DUI
Frequently Asked Questions (FAQ)
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Page Mr.
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What is a DUI?
Driving Under the Influence (DUI) is usually charged as a misdemeanor
where an individual is suspected by the police of having violated
one, or both, of the following Vehicle Code sections:
- Under California Vehicle Code section 23152(a), it must be
proven beyond a reasonable doubt that the charged individual
was the driver of a vehicle within the State's boundaries while
so intoxicated, with either alcohol and/or drug(s), that he or
she was unable to operate the vehicle as safely as an ordinarily
prudent person would under like circumstances.
- Under California Vehicle Code section 23152(b), it must be
proven beyond a reasonable doubt that the charged individual
was driving a motor vehicle within the State's boundaries with
a Blood Alcohol content of greater than .08% by weight. [The
Draeger Alcotest 7410 "EPAS" machine is now the most
common, and legally acceptable, means of determining this percentage
in use by Santa Barbara law enforcement agencies.]
The above sections are by no means an exhaustive list of all of the
code sections which prohibit various forms of driving under the influence.
For example:
- Section 23153 prohibits driving under the influence of alcohol
and/or drugs in a manner which causes injury to another.
- Section 23140 prohibits driving with a blood alcohol content
of .05 or greater while under 21.
- Section 21200.5 prohibits riding a bicycle while under the
influence of alcohol.
To view these, and other pertinent code sections, you are referred
to the California
Code.
What are the consequences of a
first-offense DUI in Santa Barbara?
For South Santa Barbara County only:
- Three years of informal probation (aka "suspended sentence")
with anywhere between 60 and 180 days of jail "suspended"
(i.e., not served unless the probation is violated and a "sentence"
is imposed);
- Zero to 180 days of actual jail. How much actual jail typically
depends on the following factors:
- The degree of intoxication,
- Your level of cooperation with the police,
- The dangerousness of your driving behavior,
- Whether there are other criminal charges,
- Your criminal history (if any), and
- The quality of your legal representation.
Jail on a first offense DUI is most typically served on the Sheriff's
Work Alternative Program (aka "SWAP"). A daily fee
and an application fee is charged to allow you to perform light
industrial work under the direct, or indirect, supervision of
the Sheriff's Department on County property. A day of jail credit
is granted for each 8 hour work day. A minimum of two days must
be served each week. No more than 60 days of jail may be served
on SWAP. Good time credits are assessed: For each two days of
jail served without discipline, one day of credit is awarded;
however, this reduction does not apply to sentences of 5 days
or less.
- $1,600.00 in fines and fees (payable in monthly installments
of at least $70 per month);
- A 180 day drivers license suspension. Though it may run
simultaneously, this is not the same as the suspension normally
imposed by the DMV.
To find out what you can do to avoid this suspension, contact Mr.
Makler for a free consultation;
- A three or six month DUI class depending on whether your blood
alcohol level tested at .15 or above. The local program provider, Zona
Seca, Inc., charges $567.55 or $893.55 depending on which
program you are required to attend;
- The obligation to obey all laws;
- The obligation to submit to testing of your blood or urine
for the presence of alcohol, if asked by a law enforcement officer
with probable cause to believe that you have been driving under
the influence of alcohol, AND
- The obligation to refrain from driving a motor vehicle with
any measurable quantity of alcohol in your blood.
Other financial setbacks related to a DUI include the increased cost
of auto insurance (consult an insurance agent) for being labeled
a "high risk" insured, a booking fee (e.g., $130), and
a drivers license re-issue fee (i.e., $120). Also, depending on the
circumstances of your arrest, you may also be billed for the costs
of an "emergency response" (usually where there has been
an accident) and, if your car was impounded, of course you will have
to pay an impound fee to get it back.
Some DUI related setbacks are hard to quantify in financial terms,
however, they can be emotionally and financially devastating. For
example, if you are convicted of a misdemeanor or a felony DUI, you
must typically disclose the conviction on job applications, applications
for public assistance, applications to run for public office, and
applications submitted to educational institutions (and for financial
aid). A felony conviction will, at least temporarily, bar you from
the privilege of voting. While most first-offense misdemeanor dui
convictions won't restrict your right to travel, rumor has it that
Canada (for example) bars the entry of non-Canadian citizens previously
convicted of even misdemeanor charges of DUI (in the U.S.) for five
years from the date of conviction.
To find out what can be done to affordably avoid and manage these
consequences, please contact us,
and we'll get back with you promptly.
What is a "Wet Reckless"?
A "Wet Reckless" (aka "Wet") is a misdemeanor
charged under section 23103.5 of the Vehicle Code. It is a Reckless
Driving offense which was found to have involved alcohol. A "Wet"
is actually never charged in an original complaint. Instead, it is
offered by way of a plea bargain when you have been arrested and
charged for a DUI, but where the prosecutor believes that he or she
may have some difficulty proving you guilty of the charged DUI offenses.
The consequences of a "Wet" in South Santa Barbara County
TYPICALLY are as follows:
- Consequences TYPICALLY imposed by the Superior Court
- Three years of summary probation,
- $900 in fines and fees (and usually a booking fee of $130),
- A 12 hour alcohol education class (aka "wet school"/$238.55),
- A requirement to obey all laws,
- A prohibition against driving with any measurable alcohol
in your blood, and
- A requirement to submit to testing for the presence of
alcohol in your blood or breath by any police officer with
probable cause to suspect that you have been driving with
a measurable quantity of alcohol in your blood.
- Consequences TYPICALLY imposed by the DMV
Same as a DUI. They won't care that you pled down to a "Wet."
In fact, they'll require you to enroll in the 3 month DUI course
if the suspension is deemed lawful, thus rendering the court's
more lenient 12 session course a nullity: You'll still have to
take the 6 month course unless you beat the suspension. To find
out how to beat the suspension, click
here.
- Consequences TYPICALLY imposed by your insurance carrier
Most will treat this same as they would a DUI. They won't care
that you pled down to a "Wet." To them it's the same
offense!
Is a "Wet" considered a good deal? That depends on the
circumstances. Unless there was an accident, or some obvious sign
of intoxication, any .09% or less DUI should settle for a "Wet"
at worst. Be very suspicious of so-called "Master DUI defense
attorneys" who will dress up a "Wet" as a great deal
that you're lucky to get. While having legal representation is always
a good idea, having an attorney who will level with you about the
true value of a "Wet" is even better.
As you compare the TYPICAL consequences of a "Wet" in South
Santa Barbara County with that of a low-BAC (.10 - .15 BAC) DUI,
you will readily see that they are roughly the same. A break on the
fine is about all a "Wet" is worth in many cases. So why
should you take a "Wet" as a plea bargain? Perhaps you
shouldn't. Such important decisions should be made only after you
have had a chance to consult with an experienced DUI attorney. To
find out how to get a better deal than a "Wet," please contact
us.
Can I be in trouble for driving
even if my BAC is below the legal limit?
Yes. It is also unlawful to drive when you are impaired by alcohol
such that you are not able to exercise ordinary caution. Your reaction
time and motor coordination must not be compromised by alcohol. Many
in law enforcement believe that everyone is "impaired"
at .05% BAC. Also, the combination of either a low blood alcohol
level (or none at all) while under the influence of a drug which
may affect your ability to drive safely is considered a DUI as well
(23152(a) CVC). To learn more about how drinking affects your BAC,
you may wish to try our BAC Calculator.
Do I have to submit to a breath, blood,
or urine test?
The implied consent law of the State of California requires persons
arrested for driving under the influence to submit to one chemical
test of their choosing. What this means, in practice, is that (if
you are 21 or over) you don't have to blow into any breath tester,
but if you don't, you will be required to submit to a blood test.
Urine tests are seldom available, and the law has changed such that
you may no longer demand one. You may just want to ask for a urine
test politely. If you refuse all tests, the police may force a blood
draw against your will. Those under 21 must submit to the Preliminary
Alcohol Screening (aka, PAS or "pocket intoxylizer") tests.
If you refuse to submit to such a test at the scene of the traffic
stop, you will, in most cases, be arrested and taken in for a more
reliable test.
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, and to a urine test for
the purposes of detecting 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 take the test. In some cases officers
may force a blood draw if you refuse all testing.
Can I fight my DUI arrest-related
suspension?
Yes. You may request a review of the driver's license suspension
by the department of motor vehicles within 10 days following your
arrest. At a formal review, the hearing officer is authorized to
administer oaths, examine witnesses and take testimony. You should
know that doing so will cause the DMV to delay the imposition of
the suspension until a decision is reached on the merits and you
are notified of it. In practical effect, the proceedings will extend
the temporary driving privilege for at least two additional months
and may result in the restoration of your full driving privileges
without any period of actual suspension. Moreover, winning the hearing
will prevent the DMV from requiring you to purchase "high risk"
insurance coverage and to enroll in any courses.
If I am arrested for a DUI, will
I lose my license?
Yes, the law enforcement officer will seize your license if you are
arrested for DUI with an unlawful BAC or after you have refused to
submit to all chemical tests (you may choose between breath and blood,
ultimately). Your license will be confiscated, and the officer will
issue you a citation as well as a pink form which acts as both a
temporary driver's license and as your notice of suspension. To learn
more about how drinking affects your BAC, you may wish to try our BAC
Calculator.
For how long will I lose my license?
This will vary depending on the circumstances. However, if you have
refused to submit to any chemical tests, the DMV will seek to suspend
your license for a period of one year for a first refusal, or for
eighteen months if you have previously refused to submit to such
a test. If you have an unlawful BAC, the DMV will seek to suspend
your license for six months for a first offense, and one year for
a second offense. If you are under 21, the minimum suspension length
is one year for any alcohol related offense.
What if this is my second or third
time getting arrested for DUI?
The consequences of a DUI with one or more prior DUI's (within the
last 10 years), or a DUI with other aggravating facts, such as injuries,
deaths, major property damage, resisting/evading arrest, and driving
without a valid driving privilege, can be very severe, and must be
evaluated on a case-by-case basis. New laws effective September
20, 2005, make it much more difficult for multiple offenders to avoid
a full year without driving and the ignition interlock device.
If your case sounds as though it may involve one or more of the aggravating
facts listed above OR if you just want more information on defending
a DUI, please contact us.
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