Call today for a free consultation: (877) 977-3844

DUI Defense

/

DRIVING UNDER THE INFLUENCE:  COURT AND DMV RAMIFICATIONS

AN OVERVIEW

This page is dedicated to the legal defense of Driving Under the Influence of Alcohol or Drugs in California and the ramifications that a Driving Under the Influence arrest will have on your driving privileges.  Nicholson Law Office attorneys are experienced in the art of defending a DUI charge in California.  Our attorneys have an aggregate of over 50 years experience of practicing law in California.

DUI convictions have a serious impact on your rights to operate a motor vehicle in the State of California.  Do not risk losing your driving privileges without legal representation.  In addition to the proceedings that take place in a court of law, you must request an administrative hearing with the Department of Motor Vehicles PROMPTLY.

**YOU MUST REQUEST THE DMV HEARING WITHIN 10 DAYS OF YOUR ARREST**

DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

(VC § 23152(a)/(b); 23153(a)/(b); 23103.5; 23140; 23154)

I am offering you a free initial consultation so we can discuss the following:

  • Court procedures and penalties (including DMV procedures, penalties, CDL suspension);
  • Criminal Court and the DMV are two entirely separate systems and each process can independently result in the suspension of your driving privileges;
  • Effect of a DUI on employment, state licensing or certifications, travel to and from foreign countries, and immigration status;
  • Costs of retaining this law firm; and
  • Possible defenses and how to minimize the impact of a DUI arrest on your life.

You (or your attorney) will be dealing with both the DMV and the courts following a DUI arrest.  The key is to know that these two actions are SEPARATE and do not influence each other.  It is not unusual for the court aspect of your case to be dismissed or significantly reduced while the DMV still suspends your driving privileges.  Concomitantly, the defense of the license suspension may be successful and result in a “set aside” of any action by the DMV, while the court actions still proceeds and may result in a conviction that can trigger a license suspension despite winning the DMV APS Hearing.  As you can see, while the courts and the DMV are separate, it is important to know intricacies of the system to achieve the best possible outcome in your case.  Please be aware that the Public Defender, and many private attorneys, do not provide representation or assistance as it may pertain to the DMV portion of your case.  Nicholson Law Office attorneys are experienced in handling all aspects of DUI cases.

CHARGES

Driving Under Influence of Alcohol or Drugs

VC § 23152(a).  It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

VC § 23152(b).  It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

Note:  These are the standard charges that stem from a Driving Under the Influence of Alcohol or Drugs arrest.  The charges may differ depending upon your prior arrest record, if any, prior DUI convictions, and/or whether or not an injury was suffered as a result an accident while Driving Under the Influence of Alcohol or Drugs.  Additional enhancements that may be charged are listed in the penalty enhancement section below.  Please contact our office for more specific details that may pertain to your case.

PENALTIES

FIRST OFFENSE PENALTIES:

JAIL:

Minimum of 48 hours, 48 of which must be served continuously, maximum of 6 months.

FINE:

Minimum of $390.00 (plus mandatory penalty assessments) to maximum of $1,000.00 (plus mandatory penalty assessments).  Generally, the fines, penalties, and court assessments reach a maximum of $2,400.00.  These fines can be put on a payment plan through the courts, if requested.

LICENSE:

Upon suspension of driving privileges and after serving the first 30 days of the suspension time period you may obtain a restricted drivers license.  An attorney at Nicholson Law Offices will personally walk you through the system in order for you to be eligible on the earliest date possible, should you be suspended as a result of the court conviction or DMV action.

 

TREATMENT PROGRAM:

Mandatory attendance at alcohol/drug treatment program. If blood alcohol count (BAC) was less than 0.15 percent, by weight, participation in the program must be at least 3 months or longer.  If BAC was 0.15 – 0.19 percent, or if the test was refused, participation in the program must be at least 6 months or longer.  If BAC was 0.20 or more, participation in the program must be at least 9 months or longer.

VEHICLE IMPOUND:

If the vehicle used in the violation is solely registered to the defendant, the vehicle may be impounded at the defendant’s expense for not more than 30 days. VC § 23594.

SECOND OFFENSE PENALTIES (ONE PRIOR DUI WITHIN THE LAST TEN YEARS):

These penalties apply to a conviction of V.C. Sec. 23152 if you have either:
(1) A separate conviction of V.C. 23152, or 23153, 23102, 23105 or 23106 which took place within ten years of the new offense or
(2) You have a new separate conviction of 23103 under 23103.5 which occurred on or after January 1, 1982, and within 10 years of the new offense.

JAIL:

Minimum of 96 hours to be served in two increments of 48 continuous hours to one year in jail. The two increments may be served non-consecutively.  Alternatively, minimum ten days to one year maximum in county jail.

FINE:

Minimum of $390.00 (plus mandatory penalty assessments) to maximum of $1,000.00 (plus mandatory penalty assessments).  Generally, the fines, penalties, and court assessments reach a maximum of $2,400.00.  These fines can be put on a payment plan through the courts, if requested.

LICENSE:

Suspended for 2 years or you may obtain a license with verification that proof of insurance has been provided to the DMV by an insurance company, the license is restricted to travel to and from work and within the scope of employment or attendance of alcohol or drug program for duration of program.   The restricted license is available only after 90 days of the suspension has been served and you have satisfied certain requirements.  An attorney at Nicholson Law Offices will personally walk you through the system in order for you to be eligible on the earliest date possible, should you be suspended as a result of the court conviction or DMV action.

TREATMENT PROGRAM:

Your participation would be required in either an 18-month or a 30-month treatment program approved pursuant to chapter 9, Part 2, of Division 10.5 of the Health and Safety Code. No credit may be given for any program activities completed prior to the date of the offense charged.

VEHICLE IMPOUND:

If the offense occurred within 5 years of a prior DUI conviction and if the vehicle used in the violation is solely registered to the defendant, the vehicle shall be impounded at the defendant’s expense for not more than 30 days, except in an unusual case when the Court finds the interest of justice would be served by not ordering impoundment.

THIRD OFFENSE PENALTIES (TWO PRIOR DUI’S WITHIN THE LAST TEN YEARS):

These penalties apply to a conviction of V.C. Sec. 23152 if you have either:
(1) Two separate convictions of V.C. 23152, or 23153, 23102, 23105 or 23106 which took place within ten years of the new offense or
(2) You have a two separate convictions of 23103 under 23103.5 which occurred on or after January 1, 1982, and within 10 years of the new offense.

Upon a third or subsequent conviction for the 23152, you must successfully complete an eighteen month alcohol program in order to be eligible for a driver’s license in the future.

JAIL:

Minimum of 120 days, maximum of one year.

FINE:

Minimum of $390.00 (plus mandatory penalty assessments) to maximum of $1,000.00 (plus mandatory penalty assessments.  Generally, the fines, penalties, and court assessments reach a maximum of $2,400.00. 

LICENSE:

Suspended for 3 years or you may obtain a license with verification that proof of insurance has been provided to the DMV by an insurance company, the license is restricted to travel to and from work and within the scope of employment or attendance of alcohol or drug program for duration of program.   The restricted license is available only after 180 days of the suspension has been served and you have satisfied certain requirements.  An attorney at Nicholson Law Offices will personally walk you through the system in order for you to be eligible on the earliest date possible, should you be suspended as a result of the court conviction or DMV action.

TREATMENT PROGRAM:

None required; however, DMV will not reinstate license until proof of completion of an 18 month treatment program.

FOURTH OFFENSE PENALTIES (THREE OR MORE PRIOR DUI’S WITHIN THE LAST TEN YEARS):

You are exposed to a State Prison sentence of up to 3 years.  Contact our office immediately for a detailed consultation.

FELONY OFFENSE PENALTIES: 

Contact Nicholson Law Offices to have a free consultation with an attorney immediately. 

ENHANCING FACTORS THAT MAY BE CONSIDERED BY THE COURT WHEN ASSESSING THE PENALTY TO BE IMPOSED IN AN INDIVIDUAL CASE BY CASE BASIS:

Drunk Driving penalties in California are set forth by statute and can be incredibly complex. The range of possible sentences is determined by the basic statute, with modifications for such things as:

  • Having a prior conviction within ten years
  • Speeding 20 mph over the limit
  • Having a child under 14 in the car
  • Having a blood-alcohol reading over 0.15% and/or 0.20%
  • Refusing to submit to chemical testing
  • Accident or driving pattern resulting in injury

Within the range, the actual sentence in a drinking and driving case will be affected by:

  • The facts of the case
  • Any policies of the local court and prosecutors
  • The weaknesses in the case uncovered by the defense attorney
  • The reputation of that attorney

PROBABLE CAUSE

As in any criminal prosecution, probable cause to stop the driver of a motor vehicle may be an issue in a drunk driving case.  Lacking sufficient probable cause, any and all evidence obtained as a result of the stop, except observations of driving, must be suppressed.  Assuming that the grounds for the stop are determined to be legally sufficient, the prosecution must then justify the investigatory detention.  Again, if there are insufficient objective and articulable facts upon which to warrant detaining the driver beyond a temporary stop, then a motion to suppress all subsequently-obtained evidence, such as chemical test results, should be made.  If successful, this will suppress all evidence but observations and statements made during the brief stop. Finally, if there existed probable cause to detain the individual for a field investigation (field sobriety tests and brief questioning) there must still exist a considerably greater amount of evidence of intoxication to warrant an arrest. (There must also exist the authority to arrest, involving the question of whether the offense was committed in the officer’s presence.)  Without such cause, evidence obtained after the arrest, consisting in most cases primarily of the blood-alcohol test or refusal, is subject to suppression.

In essence, this usually means in a DUI case that the prosecution must establish a considerably escalating amount of evidence at each of the three stages-stop, detention, and arrest.  Lacking the sufficient quantum of evidence at any stage results in suppression of all evidence obtained thereafter.

There are, of course, thousands of federal and California cases interpreting in general terms what constitutes sufficient probable cause to justify stopping, detaining, and arresting a citizen. Certainly such authority should be used in a motion to suppress.  It should be clearly understood by defense counsel, however, that a “double standard” appears to exist when it comes to drunk driving situations.  Put another way, both the trial and appellate courts often prove more willing to find probable cause in DUI cases than in other types of offenses.  Therefore, it is imperative that your attorney be fully up to date on the current state of the law and practice in order to achieve a dismissal, if appropriate in your case, through the use of a pre-trail motion.

FREQUENTLY ASKED QUESTIONS

Is it Possible to Win a California DUI Case?

Yes.  At Nicholson Law Offices, we have an extensive track record of fighting and winning DUI cases.  Frequently, we are able to not only possible to get DUI charges reduced, but in some cases we are able to get them dismissed entirely.  A number of DUI defenses have proven successful in prior cases including arguing constitutional violations, challenging blood alcohol concentration measurements, and defending the case where the police officer never witnessed the operation of the vehicle.
One of the very first things that we do in a DUI case is to obtain and thoroughly review the police reports, commonly referred to as discovery, for inconsistencies and lapses in procedure. With Nicholson Law Offices, more than one attorney will review your case to ensure accuracy and the best possible quality of representation for your case.  We also request complete disclosure regarding the device used to test your blood alcohol level, the personnel involved in the maintenance and operation of the device including their certifications, and the lab certification.  These steps are imperative to engage in a full comprehensive evaluation of each individual case.

Can California DMV Administrative Hearings be Won?

Yes.  We regularly receive notices of “set aside” following the DMV Administrative Per Se (APS) Hearing.  A “set aside” means that the DMV will not be taking an action to suspend or restrict your driving privileges as a result of the APS hearing.  There are no additional penalties imposed as a result of presenting a defense at the APS hearing, so there is no reason not to put forth the best defense at these hearings.  Often times, a “set aside” is granted by the DMV even in cases where it may have appeared initially that such an outcome was a long shot.  An experienced DUI attorney will greatly increase the likelihood that you will receive a “set aside” as a result of your APS hearing.  We have won hundreds of DMV hearings, I challenge our competitors to make the same representation.

What are the costs to retain an attorney?  Is there any way to know what the attorney fees will be for the entire case?

Yes.  We will quote you a flat fee to handle your case.  There are no hidden fees or charges associated with the flat fee and we will clearly state all the services that covered by the flat fee.  It is our goal to make sure that you know exactly what services are rendered and what your fees will be so that you know exactly what you are getting for your money when hiring an attorney.  Please call our offices for a free consultation and a flat fee quote.

Please contact our offices with any additional question or concerns that you may have or for a free consultation.