DUI: Frequently Asked Questions

• What is a DUI?
  
  

• If I am convicted of a DUI what will my sentence be?
  
  

• What are some of the common reductions in DUI cases?
  
  

• How can an experienced attorney defend my DUI case?
  
  

• I refused to take a blood-alcohol test, how will this affect my case?
  
  

• Will I have to personally appear in court?
  
  

• This is my second, third or fourth DUI, how will this affect my sentence?

What is a DUI?

DUI stands for Driving Under the Influence. The primary DUI laws in California appear under California Vehicle Code Sections 23152(a) and 23152(b). Vehicle Code section 23152(a) prohibits driving under the influence of alcohol and/or drugs. Vehicle Code section 23152(b) prohibits driving with a blood-alcohol concentration of 0.08% or greater. In the vast majority of cases, people arrested of a DUI are charged with violating both section 23152(a) and section 23152(b).

If I am convicted of a DUI what will my sentence be?

If convicted of a DUI offense, your likely sentence will depend on a number of factors, which can include your blood alcohol level at the time of your arrest, your prior criminal history, and the circumstances surrounding your arrest.

However, in most cases and most courts, the following minimum penalties for a DUI conviction (under Vehicle Code Sections 23152(a) and 23152(b)) apply in a first offense situation:

• three years of summary (informal) probation
• a fine of approximately $1,600 (this figure includes court fees and mandatory penalty assessments)
• required attendance at a first offense (AB-541) 36-hour alcohol education program
• 90-day license restriction allowing driving to and from work, in the course of employment, and to and from any alcohol education program
• a MADD program or a supplemental Victims Impact Panel (in some courts)

Remember, the terms of this mandatory minimum sentence only apply if you are actually convicted of a DUI. The attorneys of McGregor & Ernenwein will fight to have your charges reduced or the case dismissed. In attempting to achieve the most favorable outcome in your case, our attorneys evaluate all the evidence by carefully examining the following factors:

• level of impairment of driving, as observed by the arresting officer
• the reason for the stop (did the officer have probable cause to stop your car?)
• objective symptoms of alcohol intoxication (slurred speech, lack of balance or coordination, bloodshot and watery eyes, odor of alcohol, etc.)
• performance on field sobriety tests
• preliminary alcohol screening (PAS) test results, if applicable
• chemical test results (breath, blood, or urine)
• any pre-existing medical or physical conditions that could have an impact on the results of the chemical test, PAS test, or field sobriety test

In many cases, McGregor & Ernenwein will be able to reduce your charge from a DUI to a lesser offense.

What are some of the common reductions in California DUI cases?

Often, the attorneys at McGregor & Ernenwein will be able to reduce your charge from a DUI to a lesser offense.

Alcohol-related reckless driving ("wet reckless")

The most common reduction from a first-offense DUI case is a reduction to a violation of Vehicle Code section 23103.5, commonly known as alcohol-related reckless driving. Alcohol- related reckless driving, or what is often referred to as a "wet reckless," generally involves a significantly reduced fine and a reduced alcohol program. Instead of requiring the lengthy 36-hour AB-541 first offender alcohol education program, conviction under an alcohol-related reckless driving charge requires only a 12-hour alcohol education program. In addition, there is usually no license restriction required by the court.

An alcohol-related reckless driving conviction does, however, carry "priorability". This means that if a defendant is convicted of another DUI charge within ten years of the alcohol-related reckless driving conviction, then the alcohol-related reckless driving would count as a "prior conviction" as respects the new case.

Non-alcohol-related reckless driving ("dry reckless")

A second (or "level two") reduction of a DUI charge is known as non-alcohol related reckless driving, pursuant to Vehicle Code section 23103. In this circumstance, a defendant generally receives a significantly reduced fine and no alcohol education program. In addition, no license restriction is imposed. More importantly, this a "non-priorable" offense; that is, if the client has another DUI arrest in the future, then a non-alcohol-related reckless driving conviction cannot be considered a "prior" in any future sentence for another DUI case

Exhibition of speed

A third (or "level three") reduction of a DUI charge is to a violation of Vehicle Code section 23109(c), commonly known as exhibition of speed. Reduction to an exhibition of speed charge generally involves a fine, with no other obligations to the court. Like a non-alcohol-related reckless driving charge, this is a "non-priorable" offense.

Others

Another reduction in DUI cases is to a "two movers" violation, which are infractions, including speeding and lane change violations. As infractions, these are not criminal offenses and will not appear on your criminal record. This level of reduction would involve only a fine, with no probation. This is also a "non-priorable" offense.

In negotiating your case with a prosecutor, attorneys from McGregor & Ernenwein will either attempt to have the matter dismissed, or, alternatively, try to reduce the charges as low as possible. If we cannot obtain a satisfactory result at the pre-trial negotiating stage, we are always ready to take your DUI case all the way to jury trial, and fight for a full acquittal in the case against you.

How can an experienced attorney defend my DUI case?

Contrary to public opinion, there are countless different approaches to defending a DUI case.

Attacking Allegations of Impaired Driving

Some common explanations for impaired driving include poor road conditions, extreme fatigue, inclement weather, or mechanical problems with your vehicle. In addition, minor violations such as lane weaving, failure to stop for a stop sign, or entry into a crosswalk, are common occurrences and are not necessarily symptomatic of intoxication.

Attacking Allegations of "Objective Symptoms" of Intoxication

In preparing their reports after DUI arrests, police officers will frequently make reference to a person's clumsy behavior, such as wavering, stumbling, or general confusion. They will also often refer to a person's slurred speech or reddened, flushed face. All of these so-called "objective symptoms" of intoxication are also common reactions to extremely high-stress situations, such as confronting a police officer. Other symptoms frequently referred to by police officers, such as bloodshot or watery eyes, can be explained by fatigue, by long periods of driving time, or by allergies or airborne pollutants.

The "objective symptom" most frequently referred to by arresting officers, of course, is the powerful odor or smell of alcohol. It is important to remember, however, that alcohol is an odorless substance. When an officer refers to an "alcoholic odor," he is actually smelling the flavoring of the alcohol, not the alcohol itself. Of all alcoholic beverages, beer usually leaves the strongest odor on a person's breath, yet it is one of the least intoxicating of alcoholic beverages.

Attacking Field Sobriety Tests

In addition, we can attempt to minimize the evidence relating to your field sobriety test. The analysis of any field sobriety test performance is largely subjective. That is, performance of the field sobriety tests are subject to different interpretations. Remember, police officers are not licensed doctors, and are not capable of making a medical analysis.

If a defendant performs poorly on a field sobriety test, independent medical or physical problems may be the cause. Common examples include eye problems, joint or arthritis problems, pre-existing medical injuries, or age and infirmity. Our experienced and trained attorneys will carefully evaluate the scene where the field sobriety tests were performed. A sloped roadway or sidewalk area or poor lighting conditions can contribute to poor performance on field sobriety tests.

Attacking Breath Test Results

There are also a number of ways in which an experienced DUI attorney can attack chemical test results. Remember, the BAC Datamaster and the Intoximeter EC/IR, the primary evidentiary breath-analyzing devices used in the greater Los Angeles area, are just machines. As machines, breath alcohol testing devices have flaws, and their results should always be suspect. Your car can break down, your computer hard drive can crash, and breath alcohol testing equipment can be faulty.

At McGregor & Ernenwein, we will never simply assume that blood alcohol chemical test results are accurate. We will thoroughly interview you regarding your medical history and lifestyle to determine whether any foreign substance or pre-existing medical condition may have affected your breath alcohol test results.

In any breath test, all accuracy records, maintenance logs, and usage logs for the machine in question should be carefully evaluated by an experienced professional, to determine whether or not the breath test equipment was in compliance with Title 17 of the Administrative Code. The breath testing device checklist and all materials referenced by the checklist, including the certification and qualifications of the operator must be carefully scrutinized. Our experienced DUI attorneys will obtain and examine all of these records while preparing a defense for your case.

Attacking Blood Test Results

In cases where a blood test was used to determine your blood alcohol concentration, we will obtain a court order releasing the actual blood sample used in your case, and that sample will be independently evaluated for preservative level and blood alcohol concentration. Often, independent testing will reveal an insufficient preservative level, or a lower blood-alcohol level than was determined by the police laboratory.

In addition, our firm will examine the "chain of custody" of the blood sample. The "chain of custody" essentially consists of how the blood sample was retrieved by medical personnel and then transported to the laboratory. If there is a "break" in the chain of custody, this may affect the admissibility of the blood test evidence in court. Also, our attorneys will determine who drew your blood sample. Under certain provisions of the California Vehicle Code, only certain qualified personnel can draw a blood sample. If an unqualified person drew your blood, then the results of that blood sample may not be admitted as evidence.

Firm Expertise

Firm attorney Conrad Barrington has received specialized training in the field of blood alcohol testing. Mr. Barrington has been certified on the Basic Science of Evidential Breath Alcohol Testing by the manufacturer of breath alcohol testing equipment in Mansfield, Ohio. He is a certified Breath Alcohol Technician, and has been factory trained to operate the primary breath testing equipment utilized in Los Angeles County, including the BAC Datamaster.cdm, and the AlcoSensor IV preliminary alcohol screening test.

In addition, the firm of McGregor & Ernenwein regularly employs the expert services of forensic alcohol consultants for assistance in evaluating field sobriety tests and blood and breath testing. In this regard, the firm frequently uses the services of Forensic Alcohol Consultant Dewayne Beckner, a celebrated expert in the field of forensic toxicology with over 30 years of experience in the field. The assistance of an expert forensic alcohol consultant at trial can greatly increase a defendant's chances for an acquittal.

I refused to take a blood-alcohol test, how will this affect my case?

Refusing a chemical test is a violation of the administrative laws of the Department of Motor Vehicles, and can have serious ramifications as regards the driving privileges. If you refused a chemical test pursuant to a DUI arrest, the DMV will automatically attempt to suspend your driving privilege for a period of one year.

The court may attempt to add additional penalties to any conviction in a "refusal" case, including mandatory jail time. In addition, the prosecution can ask that the refusal of a chemical test be considered by the jury as a "consciousness of guilt." In other words, they would argue, at trial, that the defendant felt that if he or she had submitted to a chemical test, it would be above a 0.08%. If you refused to take a breath or blood test, you need an experienced and aggressive DUI attorney to assist you in your case.

The attorneys at McGregor & Ernenwein have substantial experience in dealing with DUI "refusal" cases. In evaluating a "refusal" case, it is important to remember that one of the primary variables that prosecutors, defense lawyers, courts, and juries consider in DUI cases is totally unavailable. That is, there is no chemical evidence or evidence of actual blood alcohol concentration at the time of driving. This can actually be helpful in raising a reasonable doubt in the case. Experienced DUI attorneys can often exploit a "refusal" case. There are some possible affirmative defenses to a refusal, including a failure by police officers to follow proper procedures (such as a failure to administer a complete admonishment, detailing the consequences of a refusal).

Will I have to personally appear in court?

Most driving under the influence cases are charged as a misdemeanor offense. In those cases, a lawyer can appear on behalf of the client, pursuant to Penal Code section 977. In fact, if the case is settled prior to trial, the attorney can appear on the client's behalf even for purposes of the plea. The attorney will inform the client of all necessary terms and conditions of probation, and the client would not ever need to appear before the court. This service can be especially helpful for clients who are already traumatized from the experience of being arrested, and want to avoid the further stress of waiting all day in a courtroom, and appearing before a Judge.

This is my second, third or fourth DUI, how will this affect my sentence?

Many DUI cases are what is commonly referred to as "multiple offender cases." Multiple offender cases occur when a client has a pending DUI case with a prior conviction of a DUI in the past ten years. While this "priorability" period used to be only seven years, it was changed by the California legislature as of January 1, 2005, and is now a ten year period. For DUI cases, a "prior conviction" includes both a prior DUI case or a prior alcohol-related reckless driving case. If a person is convicted of a DUI with one prior conviction, or a "2nd-time DUI," the minimum sentence is as follows:

• 96 hours in custody, in two 48-hour increments
• a fine of approximately $1600
• an SB-38 18-month alcohol education program
• a one-year driver's license restriction, allowing driving to and from work, in the course of employment, and to and from the alcohol education program
• the possibility of an ignition interlock device, allowing the car to be operated only if the operator blows into a machine that indicates 0.00% blood-alcohol concentration.

This is merely the mandatory minimum sentence, and there are other possible terms and conditions under a second-offender conviction. These can include significantly increased jail time, community service, and other additional consequences for a probation violation, if the client is still on probation from the previous DUI conviction.

For a third or subsequent DUI conviction, the minimum sentences are as follows:

• at least 120 days in the county jail or, if the prosecution and court give consent, 30 days in the county jail plus a 30-month alcohol program
• a fine of approximately $1600
• a minimum SB-38 18-month alcohol education program, or a 30-month alcohol education program if a defendant opts for a 30-day jail sentence and enters into the 30/30 program
• a three-year license revocation

A fourth DUI conviction within ten years subjects the defendant to a potential felony sentence with up to three years in state prison.

The increased sentence for a second, third or fourth DUI only applies if you are convicted of the new DUI charges, and if the prior conviction is included in consideration of your sentence. In any multiple offender case, it is especially important to hire an experienced and aggressive DUI attorney to fight for your rights. Attorneys from the Law Offices of McGregor & Ernenwein will work to have DUI charges reduced or dismissed. We will also work to have prior convictions stricken, which means that they will not be considered in your new sentence.

Evaluating Records of Prior Convictions

Attorneys that defend DUI cases involving prior convictions must carefully evaluate the court records from your previous convictions. In evaluating these court records, our attorneys can determine whether or not the prior conviction is constitutional and thus admissible in court. Many times, allegations of prior convictions will fail because the defendant was not properly advised of his or her constitutional rights, or because necessary court documents are missing or were improperly prepared.

In any case involving a prior conviction, attorneys from McGregor & Ernenwein carefully scrutinize the prior conviction or convictions and, if applicable, will file a motion to strike the prior conviction or convictions. In addition, in cases where the client admits to the prior conviction, is convicted of the current offense, and jail time is imposed, our attorneys can often arrange for electronic home monitoring (also known as house arrest) or an alternative alcohol or drug program in lieu of custody time.

For the past 18 years, the Law Offices of McGregor & Ernenwein has represented hundreds of individuals charged with DUI's with prior convictions, and have obtained hundreds of reduced charges and acquittals. If you have been charged with a DUI with a prior conviction, or of any DUI charge, call an experienced and aggressive DUI attorney at McGregor & Ernenwein today for a free consultation.