First Offense DUI in California

My question involves criminal law for the state of: California

I was drinking with a friend and proceeded to drive home. I had 4 Coronas, 2 shots of Don Julios, and occasional sips of my friend’s Cosmos. The drinks were consumed over a period of 3.5 - 4 hours which most likely puts me above .08 BAC. Upon driving back home, I was stopped at an intersection around 2:10 am due to two reasons

1. One of my rear lights (left) did not seem to work properly.
2. I was on or past the pedestrian walkway.

Note: I was not exhibiting any dangerous or reckless behavior.

I have no explanation for the first reason as there was no indication from my car (usually such failures would result in some lighted sign from my car) to show such defaults. As to the 2nd reason, I tried to stop my car from running a red light hence I did commit an act of unsafe driving. However, I do realize this pretty much justifies "probable cause" to pull me over. Then I was asked if I had any drinks that night and I replied yes so I had to undergo several alcohol field tests.

From that point, the officer asked me if “I wanted to take a voluntary breathalyzer test?”I replied “what are the implications of taking such a test?” I had never been arrested before hence I didn’t know the consequences of replying “yes” or “no” to this question. Hence the officer replied “it is totally voluntary and completely up to me” and avoided giving me a straight answer. I was not told I would have potentially heavier punishment if convicted after rejecting an initial breathalyzer test. Upon stating “No, I believe I was coherent enough to drive home”, I was told that I would be arrest on a DUI charge. After that, I was taken back to the station to complete paperwork and a blood test. I would to say that the officer was nice enough to answer my questions about the situation and reassured that my case may not filed if my BAC is near the limit (DA is busy or something?).

Questions: 1) Should I just please guilty at the dmv because I'm pretty sure I'm above a .08 BAC and hope they are lenient with me?
2) I believe I do have hope to get this reduced to a wet/reckless, should I go with the public defense attorney or hire a private one?
3) Is there anything I can do to minimize my penalties at this point?
4) What kind of penalties will I be looking at (no prior brush with the law) ?

You only have to violate some aspect of the VC or have an apparent equipment defecdt. THey don't have to show you're doing anything unsafe.
Police in California are not obliged to explain the law to you (never take legal ifnormation from a cop).

You don't "plead" anything at the DMV. It is not a criminal trial. It's just an order to show cause as to why your license shouldn't be immediately suspended for violating the per se limit. In fact, if you don't have a defense, you don't even have to request the hearing.

If you can afford a private attorney, you will not qualify for a public defender. A public defender is for the indigent who can't afford, rather than just being unwilling to pay for, private counsel.

You need to be talking to a lawyer.
DUI is a mandatory 48 hours in jail, 6 months suspension, 12-45 hour dui school, probation
Wet Reckless 12 hours DUI/Substance abuse, possible jail (unlikely), probation

Both have substantial fines and costs.

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Quoting bezmichael

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My question involves criminal law for the state of: California

I was drinking with a friend and proceeded to drive home. I had 4 Coronas, 2 shots of Don Julios, and occasional sips of my friend’s Cosmos. The drinks were consumed over a period of 3.5 - 4 hours which most likely puts me above .08 BAC.

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So, you were impaired and knowingly and intentionally got behind the wheel of a vehicle endangering others . Got it.

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Upon driving back home, I was stopped at an intersection around 2:10 am due to two reasons

1. One of my rear lights (left) did not seem to work properly.
2. I was on or past the pedestrian walkway.

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Okay. So, in other words, there appeared to be an equipment and a stop violation. This sounds like articulable reasonable suspicion for a detention.

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Note: I was not exhibiting any dangerous or reckless behavior.

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Just the apparent violation of the vehicle code.

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I have no explanation for the first reason as there was no indication from my car (usually such failures would result in some lighted sign from my car) to show such defaults. As to the 2nd reason, I tried to stop my car from running a red light hence I did commit an act of unsafe driving.

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But ... you just wrote that you did not exhibit any "dangerous or reckless behavior."

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However, I do realize this pretty much justifies "probable cause" to pull me over.

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More accurately, it can be described as reasonable suspicion.

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Then I was asked if I had any drinks that night and I replied yes so I had to undergo several alcohol field tests.

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Sounds reasonable.

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From that point, the officer asked me if “I wanted to take a voluntary breathalyzer test?”I replied “what are the implications of taking such a test?” I had never been arrested before hence I didn’t know the consequences of replying “yes” or “no” to this question. Hence the officer replied “it is totally voluntary and completely up to me” and avoided giving me a straight answer.

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That was a straight answer - it IS up to you. It is simply one of the field sobriety tests.

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I was not told I would have potentially heavier punishment if convicted after rejecting an initial breathalyzer test.

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That's because there is no additional penalty for refusing the PBT test in the field. There is an additional administrative penalty if you refuse the mandated test AFTER the arrest, but not for refusing the field test.

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Upon stating “No, I believe I was coherent enough to drive home”, I was told that I would be arrest on a DUI charge. After that, I was taken back to the station to complete paperwork and a blood test. I would to say that the officer was nice enough to answer my questions about the situation and reassured that my case may not filed if my BAC is near the limit (DA is busy or something?).

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Some counties are so impacted that they rarely file on impairment cases and only on per se cases (those where the BAC is .08 or higher. My county is one of those.

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Questions: 1) Should I just please guilty at the dmv because I'm pretty sure I'm above a .08 BAC and hope they are lenient with me?

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The DMV will not be lenient. If you are .08 or higher, they will impose administrative penalties. The DMV hearing is not an issue of guilt or innocence, but about procedure and administrative policy.

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2) I believe I do have hope to get this reduced to a wet/reckless, should I go with the public defense attorney or hire a private one?

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If you can afford a private attorney you may not qualify for a private attorney. If you want to fight the case, you will need an expensive DUI attorney. Most DUI cases result in a plea. If the stop and the arrest are not suppressed for some reason (and they rarely are) the case is usually a done deal.

A wet reckless (23103.5) is most likely if the BAC is not much higher than .08. If it is .15 or higher, ain't no way. If over .10 it is still possible, but less likely.

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3) Is there anything I can do to minimize my penalties at this point?

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Perhaps start alcohol counseling now.

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4) What kind of penalties will I be looking at (no prior brush with the law) ?

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http://criminal-law.freeadvice.com/c...fornia-dui.htm

Thanks for the advice!

I absolutely agree with you that I shouldn't have knowingy operated a motorized vechicle when I knew I had alochol. When you're young (and stupid), you tend to think that that amount of alcohol wouldn't impair you as much.

As to "reckless driving", I meant I wasn't swerving between lanes, running red lights, etc but nevertheless my recount does seem contradictory.

Follow up

1) Is there substantial benefits for me hire a legal counsel for the dmv hearing (assuming my BAC test comes back above .08) since its procedure/admin based?

2) You stated that most DUI cases end in a plea, will the public defense attorney (assuming I qualify) help me with this plea? (I'm not trying to fight it, I just want to get it reduced to a wet and reckless/lighter sentence).

3) You said alcohol counseling - can you elaborate on that? Website? I think this might be something positive I can bring up in my court hearing.

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Quoting bezmichael

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1) Is there substantial benefits for me hire a legal counsel for the dmv hearing (assuming my BAC test comes back above .08) since its procedure/admin based?

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That depends. If you intend to fight the case tooth and nail, I have heard that some attorneys want to attend these hearings because they want to assess the officer's presence and articulation, and essentially nail the officer to a particular detail of events. However, this is a long shot, costly, and is rarely a significant edge. Most DUI attorneys I am familiar with do not recommend that they attend the DMV hearing because so much of it is pro forma.

This decision would be between you and your attorney. If you do not have the resources for a private attorney, then your public defender will almost certainly NOT attend the DMV hearing because it is not part of the criminal case.

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2) You stated that most DUI cases end in a plea, will the public defense attorney (assuming I qualify) help me with this plea? (I'm not trying to fight it, I just want to get it reduced to a wet and reckless/lighter sentence).

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Of course he or she will. Many P.D.s know the process and can facilitate such a plea if that is the avenue you prefer.

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3) You said alcohol counseling - can you elaborate on that? Website? I think this might be something positive I can bring up in my court hearing.

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Alcohol treatment, DUI counseling, etc. It all depends on what is available in your area. It might be as simple as attending AA meetings, or as formal as counseling paid for through your insurance.

I beat my DMV hearing. I was hoping the cop didnt show but he did. But basically I proved my BAC was .21 which by the book means distorted confused not able to pay attention basically your drunk as heck.

The officer said he was asking if I will take the test and he stated I was silent then he asked me again and I shook my head no. anyway i prove that shaking my head no was actally agreeing to the test . with a .21 bac he had to prove that I was able to understand him but the officer wrote in the report I was staggering slurring and just drunk.

So yes he lost the case because of what he wrote int he police report.


How can a person with a bac of .21 understand anything?

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Quoting itsjustme

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I beat my DMV hearing. I was hoping the cop didnt show but he did. But basically I proved my BAC was .21 which by the book means distorted confused not able to pay attention basically your drunk as heck.

The officer said he was asking if I will take the test and he stated I was silent then he asked me again and I shook my head no. anyway i prove that shaking my head no was actally agreeing to the test . with a .21 bac he had to prove that I was able to understand him but the officer wrote in the report I was staggering slurring and just drunk.

So yes he lost the case because of what he wrote int he police report.


How can a person with a bac of .21 understand anything?

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Can I assume you had some victory drinks? You posted in the wrong thread and honestly, your post is difficult to understand.

The effects of .21 is on one person may be different with another person. I had one walk into the jail at .41. I've had a .06 so messed up that he couldn't function (or keep functions from happening). Chronic drinkers don't seem to have a problem "functioning and understanding" at .21.

Smelled of an alcoholic beverage, unsteady gait, red / watery eyes, poor performance on FST's are very generic, but valid observations for a majority of DUI arrests. I've only put, "Staggered" or "was clearly intoxicated to the point where a lay person would consider him drunk" in a select few arrest reports. I had a .28 have some minor hiccups on the FST's (not too bad, better than most .08's). He was a 45 year old man who was a chronic drinker since the age of 13. If you are intoxicated, ie under .08 but impaired to the point where you can't safely operate a motor vehicle, then you need to go to jail. If you are over .08, I'm sorry, you have to go. It's mandatory.

Why am I still typing....

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Quoting itsjustme

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I beat my DMV hearing. I was hoping the cop didnt show but he did. But basically I proved my BAC was .21 which by the book means distorted confused not able to pay attention basically your drunk as heck.

The officer said he was asking if I will take the test and he stated I was silent then he asked me again and I shook my head no. anyway i prove that shaking my head no was actally agreeing to the test . with a .21 bac he had to prove that I was able to understand him but the officer wrote in the report I was staggering slurring and just drunk.

So yes he lost the case because of what he wrote int he police report.


How can a person with a bac of .21 understand anything?

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They do seem to do it different in your state. Out here, none of that would have mattered.

Perhaps you can stop getting those DUIs, eh? It IS preventable. Please try ... if not for your sake, then for the sake of those that are on the road with you.

Of course, even if you beat the DMV hearing somehow, they can still suspend you when you are convicted.

Oh, and why are you posting about YOUR "victory" in someone else's thread?

^^^^ U mad I won???

Well the OP asked about the DMV hearing so I just gave him a example of how it works

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Quoting itsjustme

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^^^^ U mad I won???

Well the OP asked about the DMV hearing so I just gave him a example of how it works

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I'm not "mad" though I am concerned how you can beat a hearing with a .21 BAC. But, as I mentioned, it only delays the inevitable should you lose at trial.

At your high BAC you were a risk to everyone on the road. I hope that you at least recognize this and will change your behavior accordingly so that you will no longer be a threat t the motoring public.

To answer your question number two, I think that it's best that you hire a Private Attorney since he is more likely to focus on your case.

Update:

bac. came back with .11

Currently debating whether I want to hire a private lawyer or ask for public defender.

I feel like I'm just paying someone $2,000 to increase the probability of my chances of getting off. Its similiar to buying insurance or gambling.

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Quoting bezmichael

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Update:

bac. came back with .11

Currently debating whether I want to hire a private lawyer or ask for public defender.

I feel like I'm just paying someone $2,000 to increase the probability of my chances of getting off. Its similiar to buying insurance or gambling.

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Most cases are won by the defense when/if they can convince a court that there is no reasonable suspicion for a stop. After that comes the possibility that it can be beaten due to a lack of probable cause for the arrest. So, if the defense can show there was no reasonable suspicion to detain the suspect, or the FSTs or other observations were insufficient to support the arrest that resulted in the test, the case can be won. However, most DUI cases end up pleading out.

It is possible that either a private attorney or a public defender can negotiate a deal - perhaps one that includes a wet reckless (CVC 23103.5). And a moderately experienced DUI attorney will cost at the low end of about $5,000 and that may not even include a jury trial. Plus, if you can afford a private attorney you may not be permitted a public defender.

You will be alright with public defender. 1st dui no criminal record low .bac they probably will do a wet reckless.... But why did he ask you hav ebeen drinking? did he smell anything?