GETTING CHARGED WITH driving under the influence is never part of the plan when you go out to dinner or visit a winery. Unfortunately, it does happen — in fact, about one in 140 licensed drivers in Marin County gets arrested on suspicion of DUI in a year, according to the California Department of Motor Vehicles.
What really happens after you see those blue lights in the rearview mirror? What can you do to minimize the damage a DUI charge wreaks on your life? Veteran San Rafael attorney Paul Burglin, who literally wrote the book on DUI defense — California Drunk Driving Law — walked us through how to deal with a first offense DUI case, step by step:
1. YOU ARE PULLED OVER An officer who suspects you have been drinking will ask a number of questions and ask you to perform field sobriety tests, such as a horizontal gaze nystagmus test (tracking a moving stimulus with your eyes), walking a straight line heel-to-toe or balancing on one leg. What the officer may not tell you is that you are not legally required to submit to these tests, Burglin says. “It’s a rare situation where the officer lets the person go after conducting field sobriety tests, so you’re probably better off declining to do them, in terms of not incriminating yourself,” the attorney advises. “Finally, you’ll likely be asked to blow into a preliminary alcohol screening (PAS) device, but not only do you have the right to refuse it, the Vehicle Code requires the officer to advise you of this right.”
2. YOU ARE ARRESTED You will be taken to the police station to take a breath test, or to the jail for a breath or blood test (there are consequences for refusing post-arrest testing, including potential jail time and license suspension). Either your car will be towed, or if it is in an area where it can be left, the police may lock it and leave it there. You are held in jail overnight, or you may be allowed to call a sober adult to pick you up.
3. YOU ARE RELEASED Locals are generally released on their own recognizance while those from outside the area will likely be asked to post bail. You will be given a court date, typically about three weeks hence. The police will send your driver’s license to the DMV and in its place give you an Order of Suspension and Temporary License, which allows you to drive for 30 days after the arrest.
4. THIS IS WHEN YOU NEED TO CALL AN ATTORNEY THAT SPECIALIZES IN DUI The legal proceedings you are about to embark on are complicated, and lawyers know ways to minimize the damage to your life. Most attorneys charge between $2,500–$7,000 to handle all DMV and court proceedings without going to a jury trial, and you can expect to pay an additional $6,000–$7,000 plus the costs of any expert witness(es) if your case goes to a jury trial. If you can't afford to hire an attorney, you can request at your court appearance to be referred to the public defender's office, which will evaluate your ability to pay.
5. THE DMV DETERMINES YOUR DRIVING PRIVILEGES You have 10 days post-arrest to request a DMV administrative hearing to plead your case. If the DMV upholds the suspension order, and if you are over 21 and tested at 0.08 percent blood alcohol concentration (BAC) or higher, your license will be suspended for four months on a first offense. You can convert this four-month suspension to a 30-day suspension and a five-month restriction period where you are allowed to drive to work and to the required educational program. If you are under 21 and you tested at 0.01 percent or higher — or if you refused to take a blood or breath test when you were arrested — your license will be suspended for a year. Suspension periods are longer for repeat offenders.
6. YOUR ATTORNEY REVIEWS THE EVIDENCE AND DEFENDS YOU IN COURT Your attorney will study your test results and police report, looking for opportunities to plead for reduced charges or a dismissal. Even if you tested above the legal limit, a conviction is not a foregone conclusion. “He may file a ‘motion to suppress evidence’ that challenges the legality of the initial detention, arrest or warrantless taking of a chemical test sample,” Burglin says.
7. YOU ARE SENTENCED The potential jail time for a first offense — up to six months — will likely not initially be imposed, or will be substituted with community service or trash pickup work. You will typically get three years of unsupervised probation. You will have to attend three to nine months of a DUI program with classes and counseling — costing you up to $1,221. First offenders will also pay fines that total about $1,973. Circumstances that could lead to increased penalties and sanctions include having a child in the car at the time of the offense, reckless driving, an accident or having a BAC above 0.15 percent.
8. YOUR ARREST GOES ON YOUR PERMANENT RECORD — BUT YOU CAN HAVE IT EXPUNGED Typically, you can petition the court for expungement of the criminal conviction after you have served your sentence, including probation. Expungement does not erase your criminal record, but “it demonstrates to a potential employer that you have been deemed rehabilitated,” Burglin says. Moreover, the California Labor Code now prohibits employers from asking about expunged convictions.
9. NEXT TIME, YOU CALL UBER Or Lyft. Or a cab. Or a sober designated-driver friend. Or don’t drink. Do anything except risk a second offense, which could result in jail time, $2,639 in fines and assessments, and having an Ignition-Interlock Device installed on your car that requires a Breathalyzer test every time you drive. “I always address the issue of alcohol and/or drugs with each of my clients,” says Burglin, a longtime Alcoholics Anonymous member who has been sober for more than 24 years. “If I suspect they have a dependency problem, I encourage them to get help and give them suggestions on where to get it.”