As a leading criminal defense attorneys in San Jose, CA, we get a lot of questions about DUI cases. Here is a sampling of the most frequently asked questions we receive.
I was just arrested for a DUI. What should I do?
Yes. At VIB Law, we recommend that our clients do three things immediately to help give them the best chance at getting their DUI charge dismissed or reduced.
1) Ask for a DMV hearing within Ten (10) days of your arrest – If you are arrested for a DUI, your license will be taken from you by the police officer who arrested you. In its place you will be given a temporary license on a pink piece of paper called a “DS-367.” This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to ask for a hearing on your license suspension. Do not miss this deadline or your license will be suspended automatically.
As part of of our representation, we can set this DMV hearing up for you. We can also represent you at this hearing. Remember, if you miss the Ten (10) day deadline, it is almost impossible for us to save your license from being suspended.
2) Start preparing a “Timeline” of important facts for your DUI consultation – You should bring all of your paperwork from the arrest to your DUI consultation. Also, start working on a timeline of the incident. and start thinking of potential witnesses who may be able to help your case. Finally start collecting any evidence of medical or physical conditions that might have affected the tests conducted in your case.
3) Retain an attorney who is an expert in DUI Law BEFORE your first court date and take a proactive approach – The attorneys at VIB Law have literally decades of criminal defense and DUI defense experience. Whether your case needs an aggressive motion driven defense or is better suited for an early negotiation, the experts at VIB Law are prepared.
What if I have an out-of-state drivers license and I get a DUI in California?
If you have an out-of-state drivers license and have be charged with a DUI in California you have two options:
Option 1 – Stay in California and complete the alcohol classes.
Option 2 – Move to another state and waive your “privilege” to drive in California. If you live in California, the California DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation. DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a “1650 waiver packet.” They will only mail this packet to the licensee at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such). This waiver allows out-of-state licensees to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver. The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable California DUI class.
I was arrested for Vehicle Code Section 23152(a) AND 23152(b). Does that mean I was charged with two crimes?
No. There are two standard charges you may face when you have been arrested for a DUI:
23152 (a) – This is a charge that you were “Driving under the Influence.” Legally the idea is that no matter the blood alcohol if you were impaired to the point that it was unsafe for you to operate a vehicle you can subject to this charge. You will see a charge of 23152 (a) charges in cases where there was a “refusal” or “drug” charge.
23152 (b) – Driving with over a .08 blood alcohol. This is what is known as an “alternative charge” to 23152 (a) .” In other words, the DA is allowed to argue that even if you were not impaired, if you were over the .08 legal limit you are guilty.
What if my license is suspended? Is there any way I can get a restricted license?
The good news is that in a standard first offense DUI, even if you do sustain a driver’s license suspension, you can usually get a restricted license within 30 days. This allows you to drive to and from work related activities and any court or DMV imposed alcohol program.
In order to get a “restricted” license, you will need to do the following:
- Complete a 30 day “hard” suspension
- Pay a reissue fee
- Enroll in a 3 month First Offender Drinking Driver Program (FOP)
Our DUI attorneys can guide you through this process at the appropriate time.
I was just arrested for a DUI. Now I am being flooded with mail from low cost DUI attorneys. How did they even get my address?
This practice is what is known as “jail mail.” Many defense attorneys will pay money to see a list of who has been arrested for a DUI and send them coupons or offers for cheap DUI defense.
At VIB law, we think you should save the coupons for shopping at your local grocery store. The last thing you want to do is go to court with a “discount attorney.” We’ve literally seen them plead people guilty without even reading the police report. Don’t do it. The power of the government is immense and you need the resources of a law firm behind you.
The expression, “You get what you pay for” doesn’t always apply but when it comes to a serious matter involving your life and liberty it makes no sense to shop for the cheapest option.
Do I need an attorney with me at the DMV hearing?
We think that having an attorney at your hearing is really important. The DMV process is very complicated. The DMV essentially is a “separate” proceeding entirely that needs to be coordinated with the criminal proceedings. Fortunately, our attorneys are experts at both of these types of hearings.
But if my blood alcohol (BA) was over the .08 legal limit, isn’t my DUI case hopeless?
At VIB Law, we have a saying… There is No Case That Cannot Be Won, Negotiated or Mitigated
And we stand by that. Sometimes your case may require an aggressive approach. For example, we can subpoena the breathalyzer’s maintenance and calibration logs and see if it shows a history of malfunctions and inaccurate readings.
We can also subpoena the arresting officer to testify at the DMV hearing. This allows us to pin down an officer’s testimony regarding what happened. Often the office is not prepared to be cross-examined at this type of hearing and we can get damaging admissions from him or her about poor DUI training and mistakes in the investigation.
Also, we review every DUI case to see if we think the officer had sufficient legal justification to pull you over. If we feel the officer stopped you illegally, we will file what is called a “Motion to Suppress Evidence.” If the officer pulled you over without sufficient reason, the evidence collected from the stop (The observations of you, your statements, your performance on field sobriety tests, the results of any blood or breath test, etc.) must be thrown out by the judge.
On the other hand, sometimes, you just need a good negotiator who can help get you through this process as painlessly as possible. We can help steer you to the resources you may need and give you advice as to how to get through this process. We can help clients with things as simple as getting your SR-22 insurance in place or help finding the First Offender Program (FOP) to help finding an in patient rehab that your judge is willing to accept as a jail alternative.
What is implied consent?
California Vehicle Code Section 23612(a)(1)(B)
A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.
The driver can choose between either a blood or urine test. However, the driver does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. Id. § 23612 (a)(2)(C).
Failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a DUI, and one year license suspension. If the driver is unconscious or dead, consent is assumed and the tests may be administered.