DUI related offenses are among the most common offenses in the state. Usually, the first-time, second-time, and third-time DUI charges are prosecuted as misdemeanors. Fourth-time DUI charges are usually prosecuted as felonies. However, there are aggravating factors that could see you face felony charges, which come with harsh penalties. Regardless of the DUI related charges that you are facing, the San Diego DUI Attorney has experienced DUI defense attorneys that are ready to take up your case. Get in touch with our local Calexico Lodge DUI attorney for professional legal representation and advice.
The Legal Definition of Drunk Driving
Drunk driving is being behind the wheel of a moving vehicle while intoxicated. The prosecution in these cases focuses more on whether or not the car was in motion. Officers rely a lot on circumstantial evidence to determine if there were any movements with the vehicle. Some of the inconclusive evidence that can be used to show the car was in motion include turned on car headlights, a running vehicle engine, the drunk person seated on the driver’s seat, and car keys in the ignition.
The Meaning of Driving Under the Influence
Driving under the influence explains the incapacity to drive a vehicle with caution due to physical and mental impairment resulting from drugs or alcohol. The degree of influence is the one that makes you not to drive with the caution that sober or ordinary prudence would have operated with. The prosecutor usually uses facts such as accidents, over-speeding, and swerving while driving to prove you were intoxicated, which caused impairment.
Most people usually assume that DUI has one charge, but it involves two charges mentioned as the (a) and (b) count. The (a) count disapproves misconception that one cannot get a DUI charge with a low alcohol level than the required content which .08% or more. What the prosecution focuses much on in these cases is showing that you were drunk at the time you were stopped in traffic to build a case against you.
For the count (b) offense, which is commonly regarded as the per se count, will deem you impaired if you have a blood alcohol content of 0.08 or higher. To be convicted under this count (b) offense, the prosecutor should prove that you were driving the vehicle, and your BAC was higher than the recommended rate while driving.
It is important to note that BAC tests take thirty minutes or more after the police officer stopped your vehicle. However, the law presumes that you had a similar BAC level even if the tests made three hours after the stoppage. For the prosecution to convict you for a DUI when you took a three hours window before the BAC test was taken, the prosecution must provide enough evidence about your BAC level at the time the stoppage.
California DUI Penalties
The kind of penalties that a DUI offender receives depends on whether the person has ever committed a similar offense in the past or not. The California DUI Laws state that a conviction cannot include a prior offense for a subsequent crime if the prior DUI offense occurred ten years ago. The prior DUI conviction will count if it falls on your record within ten years from the date of the previous offense. The penalties for these offenses are as follows:
- For a first offender, the sentence might include a jail time that can go up to 180 days, a fine of three hundred and ninety to one thousand dollars ($390-$1,000) and a license suspension that can last up to 180 days.
- For second-time offense, you can serve up to twelve months in jail, $390 to $1,000 fine, and a suspension of your driver’s license up to twenty-four months.
- A person arrested for the third DUI offense risks a fine of $390-$1,000, jail time of one year, and 36 months of driver’s license suspension.
- A fourth and subsequent offense is charged as a felony and has different penalties. The fine can range between $390 – $1,000, jail time of three years in state prison, license suspension for four years, and five years in probation which might also include a 30 months DUI schooling. An offender charged with fourth and subsequent DUI offense also risks a mandatory installation of an ignition interlock device in the vehicle for three years. Finally, a fourth conviction will appear on your criminal record permanently.
DUI Penalties Involving Bodily Injury
There are chances of getting a higher conviction and a severe punishment if you injure someone in a DUI accident. You can get charged with felony driving under the influence depending on the nature of the crash and your previous criminal record. If you are convicted of DUI involving bodily injury, the penalties you are likely to face are:
- A fine of between $390-$1,000
- Substantial penalty assessment fee that can raise to $180,000
- Restitution to the injured parties
- Jail time that can last up to three years
- Driver’s license suspension for four years with the possibility of permanent suspension
- Probation for three to five years and complete a thirty-month school if it is a fourth offense
You will also have to install a mandatory ignition interlock device for three years, which also requires you to qualify for a restricted license so that you can retrieve your driving privileges.
In the case of an extreme fatality, the defendant faces prosecution for vehicular manslaughter, which includes murder charges such as negligent vehicular manslaughter while under intoxication PC191.5b and Gross vehicular manslaughter while under intoxication PC191.5. It also consists of a second-degree murder PC187 regarded as the “Watson murder “and a second-degree murder PC189.
The prosecutor could charge the offender with second-degree murder (“Watson murder”) if one had a former drunk driving charge. The name “Watson murder” derives its name from the 1981 California Supreme Court Case between People v. Watson where the ruling found Robert Lee Watson guilty of second-degree murder. The sentence based its support from the fact that he acted recklessly without conscious regard for human life. Whenever you are facing a DUI charge involving bodily injury, contact a Calexico Lodge DUI attorney for legal help.
DUI Penalties For Commercial Drivers
Commercial drivers hold a higher standard offense compared with regular drivers. The Federal Motor Carrier Safety Administration (FMCSA) has established the regulation of a legal BAC limit of 0.04%, which is a lower threshold compared with the standard limit of 0.08% for a DUI. As a cautionary measure, drivers should be careful with their options since they can easily blow a 0.04% BAC level despite feeling sober.
The FMCSA states that a denial of an alcohol test is equivalent to being guilty of a DUI, risking the possibility of license suspension or revocation. For a first arrest, the driver risks a license suspension for a full year. A second arrest imperils a permanent repeal of the driving license which means that you can’t work again as a commercial driver. The body states that the employer to the driver must get notification about the offense within 30 days after the arrest.
Based on the nature of the offense, a commercial driver can face jail time of three years or more if the driver was operating a vehicle with hazardous materials. Also, the driver can face life imprisonment if there are subsequent offenses, and if the driver was carrying a controlled substance.
Penalties Involving a Foreign Citizen
A foreign citizen faces all the charges stated above with added complications for consequences related to immigrants. Foreign nationals charged with a drunk driving offense require representation by a law firm that knows both immigration and DUI laws to navigate the additional penalties that might follow. Some of the effects that follow immigrants charged with DUI include Visa revocation, deportation, and deportation with an aggravating factor.
- Visa revocation
Individuals arrested for drunk driving risks an automatic cancellation of Visa according to the US Department of State. This decision occurs quickly without the chance of defending yourself against the drunk driving charge. The US Department of State does not require a guilty plea at all. If you are a non-immigrant or a dependent such as International visa students, exchange scholars, a visitor, and highly skilled worker you will also be affected by the US Department of State if you are facing drunk driving charges.
It is important to note that someone with a revoked visa cannot re-enter the United States without reappearing before the Consular office and re-establish the eligibility of the Visa. If the foreign national attempts to enter the USA with a revoked visa, one risks flagging before boarding a flight or denied entry to the US after landing.
Anyone without proper documentation is taken to be an illegal immigrant. Therefore, one risks deportation whether found guilty of driving while under the influence or not if they were arrested without being in the United States legally. The Immigrant Custom Enforcement usually issue an immigration hold once they know about your DUI arrest. Therefore, it is necessary to deal with your DUI charge by hiring the right attorney to keep a record free of any criminal involvement to avoid the possibility of any removal procedure.
- Deportation with Aggravating factors
Following a case in 2004 “US Supreme court Local V. Ashcroft,” the Court ruled out drunk driving from being a crime of violence. Therefore, it is not an aggravating felony as perceived in the past. However, any aggravated felony falls under the convictions that ground the possibility of deportation.
Even so, there are convictions that include aggravating factors that can lead to deportation and problems when re-entering the USA. Some of the aggravating factors include driving while intoxicated with alcohol, driving with a suspended license, driving under the influence of substances controlled by the DEA and multiple DUI cases. It also consists of an incident that involves a child in the car or minor DUI.
Ways to Fight A DUI Charge
You should first understand that in any case, the offender remains innocent until the prosecutors prove him or her guilty. Your Calexico Lodge DUI attorney can help identify any legal flaws to the critical pieces of evidence provided by the prosecutor. Some of the ways that can help you out include claiming that the Breathalyzer test was inaccurate, there were medical conditions, and police errors. There are also other ways such as identifying no reason for the DUI stop, police report errors, improper sobriety checkpoints, among others.
- Challenging the Breathalyzer tests
Did you know that a DUI Breathalyzer does not measure the Blood Alcohol Concentration Directly? It can be an excellent defense that you can apply to challenge the results provided by the prosecution. The Breathalyzer usually assumes the blood content at a ratio of 1:2100. The rate can range to 1:11300 according to the breathing pattern, body weight, sex body weight, and temperature. The results can, therefore, vary because of these factors, which makes them inaccurate and unreliable.
Other factors that can affect the results are the margin of error that the device has, poor maintenance, improper calibration, and incorrect usage. Most experts agree that chemical testing can produce an error between 0.005-0.02 percent despite executing the test flawlessly. Poking holes on chemical test results can, therefore, get the charges reduced, or the case dismissed.
- Medical condition
The main procedure to beat a test through a medical condition is basing the errors on Ketosis. Ketosis is a normal metabolic process triggered by the lack of enough carbohydrates from the food to provide energy. Thus, the body will try to burn your fat cells that produce ketones. For those that have diabetes, ketone results from failure to use insulin. Therefore, when the body attempts to remove ketones, they convert to alcohol removed through breath or urine. If a BAC test is conducted on people with these medical conditions, it shows the BAC levels can appear higher than average or can even be detected when the person is not drunk.
- Unreasonable DUI stoppage
A police officer should stop a suspicious driver when there is reasonable suspicion for being drunk or intoxicated with drugs. Thus, the officer should stop you if you exhibit patterns such as running past a stoplight and over speeding. Explain the procedure that was used to stop you in traffic so that the attorney can find weaknesses to exploit on the way you were stopped. A good lawyer will be able to navigate through the motion to suppress any evidence that includes illegal searches. He or she can exclude any test results except those from a DUI sobriety checkpoint by claiming the other DUI stoppages were unlawful. Suppressing key indications can lead to a dismissal of the entire case since the police must provide relevant evidence.
- Improper field sobriety tests
Field sobriety tests do not accurately indicate any possibility of impairment. There are only three tests that provide accurate test results. They include the horizontal gaze Nystagmus that accounts for 77% accuracy and standing on one leg, which provides a 65% accuracy. FSTs also consists of a walk and turn test that counts for 68% accuracy.
Anyone can challenge a sobriety checkpoint test by proving that they cannot pass a sobriety test even when sober. You or the attorney can provide reasons such as lack of coordination, nervousness in the presence of police and poor balance. You can also claim that your shoes and clothing could have interfered with the tests.
- Test without proof of driving
One of the significant factors that a prosecutor must prove is the fact that you were driving a vehicle while drunk. However, it can be challenging for the prosecutor to make such proof if you were found drunk in a parked vehicle. Also, a Calexico Lodge DUI attorney can challenge the case if your car was in an accident, but no one saw you driving it. They should check any footage showing whether you were driving before using this as a way to challenge the allegation.
- Violation of the California Title 17
Most errors provided in the police report arise from the blood alcohol tests that one undertakes. There are specific requirements provided by Title 17 of the California Code of regulations that the person performing the analysis should follow.
Essential requirements highlighted by Title 17 include:
- Having an authorized technician draw your blood
- Sterilizing the draw site using an alcohol-based cleaning agent
- Using the right amount of preservative or anticoagulant in the blood sample
- The technician should not use an expired preservative or anticoagulant
- Refrigerate or store the blood sample properly
Any violation of these requirements can exclude the case or raise enough doubt to dismiss it.
Find a Calexico Lodge DUI Attorney Near Me
After a DUI arrest, you might feel confused and unsure of what to expect. We at the San Diego DUI Attorney are ready to offer you the best legal representation so that you get better outcomes if you are charged. If you are in Calexico Lodge, contact our local office at 619-535-7150 to get our help.