As we have discussed here before, both the DMV and the Court system have the ability to suspend your driver's license after a DUI. There are, however, few circumstances wherein the Court can order the DMV to re-issue someone’s license. This most frequently happens when the DUI charges are dismissed by the District Attorney's Office or an acquittal is obtained after a trial, after which a "Dismissal hearing" is held to refute the DMV's previously obtained evidence against the driver. The other way this can happen is through the use of a “Helmandollar” Plea. In the original Helmandollar case, the driver beat the DUI charges in court after losing the DMV hearing.
There are two rather large challenges in being able to enter a Hellmandollar plea, however. Perhaps most difficult is getting the prosecutor to agree to dismiss the DUI charges and admit there is some deficiency in the evidence that is great enough to equate to actual innocence of the driver. Then, of course, the judge must agree to accept such a plea. Once that happens the driver's license suspension and DMV conviction are set aside under Vehicle Code 13353.2 which states, “If a person is acquitted of criminal charges relating to a determination of facts under [the administrative per se law]…the department shall immediately reinstate the person’s privilege to operate a motor vehicle.” (However, this language does not apply to a suspension based on a driver's refusal to take a chemical test.)
While these pleas are certainly hard to get, if you are a person who cannot stand to lose their driver's license an experienced DUI attorney can help you explore this option.
As you would expect, suffering a DUI conviction results in a myriad of punishments. Despite having to pay fines and fees in the neighborhood of $2,000-2,500 and do some mandatory jail time, for those of us here in CA who are dependent on our cars to get around, carry out our daily tasks, get to work, go to medical or dental appointments, and visit family, perhaps the harshest penalty is the mandatory suspension of our driver’s license. For a driver who suffers a standard first DUI, the DMV will suspend his or her driver’s license for 4 months. A standard second offense within 10 years will cause that same driver to lose his or her license for two years, and that driver will be without a license for 3 years for a third offense. These penalties get harsher if the driver refused to take a breath or blood test after the arrest or was under 21 at the time of arrest.
However, California allows a person who has been convicted of a DUI to applyfor a restricted license, allowing them to drive (1) to and from their worksite, and driving they need to do for work, (2) a dependent child to school, (3) to necessary medical appointments, and (4) to any alcohol-education or self-help classes. A driver (in most DUIs) is allowed to apply for a restricted license after 30 days if convicted of a first offense DUI, 90 days if convicted of a second offense DUI, or 180 days if convicted of a third offense DUI. As part of the application the driver must also submit proof of enrollment in an appropriate Driving and Driving Education Program (DDP), and submit proof of current financial responsibility (an SR-22 form.) …And, of course, the DMV will charge a license re-issuance fee of $125.
Once both the DMV-ordered and court-order suspension period has elapsed, a driver is eligible to apply for their full driving privilege back. To have a full license reinstated, the driver will need to show proof ofcompletion of the DDP class and, once again, pay a $125 reissuance fee.
As the application for both of these licenses requires a driver to personally appear at a DMV office, and DMV waiting times have become exceedingly long, it is strongly suggested that drivers schedule their appointments as early on in the process as possible.
Obtaining a restricted license if a complicated legal process. Obtaining an experienced attorney to guide you and ensure all your documentation is in order will ensure your driving privileges are reinstated as quickly as possible after a DUI conviction.
 The length of the DDP program is dependent on the facts of the case. One common factor that determines the length of the program is the level of your Blood Alcohol Content (BAC). In California, these programs typically run for 3, 6, or 9 months. A second or third offense will require a driver to complete an 18-month class.
 You can obtain an SR-22 from your current insurance carrier (if they do not cancel on you) or from a different insurance company (if you were dropped). Obtaining an SR-22 can be costly as the DUI conviction is strong evidence to the insurance carrier that you are a high-risk driver. Generally, you must maintain an SR-22 on file with the DMV for about 3 years, however, it can vary case by case.
So you got a DUI and now need to install an ignition interlock device (IID) in your car. Here's everything you need to know:
On which cars do I need to install an IID?
An IID needs to be installed on any car you drive or have registered to you. If
a family member often drives a car registered to you, it may be advisable to go down to the DMV and have the title transferred to that family member so that your loved ones do not need to bear the burden of having to use an IID as well. When the transfer is interfamily, the transfer fees can be low.
How do I find an IID provider?
These programs are recognized by the state:
How much is this going to cost?
Costs vary by provider. That said, installation costs usually run between $75 and $100+, (the cost can be affected by the type of car you drive; as you could expect, it's a lot easier to add technology to some cars than it is to others,) and then there are monthly monitoring fees which run anywhere from $50-100 per month. Overall, the costs usually come down to about $3-4 a day.
How long do I need to have the IID in the car?
Usually the length of the IID requirement is govern by the court orders, however, as of 2019, an IID will need to be installed in your vehicle for at least 6 months after a 1st offense DUI, 1 year after a 2nd offense, and 2 years after a 3rd offense. Keep in mind, however, that having an IID installed in your car may qualify you to get a restricted license from the DMV sooner.
How embarrassing! Ways to disguise that IID:
There are several products on the marker to help you disguise the IID installed in your car. Check out these sites:
Yes. If you want to read the law, see the text here.
One of the most common and, arguably, most dangerous criminal offenses is driving under the influence of drugs or alcohol. A DUI driver poses a risk not only to themselves, but to the general public as well. Because of the possible severe consequences of a DUI, California imposes severe punishments. Here’s a quick list of tipson what to do and what not to do if arrested for a DUI.
Misconception #1: You can't be charged with a DUI if you haven’t had anything to drink
When most of us think of about being "DUI," we think of alcohol. However, it is also a crime to drive a vehicle under the influence of any drug (be it illegal, prescription, over-the-counter or a combination of prescription and illicit drugs,) that impairs your ability to safety operate that vehicle. it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are .
Misconception #2: If you're under the influence of alcohol, you can avoid getting a DUI by riding your bike ...or a horse ...or a golf cart ...or a boat
California punishes the act of being under the influence while operating any of those modes of transport.
Misconception #3: You can just "feel" whether you're over the legal limit or not
I hear this one all the time from clients: "I thought I was okay to drive." The reality is that the studies have shown that we are all poor judges of our own level of intoxication. While you may have a good tolerance for alcohol, meaning that your performance may not be as affected as a person with a lower tolerance, you can still be prosecuted for a DUI based on your blood alcohol level.
Misconception #4: You have to take the Field Sobriety Tests (FSTs)
The law does not require you to take these tests, and in fact, most attorneys will tell their clients NOT to take them. Why? Because the tests can be difficult for ever a sober person to perform, and when you're under the added stress of being stopped by law enforcement, the chances of doing well is small. These FSTs include taking a breath test before you are placed under arrest. That said, here in California, must take a chemical test after arrest or your driver's line will be suspended for a year.
Misconception #5: (On that same note) you have to answer the officers questions
With the exception of identifying yourself, and providing your license, registration and proof of insurance, you do NOT have to answer any of the officer's questions. Why? Because you have the right against self-incrimination. So what should you say then? Any of the following will work:
Misconception #6: If you refuse to give a chemical sample, the police will not be able to determine what your BAC is, and therefore you cannot be convicted of a DUI
While you have the right to refuse to give a chemical sample (but be forewarned, the DMV will suspend your license for a year if you had been lawfully arrested at the time of your refusal,) if you are arrested for a DUI the police can and will apply for a warrant to take your blood. If they can make a case to the judge on-call that there is probable cause to suspect you of a DUI, the judge will grant the warrant, and your blood will be (forcibly, if need be,) collected.
Misconception #7: A driver has no way to check the validity of the test results
If you are arrested for a DUI, you will have the choice between a breath or blood sample, and the officer is required to inform you that if you choose the breath test, a sample of your breath will not be preserved for retesting. However, if you choose to have a blood test, your attorney can arrange to have the blood retested. Your attorney can also request the accuracy and maintenance records of whatever device tested your breath/blood so that we can make sure the testing device was working properly.
Misconception #8: Because the officer didn't read you your Miranda rights, you can't be arrested
The Miranda decision only protects defendants from their post-arrest statements being used against them. Two conclusions can be drawn from this. First, Miranda is not required to be read when you are simply pulled over and the officer is conducting his investigation. Second, as long as there is other evidence of your DUI offense (bad driving, chemical test results, FST results, etc.) you can be successfully prosecuted for a DUI.
Misconception #9: Your driver's license will not be suspended until after you've been convicted
In California, you have only 10 days after an arrest for a DUI to notify he DMV that you want a hearing to determine if the DMV can suspend your license; if you fail to contact them before that deadline, the DMV will suspend your license automatically. Worse, if you are later convicted of the DUI, the court will restart the suspension period.
Misconception #10: If you are ordered to install an Ignition Interlock Device (IID) on your vehicle after a DUI, you can get around this requirement by driving someone else's car.
In California, if you are ordered to install and maintain an IID, you cannot operate ANY vehicle that does not have one.
We all know that being under the influence of any drug can affect our behavior. But while a person may
know how cocaine or alcohol affects him or her independently, not very many people are aware of how a combination of the drugs may influence their behavior and harm their health. Why? Because when a person ingests this combination, the body produces a metabolite called cocaethylene (also known as ethylbenzoylecgonine,) in the liver about two hours after the person has ingested the second of the two drugs. This chemical can cause a longer lasting and more intense symptomology for both drugs due to the cocaethylene both (1) being harder to eliminate from the body (the liver isn't as efficient at filtering it out,) and (2) slowing the reuptake of dopamine.
Studies have shown that people who use these two drugs together often binge drink, which then causes additional heath issues such as: (as you would expect) liver damage, alcohol poisoning, general poor judgment, and (as you may not expect) cardiovascular issues and nerve damage.
In the context of criminal law, a potential defendant should be aware that when under the influence of cocaethylene, they may suffer from increased anxiety, impulsivity, and aggression. Further, they are at a greater risk of stroke, heart attack (because it negatively impacts the heart muscle's ability to properly to contract,) can increase the potential for long-term ever damage, and may suffer from seizures. In fact, the chances of suffering from a sudden death increase between 18-25 times higher than using cocaine alone.
Alcohol is perhaps one of the most widely-used, and most openly-accepted drugs in our society. But as soon as you couple drinking with getting behind the wheel of any sort of motor vehicle, California’s acceptance of a person’s drinking will come to a quick end, as anyone who has ever been charged with a DUI can tell you.
So how do you go about fighting a charge of Driving Under the Influence (DUI)? The first thing you need to know is that you'll actually have two fights in front of you: first, with the Department of Motor Vehicles (DMV) and, secondly, with the Criminal Justice System.
As any lawyer worth their bar card will tell you, addressing the battle with the DMV should be your first concern. This is because the DMV can, and almost always will, suspend your driver's license for six months unless you contact them within 10 days of your arrest to request a hearing. (It is important to keep in mind that the term "arrest" doesn't only mean being taken into custody, it also includes the act of the police giving you a citation for driving under the influence.) The DMV has this power to suspend your driver's license because of what's known as the implied consent law, which, in short, means that in exchange for being allowed to drive on the roads of the state, you agree to obey all the state’s traffic laws, including the law which prohibits a driver from driving with a Blood Alcohol Concentration (BAC) of 0.08% or more. If you fail to obey this law, the DMV can suspend your license. Or, if you fail to give a chemical sample after being suspected of being a DUI driver, the DMV can suspend your license.
At the DMV hearing (called an "Administrative Per Se" or "APS" hearing), the DMV has the burden of proof to prove three elements are met. First, you were lawfully arrested. Second, you were driving a motor vehicle. And third, you BAC was 0.08% or more. The DMV needs to prove these three elements by "a preponderance of the evidence" or, in other words, more likely than not. This is a lower standard than in the Criminal Justice System, where a prosecutor needs to prove you guilty "beyond a reasonable doubt." This lower standard makes it difficult for a driver to win at the DMV, but having a qualified attorney defending you can increase your odds.
After contacting the DMV to request this hearing, a hearing date will usually be set for approximately six weeks later. And, perhaps most importantly, the DMV will hold off on suspending your license until after the hearing, allowing you to keep driving until your case resolves.
The fight with the Criminal justice system tends to be a little bit more involved. In part, this is because there are actually two ways a prosecutor can try to find you guilty of a DUI. Because the system gives prosecutors "two bites of the apple," if you will, it is not surprising to see a DUI driver charged with two separate violations of the law: a violation of Vehicle Code section 23152, subsection (a), and Vehicle Code section 23152 subsection (b). While most of the time these are charged as misdemeanors, they can be charged as felonies. (More on that in a following blog post.)
To convict you on the Vehicle Code § 23152(a) count, the prosecutor needs to prove: (1) you were driving a motor vehicle, and (2) you were impaired to a degree that you could not safely operate a motor vehicle. You'll note your BAC doesn't matter at all under this count, something that surprises a lot of DUI drivers. This means that even if your BAC is 0.07%, under the legal limit of 0.08%, you can still be found guilty of a DUI. This often occurs in cases where the driver was driving poorly—swerving or not following other rules of the road—or during the field sobriety tests demonstrated a lack of coordination or ability to multitask.
To convict you on the Vehicle Code § 23152(a) count, the prosecutor needs to prove: (1) you were driving a motor vehicle, and (2) BAC was 0.08% or above.
Because the penalties for a DUI can be severe, up to six months in jail for a first offense, and up to a year in jail for a second offense, it's imperative that if you've been charged with a DUI you have experienced legal counsel in your corner to help ensure you're not being taken advantage of by the legal system. An experienced attorney can help determine if the officer had lawful authority to approach you, if the officer's police report is accurate, and whether the testing was done in accordance with regulations.
To schedule a free, no-obligation consultation with Devina Douglas feel free to call her at (707) 408-3529 or get in touch with her online here.
Devina strives to make information relevant to the lives of her clients easily accessible.