The charges you face for a DUI are typically two different statues: California Vehicle Code Section 23152 (a) & California Vehicle Code Section 23152 (b).
California Vehicle Code Section 23152 (a)
This code section relates to driving while a person's physical or mental faculties are impaired by alcohol (or drugs) to the extent that they are unable to drive a vehicle with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances.
California Vehicle Code Section 23152 (b)
This code section relates to charges brought against those arrested for DUI who provide a breath or blood alcohol sample of .08% or higher.
Drunk driving that causes the death of a passenger, another driver, or anyone else will nearly always be charged as a felony.
Vehicular homicide is charged when the death resulted from ordinary negligence.
Manslaughter with gross negligence is a felony that is charged when death was the result of criminal negligence.
Criminal negligence in the context of drunk driving is generally defined as the knowledge that an individual's actions were likely to result in death.
Second- degree murder:
Second-degree murder is charged when the death occurs and the person who was drinking and driving acted with implied malice, or a conscious disregard for life. Second-degree murder is an unusual charge in a DUI case, because it is difficult to establish implied malice.
The rate at which consumed alcohol finds its way into the blood stream. While alcohol sits in the stomach, its absorption is delayed. Absorption rate will be affected by how much was eaten, individual biologic differences, and what type of beverage was consumed. When drinking continues over a course of hours, both absorption and "burnoff" (metabolizing of alcohol) will be happening simultaneously.
Administrative License Suspension
A law that allows the prompt suspension of the license of drivers charged with Driving While Intoxicated (DWI) when a driver has a BAC above the set limit, or sometimes if a driver refused to take a roadside blood or breath test. Therefore the license may be suspended before adjudication of the DUI charge.
Admin per se
"Admin per se" refers to a relatively new procedure, administrative license suspension, in which a driver's license may be taken before conviction when a driver fails or refuses to take a chemical test for alcohol. As of 2004, 45 states including Washington, D.C. had administrative license suspension laws. In California a driver's license is suspended for four months on a first offense, and one year for a second offense.
Blood Alcohol Concentration is a measure of the amount of alcohol in the blood stream expressed as a percentage. The illegal BAC level in California is set at .08 percent. A person weighing 150 pounds, drinking at the rate of 1.5 ounces of alcohol (the approximate amount found in one 12-ounce can of beer or one glass of wine) per half hour would need:
- Two drinks-to reach a BAC of 0.05%
- Three drinks-to reach a BAC of nearly 0.08%
- Four drinks-to reach a BAC of 0.10%
- Six drinks-to reach a BAC of 0.15%
A laboratory test that directly measures the percentage of alcohol content of the blood drawn from a DWI suspect.
Breath Test: A test of blood alcohol level that is derived from measuring the alcohol level of the suspect's breath. It depends for its accuracy on the machine's receiving air from deep in the lungs, and a mathematical formula is used to extrapolate the blood alcohol level from the lung-air alcohol level.
A portable machine used by law enforcement to measure the BAC of suspected drunk drivers.
The rate at which alcohol in the body is metabolized. During burnoff, the blood alcohol level drops, giving rise to the "falling curve" term to describe the graph of the decrease in BA.
As it relates to DUI, a test of the alcohol or drug concentration in a person's blood. A Breathalyzer, blood analysis, or urinalysis can be used as chemical tests for alcohol. If other drugs are suspected, a blood test or urine test is used.
Depending on the offense, your state may offer community service as a way to work off fines or jail time, which means you are living at home and reporting during the day to pick up trash, sweep public buildings, assist community charitable or public oriented organizations, or perform other services to the community. Community service may also be a mandatory part of your sentencing.
A conditional license is a license granted "on condition" of something, such as completing a DUI course or alcohol treatment program. Once that "condition" has been met, a standard license is generally issued or reinstated.
A court program that can suspend the prosecution of a criminal DWI charge in exchange for performing certain tasks, such as attending a drinking driver program. At the end of the period of successful diversion the charges are dismissed. This is less frequently used in DWI cases these days, but still exists in some states.
Driver Responsibility Tax
Some states charge those convicted of a DUI with an extra tax on top of fines and court costs. This usually consists of a tax that is payable to the state for three years after the incident occurred (e.g.: $250 per year for three years). In most cases, failure to pay the yearly assessment on time results in license suspension.
DUI schools are typically drug and alcohol education programs designed to help you realize how dangerous drinking and driving is and to hopefully ensure you are not a repeat offender.
Driving While Under the influence. Just a different way of stating DWI.
Driving While Intoxicated. Just a different way of stating DUI.
A serious crime, such as murder, rape or burglary, for which there is a stricter sentence given that for a misdemeanor. Felonies are usually categorized by degrees. 1st degree felonies are the most serious class (with the highest fines and penalties), 2nd degree felonies are less serious, and so on. Many states treat DUIs that cause serious bodily injury as a 3rd degree felony. If there has been a death as a result of the DUI, it might be classified as a 1st or 2nd degree felony, depending upon the prosecutor and the situation. Some states elevate DWI to a felony status even without an injury or death, if the suspect has a given number of prior DWI convictions. A felony can result in a sentence to state prison or county jail.
Field Sobriety Test. A series of physical and mental coordination tests designed to help an officer decide if a driver is DWI. These may include walking the straight line, reciting the alphabet, standing still with feet together and arms extended, standing on one foot, etc. These are highly subjective, but if the officer concludes the driver was DWI, he will require a BA test. States seldom have statutes that penalize refusing to perform FST's, but most will penalize refusal to take a Blood Alcohol Test with license suspension or other penalties.
Threshold blood alcohol content for which maximum penalties and fines may apply, even on a first offense.
Ignition Interlock Device: An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of 0.02 (20mg of alcohol per 100ml of blood). The device is located inside the vehicle, near the driver's seat, and is connected to the engine's ignition system. Many states require that the device be used by those convicted of DUI.
Implied Consent Laws
Some states have implied consent laws. If you have a driver's license in one of these states, you have, by implication, consented to have your blood alcohol concentration measured. In many states, you may refuse to take the test, but fines and license suspensions may be the result. In some states, an officer may not pull over drivers randomly to test them, but must have "probable cause" to believe the driver is DWI before pulling them over (such as observing "weaving").
A brand name for a blood alcohol breath testing machine.
A license suspension means you may not drive for the period of your suspension. Driving privileges are typically administered by a state agency other than the court system. It could be the Secretary of State, the Department of Motor Vehicles or another agency. If your license is suspended, the suspension will likely take effect immediately upon arrest, and not upon conviction. You, or your lawyer on your behalf, may be able to negotiate a limited suspension, meaning you may drive to and from work, but nowhere else.
The format advisement that you have the right to remain silent and to have a lawyer present before answering questions, which police must recite prior to questioning someone who is in custody. Seldom relevant to DWI cases, because the police never arrest anyone until after questioning (Have you been drinking?), after the FST's, and maybe even after the Blood Alcohol Testing. Of course, one does have the right not to answer questions like that one, or "How much have you had to drink? When?", but no officer will advise you of that.
A crime less serious than a felony. Misdemeanors are sometimes categorized by degrees. 1st degree misdemeanors are the most serious class (with the highest fines and penalties), 2nd degree misdemeanors are less serious and so on. Many states treat a first DUI conviction as a misdemeanor. Open Container Laws: In California it is illegal to have an open container of alcohol in your vehicle. It is also illegal for drivers and passengers to have open containers in the vehicle.
Open Container Laws
In California it is illegal to have an open container of alcohol in your vehicle. It is also illegal for drivers and passengers to have open containers in the vehicle.
When all or part of the required jail time is suspended in exchange for good behavior, as determined by checking in with a probation officer. Jail time may be reinstated if it is found the terms of probation are being violated. Some grants of probation are unsupervised, but a violation may be found after a new arrest.
Provisional (or restricted) License
A provisional license typically withholds certain license privileges. In a DUI context, a provisional license might be granted to someone to drive to and from work only, or to and from the court ordered drinking driver program.
Ejecting some stomach contents up into the throat and mouth. With alcohol in the stomach, this can fool a Breathalyzer into thinking that the blood alcohol level is much higher than it is. Officers administering a breath test are supposed to watch the suspect to see he does not burp or regurgitate prior to the test. A cloud of alcohol burped up into the mouth will invalidate the breath test results.
Rising Curve Defense
A defense to DWI based upon the claim that the driver was not under the influence and did not have .08% blood alcohol when he or she was driving, but that it rose to that level after arrest due to the fact that alcohol was still being absorbed. Consequently, a long delay between being pulled over and having a BA test helps the suspect in many cases.
A system where law enforcement agencies select a particular location for a particular time period and systematically stop vehicles (for example, every third car) to investigate drivers for possible DWI. If any evidence of intoxication is noted, a detailed investigation ensues.
A laboratory chemical test of the suspect's urine to determine the suspect's blood alcohol level. Can be inaccurate because of the mixing of higher alcohol level urine from earlier with lower level urine closer to the driver's being pulled over. Can give an artificially high reading for that reason.
Vehicle impound is an option used by some states when there has been more than one DUI conviction. The vehicle may be seized, or an ignition interlock device may be installed on the steering wheel of the car, requiring the driver to pass a breath test using the device before he or she can start the vehicle and drive away.
Plea to a charge of reckless driving which was "alcohol related." A wet reckless results from a plea bargain to reduce a charge of drunk driving. There are several reasons for such a reduction, including a borderline blood alcohol level, where there was no accident and no prior record. The result is a lower fine, no jail time and no record of a drunk driving conviction, but if there is a subsequent drunk driving conviction the "wet reckless" will be considered a "prior" drunk driving conviction and result in a heavier sentence required for a second conviction. The chief benefits of a wet reckless are realized on a second-offense (or greater) DUI conviction; there are only marginal benefits when charged with a first-offense. A wet-reckless can be especially important to anyone who holds a professional license, since it is only reported on a criminal record as a reckless driving. It is vital that you consult with a criminal defense DUI lawyer before accepting any such plea.
Zero Tolerance BAC
Allowable blood alcohol content for minors (as defined by the state). In California, this law states that it is against the law to drive with a blood alcohol concentration (BAC) of .01% or higher if you are under 21 years of age. Your BAC is measured by a test given to you by a police officer. Under this law, on your first offense, your driving privilege will be suspended for one year if:
- Your BAC is .01% or higher, or
- You refuse to take the preliminary alcohol screening (PAS) test, or
- You fail to complete the PAS test