THE INFORMATION ON THIS BLOG IS WRITTEN BY AN ATTORNEY LICENSED IN CALIFORNIA. The validity of information outside of California has not been verified. THE INFORMATION ON THIS WEBSITE IS NOT MEANT TO CREATE A LEGAL RELATIONSHIP. David Nitka will only acknowledge an attorney-client relationship with those persons who have a signed retainer agreement with David Nitka or his law office.

Friday, December 17, 2010

LIFE AFTER A DUI - What you can expect and why you need a Lawyer.

Once a DUI driver is released from jail, it’s critical to address the legal issues that stem from a drunk driving arrest as quickly as possible. A California DUI arrest actually generates two separate cases – a Department of Motor Vehicles Case and court case.

An individual facing a driving while intoxicated charge has only only 10 days from the date of arrest– including weekends and holidays – to request a DMV hearing or risk having his or her license automatically suspended.

A California drunk driving court case begins with arraignment. The driver will be asked to enter a plea of guilty or not guilty. Every experienced DUI attorney will advise his or her client to plead not guilty at arraignment until the facts of the case can be examined and an appropriate defense strategy established.

There are many proven defense strategies available to effectively fight a drinking and driving charge, and many good reasons to fight a drunk driving charge in court. Some drivers fear that a DUI arrest means an automatic conviction, but that’s simply not true. It’s possible to fight and win a drunk driving case with the help of experienced legal counsel.

It’s possible to win both in court and at the DMV hearing to determine driver’s license status, but these procedures are extremely complex, and the cost of losing is high. An experienced Attorney can minimize the damage from the DUI court action and the DMV Action.

DMV Penalties
These penalties relate to persons over 21 years of age, who were not operating a commercial vehicle.

1. First Offense: Where a chemical test was performed, and the results show a BAC of .08 or more, the DMV will suspend the driver’s license for four months.
Where a chemical test is refused, the DMV will suspend for one year. In a first time DUI case where a chemical test is taken, a restricted license may be obtained. Please consult for details on obtaining a restricted license.

2. Second Offense: (within 10 years of prior offense): Where the chemical test is performed, and results are .08 or greater, DMV will suspend for one year. Where chemical test refused, two-year revocation.

3. Third Offense: (within 10 years of prior offenses): With chemical test resulting in .08 or greater, two-year revocation; with refusal, three-year revocation.

4. Fourth Offense (within 10 years of prior offenses): The punishment is the same, whether a chemical test is taken or not. In either case, there is a four-year revocation of driving privileges.
Take note: these license suspensions/revocations are separate and apart from any action taken by the court. These are only the California DMV Punishments. The courts have no problem imposing double punishment in the field of DUI law; that is, both the court and the DMV are taking the person’s driver’s license in separate processes related to the same event.

In any other area of the law, this would be considered double jeopardy. With DUI’s the court considers the court’s suspension to be punishment, but the DMV’s suspension to merely be an administrative sanction. Also, be aware that any suspension or revocation imposed by the court does not usually start to run until after the DMV suspension is over with. That means that these suspensions run consecutively, not concurrently.

As you can see, there are very harsh penalties imposed against those found guilty of a DUI, make sure to hire an attorney to help reduce penalties you face due to a DUI.


This article was written by my business partner John Ramirez who spent many years as a District Attorney prosecuting DUI arrests.

I always recommends that you use a designated driver or take a taxi home. In the unfortunate event that you are caught driving drunk here are some ways to minimize the impact of the DUI. If you are pulled over, follow these tips but we you will almost certainly need a lawyer to assist you with your case to reduce the penalties and fines that are sure to follow.

Five things to do:

1. Cooperate: Don’t flunk the “attitude test”: Be pleasant and cooperative with the officer. But that doesn’t mean to do everything you’re asked. There is no requirement that you answer any questions that the officer asks you that they call pre-field sobriety test questions. Never tell them how much you’ve had to drink.

2. Don’t take the Field Sobriety Tests. FST's are so you can show you're NOT under the influence, or they provide the police with evidence of your intoxication. You're not legally obligated to take a FST. However, the officer will then have to make a determination based on observed driving, odor of alcohol, and your ability to hold an intelligent conversation. The officer will not be able to rely on the FST, his most common ally in making a determination on whether to arrest you.

3. Take the Breath-a-lyzer: You will be asked to submit to a BAC test which will measure your Blood Alcohol Content. The two most common tests are the breath test and the blood test. The blood test is almost infallible. The breath test has certain flaws which may provide a basis for invalidating the test.

4. Find a Good Lawyer ASAP: California DUI / DWI arrests occur unexpectedly, and the driver is rarely prepared for the complex legal issues that follow. Drunk driving arrests require fast action. The most pressing issues are typically finding an experienced DUI Attorney, locating someone in custody, finding a reputable bail bond firm, and requesting a DMV hearing to prevent the automatic suspension of a driver’s license.

5. Facilitate Getting out of Jail: Getting the driver released from jail is usually a top priority. Although some individuals arrested for driving under the influence are released on their own recognizance - also known as OR - others must post bail. Locating a bail bond provider is the first step in getting a suspected DUI driver released from jail. Bail Bondsmen usually require an up-front down payment of 10 percent of the bail amount to secure the driver’s release. Locating a driver after a California DUI arrest can be challenging without the right resources, an attorney can be an excellent resource in facilitating this process.