This article covers the D.U.I. per se rule and how a driver’s refusal a submit to a chemical test can impact your plea bargain.
State Drunk Driving Laws
All states enact their own drunk driving laws. While most drunk driving laws share similarities, they also can be quite different.
This article will focus on California’s drunk driving law, which contains both a “per se” and “driver refusal” parts to its statute.
California Drunk Driving Law
Under California law, like most states, the states under the influence laws apply to impairment resulting from both alcohol and drugs.
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.
Driver Too Impaired to Drive Safely
First Allegation
V.C. 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.
To prove drug or alcohol impairment, law law enforcement will use a constellation of factors in their determination:
- Erratic Driving
- Drivers Appearance
- Thick and Slurred Speech
- Nystagmus Eye Test
- Field sobriety tests are designed to determine a person’s level of sobriety and impairment through balance, coordination, and mental acuity tests.
The Chemical Test
Second Allegation
The second allegation is subsection 23152(b) states that the driver is presumed to be illegally impaired if the driver’s blood alcohol level was at least .08% or higher when the driver was operating the vehicle.
Presumptive Impairment (Per Se)
Almost all states have enacted per se driving laws in cases involving drunk driving.
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 could drive the vehicle safely.
Refusal To Take a Chemical Test
Most courts consider the “refusal” a separate violation. One which will automatically result in the suspension of their driver’s license for one year. If this were the defendant’s second D.U.I. offense, the refusal could result in a two-year driving suspension.
Automatic Suspension of License
The driver is assumed guilty for driving purposes if the driver refuses to take a chemical.
In states like California and most others, the D.M.V. sets an administrative hearing to determine whether the accused’s license should be suspended – even before a criminal court conviction.
No Constitutional Restraints on Driving Restrictions
All state laws view driving as a privilege rather than a right. Therefore a D.M.V. administrative proceeding can be independent of criminal proceedings and are not subject to constitutional limits.
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 is automatically restricted and often suspended for a specific time period.
Legal B.A.C. Limit
The per se limit in almost all states is either .08 or .10. This means that you are presumed to be under the influence if you are above these state-mandated levels.
However, a person’s blood-alcohol level is only one of the numerous factors to be considered in determining whether someone cannot drive a vehicle safely.
On the positive side, refusing a chemical test, while it does have its own penalty under certain circumstances, can lead to an acceptable plea bargain.
Plea Bargain Opportunity
Depending on the facts of the case, most D.U.I. 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.
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 defendants driving and the 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 driving, such as swerving between lanes.
A seasoned defense lawyer, on cross-examination of the police officer, can explain away most poorly performed sobriety tests (unless the officer has video of the driver falling asleep or passing out). Or worse still, the officer is a weak witness under cross-examination.
These factors make for a weak case against the defendant, and therefore, the prosecutor will likely offer a favorable plea bargain rather than try a weak case.
Possible Plea Bargain Benefits
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 interest or the courts.
Value of Defense Lawyer’s Experience and Reputation
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.
Consult With A DUI Defense Lawyer
Should you have specific questions or require additional information about your legal rights, we recommend you consult a verified Drunk Driving Defense Attorney about your case as soon as possible.
