California has two basic drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b):
23152(a) It is a misdemeanor to drive under the influence of alcohol and/or drugs.
23152(b) It is a misdemeanor to drive with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a) and (b) offenses will be charged. Even though there is only one act, the law says that a defendant charged with drinking and driving can be convicted of BOTH offenses — but can only be punished for one (the punishments are identical). Vehicle Code section 23153 sets forth the "felony DUI" provisions where an injury results from the drunk driving, while Penal Code sections 191.5 and 192 describe the crime of "vehicular manslaughter" where there is a death.
Procedurally, you should be aware of certain legal rights you have — rights which are commonly ignored by the police:
There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.
Once arrested, you must be advised of your constitutional rights — the "Miranda" warning — before any further questioning takes place.
You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).
If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney
When a California driver is arrested for driving under the influence of alcohol, his drivers license is immediately confiscated by the police and he is served with the DMVs "Notice of Suspension". This one-page document (fine print on both sides) serves to (1) formally suspend the license, (2) provide a temporary driving privilege for 30 days, and (3) explain some aspects of the applicable law. Buried in this fine print on the back side is the most important legal provision there is a right to an administrative hearing to contest the suspension and force the DMV to return the license — but only if the individual or his DWI attorney contacts the DMVs local Driver Safety Office (DSO) and formally demands a hearing WITHIN 10 CALENDAR DAYS of the arrest. If the call is not made, on the eleventh day the right to contest the suspension is lost and it will begin 30 days from the arrest regardless of any possible defenses.
This immediate suspension is for either (1) having .08% or higher blood-alcohol (.01% for drivers under 21); (2) providing a blood or urine sample when the officer believes the eventual analysis will be .08% or higher or (3) refusing to take a chemical test. This is referred to as an administrative suspension (or sometimes "administrative per se" or "APS" suspension), and is to be distinguished form a license suspension or restriction which may (and probably will) later occur in the criminal courts — in addition to the administrative suspension. Although this may seem to constitute "double jeopardy" or multiple punishment, the courts in their infinte wisdom have decided that the first suspension is only an "administrative sanction", as opposed to the second suspension in court which is a true "punsihment".
Any person who, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself, is guilty of a felony. [California Vehicle Code Section 23153.]
Network of lawyers who represent persons charged with drunk driving offenses.
Drunk driving, DUI, DWI and Drunk Driving Defense are common words in our every day speech, which should warn us that these time-consuming and expensive offenses are becoming a growing problem in the US. Drunk Driving Lawyers will tell you that the term drunk driving has many official names including, DWI (Driving While Intoxicated), DUII (Driving Under the Influence of Intoxicants), OMVI (Operating Motor Vehicle Intoxicated), and OUI (Operation Under the Influence), and other acronyms OWI, DUIL, DWUI.
