full absorption ranges from person to person, but it may be argued that if the person drank shortly before driving, his or her BAC would have been lower at the earlier time of driving than what subsequent tests show.  It is the BAC at the time of driving that is actionable, not what it was before or after driving.  Test results yielding an increasing BAC over time can be used to prove a lower BAC at the important time of driving.

Because alcohol concentration in one’s blood can be impacted by so many different factors, it is impractical to list all of the different issues that may be present.  There are entire books dedicated to possible sources of error in blood alcohol concentration readings.  Things like specific medications the person takes, recent surgeries, diet, physiological differences, medical conditions, and even circadian rhythm can impact BAC.  Gathering evidence and presenting the information regarding these many phenomenon can lead to a better deal for a client, dismissal of the case, or a not guilty verdict.  Chico DUI Lawyer Matthew S. Luzaich has utilized these arguments in obtaining positive results for his clients in Northern California courts.

Fourth Amendment violations

A DUI arrest and the filing of DUI charges that resulted from an unlawful stop or arrest can be fought on the basis of a violation of the Fourth Amendment to the U.S. Constitution.  The Fourth Amendment provides people protection from the government from unreasonable searches and seizures.  Whenever a police officer interferes with a person’s freedom of movement, such that the person would not feel free to terminate the encounter and leave, the government must have a justification for that interference.

In general, in order for an officer to stop a person driving a motor vehicle, the officer must have what’s called “reasonable suspicion.”  Reasonable suspicion is a technical legal phrase that put simply means that a reasonable person would believe the suspect was about to commit a crime, in the process of committing a crime, or had already committed a crime.  The officer must base this suspicion on specific articulable facts known to him or her at the time of the stop.  For example, where an officer sees a person driving 70 mph in a 65 mph zone, the officer has reasonable suspicion to believe the person was violating the speeding law.  S/he may stop the person and investigate.  However, where the officer cannot articulate the reason why s/he stopped a suspect, or the reason is not legitimate, the stop is unlawful and any evidence derived from said stop must be excluded.

In addition, in order to arrest an individual, the officer must have probable cause.  Failure to establish probable cause to arrest also results in an unlawful arrest and exclusion of evidence.  This is an important legal requirement a DUI lawyer will explore.  If for example there is no evidence of bad driving, good performance on field sobriety tests, no preliminary alcohol screening test result, and no or few objective signs or symptoms of alcohol use, an arrest may be unlawful for failure to establish probable cause to believe the person was driving under the influence of alcohol or at or above a .08% BAC.

Miscellaneous Information

The Evidence

Law enforcement gathers evidence in DUI cases in the form of Field Sobriety Tests (FSTs), chemical tests including blood, breath, or urine tests, a Preliminary Alcohol Screening test (PAS) result, “objective” observations of intoxication, as well as other evidence.  If you were subject to a DUI investigation chances are you were put through all or at least some of this battery of tests.

The Criminal Case

If you were arrested for a DUI locally, you were probably taken to a county jail to be booked (Butte County Jail, Glenn County Jail, Sutter County Jail, Tehama County Jail, or Yuba County Jail).  You were likely released several hours later by the sheriff’s department with a promise to appear in court for arraignment on your criminal charge(s).  At that arraignment, if you appear on your own behalf, the court will tell you what you are being charged with and ask whether you want a public defender (if you are eligible).  The court will also ask how you want to plead.  In general you have three options: Not guilty, guilty, or no contest.  California provides basic criminal court information on its court website: http://www.courts.ca.gov/1069.htm.  It is always advisable to speak with a local DUI lawyer regarding your criminal charges before deciding to represent yourself.  530attorneys.com provides free legal consultations to assist prospective clients in deciding how to proceed with their case.  The decision of whether you want to hire a DUI lawyer should be made after speaking with one.  Clients often don’t realize the fine legal distinctions that separate for example a legal stop or arrest from unlawful police conduct that could result in a dismissal the case.

Plea Bargaining

Approximately 95% of all criminal cases are resolved without a jury trial.  In DUI cases there are often issues with the evidence that make the outcome if taken to trial very uncertain.  For this reason, plea bargaining is used as a tool to settle cases.  The benefit to a successful plea bargain is often a reduction in charges or the potential punishment.  The downfall to accepting a plea bargain is that you waive your Constitutional right to require the state to prove your guilt beyond a reasonable doubt.  However, where there is a significant chance that you will be found guilty at trial, accepting a lesser charge during the pretrial phase may be in your best interest.  A lesser charge that is frequently bargained for in DUI cases is what is known as a “wet reckless.”  A wet reckless is a charge that a person cannot initially be arrested for, but rather is the result of plea bargaining in a DUI case.  The statutes that set forth the charge of wet reckless are VC §§ 23103/23103.5.  This reduced charge carries significantly less harsh punishment than a DUI.

What You Should Do

DUI cases can be some of the most complex criminal cases as far as the body of law and science applicable.  Fighting a case alone is inadvisable.  Your first step to fighting your case, or even learning the strengths and weaknesses of your case is to call or make an appointment with a local DUI defense lawyer that practices in the county you were arrested.  There may be defenses available even where your case seems hopeless.  DUI Lawyer Matthew S. Luzaich provides free legal consultations to prospective clients.  With no obligation, and no fee, we will discuss the facts of your case, possible defenses and outcomes, and the applicable law.

Hiring a DUI lawyer lawyer who knows the law, is honest with you, and that you are comfortable with, and confident in, is of paramount importance.  This is why we provide free consultations.  Call today to speak with local Chico DUI lawyer Matthew S. Luzaich about your case.

Share This