DUI FAQ in St. Augustine
Know more about DUI FAQ in St. Augustine
Questions & Answers
1. What are the rules for a DUI?
DUI is charged under the California Vehicle Code, sections 23152(a) and (b), which state respectively:
“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 or drug, to drive a vehicle.”
“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.”
In addition, if you cause bodily injury to another person while driving under the influence, you may be charged under Vehicle Code sections 23153 (a) and (b), which state respectively:
“It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”
“It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”
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2. How is a DUI charged?
A DUI may be charged as a felony or a misdemeanor, but most DUIs are misdemeanors. But if you have been charged with three or more DUIs, you can be charged with a felony if the District Attorney so chooses. And, if you injure someone else while driving under the influence, you can also be charged with a felony. Remember, a felony prosecution can result in over a year in state prison.
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3. What is the punishment for a DUI?
As always, every punishment depends on the crime.
Generally, for a first time DUI offense if your blood alcohol level is below .20% and you did not cause injury to another person, the maximum penalty includes:
Summary Probation for three to five years (unsupervised by the Court),
Six months in county jail,
Six months suspended license,
A fine of up to $1,000, plus penalties of up to $2,710 (the penalty is currently 3x the amount of the fine, and may increase if the California Legislature agrees to it),
A $100 contribution to the California State Restitution Fund (for victims of DUIs),
Proof of enrollment and completion of an alcohol education program,
A fee of $50 towards “Alcohol abuse Prevention,”
A fee of $37 towards the blood alcohol content testing,
A fee of $20 for Court security
You may be assessed additional penalties if your blood alcohol was above .20%, you injured someone, or you had a child in your car.
For a second time DUI, all of the fines and penalties mentioned above will increase, plus:
Up to one year in county jail,
Impound your car for 30 days,
Suspend your license for 18 months,
For a third or fourth time DUI, all of the fines and penalties mentioned above will increase, plus:
The DMV can revoke your license for up to 4 years,
Completion of a 30 month alcohol treatment program,
Up to 120 days in county jail for a third offense,
Up to 180 days in county jail for a fourth offense,
16 months to 3 years in state prison for a felony.
In addition, you may have to pay, among other things, increase insurance premiums, tow and impound fees, alcohol rehabilitation program costs, and legal fees for an attorney and the court.
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4. What happens to my license if I am convicted of a DUI?
You may request a DMV hearing (LINK TO DMV SITE) within 10 days of your arrest. If you do not request a DMV hearing, your driver’s license will be suspended or revoked starting 30 days from your arrest for up to 4 months, depending on how many DUIs you have been convicted of in the previous 10 years.
If you have a commercial license, you may be charged with driving under the influence if your blood alcohol level is .04%, regardless of whether you are being charged with a felony or a misdemeanor. The DMV can take harsher action against you as well.
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5. What happens to my commercial license if I am convicted of a DUI?
If you have a commercial vehicle license, you have a standard of .04% BAC, regardless of whether you are being charged with a felony or misdemeanor, and the DMV action against Commercial Drivers is more severe.
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6. What defenses are there in drunk driving or DUI cases?
There are many defenses available in a drunk driving case. Some of the common defenses include:
Was the defendant actually driving? The prosecution must prove that the defendant was, in fact, driving. Intoxication is not enough to win the case. This may be difficult to prove because there are often no witnesses to the incident.
Did the officer have probable cause? The arresting officer must have “legal cause” to (a) stop, (b) detain, and (c) arrest. For instance, if you are stopped at a sobriety roadblock, you will need an expert DUI criminal defense attorney to explore all the possible available defenses.
Did you make incriminating statements to law enforcement? The Miranda rules may allow incriminating statements to be suppressed if warnings were not given at the appropriate time.
Did the arresting officer tell you that you could refuse to take a chemical test? Mr. Wallin may be able to get the test results thrown out if the officer did not advise you of the consequences of refusing to take a chemical test or gave it incorrectly. In California, implied consent warnings may affect the admissibility of the test results, as well as the license suspension imposed by the motor vehicle department.
Were you “under the influence”? Mr. Wallin can argue in your favor if: the arresting officer’s observations and opinions about your intoxication can be questioned; the circumstances under which the field sobriety tests were given are doubtful; the subjective and predisposed nature of what the officer considers as “failing” can be discredited; or witnesses can testify that you appeared to be sober.
What was your blood-alcohol concentration? There is a wide range of potential problems with blood, breath or urine testing. For instance, “non-specific” analysis can occur in most breath machines that register many chemical compounds found on the human breath as alcohol, when they are not. Also, breath machines assume a 2100- to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These are among many problems in analyzing blood-alcohol concentration that can be brought out in cross-examination of the either side’s expert witnesses.
Were you tested while your body was still absorbing the alcohol? If the blood, breath or urine test was done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption (this can be delayed if food is present in the stomach), it could lead to unreliable results. Thus, drinking “one for the road” can cause inaccurate test results that Mr. Wallin could argue.
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7. What if the police didn’t read me my rights before they arrested me for DUI?
The police have to read you your Miranda rights before they question you after taking you into custody. If the police don’t read you your Miranda rights before questioning you, the evidence they obtained from your statements, and the statements themselves, might be excluded at trial. Although most DUI cases are based on scientific evidence, such as a breath or blood test, a skilled DUI defense attorney such as Mr. Wallin can determine whether a motion to exclude evidence is warranted in your case.
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8. What are the benefits to paying an attorney for a case I could lose anyway?
Drunk driving cases are complicated, but a good DUI attorney can help you win. You need an attorney who is familiar with criminal law and your Constitutional rights. Mr. Wallin will first review whether the police had a right to stop you under the Fourth Amendment to the U.S. Constitution, and under California Law. Next, Mr. Wallin will determine whether the police had probable cause to believe that you were under the influence of alcohol, or drugs. Finally, the police have to prove that the breathalyzer was in proper working order, maintained and calibrated according to law, that the test was given by a properly trained officer, and that you took two tests within 15 minutes of each other, that were within .01 of each other, and were within 3 hours of your driving. Mr. Wallin has many factors to work with to help you win your case. In addition, Mr. Wallin can personally appear on your behalf at court and DMV hearings saving you valuable time and money so you can take care of work and family obligations.
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9. What are the top 10 mistakes clients make in DUI cases?
If you have been arrested on charges of driving under the influence, don’t make the same mistakes that so many others have:
Not taking the matter seriously. This is a charge that will follow you for the rest of your life, if you are convicted. The Department of Motor Vehicles will keep track of it on your driving record until you are dead. It has to make sure to take your license away from you for two years, if you have three lifetime convictions. The additional insurance charges alone could cost you thousands of dollars. If your license is taken away, you have to prepay for an SR-22 endorsement to your policy. Your insurance company must notify the Division in advance, if you do not maintain your insurance. It will also raise your rates based on your conviction.
Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a loser. What should you do? You need legal advice and fast. You want an attorney who knows how to handle your case.
Hiring an attorney based on the amount of the fee alone. The State has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you, and may want to charge you, and then attempt to get rid of you as quickly as possible – they even may dump your case if you do not plead guilty immediately. Look for a reasonable, predictable fee, not the lowest.
Not obtaining a temporary license and requesting a hearing at the Motor Vehicle Department within 10 days, if your license was taken when you failed or refused to take an alcohol test. If you do not request a hearing, you will not be able to drive until after a hearing or for 90 days to a year. Driving during this time is a serious traffic offense, a misdemeanor and has mandatory jail time, regardless of whether you need to drive for work or personal reasons.
Driving after your license has been revoked. You have no right to drive after revocation and driving then is more serious an offense than your original charge. There are no provisions for you to drive for work or personal reasons. After a period of time, you may qualify for an interlock device. If arrested for driving during this time, you may have to post a $10,000 bond just to get out of jail. If convicted, you face significant time in jail.
Not requesting that the officer be present at your motor vehicle hearing. If you do not request the officer’s presence, you will have to subpoena him or waive her presence. The hearing will be based on the officer’s report only and you will not hear how the officer will testify. Many things can be learned at this hearing by your attorney, if the officer is present. If the officer fails to appear or justify what was done, you get your license back.
Taking the District Attorney’s first offer. The first offer is not a bargain, it’s just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State prove its case.
Failing to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.
Talking to anyone but an attorney about your case. You will get advice, some of it good, some of it bad, some of it based upon personal experience in other jurisdictions, or years ago, that may not apply in your case at all, from your family and friends, even co-workers. Don’t listen to anyone except an attorney experienced in DUI law. You may choose a lawyer or risk the consequences of representing yourself. By hiring an attorney immediately following your citation, you won’t miss any deadlines. Judges won’t know if they should protect your rights unless someone defends you. For example, overworked prosecutors may use reports from inexperienced or over-zealous police officers to over-prosecute a case. Defense attorneys are aware of these tendencies and are trained to handle such situations. If you ask the judge to let you be your own attorney, he or she must allow this in most cases. But do not do this. In all DUI/DWIs, get a lawyer quickly. You should interview immediately after arrest if you can. Remember, you must request the DMV hearing within tens days of your arrest.
Thinking that you can handle it on your own . You need to have an attorney go to Court with you.