DUI BLOG

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.

Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?

It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.

For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.

The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.

If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.

Stephen Miller, 40, of Pennsylvania was arrested and charged early last month with two counts of driving under the influence, two counts of endangering the welfare of children and various traffic citations. Miller championed Pennsylvania’s “Kevin’s Law,” the name of which honored his son who was killed by a hit-and-run driver suspected of drunk driving. The law increased the penalties for hit-and-run drivers in fatal accidents.

Miller’s son, Kevin, was killed in 2012 after being hit by a driver who fled the scene. It was suspected that the driver, Thomas W. Letteer Jr., 26, was driving under the influence at the time, however never faced charges of DUI because he was not caught until much later.

On June 12^th, Miller was stopped because law enforcement spotted his vehicle traveling at night without headlights and unlit tail lights. At the time of the stop, Miller had this two other children in the vehicle, one of which was Kevin’s twin. It was later determined that Miller’s blood alcohol content was more than three times the legal limit at 0.27 percent.

Miller is set to appear on August 17^th.

In addition to the penalties for the DUI, Miller is facing 100 hours of mandatory community service and a fine of at least $1,000 under Pennsylvania law.

California, on the other hand, is not as forgiving.

In California, if you are charged with a DUI under California Vehicle Code section 23152 and at the time of driving, you have a minor under the age of 14, you also face an enhancement to the DUI charge under California Vehicle Code section 23572.

In addition to any penalties given for a DUI conviction, if the enhancement is found to be true, the person faces an additional and consecutive 48 hours in a county jail for a first DUI conviction, 10 days for a second DUI conviction, 30 days for a third DUI conviction, or 90 days for a fourth or subsequent misdemeanor DUI conviction.

For other reasons, I’ve said that it is extremely important to hire an experienced California DUI when facing criminal charges. The same absolutely holds true for a California DUI charge with a child endangerment enhancement.

If an experienced California DUI attorney can successfully defend against the underlying DUI charge, the child endangerment enhancement cannot stick nor can a person be punished under it. This is true if the underlying California DUI charge is found to be untrue by a jury after a trial, the charges dismissed, or if the charge is reduced to what is known as a “California wet reckless.”

It should also be noted that drunk drivers who have children in the vehicle at the time of driving can also be charged under California Penal Code section 273(a), otherwise known as California’s child endangerment law. Child endangerment can be charged as either a felony or a misdemeanor when a person places a child under the age of 18 in a situation where his or her heath or welfare can be endangered. If charged with child endangerment, a person faces up to a year in county jail for a misdemeanor and up to six years in a California state prison for a felony.

If a person is convicted of a DUI and child endangerment under California Penal Code section 273(a), they, however, cannot face the DUI enhancement under California Vehicle Code section 23572.

In April of 2015, Leonardo Morales was driving his Chevy Tahoe and exiting the 55 freeway in Costa Mesa when he collided into a tree on the off-ramp. According to California Highway Patrol, two officers patrolling the area spotted the flames that erupted immediately following the collision.

The officers who spotted the flames called in to dispatch for other officers to respond. Responding officers Daryl Hansend and Timothy Montoya found Morales on the floor, 22-year-old Kathy De Rosa in the front passenger seat, and a 2-year-old “running around and crying and pointing at the car,” said CHP Officer Florentino Olivera.

As the officers were attempting to extract De Rosa, they heard the cries of a baby on the floorboard of the rear driver’s side seat. The children, whose parents were Morales and De Rosa, were taken to Children’s Hospital Orange County. Morales and De Rosa were taken to Western Medical Center in Santa Ana.

Morales was later determined to have alcohol in his system and was subsequently arrested.

Both Morales and De Rosa had prior DUI convictions. In 2014, Morales pleaded guilty to misdemeanor driving under the influence and driving on a suspended license. In 2015, De Rosa pleaded guilty to misdemeanor driving under the influence, misdemeanor driving with a blood alcohol content of 0.08 percent or higher, and misdemeanor child endangerment since children were present in the vehicle when she was under the influence.

Last month, Morales pleaded guilty to driving under the influence of alcohol causing injury, driving with a blood alcohol of 0.08 percent or more causing injury, and two counts of child abuse and endangerment, all felonies. Additionally, Morales admitted sentencing enhancement allegations that he inflicted great bodily injury and great bodily injury on a child younger than five-years-old.

Morales was sentenced to seven years in prison just last week.

Unfortunately for Morales, a DUI may be elevated, and was in his case, to a felony when the DUI leads to the injury of another under California Vehicle Code 23153.

Although Morales was sentenced to seven years, he was originally facing two, three, or four years in a California State Prison, an additional and consecutive three to six years in prison for each other person who suffered great bodily injury, a “strike” on his record under California’s Three Strikes Law, up to $5,000 in fines, and 18 or 30 month DUI program, restitution to the victim or victims, a Habitual Traffic Offender (HTO) status with the California DMV for three years, and a five year revocation of driving privileges.

DUI with injury can also be charged as a misdemeanor. Although it was highly unlikely in Morales’s case given the facts, it is possible. If originally charged as a felony, alternatively a plea deal could involve reducing the charge to a misdemeanor. As a misdemeanor, the penalties include informal summary probation for three to five years, up to a year in county jail, up to $5,000 in fines, a three, nine, 18, or 30-month DUI program, restitution to the victim or victims, and a one or three year suspension of driving privileges.

For this reason, it is extremely important to hire a competent and experienced California DUI attorney to negotiate the best plea deal possible or, if the prosecutors unwilling to budge, fight the case through trial and achieve a not guilty verdict.