Being arrested for DUI in California is a serious matter. Penalties for conviction are harsh. It is important to react to the situation in a manner that protects your rights.
You should exercise two fundamental rights at the very outset of a DUI arrest: your right to remain silent and your right to an attorney.
Attorney Steven R. Andrade, founder of Andrade Law Offices, represents DUI defendants in Santa Barbara and across Southern California. Steven Andrade has successfully assisted thousands of people charged with DUI and other criminal offenses in Santa Barbara County. In fact, he wrote the book on Strategies for Defending DUI Cases in California. Whether this is your first DUI or not, at your first opportunity after a DUI arrest, please contact us for assistance, no matter the time of night or day.
If you have not been drinking or honestly believe you are not impaired, say so. After saying that, or in lieu of that statement, you should say as politely as possible:
“Officer, I want to cooperate with the police, but first I would like to speak to my lawyer.”
Once you have said that, it is still important to remember that you must comply with the arresting officer’s request that you take any breath, blood or urine test he suggests for the presence of alcohol in your bloodstream. If you refuse, you will automatically lose your driving privileges and the penalty for a subsequent conviction will be stiffer.
In addition to 1. cooperating with the police, 2. remaining silent and 3. contacting a lawyer, your DUI arrest experience will include:
4. Breath/Blood/Urine Test. Most likely you will be required to take a breath analysis test, since results from breath tests are immediate. If you register a blood-alcohol concentration (BAC) of 0.08 percent or more, you will be charged with driving with an excessive BAC in addition to driving under the influence. You will then be formally charged.
5. DMV Stay and Hearing. If you fail any of the above noted tests, your driver’s license will be confiscated. You will be issued a 30-day temporary license, which is a document on pink paper. Within 10 days, you must contact the correct DMV office to request a stay and hearing to save your driving privileges. Once you do this, the disposition of your driving privileges will be put on hold until the hearing is conducted, which may be in one to three months.
If you fail to set a hearing date, the California DMV will suspend your license when the 30-day temporary license expires. Not all offices can schedule a hearing for you, so it’s important to contact the correct office.
If Andrade Law Office represents you at this point, we will handle this and much of what’s required in the following steps for you.
6. DMV Hearing. This can be conducted via telephone, but you have to take part either personally or through an attorney. The hearing officer, a DMV employee, will seek to answer three questions:
During your hearing, you or your attorney will be allowed to present evidence and question the arresting officer. If you can show that the answer to either of the first two questions is “no,” you may be able to save your driving privileges. If you do not prevail, which is the more likely outcome, your driver’s license will be suspended for four months, with the potential of up to three years if you have had previous DUI convictions or you refused any test.
The DMV hearing is separate from your court date. Regardless of the outcome, you will still face criminal charges for DUI.
7. Arraignment. An arraignment is the first formal hearing of the charges against you. It is held before a judge. The prosecuting attorney will state the charges against you and will make the initial offer of a penalty, should you choose to plead guilty. You will be asked to plead not guilty, guilty or no contest, which is like a guilty plea but technically does not admit guilt.
With a not guilty plea, the case continues and you and your attorney, as the defense, are granted access to the prosecution’s evidence against you. This includes the police report, which your or your lawyer should obtain prior to arraignment, your breath test results, and any other evidence. This information is valuable for building a defense but most of the information will already be known to you and your lawyer if you have communicated with him or her openly and honestly.
8. Discovery and Discussions. After your arraignment and before your trial, your attorney will investigate the case the prosecutor has against you (“discovery”), consider how you might defend yourself, and whether an agreement can be reached prior to trial (plea bargaining). Many DUI cases, particularly first offenses, do not have to go to trial if handled by an experienced attorney. If you have prior convictions, the prosecutor will be less inclined to discuss options in your case, but that does not mean the prosecution’s case cannot be challenged.
If this is your first DUI charge and there are no aggravating factors in the case (such as a BAC above 0.20 percent, a crash, children younger than 14 in the car), the prosecutor may agree to a lesser penalty. If your BAC was close to 0.08, and you were cooperative with police and did fairly well on field sobriety tests, the prosecutor may agree to a plea to reckless driving involving alcohol. This will result in a relatively light fine and probation, and require you to complete an alcohol program, but there will be no court suspension of your license.
The less positive the circumstances of your arrest, blood alcohol level and demeanor during the arrest, the harder it will be to obtain a deal. A typical deal for a guilty plea to a first-time DUI might include three years of probation, a fine of about $1,800, and losing your license for six months. After one month, you can apply for and usually obtain limited driving privileges.
9. Pre-Trial Motions. If the evidence provides the opportunity, your lawyer can petition the court to drop the charges against you or challenge some of the evidence against you and ask that it be suppressed. Typical pre-trail motions include challenging:
The circumstance of each DUI arrest is unique. It is important that you are open and honest with your attorney about every aspect of your case. You’ll never know what may help you, but he or she will.
10. Trial. If your attorney cannot obtain a plea bargain or dismissal, and you do not plead guilty, your case will go to trial before a judge and jury. As you may have seen on TV, the prosecution will present its case and your lawyer will present your defense. The prosecution will present testimony by the arresting officer, the officer who conducted your breath test and other witnesses. Your attorney may question (cross examine) them as well.
As part of your defense, your lawyer may present witnesses on your behalf. It is your right to not testify, but your lawyer may want you to if he or she believes it will help your defense. If you testify, the prosecutor will be allowed to cross examine you. If you decide to testify, your attorney will ensure that you are prepared. While your lawyer cannot tell you what to say, he or she can review the facts of the case with you and the questions likely to be posed to you as you testify.
Once both sides have presented their case, the jury will render a verdict. If you receive a not-guilty verdict, you are done and have no DUI on your record. If a guilty verdict is handed down, the judge will impose a sentence.
For a first DUI conviction with no aggravating factors you can expect to receive:
The penalties are stiffer for subsequent DUI convictions or if there are aggravating factors (See here).
The most important steps for you to take if you have been arrested for DUI are to cooperate with the police but decline to answer questions, and speak to an experienced California DUI attorney at your first opportunity. If you are represented by a dedicated attorney like Steven R. Andrade, you can count on him for the remaining steps as he protects your rights.
Steven R. Andrade has successfully defended many clients as they faced DUI charges, and specializes in assisting college students from the Santa Barbara area. If you have been arrested for driving under the influence or a related drinking-and-driving offense, call us now.