New DUI / DWI Sentencing Laws in California

California has created new laws regarding driving under the influence cases. If the driving under the influence or the driving while intoxicated happened on September 20, 2005 or later, the driver will be subject to the new laws. Leave it up to a qualified California DUI / DWI attorney to sort out the differences for you. To have your case evaluated contact The Kavinoky Law Firm.

Before the new law took effect, both the courts and the Department of Motor Vehicles could suspend driver’s license. Now that is not the case. Only the DMV may suspend or restrict a driver’s license. The DMV will suspend or restrict a license following a DMV hearing (administrative per se hearing) or once the D.M.V. has information regarding a drunk driving conviction in the criminal courts. A DUI / DWI lawyer can handle both criminal court and Department of Motor Vehicles hearings.

The new laws in California provide for the DMV to automatically suspend a driver’s license for six months for first time DUI offenders. The driver may request a restricted license to allow for driving to work and to alcohol education classes. Previously, there was a one month wait before a driver could request a restricted license. Now the restricted license may be requested immediately.

Previously, in deciding the length of alcohol education classes, the courts would use a blood alcohol content of .20 percent as their magic number. Now the magic number is .15 percent, which means that any driver whose BAC is .15 percent or higher should expect the possibility of extended education programs.

Generally in a DUI / DWI case a driver is offered probation instead of jail time. There are still some cases where even if a driver accepts probation, the judge may impose a jail sentence. The new California law requires that a driver who refuses probation to serve a mandatory 96 hour jail sentence. 48 hours of that sentence must be served consecutively. The remaining 48 hours must be served within six months of the sentence. A California criminal defense attorney will be able to advise a client convicted of drunk driving on whether or not to accept probation or to take the jail sentence.

Whether or not a driver accepts or rejects probation, fines will still be imposed on the first time offender. The first time offender will face fines ranging from $390 to $1,000 plus penalty assessments. Penalty assessments will practically triple the fine. The current rate for the penalty assessment is 171 percent of the fine.

The second time offender, meaning a driver who has a prior DUI or wet-reckless conviction within 10 years of the second charge, will face an automatic two year license suspension by the DMV. After one year of the license suspension a driver can apply for a restricted license so long as the driver is signed up for alcohol education classes, files a proof of insurance, has an ignition interlock device and has paid all the costs associated with the conditions. It used be the case that a victory at a DMV hearing would mean no suspension of the license for a second time offender, so long as the court also agreed to a restricted license, but times have changed.

Second time offenders will face 10 days in jail or a 96 hour jail sentences even if they accept probation. If probation is declined by the driver, the driver will face a jail sentence of 90 days to one year. Work release or alternative sentences may be appropriate and a California criminal defense attorney will work to achieve such alternative punishments where appropriate.

While third and fourth time offenders are not affected by the new California legislation, drunk drivers or drivers otherwise intoxicated who cause injuries to another do face new regulations. Those new regulations include five days to one year in jail, alcohol education classes, and fines even if the driver accepts probation. When probation is not accepted by the driver, the jail sentence will range from 90 days to one year. The license of a drunk driver who injures another person will be suspended for a full year with no opportunity for them to seek a restricted license.

If a second time DUI / DWI offender injures a person while driving under the influence of alcohol or drugs, that driver will face a 30 day to one year jail sentence with alcohol education classes, or 120 days to one year in jail with no education courses. These sentences apply if the driver chooses probation. When a driver declines probation they will face 120 days to one year in jail. Any second time offender who injures another will also face a three-year suspension of their driver’s license with a possible restricted license following 18 months if the driver has completed 18-months of alcohol education classes. Fines will also be applied whether the driver accepts probation or not.

The new laws in California drunk driving cases require the expertise of a California DUI / DWI attorney if a person seeks to have the best possible outcome. The new laws affect the courts and the DMV and pose unique issues that should be handled by professionals.

California’s Implied Consent Law dictates that any driver who is lawfully arrested for DUI / DWI must take a chemical test in order to determine their blood alcohol content (BAC).

If the driver refuses to submit to a chemical test of the blood, breath or urine, police can take a blood sample by force – either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw blood to be analyzed for a drunk driving court case.

The United States Supreme Court allowed forced blood draws in drunk driving cases in the landmark 1966 case of Schmerber v. California. The Court ruled that police can take a person’s blood without a warrant for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these three requirements are met, a forced blood draw does not violate the driver’s Fourth Amendment right against unreasonable search and seizure.

The Court ruled that it is unreasonable to require a warrant to draw someone’s blood in a DUI / DWI case because of the temporary nature of alcohol in the blood. However, many opponents believe that forced blood draws are an invasion of privacy and a violation of the right against self-incrimination.

In California, if police take the driver’s blood by force it is recorded as a chemical test refusal. Refusals carry numerous consequences, including fines, jail time, and suspension of driving privileges. Therefore, a forced blood draw may result in both a conviction for DUI and added penalties. Sometimes police say that a DUI suspect refused even when he or she did not. These types of errors sometimes stem from issues that include misunderstandings resulting from language barriers, overreacting police officers, or drivers who fear needles.

An experienced defense attorney may submit a motion to the court to suppress the results of a forced blood draw from the evidence in a drunk driving trial. A suppression motion is a request typically made before the start of trial, where the court is asked to exclude evidence because it was not gathered in a constitutionally valid way.

If this protocol laid out by the Supreme Court for forced blood draws isn’t followed, the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Suppressed evidence cannot be considered by the judge or heard by the jury. According the legal principle of “fruit of the poisonous tree,” any evidence gained as a result of the unconstitutional evidence must also be suppressed.

Suppressing forced blood draws in California drunk driving cases is a serious and necessary weapon in the fight for constitutional rights, and one of the few safeguards the law offers is where a person’s rights have been violated. The knowledgeable DUI / DWI defense attorneys at The Kavinoky Law Firm will review the procedures used in a forced blood draw to determine whether a driver’s rights have been violated. If the proper protocol was not followed, the defense lawyer will argue that the evidence should be suppressed.

Drivers arrested for DUI / DWI at sobriety checkpoints in California often ask why police are allowed to stop them without probable cause. The answer may come as a surprise – the courts have ruled that probable cause isn’t needed when police operate sobriety checkpoints, as long as certain criteria are followed. However, police don’t always follow those guidelines. An experienced DUI / DWI defense lawyer from The Kavinoky Law Firm will determine whether police followed established protocol while conducting a sobriety checkpoint.

Stopping a vehicle at a roadblock is considered a seizure for Fourth Amendment purposes. The Fourth Amendment states that individuals should be free from unreasonable searches and seizures of their person and their belongings. The key factor in Fourth Amendment issues is reasonableness. The officer must have reasonable suspicion that a crime has occurred, or the seizure must be carried out under a plan containing explicit, neutral limitations on the conduct of individual officers.

California’s constitutional principles are based on the same issues. The government’s interests is weighed against the intrusiveness of the detention to determine reasonableness. In California, there must be probable cause in order to justify an investigative stop or detention without a warrant. Probable cause means the officer must be aware of specific facts that some crime has or will take place, and the person stopped is somehow involved in that activity. Reasonableness requires that anyone else in the officer’s position would have reached the same conclusion.

However, not every search and seizure requires a reasonable suspicion of criminal activity. Searches that are done to pursue an administrative purpose instead of as part of a criminal investigation may be permissible under the Fourth Amendment, even without probable cause. When evaluating an administrative screening, reasonableness is determined by balancing the public interest against the intrusion on the individual. Therefore, some types of roadblocks, such as sobriety checkpoints, are legal, while others are not.

Drunk driving roadblocks are considered to be part of a regulatory scheme with an administrative purpose, and not traditional criminal investigative stops. The primary purpose of a sobriety roadblock is to promote public safety by keeping drunk drivers off the road.

Therefore, if the appropriate guidelines have been followed, DUI checkpoints are legal and don’t require probable cause. The guidelines are fairly straightforward – there must be a random formula – such as every third or fifth vehicle – which limits the discretion of the officers in deciding who to stop. The intrusiveness on individual drivers must be minimal. Each driver’s detention must be brief, involving just a few brief questions that allow the officer to look for signs of intoxication. In addition, officers may shine their flashlights into the vehicle to look for alcoholic beverages. The Supreme Court has ruled that this intrusion on the individual is slight in comparison to the value to society in keeping drunk drivers off the road.

Drivers have also been arrested on suspicion of DUI / DWI after being stopped at other types of roadblocks unrelated to sobriety checkpoints. Some of these roadblocks are lawful, and some are not.

The Supreme Court has ruled that roadblocks whose primary purpose is to detect evidence of ordinary criminal activity are unconstitutional, and therefore illegal. Roadblocks designed to detect illegal drugs are one example. Illegal drugs aren’t believed to pose the same vehicle-related threat to life and limb that exists with drunk driving. If police were allowed to stop drivers to check for every crime facing society, the constitutional protections we enjoy today would disappear. Therefore, because the primary purpose of a drug roadblock is to detect evidence of ordinary criminal wrongdoing, it is unconstitutional.

However, the Supreme Court has sanctioned roadblocks held to seek information and locate witnesses to a crime as being constitutional. Illinois v Lidster held that an Illinois roadblock did not violate the Fourth Amendment’s prohibition of unreasonable search and seizure.

The roadblock challenged in the Lidster case was deemed reasonable because it advanced a grave public interest and only minimally interfered with Fourth Amendment rights. Police in this case were investigating a death by stopping drivers on the same stretch of road, at the same time that the accident occurred, asking motorists briefly whether they had witnessed the crime or had any information. Because the crime the officers were investigating was motorist-related, and the stop itself was brief, it was considered constitutional.

Some California DUI / DWI arrests that occur at roadblocks are valid, and some are not. A skilled California defense lawyer who focuses on drunk driving cases such as those at The Kavinoky Law Firm can determine whether the roadblock was properly conducted. If the roadblock wasn’t conducted lawfully, any evidence collected likely will be suppressed in court.

Convicted DUI / DWI drivers typically face traditional court punishment such as jail sentences, fines, and license suspensions. However, courts are increasingly seeking to address the underlying alcohol issues of drunk drivers through sentencing alternatives. One available alternative is participation in a Victim Impact Program offered by Mothers Against Drunk Drivers (MADD).

The MADD Victim Impact Program consists of regular meetings between convicted DUI offenders and individuals whose lives have been affected by drunk drivers. Sentencing alternatives such as the MADD Victim Impact Program are designed to help, rather than punish, DUI offenders. MADD members communicate the impact drunk driving has had on their lives with the goal of educating drunk drivers of the effects of their actions on others.

The meetings are typically organized as panel discussions that feature three or more MADD members telling their stories. The discussions are often moderated by a police officer. When time permits, convicted drunk drivers may also share their stories.

Participation in the MADD Victim Impact Program is typically set as a condition of probation. If the DUI offender fails to participate in the program, probation is violated, and the driver likely will go to jail.

Sentencing alternatives such as the MADD Victim Impact Program can be a viable alternative to a jail sentence for a convicted drunk driver. A qualified California DUI / DWI attorney can determine whether sentencing alternatives are available in individual cases.

A California driving under the influence of marijuana trial consists of six phases: jury selection, opening statements, witness testimony and cross-examination, closing arguments, jury instruction and jury deliberations. An individual accused of this offense should immediately contact an experienced California criminal defense lawyer who specializes in driving under the influence of drugs (DUID) cases who will exude competence and skill during the trial (as well as during all other proceedings) at all times.

Jury selection is, perhaps, the most important phase of a DUI trial, as this is where the attorneys make their first impressions on the jurors. The judge (and usually the prosecutor and defense attorney) have the opportunity to question the jurors about their attitudes, beliefs and biases as they relate to driving under the influence and marijuana use in general. After hearing the responses, both attorneys have the right to ask the judge to excuse jurors “for cause,” which means that the juror cannot fairly judge that trial or on a “peremptory” basis, which means that the attorney can ask the judge to excuse the juror for any non-discriminatory reason.

Opening statements are the attorneys’ first opportunity to tell the chosen jury what they expect the evidence to show. This is where the jurors are basically given a “preview” of what is to come. No witnesses, evidence or arguments are permitted during this phase. The prosecutor (who bears the “burden of proof” which, in a criminal trail, is “beyond a reasonable doubt”) gives his or her statement first and then the defense lawyer may either give his or her opening statement, reserve it until the prosecutor has concluded his or her case or may waive it altogether.

Witness testimony and cross-examination comprises the bulk of the trial. Also known as the “case-in-chief,” it is the part of the trial where each side presents their witnesses and evidence, has a chance to cross-examine the other party’s witnesses and has a chance to rebut the other’s evidence. This is where the arresting officer testifies about the defendant’s driving pattern, his or her physical appearance, the field sobriety tests and any chemical test results. Again, because the prosecutor bears the burden, he or she goes first. It should be noted that the defense has no burden in a criminal trial, which means that the defendant does not have to put on a case and may simply choose to rebut evidence that the prosecution presents.

Closing arguments is when the attorneys “argue” their version of the events. The prosecution attempts to show why he or she has met the burden of proving the defendant guilty, and the defense lawyer argues that the prosecutor didn’t meet that burden. He or she then argues all of the defenses that were applicable to the case. This is both attorneys last chance to speak to the jurors before they return their verdict. The prosecutor goes first, followed by the defense and is then given a final opportunity to rebut the defense’s argument.

Jury instruction consists of the judge telling the jurors what laws they must follow when judging the defendant. Before the jurors are instructed, both parties meet with the judge to decide which instructions will apply. Once the instructions are read, the case “goes to the jury”.

Jury deliberations take place when the jury meets, in private, to discuss the evidence and defenses that were presented. This is their first opportunity to discuss the case, as they have been forbidden from doing so up until this point. California D.U.I.D. trials require that the accused must be unanimously found guilty in order to be convicted. If even one juror disagrees with that verdict, the judge declares a “mistrial” and may either order the case to be re-tried (typically unlikely in a misdemeanor DUI) or may dismiss it entirely.

The outstanding California DUID attorneys at The Kavinoky Law Firm know the most effective ways to prevail during trial. To learn more, contact them today for a free consultation.

Alcohol Education Programs in Imperial County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Imperial County, California:

Imperial Valley Safety Services
(Service Provided: First Offender)
480 Olive Avenue,
Suite 3A,
El Centro, California 92243
Phone: 760-353-7780; Fax: 760-353-7784

Sober Road, Inc.
(Service Provided: 18 Month)
395 Broadway Avenue,
Suite 11,
El Centro, California 92243
Phone: 760-352-8888; Fax: 760-352-8517

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

Alcohol Education Programs in Orange County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Orange County, California:

School Ten, Inc.
(Service Provided: 18 Month)
1136-B N. Gilbert Street,
Anaheim, California 92801
Phone: 714-772-3620; Fax: 714-490-6133

School Ten, Inc.
(Service Provided: 18 Month)
2384 E. Orangethorpe Avenue,
Anaheim, California 92806
Phone: 714-871-9460; Fax: 714-871-5067

School Ten, Inc.
(Service Provided: 18 Month)
9555 Garfield Avenue,
Suite J,
Fountain Valley, California 92708
Phone: 714-964-1412; Fax: 714-964-2862

School Ten, Inc.
(Service Provided: 18 Month)
1772 S. Main Street,
Santa Ana, California 92707
Phone: 714-547-7571; Fax: 714-547-0774

School Ten, Inc.
(Service Provided: First Offender, 18 Month)
6156 Garden Grove Boulevard,
Westminster, California 92683
Phone: 714-891-3608; Fax: 714-897-4425

School Ten, Inc.
(Service Provided: 18 Month)
1111 Town & Country,
Suite 25,
Orange, California 92868
Phone: 714-550-0988; Fax: 714-550-9464

Gold Coast Counseling Center, Inc.
(Service Provided: 18 Month)
2950 Airway Avenue,
Suite B3,
Costa Mesa, California 92626
Phone: 714-641-0532

Gold Coast Counseling Center, Inc.
(Service Provided: 18 Month)
26081 Merit Circle,
Suite 123,
Laguna Hills, California 92653
Phone: 949-347-8885

Academy Of Defensive Driving, Inc.
(Service Provided: 18 Month)
31726 Rancho Viejo Road,
Suite 120,
San Juan Capistrano, California 92675
Phone: 949-240-0115; Fax: 949-443-5018

Academy Of Defensive Driving, Inc.
(Service Provided: First Offender)
2000 Quail Street,
Newport Beach, California 92660
Phone: 949-752-0710; Fax: 949-752-0705

National Council On Alcoholism
(Service Provided: First Offender, 18 Month)
22471 Aspan Street,
Suite 103,
Lake Forest, California 92630
Phone: 949-770-1191; Fax: 949-770-4660

Santa Ana DDP
(Service Provided: First Offender, 18 Month)
1631 North Bristol Street,
Suite 300,
Santa Ana, California 92706
Phone: 714-835-4252; Fax: 714-560-1680

National Traffic Safety Institute
(Service Provided: First Offender)
2100 East 4th Street,
Suite 110,
Santa Ana, California 92705
Phone: 714-953-5200

K.C. Services, Inc.
(Service Provided: First Offender)
1060 Brookhurst Road,
Fullerton, California 92833
Phone: 714-449-1339; Fax: 714-449-1289

ABC Traffic Programs
(Service Provided: First Offender)
1501 N. Raymond Avenue,
Suite C-D,
Anaheim, California 92801
Phone: 714-563-8999; Fax: 714-563-8995

ABC Traffic Programs
(Service Provided: First Offender)
2901 W. MacArthur Boulevard,
Suite 207,
Santa Ana, California 92704
Phone: 714-429-9909; Fax: 714-429-9911

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

Alcohol Education Programs in Sierra County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Sierra County, California:

Sierra County DDP
(Service Provided: First Offender)
704 Mill Street,
Loyalton, California 96118
Phone: 530-993-6746; Fax: 530-993-6741

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

The DMV Hearing Process

At the Department of Motor Vehicles hearing, the DMV carries the burden of proof. This means that they must answer all three issues in the affirmative. The evidentiary standard is the preponderance of the evidence. This low legal standard is applicable in administrative civil hearings such as the DMV hearings. At the hearing, the judge who occupies the role of prosecutor too, will to begin entering into evidence the arresting officer’s statement and other evidentiary documents.

A DUI / DWI defense attorney will work to keep the police statement and other documents out of evidence. The attorney will rely primarily on the hearsay objection. A document is can be considered hearsay when a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” That is the definition of hearsay in the Federal Rules.

Most states, including California, have hearsay rules that say substantially the same thing. What they say in lay terms is simply that a statement cannot be submitted into evidence unless the person, who made the statement, testifies to that statement in court while under oath. There are exceptions to the hearsay rule. If a police officer files a statement during the course of official duty, the report can be submitted in as evidence. However, if the arrest was unlawful in any way, then the officer was acting outside of the course of official duty. If the officer was acting outside of official duties, the exception to the hearsay rule does not apply, and therefore officer statements may be inadmissible.

If a police report is incomplete or incorrect in some ways, then the document will be inadmissible. But these reports are not the only things that can be submitted into evidence. Forensic alcohol experts may be called to testify. Their testimony will be based on the science related alcohol absorption and elimination and a driver’s BAC at the actual time of driving.

Witnesses may testify at Department of Motor Vehicles hearings. A defense attorney skilled in drunk driving cases will decide if this is the best approach. Oftentimes witness testimony is not required. Generally, witness statements can be substituted by declarations. Declarations are sworn written statements.

Title 17 requires that blood and breath tests be trustworthy and have established rules related to the establishing the trustworthiness of these chemical tests. A California criminal defense attorney with vast experience in DUI / DWI cases can attack the evidence as being untrustworthy. If the tests are proven to be untrustworthy, they will be inadmissible and would result in a non-suspension of driving privileges.

Once the all admissible evidence has been put on the record, the judge will take the case under submission. The judge will hand down one of two possible rulings. The case may be set aside which means there will be no suspension or limitations on will be placed on the driver’s license.

If the case is not set aside, then the driver’s license will face revocation, suspension, or some sort of restriction. It is likely that the driver will be ordered to attend and successfully complete alcohol education classes. The length of suspension and degree of restriction on a license is dependant on the driver’s history. Past DUI or violations will increase the sanctions. Furthermore, a driver may be required to file formal proof of insurance with the DMV. This is done with the filing of an SR-22 form.

Superior Court Of California, County of Inyo

If you have been arrested for Driving Under the Influence of alcohol or drugs in the state of California, it is important to know the location of the courthouse where your arraignment will be held. If there are multiple courthouses in the county, please contact a skilled California DUI / DWI defense attorney for more information.

Inyo County Superior Court
168 North Edwards Street, Post Office Drawer U, Independence CA 93526

» Inyo County Superior Court of California website.

Getting arrested on suspicion of DUI / DWI can be a frightening experience. Suspected drunk drivers face a legal labyrinth that can seem daunting. A drunk driving case generates two separate cases – in criminal court, and at the Department of Motor Vehicles (DMV). A California attorney with experience defending drinking and driving cases can help drivers navigate through both the DMV hearing and the court case.

» Return to California Superior Courts, general information