DUI Law

What is a DUI?

DUI stands for driving under the influence of alcohol or a drug. There are two main DUI charges, which are California Vehicle Code section 23152(a) and 23152(b). The (a) count states that you cannot drive while under the influence of alcohol or a drug. The (b) count states that you cannot drive with a blood alcohol of .08 or higher. You can be charged with both counts, but you can only be sentenced on one of them if convicted. For information, see Possible Punishments, DMV consequences, Vehicle Code section for DUIs.

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Stopping my Car

The police may stop your vehicle for any traffic infraction. This includes speeding, changing lanes without a turn signal, or swerving within a lane. If a police officer wants to stop your vehicle, you must stop.

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FSTs

FSTs stand for field sobriety tests. Once a police officer stops your vehicle, he may ask you to voluntarily take field sobriety tests (although it may not seem that he is asking - it may seem like he is ordering you to do them). Keep in mind that these tests are voluntary, and you do not need to take them. You can simply explain that you would like to exercise your right to remain silent and would rather not take the FSTs. If you refuse to participate in the FSTs, you may get arrested, but it may be more difficult for the DA to convict you of a crime. (If you have been drinking, you will most likely get arrested anyway) If you have not had anything to drink and you perform well on the FSTs, the police may simply let you go. However, if you do poorly on the FST's, this will be evidence that will be used against you in court.

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PAS

PAS stands for a Preliminary Alcohol Screening test. This test is not mandatory, and you can simply state that you don't want to take it. The PAS test is a breath test done at the scene, and it is actually one of the FSTs. Based on your performance on the PAS and other FSTs, the police will decide whether or not to arrest you.

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Do I have to take a breath or blood test?

When you received your driver's license, you agreed that you would take a blood or breath test if requested to do so by a police officer. The PAS device does not count as the breath test. If you are arrested, you will be taken to the police station and given a choice of taking a breath or blood test. If you refuse to take a breath or blood test at the station, you will automatically lose your license for 6 months. However, if you are intoxicated, by refusing to take a breath or blood test, there will be less evidence to be used against you in court. If the police are going to illegally force you to take a blood test against you will, cooperate and fight it in court.

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DMV

When you are stopped for a DUI, the police will often take your license and give you a pink slip of paper. This pink slip of paper is your temporary driver's license, which is good for 30 days. On this paper, it tells you that you have 10 days to call DMV and request a hearing. If you do not request a hearing, your license will automatically be suspended. Call DMV and request a hearing! If you wait past the 10 day period, it is too late.

Once you request a hearing, your temporary license will automatically be extended until the date of your hearing

When you retain the Law Offices of Scot Candell to represent you for a DUI, we automatically represent you for your DMV hearing at no additional cost.

At your DMV hearing, there are many things an attorney can do to help you keep your driver's license. The Department must prove:

  • The arresting officer had reasonable cause to stop your vehicle (or detain you if your vehicle was already stopped);
  • The officer had probable cause to arrest you and;
  • Your blood alcohol was a .08 or higher at the time of driving.

Each of these issues can be fought in any number of ways, depending on the circumstances of your particular case. You should contact a lawyer at the Law Offices of Scot Candell for a free consultation to explore these issues.

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Possible penalties for a DUI

If you are convicted of a DUI, these are some of the potential penalties you are facing. Penalties may be higher if enhancements apply.

First Offense within 10 years: 3-5 years probation, 48 hours to 6 months in county jail, a fine of $390 to $1,000 plus penalties and assessments, a 3-month alcohol/drug treatment program (or 6 month program if BAC is over .20), if chemical test is refused, DMV will impose a 6-month driver's license suspension.

Second Offense within 10 years: 3-5 years probation, 96 hours to 1 year in county jail, a fine of $390 to $1,000 plus penalties and assessments, an 18 month alcohol/drug treatment program, DMV will impose a 2 year Drivers License suspension.

Third Offense within 10 years: 3-5 years probation, 120 days to 1 year in county jail, a fine of $390 to $1,000 plus penalties and assessments, an 18 month alcohol/drug treatment program, DMV will impose a 3 year driver's license suspension.

Fourth Offense within 10 years: 3-5 years probation, 120 days to 1 year in county jail, a fine of $390 to $1,000 plus penalties and assessments, an 18 month alcohol/drug treatment program, DMV will impose a 4 year driver's license suspension. For a fourth offense, you may be sentenced to up to 3 years in state prison.

There are many other penalties and enhancements depending on the circumstances. Speak with an attorney from the Law Offices of Scot Candell to review the specifics of your case.

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Some Sections of the California Vehicle Code related to DUI

California Vehicle Code § 23152. Driving under influence; blood alcohol percentage; presumptions

(a) 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 and drug, to drive a vehicle.

(b) 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.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.

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