DUI OVERVIEW

INVESTIGATIVE STAGE
Most DUI investigations begin when a police officer observes an individual driving erratically, or observes signs of intoxication after stopping an individual for another Vehicle Code violation. Occasionally an informant will give police information that begins the investigation. This issue should not be overlooked because an informant may be a material witness who could give evidence that might exonerate the individual.

Typically, the officer begins by asking investigative questions such as “Where have you been?” “What have you been drinking?” “How many drinks did you have?” and “When did you drink?” If the questions are merely investigative and not part of a “custodial interrogation,” then the officer does not need to give Miranda warnings, and answers to the questions are admissible in court. However if the questions are part of a “custodial interrogation,” the Miranda warnings must be given.

The officer may then administer several Field Sobriety Tests (FSTs) to determine if there is probable cause to arrest the individual for drunk driving.

There are three “standardized” FSTs recommended by the National Highway Traffic Safety Administration: walk and turn, one leg stand, and horizontal gaze nystagmus. However, these tests are often unreliable for several reasons:

• Failure of police officers to administer FSTs correctly.
• Individual differences in mental and physical abilities.
• Poor test conditions such as noise, poor lighting, uneven surfaces, and traffic wind.
• Failure of police officers to accurately record the individual’s performance.

In addition to the three “standardized” FSTs, there are several “non-standardized” FSTs that are even less reliable. They include the Romberg balance, finger to nose, hand pat, finger count, and alphabet tests.

Finally, the officer may use a preliminary alcohol screening (PAS) device to determine if there is probable cause to arrest the individual for drunk driving. The PAS is a portable, hand-held breath testing machine, and the PAS test is another form of FST. So the officer must advise the individual that he may refuse to take the PAS test.

ARREST & RELEASE
If the officer determines after investigation that there is probable cause to arrest the individual for drunk driving, he may arrest the individual without a warrant. Under Vehicle Code Section 23612, the “implied consent” law, the officer must inform the individual upon arrest that he will be given a chemical test, and that he has a choice between a blood test or breath test.

Generally the individual is held until he has sobered up, typically 4 to 12 hours. The individual is then given a citation that informs him of the date, time, and place to appear in court, and released on his own recognizance (“O.R.” release).

POTENTIAL DUI CHARGES & ENHANCEMENTS
Here is a selection of potential DUI charges and sentence enhancements.

• The “DUI” Count (VC §23152(a)): A person arrested for driving under the influence of alcohol or drugs is typically charged with a misdemeanor violation of Vehicle Code Section 23152(a). This is commonly called the “DUI” or “A” count, and it prohibits driving a vehicle while under the influence of alcohol or drugs. Impairment must be proven, but evidence of blood-alcohol concentration (BAC) can be offered as evidence of impairment.
• The “Per Se” Count (VC §23152(b)): If a person submitted to a blood-alcohol test and the results were 0.08 percent or higher, he may also be charged with a misdemeanor violation of Vehicle Code Section 23152(b). This is commonly called the “Per Se” or “B” count, and it prohibits driving a vehicle with 0.08 percent or more alcohol in the blood.
• “Prior” Convictions (VC §§23540 and 23546): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and has one or two prior DUI-related convictions within ten years, the criminal sentence may be enhanced.
• “Four Strikes” (VC §23550): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and has three prior DUI-related convictions within ten years, he may be charged with a felony.
• “Felony Drunk Driving” (VC §§23153(a) and 23153(a)): If a person is arrested for driving under the influence or driving with 0.08 percent or more BAC and caused injury to another, he may be charged with a felony.
• “Refusal” (VC §23577): If a person refuses to submit to or complete a chemical test, the criminal sentence may be enhanced.
• “Excessive” BAC (VC §23578): If a person submitted to a blood-alcohol test and the results were 0.15 percent or higher, the criminal sentence may be enhanced.
• “Excessive” Speed (VC §23582): If, while violating VC §23152(a) or VC §23152(b), a person drives recklessly and more than 30 miles per hour over the maximum speed limit on a freeway or more than 20 miles per hour over the maximum speed limit on a street or highway, the criminal sentence may be enhanced.

ARRAIGNMENT
The first court appearance is called the arraignment. Unless a felony is charged or the court ordered the defendant to appear, the defendant need not appear, and his attorney can appear for him.

At the arraignment, the court provides a copy of the complaint. The complaint lists the charges and any enhancements such as prior convictions. Then the defendant enters a plea to the charges, typically “not guilty,” and a date and time is scheduled for a pretrial conference.

Sometimes, rather than entering a plea to the charges, it may be necessary to challenge or “demur” to the complaint because it is defective in some way. For example, the court may lack jurisdiction; the complaint may be ambiguous; the complaint may improperly join codefendants or several offenses; or the prosecution may be barred by the statute of limitations.

PRETRIAL CONFERENCES
A pretrial conference is an opportunity to argue motions and plea bargain. A case may have several pretrial conferences depending on the motions filed and complexity of the case.

DISCOVERY
“Discovery” is information that may be used as evidence, either for the prosecution or defense. Discovery may include, for example, the police officer’s arrest report and “field notes,” reports written by the arresting officer in other DUI cases, prior altercations between the arresting officer and other arrestees, the DMV officer’s affidavit, police manuals, booking slips, “mug shots,” audio and video tapes, radio dispatch tapes, oral and written statements of the defendant, the identity of witnesses, records of felony convictions of the defendant and witnesses, defendant’s driving record, and the results of chemical tests.

Sometimes the prosecution does not provide the defense with discovery that may help the defense. So, defense counsel must draft, file, and argue a motion for the court to order the prosecution to provide the discovery. Discovery motions are often critically important to the outcome of a case.

MOTIONS
A motion is an application for a court order. The court rules on a motion at a hearing. Here are some selected motions:

• Change venue
• Demurrer
• Severance or joinder
• Bail or O.R. release
• Recuse prosecutor
• Challenge judge
• Grant immunity
• Reduce felony to misdemeanor
• Strike a prior conviction
• Continuance
• Suppress evidence because of illegal search and seizure (P.C. §1538.5 motion)
• Suppress testimony based on evidence lost or destroyed by the prosecution (Trombetta/Youngblood motion)
• Suppress PAS test results based on lack of foundation or violation of Due Process
• Disclose a police officer’s past misconduct (Pitchess motion)
• Disclose an informant’s identity
• Disclose evidence of discriminatory prosecution (Murgia motion)
• Dismiss case because of discriminatory enforcement, retaliatory prosecution, denial of speedy trial, or failure to prevent deportation of a material witness
• Dismiss case because of denial of speedy trial
• Appointment of an expert
• Discovery
• Compel production of fingerprints, blood, breath, urine, or voice
• Preserve police tape

TRIAL
If a case does not settle, it goes to trial. DUI trials are complex because of the variety and complexity of evidence involved. Scientific experts testify about chemical testing equipment, alcohol absorption and elimination rates, and the physical and mental effects of alcohol. Arresting officers testify about the defendant’s driving, performance on FSTs, appearance, and behavior. Lay witnesses may also testify about the defendant’s driving, appearance, and behavior.

A conviction requires that all 12 jurors agree the defendant is guilty. An acquittal requires that all 12 jurors agree the defendant is not guilty. A mistrial occurs when the jury is deadlocked and the judge determines there is no reasonable probability that the jury can reach a unanimous verdict. If such a mistrial occurs, the case may be tried again.

SENTENCING OPTIONS
DUI sentencing is very complex. In a misdemeanor conviction, the sentence may include jail time or probation and a number of other terms, for example

• Fine
• Restitution
• Community Service
• CalTrans roadside trash collection
• Alcoholics Anonymous attendance, or completion of an alcoholic rehabilitation program
• Residential alcohol treatment
• Drinking/Driving education programs (“DUI school”)
• Driver License restriction
• Ignition Interlock Devices (IID)
• Work furlough
• Electronic home detention (“house arrest”)
• Vehicle Impound/Forfeiture

CRIMINAL PENALTIES

First offense

• Jail: 48 hours to 6 months with probation; 96 hours to 6 months without probation
• Fines: $390 to $1,000
• License: 6-month suspension
• Driving Programs: 3 or 6 months

Second offense within 10 years

• Jail: 96 hours to 1 year with probation; 90 days to 1 year without probation
• Fines: $390 to $1,000
• License: 2-year suspension
• Driving Programs: 18 or 30 months
• Ignition Interlock Device: mandatory for restricted license

Third offense within 10 years

• Jail: 120 days to 1 year with or without probation
• Fines: $390 to $1,000
• License: 3-year revocation
• Driving Programs: 18 or 30 months
• Ignition Interlock Device: mandatory for restricted license

Fourth offense within 10 years

• Jail: 180 days to 1 year for a misdemeanor with or without probation; 16 months, or 2 years, or 3 years for a felony without probation
• Fines: $390 to $1,000
• License: 4-year revocation
• Driving Programs: 18 or 30 months
• Ignition Interlock Device: mandatory for restricted license