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Overview of driving under the influence law
Driving under the influence cases are sometimes referred to as “drunk driving cases.” However, “drunk driving” is a misnomer because a person does not have to be “drunk” to be found guilty of driving under the influence.
Prosecutors typically file two charges against a driver suspected of being under the influence of alcohol and/or drugs. The first charge is a violation of California Vehicle Code Section 23152(a), driving under the influence of alcohol and/or drugs, without any mention of a specific level of intoxicant. By filing this charge, the Prosecutor will then try to obtain a conviction by showing that the driver was “impaired,” such that the driver no longer has the physical or mental abilities to operate a vehicle with the caution of a sober person under the same circumstances.
The second charge that Prosecutors file is a violation of California Vehicle Code Section 23152(b), driving with a .08% or more by weight of alcohol in the blood. Here, the Prosecutor will show by extrapolating back in time from the time of the test to the time that the driving occurred that the driver had a .08% or more of alcohol in his or her blood while operating the vehicle.
Convictions for driving under the influence of alcohol and/or drug cases carry significant consequences. Among them are loss of license, jail, fines and mandatory attendance of alcohol programs. For example, the time that a person loses his or her driving privileges depends on the facts of each case. If a driver has not suffered a previous conviction for driving under the influence within ten years, the loss of license normally is for six months. However, a refusal of a chemical test increases the suspension period to one year. If a person has a prior conviction within ten years of driving under the influence, a new conviction will cause a two year license suspension.
Facts of the case may also cause the person to be subjected to greater periods of incarceration. For example, if a person operates a vehicle while intoxicated and is involved in an accident with injuries to another person, the driver faces at least 90 days in custody. Similarly, if a driver’s blood level alcohol equals or exceeds .20% at the time of driving, the driver may face enhanced penalties. Also, speeding in excess of 30 miles over the posted limit may result in an enhanced jail sentence of 60 days.
Procedurally, persons charged with a violation of the drinking/driving laws make their first appearance in court for arraignment. At arraignment, a person learns what the charges are and receives an advisement of his legal rights. Judges review bail status and make decisions about releasing a person on his own recognizance. Typically, at arraignment, a person should enter a plea of not guilty and seek legal advise from an attorney if he is unrepresented. Moreover, some judges may set conditions for a person’s continued release on his or her own recognizance that require the person to attend alcoholics anonymous classes daily, test periodically and randomly for alcohol and/or drugs, and abstain from all alcohol until their case is resolved.
If the case is a misdemeanor, the next step procedurally is setting it for a settlement conference. At the settlement conference, the District Attorney makes an offer to dispose of the case. The District Attorney’s offer is often unreasonable and should be rejected. The case is then set for trial.
If the case is a felony, it is next set for a preliminary hearing. A preliminary hearing is a review by the judge of the facts of the case. At a preliminary hearing, a judge determines whether or not the District Attorney’s case is sufficient to be sent to superior court for trial. Typically, the district attorney makes an offer at some point either before or after the case is sent to superior court. Often, the offer is unreasonable and should be rejected. The case is then set for trial. Trial must occur within 60 days of the superior court arraignment, unless time is waived.
Given the myriad of consequences that driving under the influence cases carry, any prudent person should consult with an attorney before deciding how to proceed.
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