1st Offense DUI

In the state of California, a person who has been arrested for DUI for the first time faces two different government agencies:

• The local court

• The Department of Motor Vehicles (DMV)

Again, the offender is charged for two separate crimes:

• Violation of Section 23152(a) of the state’s Vehicle Code, which makes it illegal for any person to operate a vehicle while under the influence of alcohol or drugs

• Violation of Section 23152(b) of the state’s Vehicle Code, which makes it illegal for any driver to operate a vehicle with a blood alcohol concentration (BAC) level of .08% or higher.

The offender can be found guilty of either of the two offenses or both, depending on the circumstances surrounding their case.

A first-offense DUI in the state of California comes with many consequences, which could range from misdemeanor/informal probation to serving some time behind bars. Defendants may not be allowed to drive again until after some time, but there is always a chance to avoid your driving license suspension if you agree to install an IID system in your car for at least four months. Without that, an offender loses their driving privileges for at least six months.

You may not lose your driving privileges if you request a DUI DMV inquiry and win it. This is the hearing that will determine the fate of your driving privileges. Depending on the nature of your DUI offense, you may lose your driving license to suspension for six months or have your license revoked if you do not win in the hearing.

Lastly, a driver who has not been convicted of drunk driving in court will not lose their driving privilege, even after losing in the DUI DMV hearing.

Even with the possibility of not losing one's driving license, the penalties of the first DUI offense are severe and could include the following:

• Between 3 and five years of misdemeanor probation- this is an alternative to serving in jail and is only issued to low-risk offenders, to allow them to serve all or part of their sentence under the supervision of the court. The offender will receive a set of conditions that they should comply with while under probation, failure to which the judge can revoke the probation and send them to jail.

• Mandatory registration in a DUI school for a period of between three and nine months

• Payment of fines and penalty assessment fees that could total to between $1500 to $2000

• A requirement to have an IID system installed in your car for at least six months

• A maximum of six months behind bars

• Work release

There are indirect consequences too, such as the possibility of facing increased insurance premiums or facing more severe penalties if you are ever arrested and convicted of the same offense within ten years.

As mentioned above, a first-offense DUI offender will face a bench trial or a jury hearing in a state’s criminal court, and DMV officials in a DMV office for the DUI DMV hearing. The DUI DMV hearing cannot impose any punishments on the defendant but can suspend their driving license. Driving license suspension happens automatically and takes effect one month after a person has been arrested and charged with DUI. However, if they request a DMV hearing within ten days of arrest, the license suspension could be postponed until the end of the hearing.

Note that getting a DMV hearing does not happen automatically; the defendant has to put in a request for it, and it has to be done within ten days of their arrest.

If you win in the DUI DMV hearing, DMV will not suspend your license. However, the court can suspend your license even after the win. The court will also sentence you to the severe punishments mentioned above. This means that there is always a possibility of losing your driving privileges even if you put in a good fight in the DUI DMV hearing.

There is good news though; first-offense DUI offenders can fight their charges and have then reduced or suspended altogether. This can be done through the help of a competent DUI attorney. An experienced attorney knows very well how the police and the DMV put their cases together and so, will know what strategies to use to fight back.

An excellent legal representation may get your charged reduced to, maybe, reckless driving or any other lesser offense. When this happens, you will not have to worry about the court-ordered driving license suspension. The DMV may, however, still suspend your driving license, especially if you have accumulated more points on your DMV record.

After their arrest, a first-offense DUI offender will be required to appear before the criminal court for their trial, to determine whether or not they committed the offense for which they have been arrested. Appearance in the criminal court is mandatory, unlike in the DUI DMV hearing where a request has to be made if the driver wants to defend their driving license. In the court, the prosecutor will be in control and will be the one to decide how to try the accused and on what grounds. 

Once the offender has faced his/her charges, they or their attorney must appear in all the court proceedings, starting with the arraignment, where they enter guilty or not-guilty pleas.

There is a vast difference between what happened in a criminal court and a DMV hearing. In a criminal court, for instance, appearance is usually mandatory, unlike in a DMV inquiry. The DUI DMV hearing will only discuss whether or not you get to keep your driving license, but a criminal court will announce all other penalties that you get for driving under the influence.

The result of the DUI DMV hearing does not influence the decision of the court. This means that the court may still find you guilty of drunk driving even after you win in the DUI DMV hearing. The result of a court hearing will, however, influence the decision of the DMV. If the offender is not found guilty of driving under the influence in a court hearing, DMV will have no other option but to reverse their driving license suspension.

One of the penalties a first-offense DUI offender might get in California is a misdemeanor or informal probation. This is given in place of time behind bars. When you get probation, you can spend little to no time in jail. However, probation comes with mandatory conditions that the offender must adhere to if they do not want to lose their probation and be sent to jail. Some of these conditions are:

• That the accused must not operate a vehicle with any level of liquor in their blood

• That the accused must not decline to yield to a DUI blood or breath test if they are arrested again for DUI

• That the accused must install an IID system in their cars for at least six months

• That the accused must not commit any other crimes while on probation

Those are the mandatory probation conditions, on top of which the offender might get a few optional conditions such as:

• The requirement to attend NA or AA meetings

• The obligation to participate in a Victim Impact program such as Mothers Against Drunk Driving

• Payment of restitution to victims if the offender caused a crash and injured a person or caused property damage while driving in a drunken or drugged state.

Violation of any of those conditions is another serious offense that will come with more penalties for the offender. Depending on the condition that the defendant has violated, the judge may decide to overlook the violation or to modify the probation. However, your probation could be revoked, and the judge will have no option but to reinstate your sentence as provided by the law. This means that you get to spend time behind bars.

When a driver is arrested for DUI, the arresting officer confiscates their driving license. The arresting officer will, after that, give the driver a pink provisional license, which will only be valid for thirty days after the date of arrest. The original driving license is given back to the state's Department of Motor Vehicles. Since DUI is a violation of the conditions of having a driver's license, DMV will suspend the driver’s license, on the grounds of a governmental per se violation.

If you are not ready to lose your license for six months or more, depending on the extent of the violation, you should apply for a hearing within ten days of the suspension. When this is done, the DMV will put your license on a short-term hold, awaiting the outcome of the hearing. Note that you can apply for license restriction in place of suspension to be able to drive themselves to and from work/school.

Before that, the state of your driving license will be dependent on the outcome of the DUI DMV hearing. Chances of winning in the hearing are usually slim, but that does not mean that a win is generally impossible. A smart attorney can navigate through all possible avenues to argue your case for success.

In determining whether or not you should be allowed to keep your license, the DMV officer presiding over the hearing will consider the following issues:

• If the offender took the DUI chemical test

• If the arresting officer had a good reason to believe that the offender was operating the car while under the influence

• If the offender’s BAC level was above the allowed limit when they were driving

• Whether or not the driver declined to submit to the DUI tests

• Whether the arrest made was done legally

• Did the arresting officer advice the driver against refusing to yield to the DUI tests? Did he/she tell the driver how their refusal could affect their driving privileges?

• Did the accused refuse to yield to the DUI tests, or they did not complete the tests?

If by any chance, you lose your driving privileges, you should be able to restore them after the six months is over. What the driver is supposed to do is to file a form SR22 with the department of motor vehicles, and make a payment of $125 as the restoration fee. The applicant will be expected to uphold the SR22 form for at least three years after the reinstatement of their license.

License suspension can significantly affect the life of an offender and their family, especially if he/she is the one taking care of the family. There are errands to run, appointments to attend and going to work or school. That is why the state of California is a little sympathetic to first DUI offenders and can allow them to change their license suspension into a restriction. A restricted driving license enables the offender to drive themselves to work, appointments, and take care of the essential things in their families.

A first-offense DUI offender can, therefore, apply for a limited non-commercial driving license if they do not want to lose their driving privileges for six months. This may not work for certain offenders, for instance:

• Those who have been disallowed to apply for license restriction by the court, which is a very rare thing

• Those drivers who received a license suspension for failing to submit or not completing a DUI chemical test

If you do not fall under the above two categories, you can proceed to place your application for license restriction. There are mainly two kinds of limited licenses:

• A restricted license

• An IID limited license

A generally restricted license is what the driver gets if their request to have their regular license, which is under suspension for 30 days, is granted. Anyone facing a suspension of their driving privileges can apply for license restriction, but there is always no guarantee that the request will be given. With a restricted license, the driver will only be able to go to and from specific areas such as work, the DUI School, or in case of a severe medical problem within the family. A driver with minor children may also be allowed to drive them to school and back home.

A driver whose DUI case is still pending and do not want to have an IID installed in their car can apply for license restriction.

An IID restricted driving license gives the driver their full driving rights back, unlike a restricted license, which only allows you to go to and from specific places. This restriction is provided once the driver agrees to install an IID system in their car. The device works just like a breathalyzer and will prevent the car from starting if the breathalyzer detects alcohol.

Note that you can request to have an IID restricted driving license immediately you get a suspension on your driving license.

To grant you any of the above-restricted licenses, DMV has specific requirements that a driver must fulfill:

• You will be required to file the SR22 form, a financial responsibility document

• You must show proof that you have enrolled yourself in a DUI school

• You will be required to pay the license reissue fee, of $125. An underage driver below age 21 would be required to pay $100 if their license was suspended under the state's zero-tolerance law for minor drivers.

Your DUI charges could increase as well as the penalties if there are aggravating factors around your case. Some of these elements include:

• A driver who was operating a vehicle with a BAC of .15% and higher

• A driver who refuses to submit to the DUI chemical tests

• A driver who causes an accident in their drunken state

• A driver who was going at high speed while driving under the influence. A speed of more than 30kph on a freeway and over 20kph on the street will be considered over-speeding.

• Driving under the influence with a minor of age 14 and below in the vehicle. This could even attract additional charges of child endangerment, which is more severe than the underlying child.

• A DUI driver below the legal driving age of 21

An enhanced penalty will apply based on the presence of one or more of these issues and also the offender’s criminal record.

If a driver operating a car under the influence of drugs or alcohol causes an accident that results in physical injuries on a third party, they will be charged in accordance with Section 23153 of the state's Vehicle Code. The third party, in this case, can be another driver, a passenger in their vehicle, a pedestrian, or even a cyclist.

This offense is a wobbler in California and so, can be convicted as either a felony or misdemeanor subject to the severity of the damages sustained, the offender’s criminal record and the circumstances surrounding that accident.

If the injured third party died as a result of the injuries they sustained, the defendant will be convicted with felony DUI with injury and could serve a maximum of 10 years in state jail.

As you can see, there is a lot that is involved in a first-offense DUI that is unknown to many people until they are already facing the charges. Again, a first offender is usually confused and may not know where to begin, what to do, and what not to do to help or not compromise their case. This is where the help and support an experienced DUI attorney comes in. There is a lot that your attorney can do for you:

• Your attorney will advise you on what to say, what to do, and help you file the necessary documents on time. The process will be smoother with a competent attorney working by your side.

• Your attorney will also legally represent you in the criminal court and DMV hearing to ensure that the outcome of the two hearings is in your favor.

• An experienced attorney is already familiar with the court processes, and so, will quickly do what is required to settle your case without further delays.

• He/she will gather evidence on your behalf, interview witnesses, and present the evidence before the court in the best manner possible, to help your case.

With proper defense, your charges could be reduced or dropped, depending on the amount of evidence there is in your favor and the factors surrounding your case.

A first DUI arrest happens when you least expect it, and before you know it, your life is changing right in front of your eyes. The court processes can be a little intimidating for a person who has never been arrested before. However, the help of an experienced DUI attorney will make the process more straightforward and bearable. San Jose DUI Attorney Law Firm comprises of experienced DUI attorneys who are ready to take your case and help you through the many processes until you gain your freedom back. Call us at 408-777-6630 and let us take the burden off your hands.