DUI Charges
Have you been charged with a DUI? The consequences that you may be facing
can be extremely severe and can significantly impact your personal and
professional life. Fighting a DUI can be extremely complicated and requires
criminal defense strategies of a competent attorney. The Law Offices of Benjamin Okin are
ready to apply the time, effort, and resources that are necessary to handling
a DUI case.
Areas we can handle include:
- Multiple offenses
- First offenses
- Felony DUIs
- Vehicular manslaughter while intoxicated
- murder charges for DUI
Other attorneys may tell you that they are experienced in handling DUI
cases, and may have in fact represented 100s of DUI clients; this does
not mean they've been doing it right. In fact, the vast majority of
even the most experienced criminal defense attorneys do not stay up to
date and current as necessary to properly defend a client on DUI defense.
This phenomenon is really no different than law enforcement officer who
has conducted 1000s of Field Sobriety Tests, but systematically fails
to comply with the standards set forth for conducting those tests.
Do you really want to take a chance on an attorney who has handled 100s
of DUIs without the proper training? Before you hire any attorney for
you or your loved one for a DUI related offense, ask them how many seminars
they've attended specifically focused on DUI defense in the last five
years. Chances are it's a lot less than one per year on average. Now
compare that to training at the Law Offices of Benjamin Okin (Nationally Recognized DUI Defense). The reality is that there is no comparison.
No attorney should guarantee any outcome, but you will rest better knowing
"the best" DUI attorney in Humboldt is on your side and will
fully evaluate your case.
Answers to Some Frequently Asked Questions on DUI Law (FAQs)
Do I have to take the Field Sobriety Tests (FSTs)?
No. You are not required to undergo field sobriety tests. First, most officers
do not follow the National Highway Safety Transportation Administration
guidelines on conducting the FSTs. Second, there is no telling how you
would do on those tests if you had no intoxicants in your system. Third,
most people feel they passed the test only to learn that the officer took
a very different view and failed you on each test for minor things. Fourth,
even if you do well, the officer will still ask you to submit to a pre-arrest
preliminary alcohol screen device test. If you blow over a .08, you will
be arrested no matter how well you do. It is best just to tell the officer
that you are not willing to take FSTs. This will not make the officer
happy but it might put your lawyer in a better position if you are subsequently
arrested for a DUI as it will knock out the quasi-scientific game of FSTs.
Do I have to submit to a pre-arrest preliminary alcohol screening device
test (PAS)?
No. The officer may tell you it's just another tool to determine whether
or not to arrest you. The officer may even say it has no evidentiary value.
Despite these statements, most judges let in the results of the PAS. Since
you are not required to take the PAS test, it is our advice not to do so.
When do I have to take a chemical test for my blood alcohol level?
Upon being told that you are being arrested for a DUI, the arresting officer
must inform you that you are required submit to a chemical test for her
blood alcohol level or you will lose your license for one year. In most
cases, the arrest occurs right as you are being handcuffed.
I was not given a chemical test for over an hour after I was arrested,
how does the DA prove what my blood alcohol level was at the time I was driving?
To be convicted of a DUI, the prosecutor must prove beyond a reasonable
doubt that you had a .08 or greater blood alcohol content
at the time you drove a motor vehicle. Since most chemical tests for your blood alcohol level
are taken some time later after an investigation and/or arrest, some period
of time has passed since the actual driving occurred. To help prosecutors,
the law allows a jury to presume that if you give a blood alcohol test
above a .08 within 3 hours of the time of driving, that your blood alcohol
level was above a .08 at the time you were driving. The . The prosecutor's
expert from the Department of Justice will try to use a computation called
"retrograde extrapolation" to estimate a person's blood
alcohol at the time of driving based on the later taken chemical tests.
There are numerous false assumptions used in retrograde extrapolation
that only a properly trained DUI attorney can investigate.
Can I be arrested if I was on private property?
The fact that you were on private property is not a defense to a DUI.
Can I be arrested for a DUI because I take prescription medications?
The law does not differentiate if the intoxicating substance/drug was a
prescribed medication or a strictly illegal drug. In fact, most prosecutors
will try to keep the jury from hearing the fact that the drug was prescribed
because not allowing the prescription evidence before a jury could cause
the jury to speculate on whether the person was using illegal drugs or
not; after all many prescription drugs have the same base (metabolite)
as an illegal drug. For instance, a chemical blood or urine test cannot
say if a positive test for an opiate came from a prescription drug or
illegal heroin.
In order to be convicted of a DUI based on drug or prescription drug, the
prosecutor must prove that a person drove a vehicle and that at the time
you drove you were under the influence of drugs to the degree that you
were so impaired that you are no longer able to drive a vehicle with the
caution of a sober person, using ordinary care, under similar circumstances
- Vehicle Code 23152(a). If an officer arrest you for a DUI, and has cause
to believe that you are driving under the influence of some drug, you
will be required to take a blood or urine test.
What about if I am a user of medical marijuana?
Again, this is covered under Vehicle Code 23152(a). This is a very complex
and difficult section to deal with by law enforcement as most of the research
is very new and so impairment is difficult to prove. Our law offices are
known nationally for defending these types of case and are published on
this issue for the National College of DUI Defense Journal.
What if I just started the car to stay warm but did not intend to or move
the vehicle?
There must be an intention to move the vehicle by exercising physical control
and there must be some movement, however slight. Starting your car to
stay warm without movement would not constitute a DUI.
What constitutes driving?
Driving is defined as a person who is in actual physical control. Thus,
steering a broken down car while others push could be enough evidence
to convict a person of a DUI. If you were not the driver, and officer
believes you were, you will most likely be arrested and charged. If this
happens to you, retain experienced counsel immediately as facts and witnesses
can be lost.
Can I use the necessity defense to defend myself for a DUI?
Yes. Necessity, basically stated, is where the decision to drive under
the influence was a safer decision that not to drive under the influence.
For instance, if someone is shooting at you or threatening to shoot at
you, the risk from some getting you or someone else getting hurt from
your driving under the influence is less than the risk created by not
driving away from the shooter. What if you believed a person was going
to die if not driven to the hospital immediately? That might qualify too.
Our firm has received "not guilty" verdicts at jury trial on
DUIs employing the necessity defense.
Can a DUI cause problems with my professional license?
Yes. For instance registered nurses are required to send certified copies
of the police report to the California Board of Nursing, along with an
explanation of the DUI event, and steps taken since the arrest including
rehabilitation or DUI classes. Often this occurs before your case goes
through the criminal justice system. In the past, the Board of Nurses
took a slap on the wrist mentality on first time offenses, but there has
been a recent trend reported through the California DUI Lawyers Association
of license suspensions on first offenses.
DMV Actions (DS-367Form)
If you are arrested for a DUI, and submitted to a blood or breath testto
determine the blood alcohol content in your system, you most likely received
a pink slip of paper called a DMV DS-367 Form. The arresting officer or
jail correctional officer may have called it your temporary driver's
license which is technically correct. But more than that, it is your Constitutional
Due Process notice.
If you do not contact the phone number on the DS-367 within 10 days of
your arrest to request a hearing, you will lose your right to contest
the suspension of your license. It is important that you contact our office as soon as possible after
the arrest so we can get started on setting and preparing for the hearing.
This DMV hearing is a civil proceeding not criminal. The DMV hearing officer
acts as both the trier of fact and the judge of the facts making these
hearings very difficult (imagine of the criminal prosecutor was also the
jury!). The hearing officer is allowed to use certain types of hearsay,
which often allows the police report and the evidence regarding the chemical
test results to be used without ever having to call a live witness to
the hearing. You are entitled to subpoena any witness to the hearing that
can provide relevant evidence including the law enforcement officer. The
length of suspension and your ability to get a restricted license depends
on the particular facts of you case including whether you've suffered
one or more prior convictions for a DUI (see each section below).
DMV Consequences
-
First Offense - If you lose your DMV hearing, or if you get convicted of a first time
DUI, your license will be suspended for a period of four months. However,
after 30 days of actual suspension, you can apply for a restricted license
if you have signed up for a first offender program, received an SR-22
form from your car insurance company, and pay a license reissuance fee
to the DMV.
If your arrest occurred on or after January 1, 2019, the laws changed statewide which allows you to either chose from the
above consequence, OR you can instead opt to have a Interlock Ignition
Device Installed in all vehicles you own or operate for a period of 6
months (therefore you can avoid the 30 day actual suspension).
-
Second Offense* - If you have one prior conviction within 10 years, the DMV can suspend
you license for up to two years. If the prior offense and new offense
are both only alcohol related, you may be able to get a restricted license
after 90 days of actual suspension. If not, you may be eligible for a
restricted license at the end of one year. In either case, you will need
to show proof that you are enrolled in a DUI multiple defender program,
you have an SR-22 from your insurance company, and you will have to pay
a reissuance fee to the DMV.
If your arrest occurred on or after January 1, 2019, the laws changed statewide which allows you to either chose from the
above consequence, OR you can instead opt to have a Interlock Ignition
Device Installed in all vehicles you own or operate for a period of 1
year sand (therefore you can avoid the 90 day actual suspension). Note
that this may be more complicated if at the time of the arrest, you are
still on probation for the first DUI offense.
-
Third Offense* - If you have two prior convictions within 10 years, the DMV can suspend
your license for two years. If the prior offense and new offense are both
only alcohol related, you may be able to get a restricted license after
6 month days of actual suspension. If not, you may be eligible for a restricted
license at the end of one year. In either case, you will need to show
proof that you are enrolled in a DUI multiple defender program, you have
an SR-22 from your insurance company, and you will have to pay a reissuance
fee to the DMV.
*If you are on probation from a prior DUI offense and drive with .01% alcohol
content, the DMV can suspend your license for one year. In this situation,
the DMV will not grant you a restricted license. This means that you might
not get charged with a new DUI criminally, but you will lose your license
and you will have violated your court probation.
Under Age 21
If you are under the age of 21 and blow a .01 or greater into a preliminary
alcohol screening device, or register a .01 or greater on any subsequent
alcohol test, your license will be suspended for one year. It is possible
to get a hardship exemption but it requires a very thorough application
to be seriously considered.
Refusal to Take a Chemical Test After Being Lawfully Arrested
If you are lawfully arrested and fail to submit to a chemical test, the
consequence for losing your DMV hearing is as follows:
- First Offense - one-year loss of license
- Second Offense - two-year loss of license
- Third Offense - three-year loss of license
- Fourth Offense - four-year loss of license
Refusal with Forced Blood Draw
Once arrested for a DUI, if you refuse to submit to a chemical test, the
officer may choose to take you to the hospital and literally force you
to give a blood sample. If this occurs, not only will there be a blood
alcohol test result, you will also be charged with refusing a chemical
test as required by law.
Commercial License (Class A) -
- First Offense - DMV will suspend your Class A license for one year.
- Second Offense - DMV will suspend your Class A license for life.
-
Note: The DMV will look at your lifetime driving history, not just 10 years back
as will prior convictions.
Administrative Review & Appeal/Writ of the DMV Hearing
If a DMV hearing officer rules against you, you can request an administrative
review of that decision for a $120 payment to the DMV. The review is a
closed hearing in which neither you nor your attorney has the right to
participate in person. It is best practice for your attorney to write
a letter to the DMV explaining the basis for which you are asking them
to change their decision. If you disagree with a DMV finding, you can
also file a writ asking a superior court judge to reverse the DMV findings
and orders. In other words, you are requesting a formal appeal of the
DMV by the superior court.
First Time DUI Offenses
DUIs are one of the most likely events where a person, who would otherwise
never be in the criminal justice system, find themselves on the wrong
end of a criminal complaint.
To be convicted of a DUI, the DA must prove that you drove a vehicle, AND:
- that you were under the influence of alcohol and/or other drugs to the
degree that you were so impaired that you are no longer able to drive
a vehicle with the caution of a sober person, using ordinary care, under
similar circumstances - Vehicle Code 23152(a)
OR
- that at the time you were driving a motor vehicle your blood alcohol level
was a .08% or above - Vehicle Code 23152(b)
The maximum term of confinement for a first time DUI is six months in county
jail along with substantial fines and assessments. Additionally, you will
have to take State mandated classes. If you are under the age of 21 at
the time of the arrest, you need only register a .05 or greater to be
charged with a DUI. If you are driving a commercial truck at the time
of arrest, you need only register a .04 or greater to be charged with a DUI.
Wet Reckless
Reckless driving based on consumption of alcohol. A wet reckless conviction
is a prior conviction for future DUIs just as if convicted of a DUI. There
are other potential penalties that can be avoided depending on your particular
case if you are offered a wet reckless. The maximum term of incarceration
for a wet reckless is 90 days jail.
DMV Hearing (First Offense)
If you lose your DMV hearing, or if you get convicted of a first time DUI,
your license will be suspended for a period of four months. However, after
30 days of actual suspension, you can apply for a restricted license if
you have signed up for a first offender program, received a SR-22 form
from your car insurance company, and pay a license reissuance fee to the
DMV. If you refused to take a chemical test and the DMV finds against
you, you will lose your license for one year. You will not be eligible
for a restricted license. If you are under the age of 21 and have a blood
alcohol level of .01 or greater, you can lose your license for one year
with the possibility of a hardship exemption.
One or Two Prior Convictions within 10 Years (Multiple Offender)
If you have been arrested for a DUI within the past 10 years of your current
arrest for a DUI, you will be charged with a prior conviction. The time
period is measured by date of prior arrest to date of new arrest; conviction
dates do not matter. There is a growing movement in the California State
Legislature to make all DUI convictions count as priorable offenses regardless
of the age of the offense. Like when the priorability of a DUI extended
from 7 years to 10 years, it will apply retroactively (meaning all DUIs,
regardless of the law back on the date of arrest or conviction, will be
a prior DUI). A wet reckless offense under Vehicle Code 23103, as sentenced
under 23103.5, is a prior conviction same a straight DUI.
Out of State Prior Conviction
If you have a prior conviction for a DUI type offense from a state other
than California it may be counted as a prior conviction depending both
on the language and law of the specific statute you pled to in that state,
and the facts of your case which led to your arrest. For instance, in
the state of Arizona, the level of impairment required for a DUI is "any
impairment" which is a lower standard than in California which is
whether you can drive with the "caution of a sober person, using
ordinary care, under similar circumstances." Therefore, it's
possible you could be convicted in Arizona but acquitted in California
under the exact same set of facts. Another example is in some states simply
starting the car is sufficient to prove that you were operating the vehicle
while in California there must be some movement, however slight. Again,
it's possible that you could be convicted in the foreign jurisdiction
but not in California.
Prior Convictions - Penalties
If you have one or more prior convictions within 10 years, the potential
penalties become more and more severe including up to one year in county
jail, mandatory minimum jail sentences, loss of driver's license,
Interlock Ignition Device, longer DMV Alcohol related classes, increased
fines, prohibition on possessing or using alcohol, a waiver of 4th amendment
rights for law enforcement to search your house and vehicle, and more.
If you have two prior DUIs and get convicted of a third DUI, you will
be labeled a habitual traffic offender by the court causing additional
license consequences.
Violation of DUI Probation for with a New DUI
If you are on probation for a DUI offense, and get arrested for a new DUI
offense, not only will you be charged with a prior conviction on the new
offense, but the court will violate your probation on the prior offense.
The DA and court take this situation more seriously because of the close
proximity between your last case and your new arrest. You are subject
to serving up to the entire suspended sentence on your probation file
in addition to penalties on the new case.
DMV Hearing - One or Two Prior Conviction
If you are on probation from a prior DUI offense and drive with .01% alcohol
content, the DMV can suspend your license for one year. In this situation,
the DMV will not grant you a restricted license. This means that you might
not get charged with a new DUI criminally, but you will lose your license
and have violated your court probation. If you have one prior conviction
within 10 years, if you DMV can suspend you license for up to two years.
If the prior offense and new offense are both only alcohol related, you
may be able to get a restricted license after 90 days of actual suspension.
If not, you may be eligible for a restricted license at the end of one
year. In either case, you will need to show proof that you are enrolled
in a DUI multiple defender program, you have an SR-22 from your insurance
company, and you will have to pay a reissuance fee to the DMV. If this
is your second offense and you refused to take a chemical test and the
DMV finds against you, you will lose your license for two years. You will
not be eligible for a restricted license. If this is your third offense
and you refused to take a chemical test and the DMV finds against you,
you will lose your license for three years. You will not be eligible for
a restricted license.
Felony DUIs
There are three main reasons a person is charged with a felony DUI:
- The person has three or more prior DUI convictions in the last 10 years.
- As a result of DUI driving another person was injured or killed, OR
- The accused person suffered a prior felony DUI within 10 years.
Punishment for a felony DUI includes up to three years in prison. Sadly,
it is one of the most common places where a person who otherwise never
be in the criminal justice system, actually ends up in prison. If convicted,
you will face mandatory minimum jail time even if granted probation, increased
fines, 4-year suspension of driver's license, being labeled a habitual
traffic offender, and more. In cases charged as a Felony DUI for causing
an injury to another person, if the person suffers great bodily injury,
you can be charged with a sentencing enhancement under Penal Code 12022.7.
This enhancement not only adds three additional years to the maximum sentence
but makes it a violent felony strike under Penal 667.5(c).
DUI Manslaughter & DUI Murder
If someone killed as a result of DUI driving, you can be charged with vehicular
manslaughter or even 2nd degree murder.
Vehicular Manslaughter - DUI Related (Penal Code 191.5)
There are two kinds of DUI related vehicular manslaughter while intoxicated;
1) with gross negligence and 2) with ordinary/criminal negligence. The
penalties if convicted of either are quite severe. Vehicular manslaughter
while intoxicated "with gross negligence" carries up to year
10 years in prison; "with ordinary/criminal negligence" carries
up to 4 years incarceration. However, if you have two or more prior convictions
for DUI, a prior conviction for misdemeanor DUI with injury, a prior conviction
for any felony DUI, or a prior conviction for vehicular manslaughter while
intoxicated, the potential exposure is life in prison.
In its most basic terms, in addition to proving that you were driving a
vehicle under the influence of alcohol and/or other drugs or above a .08%
blood alcohol level, the DA must also prove beyond a reasonable doubt
that you drove in a negligent manner causing the death of another person.
Although the law does not distinguish if the deceased person was a passenger
or a person in another car, it can have a great effect on the position
the District Attorney takes towards a case. Remember, another person dies
as a result of criminal conduct, the prosecutors are under a great deal
of pressure for the deceased's family, loved ones, and community to
get the maximum punishment.
2nd Murder Based on Death Caused by DUI Driver (Watson Murder)
If a person dies as a result of DUI driving, you can be charged with murder.
Historically this was only charged where the accused person has a prior
record of driving under the influence, but it is not a requirement. There
is a current growing trend to charge more and more cases as murder that
would have been only charged as vehicular manslaughter with intoxicants
involved. The maximum possible penalty is life in prison!
Every person convicted of a DUI is advised by the court that driving under
the influence of alcohol and/or other drugs is inherently dangerous to
human life. If you continue to drive under the influence of alcohol and/or
other drugs and as a result someone is killed, you can be charged with
murder." If tried for murder, and you've been given this admonition,
rest assured the DA will try to bring it up at trial.
Child Endangerment Based On DUI Driving - PC 273
It is common for a person to be charged with felony or misdemeanor child
endangerment if there is a passenger under the age of 18 in the car at
the time of the DUI conduct. A child endangerment conviction can carry
up to 6 years in prison, one year of counseling classes, a court order
that you not consume alcohol, possess alcohol, or be in places where alcohol
is the chief item of sale and more.
Common Sentencing Enhancement Include:
- Prior convictions for DUI or Wet Reckless
- Refused a chemical test after arrest - VC 23577
- Bodily Injury Inflicted on More than One Person - VC 23558
- Causing Great Bodily Injury on Another Person - PC 12022.7
- Blood alcohol content above a .20 - VC 23578
- DUI in Road Construction or Maintenance Zone VC42009
- DUI Designated Safety Zone - VC42009
- Minor passenger under age 14 - VC 23572
Speeding Enhancement:
- 20 over limit in residential neighborhood & reckless- VC 23582
- 30 over limit on freeway/highway & reckless- VC 23582
Our office is the only office locally and one of the only offices in the
country to be cited in an accepted treatise as one known for exceptional
trial skills and as a source office if other lawyers have questions regarding
defending DUI related offenses. Come see why
The Law Offices of Benjamin Okin provide excellent DUI Defense.