Challenging a DUI arrest in California is a little more complicated due to the recent California Supreme Court case of California v. Vangelder. In that caswe, the California Supreme Court reiterated that Defendant challenging a DUI charge of driving under the influence with a blood alcohol of .08 or higher (California Vehicle Code section 23152(b)) cannot be defended by arguing that the intoxilyzer breath machine used by law enforcement in California cannot properly read a person’s blood alcohol level. In Vangelder, the Defendant called an expert who testified that a Breathalyzer machine, even if properly calibrated, cannot accurately test and/or determine a person’s blood alcohol. The California Supreme Court rejected such a defense holding that the machines are reliable.
However, when challenging a charge of driving with a blood alcohol level of 0.08 or higher, an experienced criminal defense lawyer can still challenge the results of a breath tests using various defenses including relying on maintenance of calibration records of a Breathalyzer machine to argue that the machine was not accurately reading blood alcohol at the time a defendant took the test.
A mainstay of successful defenses in Drunk Driving cases and DMV hearings is the employment by an experienced criminal defense attorney of a highly respected forensic toxicologist all of whom have succeeded in providing expert testimony to discredit and challenge all technical issues involved in the successful defense of a DUI case. Along with employing an expert toxicologist to assist in uncovering defenses in DUI matters, to successfully defend a drunk driving case an experienced criminal defense lawyer may challenge the treatment of persons arrested in such matters on constitutional grounds unlawful detentions, search and searches in violation of the Fourth Amendment of the United States Constitution. A person accused of such offenses should always seek advice of a competent defense attorney in order to obtain the best possible result in a DUI/Drunk Driving case.
In the majority of DUI cases California including Los Angeles, Orange, Riverside and San Bernardino Counties, the criminal charges will include two offenses (1) driving while under the influence of alcohol (California Vehicle 23152(a) and (2) driving with a .08% or higher blood-alcohol concentration (California Vehicle Code section 23152(b)). A person charged with both offenses can be convicted of both but only punished for one. The penalties for the two charges are identical. If you are charged with refusing to take the test you will be charged with driving under the influence and an additional enhancement charge of refusal to take a chemical test. As discussed above, along with the criminal proceeding, you will be subject to a DMV administrative license suspension hearing for either having a blood alcohol level of .08% or higher or refusing to take the chemical test at the time of arrest.
Under the existing California DUI Sentencing Law, a person convicted of a first offense may be sentenced to jail up to a maximum of 6 months. The fine and penalty assessments in a first offense will usually amount to over $1,500.00 depending upon the jurisdiction in California. Further, along with the DMV, the Court can impose a 6 month license suspension. Moreover, a DUI sentence will include a mandatory attendance of 3 months of DUI classes which could be increased for high levels of blood alcohol at the time of arrest. A court may also have the discretion to require an ignition interlock device, attendance at AA meetings, attendance at a MAAD meeting and additional community service.
Persons arrested for DUI may also be exposed for increased penalties if certain enhancements are charged and proved. Increased penalties may be imposed if person was driving in excess of 20 MPH over the speed limit, refused to take a chemical test, had a child under 14 in the car or having on or more prior convictions within 10 years of the current offense. If the prosecution can prove an intentional refusal, a person’s driver’s license is suspended for one year and there is usually is no possibility of obtaining a restricted license within that time of the suspension. Moreover, a refusal may expose a person to mandatory jail time. A speed enhancement can carry a minimum of a 60-day jail enhancement. In addition, prior convictions can increase jail time and when three or more prior convictions are involved, a person may be charged with a felony and exposed to time in state prison.
On a first offense, the DMV may impose a 4 month license suspension upon proof at a hearing that a driver had a blood alcohol concentration of .08 or higher. It is imperative that within 10 days of being arrested, you must contact the DMV and request a “stay” and “hearing” on your license suspension in order to obtain a temporary license until your attorney can successfully defend you at the later DMV hearing. In order to avoid jeopardizing your chances of avoiding unnecessary penalties and suspensions, we recommend that you contact an experienced criminal defense attorney immediately so that we may start the necessary steps to protect your rights after an arrest. The smartest thing to do after being arrested for DUI or any criminal defense is to contact an attorney with 24 hours of such arrest.