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Law and procedure: driving under the influence offenses
By David Marsh

The complexity of the law of driving under the influence (DUI) in California is sometimes daunting. Nonetheless, both bench officers and practitioners in this important area must be conversant with the basic principles of DUI practice and procedure.

The objective of this article and self-study test is to familiarize readers with DUI law. Readers will learn about the elements of DUI offenses; sentences that can be imposed, including installation of ignition interlock devices; the implications on persons' driver's licenses; and possible plea bargains.

Vehicle Code Section 23152(b) makes it unlawful for any person who has a blood-alcohol concentration (BAC) of 0.08 percent or more, by weight, to drive a vehicle. A violation of this section is commonly called "driving while intoxicated" or "drunk driving." But neither term is particularly accurate. A driver may not actually be intoxicated or impaired, but if a blood or breath test evidences a BAC level of .08 percent or higher, that is a violation. This is commonly referred to as the "b" count. (Vehicle Code Section 23152(b).)

Vehicle Code Section 23152(a) is the less common way to commit a DUI. Under this section, it is unlawful for a person to drive a vehicle if under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug. Even if the drugs have been prescribed, a person may not use that as a defense if the driver is under the influence of the drugs. (Vehicle Code Section 23630.)

Typically, an officer observes someone driving erratically or exiting a vehicle with an unsteady gait. Usually, an officer may not arrest a suspect for a misdemeanor unless the crime is committed in the officer's presence. (Penal Code Section 836.1.) Vehicle Code Section 40300.5, however, makes an exception, allowing officers to arrest DUI suspects under certain circumstances, such as above, even when a suspect's driving has not been observed.

Police need not give a Miranda admonition before asking questions about the drinking or driving. Courts have ruled that this early stage is merely a detention, not an arrest, and thus these investigatory questions are allowed. (People v. Carter, 108 CA3d 127 (1980).) If an officer observes objective symptoms of impairment, such as alcohol on the breath, glazed eyes, slurred speech, or other physical impairment, the officer can then ask the suspect to submit to a series of field sobriety tests, consisting of physical and mental exercises.

An officer may also use a recent field testing tool called a preliminary alcohol screening device. This is a portable breathalyzer measuring device that tests alcohol levels. If one scores at or above .08 percent, this is a significant factor in establishing probable cause for an arrest.

When the suspect is transported to a detention facility, he or she will be required to submit to a breath or blood test, or face a "refusal" allegation in court or by the Department of Motor Vehicles (DMV). (Vehicle Code Sections 23612, 13353.) The suspect is then usually held for a sufficient number of hours to return to sobriety, and is typically released on a promise to appear at a future court date.

Although Vehicle Code Section 23538(a)(1) specifically gives a court discretion to sentence a first offender to 48 hours (and up to a maximum of six months) in jail, typically a first DUI offender does not face additional jail time beyond the hours the offender spent at the time of the arrest, unless there are aggravating factors such as an accident, lack of a valid driver's license, high blood-alcohol content, or particularly reckless driving. Probation is also usually imposed, but is "summary" or nonreporting, and can range from a minimum of three years, up to five years. (Vehicle Code Section 23600.)

The minimum "base" fine is $390 to $1,000. Virtually all fines, however, have penalty assessments attached that can increase the fine by four to five times the base amount. A three-month alcohol program is required (Vehicle Code Section 23538), which costs about $500 to $600. If the defendant's blood-alcohol level is .15 up to .19 percent, the defendant can be required to complete a longer program, typically six months, but this is discretionary (Vehicle Code Section 23578). If the defendant's blood-alcohol level is .20 percent or higher, a nine-month alcohol program is required. (Vehicle Code Sections 23538(b)(2), 13352.1(a).)

The court used to share jurisdiction over the driver's license ramifications, but that is now handled almost exclusively by the DMV. A DUI involving bodily injury can be punished as a felony, with up to three years in prison as punishment. (Vehicle Code Sections 23153(b), 23554.)

A second offense within 10 years carries a mandatory minimum of 96 hours in jail, with a maximum incarceration of one year, along with probation up to five years, the $390 base fine, and an 18-month program. (Vehicle Code Sections 23540, 23542.) On a third offense, the minimum jail time increases significantly - from four days to four months, up to a maximum of one year. However, if a prosecutor agrees, a defendant may complete a 30-month alcohol program and have the jail term reduced to 30 days. (Vehicle Code Sections 23546, 23548.)

Although the court is not required to impose another 18-month alcohol program, the DMV requires the completion of this program in order to reinstate the license. (Vehicle Code Section 13352(a)(5).) Again, up to five years of summary probation and a $390 base fine is required. On a fourth offense within 10 years, the prosecution can charge a felony that is punishable by 16 months, two or three years in prison, or the prosecution can file as a misdemeanor with a one-year maximum and a 180-day minimum sentence. (Vehicle Code Section 23550.)

The short answer is yes. Since 1981, when the state Supreme Court decided People v. Watson, 30 C3d 290 (1981), an offender can be charged with second-degree murder under an "implied malice" theory in what is commonly referred to as a "Watson" murder. The implied malice element is met by showing evidence that before the killing, the offender was well aware of the dangers associated with drinking and driving. This is most commonly established by a criminal history of DUIs as well as satisfaction of the requirement that the court inform a defendant in all DUI pleas that if he or she is convicted of a DUI in the future and a fatality results, the defendant can be charged with murder. (Vehicle Code Section 23593.) This is known as a "Watson advisement."

Before the Watson case, the most severe charge that could result for a DUI causing death was vehicular manslaughter. There were two types - vehicular manslaughter while intoxicated (Penal Code Section 191.5(b)), and gross vehicular manslaughter while intoxicated (Penal Code Section 191.5(a)), with maximums of four or 10 years, respectively (Penal Code Section 191.5(c)).

An ignition interlock device is a breathalyzer test that is installed in the vehicle and prevents the engine from running unless the driver blows into the device and no alcohol is measured. These were not required for first offenses until July 2010, when the state Legislature enacted a law requiring select counties, including Los Angeles, to require them for first offenses. (Vehicle Code Section 23700.) The law has been expanded to also require these devices for second, third, and fourth offenses if an offender wants to remove a suspension or revocation in order to get a license restriction that allows at least some limited driving. (Vehicle Code Section 23700(a)(7).) The court does not mandate the device as a condition of probation because the DMV has jurisdiction over this issue. If a defendant is convicted on any lesser charge on a first offense, the device is not required, giving defendants a stronger incentive to fight their DUIs to avoid this requirement.

On a first offense, when an offender is convicted of a DUI, or loses or fails to request a DMV hearing, the driver's license will be suspended for six months by the DMV. (Vehicle Code Section 11352(a)(1).) If there is no criminal case, but the officer confiscated the license, triggering a DMV administrative suspension, that suspension will be for four months. (Vehicle Code Section 13353.3.) However, the offender can get a restricted license for three or five months after serving the first month of the suspension. (Vehicle Code Section 13352.4.) Whereas a "suspension" prohibits any driving, a "restriction" allows the offender to drive to and from work, during work for job-related purposes, and to and from the alcohol program. (Vehicle Code Section 13352.4.) Driving done outside these limits is a separate crime subject to mandatory jail. (Vehicle Code Sections 14601.2, 14601.5.)

Offenders have to qualify for a restriction by showing the DMV that they are enrolled in one of the prescribed alcohol programs, have proof of insurance, and have paid a reissue fee (Vehicle Code Section 13352.4.) The DMV will also require installation of an ignition interlock device for five months. (Vehicle Code Section 23700(a)(7)(A)(i).)

For a second offense, the suspension is two years, with eligibility to get a restriction after one year. (Vehicle Code Section 13352.5.) However, with the advent of the new ignition interlock device laws, an offender may shorten the suspension to 90 days if a device is installed for one year. (Vehicle Code Sections 13352(a)(3), 23700(a)(7)(A)(ii).)

On a third offense, the DMV is required to revoke the license for three years. However, the DMV will allow the offender to get a restricted license after six months of the revocation if the offender installs an ignition interlock device. (Vehicle Code Section 11352(a)(5).) The device must be in place for two years. (Vehicle Code Section 23700(a)(7)(A)(iii).)

Typically, when blood-alcohol level readings of the defendant are close to the .08 percent level, or some other evidentiary problem exists, a prosecutor may reduce the charge. There is a hierarchy of reduced charges. The next less serious charge below a DUI is called a "wet reckless" or alcohol-related reckless driving. (Vehicle Code Section 23103.5.) This is a statutory penalty created for plea bargaining only. The benefits of this charge include giving less than the three years mandatory probation for a DUI, allowing fines less than the $390 base fine, relieving a defendant of an ignition interlock device requirement on a first offense, and avoiding the license suspension if the driver's license has not been suspended administratively by the DMV. (Vehicle Code Section 23700.)

A wet reckless, however, is a misdemeanor, carries two points on the DMV just like a DUI, requires an alcohol program, and is a priorable conviction as a DUI. If a defendant is convicted of a wet reckless with a prior DUI or wet reckless conviction, jail may again be avoided, but a minimum nine-month alcohol program is required. (Vehicle Code Section 23103.5(f)(1).)

The next lower charge offered may be a "dry reckless" (Vehicle Code Section 23103) or a "speed exhibition." (Vehicle Code Section 23109(c).) A dry reckless is the equivalent of a person driving recklessly, but not intoxicated. Both offenses are likewise misdemeanors, carry two DMV points, but do not require an alcohol program. (Vehicle Code Section 13352.) Probation can be one or two years instead of the minimum three years required on a DUI.

Finally, if a defendant has a strong defense, a prosecutor may offer an infraction - a simple one-DMV-point moving violation. It is important to note that even if a defendant is given any of these lesser charges, if the driver's license was confiscated by the police because of an .08 percent or higher reading, the offender still has to do a full three-month alcohol program unless the offender also won the DMV hearing. (Vehicle Code Sections 13353.3(b)(1), 13352.4(a).)

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