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# #417 Drunk driving laws

mp3 #417 Drunk Driving Laws (mp3 file)


California's drunk driving laws have been changed in recent years, not only to impose tougher penalties for people convicted of drunk driving, but also to make it easier to obtain convictions of people who are driving under the influence of alcoholic beverages or drugs. The term "drunk driving" is not found in the California laws, however, and it is not necessary that someone be drunk in order to be convicted. Instead, the law says only that it is a misdemeanor offense to drive while under the influence of alcohol.

Before 1982, if you were arrested for this offense, the prosecution had to prove that you were driving a motor vehicle, and that because of the use of alcohol or drugs, your physical or mental abilities were impaired to such a degree that you no longer had the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

The law now states an additional offense, if you drive a vehicle when your blood alcohol level is eight one hundredths of one percent or, as it is often referred to, a blood alcohol level of point zero eight or higher. If you are under 18 years of age, the blood alcohol level is .05%. In proving this offense, the prosecutor does not have to prove your driving was impaired or that your coordination was impaired, merely that at the time the chemical test was taken, if your blood alcohol reading is .08 or higher, that is the offense, and upon proof of it, you are guilty.

When filing a drunk driving charge, the prosecutor may choose to try your case either under the law of driving while under the influence of alcohol, or under the law of driving with a blood alcohol level of point zero eight percent or greater. Usually, the prosecution will try you under both laws. However, if you are convicted of both of these offenses, you will only be sentenced as if convicted of one. These offenses may still be defended by proof that you were not driving a car or that the chemical test is incorrect. The law states that the blood alcohol level at the time of the testing is the crucial time, rather than trying to determine the blood alcohol level at the time a person was driving. This usually eliminates the often used defense that a person consumed a large quantity of alcohol just before driving, and they would have been home before the alcohol had any effect, except for the fact that the police officer stopped them and took them to jail. The jury no longer has to speculate what the alcohol level was at the time of driving, but may rely on what the test results stated.

Your defense attorney will still usually be able to keep you out of jail, however, if you are convicted of driving under the influence for the first time within the past seven years. For a first offense, the court may place you on probation and fine you from $390 up to $1,000.00 plus penalty assessments (which are now about 50% of the fine) require you to attend an alcohol or drug treatment program, and restrict your use of your driver's license for 90 days. When the court restricts your driving, you may drive only to and from work, and in the course of doing your job, and going to and from your treatment program. This restriction is written on your driver's license by the court and the court will notify the department of motor vehicles of the restriction on your license.

These conditions of probation are the least punishment you can receive for a first offense. If you wish to avoid the 90-day restriction on your driving, you may instead ask the court to sentence you to spend at least 48 hours but not more than 6 months in the county jail. But you must still pay the same fine, attend the treatment program if you have not successfully completed such a program before, and remain on probation for three years.

If you wish to avoid being placed on probation for three years, and also avoid attending a treatment program, you may ask the court to sentence you to spend at least 96 hours but no more than 6 months in the county jail, and pay the same fine of $390 up to $1,000 plus penalty assessments. In this option, the court may restrict your license for up to six months, instead of three months.

To summarize your jail time possibilities for a first conviction for drunk driving, you and the judge have a choice of no jail, or a minimum of 48 hours in jail, or 96 hours in jail, depending on the other penalties that go along with each of these options.

If you are convicted of drunk driving for a second time within the past seven years, the penalties are greater. It is, however, necessary for the prosecution to prove that there was a valid first conviction within the past seven years. Your first conviction may have been in California, or in some other state.

For a second conviction of drunk driving within a period of seven years, you must go to jail for at least 48 hours. The lowest punishment you can receive for a second offense is three years on probation, from two days up to one year in county jail, a fine of $390 to $1,000.00, plus penalty assessments, a one-year restriction on your driver's license, and an 18-month or 30-month alcohol or drug treatment program. If you wish to avoid the alcohol treatment program, you can ask the judge to sentence you from 10 days up to one year in county jail, pay the same fine, have an 18-month license suspension, and remain on probation.

If you wish to avoid being placed on probation for three years, and also avoid the alcohol treatment program, you can ask the judge to sentence you from 90 days up to one year in county jail, pay the same fin and have your driver's license suspended for 18 months.

To summarize your county jail time possibilities for a second conviction for drunk driving within seven years, you and the judge have a choice of at least two days in jail, 10 days in jail, or 90 days in jail, depending on the other penalties that go along with each of these three options.

For a third conviction of drunk driving within seven years, you will be sentenced from a minimum of 120 days up to one year in county jail, a fine of $390 to $1,000.00, attend an alcohol or drug program if not completed before, and your driver's license will be revoked for three years.

For a fourth or subsequent drunk driving conviction within 7 years, you may be placed on probation and sentenced to county jail from 180 days to one year, pay a fine from $390 to $1,000, attend an 18-month alcohol or drug treatment program if not completed before, and have your driver's license revoked for 4 years. If you are not granted probation, the court may sentence you to state prison for up to 3 years and revoke your drivers license for 4 years.

In different counties in California, there will be differences in how various courts interpret and apply these laws. In all counties, however, judges have the power to deny you the lower penalties that go along with probation, and impose the higher penalties permitted by the law. Even for a first conviction of drunk driving, the court can sentence you to county jail for as long as six months, up to one year in county jail for a second or third conviction and up to 3 years in state prison for a 4th conviction. If you violate the terms of your probation during the three to five years you are on probation, you may also be sent to jail for the maximum period of six months or one year. Also keep in mind that penalty assessments may increase the amount in the fines you pay by 50% or more.

What if your blood alcohol level was point two zero or above, or what if you refused to take a chemical test when you were arrested, or what if your driving speed was 30 or more miles per hour above the speed limit on a freeway, or 20 or more miles per hour above the speed limit on any other street or highway? For any of these additional offenses while driving under the influence of alcohol or drugs, the court may impose additional time in jail, and other penalties.

If you are arrested for driving under the influence of alcohol, and your blood alcohol level is point zero eight or above, the police officer may immediately take possession of your California driver's license, and then present you with a temporary driver's license, good for only the next 30 days. Within the first ten days of this period, you may request an administrative hearing by the department of motor vehicles, to decide whether or not your driving privilege may be reinstated. The purpose of this law is to provide for the immediate withdrawal of a person's driving privilege, for a greater deterrent effect. This license suspension procedure is controlled by the department of motor vehicles, and operates independently of any penalties imposed by a court in an ensuing driving under the influence criminal case. The DMV may suspend your license for four months for a first DUI offense, or one year for a second or subsequent offense. For some first offenders, DMV may grant restricted licenses for a shorter period than four months.

An alcohol-related reckless driving conviction does not require that you spend time in jail, but the judge may impose up to 90 days in jail. Upon conviction, the judge is not required to send the defendant to an alcohol or drug program. The fine is from $145 to $1,000.

If you drive when your license is restricted, suspended, or revoked, that is another offense, with more jail time and fines.

What has been said so far, applies only to drunk driving convictions where you did not injure or kill another person, while you were driving under the influence of alcohol or drugs, and caused by your violation of a law or a duty imposed by law. Driving under the influence of alcohol causing injury or death, and driving with a blood alcohol level of point zero eight percent or higher causing injury or death, may be filed as either a felony or a misdemeanor. As a felony you can be punished by a maximum term of three years in state prison. Under some circumstances, however, you may be convicted of second-degree murder, and spend much more time in state prison.

The implied consent law says that every licensed driver in California has consented to giving a chemical test when it is requested by a police officer who suspects drunk driving. If you refuse to give your choice of chemical test of blood, breath or urine, then the department of motor vehicles may suspend your driver's license.

California's drunk driving laws are very complex, and this message has described only some parts of the laws. Many important details, that may apply to your case, have been omitted. To fully protect all of your legal rights, you may wish to consult an attorney, if you are arrested for drunk driving. However, it is possible for you to represent yourself without an attorney in negotiations with the prosecutor's office, especially if it is your first simple drunk driving offense. This message has briefly described what your options are. Even for a first offense, however, your legal rights will be more fully protected if you are represented by an attorney.

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