June 12, 2015

I Got a DUI, WHAT NOW?!?

by Silva

signal-1-DUI-checkpoint

Why did I not just call UBER. I have the App. I feel like a failure. I just shouldn’t have been driving.” As an attorney I hear this lament a lot in many different ways and languages.

For anyone who gets a DUI (Driving Under the Influence), the prospect of a criminal record for drunk driving seems like a nightmare.  The fact of the matter is that a DUI arrest does not discriminate.  Doctors, lawyers, actors, actresses, nurses, teachers and yes even police themselves can and do get arrested for DUI.  The crime does not make you a bad person–it’s a mistake, and if you or someone else did not get hurt, then you should consider yourself so lucky.

If you are arrested with a DUI, there are some important things to keep in mind.  First, DUI can be defended–and just because you are arrested, does not mean you are guilty.  There is a myth that one cannot fight a DUI offense, but the fact is you can–with a skilled and knowledgable attorney who asks the right questions and requests the right information. 

What To Expect–The DMV 

First, it is important to realize that in order to fight a DUI, you just do not fight in Court, you also must defend your driving privilege with the Department of Motor Vehicles.  When you are arrested with a DUI the officers’ practice is to take away your physical license and give you a paper license which is temporary and good for 30 days.  What is important to know is you have TEN days to request a stay of suspension and have an administrative review of your DUI.  All this entails is having your lawyer request the review within 10 days of your arrest.  At the review, the DMV hearing officer acts as the Judge and the prosecutor, and just like a Court, your lawyer make arguments.  These arguments are limited, however to only three issues (1)) was there probable cause to stop your car (if not, case dismissed); (2) was your arrest lawful (if not, dismissed); and (3) were you DRIVING with a blood alcohol level of .08 or higher.  This third area is the most technical–officers MUST test you within 3 hours of arrest and follow strict standards once they start their investigation.  A skilled attorney will be able to determine this once he or she sees the police report and requests the necessary information.

 After the DMV hearing, one usually must wait a few weeks for the hearing officers findings.  If your lawyer was able to show any of the 3 issues above were not shown, your license is returned.  If however you lose the hearing your license is suspended for one month–and then you may immediately apply for a restricted license.  After five months, if you provide DMV proof of insurance, completion of your alcohol program (we will discuss later in this blog), and of course a reissue fee–you can get your driving privilege restored.

 What To Expect–The Court 

A first time DUI is filed as a misdemeanor charge if there is no death or serious injury.  At the arraignment, you enter your plea (guilty or not guilty) and your lawyer can even make that appearance without you being present.  Clients always ask why a DUI is filed as two charges.  One is driving under the influence, regardless of your blood alcohol level, if it can be shown you were driving under the influence you could be convicted of this count–regardless of how high or low your alcohol concentration was.  This charge is commonly known at 23152(a)–and you may see this charge on your citation.  The second charge is 23152(b)–driving while your blood alcohol content is over .08.  This is where the breath test, blood test or urine test comes in.  At this stage a good attorney will ask the District Attorney for additional materials in order to assess your cases’ strengths and weaknesses.  You have the right to trial or to accept a plea bargain.  Whether you plea to one of the charges or are convicted via jury trial, the punishments are usually the same.  (1) you must attend and complete a 3 month alcohol program.  This is the most important aspect in getting your license back.  The program must be court approved and is usually quite informative; (2)  fines up to $2500, or you can request community service or labor instead of paying this fine, or make incremental payments; (3) three years of informal probation (no probation officer).  This is the way the Court makes sure you complete your program, pay your fines, and not get arrested again for DUI.  (4) 2-10 days county jail–but usually jail is not imposed for a first time offense.  The Court will give you credit for any time you spent in county jail.

It is important to note getting arrested for DUI does not mean you are a bad person–it is defendable, and even if you think the arrest was warranted and you knew better–you should still have a skilled attorney review your case and assess whether you can fight the case or get a lesser charge with less consequences.  Either way be safe and arm yourself with knowledge.  When you think you may be feeling the effects of alcohol or drugs, don’t drive.  But if you do get arrested for DUI, hire someone you trust and someone who knows the ins and outs of fighting a DUI.