Monder Law Group - News
Driving While Intoxicated
- Offenses Involving Alcohol or Drugs (California Vehicle Code Sections 23152 – 23229.1)
California DUI Law Highlights: BAC Levels and Implied Consent (Table 1)
“Per Se” BAC Level
“Zero Tolerance” BAC Level
Enhanced Penalty BAC Level
“Implied Consent” Law
“Per Se” Blood Alcohol Concentration (BAC) Level
As of August 2005, all states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) at or above .08 percent. This means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.
“Zero Tolerance” Blood Alcohol Concentration (BAC) Level
All states carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02 percent.
“Enhanced Penalty” Blood Alcohol Concentration (BAC) Level
Many states impose harsher penalties on DUI offenders with a particularly high BAC at the time of the offense, typically .15 to .20 percent. DUI offenders with a BAC at or above their state’s enhanced penalty standards will likely face additional jail time, harsher fines, and more severe driver’s license sanctions.
“Implied Consent” Laws
“Implied consent” laws require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year.
California DUI Law Highlights: Selected Penalties (Table 2)
Administrative License Suspension/Revocation (1st/2nd/3rd Offense)
Mandatory Alcohol Education and Treatment/Assessment
Vehicle Confiscation Possible?
Ignition Interlock Device Possible?
4m/ 2y/ 3y
Both (Education if under 21)
Note: Persons arrested for DUI will be subject to additional criminal law penalties not addressed here — including jail time, fines, and community service. Such criminal penalties are typically more discretionary than those identified in this chart, and are therefore more difficult to accurately predict. Generally speaking, first-time DUI offenders can expect to incur a fine, and face the possibility of jail time. Repeat DUI offenders will incur harsher fines, and will almost certainly be sentenced to a number of days in jail. Penalties will be harsher still if the DUI offender was involved in an accident in which someone else was injured or killed.
Administrative License Suspension/Revocation
The Administrative License Suspension/Revocation penalties indicated here refer to minimum mandatory penalties imposed on drivers whose BAC is above the state limit for intoxication, or drivers who refuse to submit to BAC testing. Administrative suspension or revocation of a driver’s license is usually carried out by a state agency (such as a Department of Motor Vehicles), distinct from any criminal court penalties. Most states impose harsher penalties for second or third DUI offenses, typically defined as those that occur within five years of a prior DUI offense.
Note: the penalties identified here do not include variations for DUI offenders operating commercial vehicles, or drivers who have violated “zero tolerance” and “enhanced penalty” DUI laws (see Table 1). Most states recognize different sanctions for these types of DUI offenses.
Mandatory Alcohol Education and Assessment/Treatment
Alcohol education and treatment/assessment penalties for DUI offenders can include mandatory attendance at DUI prevention programs, and assessment of potential alcohol dependency problems. Such programs are often made “conditions” of a suspended sentence or probation, meaning that a DUI offender can avoid jail time and payment of hefty fines if he or she completes participation in the program. This chart indicates each state’s utilization of alcohol education and treatment/assessment programs.
Vehicle confiscation penalties allow a motor vehicle department or law enforcement agency to seize a DUI offender’s vehicle, either permanently or for a set period of time. Such penalties typically apply only to repeat DUI offenders, and often the return of the vehicle requires payment of fines and significant administrative costs. This chart indicates each state’s utilization of vehicle confiscation as a penalty for DUI.
A vehicle ignition interlock breath-testing device measures a vehicle operator’s BAC, and will prevent operation of the vehicle if more than a minimal amount of alcohol is detected (i.e. BAC level of .02). DUI offenders will usually be required to pay the costs of installation, rental, and maintenance of an ignition interlock device. This chart indicates each state’s utilization of ignition interlock devices as a penalty for DUI.
California Vehicle Code Division 11 – Rules of the Road
Chapter 12. Public Offenses
Article 2. Offenses Involving Alcohol or Drugs
DUI – The Basics
In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The specific offense may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI). Whatever the specific title, DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:
- The driver’s ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
- The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC).
Field Sobriety and Chemical Tests
When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a “field sobriety” test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.
Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person’s physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer’s use of the “horizontal gaze nystagmus” (eye and penlight) test.
Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver’s blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.
Refusing a Chemical Test: “Implied Consent” Laws
All states have “implied consent” laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after DUI test failure. In most states a driver’s refusal to submit to a chemical test may be used to enhance the penalties imposed if he or she is eventually convicted for DUI.
“Per Se” and “Zero Tolerance” DUI Laws
All states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) above a set limit. In states like California and New York, this means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.
All states also carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02.
Keep in mind that a driver may still be arrested and convicted for DUI without proof of “per se” intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of DUI if an arresting law enforcement officer testifies that he observed the driver’s vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.
DUI Convictions: Criminal Penalties
A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each offense thereafter. Severity of criminal penalties will vary according to the circumstances of the offense, including:
- Whether the driver has a history of DUI violations;
- Whether the driver was operating a commercial vehicle at the time of the DUI;
- Whether the DUI violation occurred while there was a child in the vehicle;
- Whether the DUI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
- Whether the DUI violation involved a car accident in which property damage occurred;
- Whether the DUI violation involved a car accident in which another person was injured or killed; and
- Whether the driver was under the legal drinking age at the time of the DUI violation.
DUI Arrest and Conviction: Driving Privilege Penalties
In addition to potential criminal penalties, a DUI arrest or conviction will have an immediate negative impact on driving privileges.
Most state laws allow a motor vehicle department to immediately suspend the driver’s license of any person operating a vehicle with a BAC above the state limit for intoxication, or any driver who refuses to submit to BAC testing. The driver’s vehicle may also be confiscated or impounded, and the DUI offender will likely incur significant administrative costs. This loss of driving privileges can normally occur even before a DUI conviction. Most states allow a DUI arrestee to obtain a temporary license and request an administrative hearing at which he or she may argue against license suspension, or for restoration of limited driving privileges.
As with criminal penalties, the impact of a DUI arrest or conviction on driving privileges will vary according to the driver’s history of DUI violations and the severity of the offense. An increasingly popular DUI penalty, especially for repeat offenders, is mandatory installation of an “ignition interlock” device on the offender’s vehicle. This breath-testing device measures the vehicle operator’s BAC, and will prevent operation of the vehicle if more than a minimum amount of alcohol is detected, such as BAC level of .02. Where this punishment is utilized, most states require the DUI offender to pay costs of installation, rental, and maintenance of the ignition interlock device. Rental fees alone can amount to as much as three dollars per day, so a DUI offender’s expenses can add up quickly when an ignition interlock device is required.
Plea Bargains in DUI Cases
Due to recent law enforcement trends that focus on preventing DUI by penalizing offenders harshly, most district attorney offices refuse to negotiate plea bargains in DUI cases. This is especially true if evidence of the violation is strong. In fact, many states have enacted laws that prohibit government attorneys from entering into plea bargains with DUI defendants. However, in rare cases a DUI charge may be reduced to a lesser offense like reckless driving or an “open beverage” violation.
Drunk Driving: Elements of the Offense
Most state laws define crimes of drunk driving as follows: driving a motor vehicle on a road or highway while under the influence of alcohol. Newer statutes also provide for a per se offense, which a person commits when driving a motor vehicle on a road or highway with a blood-alcohol concentration of .08 percent.
Several state statutes require that a defendant was driving a vehicle in order to be convicted of a drunk driving offense. Other states use the terms operating a vehicle or being in physical control of the vehicle. These terms are not normally synonymous, and so it is important to determine how an individual state defines the term in the statute.
A number of issues may arise that relate to the “driving” element of a drunk driving offense. For instance, a person may be in a car but has not turned on the ignition. The question in some cases is whether the person was driving or operating a vehicle or whether the person was using the vehicle as a temporary shelter. Courts in various jurisdictions have identified several factors that may be used to determine whether someone has been driving a vehicle. Some of these include the following:
Field evidence may fall into one of five categories, including the following:
- Testimony regarding the defendant’s unusual driving
- Testimony regarding the defendant’s conduct or physical appearance
- Incriminating statements made by the defendant
- Testimony regarding the defendant’s performance during a field sobriety test
- Tapes, film, and/or photographs taken at the scene where the defendant was driving and/or arrested
Police officers will often look at the defendant’s physical appearance and symptoms of drunk driving in order to determine whether the defendant is intoxicated. The following are some of the more common symptoms of intoxication:
- The defendant’s clothes are disheveled
- The defendant has not shaved or combed his or her hair
- The defendant’s eyes appear to be red, glassy, or bloodshot
- The defendant’s face appears to be flushed
- The defendant’s breath smells like alcohol
- The defendant’s speech is thick and slurred
The defendant’s BAC level will be determined through one of three methods. The most common of these methods involves an analysis of the defendant’s breath. Other tests analyze the blood or urine of the defendant. Refinements in the methods by which a defendant’s BAC is determined have strengthened the ability of prosecutors to prove this BAC. However, these tests are not above reproach, and skilled defense attorneys can often successfully attack the methods by which the defendant’s BAC was analyzed.
Drunk Driving Sentencing
A person who is convicted of drunk driving most likely faces some or all of the following in terms of punishment: a fine; time in jail; suspension, restriction, or revocation of the defendant’s driver’s license; probation; enrollment and completion of a course in drunk driving or alcoholism. In addition to these, states have also developed other penalties or requirements that drunk drivers must fulfill.
One requirement that has become more common throughout the nation involves the use of an ignition-interlock device. Such a device captures a driver’s breath and analyzes the BAC of the driver. The device only allows the driver to start the vehicle when the breath analyzer reads below a certain level, such as .02 percent.
Another form of punishment is the impoundment of a drunk driver’s vehicle for a certain period of time. A more serious form of this punishment is the forfeiture of a vehicle, meaning that a court can order the sale of a person’s car after the person has had multiple convictions for drunk driving.
States have also modified their statutes to provide for enhanced sentences under some circumstances. These sentence enhancements may apply when one of the following events occur:
(1) The defendant’s BAC is very high, such as above .20 percent.
(2) The defendant refuses to submit to chemical testing.
(3) The defendant greatly exceeds the speed limit or drives recklessly while drunk.
(4) A child under the age of 14 is in the car when the defendant is driving drunk.
(5) Drunk driving is accompanied with an accident or injury to another person.
Field Sobriety Tests and Sobriety Checkpoints
Researchers have developed a variety of tests that are designed to determine whether a person is likely to be intoxicated. A police officer performs these tests on suspects after the officer has stopped a person on suspicion of drunk driving. These tests allow an officer to observe a suspect’s balance, physical ability, attention level, or other factors that the officer may use to determine whether the suspect is impaired. Officers often record a suspect’s performance of these tests, and this practice generally has been upheld on appeal.
In several states, authorities have set up checkpoints where officers can question drivers in an effort to catch drunk drivers. These checkpoints are often set up during holidays when people are more likely to drink, such as New Year’s Eve. Courts in the majority of states have upheld these checkpoints against challenges that these checkpoints are unconstitutional.
Felony Drunk Driving
Most states have expanded their drunk driving statutes to provide for harsher punishment when drunk driving has resulted in injury to another. Where a person causes injury to another while driving drunk, the person may be charged with a felony, punishable by a term in state prison. In an even more severe expansion of criminal laws, some states now incorporate their murder or manslaughter statutes with their DUI laws where drunk driving results in the death of another. Moreover, in some states, a person may be charged with assault with a deadly weapon for driving a car while intoxicated. In such an instance, the deadly weapon is the car.
All states treat first DUI offenses as misdemeanors. However, in the majority of states, a person’s third offense (or third “strike”) is treated as a felony.
Defenses to Drunk Driving
A person charged with drunk driving usually attacks the arresting officer’s observations or opinions as part of his or her defense strategy. A defendant may also attack witnesses that tested the defendant’s BAC, or the defendant may call on someone who can testify that the defendant was sober.
In addition to these strategies, a defendant could rely on one of several defenses. These defenses include the following:
(1) Necessity, which applies when a person must drive to prevent a greater evil;
(2) Duress, which applies when the defendant drives in order to avoid serious injury or death;
(3) Entrapment, which applies when an officer requests that a person drive drunk;
(4) Mistake of fact, which applies when a person has an honest belief that his or her BAC is below the legal limit;
(5) Involuntary intoxication, which applies when the person has ingested alcohol without his or her knowledge
Individual states take different positions with respect to the availability of these defenses. In general, however, these defenses rely on specific sets of facts and are each very difficult to prove successfully.
If you have any questions about driving while intoxicated contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego DUI Defense