If you have been pulled over and charged with DUI for the first time, there are some important things that you need to know and do. First – and perhaps most importantly – you should consult a DUI Attorney that can help you to preserve your rights and who can guide you through the complex legal process that surrounds a first-time DUI.
In this article, the law firm of Attorney Jonathan Franklin wants to inform you of several key terms and approaches to your defense of your first-time DUI charge.
What Is Involved in a First-Time DUI?
The criminal charge known by the letters – DUI – involves driving a motor vehicle after drinking a quantity of alcohol. In the Los Angeles area (and the rest of California) this crime is technically called “driving under the influence” and can include driving after drinking alcohol, as well as the use of certain medications prior to driving a motor vehicle.
There are basically three ways that a person who has operated a motor vehicle while under the influence of a substance (either alcohol or drugs) can be charged in California:
- A charge of driving under the influence of alcohol may be pursued according to California Vehicle Code Section 23152(a).
- A charge of driving under the influence of drugs may be pursued according to California Vehicle Code Section 23152(e).
- A charge of driving under the combined influence of alcohol and drugs under California Vehicle code Section 23152(f).
Many people assume that they will automatically receive a sentence of probation for a first-time DUI offense. While it is true that a majority of first-time DUI offenders will serve time on probation, it is important to understand that the court can also include time served in a county jail as part of your sentence. A fine and the suspension of your license to drive are also possible consequences of a first-time DUI offense. You may also be required to attend and complete drug and alcohol counseling and community service hours.
There is one other charge that can be pursued in California, which is the crime of driving with a blood alcohol content (also known as BAC) of 0.08% or higher. Many times, a person can be charged with one of the DUI offenses as well as the driving with a BAC of 0.08% or higher, which results in two offenses and two paths to criminal liability that a prosecutor can pursue.
A first-time offense for DUI is considered to be a misdemeanor, and in California is punishable by no more than 6 months in a county jail, a fine of $390-$1,000, a suspension or a revocation of the person’s driver’s license for 6-10 months, and a requirement to attend a state-certified DUI school course for either 3, 6, or 9 months.
Additionally, it is important to know that a conviction for DUI can remain on a person’s driving record for up to ten years.
Other Penalties in California for First-Time DUI
A first-time DUI offender can spend up to 48 hours in jail for refusing to take a chemical test administered after arrest.
A court can order the installation of a mandatory Ignition Interlock Device (IID) after a first-time DUI. The IID prevents your car from starting if you have a measurable amount of alcohol in your system, tested by a breath alcohol sensor mounted on your car. There are four counties in California that have tested a program requiring all first-time DUI offenders to install the IID. Beginning in January of 2019, the program will be activated in all California counties.
What a Prosecutor Must Prove in a First-Time DUI Case
In any case where a person is accused of DUI, the prosecution must prove two basic facts:
- That the person who is charged with DUI actually drove a motor vehicle, and
- That the person who drove the motor vehicle was under the influence of either drugs, or alcohol, or both at the time that they drove the vehicle.
This seems like a simple definition, but there are several nuances that deserve some closer examination.
In many DUI cases, an accused person is seen to be driving a car by a police officer or an eyewitness. This makes the first element pretty straightforward to prove. However, in some instances (like those involving a crash or other accident), no one may have seen the accused person actually driving the car. Or, if a person is in a car that has been started but has not actually moved, that act may not constitute driving.
In California, some movement of a vehicle is required in order for a person to be considered as having driven the vehicle. Of course, California courts have demonstrated that movement of a vehicle can be inferred from certain circumstances – as when a person is the only individual occupying a vehicle that is involved in a crash or accident. It may be inferred that the car did not move itself. This is a type of evidence known as circumstantial, and in DUI cases, is allowed in California courts.
As for demonstrating that a person is under the influence of either drugs or alcohol, the standard definition of proof maintains that if a person’s mental or physical capacities are impaired and they no longer have the ability to drive with the same capacity that a normal, sober person would exercise in the same circumstance – or similar circumstances – then that person is under the influence.
So, the standard a court must hold a person accused of DUI to is that of a person who has not consumed alcohol or drugs. Can the accused person said to have been operating at a level of caution and control that a sober person would use in the same circumstance?
What Methods Will the Prosecution Use in a Trial for a First-Time DUI?
There are several key components of a standard prosecution for DUI offenses. These include the testimony of the arresting officer, results of Field Sobriety Tests (FST) administered by the arresting officer or officers, and any other eyewitness or expert testimony that may be called for.
- An arresting officer in a DUI case will state what they personally observed from the time they entered the scene of an alleged DUI. They may testify to any behavior observed while the accused was driving the vehicle – such as weaving, swerving, or other erratic behaviors.
- An officer may also testify to any behaviors they observed while an accused was interacting with the officer from within or outside of the vehicle. These may include seeing red, or “bloodshot” eyes; slurring of speech; an alcoholic odor that is emitted from a person’s breath or even the pores of their skin; wobbling or unsteady steps taken by the accused.
- Additionally, an officer may testify to the ability of an accused person to perform “field sobriety tests,” of FST’s that may be administered at the scene. Some common FST’s include walking in a straight line, standing on one leg, placing an index finger on the point of a nose, or reciting the alphabet. Some of these FST’s have been demonstrated to be less-than-accurate indicators of intoxication.
One additional tool in the prosecution’s toolbox is the implied consent portion of California law that states that any person who enters a motor vehicle to operate it automatically consents to be tested for BAC (blood alcohol content). This test, which an officer may administer if they have probable cause to believe a person is under the influence of alcohol or drugs, may be administered by breathalyzer, by blood test, or by urine test.
Under California law, there is a mandatory jail stay of 48 hours for refusing to submit to the chemical blood test. All persons operating a motor vehicle in California are required to take such a test.
Possible Defenses for First-Time DUI
There are a number of ways in which prosecution for DUI can be disputed, or disproven. Some of these include:
- The fact that alcohol or drugs may not have been the cause of a person’s erratic driving behavior. There are other factors, such as becoming lost or disoriented, or being momentarily distracted while driving, that can cause suspicious behavior by a person driving a vehicle.
- There are other causes that mimic the objective signs of intoxication, such as fatigue, allergies, spending too much time in the sun, and illness.
- As mentioned above, some field sobriety tests (FST’s) have been shown to be ineffective for indicating intoxication. There are only three that have been verified by the National Highway and Transportation Safety Administration (NHTSA) as being accurate: the Horizontal Gaze (or Nystagmus) Test, standing on one leg, and the “walk-and-turn” test. If any other FST has been administered, it is possible to challenge the findings.
- An arresting officer may not have followed proper procedure in a DUI arrest. There may be a question as to whether an officer had sufficient probable cause to stop or arrest a person accused of DUI; an officer may fail to follow proper procedures for collecting and storing blood or urine samples used in a BAC test; there could even be incidents of police misconduct that could negate any wrongdoing on the part of an accused person.
There are also other forms of plea bargaining which can be considered, especially in a first-time DUI case. You may receive a lesser charge of “wet reckless,” which means you were driving in a reckless manner and alcohol was involved. It is not a separate charge but is considered a lesser form of DUI.
There is also a possible charge known as “dry reckless” – which is a separate charge that involves driving with flagrant disregard for human safety or property damage. A dry reckless charge does not list alcohol as a contributing cause and, if your attorney can convince the court, can be advantageous in terms of your record.
A charge of “exhibition of speed” is another possible reduction of a first-time DUI charge. “Speed Ex,” as it is commonly known, indicates another form of reckless behavior but does not notate alcohol use on the driving record.
Finally, a charge of “drunk in public” could be an option for lesser severity than a first-time DUI. This statute punishes people that are so drunk that they interfere with others being able to use a public passageway, such as a street or sidewalk.
Getting a First-Time DUI Charge Dropped
It is possible to have the charge of DUI dropped by a prosecutor if they become (or can be) convinced that there was no probable cause for you to be stopped or arrested. Likewise, your DUI attorney may be able to have incriminating evidence excluded from consideration in court if it was obtained or handled in a questionable manner.
What You Should Do If You Are Pulled Over on Suspicion of First-Time DUI
There is some “common wisdom” that says that a person pulled over for suspicion of driving under the influence should not consent to any FST’s or a test for BAC. There is an automatic fine of $125 in California, and a mandatory 48-hour jail stay. Finally, the refusal to submit to FST’s or a test for BAC can be used against a person if and when the case comes to trial – a fact that the arresting officer must state to the accused.
Practically all DUI offenses end up in court, and there are many other nuances in the law that have not been covered in this article. This is why obtaining a qualified attorney is one of the best things that you can do if you have been arrested for a first offense for driving under the influence of drugs or alcohol (DUI).
Finding a Los Angeles DUI Attorney Near Me
If you have been arrested for a first time DUI offense in Los Angeles, the Law Office of Jonathan Franklin stands ready to assist you in understanding your rights, considering a plea for a lesser charge, or planning a defense. You can reach Los Angeles DUI Attorney Jonathan Franklin by calling 323-464-6700.
