What Happens When I Get a DUI in San Diego?

While most of us know someone who has been pulled over for suspected drunk driving, not many of us know what a drunk driving charge truly entails and what the possible consequences are. The possible charges you may face, the effect the charge will have on your license, and the possible jail time you may serve are all dependent on the unique circumstances surrounding your arrest and whether you have prior drunk driving convictions on your record.

Whether you are a first time offender or you are charged with your third or fourth DUI offense, San Diego drunk driving defense attorney Vikas Bajaj can help protect your legal rights and minimize the potential damage this incident may have on your future.

Not Drunk But Been Drinking? Getting Pulled Over

When you get pulled over for any reason, it is critical to understand what your rights and responsibilities are before saying or doing anything. Understandably, when we are in situations with persons of authority such as police officers, it is easy to be intimidated or convinced to do something that we may otherwise have reservations about. Many people are reluctant to tell an officer “no,” but if you want to preserve your legal rights and ensure that you do not make any incriminating statements, that is exactly what you should do.

If you are pulled over for suspected drunk driving, you must provide the officer with your license and registration upon request. Your attitude during this initial interaction may significantly impact the duration of the traffic stop. Be kind, courteous, but politely avoid answering questions. You do not have a legal obligation to incriminate yourself. In fact, you have a constitutional right to remain silent.

There is a difference between being silent and uncooperative; you can give the officer your name, but any further questions should be responded to simply by stating that you do not wish to answer the officer’s questions. Usually, the officer will ask you to step out of the vehicle and perform field sobriety testing and/or use a breathalyzer. You are not required by California law to submit to either of these tests pre-arrest.

An officer also cannot make an initial traffic stop or search your car without probable cause. You are not required to allow an officer to search your car unless they procure a warrant. Officers, usually, are just doing their job, but may make false promises stating that they will not arrest you if you submit to searches or testing, but this is not the case. If the officer observes behaviors with or without chemical or field sobriety testing, you may still be placed under arrest. At that time, you may absolutely invoke your right to remain silent and do not need to answer any of the officer’s questions. If you have been placed under arrest, you will be required to submit to chemical blood alcohol testing when you are taken to the station.

Most officers act within the bounds of the law and are not trying to trick you into making admissions. However, even seemingly innocent admissions (“I only had one drink,” “I was at such-and-such a bar,”) can come back to haunt you later, and it is not worth risking making incriminating statements simply because you were too afraid to tell the officer “no,” which is your absolute legal right. Your arresting officer is the one that will craft the report and possibly testify against you in court; being courteous but firm will go a long way in both protecting your legal rights and simultaneously protecting yourself from unnecessary incrimination.

First Time DUI Offenders

California Vehicle Code Section 23152(a)-(b) govern most typical drunk driving charges:

• It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle
• It is unlawful for a person who has 0.08% or more, by weight, of alcohol in his or her blood to drive a vehicle.

Many people erroneously believe that if you do not have a 0.08 at the time of your arrest, you cannot be in legal trouble. There are lesser infractions that can be issued as to driving while impaired, as any amount of alcohol in your system is capable of causing impairment. Additionally, if you are driving a commercial (work) vehicle at the time of your arrest, the state limit is 0.04, not 0.08%.

Regarding punishment, pursuant to California Vehicle Code 23536, first time offenders may be jailed for a minimum of four days and a maximum of six months. The determination of release after the initial arrest is made based on the factors giving rise to the offense, as well as whether immediate jailing would affect the accused’s employment schedule, if any. License suspension, possible fines, and probation or alcohol school may also be ordered by the court if you are convicted.

License Suspension

Perhaps a more immediate concern for first time offenders is what happens to the status of their license. When you are arrested for suspected DUI in California, your license is immediately suspended. The arresting officer will physically take your license from you, assuming you have it on your person. Regardless, the officer must notify the Department of Motor Vehicles of your transgressions.

You have ten days to request a hearing through the DMV to attempt to regain your license. You may, and should, have an attorney present at this hearing to help you make the best legal arguments possible so you can get your license back. If you are unable to accomplish this, a first time DUI offender in California may have his or her license suspended for up to a period of four months. If you are under 21 years old, you may face longer suspensions or other consequences as well. Many states require ignition interlock devices (a device that requires you to test for sobriety before your car will start) for even first time offenders, and even though legislation regarding the issue is currently pending, California is not one of them.

Additional or More Serious Charges

Other statutes in the California code specify additional or enhanced punishments if certain circumstances are present:

• Being under the influence and causing injury to another
• Being under the influence and causing property damage
• Being under 21 years of age
• Having a minor in the vehicle at the time of the incident
• High blood alcohol content

While first, second, and even third time offenses are generally charged as misdemeanors, the presence of any of these factors may cause the crime to be charged as a felony. Fourth time offenses within a ten year period are automatically charged as felonies, as well, and will likely count against the offender as a “strike” for the purposes of California’s “three strike” sentencing scheme.

Subsequent DUI Offenses

Second and third time offenders will face greater threats of punishment. While most first time DUI offenders will not serve jail time, second and third time offenders may. Subsequent offenses are considered within a ten year period, that is, if you have one drunk driving offense and then another three years later, that would fall within ten years and you would be subject to enhanced penalties.

A second DUI conviction in California may require participation in an alcohol program, probation, fines, and the possibility of up to one year in jail. Second offenders also face a two year license suspension. Third time offenders are labeled as a habitual traffic offender by the DMV, will have a license suspension of up to three years, and then when permitted to have a restricted license (the ability to operate a vehicle for limited purposes such as driving to work), face ignition interlock requirements. Third time offenders will also serve at least 120 days in jail, up to a year and face significant fines, probation, and DUI education programming.

Subsequent offenses, especially those that cause death or serious injury to another have punishments equivalent to the harm that was caused. A fourth time DUI offender in California faces felony DUI charges if they have had three prior convictions in the past ten years or if any of their previous convictions were felony DUI charges. They will also face a license suspension of four years and between 16 months and four years in jail.

San Diego DUI Attorney

Understanding your rights from arrest through trial can be intimidating, especially if you are a first time DUI offender. The Law Office of Vikas Bajaj, APC is dedicated to protecting the rights of those accused of drunk driving offenses. Criminal defense attorney Bajaj understands the potential impact any criminal offense can have on your personal life, and works hard to protect his client’s interests.

Whether you are concerned about your license suspension, wondering if you are eligible to get your license reinstated, or have pending driving under the influence criminal charges filed against you in California, Attorney Bajaj can help. He is a knowledgeable criminal defense attorney that serves the greater San Diego, California area; contact him to begin your defense today