If you have been arrested for drunk driving in San Diego you have only 10 days to keep your license from being suspended. If you have a pink sheet as a temporary license the first thing you need to do is contact an experienced DUI attorney to stay any suspension on your driving privileges with the DMV. You should not wait until you have to appear in court because there are two parts to every DUI case. The first starts with fighting the DMV and getting the discovery in your case and sending subpoenas to the arresting officers that conducted the investigation in your DUI case. You need to be sure to hire an attorney with experience fighting the DMV and winning. The second part is fighting the criminal case and winning. Every drunk driving case is different from one another and most of the time depends on any bad driving involved, objective signs of intoxication, and BAC levels at the time of driving.
What Police Officer’s Look for When Pulling Someone Over for Drunk Driving
Often times an officer will try and say bad driving is the result of the DUI investigation. Therefore, the officer has to try to find a reason to pull you over because it is illegal for them to just suspect drunk driving and that is the reason for the stop. Most of the times the officer will find a traffic violation for the stop including but not limited to speeding, swerving, not signaling while changing lanes, not coming to a complete stop at stop signs, a broken tail light. As you can tell these actions have nothing to do with a DUI. They will say it is reasonable suspicion to conduct a DUI investigation when coupled with the odor of alcohol and blood shot watery eyes. Do not take what the officer says about your DUI stop as the truth because we see these police reports copied and pasted from other reports all the time.
What Will You Be Charged With If the Officer Suspects You of Drunk Driving?
In California there are two Vehicle Code sections that come up majority of the time in drunk driving cases. These two code sections are VC 23152(a) and 23152(b). Vehicle Code section 23152(a) makes it “unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug to drive a vehicle.” Vehicle Code section 23152(b) makes it “unlawful for any person who has 0.08 percent or more, by weight of alcohol in his or her blood to drive a vehicle.”
There is a difference between both of these code sections. A person in San Diego can violate section 23152(a) by just having consumed any amount of alcohol, drug, or a combination of both alcohol and drugs. Under this section, the amount is not important. What is important is whether the person who consumed the alcohol, drugs, or a combination has been impaired by it so that it affects their ability to drive. This is more of a subjective charge based on whether the prosecution can prove beyond a reasonable doubt that the way you acted make it appear or seem like you were under the influence. Think of this charge as strictly behavioral.
The other section, VC 23152(b) provides more objective criteria an officer must use when arresting someone for driving drunk. This section requires that the driver have a 0.08% or greater by weight of alcohol in his or her blood. After pulling someone over that a police officer suspects to have been driving drunk, the officer will begin the investigation. After conducting a series of field sobriety tests, the officer will ask you to blow into a preliminary alcohol screening device to determine what your BAC is in the field and then have you submit to a chemical either blood or breathe back at the station. This is to determine whether or not there could be a rising blood defense or based on the absorption rate of alcohol your BAC could be below a .08 at the time of driving. It is up to your attorney to address these arguments in open court as part of your defense. Often times there are issues with the maintenance reports and calibration sheets of the machines used to test your blood alcohol levels. Also, you are not required to give an initial breathe sample when you are pulled over but under the implied consent laws you are required to subject yourself to either one of the chemical tests back at the station.
What Kind of Field Sobriety Tests Will the Officer Use to Determine If You Are Under the Influence of Alcohol?
Filed Sobriety Tests are helpful for officers to gather enough subjective information to help the prosecutor meet the burden of proof as to the first charge VC 23152(a). The officer will attempt to make you perform a serious of eyes exams and balancing tests to justify your behavioral responses is consistent with being under the influence. The National Highway Traffic Safety Administration (NHTSA) is the organization that regulated how these exams should be administered under Title 17. If they are not administered according to the National Standard that is required, then these tests would not be valid and could not be used against you. It is important to contact an experienced DUI attorney that is certified in NHTSA standards.
What are the NHTSA Standardized Field Sobriety Tests?
There are three tests called the Standardized Field Sobriety Tests (SFSTs) that an officer would likely use.
The three tests are the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test;
An involuntary jerking of the eyes. Alcohol and certain other drugs cause horizontal gaze nystagmus. Typically, an officer will hold an object, such as a pen in front of the person and move the pen side to side and up and down to observe any nystagmus. The officer is looking to see if someone’s eyes jerk as they move side to side, up and down, and while looking straight ahead at the object.
Walk and Turn Test:
Requires a person to place to place their feet, one in front of the other on a real or imaginary line with their arms to their sides. The person then must take nine heel-to-toe-steps, turn, and take nine heel-to-toe steps back. When the person has taken the nine steps, he or she must turn, keeping their front foot on the line and by taking a series of small steps with the other foot. The police officer in San Diego is looking to see if the person can keep balance, steps off the line, or does other conduct that may indicate that he or she is drunk.
One-leg Stand Test:
Requires a person to raise one leg with the foot approximately six inches off the ground, keeping the raised foot parallel to the ground. The police officer will then require the person to count out loud by one thousands until told to stop. An officer will be looking to see if the person sways while balancing, puts their foot down, and any other actions that would indicate to the officer that the person is drunk.
Preliminary Alcohol Screening Device:
In addition to these standardized field sobriety test, a police officer may also ask a driver to blow into a Preliminary Alcohol Screening device (PAS). Under California Vehicle Code section 23612(a)(1)(A), a driver of a motor vehicle is deemed to have given his or her consent to the testing of his or her breath. However, under Vehicle Code section 23612(i), an officer is supposed to inform a person of their right to refuse to take the PAS test.
After someone blows into a PAS device, the device gives a reading that alerts an officer as to how much alcohol there is in the body of the person being tested. This device is meant to help a police officer determine someone’s blood alcohol concentration. However, the PAS test results are not conclusive results of someone’s blood alcohol concentration. It only shows a presumption of the detection of alcohol. Therefore, a PAS device’s reading can be challenged.
The testing of someone’s blood for determining blood alcohol concentration is called the chemical test. The chemical test is the real determination of someone’s blood alcohol concentration. Just like the PAS test, under Vehicle Code section 23612(a)(1)(A), a driver of a motor vehicle is deemed to have given his or her consent to the testing of his or her blood.
Penalties, Punishment, and Sentencing
Penalties for a Vehicle Code section 23152(b) conviction vary depending on
- Whether the person is facing his/her first or subsequent DUI conviction,
- whether the person is being charged with misdemeanor or felony DUI,
- the facts of the specific case, and
- The defendant's criminal history.
Misdemeanor Drunk Driving
Most first, second, and third driving under the influence cases are prosecuted as misdemeanors.
Misdemeanor penalties include but are not limited to:
• up to one year in the county jail
• informal DUI probation for three to five years,
• a minimum base fine of $390.
There are certain aggravating facts and circumstances involved in a case that increase someone’s punishment.
The following are some but not all of the possible aggravating factors:
• driving with a BAC of 0.15% or more
• causing an accident
• driving under the influence with a child in the car
Felony Drunk Driving
Drunk driving charges are typically felonies when it is a 1) DUI causing injury, or 2) the defendant has suffered his/her fourth or subsequent conviction in ten-year period.
Penalties for felony DUIs include but are not limited to:
• formal probation
• up to three years in California state prison
• a four-year driver’s license revocation