Frequently Asked Questions
1. After a DUI arrest, what are the first steps I should take?
Immediately following an arrest for driving under the influence you should contact a DUI attorney to discuss the circumstances surrounding your arrest. Prompt evaluation by a qualified attorney is vital due to the fact that pertinent details regarding the investigation and arrest are best remembered when the events are still fresh in your mind. Furthermore, quick action is required to protect your driving privileges. You only have ten days from the date of arrest to request an Administrative Per Se (APS) hearing through the local Driver Safety Office. If you contact the DUI Professor, the legal team will request this hearing on your behalf in addition to the arrest documents and blood alcohol results. A stay on the license suspension will also be requested, so that you will retain full driving privileges until a decision is rendered on the hearing.
2. Will my driver’s license be suspended following a DUI arrest?
If you have been arrested for driving under the influence, the arresting officer most likely confiscated your physical driver’s license. You should have been given a pink piece of paper which is called the Administrative Per Se Suspension/Revocation Order & Temporary Driver’s License. This pink piece of paper serves as your temporary driver’s license for the next 30 days. Should you take no further action, your license will automatically become suspended 30 days after arrest. In order to preserve your right to fight the license suspension, an Administrative Per Se (APS) hearing must be requested through the local Driver Safety Office within 10 days from the date of arrest. A qualified DUI defense attorney can request this hearing on your behalf, in addition to discovery and a stay on your license. A stay on the license will provide you with full driving privileges until a decision has been rendered on the hearing. At the APS hearing you will be afforded an opportunity to object to the Department’s exhibits, present rebuttal evidence, and call witnesses to testify. At the conclusion of hearing, the Hearing Officer, whom presides over the hearing, will take all of the evidence under submission and render a decision either ending the stay on the suspension or setting the suspension aside. If this is your first DMV action, the suspension period will be four months. If you have had a prior DMV action within the last ten years, then the suspension period will be for a one year period. On a first offense, you will be eligible to apply for a restricted license to drive to and from work, during the course of work, and to and from and alcohol program. In order to receive a restricted license, you will need to enroll in a first offender (AB-541) alcohol program, provide an SR-22 (proof of financial responsibility form), and pay a reissue fee to the DMV. If this is a second action, you are not eligible for a restricted license.
3. What happens if the officer didn’t read me my rights?
Can you get your case dismissed because the arresting officer failed to read you your rights? You have a right to be administered your Miranda Warnings under the 5th Amendment of the Constitution, anytime there is custodial interrogation. The reason that Miranda Warnings are required during custodial interrogation is due to the inherently coercive nature of the interrogation. Miranda Warnings serve as a reminder to the arrestee that he/she has rights. In a typical DUI investigation, the questioning occurs prior to arrest; thus, any statements given by the suspect prior to arrest are considered voluntary statements and are not entitled to 5th Amendment protections. Therefore, if an officer did not question you regarding the circumstances of the offense after arrest, then the officer does not have to read you your Miranda Warnings. Only statements given during custodial interrogation require Miranda Warnings. If statements were made non-mirandized during custodial interrogation, then the statements could be precluded in Court against the defendant.
4. Are there additional penalties if I refused a chemical test?
The State of California has an implied consent law which requires all licensees to submit to a blood or breath test to determine his/her blood alcohol content pursuant to Vehicle Code Section 23612. If you refuse to submit to, or fail to complete, a chemical test, then you will be facing additional penalties for your DUI arrest. A licensee who refuses to submit to a chemical test could be subject to imprisonment, an extended alcohol program, and a one year license suspension on a first offense, if convicted under Vehicle Code Section 23152 or 23153. On a second offense within ten years, the penalties increase and the licensee will be facing a two year license revocation.
5. My case was not on calendar when I appeared in Court. What is the next step?
On a typical DUI arrest, the arresting officer will serve you with a citation which notifies you of a date to appear in Court. Next, the officer will forward his/her arresting documents to the prosecuting agency. Prior to your Court date, a charging deputy with the prosecutor’s office should review the arresting documents and file charges via complaint in Court; however, it is not uncommon for the charging deputy to have not filed the complaint prior to your first court appearance. If a complaint has not been filed prior to the first Court date, then the matter will not be on calendar. Under those circumstances, you should go to the Clerk’s Office or Prosecutor’s Office to receive a date stamp evidencing your appearance in Court. The prosecuting agency has one year from the date of offense to file the complaint. Once the complaint is filed, the prosecutor’s office will send you a letter notifying you of your new Court date. Your appearance at that Court date is mandatory. Most DUI cases are filed as misdemeanor offenses. On a misdemeanor offense, an attorney is able to appear in Court on behalf of his/her client without the client being present in Court.
6. Is it possible to challenge my blood alcohol results?
There are a number defenses which can be employed to challenge the results of a blood draw. Typically, blood tests are more reliable than breath tests; thus, blood tests are not challenged as often. At the laboratory, the technician usually utilizes a method called “headspace gas chromatography” when testing blood samples for blood alcohol content. The gas in the vial between the sample and the top of the vial is considered the headspace. A gas chromatograph (GC) is the machine that is used to determine the blood alcohol content. A sample of the gas from the headspace is placed into the GC. Scientists have determined that there is a generalized ratio between alcohol content in the headspace and alcohol content in the blood. That ratio is utilized to determine the blood alcohol content.
You have a right to have your blood sample retested. A qualified DUI defense attorney can file a motion in Court ordering a blood split. When the blood sample is retested, the technician employs direct injection. Direct injection is when the sample of blood is directly inserted into the chromatography. To challenge the results of your blood test, contact a skilled DUI defense attorney to subpoena the technician’s notes, and laboratory testing practices and methods.
A number of defenses can be employed to challenge breath test results. First, an experienced DUI attorney will subpoena the maintenance and calibration records of the breath testing device to determine if the machine was in proper working order at the time of the test. Second, to determine the blood alcohol content of a breath sample a method known as partition ratio is employed. A breath testing device cannot actually measure the alcohol content in the blood through a breath sample. Instead, it measures the alcohol content in the breath particles and converts it to a blood alcohol content. It is assumed that there is a 2100:1 ratio when you convert breath alcohol content to blood alcohol content. A 2100:1 ratio means that the concentration of alcohol in a person’s blood is 2100 times the amount of alcohol in a person’s breath. The ratio is a generalization and can vary between individuals. Third, every breath testing device has a margin of error which is plus or minus 0.01% which means a blood alcohol result of 0.08% can be as low as 0.07% or as high as 0.09%. Fourth, a tactic called the rising defense may be applicable depending on the breath results and drinking pattern. Under those circumstances, your DUI attorney may consult with a toxicologist to provide testimony in Court and/or at the Administrative Per Se hearing. There are a number of additional defense tactics to challenge breath testing results. Contact the DUI Professor today for a free consultation!
7. What Is A Wet Reckless?
The term “wet reckless” comes from Vehicle Code Section 23103 per 23103.5, reckless driving with alcohol involved. A wet reckless is a reduction to a DUI; however, it carries similar consequences. A wet reckless is priorable which means even though a plea is entered to a wet reckless, if the defendant is arrested for driving under the influence again within a ten year period, that subsequent offense will be filed as a second DUI. Furthermore, a conviction for a wet reckless will result in two points on your driving record just like a DUI conviction.
While a wet reckless is similar to a DUI conviction, there are a number of benefits to pleading to a wet reckless. A wet reckless is considered a reduction to a DUI. The offense does not carry a mandatory alcohol class, and upon conviction in Court, a license suspension is not imposed by the DMV. A wet reckless conviction does not subject the defendant to Vehicle Code Section 23154 (a): Driving Under the Influence of Alcohol While on Probation for A Prior DUI. This means that if a person on probation for a wet reckless is caught driving a vehicle with a measurable amount of alcohol, he/she cannot be charged with Vehicle Code Section 23154 and will not face the one year license suspension that is imposed by the DMV. It is important to note that while on probation for a wet reckless, a term of probation is not driving with a measurable amount of alcohol; thus, if the person is caught driving with a measurable amount of alcohol he/she will still be in violation of his/her probation, and if the blood alcohol level is high, he/she can be arrested for a subsequent DUI. Under certain circumstances, a skilled DUI defense attorney may be able to negotiate a wet reckless plea.
Contact the DUI Professor for a free case evaluation!