Los Angeles DUI Lawyer Blog

Articles Posted in Blood Alcohol Content (BAC)

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When you are arrested on suspicion of driving under the influence in the state of California, chances are you will be arrested and taken into custody. In addition, you will be charged under the California Vehicle Code §§ 23152 and 23153. You will also be given a court date on which you must appear before a Criminal Judge in a courthouse close to your arrest.

This court date is called the Arraignment. At the Arraignment, three things will happen.

1. The Judge will explain the charges against you and the maximum potential sentences that you may receive

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A driver must have committed a traffic violation or otherwise for an officer to pull the person over. In order for an officer to request the driver to submit to an alcohol screening test, they must have reasonable suspicion. For example, if a driver is following all traffic safety laws, the officer has no reason to pull the driver over. If the driver exhibits no signs of being under the influence of any substance, including alcohol, and does not admit to having been under the influence, the officer does not have authority to request a drug or alcohol screening test.

The driver may then be asked to submit to a blood test if the officers believe they may be under the influence of additional substances. However, they gain their initial authority to request an alcohol screening test because of the use of alcohol. Once the blood test results come back, and they demonstrate drug use, the driver may then have additional evidence against him, even though the driver was initially pulled over and test for alcohol alone.

Thissconcept is best described through an example. Dana has two beers at a friend’s place. She also takes more than the allotted dose of sleep medicine. She hasn’t been sleeping well lately and decides that if she takes the medication prior to leaving her friend’s place, by the time she gets home she will be ready to fall asleep. Dana speeds on the way to her house. She is pulled over by an officer for speeding (valid traffic violation). The officer smells the beer on her breath and asks her if she has been drinking. Dana responds yes, that she has had two beers (reasonable suspicion by admission). The officer then asks her to submit to a field sobriety test. Dana assumes that she has only had two beers so her BAC is low, and she will easily pass the tests and readily submits. She blows a .02.

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When you have been pulled over on suspicion of driving under the influence of alcohol, the officer must have reasonable suspicion before he requests that you complete any field sobriety tests or blood alcohol tests. This reasonable suspicion can arise from admissions of the driver. For example, if the officer asks the driver if he or she has been drinking, and the driver responds in the positive. If the driver has not made any admissions, the officer may still obtain reasonable cause by observations. For example, if the driver has red watery eyes, is slurring or smells like alcohol.

The officer, after having obtained reasonable suspicion may ask you to complete some field sobriety tests. Upon completing the field sobriety tests, if the officer feels that further tests are warranted, he will ask that you submit to a breathalyzer, or ask that you take a blood test so that an accurate measurement of your blood alcohol can be taken.

The test that is administered at the arrest location is not mandatory. This is referred to as the preliminary alcohol test. However, the one administered at the station is. If you refuse to take this second test, and are found guilty of driving under the influence, you could potentially face an increased sentence due to your refusal.

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Each and every person in the United States has constitutional rights that cannot be taken away from them without due process. One of the most important rights is the Fourth Amendment right to be free from unreasonable search and seizure.

Unreasonable search and seizure means that evidence for any kind of prosecution or case may not be gathered unreasonably, and through a violation of privacy. A person’s car, home, or personal space may not be searched without reasonable cause.

This does not mean that officers may not obtain evidence from a person’s home, vehicle or private space. It means that they must first obtain a warrant. To obtain a warrant they must present their evidence to a judge and demonstrate that there is a strong probability that the evidence they are searching for exists in that person’s personal space and they have a valid reason to violate their privacy, despite the person’s Fourth Amendment rights. If evidence is obtained with a warrant, it is obtained reasonably.

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Many of our clients mistakenly believe that a DUI charge is based on their admission of having been drinking. Although their admissions contribute to a huge part of prosecution, a person may still be charged with a DUI, even when they have chosen to remain silent.

When an officer first chooses to have you pull over, he must have a reasonable cause for doing so. A majority of the time it is because the driver has committed a traffic violation. This can be anything from speeding, to and illegal U-turn. Regardless of the offense, it gives the officer grounds to pull you over.

In some situations, the driver may already be pulled over. For example, he may have started driving and felt that he was impaired so he has pulled over. Or there may be car trouble or an accident that has caused the driver to stop on the street or the highway. When a driver is already pulled over, the officer will conduct what is known as a welfare check. The driver does not have to have violated the traffic code, or committed any other offense for the officer to come check up on the driver.

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When you have been charged with the suspicion of driving under the influence of alcohol and/or drugs under California Vehicle Code §23152 or §23153, you will be given a Court date to appear before a Criminal Judge in Criminal Court.

It is also very important that you call the DMV within the right jurisdiction and request a DMV hearing within ten days of your arrest. If you do not call the DMV within ten days, you will forfeit the opportunity to have a hearing regarding your driving privileges. If you call in a timely manner, the DMV will put a stay on your license pending your hearing.

The DMV hearing is very different from the criminal court appearance. It is held in front of a DMV hearing officer, and there is no government attorney speaking on behalf of the government. It is the job of the hearing officer to not only make a decision regarding your hearing privileges, but it is also their job to defend against you on behalf of the government. Although, they are meant to be neutral, it is very difficult to win a DMV hearing.

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When you have been arrested on the suspicion of driving under the influence, you are only being charged with the potential of having committed an offense. This does not mean you are convicted. Before you can be convicted, the government must prove that you are guilty beyond a reasonable doubt, only then can you be found guilty of the offense.

The prosecutor must prove each element beyond a reasonable doubt. For a person to be found guilty of driving under the influence, they must be guilty of two elements; they must be found to be driving, and driving while impaired.

When a person has consumed alcohol and are driving, the Court has a guideline which they can follow to determine impairment. The government has found that if a person has a blood alcohol level of .08 or higher, they are reasonably impaired enough to the point where their driving may be impacted.

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Many of our clients assume that when a person is stopped on suspicion for driving under the influence, that it is under the influence of alcohol. In reality, a DUI is charged under California Vehicle Code §23152, and 23153. The statute reads

” (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”

The relevant code section specifically makes it unlawful to be driving under the influence of any drug, not just alcohol. This means that a person who is under the influence of marijuana, methamphetamines, and other drugs, including prescription drugs, may be found guilty of a DUI, even if they have not had any alcohol at all.

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When you have been arrested for suspicion of Driving Under the Influence, you have only been charged. In order to convicted, and therefore sentenced, it first has to be proven beyond a reasonable doubt that you meet all the elements required to be found guilty of a DUI.

If you have been convicted, and not merely charged, one of the components of your DUI sentence will be an alcohol program. Statutorily, the Court may sentence you to up to six months of an alcohol education program. However, the length of the program may be reduced under the proper negotiations.

The length of your program will greatly depends on the facts of your case and your prior criminal history. Let’s consider the example of Danny. Danny has had no previous criminal arrests, nor has he been convicted. His blood alcohol level at the time of arrest was about .09 and he was stopped for a broken headlight. Because Danny does not have any extreme enhancements that would cause the Judge to raise an eyebrow, including no prior criminal history, the Judge may sentence Danny to complete only 3 months of an alcohol education program.

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When a person has been stopped on suspicion of driving under the influence, they must appear before a Judge in criminal court. At this point the person has not been found guilty, and are therefore not convicted of a DUI. In order for a person to be convicted and sentenced for a DUI, the person must be found guilty beyond a reasonable doubt. The prosecution must prove that the person was driving and that the person was intoxicated while driving.

If the person is not intoxicated while driving, they may have a valid defense. However, the Los Angeles DUI attorney must demonstrate to the court that the person driving was not intoxicated while they were driving, even in situations where there is evidence of the driver’s blood alcohol level. Providing this defense is very difficult, as it involves much reasoning and assumption, but is definitely possible.

This defense is referred to as the rising alcohol defense. The defense simply means that while the driver was driving the car, their blood alcohol level was low. The blood alcohol level rose as the person drove. Therefore, while the person was driving, he may have reached his destination prior to their blood alcohol level being anywhere near, or over the legal limit of .08%.

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