Driving Under the Influence (Vehicle Code section 23152 a & b)

After many new laws and Supreme Court decisions in recent years, the penalties for “drunk driving” or “driving under the influence” (DUI) of alcohol or drug no longer consist of a reprimand and an escort home. In California today, a DUI can be punished more severely than many other offenses.

Driving under the influence of a drug under Vehicle Code section 23152(a)

A “drug” is any substance other than alcohol that affects your nervous system, brain, or muscles. You drive under the influence of drugs when those drugs impair you to the point that you can no longer drive like a sober person would under similar circumstances. Driving under the influence of any drug subjects you to prosecution, regardless of whether the drug is an illicit drug such as cocaine, a prescription drug such as vicodin, or an over-the-counter drug such as Tylenol PM. So long as the prosecution can prove that your consumption of a drug impaired your ability to drive, you can be convicted of a DUI.

Driving under the influence of alcohol under Vehicle Code section 23152(b)

To convict you of driving under the influence of alcohol, the prosecutor must prove the following: You were driving or were in actual physical control of a motor vehicle while under the influence of alcohol or you had an alcohol concentration (BAC) of 0.08 or greater. In other words, the prosecutor must prove that, as a result of drinking or consuming an alcoholic beverage, your mental capacities were so impaired that you were no longer able to drive a motor vehicle with the caution of a sober person under similar circumstances. In the alternative, the prosecutor must prove that, at the time of driving, your blood alcohol level was a 0.08 or higher.

The Process: Arrest and DMV License Suspension

The DUI arrests normally begins with a traffic stop followed by the DUI investigation, which is a series of “field sobriety tests” or physical exercises that the officer asks you to perform as a way of gauging your impairment. The officer normally also asks you to blow twice into a machine called the Breathalyzer. Depending on your performance on the field sobriety tests and/or the result of your blowing into the Breathalyzer, the officer may not arrest for driving under the influence. If you are arrested for a DUI, you are then transported to a police station, where you are asked to take a breath or blood test. At this point, you are required by law to take either one of these tests. If you refuse, you may face harsher court penalties and a one-year license suspension.

Once you are arrested and booked, you should be released within a couple of hours of your arrest (unless an accident was involved or you are being charged with a felony DUI, in which case you might have to post bail). Upon your release, the police agency should give you two documents: a citation to appear in court, and a temporary driver’s license. This temporary driver’s license serves to replace your regular driver’s license, which the arresting officer will have confiscated from you at the time of the arrest and which is normally mailed to the DMV.

If you are arrested for a DUI in California, not only do you have to fight the criminal charges that the state will press against you, but you also have to be prepared to face a possible suspension of your driver’s license by the California Department of Motor Vehicles. You will be afforded the opportunity to argue your case at a hearing with the DMV. You must, however, demand this hearing within 10 days of your arrest.   If you fail to do so, you will forfeit your right to a hearing and the DMV will automatically suspend your license. Your criminal defense attorney can request the hearing on your behalf. He or she can also argue your case at this hearing. Your lawyer’s goal at a DMV hearing is to convince the DMV not to suspend your driver’s license. Your lawyer may also use this opportunity to garner evidence that may be useful in your criminal case.

If the DMV suspends your license, you can apply for a restricted license within 30 days of the suspension date. A restricted license allows you to drive for work related activities and any court imposed obligation. Once your period of your suspension is over, you can request back from the DMV your regular driver’s license.

Note that a DMV hearing occurs only in arrests for driving under the influence of alcohol. For DUI of drugs, no DMV hearing takes place. But a conviction for a DUI of drug will trigger a license suspension by the DMV.

“Chemical Test” Refusal

As mentioned before, under the California implied consent law, you are required to submit to a chemical test—breath or alcohol—if and only after you are lawfully arrested for driving under the influence. Refusal to take a chemical test post-arrest will subject you to increased penalties by both the court and DMV.

The officer by law is required to advise you of the consequences of refusing to submit to a chemical test. This “admonition” takes place post-arrest, when you are taken to the station. Here, a simple misunderstanding between you and the officer can easily be misconstrued as a refusal. You may not have clearly understood the consequences of refusing to take a blood or breath test—i.e., the officer may not have fully and clearly advised you of these consequences.

If you opted to take the breath test, you may not have understood the officer’s directions to blow properly into the machine. Your failure to produce a sample—whether because you were confused about the officer’s instructions or the machine was malfunctioning-may also be misconstrued as a refusal.

Driving with a Suspended License or Without a Valid License

Under California Vehicle Code Section 14601, you are forbidden to drive a vehicle when you have knowledge that the DMV has suspended or revoked your driver’s license due to any of the following: a conviction for reckless driving or DUI, a physical or mental impairment that prevents you from driving safely, or you were declared by the DMV a “negligent” or “incompetent” driver.

To convict you of a 14601 offense, the prosecutor must prove that you were driving with the knowledge that your license was suspended or revoked.

California law presumes that you had knowledge of your driver’s license suspension or revocation if:

  1. The DMV mailed you a notice via first class mail; or
  2. A police officer told you about the suspension or revocation when you were arrested for the offense for which your driving privilege was suspended; or
  3. A judge informed you of the suspension/revocation at the time when he or she sentenced for the violation that resulted in your suspension/revocation.

If the prosecutor can prove that any of the above conditions were met, the judge/jury may, but not are not required to, infer that you knew your license was revoked or suspended. Your California criminal defense attorney can challenge this presumption by raising the possibility that the notice of suspension was mailed to the wrong address or that you were never actually told of your suspension by a judge or other law enforcement officer.

A less serious offense than driving with a suspended or revoked license is driving without a valid license under Vehicle Code section 12500.   This offense can be charged as either a misdemeanor or an infraction, depending on your driving record.  To convict you of a 12500 offense, the prosecutor has to prove that you were driving without a valid license.  It is irrelevant whether you knew that you did not have a valid license.  Also irrelevant is the reason why you lacked a valid driver’s license.

If you or a loved one was charged with driving with a suspended license under Code Vehicle Code section 14601 or driving without a valid license under Vehicle Code section 12500, contact the Law Office of Negin Yamini for a free consultation today.

If you or a loved one was arrested for Driving Under the Influence and/or a refusal, contact the Law Office of Negin Yamini for a thorough case analysis.