- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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California Drunk Driving Laws
California’s drunk driving laws apply to the degree of impairment while operating a motor vehicle resulting from the consumption of alcohol and/or drug use.
This article covers the DUI per se rule and how a driver’s refusal to submit to a chemical test can impact their plea bargain and result in the suspension of their driver’s license.
California Imposes Strict Penalties for Drunk Driving
Under California Vehicle Code Section 23152, the severity of the offense may escalate from a standard DUI to a felony DUI, depending on the factual circumstances in the case.
For example, if the defendant has prior drunk driving offenses and other aggravating factors, such as the DUI was the cause of a traffic accident resulting in property damage, or still worse, injury or death, the defendant can be facing severe jail or prison terms.
Standard DUI Penalties
In a standard DUI, the defendant, depending on the jurisdiction and facts of the case, can face criminal penalties, including fines and court costs, restriction or suspension of driver’s license, jail or community service, mandatory attendance at DUI classes, and DUI probation.
In addition, as a condition of their probation, a driver might be required to install an interlock ignition device (breathalyzer) that prevents the driver from starting the vehicle if they have been drinking.
DUI probation terms can vary significantly between state jurisdictions.
Two Ways to Be Found Guilty of Drunk Driving
California’s Vehicle Code Section 23152 contains two primary allegations. Proving either one of them is sufficient to establish criminal liability for the offense of drunk driving.
First Allegation – The (a) Count
Too impaired to drive safely
California Vehicle Code Section 23152(a) generally states that if a driver is driving a motor vehicle while under the influence such that the driver is so impaired they cannot operate the vehicle safely, they are criminally liable for driving under the influence.
Proving Impairment Through Field Sobriety Tests
Road tests
Field sobriety tests are designed to determine a person’s level of sobriety and impairment by putting the driver through a battery of balance, coordination, and mental acuity tests.
In addition, police officers consider other factors in determining a driver’s level of sobriety and impairment.
Other insobriety factors include:
- Erratic Driving
- Drivers Disheveled Appearance
- Thick and Slurred Speech
- Lack of Balance
- Lack of Coordination
- Condition of Drivers Eyes (Nystagmus Test)
Second Allegation – The (b) Count
Chemical Tests
The second allegation is California Vehicle Code Section 23152(b), which states that the driver is presumed to be illegally impaired if the driver’s blood alcohol concentration (BAC) was at least .08% or higher when the driver was operating the vehicle.
The determinative chemical result is what DUI attorneys call the presumptive (b) count or the guilty per-se count, which is explained below. However, there are numerous ways of challenging the results of chemical tests.
Presumptive Impairment (Per Se)
In California, a per se drunk driving offense is when a driver is presumptively deemed guilty if the prosecution proves the driver’s blood alcohol level was over the legal limit – irrespective of whether the driver was actually impaired or whether the driver could safely operate their vehicle.
Refusal To Take a Chemical Test
The driver is assumed guilty for driving purposes if the driver refuses to take a chemical test. Most courts in California consider “refusal” a separate violation that can automatically result in the suspension of a person’s driver’s license for one year.
Depending on the circumstances, if this were the defendant’s second DUI offense, the refusal could result in a two-year driving suspension.
Administrative Hearing
The local Department of Motor Vehicles (DMV) can be requested to schedule an administrative hearing to determine whether the accused’s license should be suspended—even before there is a criminal court finding of guilt.
No Constitutional Restraints on Driving Restrictions
California courts have ruled that driving is a privilege, not a right. Therefore, a DMV administrative proceeding can be independent of criminal proceedings and is not subject to substantive or procedural due process constitutional protections.
The driver is assumed guilty for driving purposes if the driver either fails the chemical test or refuses to take a chemical test.
In either case, the accused’s driver’s license will be suspended for a specific length of time, depending on the driver’s history of drunk driving offenses.
Refusal Can Turn into A Plea Bargain Opportunity
As explained earlier, the per se limit means that you will be presumed to be under the influence if you exceed California’s mandated legal limit by taking a chemical test.
However, a person’s blood-alcohol level is only one of the numerous factors for a jury to consider in determining whether the defendant was so impaired they could not drive a vehicle safely.
On the positive side, refusing a chemical test means the jury has no objective chemical test result to consider. While a refusal does have its own penalty, depending on the circumstances, it can still lead to an acceptable plea bargain for the client.
Proving Guilt Without a Chemical Test
Prosecutor Must Rely Entirely on Field Sobriety Tests
Without a blood, breath, or urine chemical test to establish impairment, the prosecutor must rely on the defendant’s driving and field sobriety tests to prove guilt.
However, suppose the officer pulled the driver over because of a broken taillight and saw no evidence of impaired or erratic driving, such as swerving between lanes.
In criminal trials, a seasoned defense lawyer, on cross-examination of the police officer, can explain away most poorly performed sobriety tests unless, of course, the officer has video of the driver falling asleep, vomiting, or passing out on the side of the road.
The DUI Plea Bargain
Depending on the facts of the case, most DUI attorneys will rarely enter a guilty plea unless they are getting something in return, especially if the case against the defendant has weak facts – such as a borderline chemical test result or, in the case of a refusal, no test results at all.
Remember that the accused of drunk driving has the right to demand a jury trial. While the court is ready and willing to provide a jury trial, all the parties know trials are time-consuming and cost money.
When an accused pleads guilty, there is nothing to prove, no witnesses to call, and no expenditure of valuable state time and resources.
It is only fair that the accused receive something in return.
Experienced drunk driving lawyers can use their persuasive powers to convince the prosecutor that trying a weak case is not in the prosecutor’s or the court’s interest. This means instead of having to plead to a DUI, the prosecutor might be convinced to offer a lesser charge, such as alcohol-related reckless driving – otherwise known as a wet reckless.
Even better, the prosecutor might offer a standard reckless driving, also called dry-reckless, which is not related to alcohol or drugs. A standard reckless shows up on your driving record as a moving violation. The penalty is that you pay a fine. The DUI case disappears and cannot later appear as a prior offense.
Do and Don’ts After a DUI Refusal Arrest in California
Do:
- Retain or Request Legal Representation Immediately: The sooner you have an attorney, the better they can protect your rights and build your defense.
- Request and Attend Your DMV Hearing: With the help of your lawyer, you might have grounds to contest the automatic suspension of your license.
Don’t:
- Don’t Admit Guilt Without a Lawyer Never plead guilty without consulting a local DUI attorney first. You need to know what the prosecutor will offer in exchange for your pleading guilty.
- Don’t Ignore Court Orders: Always comply with court orders, such as attending mandatory programs, to avoid additional penalties.
Misconceptions about California DUI Refusal Laws
Misconception #1: You Can’t Be Convicted Without a Failed Chemical Test
Reality: You can be convicted based on VC 23152(a) even without a chemical test. The conviction can solely be based on the officer’s observations and judgments about your erratic driving, behavior, appearance, and performance on the roadside field sobriety tests.
Misconception #2: Refusing a Chemical Test Will Help You Avoid DUI Charges
Reality: Under most circumstances, refusing a chemical test will result in an automatic suspension of your driver’s license. In addition, your refusal can be used against you at trial.The prosecutor could argue that your refusal was calculated to hide evidence of your level of intoxication from the jury, which can lead to an aggravated verdict and harsher penalties.
Misconception #3: A DUI Conviction is Always a Felony
Reality: A DUI is typically a misdemeanor, but it can be elevated to a felony if there are aggravating factors, such as prior DUI offenses or causing injury to a person or property.
Misconception #4: You Have the Right to Refuse a Chemical Test Without Penalty
Reality: Under California’s “implied consent” laws, refusing a chemical test will lead to automatic administrative penalties, including license suspension.
Misconception #5: DUI Charges Are Minor and Can Be Easily Dismissed
Reality: DUI charges in California are serious offenses that can result in incarceration and hefty fines. Moreover, DUI offenses rarely result in pretrial dismissals, even if you believe your arrest was unconstitutional.
In most cases, a motion to dismiss will involve your word against the police officers, which almost always leads to a triable issue of fact, not a dismissal.
Watch Los Angeles DUI Attorney Seppi Esfandi Discuss Administrative Per-Se Hearings:
Fears Related to Being Charged with California DUI
Fear #1: Fear of Permanent License Loss
Reality: While a DUI conviction can lead to temporary suspension or revocation of your license, it’s rarely permanent. License reinstatement is usually possible after fulfilling certain conditions.
Fear #2: Fear of Imprisonment After a DUI Arrest
Reality: First-time offenders often face fines, probation, and mandatory education programs. Also, community service (picking up garbage from roads and highways) is almost always offered rather than mandating that you serve jail time. Although receiving mandatory jail time is possible, it will depend on your case’s severity and aggravating factors.
Fear #3: Fear of Losing Your Job Due to DUI Conviction
Reality: While a DUI conviction can affect employment, especially for jobs requiring company driving, many employers offer opportunities for rehabilitation, and some positions may not be affected at all. Still, a DUI conviction is a valid concern for the employer as they may later be civilly sued for negligent hiring, supervision, and entrustment.
Fear #4: Fear of Being Overwhelmed By the Criminal DUI Process
Reality: The fear is understandable. However, you can select from numerous criminal defense attorneys specializing in California drunk driving law. Once retained, the DUI attorney can often appear in court on your behalf, guide you through the legal process, and help mitigate the consequences by negotiating a favorable plea deal.
Q: Can I get a plea bargain if I refuse a chemical test?
A: Yes, in some cases, a refusal can lead to a plea bargain, especially if the prosecution’s case is weak. However, this depends on the specifics of your case and the skill of your defense attorney.
DUI Statistic:
Despite the risk, millions of people drive impaired in the United States each year.
According to the CDC, about 1 million DUI arrests are made in the United States every year. However, this represents only a tiny fraction of the total number of impaired drivers on California roads and highways.
Bottom Line
What you should know…
Navigating the ins and outs of DUI charges in California can be fraught with uncertainty.
It is highly advised that you become informed about California’s DUI laws, including the criminal DUI penalties and fines resulting from a DUI conviction and the standard terms of DUI probation.
You should also know that you can choose between three different types of chemical tests: blood, breath, and urine. The most accurate test is the blood test, and the least accurate is the urine test. The reliability of the breath test falls somewhere in the middle and is the most chosen of the three tests. Yet most toxicologists will agree that the breathalyzer can have a 02 error margin.
When the prosecutor’s case is weak, your defense lawyer’s experience and strong reputation can influence the prosecutor’s decision to offer a favorable plea bargain. Remember, the last thing the prosecutor wants is to face off with an experienced and talented trial lawyer on a weak case.
The California DMV will automatically suspend or revoke the driving privileges of anyone charged with a California DUI after 30 days of the arrest unless the defense requests an Administrative Per Se DMV hearing.
Getting a temporary license after your DUI arrest can feel like a big win. But before you break out the champagne, you should consult an experienced drunk driving defense attorney about the limits and restrictions of a post-arrest temporary driver’s license.
Should you have specific questions or require additional information about your legal rights, consult an experienced and verified Drunk Driving Defense Attorney about your case as soon as possible.
Sources and References
California DUI Refusal and Per-Se Rules
