Friday, August 22, 2008

California DUI laws & consequences

California DUI lawyer Rick Mueller, at www.SanDiegoDrunkDrivingAttorney.net/penalties, sets forth the different California DUI / drunk driving consequences. Here's a California DUI attorneys' summary of California DUI statutes:

Prohibited Vehicular Activity:
To 'drive' a vehicle requires volitional movement of the vehicle.

Covered Vehicles or Devices:
A 'vehicle' is defined as a device by which a person or property may be moved on a highway, except a device moved exclusively by human power or used exclusively on stationary rails or tracks.

Covered Locations:
No distinction.

Under the Influence Offenses:
“under the influence of any alcoholic beverage or drug”

“under the combined influence of any alcoholic beverage or drug”

“any person who has 0.8% or more, by weight, of alcohol in his or her blood”

“any person who has 0.4% or more, by weight, of alcohol in his or her blood to drive a commercial vehicle”

“any person who is addicted to the use of any drug to drive a vehicle”

“while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

“while having 0.08% or more, by weight, of alcohol in his or her blood, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

“while having 0.04% or more, by weight, of alcohol in his or her blood, to drive a commercial vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

“under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

“under the age of 21 years and under the influence of, or affected by, an alcoholic beverage,”

Other Criminal Offenses Involving Under the Influence Offenses:
When a person is driving while under the influence and proximately causes the death of another person, he or she may be convicted of either:

(1) vehicular manslaughter, if the act was without gross negligence;

(2) gross vehicular manslaughter while intoxicated, if the act was with gross negligence; or

(3) murder, if the act was with malice or exhibited wantonness and a conscious disregard for life.

Degree of Impairment Required:
A person is under the influence of an alcoholic beverage, drugs, or a combination of the two if the substance ingested so affects the nervous system, the brain, or the muscles as to impair to an appreciable degree the ability to operate a vehicle as would an ordinarily prudent and cautious person in full possession of his or her faculties using care and who is operating a vehicle that is subject to similar road conditions.

Penalties for Driving Under the Influence Offenses:

§23152 (misdemeanor):
(1) No Prior Conviction: Between 96 hours, at least 48 hours of which are continuous, and six months in the county jail. Imprisonment will be on days other than days of regular employment. If 48 hours of continuous imprisonment would interfere with the defendant's work schedule, imprisonment will be allowed during time off from work.

(2) One Prior Conviction: Between 90 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 96 hours, no part of which may be stayed.

(3) Two Prior Convictions: Between 120 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 10 days, no part of which may be stayed.

(4) Three or More Prior Convictions: 16 months or two or three years in state prison OR between 180 days and one year in county jail. In either case, if defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 18 days, no part of which may be stayed.

Fines~ In All Cases: Between $ 390 and $ 1,000.

§23153 (felony):
(1) No Prior Conviction: 16 months or two or three years in state prison OR 90 days to one year in county jail.

(2) One Prior Conviction: 16 months or two or three years in state prison OR 120 days to one year in county jail.

(3) Two or More Prior Convictions: Two, three, or four years in state prison.

(4) In All Cases if Current Offense Proximately Caused Great Bodily Injury: Additional and consecutive enhancement term of three years in state prison.

(5) In All Cases If Bodily Injury or Death to More Than One Victim: Enhancement of one year in state prison for each additional injured victim, up to a maximum of three years.

Fines:
(1) No Prior Conviction Within Seven Years: Between $ 390 and $ 1,000.

(2) One Prior Conviction Within Ten Years: Between $ 390 and $ 5,000.

(3) Two or More Prior Convictions Within Ten Years: Between $ 1,015 and $ 5,000.

(4) In All Cases: Additional penalty assessment of $ 50 for alcohol abuse education and prevention program. Additional assessment of up to $ 50 for cost of blood-alcohol testing, in authorizing counties, and, in most counties, based on ability to pay. Additional assessment of up to $ 100 for county alcohol and drug problem assessment program, in authorizing counties, based on ability to pay.

Penalties for Other Criminal Offenses Involving Under the Influence Offenses:

Statutory Drunk Driving Presumptions:

If the alcohol level was less than 0.05 percent, it will be presumed that the defendant was not under the influence of alcohol;

if the level was 0.05 percent or more, but less than 0.08 percent, there shall be no presumption either way.

A blood-alcohol level of 0.08 percent or more gives rise to a rebuttable presumption of intoxication.

A blood-alcohol test has a margin of error of 0.005 percent and the test indicates an alcohol content of precisely 0.08 percent, thus it is error to instruct a jury to presume that the defendant has been under the influence of alcohol.

Implied Consent Laws:

Must be informed that his or her failure to submit to or complete the test will result in a fine and mandatory imprisonment if convicted, and either:
(a) Suspension of the person's driver's license for 1-2 years;

Arrestee must be advised that refusal to submit to the test may be used against him or her in a court of law.

Arrestee must be advised that he or she is not entitled to consult with an attorney before deciding whether to take a test, before deciding which test to take, or during administration of the chosen test.

Arrestee must be advised by the officer that, if the person chooses a breath test, the equipment does not retain any breath sample and that no breath specimen will be available to be analyzed later. The arrestee must also be advised that he or she will be given an opportunity to provide a blood or urine sample that will be retained at no cost for subsequent analysis.

Chemical Test Laws:
Blood Test. For purposes of the implied consent law, blood will only be drawn at the request of a peace officer and only by a physician, nurse, licensed laboratory technologist or bio-analyst, specified regulated unlicensed laboratory personnel, or certified paramedic. Blood should be taken as soon as possible after the alleged offense, and enough should be taken to permit duplicate determinations. Whatever blood remains after the test must be retained for one year after the date of collection and must be available to the defendant should he or she request it for additional testing.

Urine Test. To obtain an approved urine sample, the defendant must initially void his or her bladder in the administering officer's presence. This first sample is not the approved sample and there is no requirement that it be retained. However, it lawfully may be retained and introduced into evidence at the defendant's trial. At least 20 minutes after the first sample is given, the defendant must urinate a second time, giving the approved sample.

Breath Test. Any breath sample must be collected only after the arrestee has been under continuous observation for at least 15 minutes before its collection. During that time, he or she must not have eaten, drunk, smoked, regurgitated (gas, burped, belched) or vomited. The observation need not be by one single officer, so long as another officer continues to use all of his or her senses (smell/see/hear) to observe for the remainder of the 15 minutes without any lapse, interruption or gap in between.

Independent Test Law:
The retained samples must be made available to the defendant on request for discovery.

Suspension of Driver’s License for Alcohol Related Offenses Statutes:
Administrative Per Se Law: if BAC is above 0.08%, license suspension.

Refusal: If refuses to submit to testing, at least one year suspension.

No priors- License suspended for six months. No reinstatement unless defendant pays applicable fees, gives proof of financial responsibility, and gives satisfactory proof of successful completion of licensed program.

One prior within 10 years- License suspended for two years.
Two priors within 10 years- License suspended for three years.
Three-plus priors within 10 years- License suspended for four years.

Californa DUI - DMV Hearing:

If the person wishes to have the administrative per se hearing (with the California Department of Motor Vehicles) held before the effective date of the suspension order, he or she must request the hearing within 10 days from the pink order of suspension which is usuaally within 10 days of receiving the notice of the suspension order. The person must be served with a notice of the suspension or revocation order. The suspension or revocation does not become effective until 30 days after being given the notice, or until the end of a stay granted pending administrative hearing on the matter.

If the California DMV sustains the suspension order, the person whose license is suspended or revoked may file a petition for writ of mandamus (review of the order suspending license) in the court of competent jurisdiction in the person's county of residence. The petition must be filed within 30 days of the issuance of notice of the order.