What is the penalty for a refusal in California?

There are a number of penalties or consequences for DUI charges in California.  Perhaps the most severe of all penalties is that for a refusal to take a chemical test, breath or blood.  In addition to the Court consequences, the DMV will impose harsh sanctions if the driver is found to have refused a breath or blood test after having been arrested for drunk driving

The following are the administrative penalties for a DUI refusal

1. A First refusal within 10 years carries a one year drivers license suspension
2. A second refusal after a DUI conviction, wet reckless or admin per se suspension within 10 years is a 2 year license revocation.
3. A third refusal within 10 years is a 3 year revocation of your driving privilege.

In light of the very severe refusal penalties in California, it is advisable to seek legal representation for any refusal case.

Another Good Reason Not to Take a PAS Test

We know that California law allows motorists over 21 and not on probation to refuse a roadside breath test known as a PAS.  The test however is usually a bad idea inasmuch as it provides additional evidence of intoxication relating to DUI that can be used against you in Court.  A recent case reiterates another good reason to refuse taking the test.

Defendant Thomas was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it. Defendant was let go after passing all tests, but instead of discarding the mouthpiece of the PAS device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked defendant to two burglaries. A DNA sample obtained after defendant’s arrest matched genetic material recovered from five of the burglaries. Additional evidence implicating defendant in the burglaries was found when police searched his home pursuant to a warrant after his arrest.

Defendant appealed his convictions of the crimes arguing that testing the mouthpiece of the PAS device for DNA was a search that could not be conducted without a warrant under the Fourth Amendment to the United States Constitution. The appellate court however disagreed holding that the DNA test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.  The Court ruled that the Fourth Amendment protects against unreasonable governmental searches and seizures. A search occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy.  People of California vs. Thomas.

How to Get Your License Back After A Zero Tolerance Suspension

In California, anyone under 21 years old who has been convicted of driving while intoxicated/driving under the influence (DWI/DUI) or who has been found to have been driving with a .01% or more of alcohol in their blood will have his or her driver's license suspended for at least a year (Zero Tolerance) If the individual does not live near adequate public transportation, must work to support the family or is responsible for the medical care of another family member, the court may issue a restricted license because of "critical need."  A mandatory 30-day suspension is required before filing the application. 

Click here to download application

Here is the 5 step process to apply for the under 21 restriction.

First, Determine whether you meet the criteria to be considered for a critical need driver's license. If you were under 21 years old when you were arrested, tested positive for a 0.01 percent blood alcohol concentration and had your driver's license suspended, you may be eligible for a critical need license. One of the conditions for obtaining a restricted license is that you did not refuse to take the blood or breath test required by a peace officer to determine your alcohol level at the time of your arrest.

Second, Ensure that you meet critical need criteria. You are eligible for a restricted hardship license if the California Department of Motor Vehicles (DMV) determines that public transportation is inadequate and that you must operate the vehicle to transport a family member to and from the doctor's office or other medical facility, to travel to and from school, to go to and from work or to tend to some other family business for the purpose of acquiring income. Further, you must be legally present in California to qualify for a restricted hardship license

Third, Download the DS 694 application form titled "Application for Critical Need Restriction".  You must first check one or more of the reasons you need a restricted hardship license. These include "For Family Illness," "To and From School," "To and From Work" and "For Family Enterprise." Be sure to include your name, driver's license number, address, and other pertinent personal information. Next, describe your transportation needs, the distance the destination is from your residence and the route you drive to the destination. Include the other drivers in your household, their driver's licenses and the reasons they are unable to provide transportation

Fourth, Request the following individuals complete the Statement of Facts section on the application. If you are requesting a critical need restriction to transport a family member to receive medical care, have the physician state that your family member is unable to drive to and from her office and requires your help. If you are requesting a critical need restriction in order to drive to and from school, ask your school principal or dean to fill out the pertinent information on the application. Finally, if you are requesting this hardship restriction for employment purposes, ask your employer to complete this section on the application

Fifth, Complete the form and mail it to the address on the form. You may also attache other relevent documents such as enrollment in DUI education classes and the like, DMV will review the application and notify you within 10 working days whether or not your application is approved. If DMV approves your application, you must go to a DMV field office to complete the final section of the application, pay a $100 reissue fee and submit proof of insurance, which you must maintain for three years.

Drunk Driver Crashes into Another Drunk Driver

A 23-year-old suspected drunken driver from california nearly ran over CHP officers who were investigating a fatal wreck – also believed to involve alcohol -- this morning along Interstate 15 in Hesperia, according to CHP investigators and jail records.
The defendant was arrested this morning along Interstate 15 near Main Street and booked for investigation of drunken driving, jail records show. He was released after promising to appear in court to answer any charges that may be filed.

Officers caught the suspect driving a 2012 Honda Civic that traveled through a traffic cone-and-flare pattern that was supposed to keep motorists out of an accident scene that killed a driver at 1:05 a.m. today along the freeway’s southbound lanes near Bear Valley Road, investigators said in a written statement. The victim in that DUI accident was a man believed to be about 35 years old, CHP Officer Jaci Parent said early today from the traffic management center in San Bernardino. San Bernardino County coroner’s officials have released no information about that man or the incident.

The victim died instantly when the 2002 Lincoln LS he was driving changed lanes at high speed and hit the trailer of a 1999 Freightliner big rig.

“Alcohol is considered to be a factor in this collision,” according to the CHP statement.

A Quick Primer on the Two DUI Crimes in California

In California, lawmakers have enacted two distinct crimes relating to DUI. One, VC 23152(a) requires proof of actual impairment.  Section 23152(b), added in 1981, made it unlawful for a person to drive with a blood-alcohol level of 0.10 percent or more, by weight, and specified that, “percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.”   To secure a conviction for this new “per se DUI” offense, the prosecution no longer had to prove the accused driver was actually impaired at the time of the offense, but only that heor she drove with a blood-alcohol level at or exceeding 0.10 percent.    In 1989, the California Legislature further strengthened our state‟s DUI laws by lowering the punishable blood-alcohol threshold from 0.10 percent to 0.08 percent.  This is the proscribed level today

 Therefore, after 1981 there were two parallel statutes making it a crime to drive while intoxicated.  The generic DUI provision (§ 23152(a)) retained the historical approach, requiring proof that the defendant was actually impaired by his drinking.  The per se DUI statute (Vehicle Code 23152(b)) simply required proof that the defendant had been driving with a blood-alcohol level over the legal limit.  If the limit was exceeded, the statute was violated, and no additional proof of the defendant‟s impairment was required. The interplay between the two statutes can often be confusing for laymen, an attorney should be consulted to explain the interaction of the two offenses in your case.

New Law Seeks to End Impound Abuse

Police agencies in California will no longer be able to freely impound cars from sober but unlicensed drivers who are stopped at drunk-driving checkpoints under legislation signed Sunday by Gov. Jerry Brown.  Under the new law written by Assemblyman Gil Cedillo (D-Los Angeles), if a sober driver is caught at a DUI checkpoint without a valid license, law enforcement officers must release the car to a qualified driver representing the registered owner. In cases where a legal driver is not readily available, AB 353 says, the vehicle is to be released to one later at the impound yard.

Some CA lawmakers have alleged that sobriety checkpoints have been misused by some cities to unfairly target illegal immigrants who do not have a driver’s license. Because cities can hold cars taken from unlicensed drivers for 30 days, the accumulated impound fees can turn out to be more than the car is worth, resulting in some drivers losing their cars.

Step by Step Process to Get Your Drivers License After a DUI in CA

The purpose of this article is to explain the process to obtain your drivers license following the Court disposition of your case. You will likely receive a letter from the California  DMV that explains your license is suspended as a result of the Court conviction, however if you read the letter carefully it explains that you may immediately obtain a restricted license. The following is what you must do:

1. Obtain proof of insurance by way of an SR-22 that must be filed with the DMV. This is done electronically directly from the company to the DMV.  It is best to do this as soon as possible.

2. Get enrolled in the Court ordered alcohol education program. The program will file the enrollment with the DMV, confirm with them that they have done so.

3. If the offense occurred in Los Angeles, get an Ignition Interlock installed in your car, for help with this contact an IID provider, let him know an attorney represented you and you will receive a discount off the normal fee.

4. Pay the re-issue fees to the DMV at any field office. Usually there a two fees, one for the Court reinstatement and one for the APS reinstatement.

5. Lastly, you must wait the mandatory period of time following the imposition of the “APS” suspension following the DMV hearing, APS order. This is no longer than 30 days, however, the period of time can be shorter if the hearing officer grants our request for a “back credit”. To determine this time period look at the start date of the suspension on the DMV decision, it is 30 days after that “start date”. In some cases the DMV hearing decision will have not yet been mailed by the time the Court case is resolved, in these cases you must wait for the outcome of the DMV hearing before your license will be returned.