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Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

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It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.

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HOW ALCOHOL AND OTHER DRUGS AFFECT YOUR BRAIN

Everyone knows that when a person is under the influence of certain drugs, their driving may become impaired, but not everyone knows why.

Let’s start with the most common drug: alcohol. Alcohol is a depressant. Depressants cause the central nervous system to slow down, usually by enhancing a neurotransmitter called gamma-Aminobutyric acid (GABA). GABA reduces a person’s nerve cell excitability (the process that transmits information in our brains). Without GABA, we’d be a “bundle of nerves.”

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THE DUI CRIMINAL COURT PROCESS

So you were arrested for DUI. You’ve already requested (or decided not to request) an Administrative Per Se Hearing with the DMV, what comes next? Separate and apart from the DMV hearing, you will be required to appear before a judge in criminal court for an arraignment. This is the first step in the criminal proceedings. Arraignments can often be confusing and it is therefore advisable that you hire an attorney to represent you prior to the arraignment. (If you cannot afford an attorney, a public defender will step into to represent you but often the first time the public defender even sees your criminal file is right before you appear in front of the judge for your arraignment.)

At the arraignment, the judge and prosecutor will throw around a lot of legal terminology that may be unfamiliar to you but what you need to know is that the purpose of the arraignment is for the judge to inform you of the charges against you and for you to plead guilty, not guilty, or no contest. Usually at the arraignment the prosecutor will offer a “plea bargain” wherein you agree to plead guilty in return for a particular sentence. You can accept the offer and plead guilty at the time of the arraignment. If that is what you choose to do, the criminal part of your DUI case will essentially be over. The judge will sentence you and you will only need to complete paperwork at the clerk’s desk and serve your sentence.

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In my previous post I discussed the DUI arrest process and the fact that when you are arrested for DUI, your license to drive will be immediately suspended by the DMV and you are issued a temporary 30-day license to drive. One of the reasons you receive the temporary license is because you have the right to challenge the DMV suspension of your license at what is called an Administrative Per Se Hearing (APS Hearing).

Even before you worry about the criminal charges, you need to address the DMV suspension of your license because you have only ten days in which you can request an APS hearing before the DMV. The APS hearing is completely separate from the criminal case. Yes, you must defend your DUI on two fronts: the administrative per se sanctions and the criminal charges; they are completely separate from one another. Since the time to request the APS hearing is so short, that should be your first order of business.

You are not required to request or appear for the APS hearing and many of those arrested for DUI do not. If there is no viable defense—that is, the vehicle stop and arrest was lawful and you tested well over .08% BAC—you may chose or your attorney may advise you to forego the APS hearing. If you do not request an APS hearing, your license will be automatically suspended for a period of time that is dependent on the circumstances of your particular DUI (i.e. 1st, 2nd, 3rd or greater DUI, whether you were on probation, and so on). You will also be required by the DMV to attend DUI classes and face other DMV sanctions.

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THE DUI ARREST

In my last post, I discussed your rights when you are pulled over for suspected driving under the influence of alcohol. As I discussed in that post, you are free to decline the field sobriety tests but whether you stumble on those tests or don’t submit to them at all, if the officer believes you are under the influence of alcohol, he or she will arrest you for DUI. At that point, your rights are diminished. You must submit to the chemical test for blood alcohol content (BAC), which will most likely involve blowing into a breathalyzer device. If you decline to submit to this test, you will still be under arrest and subject to more severe penalties.

At the time of your arrest for DUI, you will be required to surrender your driver license. The arresting officer will provide you with a temporary paper license that is goof for only 30 days at which time your license may, and most often will, be suspended by the DMV. In a later post I will discuss the license suspension process. You will obviously not be allowed to drive your car and unless there is a sober person who is immediately available to drive your car, your car will be towed and impounded. You will have to pay a hefty impound fee to recover your vehicle. And you will get a ride to the police station in the back of a police car.

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(This post applies only to persons over the age of 21 or who are not on probation for a previous DUI.)

What should you do if you are stopped while driving a vehicle and the cop suspects you are driving under the influence of alcohol? The laws that govern a DUI stop provide you with less rights than you would have during an ordinary police contact. The premise underlying this diminished due process on a DUI stop is that driving on California roadways is a privilege, not a right, and therefore you are not afforded all the protections provided in the Constitution. But you still have certain rights when you are stopped on suspicion of DUI.

When you are pulled over for suspected driving under the influence, you are considered detained and you are not free to go. Even though the officer has not yet read you your “Miranda rights,” which is not required until you are arrested, your right to remain silent is triggered at the time of the detention. You must provide the officer with your driver license (and car registration) but beyond that you do not have to answer the officer’s questions. As with any police detention or arrest, your best approach is to be politely cooperative and provide your identification, but to let the officer know that you wish to remain silent.

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WHAT HAPPENS IF YOU VIOLATE THE CONDITIONS OF YOUR DUI PROBATION?

First- and second-time DUI charges that don’t involve an accident, injury, or death almost always end in a sentence of probation, or what is more correctly termed, a grant of probation in lieu of a jail sentence. What happens if you violate the terms of your DUI probation?

First let’s discuss how you might find yourself in violation of probation. Probation on a DUI offense almost always requires that you pay certain fines and fees, that you attend DUI classes, and often that you attend other alcohol-related programs such as a MADD program, attendance at AA meetings. You might be required to complete community service work also. Assuming you are granted a restricted license after the mandatory suspension of your license, a condition of DUI probation will prohibit driving at any time with any measurable amount of alcohol in your system (“zero tolerance”). You may be required as a condition of probation to install an Ignition Interlock Device. The violation of any laws (misdemeanor or felony) while on probation is a violation of your DUI probation; that would include such things as driving without a valid license or without valid auto insurance but not minor traffic infractions.

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Following up on my two previous posts that discussed chemical testing for driving under the influence of marijuana and marijuana per se laws, I think it would be interesting to the reader if I delved a bit more deeply into these topics. Driving under the influence of marijuana is sure to be a hot topic for the next few years as the legalization of recreational marijuana appears to be a trend.

I mentioned in my previous posts that unlike blood alcohol testing, testing for marijuana in a person’s system is much more problematic, at least as far as testing to determine if a driver was under the influence of the drug.

Urine testing will be positive for marijuana for 1 to 7 or more days after a person’s last use of the drug. A person can and likely will test positive for marijuana in a urine test even if he or she had not used the drug for days. Therefore, urine testing is unreliable proof that a person was driving under the influence. Besides that, while urine test can detect marijuana use, it does not detect THC, which is the psychoactive component in marijuana. There is no way to know by a urine test how much THC is in their system.

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