Hermosa Beach DUI Lawyer Explains HGN Law in Drunk Driving Cases

In California, police officers in the field have many different "tests" at their disposal to ascertain whether a suspect is DUI. One of the field sobriety tests that the officer may administer is the horizontal gaze nystagmus (HGN) test. The test involves having the suspect follow a moving object with his or her eyes, then measuring the angle of onset at which an involuntary jerking or "bouncing" of the eyes begin. One local Hermosa Beach DUI Lawyer relates that,  Depending on the observations of the DUI police investigator at the angle of onset, the prosecution may argue that the failure of the drunk driving suspect to follow the object or a jerking of the eyes may be consistent with the presence of alcohol and/or some types of drugs. The individual cop's observations may be admitted as evidence of the presence of alcohol, as will the officer’s opinion, based on the Nystagmus test in combination with other tests, that the defendant was under the influence. The officer’s testimony, however, should not draw a correlation between the HGN test and any specific blood-alcohol level. The CA Appellate Courts have ruled that HGN evidence, when viewed with other relevant indications, meets Kelly-Frye standard for general acceptance in the scientific community for purposes of deciding whether a person is under the influence of alcohol.

California DUI Laws in a Nutshell

In California, it is a misdemeanor to drive a vehicle under the following circumstances:

• While under the influence of any alcoholic beverage or drug, or under their combined influence. Veh C §23152(a).

— DUI involving alcohol. It is not necessary to prove any specific degree of intoxication, but only that the defendant was under the influence. A person is under the influence when, as a result of using alcohol or drugs, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

— DUI involving drugs. When a defendant is charged with driving under the influence of a drug, a showing of a specific measurable amount of the drug in the defendant’s blood is not required. The showing that must be made is that the defendant was under the influence.

• While having 0.08 percent or more, by weight, of alcohol in one’s blood. For this offense it is not necessary to prove the defendant was, in fact, under the influence; it is sufficient to prove the defendant’s blood-alcohol level was 0.08 percent or more.  For this reason, this statute is sometimes referred to as the “per se” DUI statute. There 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 driving.

Veh C §23152(b). The percent by weight is based on grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Veh C §23152(b).

• While addicted to the use of any drug, unless participating in a narcotic treatment program approved under Health & S C §§11875 et seq. Veh C §23152(c).

• While having 0.04 percent or more, by weight, of alcohol in one’s blood while driving a commercial vehicle. Veh C §23152(d).

There is a rebuttable presumption that the person accused of DUI 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 driving.  Veh C §23152(d).

What are the Penalties for a DUI in Los Angeles County?

So you or someone you know got arrested for drunk driving and are freaking out over what is going to happen.  You have many questions such as Am I going to Jail?  and Am I going to lose my license?  These are all good questions and it is healthy to take a proactive approach to the situation, but don't stress yourself out.  The best thing to do is consult with an experienced DUI attorney in the area where you were arrested.  You see, each jurisdiction has different penalties for driving under the influence so a DWI that occurs in San Francisco may be punished differently than one in Los Angeles.

California quite possibly has some of the stiffest consequences for DUI among all fifty states. Within California, Los Angeles probably has the toughest penalties for persons convicted of drunk driving or DUI. The Courts in L.A. are particularly heavy handed on offenders who drive with children in the car or those that have prior convictions for the same offense. 

Here is a quick summary of the most prevalent penalties handed down:

DMV Drivers License Consequences :

Those Over 21 If a breath or Blood test is Taken:
1st Offense: Six months Drivers License suspension.
2nd Offense: One year suspension.
3rd Offense: Two year revocation.
4th Offense: Three year revocation.

For first offenders, the DMV will allow a restricted license for work and school if the violator gets enrolled in a DUI program and obtains an SR-22.

Those over 21 who REFUSE a Chemical Test:
1st Offense: Drivers License suspension for one year, with no possibility of  provisional or restricted license.
2nd Offense: License suspension for two years.
3rd Offense: License suspension for three years.
4th Offense: License revocation for four years.

Those Offenders Under 21 at the Time of the Arrest:

For drivers under the age of 21 at the time of the arrest, a one year license suspension will be imposed. However, an experienced Under 21 DUI Attorney can oftentimes obtain a set aside of any suspension based on a number of technicalities in the paperwork.  If no set aside is possible then a lawyer can help in acquiring a critical need restriction for work, school or medical appointments.


Los Angeles Superior Court Penalties on the VC23152 DUI charges:
(As of July 2010 all Persons Convicted of DUI in Los Angeles County will be required to install an Ignition Interlock on all vehicles they own or have access to in order to get their drivers license returned)

1st Offense: Some courts do not require jail time on a first-offense, unless there are  grounds for a sentence enhancement (such as a minor in the car, speed enhancements, a blood alcohol concentration (BAC) of .20% or higher, refusing the chemical test, or others). Other courts require some jail time (48 hours to 10 days), even on a first offense. The required alcohol education program will also vary. The standard  program is once a week for 12 weeks; however, where the BAC is .15% or  higher, a six or even nine month program will be ordered.  An experienced Los Angeles DUI Lawyer can help to eliminate serious punishments or mitigate the sentence in appropriate circumstances.

2nd Offense (One prior conviction within last 10 years): By law, the mandatory minimum jail time on a second offense DUI is 96 hours, although this can be served in two 48-hour periods. Some courts will allow city jail. Still other courts will routinely impose much harsher jail  sentences on a second-offense DWI, with sentences of 30 days or more. The SB-38 alcohol education program for a second offense DUI is 18
months long. An ignition interlock device may be required.
3rd Offense (Two prior DUI convictions within last 10 years): A California mandatory minimum jail sentence of 120 days and 3 year license revocation. ( Pursuant to Recent Legislation, a Multiple offender may be allowed to obtain a restricted license for work purposes, contact a DUI attorney for help)

4th Offense (Three or more DUI convictions within last 10 years): A fourth offense Drunk Driving conviction is a Felony "wobbler", meaning it can be charged as a misdemeanor or a felony. Punishment can range from up to one year in county jail, up to three years in a California state prison, more if the person caused injury or has prison priors.

Drunk Driving Sentence Enhancements in Los Angeles:

sentence Enhancements are added punishments the Judge must order for cases involving special factors or what the California Law Regards as Requiring a more intense punishment, some examples include:

Refusal to take the chemical test;  BAC of .15% or .20% or higher;  Speeding 20 miles per hour above speed limit on side streets, or 30 mph  over the speed limit on the freeway, where driving recklessly and DUI,  (requires 60 days in jail if convicted); Minor in car while driver DUI; Traffic Collision or Motor Vehicle Accident; Prior DUI or drunk driving convictions; Injury to persons other than the defendant (VC 23153);  Drugs in system in addition to alcohol.  These enhancements all carry a more severe sentence if found to be true or if the accused pleads no contest or guilty, the penalties vary but can involve Loss of Vehicle thru impound, various other programs such as MADD or HAM (Los Angeles County Hospital and Morgue Program)  group meetings, hard labor community service or incarceration in the L.A. county jail.

Ruminations From "Captain Motion"

The following is an excerpt from the famous "Captain Motion" the DUI motion King in California DUI Defense, taken from a seminar he recently attended:  "One of the biggest problems facing those doing constitutional defense for people accused of drunk driving is that drunk driving has long been, and is increasingly, a political crime. It is no secret that MADD, SADD, and other Prohibitionist political action groups, forgetting apparently that the 18th Amendment was repealed, elevating symbolic victimization to an art form, have bulldozed their way into legislative and judicial precincts so effectively that their governmental
patrons low-crawl around and pander to their extortion to keep them from demonstrating outside legislative chambers and courthouses. And those groups’ political terrorism has effectively engrafted drunk driving exceptions to the Constitution, and to common sense, onto our juro- political landscape such that “deuces” are harder for the defense effectively to litigate than are murders."

Can a Portable Breath Test Machine Be Used at Trial in My Bakersfield DUI?

Many DUI Attorneys argue thats since the purpose of the device is limited solely to assist the officer in establishing reasonable cause to arrest, and since reasonable cause to arrest is not an issue in the trial, the numerical results of the test are inadmissible as not relevant. Indeed, many Courts have recognized this principle and observed at that, “The preliminary alcohol screening test is not determinative of blood alcohol content, but is a field sobriety test which may be used as a further investigative tool in order to establish reasonable cause....”(citing Veh. Code, § 23157 (h).) There’s no question that the statutory authority for the PAS is limited for the sole purpose of reasonable cause. Further, one local Bakersfield DUI Lawyer has repeatedly argued that the statute does not authorize the use of the PAS device in every instance. Only if there is 1) a refusal to take FST’s or 2) incapacity to take the other FST’S, or 3) if the officer believes it is necessary to assist him as a further investigatory tool after an evaluation of the totality of the circumstances. In ab recent case in Michigan the court found that where a statute limited admissibility of PAS evidence to establish reasonable cause to arrest, it was error to admit such evidence at trial. In Michigan as in California, reasonable cause to arrest is a matter of law reserved to the court. Since the validity of an arrest is a question which is reserved for judicial officers and is to be decided as a matter of law many in the legal field say they do not believe that the legislature intended under any circumstances, that evidence admissible solely for the limited purpose of PC to arrest in a DUI context.

Can a Horizontal Gaze Nystagmus Test be Admitted in a DUI Trial?

A Nystagmus test is a FST given roadside to a supected DUI driver, the test looks for a jerking of the eyeball while it tracks a pen the officer is holding.  Before the officer may testify to the Horizontal Gaze Nystagmus test results, prosecution must produce expert testimony that the test is widely accepted for determining blood alcohol concentrations.  This expert cannot be an officer or a crime lab technician according to the california case of People v. Kelly (1976) 17 Cal. 3d 24 and a single expert will not be sufficient, as the Supreme Court said in Kelly, it is “Questionable whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community.” People v. Kelly, supra at p.37. Furthermore, the prosecution must prove that the test was correctly administered to the defendant. In People v. Williams, (1992, 5th  Dist.)  3 Cal. App.4th 1326, the arresting officer was permitted at trial to testify that in his opinion, based partly on the Nystagmus test, the defendant was under the influence of alcohol.  This was permitted by the trial court after the officer testified he had received 10-hours of classroom instruction on Nystagmus at the CHP Academy, 8-hours of laboratory time, and had given the test in the field about 250 times.  The trial court ruled that this was insufficient evidence to qualify the officer as an expert

California Appellate Court Delivers a Blow to Margin of Error Arguments in DUI Breath Cases

In the case of Borger vs DMV, the Court last week ruled that a statute (in this case VC 13353.2) says that you can't drive with a blood alcohol content of .08 or more. Here, where a breath test says that your number is .08 or above, that creates a rebuttable presumption that you've violated the law.  The driver in this case got  stopped by the police and blew .08 on an intoxilyzer 5000. An expert toxicologist testified  that the particular test used here has a range of .02; in other words, that someone who blows a .08 might actually have a .06 (or .10). The trial court gave credibility to the expert's testimony and, on that basis, concludes that there's insufficient evidence that the guy actually drove with .08 or more.  The Court of Appeal  however reverses. It holds that since the regulations allow the particular testing device used here, to hold otherwise would conflict with this approval and require everyone to essentially blow a .10 percent rather than a .08 percent.  The lesson learned from this case is that there needs to be more evidence presented than just a mere blanket assertion that the machine has a margin of error, this might be some specific evidence of error from the lab, specific studies related to the device, usage logs and other documents obtained through discovery, just to name a few.