DUI / DWI

California has some of the harshest and most complicated DUI  / DWI laws in the US. Oftentimes people facing a DUI  / DWI charge have never been in trouble before.

In California it is illegal to operate a motor vehicle with any of the following blood alcohol concentration (BAC) percentages:

• 0.08% or higher― 21 years old or older operating a regular passenger vehicle.
• 0.04% or higher―operating a commercial vehicle.
• 0.01% or higher―younger than 21 years old.

In addition, in California law it is also illegal to drive if you have consumed illegal drugs or:

• Excessive amounts of drugs with alcohol in them (such as cough syrup).
• Prescription medication.
• Over-the-counter medication

The first step in a DUI / DWI case is “the stop”. Why were you pulled over by the CHP officer? We will assess “the stop” to see whether it was legal – did probable cause exist? If the stop is not solid a suppression hearing can be heard to challenge this.

The officer who has stopped the vehicle will often allege that when he/she is checking licence, registration and insurance documents the individual smelled of alcohol, their eyes were glazed and they were slurring their words. It is this that will cause the officer to start field sobriety tests. What the vast majority of people do not realise is that you do not have to do the field sobriety tests or even speak to the officer.

The idea behind field sobriety tests is they allow the officer to analyse an individuals’ ability to recall instructions, abide by those instructions and engage in coordination tests.

Field Sobriety Tests

Horizontal Gaze Nystagmus

The simplest test is called Horizontal Gaze Nystagmus. This test is often done first because it can be administered whilst the individual is seated in his or her car. During this test the officer will ask the individual to follow the end of a pen or object with their eyes. The officer will move the pen backwards and forwards and watch the individual’s eye movement. The officer is looking to see whether the individual’s eyes track smoothly or in a jerky fashion. No amount of training or tolerance to alcohol is able to change an individual’s eye movement. In approximately 3-4% of the population jerky eye movement occurs naturally regardless of alcohol use or intoxication. In addition certain prescription and non-prescription medications can cause this to occur. If the officer sees “nystagmus” i.e. a jerky eye movement, he/she will ask the individual to exit their vehicle so that further Field Sobriety Tests can be undertaken.

One Leg Stand Test

In the One Leg Stand test the individual is asked to stand with their heels together and both arms at their sides. The officer then asks the individual to raise one foot so that their heel is lifted 6 inches off the ground. Whilst the individual in standing with one foot raised he/she is asked to count rapidly from say 1001 to 1030. The officer will be looking for several things during the administration of this test. Firstly, that the individual was paying attention during the instruction phase of the test. Secondly, that the individual kept their hands at their sides during the test and were not raising their arms to help maintain balance. Thirdly and most importantly, that the individual was able to keep their foot off the ground for the entire 30 seconds.

Walk and Turn Test

In the Walk and Turn test the individual is asked to follow a line such as a parking lot line or a straight line drawn by the officer in chalk. In some cases the officer will simply ask the individual to walk an imaginary straight line. The officer is looking to see whether the individual can stand heel to toe with their arms at their sides whilst he/she is giving the instructions. Whilst undertaking the test the individual will need to keep one foot behind the other, take 9 heel to toe steps down the line, turn around and take 9 heel to toe steps back. The officer is looking to see whether or not the individual follows the instructions, touches their heel to toe on each step, whether they can do 9 steps forwards, whether they keep their foot on the line when they pivot and turn and whether they do 9 steps backwards.

Rhomberg Balance Test

In the Rhomberg Balance test the individual is instructed to stand with their arms at their side, tilt their head backwards, close their eyes and estimate 30 seconds. Whilst an ability to accurately estimate 30 seconds is important, what the officer is really looking at is how much sway is taking place. A normal level of sway is 1-2 inches off-center. A sway of more that 2 inches off-center will be viewed as alcohol impairment.

Other less well known tests include counting backwards, counting backwards and forwards whilst touching a finger to thumb, and the finger to nose test.

After conducting FSTs the officer will inevitably ask an individual to undertake a Preliminary Alcohol screening test. This is a handheld device used to measure an individual’s breath alcohol. Again, just like the other Field Sobriety Tests, in California an individual is not required to take this test unless the individual is under 21, is on DUI probation or it is a specific condition of their probation.

Prior to administering the test the officer must give the individual an admonishment that the test may not be used against them and that it does not take the place of a regular chemical test.

Defenses

There are many avenues of attack in respect of DUIs and DWIs. At RBE Law we will obtain and analyze the evidence against you to determine whether a defense exists.

The initial stop can be challenged at a suppression hearing.

The Field Sobriety Tests can be challenged on the basis of the testing conditions, the reliability of the tests and mental and physical impairments of the individual.

The breath test has the most attacks available against it. It is sometimes possible to argue the inaccuracies of the breath test. By way of example the reading may be impacted by radio frequency nearby, incorrect calibration and an individual experiencing GERD (gastroesophageal reflux disease) at the time of testing.
The blood test is often considered to be less open to attack. This is not the case in reality. Oftentimes, the way in which the sample of blood was taken, the chain of custody of that sample, the storage of the sample and the testing of the sample can be used to challenge the results.

The blood can be re-tested by a lab of your choosing to test the accuracy of the reading. In subsequent re-testing what is invariable found is that there has been some minute evaporation of alcohol meaning the re-test will come back as lower than the individual reading. This is called a blood split and a court order is needed.

DUI penalties

The basic penalties for a DUI are as follows:

1st DUI (misdemeanor): Up to 6 months in county jail, $390-1000 fine, 6-10 months licence suspension (can convert to a restricted licence), 3-9 months of DUI classes.

2nd DUI (misdemeanor): 96 hours to 1 year in county jail, $390-$1,000 fine, 2 year licence suspension, 18 months to 30 months DUI classes.

3rd DUI (misdemeanor): 120 days to 1 year in county jail, $390-1000 fine, 3 year licence suspension, 30 months DUI classes.

DUI with injury (misdemeanor): 5 days to 1 year in county jail, $390 -5000 fine plus restitution to victim, licence suspension for 1-3 years; 3 months/18 months/30 months DUI classes.

DUI with injury (felony): 16 months to 16 years in state prison, $1015-5000 fine plus restitution to victim, 18 months or 30 months DUI classes.

Felony DUI: 16 months/2 years/3 years in state prison, $390-1000 fine, licence suspension for 4 years, 18 months or 30 months DUI classes.

It is worth noting that there are aggravating features, which may increase the sentence in any DUI case. The most noteworthy are as follows:

• Causing an accident
• Driving at excessive speeds
• Being under 21 at the time of the offence
• Having a child in the vehicle at the time of the offence
• Having a blood alcohol level of 0.15% or higher