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Picture this for a moment. You’re at a bar, maybe having some soda and nachos. All of a sudden, your co-worker comes in and says “Jim, you got that promotion, you’re the new VP of Marketing!” Emotions swell, the soda won’t cut it, and you’re buddy is already off buying shots. No you exclaim, I have to drive, “Come on Jim, just a couple!”. Fine, you cave into the peer pressure. You’re in Irvine, California, you know drunk driving laws are heavily enforced in Orange County, but what the heck? You got a big promotion. So you drink a shot, then another, then another, your co-worker buying you them quickly after you shoot the previous one down. Now, 6 minutes and 5 Patron shots later, you feel you need to get back home quickly because your wife is off to work and someone has to watch the kids. So you leave, and drive. You feel fine, it’s only been 6 minutes and 5 shots. You drive off and when making a turn, you don’t use your turn signal. A police officer notices this, and pulls you over. At this exact moment, are you impaired? What is your BAC? Alcohol takes time to metabolize in your system. After 15 minutes of initial observation, warrant and license checks, etc., the police officer believes you are operating a motor vehicle while under the influence.
So here’s where the rising BAC defense comes into play. When you left the bar, your BAC (even with 5 shots of tequila) was probably low. When you entered your car, it may have risen somewhat, but it’s still low. When the police officer pulled you over, your BAC is low, BUT rising. After half an hour of field sobriety tests, preliminary breathalyzer tests, your BAC is probably higher than the per se limit of 0.08%. The rising BAC defense is quite simple. According to VC 23152(b), it is illegal to OPERATE a motor vehicle with a blood alcohol concentration of 0.08% or higher. When you made the turn without your signaling, it is obvious you were operating a motor vehicle, but was your BAC greater than 0.08%. Alcohol can take up to 15 minutes to absorb into the blood stream and reach peak concentrations. It can be argued that 8 minutes after taking your first shot of tequila and making the turn, alcohol was still being absorbed and your BAC was “rising”, but under 0.08%.
Thus in certain circumstances, this can be a great defense to the per se violation of driving with a BAC of 0.08% or higher. Keep in mind, this tactic is applicable in certain situations. Only a http://newportbeachcaduilawyer.com/index_files/HuntingtonBeachDUILawyer.htm is best able to ascertain whether or not you can use the rising BAC defense.
Be on the lookout this Friday in Costa Mesa as the Costa Mesa Police Department is planning to set up a DUI (sobriety) checkpoint, at an undisclosed location. This effort to combat drunk driving is part of a larger push statewide as the Halloween holiday rapidly approaches us. Make sure you use a designated driver or simply not drive at all if you have had too much to drink as the penalties for drunk driving are quite harsh in Orange County.
With so many Orange County DUI Lawyers out there, how do you determine what qualifies one as a top-notch DUI attorney? Well there are several factors worth looking at, let’s examine them here:
- Experience: You know the old saying, “there’s no substitute for experience”, and it definitely holds true here. Experience equals familiarity with the science behind DUIs. Experience equals knowledge, in most cases. Experience equals relationships, ones with local Orange County District Attorneys and Superior Court judges. You cannot overlook an Orange County DUI Attorney’s experience.
- Reputation: A lawyer is only as a good as his or her reputation. Clients should look at sites like Avvo, Martindale-Hubbell, AV, etc. to see what other people say about the attorney. Is the attorney responsive to phone inquiries? Is he dependable? Does he exceed client’s expectations?
- Results: There’s perhaps no better measure of an attorney’s worth than the results he’s achieved. Was your Los Angeles County DUI Attorney able to dismiss your high BAC DUI charge? Was your DUI attorney able to get DUI charges reduced to a wet reckless? How about jury trials involving DUIs, has your attorney won any?These are just a few of the qualities and characteristics one should look at when selecting an Drunk Driving Lawyer. Good luck!
One of the better plea bargain agreements out there deals with “wet reckless” pleas. A wet reckless plea can keep a person, who has prior DUI offenses, out of mandatory jail time and alcohol classes. An Orange County DUI attorney practicing in Irvine, Newport Beach, or Huntington Beach, ordinarily deals with cases arising out of Harbor Justice Center. The prosecutors at Harbor Justice Center are some of the toughest in the nation when it comes to DUI charges. Accordingly, a skilled Orange County Lawyer is essential if you want your DUI charge reduced to a wet reckless plea bargain.
A “wet reckless” or officially VC 23103.5 “Guilty Plea to a Lesser Charge” consists of the following from the Vehicle Code: ”If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of Section 23152, the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”
The bottom line with wet reckless pleas is this: if you have 1 or 2 prior DUI convictions, and are arrested on suspicion of a 3rd DUI, the minimum mandatory jail time you would be facing would be 120 days in California, plus 18-30 month alcohol school, 2 year DMV driver license suspension, as well as hefty fines, potentially an Ignition Interlock Device, a SCRAM bracelet, and other fines and penalties. Most people are concerned with the 120 days in jail. The jail time, especially in Orange County, is often increased to about 270 days, depending on the recency of the prior convictions. Now, a skilled Orange County Criminal Defense attorney, one who has prior dealings with local prosecutors and judges, can, under limited circumstances, exploit a lower BAC, breathalyzer calibration issues, medical issues to have the district attorney “lessen” the charge to wet reckless and therefore avoid the 120 or 270 days jail with the Orange County Sheriff. As you can see, this is a very advantageous arrangement since there is no minimum mandatory jail time authorized for wet reckless. Keep in mind, a wet reckless does count as a prior for DUI sentencing purposes within the 10 year look back period.
Only a skillful Orange County DUI Attorney can work with prosecutors and make the case for a reduction from DUI to wet reckless.
He literally “wrote the book”! Excellent advice from a seasoned DUI professional. His book, “California Drunk Driving Defense” is a trusted tool used by hundreds of DUI attorneys nationwide.
I get asked this all the time. “What should I do if I am pulled over after I have been drinking”. Well first off, it is NOT illegal to drink alcohol and then drive a car. What is illegal is to “drive under the influence” of alcohol and/or drugs. Under the influence simply means that you are not able to operate a vehicle to the degree of care that a reasonable person would be able to do if they had not been drinking.
Now, the above aside, I do recommend that people not drink and drive, especially in Orange County where officers are constantly on the lookout for impaired drivers. Designate a driver, call a cab, wait a few hours, get a motel room, whatever it may be.
But let’s now address the main purpose of this article, you have been drinking beers and/or cocktails, proceed to drive, and are now pulled over by law enforcement on suspicion of DUI. Here are my 5 tips:
- Be polite and courteous to the officer! I cannot emphasize this enough! Your demeanor and level of cooperation are being observed by the police officer and will become part of the officer’s narrative that the district attorney will consider when choosing to drop charges or even dismiss the matter! So be nice and non-argumentative!
- State your name and address, but nothing else. You are REQUIRED by law to give the officer your name and address, but that’s it. When probed as to how much you drank, where you drank, what you ate, etc., POLITELY refuse to answer the officer’s questions. Don’t give then testimonial evidence that CAN AND WILL be used against you.
- Refuse to take the Preliminary Alcohol Screening (PAS) device test. The officer SHOULD, but rarely does, tell you that you have the right to take it or not. Do not take it. All you will be doing is providing extra ammunition to the DA when it comes time to prosecute you. Keep in mind, if you are arrested, YOU MUST take either the blood or breath test at the police station, you DO NOT have the right to refuse this test under California’s implied consent laws. By refusing, you will get an automatic one year DMV license suspension AND you will still be prosecuted under VC 23152(a) for DUI. Last, in a recent Supreme Court ruling, law enforcement officers must get a warrant to do a blood draw
- Refuse to take the Standard Field Sobriety Tests. Again, you have the right to not take these tests. If the officer has asked you to perform these tests, it is pretty much a given you will “fail” the FSTs and be arrested anyway. Don’t give the prosecutor extra ammunition when it comes to the evidence against you, they will see the “results” of these tests and make it more difficult for an attorney to plea bargain for you.
- Hire an Orange County DUI Attorney! One that is reputable, knowledgable, experienced, resourceful, and has good relationship with Orange County prosecutors and judges. Only a trusted Orange County DUI Defense Lawyer can provide you with the best representation and fight for your freedom and rights and perhaps get a dismissal of charges or reduced sentence or charge (i.e. plea to wet reckless).
That’s it for now, be safe out there.
DUI laws in California are among the most strict in the nation. While the punishments have ranges, typically in Orange County, the punishments are on the upper range of the sentencing guidelines. Aggressive prosecutors and cops are constantly punishing drivers, even if the BAC is not 0.08% or above! So how can one get a DUI if their blood alcohol concentration is not higher than 0.08%. Let’s first examine the laws.
The California Vehicle Code prohibits one from driving under the influence of alcohol and/or drugs or if someone has a blood alcohol concentration of 0.08% or above. There are two parts to California’s DUI law, VC 23152(a) and VC 23152(b).
It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
VC 23152(a), if you notice, does not have a percentage. It is considered the “subjective” portion of Orange County DUI laws. For example, if one is under the influence of a strong prescription drugs, illegal drugs like methamphetamine, or has consumed alcohol, but perhaps has a low tolerance (and “blows” a 0.06%), they can and will still be prosecuted under the VC 23152(a) portion of California’s DUI or DWI law. It is up to the arresting officer to determine a suspects behavior, performance on field sobriety tests, and overall physical characteristics (bloodshot eyes, slurred speech) and whether or not to arrest the person under the VC 23152(a) portion of the law. Obviously, drugs won’t register on a breathalyzer machine designed to detect the presence of alcohol, therefore the statute simply says it is unlawful to drive a vehicle while under the influence of alcohol and/or drugs.
VC 23152(b) makes it illegal for anyone to drive with a BAC of 0.08% or higher. This is the “objective” part of California’s DUI laws. Most often in Orange County courts, when someone is arrested for DUI, they are charged under both statutes, VC 23152(a) and VC 23152(b) because most DUIs concern only alcohol.
Commercial drivers need to note that if they are driving a commercial vehicle, say a truck for example, then the “per se” BAC limit drops to 0.04% pursuant to VC 23152(d)
(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.
And last, but not least, one should remember the “presumptions” or assumptions in California DUI laws.
“In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”
In plain terms, what this means is that if a person registers a 0.08% BAC at the police station, it is assumed that they had at least this amount in their system when they were driving if it was within 3 hours of the test. This is used to dispel the “rising BAC defense”.
A fourth DUI in Orange County is charged as a felony. Felonies are considered the most serious crimes and are punished as such compared to misdemeanors. Having a felony on one’s record carries negative ramifications and can lead to job loss, difficulty getting a job, issues with voting and firearms ownership, among other things. Keep in mind, there are three ways to get charged with a felony DUI in Orange and Los Angeles counties, and they are:
- A 4th or subsequent DUI conviction;
- A DUI conviction after being convicted for DUI; or
- DUI with injury to a third party (VC 23153)
In Orange County, it is imperative you consult and retain a qualified and highly rated DUI lawyer who is best suited to fight for your rights, because the penalties are extreme and long lasting. The penalties for a fourth DUI conviction in Orange County are:
- 180 days to one year confinement in jail;
- 1 year DMV license suspension (no restriction for this penalty);
- Court ordered 4 year driver license revocation (restriction eligible after completing 12 month DUI program, installation of an Ignition Interlock Device, and proof of insurance);
- $390 to $1000 in fines (with penalty assessment, you will pay $2000);
- 18 or 30 month multiple offender DUI program;
- Habitual traffic offender designation pursuant to VC 13350(b);
- Increase in insurance premiums or even dropped insurance coverage;
- Possible SCRAM alcohol monitor bracelet;
- 3 to 5 years informal probation;
- Loss of employment or diminished employment opportunities.
Felony DUIs are no laughing matter. If you have the resources, then hiring an experienced Orange County DUI Attorney is a no-brainer. Only a qualified DUI lawyer, familiar with the Orange County Courts and local judges and prosecutors, can give you the best possible advantage to lessening the harsh penalties associated with felony DUIs in Irvine or Newport Beach.
This is a continuation from my previous post, but I felt it warranted its own unique entry because, as one may imagine, the penalties get significantly worse when you are convicted of a 3rd or 4th DUI offense (all within 10 years of the previous DUI offense)
3rd Time DUI Penalties
A third time DUI conviction carries significantly harsher penalties in Orange County and Los Angeles county, than does a 1st or 2nd DUI. If you are convicted of an Orange County DUI for the third time, the penalties are:
- 120 days to one year jail with the Orange County Sheriff (house arrest available in limited circumstances. An excellent Orange County DUI defense attorney is essential to achieving an electronic confinement sentencing condition);
- $390 to $1000 in fines (with penalty assessments, you will have to pay close to $2000 total in fines and penalties);
- 18 or 30 month multiple offender DUI program;
- Per VC 13350(b), designation as a habitual traffic offender;
- 1 year DMV license suspension;
- 3 year court DMV drivers license suspension (restriction eligible after 6 months if just an alcohol offense + installation of Ignition Interlock Device + completion of 12 month DUI program);
- 3-5 years probation; and
- Sharp increase in insurance coverage, possible dropped coverage from most major insurance companies.
The above penalties are very harsh. An Orange County DUI attorney once said, if you have 3 DUI convictions, you are either 1) very unlucky; 2) very foolish; or 3) an alcoholic, with the latter two in combination being the likely cause. Alcoholism is a disease, and most people convicted of their 3rd DUI offense within 10 years are alcoholic. As you might guess, some people still do not learn from their previous mistakes. I will cover felony DUIs in a future post.
DUI PENALTIES IN ORANGE COUNTY
I am continuously asked what the penalties are for a DUI in Orange County, CA. Orange County DUI laws are perhaps the harshest in the nation. Prosecutors, judges, and the public in general have little patience for those who drink and drive in Orange County, especially for repeat offenders. In this blog post, I will explain what the penalties are for DUIs in Orange County and demonstrate how an Orange County DUI Lawyer can give you the best possible chances at lessening the penalties associated with a DUI or even dismissing a DUI charge.
First Time DUI Penalties
For a 1st time DUI conviction in Orange County, upon conviction for violating VC 23152 (a) or VC 23152 (b) you can expect the following fees, fines, and penalties:
- $390 to $1000 in fines (in reality, when you consider the “penalty assessments associated with DUIs in Orange County, expect to pay an additional $1000 in penalty assessments, bringing the total to around $2000);
- 4-month DMV administrative license suspension (eligible for restricted license after 30 days when proof of enrollment in a DUI school, $125 DMV fee, and proof of insurance (SR-22);
- 6-month court-ordered license suspension, which can run concurrent with the DMV suspension;
- Informal probation of 3 to 5 years;
- 48 hours to 6 months in jail (generally, the only jail time one will serve is immediately after the arrest and less than a day);
- In Los Angeles County, an Ignition Interlock Device; and
- 3-month first offender DUI program if Blood Alcohol Concentration (BAC) less than 0.15% – for BACs 0.15% to 0.19%, the court may order a 6 month DUI program – for BACs higher than 0.20%, 9 month DUI program;
2nd Time DUI Penalties
- 10 days minimum in jail (or 96 hours in jail to be served on 2 consecutive weekends);
- $390 – $1000 in fines plus assessments bringing total to around $2000;
- DMV Administrative Per Se license suspension of one year;
- Court-ordered license suspension of two years (restriction eligible after one year);
- 18 or 30 month DUI program;
- 3-5 years of informal probation;
- Increase in insurance premiums; and
- Optional Ignition Interlock Device in order to get restricted license
As you can see, even a first time DUI carries with it broad and far-reaching penalties. Hiring an Orange County DUI attorney who is experienced, resourceful, and knowledgeable, can be the only thing preventing you from receiving harsh penalties. In my next blog post, I will discuss penalties for a third DUI and felony 4th DUI in Orange County