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First DUI in San Diego

After a DUI arrest, it’s easy to assume that the evidence the police have collected is too much to overcome. This is especially true if it’s your first time going through the DUI process. You likely have failed a field sobriety test or tested over the legal limit in a breath or blood test. Even if this is the case, it’s important to understand that the law provides several safeguards to ensure that the police did not violate your rights when collecting evidence and conducting their investigation. Any evidence that is collected in violation of these rights should be suppressed or thrown out and may leave the prosecution with no choice but to dismiss your case.

If you are arrested for your first DUI, you may be unfamiliar with the California DUI laws. It is highly recommended that you consult with an attorney, who can walk you through the steps of the DUI process and help you build an effective defense strategy. This article will provide some background information on California DUI law and give you an idea of what you can expect after your first DUI arrest.  However, if you have further questions, we encourage you contact our office today for a FREE DUI consultation. At the San Diego DUI Attorney, we have lawyers with decades of experience in defending DUI cases. We know exactly what to look for in the facts, and what arguments will serve you best at trial.                                 

DUI Traffic Stop – Was there Probable Cause?

Most DUI cases begin with a traffic stop.  As such, the first hurdle the prosecution must overcome, is proving that the initial traffic stop was permissible. In other words, the police must show that they had some reason to pull the driver over.1 At this stage, any traffic violation is sufficient to warrant a stop; even if it does not immediately suggest that the driver is under the influence. For example, a broken tail light, expired registration, or rolling a stop sign all permit the police to stop the vehicle. While there are a number of violations that can lead to a lawful stop, the prosecution still bears the burden of proving that the reason for the stop did in fact exist. If the police report states that the driver was initially stopped for rolling a stop sign but eye-witness or video evidence proves that a full stop was made, the traffic stop should be found invalid and the resulting evidence should be suppressed. This prevents the police from pulling over cars without cause and remains in effect even if the stop ultimately reveals evidence that the driver was over the legal limit.

Furthermore, in DUI cases involving a lawful traffic stop, the prosecution still must prove that probable cause existed for the DUI investigation.This means the prosecution must point to specific and articulable facts that reasonably suggest that the driver is under the influence. For example, a broken tail light or expired registration by itself, in no way suggests that the driver is drunk. The police must be able to point to additional facts such as slurred speech, the smell of alcohol, or some erratic behavior before a DUI investigation can be initiated. If the prosecution cannot point to these facts, evidence obtained as a result of the investigation should be suppressed.

Finally, in addition to the traffic stop and investigation, the police also need probable cause to make the actual DUI arrest.3 Typically, this will be proven with evidence of a failed sobriety or breath test. However, it’s important to remember that the police must follow the law in all of the steps leading up to the test. Essentially, if a breath test should not have occurred, evidence of the test should not be admissible.

If you, or someone you know, has been involved in a DUI arrest, do not assume that evidence of intoxication is sufficient to lead to a valid arrest or conviction. It’s important to consult an attorney to ensure that your rights are being protected at every stage of the case.

The Elements of DUI – California Vehicle Code 23152

Most people don’t realize there are actually multiple ways you can be guilty of a DUI in California.  To be convicted, the prosecutor will have to prove one of the following beyond a reasonable doubt”

  1. You had a blood alcohol concentration (BAC) of at lest .08% while operating a motor vehicle;
  2. You were under the influence of alcohol while operating a motor vehicle; or
  3. You were under the influence of drugs while operating a motor vehicle.

Note the distinction between points 1 and 2.  Many people assume that they need a BAC of .08% to be guilty of DUI.  This is actually incorrect.  Even if your BAC is under the legal limit, if your driving ability is impaired because of drugs/alcohol, you will be subject to a DUI conviction.  To prove “impairment” the prosecution will have to show that because of alcohol, you were unable to drive as a reasonable sober driver would under the same circumstances.  If your BAC is over .08%, the law assumes that your driving was impaired.

As you probably know, it is the prosecution who bears the burden of proving that you fall into one of these three categories.  This presents a number of opportunities for us to poke holes in the prosecution’s case.  If they cannot show beyond a reasonable doubt that you violated the law, the charges against you will be dismissed.    

What you can Expect After a DUI Arrest

Once the officer felt sufficient probable cause existed, you were likely placed under arrest.  At this time, the officer would have confiscated your driver’s license and issued you a pink piece of paper.  This pink paper is known as an “Admin Per Se”.  Essentially, this paper is your temporary driver’s license.

From the moment of your arrest, you have 10 days (including weekends), to request a hearing with the Department of Motor Vehicles.  If you do not do so within 10 days, you waive your right to a Hearing.  The DMV Hearing has no direct bearing on your guilt or innocence; that will be decided in the criminal proceeding.  However, the DMV Hearing is extremely important, as it determine your driving rights while your case is in progress.  If you fail to request a Hearing, your license will automatically be suspended once your Admin Per Se expires.  If you do request a Hearing, the suspension can be delayed, at least until the Hearing is complete. 

The DMV Hearing focuses on the following 4 issues:

  1. Whether the police had reasonable suspicion to make the traffic stop;
  2. Whether the police had probable cause to make a DUI arrest;
  3. Whether you were properly informed of the consequences of refusing a breath or blood test; and
  4. Whether or not you refused a breath or blood test.

While a favorable result at the DMV Hearing does not ensure that you will succeed in the criminal court, it can provide some insight as to the amount of evidence the prosecution has.  Further, it provides a great opportunity for your attorney to cross examine the arresting officer.  Therefore, it is always recommended that you do request the DMV Hearing within 10 days of your arrest. 

Our attorneys have years of experience and have produced positive results representing clients at their DMV Hearings, and are happy to assist you at each step of the DUI process.  If you need representation for your upcoming DMV Hearing, contact us today for a FREE consultation.    

Some time after the DMV Hearing, the criminal court process will commence.  This is where the prosecution will have to prove the DUI elements discussed above.  During the criminal trial, your attorney can make a number of arguments to show why you should not be convicted of DUI.  Some of the more common defenses include:

False Positive Readings

In some cases, the testing equipment simply does not work properly.  This can lead to an inaccurate BAC result.  The accuracy of breath test results has been questioned for years.  Additionally, a number of factors can lead to “mouth alcohol”.  A simple burp, or dental procedure, can leave more alcohol in the mouth and produce a false positive reading.  Diet and health conditions can also affect the reading.  

Rising Blood Alcohol

In some cases, your BAC can actually be higher at the time it is tested, than it was when you were driving.  This may occur if you were arrested very shortly after you consumed alcohol.

Lack of Probable Cause

As discussed above, the police need a reason to stop your vehicle, and to to conduct a DUI test.  The police must be able to point to “articulable facts” that suggest you were under the influence before making you take a field sobriety or breath test.

Failure to Read Miranda Rights

A DUI arrest is often seen as somewhat of a Miranda loophole.  Even so, if you are questioned after you are arrested, you must be read Miranda rights.  If you are not, evidence obtained from the questioning should be suppressed.

Illegal DUI Checkpoint

When the police conduct a DUI Checkpoint, there are a number of procedural requirements they must adhere to.  If they conduct an invalid checkpoint, the evidence against you can be suppressed.

Title 17 Violation

California has strict requirements regarding how breath and blood samples should be collected, stored, and analyzed.  If these are not adhered to, the sample may be inadmissible. 

Hiring an attorney who knows how, and when, to make these arguments will give you the best chance of reaching a favorable result.  Contact one of our attorneys today, you we can begin building your defense.  

Penalties for a First Time DUI

If you were recently arrested for a First Time DUI, you are probably wondering what types of penalties you will face.  While California treats all DUI’s as very serious offenses, it is common that first time offenders face less severe penalties. 

Penalties for a first-time DUI depend on a number of factors, including the circumstances of your case, your particular judge, and your prosecutor. A conviction for a first offense DUI involving no death or bodily injury typically mandates, but is not limited to, the the following penalties:

  • A fine of between $390 and $2,000, which includes penalty assessments.
  • The successful completion of an alcohol treatment program. If your BAC was at or below 0.2%, you are required to attend the program for 9 months.
  • A jail sentence of 48 hours.
  • Suspension of your driver’s license for a minimum of 30 days, followed by driving restrictions (you may request a restricted license, which only allows you to drive to and from work and your alcohol treatment program).

Keep in mind that DUI sentences will vary on a case to case basis.  Courts will consider a number of aggravating factors that could increase the penalty you ultimately receive. Some of these factors include:

  • Causing property damage or injury;
  • BAC of .15% or above;
  • Driving with a passenger under the age of 14;
  • Refusing a breath or blood test after arrest;
  • Excessive speed;
  • If you are a minor at the time of arrest; or
  • You driving without a license at the time of arrest.

What will the San Diego DUI Attorney do to help defend my First Time DUI charge?

As discussed above, the consequences of a DUI arrest are severe, and can impact your personal life, and your career. When faced with a DUI for the first time, it’s crucial do everything in your power to avoid a conviction. An experienced San Diego criminal defense attorney, with expert knowledge of DUI cases, will help you navigate the legal system and ensure the best possible outcome.

San Diego DUI Attorney specializes in DUI and criminal defense law, serving clients in San Diego, Vista, El Cajon, Oceanside, Chula Vista, and other San Diego County communities.

Contact our office today at 619-535-7150 for a FREE DUI consultation.


1 People v. Ramirez, 59 Cal. App. 4th 1548; People v. Jones, 126 Cal. App. 3d 308

 2 Terry v. Ohio, 392 US 1, 20.

3 United States Constitution, Amendment IV

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