San Diego DUI Defense Attorney
|Defenses to a DUI case we argue||DMV Hearing Deadline|
|Proven Results||DUI Accidents|
|Differences with DMV Hearing||Alcohol Facts|
|DUI Questionnaire||DUI Appeals|
|Implied Consent Law||DUI Punishment|
|DUI – Felony & Multiple Convictions|
If you are accused of driving under the influence, or if you have been charged with a DUI or DWI, the consequences of a conviction are severe and can include:
- Large fines;
- Driver’s license suspension or revocation;
- Jail time;
- Higher vehicle insurance premiums to a point where they may not be affordable.
If you are found guilty of drunk driving, DUI or DWI, you will have a DUI conviction on your criminal record. The penalties become even more severe if you are a repeat offender, or if anyone was injured because you were driving under the influence of alcohol or drugs.
As of January, 2009, the California legislature has lowered the threshold blood alcohol level (BAC) for drivers who have previously been convicted of a DUI. If you are on probation for driving under the influence, DUI or DWI, the Superior Court now can make a ruling you are a “repeat offender” if there is ANY MEASURABLE ALCOHOL on your breath (this is in sharp contrast to the normal .08 percent BAC that is needed to establish intoxication).
DUI Convictions and Professional Licenses
Driving Under the Influence charges require serious help. If you work for the government or apply for a government position and/or have a professional license from the State of California (Real Estate Agent or Broker; Medical Doctor; Registered Nurse; Licensed Vocational Nurse, Social Worker; Psychologist; Contractor; Teacher; Attorney, etc.), the consequences of a DUI conviction can include termination of employment, denial of a professional state board license, suspension of your professional license, revocation of your state board license or having to be placed on probation.
We handle professional state board licensing matters throughout California along with DUI charges in San Diego, and we will be able to answer all of your questions. Because your future is at stake, you should retain the services of a law firm that focuses on San Diego DUI defense and takes your charges as seriously as you do.
We understand the effect a DUI conviction will have on your life, your career, your family and your future. Everyone would like to know they obtained the least expensive attorney, but this should not be the motive in selecting legal counsel. Essentially, you will be making one of the most important decisions in your life, and we hope you will select quality over price as the single most important criteria in choosing a San Diego DUI lawyer to defend you.
Hiring a DUI Attorney
The DUI attorneys that quote bargain-basement prices actually handle a large number of driving under the influence cases, leaving them little time and desire to mount an effective and powerful defense for you; and, leaving little opportunity for youto obtain personal service from a successful San Diego drunk driving defense lawyer who spends the countless hours to level the playing field and fight on your side.
On the other hand, if these other San Diego DUI defense attorneys have not practiced Criminal Law for 35-40 plus years, it is likely they do not have the specialized DUI knowledge, long history of interaction with San Diego judges and prosecutors, critical driving under the influence experience and requisite skills and ability defending DUI clients and, therefore, your chances of accomplishing the results you desire in your case are severely limited. At Spital & Associates, our team of top San Diego DUI Attorneys has 35-40-plus years of experience handling Ddriving Under the Influence cases.
We hope you will not look back and ask yourself, “Is that the best result I could have achieved for my driving under the influence case” or “I did not receive a winning solution.” The way to assure yourself you are getting a San Diego DUI lawyer who is going to fight for you as if yours is his only case is to obtain the team of San Diego DUI Defense Attorneys at the law firm of Spital & Associates, paying at all times only a reasonable fee so that the necessary work can be performed. You do not want a mediocre lawyer or one who will cut corners because he gave you a cut-rate fee. On the other hand, we discount our prices to military, students and seniors, and want to take into consideration your financial situation if you wish to share that with us.
Defense Against DUI Charges
There are three areas in which a highly experienced and dedicated DUI attorney will concentrate on, as follows: 1) The substantive law, meaning whether the elements of the crime can be proven beyond a reasonable doubt; 2) The procedural aspects of a case, which include the chain of custody of the evidence, the appropriate testing procedures, and complying with the Constitutional Guarantees that should be afforded defendants; and 3) The appropriateness of the sentence and whether mitigating facts and circumstances should outweigh the desire of the prosecutor and Court to penalize a defendant or use him as an example to others.
As noted above, one of our goals is to thoroughly investigate your DUI charges to ensure that your rights were not violated and that the police followed proper procedures in your case. If we find a basis, we will challenge:
- The police officer or sheriff’s DUI stop;
- All of the procedures that followed in the arrest, including any sobriety test, Breathalyzer test or blood test;
- Any evidence seized in your driving under the influence matter
- Any statements you may have inadvertently made to the police as a result of the charges that are filed against you.
Our goal is to protect your rights. We are top SAN DIEGO DUI DEFENSE LAWYERS that have 35 plus years of experience handling substance abuse and driving under the influence cases, and intend to make the difference in yours. Because we handle all types of criminal cases along with drunk driving defense, we have the knowledge of best practices and procedures, all facets of criminal law, constitutional guarantees, as well we sentencing guidelines and penalties in both all misdemeanor and felony cases to be able to argue for the best sentence or resolution of your DUI case. Far too often, the prosecutors focus on these offenses (DUI, drunk driving, DWI and driving under the influence) as if they were looking at them through a microscope, and they lose sight of the big picture as it applies to all criminal law matters.
For your personal, experienced and best San Diego Drunk Driving Attorneys, call Spital & Associates now to schedule a confidential, free consultation with a senior attorney (no paralegals, no law clerks, and no novice lawyers.
DMV Revocation Hearings
As your distinguished, skilled and highly experienced drunk driving defense lawyers in San Diego, CA, we will also handle the driver’s license revocation or suspension at the DMV Administrative Hearing. When you retain us as your defense attorney, we will represent you in both the Superior Court case as well as the DMV administrative hearing, which we recommend (if requested within 10 days of the police encounter) because the DMV hearing will often give us further insight into the criminal charges, provide an advance examination of the police report and associated evidence, plus it gives us an opportunity to question the arresting officer prior to your criminal trial if he testifies.
In those cases in which there may be property damages and/or personal injuries as a result of a DUI arrest or DUI charge, we are available to assist our clients in resolving the matter with the Auto Insurance Company (the adverse insurer and/or your own). Remember that even if you have insurance, it is important to have your own advocate to assure the case is quickly resolved and the resolution focuses on the three criteria set forth above, particularly the mitigating facts that can be shown on your behalf.
Do not assume your arrest will be private. It is not uncommon to get dozens of letters from attorneys soliciting your case after the DUI arrest. These lawyers purchase a list of the names and addresses of individuals who have been arrested for driving under the influence (DUI), DWI or drunk driving(typically called “jail mail”). The letters can be annoying, but more importantly they will be received by anyone who is at your address of record (on your driver’s license), which includes your spouse, your children, etc. For those who use their employer’s address on their driver’s license, the consequences can be even more grave. While we know our clients are innocent until proven guilty, if at all, there are far too many people in the public sector who treat the arrest or charge as evidence of wrongdoing, and the “spin” comes from their negative perception.
Consequences of DUI Charges
- San Diego County Jail or state prison incarceration
- A permanent criminal record
- Significant fines for your conviction
- Probation or Parole
- Mandatory AA classes and counseling
- Losing your right to own a deadly weapon
- Unable to obtain and/or difficulty with employment for your offense
- Lifetime revocation of your California Driver’s License for your DUI charges
- Being subject to denial of a State Board license or having your professional license suspended or revoked (see http://www.spitalaw.com/ - Professional Licensing)
There are many defenses we analyze and present, including:
- Mistakes made by the arresting officer
- Illegal DUI arrests
- Unreliable or inappropriate Breath Test
- Inconsistent or inadmissible test
- Inconsistencies shown on tape and/or independent witnesses
- Inadmissible or inappropriate blood test results
We not only want to win your case, we want the government to be held accountable. Our distinguished defense attorneys believe our clients should have the best DUI legal defense to prevent the government from over-reaching in all driving under the influence cases. Our clients deserve better than to assume the prosecutor can prove beyond a reasonable doubt each and every single element of a crime, overcome objections as to the procedures used by law enforcement or the prosecution, and/or the stated and often excessive criminal penalties.
Aside from the multiple strategies we develop for each client, we want to be sure that illegally obtained evidence cannot be introduced. We also want to safeguard you from violations of procedural and constitutional guarantees.
Here is how we will help by employing Powerful Strategies and asserting your:
- Right to Effective and Successful Counsel
- Right to Remain Silent in your interrogation, arrest, offense
- Right to Speedy Trial for a DUI arrest
- Right to imaginative use of Criminal Discovery Rules and Procedure
- Right to Subpoena and Compel Witnesses to Testify
- Right to use cost-effective and distinguished Expert Testimony
- Right to aggressively Cross Examine and Confront the Prosecution’s Witnesses
- Right to challenge the introduction and use of all evidence
- Right to a Jury Trial
- Right to assert all Constitutional defenses in all aspects of your DUI case
- Right to employ Demonstrative Evidence in your trial
- Right of Presumed Innocence
- Right to Testify on Own Behalf in your trial
- Right to assert Creative Options as your lawyer and “master” of persuasion
- Right to negotiate Lesser Offenses and Reduced Sentences
- Right to Appeal adverse rulings, appealable errors and improper Decisions
We Get It!
Did you know that the law enforcement officer who stops your vehicle has to observe you for an entire 15 minutes before taking the breath sample? As your Attorney, we will determine whether you were left alone or out of the sight of the officer at any time prior to taking the test, including being placed in a holding room or cell, using the restroom or making a telephone call. Similarly, we will inquire whether the officer included any of the transportation time as part of the required 15 minute DUI observation period.
- We will inquire whether you had trouble holding food/liquid down and/or if you vomited during the 15-minute DUI observation period before the test.
- Additionally, we want to know if you belched or burped during the 15-minute observation period before taking the breath sample.
In certain driving under the influence arrests, offenses and crimes, we may determine that the breath test is unreliable and inappropriate, and therefore, the results and/or evidence obtained thereafter are inadmissible in your case. Some examples include the following:
- We want to know if our client has a medical condition, such as diabetes or hypoglycemia — because when these individuals consume alcohol, it can also produce a high acetone level, which the body converts into isopropyl alcohol.
- We inquire if our client has a dental problem, such as gum disease or gingivitis pockets around the roots, dentures or bridgework. It has been reported that these conditions can trap mouth alcohol and contaminate the results of a breath test.
- We want to know if our client had any medical problems prior to his or her arrest; whether our client was diagnosed with a hiatal hernia, reflux disease or an intestinal problem;
- We also want to know if you have a respiratory problem, such as asthma, bronchitis, emphysema or chronic obstructive pulmonary disease.
- As your DUI defense lawyer, we want to know if you used Breath Drops or mouth spray that contained alcohol immediately before your arrest.
- We inquire of our DUI and DWI clients if they consumed alcohol as an ingredient of Nyquil, Vicks Formula 44 or other brand cough medicine; we will also want to know if you used a lip balm, or possibly toothache drops.
- Similarly, there are other substances that may have been ingested shortly before the DUI breath test that may interfere with and/or produce incompetent test results, including products such as Skoal brand snuff.
- In your driving under the influence case we often use independent witnesses, and we will ascertain if your actions, behavior or conduct are inconsistent with the breath test results.
- Where there is a video tape, we want to know if it demonstrates your actions, behavior or conduct is inconsistent with the test results.
- Recently, more and more of the people in San Diego’s population are on the Atkins (or other variety of a) high-protein diet. We may be able to present an argument that such an individual can trigger an auto-generated alcohol production when he or she introduces carbohydrates to his or her body, thereby converting ketones into isopropyl alcohol.
- If we are selected as your attorney, we will determine if there has been any recent exposure to toxic substances or volatile fumes, including lacquer substances, gasoline, paint, dry cleaning fluids or even brand 409 house cleaner, because they can produce a chemical interference, and therefore, cause an elevated breath test result.
- If you or a loved one is our client and involved in an automobile accident and the air bag inflated, we can retain experts to determine if there was exposure to the propellant and/or lung and airway irritation causing fluid buildup from the caustic gas propellant.
- With 35-40 plus years of experience, we seek to know whether you had an elevated breath temperature at the time the breath test was performed as a result of high fever, having recently used a sauna or hot tub, or from being detained in the back of the patrol car in the heat of summer, or if you were standing in the hot sun, dancing, running, heavy exercising, or for women who are having a menstrual cycle.
- We also inquire if you had a blowing pattern irregularity at the time of the DUI breath test, because it can produce artificially high water vapor causing the test to be unreliable — as was the case in which our client was crying.
- It is important to us to know if the officer failed to follow procedures and protocol taught in the Academy and/or written in the training manual.
- We will look at the officer’s report to find indications that support sobriety, are inconsistent with intoxication, or there is evidence that shows the officer did a poor investigation of alternative causes.
- We want to know if the law enforcement officer was properly trained in accordance with the DUI standards of Title 17 of the California Code of Regulations, including the theory behind the operation of the Breathalyzer machine.
- In addition, we investigate whether there have been adequate and appropriate inspections of the Breathalyzer machine by properly trained DUI personnel.
- We will look for improper or inconsistent test results in your drunk driving case in San Diego, and then determine that if there were follow-up tests, at least two timely results are within 0.02 percent of each other.
- Another defense we can raise is when there is an abnormally high test result.
- If there is a rising blood alcohol level, there may be sufficient evidence in your case to argue the actual BAC at the time you were driving would have been lower than the time you in fact were tested.
- If the police officer or sheriff obtains a BAC reading below .08 and then waits to perform a second test in which he obtains a .08 and above reading, we will assert a defense to this charge as well. Our skilled attorneys look for at least two consecutive similar test results.
- If the officer refused your request for a second, independent DUI test and/or denied your request for a blood test, which is more reliable and deemed most accurate to obtain the BAC, this is a valid and proper defense we will assert on your behalf.
- We will inquire whether the officer gave you a chemical test admonition that is too broad, including the case in which he threatens dire consequences and there is no factual basis for such a warning, and/or the officer misstates the consequences regarding the suspension of one’s driving privileges.
- We want to know if the chemical test by the Sheriff or Police was obtained more than three hours after our client was stopped, because there is a rebuttable presumption one’s BAC level was at or over the limit at the time of driving only if the test is within three hours.
- If the officer makes an illegal, warrantless stop or arrests our client without probable cause, we will argue it can invalidate the charge.
- If before the case goes to trial, the officer relocates, is subsequently fired, commits a crime and is indicted, retires or dies, we will use that information to obtain a dismissal of your case.
- And, there are many more offensive and defensive moves we can take including a determination as to whether the DUI test room was contaminated; there was interference from a cell phone, an officer’s radio, or someone smoking in or near the machine; a shared power supply with a heater or other appliance, because any one of these events can potentially cause an artificially high BAC reading.
- We also want to know if the Field Sobriety Tests were performed on a partial hill or slope and/or a location in the County of San Diego that has heavy traffic.
- We want to know if there was a curved road at the location of the arrest, as that can also affect a person’s driving (possible defense to weaving out of lane).
- We want to know as much as possible regarding the entire test process, including:
- if the test operator has a current certification
- when the DUI test machine was last certified
- when the machine was calibrated
- if the mouthpiece was changed before the test is given
- if a written record of the temperature of the calibrating solutions in the machine was maintained
- if there is a written log of the tests that were run for the machine in question
- how frequent the calibration solution has been changed
Attorneys are bound by the California Rules of Professional Conduct and past performance does not indicate nor should it be used or relied upon as a basis to predict future results.
- C: 3rd DUI.
- RESULT: Wet Reckless Driving and NO JAIL TIME.
- H: DUI and Failure to Appear.
- RESULT: DUI CASE DISMISSED.
- M: DUI and >.08 BAC.
- RESULT: DUI CASE DISMISSED.
- M: 2nd DUI.
- RESULT: Wet Reckless Driving and NO JAIL TIME.
- B: DUI and Drug Possession.
- RESULT: Wet Reckless Driving; Drug Possession DISMISSED.
- R: DUI – Under Age 21: 1-Year License Suspension.
- RESULT: DUI Criminal case DISMISSED. Driver’s License Saved and No License Suspension
- C: DUI (.14) and Under Age 21.
- RESULT: Wet Reckless Driving.
- G: 2nd DUI.
- RESULT: Wet Reckless Driving, NO JAIL TIME and Prior DUI DISMISSED.
- R: DUI and Under Age 21: 1-Year License Suspension.
- RESULT: DUI Case DISMISSED. Driver’s License Saved – No License Suspension
- W: MIP (Minor in Possession of Alcohol).
- RESULT: INFRACTION: Disturbing the Peace; Driver’s License Saved.
- C: DUI + Failure to Appear.
- RESULT: Criminal Offenses DISMISSED, No Fines.
- W: DUI + drug charge.
- RESULT: Wet Reckless Driving.
- B: MIP + Jaywalking.
- RESULT: INFRACTION: Disturbing the Peace; Driver’s License Saved; Jaywalking DISMISSED.
- R: Drug Possession.
- RESULT: INFRACTION – Disturbing the Peace.
- H: Speed Contest + Over 100 Speeding ticket.
- RESULT: $100 Fine; No License Suspension and Speed Contest DISMISSED.
- H: 25 Years to Life. THIRD STRIKE OFFENDER w/ four current Additional FELONY charges.
- RESULT: 5.5 YEARS (w/ good behavior).
- P: Felony Burglary + Grand Theft.
- RESULT: Reduced to MISDEMEANOR and NO JAIL TIME.
- K: Drug Transportation + Unauthorized Use of dealer Plates.
- RESULT: INFRACTION – Disturbing the Peace.
- P: Imitation Firearm in Airport on 9/11.
- RESULT: Criminal Case DISMISSED.
- V: Vandalism.
- RESULT: Criminal offense DISMISSED.
- S: Weapons Possession + Failure to Appear.
- RESULT: Public Nuisance.
- A: FOUR (4) Felony Probation Violations.
- RESULT: NO JAIL. Probation Terminated.
- C: Battery.
- RESULT: Disturbing the Peace.
- S: Felony Probation Violation.
- RESULT: NO JAIL TIME. Probation Reinstated
- T: Grand Theft.
- RESULT: Petty Theft w/Reduction to Trespass After 18 Months.
- B: DUI w/Probation.
- RESULT: DUI EXPUNGED and Probation Terminated Two Years Early.
DUI HEARING AFTER A MOTION TO SUPPRESS
At Spital & Associates, our team of drunk driving defense lawyers in San Diego, CA strategize and hold conferences to analyze the facts and circumstances, including the applicable laws and defenses. In appropriate cases, we will file in the San Diego Superior Court a pretrial Motion to Suppress. This is a legal document filed on your behalf in which we ask the Court to exclude evidence the prosecutor is relying upon to win its case. If the Court holds an evidentiary hearing, the officer will be required to testify. This is significant because each time the officer presents evidence, it affords us one more opportunity for cross-examination.
As your DWI attorney, we are looking for inconsistencies between the arrest report and the testimony the officer may give at the DMV Administrative License Hearing and at this motion hearing. Credibility is a key test to the competency of a witness. Our client’s defense is strong, and the charges may also be dismissed if evidence can be excluded.
The DMV hearing is an administrative hearing that deals solely with your driving privilege and the circumstances surrounding the DUI arrest, not whether you are innocent or guilty of criminal wrongdoing. At the DMV Administrative Hearing, the following are the only issues:
- If you took a blood or DUI breath or (if applicable) a urine test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153?
- Were you placed under lawful arrest for the charges?
- Were you driving a motor vehicle when you had .08 percent or more by weight of alcohol in your blood at the time of your arrest?
- If you refused or failed to complete a blood, breath or (if applicable) a urine test:
- Did the police officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or, 23153?
- Were you placed under lawful arrest?
- Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?
- Did you refuse to submit to or fail to complete a blood, breath or (if applicable) a urine test, after being requested to do so?
and after printing and completing the questionnaire,
CALL SPITAL & ASSOCIATES to handle your San Diego DUI case TODAY.
The DUI Chemical Test
If you have been arrested for drunk driving, you have a choice of a breath or blood test if:
- A breath test indicates .08 percent blood-alcohol or more, or
- A blood test (or, if neither breath nor blood are available, urine) is taken for later analysis, or
- You refuse to submit to chemical testing, your driver’s license is immediately confiscated by the officer (unless you have an out-of-state license); you will receive a “pink” sheet of paper. This is your formal notice of immediate suspension and serves as a temporary license valid for 30 days.
If this is your first offense during the past 10 years, your license will likely be suspended for up to four months. We may be able to reduce this to one month suspension followed by five months in which you can drive with a work restriction if you file proof of enrollment in a DUI school and proof of insurance. If you refuse to submit to chemical testing in San Diego County, your driver’s license can be suspended for one year, and no work restriction is possible. If this is your second offense within 10 years, the prosecutor will demand a one-year suspension and a two-year suspension if there is a refusal. You have only 10 days to call the Driver Safety Office of the Department of Motor Vehicles to contest the suspension at a DMV Administrative Hearingy. A late request may be obtained in very limited circumstances.
By driving in California, you are deemed to give implied consent (consent/agreement in advance) to the taking of a chemical test [blood or breath (or on very rare occasions urine)] if you are arrested for a DUI.
If you refuse to take a chemical test when asked to do so by a law enforcement officer who makes the arrest, the DMV will consider your actions as a “refusal” because you have arguably broken your implied agreement to take a chemical test.
If you are arrested for driving under the influence and refuse to take a chemical test, you are deemed to have broken your implied consent/agreement. Accordingly, there are penalties for such a refusal. One of the consequences is that the DMV will start an administrative action to suspend or revoke your driver’s license. Also, the prosecutor will request that the Superior Court sentence you to a harsher penalty if you are convicted of drunk driving.
Defenses to a Refusal
At Spital & Associates, we look for DUI defenses to a refusal. They may involve some type of “confusion” on the part of the client. First, at the time you are arrested, if you have a medical condition that renders you incapable of understanding what is going on, such as head trauma from a car accident, then we can assert a defense to the penalties associated with a “refusal.” Second, if the officer confused you by the way he or she explained the implied consent rules to you, we will also assert this as a defense to the charges. Third, if the officer mistakes, incorrectly states or omits to state the consequences of refusing the DUI test, it will give us a basis to assert a defense to a refusal action.
Penalties for a Refusal
Ordinarily if you have no prior DUI, your driver’s license will be suspended for one year if you refuse to take a chemical test, and there are no defenses that can be asserted on your behalf. If you were convicted of DUI or “wet reckless driving” within the previous 10 years, your driver’s license will be revoked for two years. Your license will be revoked for three years if you receive two or more priors in 10 years.
If you have a commercial driver’s license and this is your second refusal, you are disqualified from ever holding a commercial license again for the rest of your life.
You have ONLY 10 calendar days from your arrest to request a DMV hearing, or we will do it for you, if we are retained in sufficient time. Otherwise, your California driver’s license will be suspended.
We recommend requesting a DMV Administrative Hearing. There may be an opportunity to have the suspension thrown out; even in the worst scenario, your suspension will generally take effect later than the 30 days you are given to drive after being arrested.
The DMV Administrative Hearing is conducted by a Hearing Officer who is a State of California employee. This person is generally not an attorney, but acts as the “judge” and “prosecutor.” He can, for example, rule on his own objections. The hearing is conducted like a miniature trial, without a jury and with very relaxed rules of evidence. Testimony can be produced by both sides, although the Hearing Officer after the arrest usually only produces documents, such as police reports, laboratory reports and the officer’s sworn affidavit.
If you are arrested for driving under the influence in California, you will be prosecuted by two agencies: the City Attorney/District Attorney and the Department of Motor Vehicles. Each agency handles its matters differently. The criminal justice system is a complicated system and the consequences of a DUI are severe. If this is your first offense, the minimum sentence is three years probation on condition: (1) you pay a fine plus penalty assessment plus fees. Penalty assessment is the state tax of 200 percent. Depending on the jurisdiction, the fine totals $1,200 to $1,500. (2) you receive a 90-day license restriction or 48 hours in County Jail. (3) you attend a 90-day alcohol program, once a week for 90 days. Not all jurisdictions allow a restricted license instead of a mandatory period in jail. Some Courts require Formal Probation, while most San Diego Superior Court judges require Summary or Court Probation (without a probation officer). You may end up in the County Jail for a maximum of 6 months on a first offense and one year for a second or third offense. Jail time is somewhat unusual in most of our law firm’s first offense cases.
Sentencing and Probation
There are three factors that enhance the seriousness of a DUI charge: They are driving, intoxication, and a prior record. Concerning the “driving” factor, increased penalties in your case arise from being involved in an accident if there are injuries (can result in felony filing) and/or if you are speeding (more than 20 mph on a street or more than 30 mph on a freeway over the speed limit, exceeding 100 mph, driving on the wrong side of the road, and/or driving with children in the car). The higher the reading of intoxication, the more serious the offense becomes. If your blood alcohol is “twice the legal limit of .08 percent” (a reading of .16 percent) or a reading of .20 percent or higher, the Court may impose an enhanced sentence; this can include an increased program length from three to six months, public works service, and in rare cases, possibly County Jail time, etc. If you face a second driving under the influence charge,the penalty can be much worse than a first offense. A third DUI charge is much worse than a second one. A fourth within 10 years is usually a felony. Whether probation on the prior DWI offense is still in effect is a factor. Older prior cases (regardless of the location) can often carry less jail time than recent ones in San Diego County.
The DMV generally seeks to take your driver’s license away for four months on a first offense, one year for a second offense, and three years for a third offense. At the time of your arrest, the officer will take your driver’s license away and you will receive a temporary license, valid for only 30 days. If you fail to request a DMV hearing within 10 days of your D arrest, there is an automatic four-month suspension.
We are also aware of the consequences of a conviction as it relates to employment, the military, current and future professional career options. Because we also practice in the areas of employment law and administrative law, we seek to inform our clients as to the effect of a conviction on their current employment, future applications they submit to employers, background investigations, access by government agencies to arrests, and professional licensing by state agencies, including the Board of Registered Nursing, Medical Board, Department of Real Estate, Board of Pharmacy, Board of Behavioral Science, Board of Psychology, Board of Optometry, Board of Veterinary Medicine, Department of Insurance, and all of the other state Boards and Bureaus as well.
Other Major Traffic Violations
At Spital & Associates, we handle the following serious violations:
- Driving Under the Influence (DUI), Drunk Driving, and DWI;
- Minor In Possession (MIP)
- Misdemeanor Moving Violations
- Driving While License Suspended
- Driving While License Revoked
- Reckless Homicide
- Criminal Vehicular Operation or Manslaughter
- Careless or Reckless Driving
- Leaving the Scene of an Injury Accident
DUI and traffic charges are almost always extremely time sensitive. Please call Spital & Associates at 619.583.0350 and speak with the Managing Attorney (no paralegal, no law clerk, no secretary). You can also send Sam Spital an e-mail now, so that he can help evaluate your situatiion.
What we will do for you: In those instances in which there has been a single-car accident or accident with another vehicle and/or there is injury to a third person who was involved in the collision, we assist our client in resolving that aspect of the case as well. This not only involves issues concerning (1) probable cause as it relates to the criminal side of the case as in the situation where the officer did not observe our client “driving;” but may involve (2) an insurance carrier wrongfully denying coverage because the accident is deemed “intentional” and, as such, the client is excluded from coverage; as well as those cases in which (3) an alleged victim seeks recovery from our client and we want to resolve this accident claim as early as possible as it is important in the case of “restitution,” which the Court requires in the underlying case. Our team of Personal Injury Lawyers that handle accident cases on a regular basis gives us the insight to focus on and achieve a global resolution for our DUI clients.
A Timely Report Must Be Filed With the DMV
Vehicle Code section 16000 (a) states as follows: “The driver of a motor vehicle who is in any manner involved in an accident originating from the operation of the motor vehicle on a street or highway, or is involved in a reportable off-highway accident, as defined in Section 16000.1, that has resulted in damage to the property of any one person in excess of $750, or has resulted in bodily injury or death of any person shall report the accident, within 10 days after the accident, either personally or through an insurance agent, broker, or legal representative, on a [SR-1] form approved by the department, to the office of the department at Sacramento, subject to this chapter [emphasis added]. The driver shall identify on the form, by name and current residence address, if available, any person involved in the accident complaining of bodily injury.
Therefore, it is important for you to immediately contact your insurance carrier to file the report (this is a SR-1 form) within the 10-day period with the DMV or to provide you with the form so that you can file it directly with the DMV during the 10-day period.
If Injuries Are Involved in Your DUI Arrest
Always request CHP or the police to prepare an accident report. Vehicle Code section 20008 (a) states: “The driver of a vehicle, other than a common carrier vehicle, involved in any accident resulting in injuries to or death of any person shall, within 24 hours after the accident, make or cause to be made a written report of the accident to the Department of the California Highway Patrol or, if the accident occurred within a city, to either the Department of the California Highway Patrol or the police department of the city in which the accident occurred [emphasis added]. If the agency which receives the report is not responsible for investigating the accident, it shall immediately forward the report to the law enforcement agency which is responsible for investigating the accident.”
Consequences of Failing to File a Report With the DMV
Vehicle Code section 16070 (a) states as follows: “Whenever a driver involved in an accident described in Section 16000 fails to provide evidence of financial responsibility, as required by Section 16020, at the time of the accident, the department shall, pursuant to subdivision (b), suspend the privilege of the driver or owner to drive a motor vehicle, including the driving privilege of a nonresident in this state.”
Vehicle Code section 16070 (b) states: “Whenever the department receives an accident report pursuant to this article that alleges that any of the drivers involved in the accident was not in compliance with Section 16020 at the time of the accident, the department shall immediately mail to that driver a notice of intent to suspend the driving privilege of that driver. The department shall suspend the driving privilege 30 days after mailing the notice, unless the driver has, prior to that date, established evidence of financial responsibility at the time of the accident, as specified in Section 16021, with the department. The suspension notice shall notify the driver of the action taken and the right to a hearing under Section 16075.”
The DMV can restrict your license to drive for one year if you fail to file the required SR-1 form. Hence, it is important you follow up with your insurance agent and/or go to the DMV yourself to be certain the SR-1 form is filed. If you did not have insurance at the time of the accident, the DMV can suspend your license up to four years [after the first year, however, you can re-instate your driving privilege if you show proof of insurance].
In a survey conducted by the National Highway Traffic Safety Administration (NHTSA), in 2007 there were 1.4 million DUI arrests (which is greater than the combined number of arrests for arson, burglary, robbery, and vehicle theft combined). In California, there were over 204,000 arrests for drunk driving. In the United States, there were nearly 13,000 deaths involving alcohol-impaired driving, which constitute nearly 32 percent of all fatalities. Even more compelling is the fact that nearly 70 percent of all fatal crashes involved drunk drivers and no other vehicle was involved. The time of the day when most fatalities involving drunk driving occurred was between 12 a.m. (midnight) and 3 a.m. Lastly, and even more concerning, is the fact that 30 percent of the population is expected to be involved in an alcohol-related San Diego accident during their lifetime.
Types of Alcoholic Beverages:
- Beer is made from cereal grains (corn, rice) and malt. Malt is sprouted Barley. The enzymes in the malt convert the grain to sugar, then yeast changes the sugar to alcohol. Hops (the blossoms of the hop plant) are added to the mixture for taste. In the U.S. the alcohol content of beer is limited by law to 5 percent. If the alcohol content is above 5 percent it cannot be called beer. Mostly, this next level of alcohol content is called malt liquor.
- Malt liquor has an alcohol content of 5 percent to 7 percent.
- Wine is made from fruit and has an alcohol content of 8 percent to 14 percent.
- Fortified wine is wine mixed with brandy for higher alcohol content.
- Wine coolers made for young adults who are having their first experiences drinking alcohol (this is white wine + soda pop), because the transition from sweet-tasting pop to sweet-tasting wine is easy.
- Vodka is manufactured in the U.S. and has no smell and no taste, and it is not aged. Those familiar with the subject contend there is no difference between expensive vodka and cheap vodka.
- Gin is vodka with Juniper berries added for flavor. Both vodka and gin are pure alcohol with water added.
- Rum comes from sugar cane.
- Bourbon is made from corn alcohol aged in charred oak barrels. Jack Daniels is not a bourbon because it is “charcoal filtered”.
- Scotch is made from malt and other grains and aged in barrels that were previously used to age sherry. The malt has been dried over burning peat.
- Brandy is distilled wine.
- Liqueur is brandy with flavor added. Liqueur is about 20 percent alcohol — higher than wine, but less than whiskey.
Some alcohol is absorbed from the stomach, but most of it is absorbed through the small intestine.
Factors influencing the absorption rate of alcohol:
- The amount and kind of food we eat
- The content of alcohol — being drunk
- Our mood — Fear and anger causes the stomach to dump its contents into the small intestine (including the alcohol). Since most of the alcohol is absorbed in the small intestine, a person experiencing these moods gets drunk quicker.
Blood alcohol level:
% BAL: This is the effect that alcohol has on humans.
.05 Behavioral effects start, there is lower alertness, release of inhibitions, impaired judgment, often dashing and debonair.
.10 Slowed reaction time, impaired motor function, less caution, dangerous and devilish behavior.
.15 Extremely slow reaction time
.20 Decidedly intoxicated, marked reduction in sensory and motor functions. Dizzy and disturbing.
.25 Staggering, sensory perceptions greatly impaired, considered “smashed.”
.30 Conscious but stuporous, no comprehension of the world around them, delirious, disoriented. Decidedly drunk.
.35 The equivalent of surgical anesthesia, considered “dead drunk.”
.40 If your BAC is this high, there is a 50 percent chance you are dead.
.60 This is a BAC of someone who is definitely dead.
- Body weight — The larger a person is, the more volume he or she has for distribution, so increased body weight contributes to lower blood alcohol content or blood alcohol level.
- Muscle mass — Alcohol absorbs more readily into muscle mass than into fatty tissue. Therefore, the more muscular an individual, the lower his or her blood alcohol level will be (in contrast to an individual with more fatty tissue).
(1) Alcohol dehydrogenase (an enzyme) and the liver are responsible for the metabolism of most of the alcohol. 2) The primary by product is acetaldehyde.
The amount of alcohol the liver can metabolize in an hour is .3 oz. of absolute alcohol (.6 oz. of 100 proof), regardless of how much alcohol is in the body or the blood alcohol level. Hence, when someone drinks more than .3 oz. per hour, his or her blood alcohol level increases.
We would never suggest that anyone drive after drinking. However, it is noteworthy that unless one is alcohol dependent, pregnant, or suffers from liver, pancreas, or kidney disease, the health advantages of having one or two drinks a day [clearly at home and in a location where there will be no risk of a driving under the influence charge or other adverse incident(s)] an occasional dribk has been reported to outweigh the disadvantages. Alcohol in this amount as a general rule increases HDL (“good cholesterol”), which is associated with lowered blood pressure and decreased risk of stroke and heart attack. Some physicians even urge certain patients to drink between one and two ounces of alcohol if they are hypertensive, or for patients who are recovering from heart attack or stroke.
If your case goes to trial (statistics report only about 1-2 percent of all cases are not settled and go to trial), you will want an experienced and highly regarded atorney to represent you. In choosing a “jury trial” rather than a judge trial, it is critical that the jurors who are selected are sympathetic to the defense case.
Who are the potential jurors that are likely to be sympathetic?
- Blue collar workers
- Those who have had traffic tickets and fought them
- Retired military personnel (noncommissioned)
- Middle-class to lower-class individuals
- Country music lovers
- Easygoing, sociable and happy individuals
- Those who drink beer or bourbon and who admit to drinking at least two drinks at a time (one sitting)
- Individuals who seem under-dressed when they come to Court
- Individuals who are not judgmental
- Individuals who are not otherwise into physical fitness
- Lastly, we will likely avoid choosing jurors who are in the insurance, engineering, computer and medical professions
The Administrative License Suspension Program, known as “Admin Per Se” (APS) became law in an attempt to be an immediate deterrent to anyone driving under the influence.
WHO IS AFFECTED?
The Department of Motor Vehicles (DMV) is required to suspend or revoke the driving privilege of any person arrested for driving under the influence of alcohol or a combination of alcohol and drugs (DUI), who:
- takes a chemical (blood or breath) test that shows a Blood Alcohol Concentration (BAC) level of .08 percent or more, or
- refuses to take or fails to complete a chemical (blood or breath)* test to determine his or her BAC level
*NOTE: A urine test is not available unless:
- the officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
- both the blood and breath tests are unavailable, or
- you are a hemophiliac, or
- you are taking an anticoagulant in conjunction with a heart condition.
WHAT HAPPENS TO YOUR DRIVER’S LICENSE?
You will receive an Order of Suspension from the police officer, sheriff or CHP. If you have a valid California driver’s license, the officer will take your driver’s license and then send it to the DMV. The Order of Suspension serves as your temporary license for 30 days from the issue date. At the end of the 30 days, the suspension action goes into effect. If the officer does not serve you with an Order of Suspension, however, the DMV will mail one to you. You should make certain the address on your driver’s license is the one where mail should be sent.
The temporary license does not allow you to drive if there is another DMV- or court-imposed driver’s license action in effect.
This suspension is independent of any action the San Diego Superior Court will take if you are arrested for a drunk driving offense.
WHAT ACTION DOES DMV TAKE?
The DMV conducts an administrative review that includes an examination of the officer’s sworn police, sheriff or CHP report and any other relevant documents. If the review shows there is no basis for the suspension, the DMV will set it aside.
WHAT TO DO AFTER THE POLICE ENCOUNTER?
You have 10 days from receipt of the Order of Suspension to request an Administrative Hearing to show the suspension is not justified. If you retain Spital & Associates within the 10 days, we will request the Administrative Hearing on your behalf. The DMV will conduct a telephonic hearing unless there is a request for an in-person hearing. The suspension will not be delayed unless:
- you request a hearing within 10 days from the issue date of the order, and
- DMV cannot provide a hearing before the effective date of the suspension.
Before the hearing, we will demand to see and/or obtain copies of the evidence the DMV will be considering in issuing its decision. While you may represent yourself, we recommend you retain legal counsel who is familiar with the applicable laws and the administrative process. Our team of lawyers has handled many hundreds of these hearings, and we include this representation as part of the services we provide when we are retained as your DUI Attorneys. While you may be present and testify, unless your defense is one of “actual innocence” (i.e. you did not have anything to drink at all) we generally do not have you testify at the DMV hearing, because anything you say could be used against you in the criminal portion of your case.
The DMV ordinarily does not arrange to have the peace officer testify. However, the DMV reserves the right to call the officer if his/her testimony is needed. As your DMV attorney, we may subpoena the officer or any other witness(es) that may help your case and have relevant testimony or evidence to present. After the hearing decision, you may make a written request for a Department Review within 15 days, or Superior Court review within 30 days, from the date shown on the Notification of Findings and Decision from the DMV. The fee for a department review is $120.
You may reinstate your driving privilege after the hearing if:
- you pay a $125 reissue fee to the DMV (Vehicle Code §14905)
- you file proof of financial responsibility (i.e., a California Insurance Proof Certificate [SR 22], $35,000 cash deposit, surety bond, or self insurer certificate under VC §16430)
- you maintain proof of financial responsibility for three years
DMV HEARING ISSUES
The Hearing Officer who conducts the administrative hearing cannot grant you a restricted driver’s license regardless of your need to drive. Only the following issues will be review:
A. If you took a chemical test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle under the influence of alcohol in violation of VC §§23152 or 23153?
- Were you lawfully arrested for drunk driving?
- Were you driving a motor vehicle with a BAC level of .08 percent or more?
B. If you refused or failed to complete a chemical test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle under the influence in violation of VC §§23152 or 23153?
- Were you lawfully arrested?
- Were you told that your driving privilege would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
- Did you refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?
HOW LONG WILL YOUR DRIVER’S LICENSE BE SUSPENDED?
A. If you took a chemical test and the results showed a BAC level of .08 percent or more, your driving privilege will be suspended for:
- Four months for the first offense
- One year for more than one DUI offense in 10 years
B. If you refused or failed to complete a chemical test, your driving privilege will be:
- Suspended for one year for the first offense
- Revoked for two years for the second offense in 10 years
- Revoked for three years for three or more offenses in 10 years
ELIGIBILITY FOR A RESTRICTED LICENSE
You may be eligible for a noncommercial restricted driver license if:
- this is your first offense, and
- you completed a chemical test, and
- the results showed a BAC level of .08 percent or more, and
- you are 21 years of age or older (VC §13353.7), and
- your driving privilege is not suspended or revoked for some other reason.
You must not have had another DWI within 10 years of a current violation, which includes a charge reduced to Reckless Driving, Vehicular Manslaughter, or Under 21 and you were convicted or in a previous DMV hearing you were held to have been driving with a BAC of .01 percent or more while under age 21, or .08 percent or more at any age, or you refused a chemical test.
If you have a commercial driver license, you must downgrade to a Class C. If you were cited for drunk driving, driving under the influence (DUI) or DWI in a:
- noncommercial vehicle, you may be eligible for a restriction to drive to/from a DUI treatment program, and to/from/during the course of your employment only.
- commercial vehicle, you may be eligible for a restriction to drive to/from a DUI treatment program only.
NONCOMMERCIAL RESTRICTED LICENSE
To be issued a noncommercial restricted driver license, you must:
- enroll in a First Offender licensed driving under the influence (DUI) program (you must notify the program provider that you intend to apply for a restricted driver’s license), and
- ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender Program with DMV per VC §23538[b], and
- file proof of insurance or financial responsibility (Proof of Insurance Certificate is identified as SR 22; you can deposit $35,000 cash; obtain a surety bond; or provide a self-insurer certificate under VC §16430), and
- pay a $125 reissue fee to the DMV, and
- wait until the end of the mandatory 30-day suspension period before applying for a restricted driver’s license, and
- request a “To/From/During Course of Employment and DUI Program Restriction.” Your driving privilege will be restricted to allow you to drive to, from, and during the course of your employment and to and from the DUI program. This restriction is valid for five months.
NOTE: If you enroll and fail to participate or do not complete the First Offender Program, the DMV will immediately revoke your restricted license and reimpose the suspension.
Departmental Review is available to obtain relief after an adverse DMV decision. As your attorney, we will send a letter to DMV in Sacramento, if we are specifically retained for this purpose and to do so and if you also pay the filing fee (see above). Then, a DMV employee will review the DMV file for any alleged errors. Theoretically, the DMV will give your driver’s license back if it is determined that the hearing officer committed an error in suspending your license. This is generally not the case, and most attorneys regard this process as ineffective and a waste of time. More importantly, the law does not provide a “stay” of the DMV suspension during the Departmental Review, so you cannot drive while you wait for a decision. There is an advantage, however, in that one can use the Departmental Review process to obtain an extension of the time to seek a Writ of Mandate in Superior Court.
Writ of Mandate
The writ of mandate is the method to appeal a DMV suspension. If you prevail, you get your license reinstated. If the Court determines the DMV acted in an arbitrary and capricious manner, the judge has the discretion to order damages along with reimbursement of your attorney’s fees.
The writ is an order from the San Diego Superior Court telling the DMV to reverse its decision suspending one’s driver’s license. The full legal term for a writ of mandate is a “writ of mandamus” or “writ of administrative mandamus.”
When we file an appeal, we are seeking a stay of the DMV decision. This is the temporary halt of the DMV order of suspension. The period of time varies somewhat within the court system depending upon the Superior Court’s calendar and the time that is reasonably necessary to challenge the DMV’s decision. The Judge needs an adequate period of time to review the DMV proceeding and to determine whether to issue a “writ.” Also, a driver should be afforded an opportunity to prove the suspension of his/her license was wrongful and should not be penalized during the time it takes for a judge to evaluate the evidence.
WHAT IS A DUI or DWI?
The first element of the crime is “driving” or “operating.” This language is designed to describe the level of control a person must have over the vehicle. In many states, the vehicle does not actually have to be moving, and a person sitting behind the wheel of a car, whether or not the engine is running, can be convicted of driving or operating the car. While passengers are generally not considered drivers or operators of vehicles, they can be considered “in control” if they grab the steering wheel or try to take control of the vehicle.
The definition of “vehicle” is broader than “motor vehicle.” A vehicle can be any product or means for transporting people or goods. A motor vehicle, by contrast, requires that it is be powered by a motor. These definitions encompass cars, trucks, motorcycles, and motor boats. A question can sometimes arise when the vehicle is inoperable and a distinction can be made between a vehicle that is immobile and inoperable. Another element of the crime is its location. While the earlier cases required the vehicle being operated “on a public highway,” most statutes now simply require proof that the crime took place within the jurisdiction of the San Diego Superior Court; this means the DUI applies to persons who drive on private property, including parking lots.
PURPOSE OF THE DUI LAWS
The underlying purpose of the drunk-driving laws is to prevent operation of a motor vehicle when an individual is too intoxicated to have “adequate control.” The intoxication element is proven by one of two methods: (1) showing a certain level of blood alcohol (BAC) or illegal drugs in the operator’s system, or (2) showing the person was impaired. BAC does not rely on the law enforcement officer’s observations of the defendant’s conduct, but rather on the results of a blood or breath test. A common statutory scheme requires a person suspected of being drunk or under the influence of drugs while driving to submit to a breath or blood test. In California, this is called the “implied consent” law. The statute provides that by operating a motor vehicle in the State of California, an individual has given consent to be tested for alcohol in his or her system. After the sample is given, it is analyzed by a machine that measures the concentration of alcohol in an individual’s blood.
The .08 Distinction: The California limit for blood-alcohol content is .08, and anyone who tests over .08 or has the presence of drugs is legally intoxicated. Nonetheless, we have many ways to defend yourcase and to challenge the charges (see above discussion), such as by showing there was a failure in the test procedure (e.g. a malfunctioning machine), an improper sample, foreign substances in the mouth (in the case of a breath test), or improper preservation of the evidence.
The “impairment” Distinction: In contrast to the requirement that one have a BA level over .08, proof of impairment may be used to obtain a conviction. This is based on the facts and circumstances surrounding the incident. It relies on the law enforcement officer’s testimony, statements of the defendant, and circumstantial evidence. Under this particular charge that is leveled against a defendant, the actual amount of alcohol in a person’s blood is not the key factor and may be deemed irrelevant since the focus is on whether the person’s ability to drive has been impaired.
Standard police tests for impairment include having an individual perform what are commonly referred to as FSTs or “Field Sobriety Tests.” These include having the subject walk a straight line with one foot placed precisely in front of the other; closing his or her eyes and standing with arms held out from the body and touching the tip of the nose when instructed; reciting the alphabet; and counting backwards. The law enforcement officer may make observations of a driver’s impairment by watching the person’s driving, which often leads to the stop. Often the time of the day (late night and early morning hours) and location of the encounter (neighboring areas of bars and nightclubs; areas where young adults frequent and/or reside, etc.) create the perfect environment for officers to patrol.
In addition, driving too fast or too slow, weaving from lane to lane, and going through stop signs have all been used as evidence to demonstrate impaired driving. A statement by a driver about how much he or she had to drink, and how recently, is also used as evidence of impairment when supported by testimony about the probable effects of that amount of alcohol ingested at that time on a person’s physical abilities. At Spital & Associates, we seek to exclude your “admission,” arguing it was obtained unlawfully. The focus turns on whether you were a “suspect” and should have been given a Miranda Warning (requirement that a defendant be admonished to remain silent as anything he/she says can be used against him/her), while the prosecution will seek to prove the opposite.
Punishment for drunk driving has become increasingly severe in the past five-plus years. In earlier years, defendants convicted of drunk driving or DWI often faced lighter sentences if they had not injured anyone or destroyed any property. However, at this point in time, the current laws typically provide for significant jail time and large fines. Depending upon the location of the San Diego Superior Court (North County, East County, South County and Downtown) and particular judge, sentences do in fact vary. First-time offenders may be given a “break,” such as a suspended sentence conditioned on treatment for substance abuse or attendance in an alcohol education program. The penalty for second or subsequent offenses, however, often includes mandatory minimum jail or prison sentences that cannot be suspended or waived, and large fines. The punishment also usually includes revocation of driving privileges for a certain period of time. Please note the most severe restrictions on a defendant’s driving privileges usually come from the DMV hearing, which is not considered a part of the criminal sentence. In fact, those cases in which a defendant attempted to argue that a suspension or revocation of his or her driver’s licenses by the DMV in addition to the criminal sentence is double punishment that is barred by the double jeopardy clause of the Constitution have not been successful.
You’ve already seen how prosecutors go after people accused of driving under the influence (DUI) — you’ve been there. Even if they were lenient to you, you don’t want to face it again. If you are accused of drunk driving or driving under the influence of drugs or alcohol, the attorneys at Spital & Associates are ready to fight for you. No matter how many times you’ve been pulled, we can help find a winning solution.
Our firm’s founder, Samuel Spital, and his associates have more than 39 years of legal experience. Sam had worked for almost eight years as a Deputy Attorney General (where he first started in the Criminal Division handling Writs in the Los Angeles Superior Court for the California DMV). He has personal experience prosecuting crimes and, therefore, has unique insight into how prosecutors prepare their cases. He uses his 39-plus years of experience and valuable knowledge, along with that of his team of Senior Associate Attorneys, to provide aggressive defense and uses strategic offense arguments for these and other criminal charges.
Penalties if Convicted Again
If you are convicted of multiple DUI or certain lower included offenses, within 10 years, you face severe penalties that will seriously affect your future employment and or professional career, whether with a governmental agency, an employer who does a background check, or an agency when you later seek to obtain a state Board license in California. Our lawyers fight against multiple convictions and penalties, such as huge fines and:
- Second DUI offense:
- 96 hours to one year in jail
- Two-year license suspension
- Third DUI offense
- May be classified as an “habitual offender”
- 120 days to one year in jail
- Three-year license suspension
- Ignition interlock device installed
- Fourth DUI offense
- Can be charged as felony DUI
- 180 days to one year in jail, including possible time in prison
- Four-year license suspension
- Ignition interlock device installed
Additionally, if you were on probation for a driving under the influence conviction when the police, Sheriff or CHP pulled you over, they can charge you for being a repeat offender, no matter how much alcohol the BAC test found on your breath.
When Is a DUI a Felony?
The prosecutor’s office in San Diego can choose to charge a fourth DUI, DWI, drunk driving or driving under the influence offense in 10 years as a Felony DUI. You may also be charged with Felony DUI in San Diego if you have a prior Felony DUI on your record. Even if this is the first time you are facing these charges, you may face a Felony DUI if the accident you were in led to someone’s serious injury or death.
Felony DUI charges carry greater penalties and larger consequences for your future reputation, employment opportunities and professional licensing matters. If we cannot get case completely dismissed, we will fight to have your felony reduced to a misdemeanor or lesser included offense.
Aggressive Defense to a Second, Third or Felony DUI
The defenses to a first-offense DUI apply to multiple-offense drunk driving charges. If you have been charged with any of these offenses, we will ask:
- Did the arresting officer make any mistakes during the stop?
- Was your arrest lawful?
- Were you actually driving the vehicle? Did you have a blood alcohol content (BAC) of over .08?
- Did the DUI breath test work properly? Is the evidence from the breath test admissible?
- Are your blood test results appropriate? Is the evidence inadmissible?
- Did the officer give you a field sobriety test? Did he or she do the test properly?
We fight to win. Our attorneys do these cases because we love arguing in court. We handle these cases because your constitutional rights matter to us. If a police officer, Deputy Sheriff or CHP officer acted inappropriately, or you were wrongfully charged with a crime, you deserve to see justice done by tcourt system. You need a strong criminal defense attorney who will fight for you to spend less time in jail, if any time at all.
Our successes include reducing second or even a third DUI to “wet reckless driving” with no jail time. We have even been able to dismiss a prior DUI so that our client was charged as a first-time — not second-time — offender. While our successes in past cases do not guarantee future results, they are examples of the strong defense and offense effort we will bring on your behalf.
How serious is a DWI or drunk driving) arrest?
Being convicted of drunk driving is a serious problem. Everyone is aware that thousands of people are killed each year in alcohol related accidents. Although some of those accidents in San Diego County result in the death of the intoxicated person, sadly a significant and unfortunate number involve the death of “innocent” parties who were in the wrong place at the wrong time when someone chose to drive a car while impaired. Clearly, driving under the influence is dangerous for those individuals who choose to operate a car and for those individuals who are on the road at the same time. In addition to the severe physical injuries that may take place, there are serious emotional and mental scars that may never fully heal for both the defendant and his or her victim(s).
Is it “safer” to drink beer or wine?
Any type of alcohol is dangerous when consumed in excess. Different types of drinks (see discussion above) contain different concentrations of alcohol, or what may be called “proofs.” The proof rating is two times the alcohol concentration. Therefore, 200 proof liquor has a 100 percent alcohol concentration. Most hard liquors have a higher alcohol concentration than most wines, and most wines have a higher alcohol concentration than most beers, meaning that it may take fewer drinks containing hard liquor or fewer glasses of wine than beers to become intoxicated. However, the alcohol concentration of a drink is not everything . An individual must consider the size of the drink that he or she is consuming. Therefore, a “shot” glass of hard liquor, which is usually only about 1-1/2 ounces of alcohol, may end up having the same effect as one five-ounce glass of wine or one 12-ounce beer.
Drinking any alcoholic beverage in excess is never advisable. You should NEVER drive after drinking any amount of alcohol as you may be the worst judge of whether you are sufficiently impaired to drive safely and you may seriously injure yourself or others if you choose to drive. Besides becoming “addicted” to alcohol, excessive consumption of alcohol over a long period of time can cause permanent physical damage to the kidneys, liver, heart, and brain. Studies have further shown that excessive use of alcohol within a short period of time can also lead to death.
Do I have to take a Breathalyzer test?
The DUI breath analyzer test measures a person’s BAC or blood alcohol level. The amount of ethanol that is in your system is the same as the amount of ethanol that is “on” your breath when you exhale. As a result, the police, Deputy Sheriff or CHP Officer are able to test your BAC by having you breathe into a DMV breath analyzer. In California, if you refuse to submit to a breath analyzer test or other similar test for measuring your BAC, such as a blood test, your driver’s license will automatically be suspended by the DMV.
Can I be charged withthis crime for driving after taking drugs?
Yes. If an individual operates a vehicle under the influence of drugs such as heroin, cocaine, marijuana, meth, or any other illegal substance, he or she can be charged with a crime. In addition, it is not only illegal drugs that can get you into trouble. Many prescription medications and some over-the-counter medications carry with them specific warnings that they may impair a person’s abilities and should not be used while operating a motor vehicle. Check the labels on all medications carefully. Do not drive if you are taking any medications that may be deemed incompatible with safe driving.
Should I retain an attorney?
Although you are not required to have an attorney, it is advisable to retain our experienced criminal defense lawyers if you have been placed under arrest or charged with a DUI. The California laws are strictly enforced and our experienced attorneys can help protect your rights. Our chances of successfully making defense arguments or finding mistakes that may have been made in your arrest are much greater since we have over 35 years of experience handling these cases.
If you are faced with this charge selecting an attorney based upon the “price” you pay is not a well thought out plan, as everyone knows “you get what you pay for.”
It is fair to say if you pay less, the attorney is likely to perform less work. Call now to speak with one of our personal DUI Lawyers.
Call 7 days a week at any hour or send an e-mail now.