DUI Facts & Fiction
No one can predict the outcome of a legal case. That decision will be made by a judge or jury after hearing all the admissible facts in light of the relevant law.
Keep in mind, however, what the prosecution has that you don’t – experienced DUI prosecutors on its payroll; officers and breath analysis technicians who have been trained as professional witnesses; a legislature that passes laws designed to make it tougher on you every step of the way; and plenty of funding to see to it that you are convicted.
The only way you can begin to balance the odds is to hire an attorney who knows California’ complex DUI laws, understands your defenses, and who is willing to fight on your behalf.
WHAT ARE THE PENALTIES FOR DUI?
If you are charged with misdemeanor DUI, and have never been found guilty of a DUI before, or have had a DUI reduced to reckless driving, then you are eligible for court supervision. A sentence of court supervision does not appear on your public driving record, is not a conviction, nor does it affect your driving privileges.
If you do not receive court supervision, and are instead convicted of a DUI, then your driver’s license will be revoked.
Depending on your driving background and the facts of your case, you may be facing jail or penitentiary time, community service, forfeiture of your vehicle, and alcohol/substance abuse treatment.
There are enhanced penalties for DUIs with blood alcohol concentrations (BAC) of 0.16 or higher, while transporting a child under the age of 16, while not having a valid driver’s license, while suspended or revoked for a prior DUI, having one or more prior DUIs, or causing a serious injury or death.
Depending upon your driving history and the facts of your case, your case may be upgraded from a misdemeanor DUI to a felony charge of aggravated DUI. This can occur even on a first offense if at the time of the arrest you did not have a valid driver’s license, you knew or should have known that the vehicle was not insured or you caused a motor vehicle accident resulting in serious or fatal injuries. Your case can also be upgraded to a felony charge if you have been alleged to have committed a DUI when your license was suspended or revoked because of a previous DUI; or if you have committed two or more previous DUIs. A felony DUI can result in a lengthy prison sentence.
Third or fourth DUIs are class 2 felonies, punishable from 3 to 7 years. Probation is possible for a third DUI but not a fourth. A fifth DUI is a class 1 felony, punishable from 4 to 15 years in the penitentiary. A sixth or higher DUI is a class X felony, punishable from 6 to 30 years.
Probation is not allowed on a fourth or higher violation. It is allowed only in extraordinary circumstances when the DUI was the proximate cause of the death of another.
WHAT IS A STATUTORY SUMMARY SUSPENSION?
A Statutory Summary Suspension is an automatic suspension that the Secretary of State places on your driver’s license because you either refused a blood, breath or urine test; or you took such a test and it revealed a blood alcohol concentration of 0.08 or greater; or it revealed illegal drugs in your system.
This suspension will go into effect on the 46th day after you were arrested.
If you have not had a DUI suspension, supervision, or conviction within the last 5 years, you will be classified as a “first offender” for suspension purposes. (This does not mean that you are a “first offender” for DUI sentencing purposes.)
The summary suspensions are as follows:
Six months if you failed a blood, breath or urine test
A year if you refused to take a blood, breath or urine test, and there wasn’t a personal injury accident involving “Type A” injuries.
If you meet the eligibility requirements, you can obtain a Monitoring Device Driver’s Permit (MDDP). After a 30 day “hard time” period, you will be able to drive your vehicle that has been equipped with a breath ignition interlock device (BAIID) wherever and whenever you like.
In order to qualify for an MDDP, you must:
Be a “first offender” for summary suspension purposes, meaning no DUI or DUI based summary suspension within the past 5 years
Possess a valid driver’s license
Be age 18 or older
You have never been previously convicted of reckless homicide
There was no death or great bodily harm resulted from this DUI arrest
WHAT IF I DRIVE A COMPANY OWNED VEHICLE FOR WORK?
If you drive an employer-owned vehicle for work, you are not required to have a breath ignition interlock device (BAIID) installed in the work vehicle. However, in that situation, your employer will be required to complete an affidavit that they do not specifically assign a certain vehicle to you; that you do not take the work vehicle home; and that the you are not self-employed or work for a family owned business. The non-BAIID work permit will only be valid for 12 hours a day, six days a week.
WHAT IS A STATUTORY SUMMARY REVOCATION?
If you have been involved in a personal injury accident involving “Type A” injuries (to generalize, basically an injury that requires medical treatment), and if you refuse or are unable to complete breath, blood or urine testing, then your license will be revoked on the 46th day after receipt of a notice of revocation. Unless the revocation is rescinded in court, you will be looking at a license revocation for a minimum of one year.
If you are not a “first offender” then you will be suspended for:
One year if you failed a blood, breath or urine test
Three years if you refused to take a blood, breath or urine test.
Regardless of your eligibility for a driving permit, your summary suspension can be challenged by filing a “Petition to Rescind the Statutory Summary Suspension” with the Court. The grounds on which the suspension may be challenged are limited by statute
I HAVE A COMMERCIAL DRIVER’S LICENSE (CDL). WHAT WILL HAPPEN TO ME?
Under recent laws, your CDL license will be affected even if you are arrested for DUI while driving a non-commercial vehicle.
If you are arrested for DUI while driving a non-commercial vehicle and refuse to take a breath test, you will receive a one-year disqualification of your CDL if it is your first DUI.
If you are arrested for DUI while driving a non-commercial vehicle and are found guilty, you will receive a one-year disqualification for a first offense, even if you received court supervision.
If you are found guilty of a second offense of DUI, you will receive a lifetime disqualification of your CDL.
WHAT IS THE DIFFERENCE BETWEEN A SUSPENSION AND A REVOCATION?
A DUI suspension is set for a definite time — six months, one year or three years. At the end of the suspension, your license can be reinstated simply by paying a reinstatement fee, so long as in the interim you have not been convicted for driving during your DUI suspension or had another suspension or revocation placed on your driving record.
A revocation is indefinite — it has no automatic reinstatement date. This means that you will remain revoked until after the Secretary of State has determined that you are now responsible enough to have a driver’s license and that you won’t endanger the public. The reinstatement hearing process can be long and arduous.
WHAT IF I DRIVE WHILE SUSPENDED OR REVOKED?
Driving while suspended or revoked for a DUI is a serious matter. There is mandatory jail and/or community service time for each conviction, and the length of your eligibility for reinstatement will be extended. You may also be faced with forfeiture of the vehicle you were driving. Depending on your background, the prosecution can seek to charge you with a felony and seek penitentiary time.
After January 1, 2009, driving during an MDDP eligible DUI suspension will become a Class 4 felony, punishable from 1 to 3 years in the state penitentiary and you will face a mandatory minimum sentence of 30 days in jail for a first offense. The penalties are higher for subsequent offenses.
I NEED TO DRIVE! WHAT CAN I DO?
If you have a statutory summary suspension, you need to hire a qualified DUI attorney immediately. This suspension can only be challenged through the filing, within 90 days of your arrest, of a Petition to Rescind Statutory Summary Suspension. Do not delay.
Attorney James V Bickford, IV is proud to report that he has won well over 300 rescissions of statutory summary suspensions for his clients, through a variety of methods.
If you are revoked for a DUI, contact James V. Bickford, IV to discuss filing a petition for a reinstatement hearing with the Secretary of State.