Below are some FAQs regarding DUI and Drunk Driving:
Is there any way to avoid a DUI?
It sounds simple, but don’t drink and drive. Take a taxi, designate a driver, walk, call a friend, but no matter what, do not drink and drive. However, many DUI cases are defensible and can be reduced to a Wet-Reckless charge or dismissed.
Can I still be in trouble even if my BAC is below the legal limit?
Possibly because it is also unlawful to drive with your normal faculties impaired (by alcohol and/or drugs). Normal faculties are those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, etc.
Do I have to submit to a breath, blood, or urine test?
In California there are enhanced penalties if you refuse to submit to a chemical test after you have been arrested for DUI. The DMV will suspend your driver’s license for a year (rather than four months) on a first time offense if the DMV refusal hearing is lost, and two years for a second refusal. Even if the refusal enhancement is dropped in the criminal case, it can still be an issue at the DMV proceeding. Moreover, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of your consciousness of guilt. By accepting the privilege extended by all 50 states to drive, the courts have determined that you have given your consent to submit to an approved chemical test for the purpose of determining your BAC (or to a blood test for the purpose of detecting the presence of drugs) after you have been arrested for a DUI. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI you will consent to chemical testing after an arrest.
By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, or blood for the presence of drugs. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI, you will agree to take a blood or a breath test after you have been arrested for DUI.
How can there be two separate proceedings (court and DMV)?
Once you have been arrested, two separate proceedings are initiated, and neither one bears much relation to the other one. Even if your criminal case is reduced or dismissed, you generally still have to battle the DMV in order to keep your license. Similarly a win at the DMV hearing has no bearing on the outcome of your criminal case.
What about my license?
If you have a California license the officer will have seized it and he should have issued you a pink temporary license. Although the temporary license is valid for 30 days from your arrest, you only have 10 days in which to request a DMV hearing (an Administrative Per Se hearing, or an APS hearing) and a stay on that automatic suspension of your license. Otherwise, your license will automatically be suspended 30 days after you were arrested. They should issue you a pink temporary license.
If you have an out-of-state license, the officer should not seize it, although they often do. Generally you should still request a DMV hearing and a stay on the suspension of your privilege to operate a motor vehicle in California, but please call us to discuss the specifics of your situation.
Can I fight the DMV suspension?
Yes, but we must request an APS hearing (Administrative Per Se hearing) and a stay on the suspension of your license within 10 days of your arrest. Generally the APS hearing will be held within a couple of months of your arrest; as long as your license was valid when you were arrested, you will continue to have full driving privileges until the hearing is held and until then a decision been reissued as long as we request a stay. If the hearing is won, the DMV will not take any action against your license; if the hearing is lost, the DMV will take the same action they would have taken against your license initially, but at a later date. In other words, the penalties will not increase because you exercised your right to challenge the DMV suspension.
If the DMV hearing is lost, how long will I lose my license?
If the DMV hearing is lost on a first-time DUI, you will have a couple of restricted license options, unless the DMV can prove a Refusal. If proven, a refusal will result in a one year loss of license, but many of these cases are winnable. For a “straight” DUI, you can opt for an Interlock (“IID”) restricted license, which will allow you to drive anywhere, for any reason, after you have complied with certain requirements. If you don’t want to hassle with an IID, then you can opt to lose the license for 30 days, and then you can apply for a work-restricted license (after you have complied with some requirements) that will allow you to only drive to, from and during the course of employment, and to and from alcohol school. This particular restricted license will have to remain in effect for one full year. Second and subsequent DUIs will all require an Interlock device, and longer alcohol school (18 months). It is important to sync the court action with the DMV action, call us for help.