Does California Give Jail Time On a First DUI?

For anyone facing a driving under the influence charge in California, many questions exist.  Perhaps the most important question is whether a defendant is facing automatic jail time as a first offender.  The answer to the interrogatory depends on the county and city you are arrested in.  For example, in some areas of Kern County a person who is convicted of a first time DUI has to do 48 hours in jail, and no time is given for the time spent in the jail when arrested.  However, on average, most persons sentenced for a DWI or drunk driving who have no record are given no incarceration, at most some community service or jail alternative.

Will My Employer Know I Got A DUI in California?

Many things happen when a person is arrested for a DUI in California.  Among them are the fact that the DMV is notified almost immediately via the APS process, but what about your employer?  Are they told?  The answer is yes if they are part of the "employer pull program" administered by the California DMV.  This program allows companies to be notified immediately if a driver gets a DUI or some other ding on their DMV record.  This program is a voluntary one and usually only those who drive company cars will participate.  The one sure way to know if your boss is part of this program is to get a copy of your MVR record and it will say if your employer should be told about any action pending on your driving record.

Can I get A DUI In California If I Wasn't Driving?

The short answer is no.  The law in CA is that you must have drove when you were impaired. However to better answer the question it is important to understand that California DUI Laws allow for the state to prove driving with the use of what is known as circumstantial evidence.  Here's an example:  The person arrested was found drunk passed out on the side of the road in his car with the engine running.  Can this person be convicted of DUI?  Possibly.  You see, the prosecutor can prove that he was driving at a time he was impaired due to circumstantial evidence such as the fact he was alone in the car, he was drunk, he had to be the driver and he must have driven there when he was drunk.  This type of case is common where the person admits that he drove to the location.  The burden then shifts to the defendant to provide some other scenario that may point to his innocence such as the fact that someone may have drove him there and then left. If no alternative explanation is proffered then the person will likely get convicted.

Therefore, you see that it does not take direct evidence of driving to prove someone was DUI, the CA laws allow for this to be proven in many different ways.  If the circumstances indicate beyond a reasonable doubt that you were driving at some point when you were impaired, you can get a DUI.

I Got a DUI But Live in Another County, Can I Have The Case Moved?

Under California DUI Laws, a person who is arrested in one county but lives in another can ask for what is called a change of venue.  This principle applies in reality only to the DMV hearing but can also be requested for the criminal case, but with little chance of success.  The request for a change of venue is rooted in the California Vehicle code and permits an out of county driver to have a DMV hearing held in the county in which they reside.  There are limitations to the request and the DMV has the right to object to the move if it presents an undue hardship on their case, such as if there are witnesses needed to testify at the hearing that live where the incident ocurred.

What are the benefits to requesting a change of venue for the administrative hearing in a DUI case?  First, it is likely going to be much more convenient for the licensee to travel and appear at the hearing if necessary.  Second, in many cases moving the hearing to a distant field office has the advantage of taking the "home town" advantage away from the arresting officer.  Let me explain:  If you are arrested in a locale where the arresting officer does many hearings, the hearing officer will know the cop and may feel less inclined to rule against him or her on a close case due to the fact that they will likely see each other again.  So, the reason is one based in human nature.  If the hearing officer does not know the cop, he or she will presumably be more objective, fair and unbiased.  Now, this must be tempered with the prospect that by moving the hearing to a new county you may get a hearing officer that is worse than the one set to hear the matter in the county of arrest.  This can be dealt with by the attorney and make the call as appropriate and should be balanced against all other factors.

One other advantage to requesting a change of venue is that the hearing will usually be delayed due to the process of having the case file transferred form one county to another.  This is always a good thing, a delay in any case nearly always benefits the licensee and allows more time to prepare, plan and strategize the hearing in relation to the criminal case.

What's Going On In The Mind Of A DUI Cop

For many, the process of a DUI arrest is a very foreign concept.  But wouldn't it be nice to know what is actually going through the mind of a cop during a DUI arrest.  According to one top DUI Lawyer in California, Hieu Vu, the thought process derives from his or her training and goes something like this:

 A police officer is trained to take notes during the evidence gathering stage. However sometimes an officer will make a mental summary of the evidence collected during 1) vehicle in motion stage, 2) personal contact stage, and 3) pre arrest screening. The amount of information an officer has to record is overwhelming. An officer is specially trained to look for people who drive under the influence. When police officer gather evidence to determine if a person should be arrested for a DUI violation they ask themselves three questions. Should I stop the car? Should the driver exit? Is there probable cause to arrest the suspect for DUI? Today, we will cover the first of three stages.
First an officer will ask himself “should I stop the car?” This is also known as phase 1: vehicle in motion. This involves the initial observation of vehicle and operation. This means they are looking for certain symptoms of impairment to manifest itself in your driving. These things can include failure to maintain proper lane position which manifests itself in weaving, weaving across lanes, straddling a lane, swerving, turning with wide radius, drifting, and almost striking an object or another vehicle. The officer is also trained to look for speed and braking problems. These problems can manifest itself in stopping too far, or jerky stop. The office officer is also trained to look for rapid acceleration or deceleration, whether a person is alternating between speeding up, slowing down and also if they are going too slow. (10 miles under the limit.) Vigilance problems in driving are also an issue. These problems manifest itself in driving in the opposite lane, going down the wrong way street, a slow response to traffic signals, a slow or failure to respond to an officer signals, stopping in the lane for no apparent reason, driving without headlights at night, and failure to signal or signal inconsistent with action. Judgment problems are also an issue. These can manifest itself in a driver following another car too closely, improper or unsafe lane change, illegal or improper turning (meaning turning too fast). An officer is also trained to look for improper response when he signals for you. When an officer signals for you to pull over stopping inappropriately will also count against you. For example, stopping in a prohibited zone, or at a crosswalk. Drinking in the vehicle, urinating at roadside, arguing without cause and other disorderly actions are also visual cues that the officer is trained to look for.

An experienced DUI cop in the state of California is also trained to look for people who appear impaired when driving. This could include eye fixation on the road, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or the infamous face close to the windshield. A lot of these cues can occur when a person is tired or distracted. For example when a person uses a cell phone and gets distracted, this will result in weaving or drifting or striking another vehicle. Also when a person realizes there is a police officer behind them, they may keep their eye on the rearview mirror, which results in drifting and weaving because the eyes are off the road. It is perfectly natural to feel uncomfortable when a police officer is behind you. This is also known as black-and-white fever. Some people are cautious drivers and drive below the speed limits quite often, or some of us make snap decisions and go for U-turn at the last minute; this does not mean a person is impaired. These cues are part of a calculus the police officer would use in deciding whether or not to stop you.

How Does a DUI Affect a Nurse in California?

Nurses are trained to help people who are sick and need of help.  However, who is there to help a nurse when they get into trouble?  Attorney Matthew Ruff has been fighting for health professionals charged with drunk driving for over 22 years.  Unfortunately the state of California has little sympathy for nurses arrested for driving under the influence.  Indeed, they come down harder on them than they do Doctors.  The good news is there is hope to get out of this mess with the assistance of an experienced lawyer.  

For many it is the fear of the unknown that presents the biggest stress.  Therefore, I have put together a brief synopsis of the general laws relating to this topic and some information that will allow you to cope with your anxiety.  

The law in CA, as is the case in most jurisdictions, allows the licensing agency to discipline those who engage in  unprofessional conduct, including the misuse of alcohol and drugs.  A criminal conviction for VC 23152 can indeed result in the loss of a nursing license in many cases.  The statutes define misconduct pertaining to DUI as " anything that is substantially related to the qualifications, functions, or duties of a registered nurse".   The Board deems any alcohol related misconduct to be an act that warrants discipline.   But wait, don't panic, there must first be a conviction in Court for the criminal offense of DUI, drunk driving or driving while under the influence in order for this "presumption" of disciplinary action to kick in.  This is where a criminal defense attorney can step in and provide help.  Let's first talk more about the laws, regulations and rules that govern the field.  Matthew Ruff, a California DUI lawyer specializing in representing nurses in drunk driving cases, provides some background.

Like many other states, California has a licensing board that regulates and licenses nurses.   The main licensing body in CA is the Board of Registered Nursing which is a branch of the Department of Consumer Affairs.  Any person who wishes to become an R.N. has to be approved by the Board.  There are numerous ways the state can punish nurses who are arrested for a DUI.  In addition to the criminal sanctions imposed by the courts, the state can and often will take action against a person who possesses a professional license such as a nurse or other medical professionals.

The process starts with a letter from the Board of Nursing that offers the offender an opportunity to participate in a diversion program that will keep the incident off the licensee's record.  The letter will request that the individual contact the Board to discuss the case.  Care should be taken when deciding whether to take part in a diversion program because not all nurses who are arrested for DUI are good candidates for the program.  For example, if the offense involved a low blood alcohol level, no accident and there is no history of discipline or past convictions for any criminal acts then diversion may not be a good alternative.  If diversion is declined the state will refer the matter to the enforcement unit that will conduct its own internal investigation of the case and determine if a petition to suspend or revoke a license is appropriate.  In one recent case that attorney Ruff handled for a R.N. In Redondo Beach, he was able to guide the accused through the process and avoid any action against the nurse.  In Court which was decided in Torrance, the lawyer negotiated a disposition for a reduced charge and the driving under the influence allegations were dismissed.

One type of DUI that has particular significance to nurses is when the offense relates to abuse of prescription drugs.  As you might expect the Board considers these kinds of  cases much more serious than those that involve alcohol only.  Hiring an attorney who knows the nuances of drug impairment and California Vehicle Code 23152(e) which is the statute that pertains to driving while under the influence of drugs alone, is very important.  In one recent case attorney Ruff represented a registered nurse who was arrested after a collision on the freeway in Torrance CA.  A blood test revealed the presence of high amounts of opiates among other prescribed medications.  The case presented challenges due to the accident and her occupation.  Nonetheless, the attorney negotiated a disposition for reckless driving (Vehicle Code 23103) which put her in a more favorable position to deal with disciplinary proceedings that followed.  A reduction of the criminal charges to something other than DWI will almost always benefit the client with regard to license consequences.

So, that leads us to the crucial question many people come here for:  Can a nurse lose his or her license in California for a DUI?  The answer is surprisingly yes, even for a first tim offense.  The case law is against those who choose to not fight the DUI charge in Court, plead guilty or no contest and later challenge a Board suspension order.  For example, in one noteworthy case a well respected registered nurse was convicted for a DWI for having a blood alcohol level of .16 BAC.  He presented letters and testimony that he was a great nurse with no record of discipline.  Despite this, the Board suspended his nursing license and he appealed, the Court sided with the Board of Registered Nursing.

Any attempt to suspend a nursing license must start with the initiation of a disciplinary process.  The process is regulated by various California State Laws such as that found in Business and Professions Code section 2762,  which provides in pertinent part that a licensed nurse engages in unprofessional conduct when he or she uses alcoholic beverages "to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public," or is convicted of a criminal offense involving the consumption of alcohol.   According to California DUI Attorney Matthew J. Ruff, the Board will look closely at the police reports in any given case to determine if the conduct violates this law.  One way a DUI can implicate the relevant code is if the licensee's blood alcohol level was extremely high.  In california the law dictates that a BAC of .15 or higher should be construed as an aggravated offense.  A blood alcohol level is usually determined from a breath test or a blood test taken after the arrest.  However, Ruff explains that many tests can be successfully challenged on the grounds that the official standards were not followed or that the individual was below the per se level of intoxication at the time of driving, a theory referred to as the "rising blood alcohol defense".  Indeed, in one recent case, attorney Ruff related how he was able to have the DUI charge lowered for a client in nursing school due to violations of the testing protocol known as "Title 17".  One thing remains clear, if the BAC levels are not fought, the accused faces a difficult road as far as the state licensing board is concerned.

In one recent California Appellate Court case a Judge ruled that even a first offense DUI where the nurse had a blood alcohol level of .16  and was involved in an accident was enough to trigger a suspension that was brought by the licensing board or registered nursing.  The Court found that the facts of that case, notably the conviction for Vehicle Code section 23152, were substantially related to the duties and functions of a nurse.  What was interesting in that case was the fact that the registered nurse had no prior history of drunk driving or any alcohol abuse, no criminal record and was highly respected by her peers. 

So where does this leave the average nurse that has the unfortunate luck to have been arrested for a DUI in California?  According to many attorneys who defend nurses charged with driving under the influence and other related criminal offenses, "do not plead guilty or no contest to any DUI without first consulting with an attorney".  Particularly in cases where a collision was involved or where the breath test reveals a blood alcohol level anywhere above a .14%.  The authorities seem to focus on these cases but any DWI arrest can trigger an investigation which will lead to a letter asking for information about the incident.

If the nurse pleads guilty or no contest in court, or fails to challenge the DMV action and there is any finding that a DUI was committed than the state can and will take action to suspend or revoke the person's nursing license.  Therefore, any health care professional, R.N., LVN, RPN, or anyone thinking about becoming a nurse in California,  facing an upcoming court date should proceed with caution.

How Long Does A California DUI Stay On My Record?

The laws in various states differ as to how long a drunk driving arrest stays on a person's record.  there are two aspects of the question that need to be answered seperately.  The first is the DMV aspect.  In CA the DMV will keep a DUI on a driver's record for a minimum of 10 years.  The reason for this is that a conviction for either VC23152a or VC23152b will be priorable for ten years meaning that if the person picks up another driving under the influence with that time frame then the DMV will use the prior DUI as an enhancement to impose harsher suspensions and even jail time on the criminal side.

The second aspect is the criminal record.  Here, it is possible to get a criminal conviction for DUI off a criminal record in as early as 3 years.  This can be done by utilizing the expungement process that California dui laws allows in any criminal case, pursuant to the penal code 1203.4 statutes.  By getting the conviction expunged it allows a person to say they have no conviction for DUI even though it remains as a priorable offense on the perso's DMV record.  So, you can see there is a two part response to the question: How long does a DUI stay on my record?