For most DUI cases in California the legal limit is .08. There are a few exceptions however. For a commercial driver this limit is reduced to .04 due to increased risk of injury presented by an intoxicated driver operating a commercial vehicle. For drivers under 21, license suspensions and DUI related penalties begin at .01 as it is illegal for persons under 21 to consume alcohol in the State of California. It also important to note that DUI charges can be based on ANY blood alcohol number. For example, a driver aged 25, could be arrested, charged and convicted of DUI in California with a BAC or .05, if the prosecutor is able to prove that the driver was “under the influence” at that level. Since alcohol effects everyone differently, California law allows the prosecutor to proceed under two different legal theories on a DUI. Under California Vehicle Code 23152(b), the prosecutor makes his or her case by proving that you were driving while .08 or greater. But under California Vehicle Code 23152(a) the prosecutor must only show that you were “under the influence,” which is defined by CALCRIM No. 2110, “A person is under the influence if a result of drinking alcohol and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”
This is a tricky one, let’s break it down. The prosecutor in a California DUI case must prove beyond a reasonable doubt that you were DRIVING while under the influence. This makes driving an essential element of the offense. But how does the law define “driving” in California? Driving has been defined as “volitional movement” in Mercer v. DMV (1991)53 Cal.3d 753. After Mercer, the California appellate court held that steering a moving car, even while someone else worked the gas and break, qualified as driving. In re Queen T.(1993) 14 Cal.App4th 1143. California prosecutors will sometimes use this theory to charge a passenger with DUI if the passenger is intoxicated and grabs the wheel during an argument or in an attempt to gain control of the vehicle for theft, to escape, etc. So while driving is required, driving does not necessarily mean sitting in the driver’s seat.
A second issue that often comes up in this context are cases where you may have actually been driving the car, but there were no witnesses to the driving. Many people mistakenly believe that because they were not CAUGHT driving, they cannot be charged with DUI. This is not true, prosecutors can and do charge California DUI cases every day against people who were not caught in the act. This comes up frequently in cases where there has been an accident and law enforcement or other witnesses arrive after the driving took place, or in cases where a person is found asleep or passed out behind the wheel. In this scenario, the prosecutor will still need to prove beyond a reasonable doubt that the person was driving the car, but because they do not have a witness to the driving, they will attempt to do so using circumstantial evidence. For example, if you were located behind the driver’s seat in the vehicle after an accident, this is circumstantial evidence that you were driving at the time of the accident. Other factors would include whether or not you were the registered owner, whether or not the vehicle is still running, where the keys were located, whether the driver’s seat was adjusted to the right position for a person of your size and stature and your own statements or admissions.
If you are facing a DUI case that does not include a percipient witness who can testify to driving, you should speak to an experienced DUI attorney as soon as possible to determine whether or not you have a viable “no drive” defense. This defense is often overlooked by inexperienced DUI attorneys and in many cases, it provides a better chance of success at trial than contesting the issue of intoxication.
Yes. You can be arrested, prosecuted, and even convicted of DUI in California even if you refuse the breathalyzer test. There are several ways this can happen. Most common, the police will obtain a warrant, known as a McNeely warrant, after you refuse the test. The warrant will allow the police to do a “forced blood draw” which is exactly what it sounds like. If the order is lawfully obtained, the order will authorize the police to use a reasonable amount of force to restrain you and obtain a blood sample to determine your level of intoxication. Even if the police do not obtain a blood draw, you can still get a DUI after refusing a breathalyzer test. The prosecutor could proceed to trial by introducing other types of evidence to show that you were driving under the influence. This could include field sobriety tests, your driving pattern, a traffic accident if one occurred, the officer’s observations of your objective symptoms and or the testimony of a DRE (drug recognition expert) or other qualified expert to provide opinion testimony as to your level of intoxication at the time of driving.
If you are able to beat your DUI case or have it reduced, you will of course avoid jail. If you plead guilty or if you are convicted at trial, it will depend on the specific DUI code sections for which you have been convicted. The law in California states that some DUI charges carry mandatory jail terms while others are discretionary. For mandatory jail terms charges, the Judge must impose at least the minimum sentence required by the law. For discretionary jail terms it is up to the Judge whether to give jail time as part of the sentence. An experienced DUI lawyer can help increase the chance that you will receive alternative sentencing such as rehab programs, DUI court, work release, home confinement, community service and Caltrans. The biggest factors that will contribute to increased sentencing in a DUI case are:
1. Injuries:
If your DUI case involved an accident and injury or death to a victim, your penalties will be substantially increased. Even a first time DUI could carry a lengthy prison term in this scenario. That being said, your case may also have good opportunities for the defense that could allow us to get your case reduced or dismissed. So while the stakes are higher in cases with injuries or death, there is never a guarantee that you will be sentenced to jail.
2. Prior Convictions:
If you have been convicted of DUI previously, especially if within the last 10 years, your prior convictions will be used to enhance your sentence.
3. High BAC:
The legal limit for most DUI cases in California is .08. The higher your reading is above the .08 cutoff, the more severe your penalties are likely to be. Prosecutors will often request jail time, higher fines, longer DUI classes, or longer periods of probation based on this factor.
4. Other Aggravating Factors:
The potential list of aggravating factors is endless but the most common factors that lead to increased likelihood of jail time in California are having a child in the car under the age of 14, refusing to submit to a chemical test, speeding while DUI, and driving under the influence of drugs or the combined effect of drugs and alcohol at the same time.
While all DUI cases involve the potential for license suspension, the actual length of suspension will vary greatly from case to case. Factors considered are whether it’s a first conviction or a multiple offender, whether or not injuries are involved, whether or not you refused a chemical test, your age, your license status prior to the DUI, and your driving record. California law was recently amended to allow many drivers to reclaim a license much faster than they could in the past after a DUI case. These new laws allow many drivers to continue driving even after a DUI conviction by installing a breathalyzer device known as an IID or Ignition Interlock Device in your car. The key to minimizing the licensing penalties in a DUI case is having a lawyer who understands the complex set of rules imposed by the court and DMV in DUI scenarios. After a DUI case it is common for the driver to receive 5 or 6 different letters from the California DMV with varying penalties and start and stop dates for the suspension. None of the letters include clear instructions regarding the bottom-line status of your license and none of the letters detail the process for reclaiming your license as quickly as possible. This is where your lawyer plays an important role. Translating DMV speak into English is a critical skill that your lawyer must possess for you to have the best chance at protecting your license. If you have a question about the specific license penalties, you will face in your DUI case please contact us right away for a free case evaluation.
California DUI law does provide for a restricted license which would allow you to continue driving to work in some DUI scenarios. This does not apply to all DUI cases and in some cases better alternatives such as an Ignition Interlock Device restriction may be available.
If you are convicted of a DUI in California you will be ordered to install an Ignition Interlock Device or IID in your car as part of your sentencing. In the past, the law only an IID for cases involving multiple convictions such as a 2nd or 3rd time offender. Then the law changed to require the IID for all DUI offenders in 4 pilot or test counties within the state. Now the law requires the installation of an IID for every driver with a DUI in the state of California. The only way to avoid the installation of the IID is to have your case dismissed, be found not guilty at trial, or negotiate a plea bargain to a reduced charge (a “non-DUI” plea).
Yes. If you have a prior conviction, your penalties will increase on the second DUI. Generally speaking, the shorter the amount of time between the first conviction and the second conviction, the greater the increased penalty. For example, Jane Driver was convicted of her first DUI in 2018, and in 2020 she is convicted again. John Driver was convicted of his first DUI in 2012 and in 2020 he is convicted again. All other factors being equal, we would expect Jane’s sentence to be higher because she reoffended in two years, while John reoffended after 8 years. Under California sentencing laws, if the second DUI is within 10 years of the first conviction, mandatory sentencing must include jail time and an 18-month DUI program. If the second DUI is more than 10 years after the first, jail time is still possible, but it is no longer mandatory under the code.
The minimum base fine for a DUI charge in California is $390 plus penalty assessment. Penalty assessment is like a tax that multiplies the fine. In addition to the fine plus penalty assessments, the court will also add various fees. These fees can vary from court to court but the average DUI fine in California is a little over $2000.
The cost of ignition interlock in your California DUI case will be determined primarily by the length of time that you are required to have the device installed. Most California IID companies will charge between $75-$125 per month for the device. Ignition Interlock Devices or IIDs can be obtained from any licensed vendors in California, but the devices themselves must be manufactured by one of companies on this list approved by the State of California: https://www.dmv.ca.gov/portal/vehicle-industry-services/occupational-licensing/occupational-licenses/breath-alcohol-ignition-interlock-device-baiid-manufacturer/ignition-interlock-device-iid-list/
The cost of your DUI class will depend primarily on which DUI class you are required to complete. For example, drivers who are able to have their DUI charge dismissed as part of a plea agreement to a reduced charge or wet reckless can complete a 12-hour course also known as SB1176. This course will cost approximately $300. California DUI classes for a first offender include a 3-month program known as AB541 which runs about $800, a 6-month program known as AB762 which runs about $1200, and a 9 month program known as AB1353 which runs about $1700. Those with multiple convictions will generally have to complete the 18-month program known as SB38 with an average fee of $2300. A 30-month program, SB1365 is also used in some scenarios at a cost of nearly $3000.
The average fee for an experienced California DUI lawyer on a first-time misdemeanor DUI case with no aggravating factors would range from $3000-$5000. Fees vary based on the amount of experience and success that each lawyer has achieved as well as how the fee agreement is structured. Important issues to consider are whether the agreement is hourly or a flat fee retainer, and what costs or services are included with that fee and what costs and services will require further payments. Misdemeanor DUI cases with prior convictions, accidents or other aggravating factors will generally require a retainer of $5000 or more. Felony DUI cases generally require a retainer fee of $10,000 or more due to the complexity of felony criminal procedure and the potential for significantly higher sentencing in felony cases.
This will depend on two main factors. One is the result of your DMV or Admin per Se Hearing and the second is the result of your case in court. If the DMV rules against you, or you are convicted in court, or both, your insurance rates will increase substantially. In fact, increased insurance premiums subsequent to a DUI are often the single highest financial burden associated with a DUI case. For example, let’s assume our hypothetical friend Jane Driver gets a notice from her insurance company that her rates are going up $107 a month after her DUI case. At first glance, that doesn’t sound so bad. The problem here is the length of time that she will face the increased premium. In California, most insurers will charge increased premiums for 7 years! If we do the math, that’s $1284 a year, or a staggering $8988 over the course of 7 years. With this example in mind, it’s easy to see how getting your DUI charge reduced or dismissed can save you a ton of money.
There are countless ways to successfully defend a California DUI case. Here are 7 of the most common situations and the related important details that every driver should know in order to beat a DUI charge:
1. If you were not driving
If the officer did not personally observe you driving or the DMV or criminal prosecutor did not subpoena any witness to establish that you were, in fact, driving the car under the influence, you may have a good chance of winning the hearing.
2. If you were arrested at an illegal DUI checkpoint
If you were arrested at a DUI sobriety checkpoint that does not conform to the strict legal requirements under California law, the arrest may be deemed illegal. This means that even if you were driving under influence, if the checkpoint does not pass constitutional muster under Ingersoll v. Palmer (1987)43 Cal.3d 1321, your arrest was illegal, and you have a good chance of winning the DUI hearing.
3. If the officer did not have probable cause
If the officer did not have reasonable suspicion to detain you In re Tony C. (1978) 21 Cal.3d 888, or probable cause to arrest you People v. Miller (1972) 7 Cal.3d 219, this could make your arrest null and void. Under the 4th amendment, we are free of unreasonable search and seizure and evidence obtained in violation of this rule may not legally be presented as evidence because it is deemed “fruit of the poisonous tree.” Wong Sung v. United States (1963) 371 U.S. 471.
4. If the officer did not conduct a proper 15-minute observation period
If the officer does not strictly adhere to California’s Title 17 regulations, which state how breath and blood tests must be administered, collected, stored and analyzed; then the results of the breath test might not be valid or may not even be admissible in court.
One of the title 17 regulations is that the officer must observe the suspect for at least 15 minutes prior to conducting a breath test. This is to ensure that the suspect does not vomit, eat, drink, smoke or regurgitate anything else that may affect the results of the test. The failure to conduct this observation is common in California DUI investigations.
5. If the police failed to properly maintain the breathalyzer
Title 17 also sets forth a long list of rules for how breath testing equipment needs to be maintained, checked for accuracy, and calibrated in order to be admissible evidence in a California court of law. Properly defending a DUI case involving a breathalyzer involves obtaining these records known as “breath logs” to inspect for any potential errors or maintenance issues that could affect the validity of the breath test results.
6. If your lawyer knows the basics of forensic toxicology
This is the dirty little secret of DUI law. The prosecution will try to present their case as a rock-solid science-based set of facts. But the reality is that the science of toxicology generally favors the defense. If your lawyer asks the right questions, the police and the witness from the county crime lab will have to admit that most of their testimony is based on assumptions and averages. The driver in any specific case is never average. So, if you change the values in the assigned averages or point out the assumptions and challenge them, you will be amazed how shaky that rock solid set of facts looks after further analysis. After effective cross examination, the prosecution’s expert will often change their opinion from “it’s a sure thing” to “maybe” or “could be.”
Once you have selected the right lawyer to handle your DUI case, you will need to sign a legal services agreement commonly referred to as a retainer agreement. This document will set forth the parameters of the agreement, the costs, payment terms, and any exclusions or limitations. Retainer agreements can be completed in person, by email, mail, fax, or increasingly post CV19, online. Most of our clients now prefer to review and execute the retainer agreement using DocuSign which provides a digital signature that can be completed using a smartphone, tablet, or computer. Copies of the signed agreement are then automatically distributed by email to both the law firm and the client.
After signing the retainer agreement and paying the legal fees, our office will immediately begin the process of protecting your legal rights by setting up a hearing with the DMV and requesting copies of all the relevant evidence to prepare your defense.
On a misdemeanor DUI case, your lawyer can appear for you at most or all of your court dates. Exceptions to this rule would be if the Judge specifically orders you to appear, if you need to testify, or if your lawyer believes there would be strategic advantage to having you physically present. On a felony DUI case the opposite is true. For a felony you will generally need to be present at all court dates. CV-19 has changed this somewhat as the court is now allowing for more remote appearances due to the pandemic, but these changes are expected to be temporary measures.
If you are appearing in court, you must follow a few simple rules. First, dress appropriately for court. This does not mean that you need to wear a suit and tie or that your case will be dismissed or receive favorable treatment if you dress better. It does mean that you will not be allowed in the courtroom if you are wearing a hat, shorts, sandals, tank top, or other inappropriate items. How strict this rule is applied varies greatly from courthouse and even from court room to court room. Be sure to ask your lawyer about the rules for your court appearance prior to appearing in court in person. Second, be prepared to go through full security. Just like going to the airport, you will go through a metal detector and you and your belongings are subject to search. Do not bring anything illegal to the courthouse like weapons or drugs. This includes marijuana, tobacco/vaping products, and lighters. You will also want to avoid bringing anything sharp like a nail file, pocket knife, etc. as you will either be forced to throw the item away upon entry, or you will have to walk it back to your car and wait in line to pass through security a second time. Do not show up for court under the influence of drugs or alcohol and do not drive to or from court if you do not have a valid license. Courts in California are notorious for having officers follow DUI offenders from the court room to the parking lot and make arrests for driving on a suspended license.
Every case is different and it’s possible that your case could go much faster or slower than the average case. But the average misdemeanor DUI case will take about 90 days to make its way through the court system. The average felony DUI case will take 6 months or longer.
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