Patrick J. Silva
Silva & Silva
Attorneys at Law
* 17 Years of Top Level DUI Experience!
* I Teach Other Lawyers DUI Defense!
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California DUI: Basic FAQs
Answers to the common DUI questions
What constitutes drunk driving in California?
You don’t have to be drunk to be guilty of the offense of driving under the influence (DUI) in California. Under California law, DUI means either driving while “under the influence” of alcohol and/or drugs (legal or illegal), or driving with a blood-alcohol level of 0.08% or greater—0.05% or greater, for people under 21 years old (VC § 23140).
What’s the best result of a first conviction?
Assuming there is no bodily injury or death resulting from the DUI, the minimum penalties for a misdemeanor first conviction are a fine of $390 fine plus over $1,000 in ordinary penalty assessments, plus additional DUI-only assessments for a total of approximately $1,800. You will also have either a 48-hour jail sentence or a 90-day license restriction allowing you to drive to and from your work—and for work—if required, and to and from an alcohol treatment program. You will also have to attend and complete a $500, three-month alcohol-treatment program (nine months if your blood alcohol level was 0.20% or higher. You’ll also lose your driver’s license for at least 30 days, followed by either a five-month restriction to drive to, from, and for work and to and from an alcohol treatment program, or an additional two-month restriction that allows you to drive only to and from the program.
What about a second conviction?
A second conviction within ten years means you will definitely serve at least ten days in jail (probably more) and have your license suspended for a year, without allowing you to drive to and from work. And those are the minimum penalties—which judges frequently exceed, especially in sentencing repeat offenders
Should you take the chemical tests or refuse to take them?
You will almost always be better off taking the blood or breath test when it is requested by the police. See our article on What If You Don't Consent to a Chemical Test.
What do the police have to prove in a California DUI?
The prosecutor in a DUI case have to prove that
You drove a vehicle—that is, you steered and controlled it while it was moving.
At the same time, you were “under the influence” in that your ability to drive safely was affected to an appreciable degree by an alcoholic beverage you drank, a drug that you took, or the combination of the two.
What happens if the driver switches seats with a passenger
Sometimes a drunk driver and a sober (or, at least, less drunk) passenger will try to switch places in their seats just before the officer approaches the car. This tactic almost always fails to fool the officers, and can often make the situation worse if the officer later testifies in court as to all the “furtive movements” occasioned by this awkward and desperate ploy.
How hard is it to beat a California DUI charge?
If the results of your chemical test showed a BAC substantially over the .08% limit, your chances of beating a DUI charge are slim. Defense attorneys’ statistics show that the chances of beating a drunk-driving charge by going to trial are low. If your case is rife with hopeless circumstances (for example, blood alcohol over 0.15%, dismal failure on coordination tests, etc.), you should be wary of an overly optimistic lawyer who tells you your chances are excellent while demanding more and more money as the case drags on. On the other hand, an experienced California attorney may be successful at reducing the charges and resulting penalties. At the very least, try to hire an attorney for the limited purpose of fully explaining your options to you, or perhaps to try to work out a plea bargain with the prosecutor. If you’re unable to afford an attorney, you should ask the judge to appoint a lawyer for you when you first appear in court.
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