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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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Driving under the influence of marijuana (DUIM) is certain to become the new watchword on California highways. Medical marijuana has been a presence in California for many years and the use of recreational marijuana may become legal if California voters approve a proposed November 2016 ballot initiative. But at present, California law has no “per se” law governing the act of driving under the influence of marijuana as it does for driving under the influence of alcohol.

As everyone knows, having a blood alcohol level over .08% while driving in California creates the legal presumption of driving under the influence. Whether you think you are affected by the alcohol in your system or not, if you have a .08% blood alcohol content, you are driving under the influence under the law, no “ifs, ands, or buts.” That is the “per se” law. However, if the cops suspect you are driving under the influence of marijuana, there is no per se law in California. In other words, in order to be convicted of driving under the influence of marijuana, the prosecution must prove you could not safely drive due to marijuana intoxication by the circumstantial evidence. That may soon change.

The move is on to enact a per se law in California that would make any driver who tests positive for a certain amount of THC presumptively driving unlawfully under the influence. Currently only Colorado and Washington State—two states that have legalized the recreational use of marijuana— have per se DUIM laws. In both states, a driver who tests with more than 5 nonograms of THC per millimeter of blood is presumed to be DUIM. As I discussed in a previous post, testing for THC is burdened by a lack of reliable and accurate testing methods. However, scientists are working hard to develop methods to test for THC levels that officers can use in the field.

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A couple of month ago I blogged about the difficulty law enforcement has proving that someone is driving under the influence of marijuana. The cops may suspect the person of driving under the influence of marijuana but because there is not a readily available and reliable chemical test as there is for alcohol it is sometimes difficult for the prosecution to secure a conviction.

That may soon change. A bill introduced in the California Senate in February 2016 would allow officers to use a hand-held electronic device which is able to test for the presence of marijuana and other drugs by use of an oral swab. The bill, if it becomes law, will allow chemical testing for drugs in the same way that chemical tests for alcohol are now used. As with alcohol testing, refusal to submit to the drug test would result in enhanced penalties including the mandatory suspension of the person’s license to drive for one year. The bill, SB 1462 is currently in committee.

Critics of the swab testing maintain that the technology is unproven and that the accuracy of such tests has not been scientifically demonstrated. The swab tests are being used in test programs around the country, including in some California counties. These programs are being monitored by the federal government. Should SB 1462 become law, there will surely be challenges to the swab tests and it may take years for the challenges to wind their way through the appellate courts.

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The Marijuana Laws Are A-Changin’

Back in 1964 when Bob Dylan sang “The Times They Are A-Changin’,” marijuana was called the “killer weed” and even simple possession was a felony in California carrying a sentence of one to ten years. Now over 60 years later, the citizens of California will decide whether to legalize the recreational use of marijuana. The wheels of change grind slowly.

California was the first state to enact laws allowing the regulated sale, cultivation, and use of medical marijuana. Since then, other states have pushed forward and made the recreational use of marijuana legal. Recreational use is now legal in Oregon, Washington, Colorado, and Alaska, as well as the District of Columbia. California has its own ballot initiative, which will be before the voters in the 2016 elections. If the initiative passes, the recreational use of marijuana will become legal.

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Every day, approximately 30 people are killed by a drunk driver in this country. That translates into somewhere around 11,000 people killed every year by a drunk driver. That’s almost one-third of all traffic-related deaths in this country. If you drink and drive, you could be this country’s next murderer. Let that sink in before you get behind the wheel after one too many.

Sadder still, of over 1,000 children under the age of 14 who are killed in a traffic accident each year, approximately 20% involve a drunk driver and over half of those children were riding in the car with the drunk driver. That’s over 500 children each year who are killed when an irresponsible adult decides it’s okay drive impaired with a child in the car.

According to the CDC, there are hundreds of millions of driving under the influence episodes. When that is considered, only a very tiny percentage of drunk drivers ever cause a traffic-related death. And that is the kind of thinking that convinces someone who shouldn’t be driving to do so anyway: “I’m okay to drive; I only had three glasses of wine.” “I’ve left this bar many times and I can drive home just fine.” “What’s the chance I’ll get caught; I can drive without weaving.” Think about the 11,000 mothers, fathers, daughters, sons, brothers, and sisters who leave behind a grieving family every year; are they just a very small statistic?

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