DUI BLOG

When a person pleads guilty to a first-time California DUI, the statutory minimum of a sentence that they’re facing is three years of summary probation, $390 plus penalties and assessments, and a three month DUI program called AB 541. However, when the person’s blood alcohol content at the time they were driving was particularly high, typically higher than a 0.14, the prosecutor and/or court might seek additional penalties.

The first of the additional penalties is a DUI program longer than the AB 541 three month program.  AB 762 is a six month program and AB 1353 is a nine month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18 month program called SB 38, but it is reserved for people who have been convicted of a California DUI within 10 years after having been convicted of a previous DUI.  

Another additional penalty that a person faces after a California DUI conviction is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

While panels are conducted different in each county, they are generally offered at different times and locations throughout any given month. Registration is usually required at least a month in advance and generally costs about $25 to $35. Cash or money order is usually required at the time of attendance. The silver lining, if there was one to having to do the Victim Impact Panel, is that unlike other increased penalties, it is only a few hours on only one day.

The prosecutor might also offer a Hospital and Morgue program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may have to serve jail time. Whether a court and/or a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A person with an elevated BAC may face one, all, or a combination of any of the abovementioned increased penalties. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.

On Tuesday of last week, the California Senate passed a new bill that would require all people convicted of a California DUI to have an ignition interlock device installed on their vehicle. Senate Bill 1046 will now be sent to the California Assembly for consideration.

Under a current pilot program here in California, only four counties require the installation of an ignition interlock device following a DUI conviction; Alameda, Los Angeles, Tulare, and Sacramento. A first-time DUI requires installation for five months upon eligibility to drive either with a restricted license or a full reinstatement of driving privileges. The pilot program also requires an IID for 12 months for a second-time DUI, 24 months for a third DUI, and 36 months for a fourth or subsequent DUI.

If you don’t already know, an ignition interlock device is a breathalyzer that is installed into the dashboard of a person’s vehicle. The device must be blown into before the engine can be started, but only if the breathalyzer does not detect alcohol on the breath sample. Once the vehicle is started, the breathalyzer must be blown into at random times throughout the drive.

The proposed law was introduced by Senator Jeremy Hill and, not surprisingly was overwhelmingly praised by Mothers Against Drunk Driving (MADD).

“MADD is grateful to the Senate for moving this life-saving bill forward," said MADD’s National President, Colleen Sheehey-Church. "In the coming weeks, MADD will be visiting Assembly members and calling on them to quickly pass SB 1046 to protect residents and visitors from this 100 percent preventable crime."

MADD released its “Ignition Interlock Report” compiled from data collected during the pilot program which has been running since 2010. According to the report, ignition interlock devices have prevented more than one million drunk driving attempts in California with about 125, 000 of those attempts involving a blood alcohol content of 0.08 percent or more.

However, the California DMV is also compiling a report on the effectiveness the ignition interlock devices have had on preventing drunk driving.

In fact, the California DMV previously found that such a law would not prevent people without ignition interlock devices from driving drunk. Additionally, there are ways to circumvent the requirement of providing a clean breath sample before starting a vehicle.

The cost of the interlock device can run approximately $75 to $100 for installation, about $75 per month, and often additional fees for maintenance and calibration. This is on top of the cost already associated with a California DUI conviction which can run upwards of $10,000.

If passed, first time offenders would be required to install the devices for six months, a year for a second offense, two years for a third offense and three years for a fourth or subsequent offenses.

The will be heard by several Assembly committees, including the Committee on Public Safety, and must be approved by the Assembly before it can be considered by California Governor Jerry Brown.

California is a destination for many people, a destination which offers many locations and opportunities to imbibe some alcoholic refreshments. When an out-of-state driver does partake in enjoying some alcoholic drinks, they sometimes make the mistake of getting behind the wheel and are arrested for a California DUI. When that happens, often is the question: How will their out-of-state residency affect the outcome of the DUI case?

Although the person may have an out-of-state driver’s license, they will still be subject to the DMV’s administrative action to determine whether their driving privileges in California should be suspended. This is the same “admin per se” hearing that California drivers are subject to following a DUI arrest and will be conducted in much the same manner. A loss of the hearing or a conviction will trigger a suspension of that person’s California driving privileges. Whether the driver’s home state recognizes a suspension following a loss of the California admin per se hearing or a DUI conviction will depend on the state’s reciprocity with California under the Interstate Driver’s License Compact.

Fortunately for most misdemeanor DUI charges, the defendant does not need to be present at the pretrial hearings of a DUI case. If a person decides to take a plea deal, they may need to be present for the plea. Some judges, however, will allow the out-of-state driver to enter a plea without needing to be present as long as the person’s attorney reviews the documents with the driver, the driver signs the documents before a notary public, and the attorney provides the documents to the court.

If a person is convicted of a California DUI, many of the conditions of probation typically associated with a California DUI conviction require a person to be present in California. However, a skilled DUI attorney can negotiate a plea deal that does not require an out-of-state driver to come back to California to fulfill the conditions of probation.

The California Vehicle Code requires that a person convicted of a California DUI complete an approved DUI program, the length of which depends on the individual facts of the case; three-month program (AB 541), six-month program (AB762), nine-month program (AB 1353), and an 18-month program for a second-time DUI or more (Sb 38). These program are only approved and offered in California. For out-of-state drivers, the judge must allow either an out-of-state or online program equivalent to whatever program the driver would have to take if they were in California.

While the out-of-state driver will likely be allowed to participate in an out-of-state or online program, the California DMV will not recognize a non-approved program when reinstating a person’s driving privileges. The DMV requires the completion of an approved DUI class before it will reinstate a person’s driving privileges. However, following the suspension, the out-of-state driver can petition the California DMV for a “set-aside” of the suspension notwithstanding their inability to complete an approved DUI program.

Other conditions typically required following a California DUI conviction may or may not be offered in other states. Mothers Against Drunk Driving (MADD) Victim Impact Panels are offered in many states, however may be limited in where in the state they are offered.

Many states offer their version of California’s “Hospital and Morgue Program,” which is sometimes required following a California DUI conviction, although it may differ in form and length.

If it is impractical to require an out-of-state driver to complete either MADD’s Victim Impact Panel or the Hospital and Morgue Program, the prosecutor and judge may be willing to substitute a number of Alcoholics Anonymous (AA) meetings for the programs since AA meetings are offered in most municipalities across the United States.

Being an out-of-state driver does complicate the process, but it doesn’t mean that the driver’s rights are forfeited. It takes a skilled California DUI attorney to ensure that out-of-state drivers are treated fairly by the California court system.

We live in a digital era where everything, literally everything, can get posted for the world to see. Social media outlets like Facebook, Snapchat, and Twitter can let anyone know where you live and work, who you’re associated with, and what you’re doing at any given moment. There are, however, somethings that we don’t want the world to know about and that we deliberately withhold from social media, like a DUI conviction.

Although criminal convictions are public record, one would not expect anyone in the world to have access to that information without taking the trouble to actually find it. And why would they?

Well now in New Mexico, they won’t have to. Thanks to the ever hyper-vigilant organization, Mothers Against Drunk Driving (MADD), information on a person’s DUI conviction, sentence, and judges whom they believe are too lenient on the DUI offenders will be posted on the social media website Twitter for all of the world to see.

New Mexico Governor, Susana Martinez announced earlier this month that the state will pay MADD staffers to attend DUI hearings and publicize the information in tweets. How much money, you might ask. MADD was granted a whopping $800,000 contract for this program of public shaming.

“Too many lives have been shattered by drunk drivers, and too often our justice system fails our families by going easy on the criminals,” Martinez said at a news conference in Albuquerque.

The number of people killed in drunk driving related accidents last year in New Mexico decreased by 28 percent, marking a 36-year low in a state that has long struggled with high DUI rates, officials said last month.

New Mexico follows several municipalities that have taken to social media to shame DUI offenders. In March, I wrote a post on the Chesterfield Sheriff’s Office in Chesterfield, Virginia, who took to posting the mugshots of people who had been arrested for driving under the influence.

If you ask me, there are a number of very serious problems with this.

The first issue I have is what many have express about this program. Couldn’t New Mexico’s money be better spent elsewhere?

Second, there is the possibility that a program such as this could violate the privacy rights of those whose information is being posted. I can’t say one way or another without doing more legal research into the issue. Sure seems like an invasion of privacy though.

What’s more, it’s not out of the realm of possibility that posting this information will lead to retaliation by the public. It goes without saying that people have very strong feelings about people who have been convicted of DUI. Those feelings, if you ask me, have led to a disproportionate villainization and stigmatization of those who have been convicted of drunk driving. New Mexico could possibly be putting these people at risk of harm with this program.

Lastly, this program is likely to place political pressure on judges to give harsher punishments for DUI convictions when the facts of the case may not warrant it. It is within the judge’s authority to determine the punishment for a DUI conviction. It’s their job.

Democratic state Representative Antionio “Moe” Maestas correctly made the comparison that “[b]laming a judge for not enough conviction rates is like blaming [a baseball] umpire for not enough strikeouts.”

As you’ve seen in the previous post, it may not be too much longer before we see roadside oral swabs to test for the presence of marijuana and other drugs in addition to the current breathalyzer which tests for alcohol. The push for legislation targeting driving under the influence of marijuana comes at a time when recreation marijuana use in California may be legal in the near future.

Whether that day comes or not, law enforcement agencies throughout California are already on the lookout for DUI of marijuana. And when people get stopped and arrested on suspicion of driving under the influence of marijuana, one of the most common questions is: What are the penalties for a California marijuana DUI?

The mandatory punishment for a California marijuana DUI is the same to that of a DUI of alcohol. In fact, both are covered under section 23536 of California Vehicle Code which states, “If a person is convicted of a first violation of Section 23152 (DUI law for alcohol and marijuana), that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, not more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).”

In addition to the jail and fines mentioned above, the court will also place the person on informal probation for a period of at least 3 years, require a three, six, or nine month DUI education program and the DMV will suspend a person’s driving privileges for a period of six months for a first-time conviction. Second-time or more convictions will may bring an 18 month program and a longer DUI education program.

While these penalties are mandatory, there are other penalties which a judge may impose on a person who has been convicted of a DUI of marijuana. These penalties are the same as the discretionary terms of a DUI of alcohol sentence.

The judge may impose a Mothers Against Drunk Driving Victim Impact Panel which is a one-day lecture hosted by MADD where victims of DUI-related accidents speak about how driving under the influence has affected their lives.

A person might be ordered to complete a Hospital and Morgue Program. I think the name of this punishment speaks for itself.

A judge might order a person to complete a number of Narcotics Anonymous meetings as a condition or probation.

The penalties mentioned above apply even if the marijuana they had consumed was medical marijuana. The law against driving while under the influence of drugs, which is California Vehicle Code section 23152(3), prohibits driving while under the influence of illegal drugs as well as prescription drugs and medical marijuana.  

Lastly, it should be noted that it is also illegal to possess marijuana on your person or in your car under California’s Health and Safety Code and illegal to possess marijuana while driving under the California Vehicle Code. A conviction of either will add to any penalties received for a DUI of marijuana conviction. How much punishment, however, will depend on how much marijuana was in the person’s possession.