San Jose DUI Attorney

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If you have been arrested for a DUI, want to learn more about DUI California law or are simply looking for a San Jose DUI attorney, this blog is for you.  First, check out this video.  Then scroll down for more information.

DUI California law can be complex, confusing and oftentimes counter-intuitive.  We hope to simplify DUI California law so that you can make the right decisions and at the right time.  Please read the disclaimer at the bottom of each page carefully before you act.  This blog is written and edited by Leo Reilly, a San Jose DUI attorney.

There are several ways you can find the answers you are looking for.

  • Start with the Categories list on the right side of this page and see if you can find the topic that fits your question.
  • If you cannot, then feel free to call us at (408) 283-0574 and we will try to answer your question at no cost.
  • Also check out our You Tube Channel–DUI 101, which you can find on the menu bar above.  We have a collection of video tutorials that can provide you with more information about DUI and DMV law.
  • Check out our Resources and Links page to find the DMV Hearing Request Form, sample DMV driving tests and links to the DMV and other sites.

Finally, if you have any questions or comments, or simply want to speak with a San Jose DUI attorney, you can reach us through our Contact Us page or as follows:

Leo P. Reilly
Attorney at Law
(408) 283-0574

You’ve had a DUI arrest. Now what? (Video)

What do you do if you’ve had a DUI arrest?  First, get that DUI hearing taken care of within 10 calendar days of your DUI arrest, even if you aren’t going to fight the DUI!  If you don’t request a DMV hearing within ten days, your license will be immediately suspended.  This video lays out the three essential steps to protecting your rights and giving you some control over the process.  The DMV hearing is the first step.

Remember, a DUI arrest is not the end of the world, but you need to do a few things immediately to protect yourself.

The Law- California DUI Law

California DUI law is similar in many respects to DUI law in the rest of the country.  For one thing,  every state DUI law in the country shares the same format with California DUI Law–they are all based on two alternative counts.  That means that you are charged with two separate crimes, however because these are alternative counts, you can only be convicted on one of them.

Of the two counts, the first is called the “driving under the influence” or DUI count, and the other is called the “per se” count.

The DUI count makes it against the law to drive under the influence of alcohol.  The “per se” count makes it against the law to drive with a BAC of 0.08 or higher.

In California courtrooms you will hear these counts referred to by the judge and the attorneys as:

  • the “a” count, for Vehicle Code Section 23152(a)–the DUI count;
  • and the “b” count, for Vehicle Code section 23152(b)– the “per se” count.

You will find these two counts– 23152(a) and 23152(b) –referred to time and again in the various Vehicle Code sections that deal with California DUIs.

If you are unfortunate enough to be arrested on federal land, you will have to appear in Federal District Court.    Check this short blog on Federal DUI Law.

The Law- Expungement / Record Clearance (Video)

This video, discusses getting your DUI expunged in California, how to do it, and what it will accomplish.  We discuss expungement, record clearance, termination of probation, why these terms are important and how they can affect your employability. Getting your DUI expunged is a necessary first step to clearing your record, but there are some limitations to expungement– certain things that expungement won’t accomplish.

The Law- An Overview

California DUI Laws

Driving Under the Influence (DUI) is a serious crime. It can result in jail time, probation, fines, license suspension, and DUI school.  The following is a brief overview of California DUI laws.  It covers the different laws that you can be charged with violating.  It is anything but exhaustive.  With that understanding, here is a short overview of California DUI laws including what you can be charged with and the various enhancements to those crimes.

Violations

The most common violations of the Vehicle Code that involve DUI are:

  1. Driving under the influence of alcohol or drugs.  VC 23152 (a) makes it illegal to drive under the influence of alcohol or drugs.  Contrary to common belief, people are commonly charged in criminal court with a DUI when their BAC is 0.06 or higher.  If your BAC is 0.05 you will get a pass.  If higher, but below 0.08, you can be charged with a violation of VC 23152(a).  This section of the law is commonly called the “a count.”
  2. Driving with a BAC of 0.08 or higher:  VC 23152 (b) makes it against the law to drive with a BAC of 0.08 or higher even if you are not under the influence of alcohol.  23152(b) is commonly called the “per se” section, also referred to as the “b count”.
  3. Driving a commercial vehicle with a BAC of 0.04% or higher.  Vehicle Code section 23152(d).  This is the toughest count, since it results in the hardest suspension.  23152(d) only applies to drivers of commercial vehicles.
  4. Driving with a BAC of 0.05 or higher if you are under the age of 21. Vehicle Code Section 23140.  DUI laws tend to be stricter the younger you get.  If you are charged with a violation of 23140, you are looking at a loss of your license for one year.
  5. Driving with a BAC of 0.01 or higher if you are under the age of 18.
  6. Driving while addicted to any drug and not participating in any lawfully approved narcotics treatment program.  Vehicle Code section 23152(c).  This section is rarely used.  I have only seen it used once by the DMV in the past ten years against a guy who had multiple drug convictions.  Note that 23152(c) is a criminal count, although it can be used by the DMV to suspend your license even if there is no criminal charge for a violation of 23152(c)

Enhancements

Depending on the seriousness of the DUI you are ch with, the law can up the ante.  The seriousness of any DUI is going to be based on the following factors:

  • Priors:  Do you have any prior DUI convictions within the prior 10 years?  Second DUIs typically result in additional work release, suspensions and IID installations.  Third and Fourth DUIs will result in serious jail time along with suspensions or revocations of your driving privilege.
  • Child endangerment:  If you are driving under the influence with a child fourteen years or younger, you should expect a stricter sentence including a referral to child protective services.
  • DUI with injuries:  If you are DUI and involved in an accident that causes injuries to someone other than yourself, then this could be serious.  Check your Notice to Appear (that the officer gave you).  If you are charged with a violation of Vehicle Code Section 23153(a) or 23153(b) then you need to consult an attorney immediately.  DUIs with injuries are called “wobblers” under 23153(a) or 23153(b) which means that they can be charged as misdemeanors or felonies.  If the injury to another person involved “great bodily injury”, or “GBI” then expect a felony charge.
  • You are young:  One of the cruelties inflicted on the youth is the tendency of our courts to treat young people more harshly.  Although there is no long that mandates stricter treatment, the simple fact is that 22 year olds will get stiffer sentences than 60 year olds, all other things being equal.
  • Speeding:  If you are driving 30 miles over the posted speed limit on a freeway, or 20 miles over the posted speed limit on a city street, then you will be facing 60 days straight time in county jail.
  • Refusal: If you are suspected of driving under the influence, you have to agree to a chemical breath or blood test.  Any “refusal” to do so can result in a one-year hard suspension of your license in addition to the suspension for the DUI itself.  If your license is important to you, then this is a serious enhancement.  Courts also dislike refusal cases and typically add time to your sentence in addition to the license suspension.
  • BAC is 0.15 or higher:  High BACs always add time and can add additional months of DUI school.  Time varies from county to county.  Check with your local public defender.  DUI school for a 0.15 also varies from county to county.  In some counties (Alameda and Contra Costa Counties for example) you will be required to complete a six month DUI course (rather than the standard three month program.)  Other counties (Santa Clara, for example) do not have a six month program so you can get away with the three month program.
  • BAC is 0.20 or higher:  Bottom-line here is 9 months of DUI school and additional time.

Sentences can also be enhanced if you are a minor, if someone is injured (which can be charged as a felony resulting in prison time), if you had prior DUI convictions, if you refused to take a chemical test, if you had a minor under the age of 14 in the car or if you had a BAC of 0.20% or higher. If you are convicted of a DUI it will appear on your criminal record causing you to lose your job, negatively impact on educational opportunities, lose custody of your child in a divorce action, and/or make it more difficult to rent an apartment. And, as if this wasn’t enough, a DUI can also result in significantly higher automobile insurance premiums.

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The Law- Federal DUI’s

If you got a DUI on federal land or were otherwise arrested for a federal DUI, get ready.  Federal DUI law is far more strict than state law when it comes to probation.  Most of the other penalties are the same with a federal DUI as with a DUI in state court.

Again, the difference in California is probation.  Probation for a DUI in federal court is formal, rather than informal.  That means that you have to report to a probation officer, answer personal questions about your life–especially drinking and drug usage–see your house searched, and report to the probation officer on a regular basis.  You will also be unable to leave the country (or even the state) without permission from the court and/or the probation officer.

If you are looking for an attorney be advised (a) that public defenders at the federal level are excellent–I would not have any personal hesitations in using one; (b) if you are using private counsel, make sure (i) they are admitted to practice in federal court and (ii) that they practice there regularly.  The rules of procedure in federal court are very different from state court.

The Law- DUI Boating & Motorcycling

DUI Boating, Golf Carts and Other Vehicles:  Did you know that you can be charged with a DUI for being under the influence of alcohol while riding on any device with a motor? It’s true! This is the result of a rather expansive definition of what a “vehicle” is under California’s Motor Vehicle Code.  DUI boating arrests are actually quite common.  And this expansive view of what constitutes a “vehicle” includes golf carts, motorized skateboards, and bicycles with motors- including electric motors.

Boating DUI is not an uncommon charge.  It is against the law to boat or operate any vehicle (including everything from a motorcycle to a bicycle) under the influence of alcohol or drugs in the State of California. The California Vehicle Code defines a “vehicle” as any “device by which any person or property may be propelled, moved or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks”. As such, the definition of vehicle has been held to include everything from bicycles to a horse-drawn buggy.

Operating a Boat or Watercraft Under the Influence

Boating laws and boating DUI laws are generally governed by California’s Harbor and Navigation Code. Under the Harbor and Navigation Code it is illegal to operate a boat or other watercraft with a BAC of 0.08% or higher (same as a motor vehicle). And, similar to motor vehicles, one cannot operate a commercial craft with a BAC of 0.04% or higher. As with a motor vehicle, if you are convicted of a DUI you are subject to similar penalties including jail time, license suspension, DUI school, fines and probation.

Motorcycling Under the Influence

Motorcycling under the influence is handled in a similar manner to driving a motor vehicle under the influence. The same procedures and penalties apply with a motorcycle DUI as with an ordinary DUI.

 

dui boating

The Law- DUI with Injury to Another

Felony DUI

Penalties and Punishment for a DUI with Injury to Another

The Vehicle Code section that governs a DUI with injury to another is section 23153.  23153 is a “wobbler” which means that it can be charged as either a felony dui or a misdemeanor dui.  The decision how to charge the crime will be based on (a) the severity of the injuries to the victim, (b) the other circumstances of your arrest and (c) your criminal history.  So one of the first goals of your attorney is to get the DA to reduce the charge from a felony DUI to a misdemeanor DUI.

Misdemeanor Penalties:  The penalties for a violation of Vehicle Code section 23153 are:

  • Probation:  Three to five years of summary probation
  • Jail:  Five days to one year in county jail
  • Fines:  The base fine is $390 but by the time the court is finished, expect your fines to run in the $2,000 to $5,000 range.
  • Restitution:  You will have to pay the victims for their medical bills, repair bills, etc.  The laws can be harsh in this area.  For example, if the victim has medical insurance and that insurance covers his injuries, you still have to pay the victim–directly–the total amount of his bills.
  • DUI School:  DUI School is based on how many priors you have or how high your BAC was.  (Three to nine months for a first offense and eighteen to thirty months for a multiple offender.)  See DUI school section on penalties for first, second or multiple offense where this issue is addressed.
  • License Suspension:  You are looking at a one to three year driver’s license restriction.

Felony DUI Penalties under Vehicle Code 23153:

  • Prison:  Sixteen months to ten years in prison and an additional one to six year prison sentence, served consecutively.  The additional sentence will be based on how many people were injured and how serious their injuries were.
  • Potential Strike-  There is the possibility that a “strike” can be placed on your record pursuant to California’s Three Strikes Law.\
  • Fines:  Fines will run between $1,015 to $5,000
  • DUI School:  18 to 30 months.
  • Habitual Traffic Offender status for three years.
  • Restitution:  You will have to pay the victims for their damages.  See above.

The Arrest- The Stop

“THE STOP”:

The first phase of a DUI arrest is the DUI stop.  In any DUI stop, the police do not have a right to simply stop anyone’s car to see if they are DUI.  Rather, the cops must be able to demonstrate that they had a reasonable and articulable purpose for stopping your car.  It could be something as trivial as a rolling stop at a stop sign, expired registration tags, or a broken tail light.  As long as there is a law that you are violating, the cops can stop your car.

However, if they did not have a right to stop your car, then everything that they saw or learned after the DUI stop is inadmissable in court.  Put simply, the DUI arrest was invalid. Here are some examples of successful suppression motions we have brought in the past.

  1. Tinted windows:  Client was stopped by the cops for having front-side tinted windows.  But front-side tinted windows are not, in and of themselves, against the law.  If the windows have a minimum light transference of 88%, then the windows are legal.  What the cop should have said, but failed to, was that the windows were tinted too darkly or so dark that he couldn’t see inside the cab of the car.  But because he said that he stopped my client simply because her windows were tinted too darkly, the case was thrown out of court.
  2. Rolling stop at a stop sign:  Client made a complete stop but the cop said she didn’t.  Video in the cops car showed she did!  Case dismissed.
  3. Illegal left hand turn at an intersection:  Vehicle code provides that you have to signal when making a left-hand turn unless there is no traffic in the area.  Cop stopped client for failing to signal at an intersection at 2 am on a weeknight when there was no traffic in the area and the cop was over 1,000 feet behind the client’s car.  Case was dismissed.

The Arrest- The DUI Arrest

DUI ARREST IN CALIFORNIA 

In General:

We divide a DUI arrest in California into two phases.  The first, and most important phase is commonly called “the stop”.  Put simply, did the police officer have a constitutional purpose (i.e. a “reasonable and articulable” purpose) for stopping your car?  If not, then the officer had no right to “detain” you.  And if you can demonstrate that there was no grounds for the stop, then you are well on your way to challenging the entire DUI charge and seeing it thrown out of court.

If you can demonstrate that there is no constitutional basis for the stopping of your car, then you can move to have the entire case thrown out of court by means of a “suppression motion”.

After the stop of your vehicle, the next phase is for the police officer to determine if there is probable cause to arrest you.  This is where field sobriety tests and the roadside blow (called a PAS test) come into play.

The Stop:

The police do not have a right to simply stop anyone’s car to see if they are DUI.  Rather, the cops must be able to demonstrate that they had a reasonable and articulable purpose for stopping your car.  It could be something as trivial as a rolling stop at a stop sign, expired registration tags, or a broken tail light.  As long as there is a law that you are violating, the cops can stop your car.

However, if they did not have a right to stop your car, then everything that they saw or learned after the stop is inadmissable in court.  Here are some examples of successful suppression motions we have brought in the past.

  1. Tinted windows:  Client was stopped by the cops for having front-side tinted windows.  But front-side tinted windows are not, in and of themselves, against the law.  If the windows have a minimum light transference of 88%, then the windows are legal.  What the cop should have said, but failed to, was that the windows were tinted too darkly or so dark that he couldn’t see inside the cab of the car.  But because he said that he stopped my client simply because her windows were tinted too darkly, the case was thrown out of court.
  2. Rolling stop at a stop sign:  Client made a complete stop but the cop said she didn’t.  Video in the cops car showed she did!  Case dismissed.
  3. Illegal left hand turn at an intersection:  Vehicle code provides that you have to signal when making a left-hand turn unless there is no traffic in the area.  Cop stopped client for failing to signal at an intersection at 2 am on a weeknight when there was no traffic in the area and the cop was over 1,000 feet behind the client’s car.  Case was dismissed.

The DUI Arrest:

While you are being “detained” the police officer will first note if there are any “objective signs” of intoxication.  Typical signs include bloodshot watery eyes, slow slurred speech, unsteady gait, odor of alcohol, argumentative attitude, sloppy dress (as if you were inebriated), etc.

At this point, the officer will ask to see your driver’s license and registration. They may also ask you questions such as “Have you been drinking?” You have the right to refuse to answer. If the officer believes that you may be under the influence of alcohol or drugs, the officer will then ask you to step out of the car.

After the stop, the officer will monitor your behavior. Almost always they will indicate in their police report that you had “slurred speech, bloodshot eyes, and the smell of alcohol on your breath”. (This language is so commonplace, that many defense attorneys joke about it as it is almost always placed in the police report almost automatically.) An open container in the vehicle is another indicator.

DUI arrest – The Field Sobriety Tests

After stopping your car, asking questions and watching your behavior, the cop will move on to field sobriety tests (FSTs).  Field Sobriety Tests are voluntary. Typical field sobriety tests (FSTs) include:

  • HGN Test
  • VGN Test
  • Leg lift
  • Walk and Turn
  • Nose touch
  • Rhomberg Balance Test
  • Hand Pat
  • Finger Dexterity
  • Alphabet (verbal)
  • Alphabet (written)
  • Counting backwards

You cannot be punished for refusing a field sobriety test.  You also have a right to refuse the PAS test (roadside breath test). However, chemical tests, which include a more sophisticated breath machine than the one a police officer will have in the squad car, occur later and are not voluntary. If you refuse to take a chemical test, your license will automatically be suspended. You do not have to submit to a field sobriety test if you don’t wish to. If you agree to submit to the test, the officer will evaluate how you performed. In most cases, you are better off refusing to take the field sobriety test as you may fail, even if you are innocent. Field sobriety tests are not, in and of themselves, proof that you were intoxicated. It is generally advised that people refuse to take the field sobriety tests, even if they are innocent, as they may fail and give law enforcement a reason to suspect that you were driving under the influence.

Before the officer can arrest you, he or she must have probable cause. “Probable cause” is a reasonable belief that you were driving while under the influence of alcohol and/or drugs. There is substantial case law on the issue of what constitutes probable cause. For example, simply swerving within your lane, negligently operating your vehicle, or driving slowly has been held not to constitute probable cause for an arrest for DUI.

Once the officer takes you into custody, they must read you your Miranda Rights. These Miranda rights include (1) the right to remain silent, (2) the admonition that anything you say can be held against you in a court of law, (3) the right to consult an attorney, and (4) the right to have an attorney appointed for you if you cannot afford one.

Chemical Test

If you are determined to be driving under the influence you will be arrested and taken to the police station or jail for booking, chemical testing and processing. During booking and processing you will be fingerprinted, photographed and asked for your name and date of birth. Personal property on your person will also be removed, inventoried and stored. At this point, you will be administered a chemical test. The officer will give you the choice of a blood, breath or urine test. Sometimes all three tests are not available, in which case you will be given an option to take whatever tests are available. If you refuse to take the chemical test the DMV will automatically suspend your driver’s license.

If your blood alcohol concentration is found to be 0.08% or higher you will be considered to have been driving under the influence.

At this point, after the booking process and chemical test is complete, you will be required to post bond before you can leave the police station or jail. Your automobile may also be impounded at that time.  dui arrest in California

The Arrest- Field Sobriety Tests

FIELD SOBRIETY TEST PROCEDURES (FSTs)

After stopping your car, asking questions and watching your behavior, the cop will move on to field sobriety tests (FSTs).  Field Sobriety Test procedures are voluntary.  A little research on how these tests are administered will help you to understand what happened.  Typical FSTs include:

  • HGN Test- commonly called a horizontal gaze nystagmus test.  The purpose of the test is to determine if you have nystagmus- a certain jerkiness in your eyes when they track an object.  Of course, there is only one witness to how you do, and that is the cop who administers the test.  So expect that you will have “failed” the test.
  • VGN Test- same as the horizontal test except that the cop moves his finger in a vertical direction instead of horizontally.  Used to test for being under the influence of certain drugs and for extreme intoxication.
  • Leg lift
  • Walk and Turn
  • Nose touch
  • Rhomberg Balance Test
  • Hand Pat
  • Finger Dexterity
  • Alphabet (verbal)
  • Alphabet (written)
  • Counting backwards

You cannot be punished for refusing field sobriety test procedures.  You also have a right to refuse the PAS test (roadside breath test). However, chemical tests, which include a more sophisticated breath machine than the one a police officer will have in the squad car, occur later and are not voluntary. If you refuse to take a chemical test, your license will automatically be suspended. You do not have to submit to a field sobriety test if you don’t wish to. If you agree to submit to the test, the officer will evaluate how you performed. In most cases, you are better off refusing to take the field sobriety test as you may fail, even if you are innocent. FST’s are not, in and of themselves, proof that you were intoxicated. It is generally advised that people refuse to take the field sobriety tests, even if they are innocent, as they may fail and give law enforcement a reason to suspect that you were driving under the influence.

Before the officer can arrest you, he or she must have probable cause. “Probable cause” is a reasonable belief that you were driving while under the influence of alcohol and/or drugs. There is substantial case law on the issue of what constitutes probable cause. For example, simply swerving within your lane, negligently operating your vehicle, or driving slowly has been held not to constitute probable cause for an arrest for DUI.

Once the officer takes you into custody, they must read you your Miranda Rights. These rights include (1) the right to remain silent, (2) the admonition that anything you say can be held against you in a court of law, (3) the right to consult an attorney, and (4) the right to have an attorney appointed for you if you cannot afford one.