California Criminal Lawyer Blog

As in any criminal prosecution, Probable Cause for DUI Arrest to stop the driver of a motor vehicle may be an issue in a drunk driving case. Lacking sufficient cause, any evidence obtained as a result of the stop - which should include all evidence except observations of driving, must be suppressed. Assuming the existence of grounds for the stop, the prosecution must then justify the investigatory detention. Again, if there are insufficient objective and articulable facts upon which to warrant detaining the driver beyond a temporary stop, then a motion to suppress all subsequently-obtained evidence should be made. If successful, this will suppress all evidence but observations and statements made during the brief stop. Finally, if there existed probable cause to detain the individual for a field investigation (field sobriety tests and brief questioning) there must still exist a considerably greater amount of evidence of intoxication to warrant an arrest. (There must also exist the authority to arrest, involving the question of whether the offense was committed in the officer's presence.) Without such cause, evidence obtained after the arrest, consisting in most cases primarily of the blood-alcohol test or refusal, is subject to suppression.

In essence, this usually means in a DUI case that the prosecution must establish a considerably escalating amount of evidence at each of the three stages-stop, detention, and arrest. Lacking the sufficient quantum of evidence at any stage results in suppression of all evidence obtained thereafter.

There are, of course, thousands of federal and California cases interpreting in general terms what constitutes sufficient probable cause to justify stopping, detaining, and arresting a citizen. Certainly such authority should be used in a DUT motion to suppress. It should be clearly understood by defense counsel, however, that a "double standard" appears to exist when it comes to drunk driving situations. Put another way, both the trial and appellate courts often prove more willing to find probable cause in DUI cases than in other types of offenses.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

When a California driver is arrested for driving under the influence of alcohol, his driver's license is immediately confiscated by the police and he is served with the DMV's "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 DMV's 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 infinite wisdom have decided that the first suspension is only an "administrative sanction", as opposed to the second suspension in court which is a true "punishment".

If the driver is from another state, the officer has no right to seize the license, as that document is the property of another state. Similarly, California has no jurisdiction to suspend a driver's license issued by another state. The officer can and will, however, issue a "Notice of Suspension" identical to that given California license holders; this acts only as a suspension of the right to drive (after 30 days) within the State of California. If there is a conviction, California (as a member of the Interstate Driver's License Compact) will notify the home state of that fact; that state will then usually suspend the license in the same way as if the person had been convicted in the home state.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.
CA DUI Guide

An attractive alternative to a jail term is electronically monitored "house arrest," or home detention. Authority for the home detention program can be found in Pen C § 1203.016:

• (a) Notwithstanding any other provision of law, the board of supervisors of any county may authorize the correctional administrator ... to offer a program under which minimum security inmates and low-risk offenders committed to a county jail ... may voluntarily participate in a home detention program during their sentence in lieu of confinement in the county jail. Penal Code § 2900.5(f) further provides for credit for time served towards any mandatory minimum jail sentence. Electronic house detention commonly involves periodic telephone checks, wearing a bracelet or anklet transmitter, or both telephone checks and wearing a transmitter. The restriction is not necessarily 24 hours a day, however: The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. [Pen C § 1203.016(f)]. Time is also usually given the detainee to shop for food, pick up cleaning, and pursue other necessary chores. Until recently, a sentencing court could, with the defendant's consent, order home detention. Currently, however, the court is limited to restricting or denying participation in the program; approval of participation in the program in lieu of jail rests with the sheriff or other county correctional administrator. In practice, however, and by statutory mandate, a sentencing judge's recommendation is usually given considerable deference. (e) The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. Home detention programs require the defendant to pay a private company to install and monitor the electronic equipment used to ensure his or her restriction to the home. Although the enabling statute says that "Inability to pay all or a portion of the program fees shall not preclude participation in the program" [Pen C § 1203.016(g)], the simple fact is that the companies supplying the equipment are in the business to make a profit and few counties are in a position to provide the funds. To learn more about this call our office and speak with one of our knowledgeable attorneys at (916) 447-7842. CA DUI Guide

Home detention programs require the defendant to pay a private company to install and monitor the electronic equipment used to ensure his or her restriction to the home. Although the enabling statute says that "Inability to pay all or a portion of the program fees shall not preclude participation in the program" [Pen C § 1203.016(g)], the simple fact is that the companies supplying the equipment are in the business to make a profit and few counties are in a position to provide the funds.

To learn more about this call our office and speak with one of our knowledgeable attorneys at (916) 447-7842.

CA DUI Guide

When a California driver is arrested for driving under the influence of alcohol, his driver's license is immediately confiscated by the police and he is served with the DMV's "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 DMV's 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 infinite wisdom have decided that the first suspension is only an "administrative sanction", as opposed to the second suspension in court which is a true "punishment".

If the driver is from another state, the officer has no right to seize the license, as that document is the property of another state. Similarly, California has no jurisdiction to suspend a driver's license issued by another state. The officer can and will, however, issue a "Notice of Suspension" identical to that given California license holders; this acts only as a suspension of the right to drive (after 30 days) within the State of California. If there is a conviction, California (as a member of the Interstate Driver's License Compact) will notify the home state of that fact; that state will then usually suspend the license in the same way as if the person had been convicted in the home state.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

Administrative Hearing
The hearing officer will open the hearing by testing the tape recorder, then having each person present identify himself or herself. The hearing officer will then state the purpose of the hearing and recite the issues to be determined. The next step will be to identify and mark as exhibits the documents which will usually constitute the department's entire case. At a minimum, this will consist of the "officer's statement" signed under oath, containing evidence of driving and of a breath test, and the notice of suspension. Exhibit documents will usually also include the licensee's driving record, the arrest report and, if blood or urine was tested, laboratory certification. Exhibits may also include accident reports, and supplemental investigations. If the officer testifies and uses reports to "refresh his memory" which were not forwarded to the department, the hearing officer will probably make copies of those and introduce them as well.
California DUI lawyers will undoubtedly have objections to most of these documents. The hearing officer will rule on these objections -- overrule them -- and then admit them into evidence. It should be clearly understood by counsel that the hearing officer has no legal education, and so will simply not understand the objection in most cases, nor any statutory or case authority cited by counsel. The hearing officer will understand only the memorandums on legal issues periodically forwarded from Sacramento which present the department's official policy toward issues.
The hearing officer may attempt to call the licensee if he or she is present. If counsel does not want the client to testify, counsel can simply advise the hearing officer that the licensee is asserting his or her Fifth Amendment rights. Although there is some language in an old appellate decision stating that the licensee has no self-incrimination privilege [Goss v. Department of Motor Vehicles 264 Cal.App.2d 268, 70 Cal.Rptr. 447 (4th Dist.l968)], hearing officers will never take the extensive time and effort necessary to compel the testimony.
When the hearing officer has finished accepting his or her own documents into evidence, the officer will rest the department's case. If, however, the hearing officer realizes that an element of the case is missing, the hearing officer can request -- and grant -- a continuance.
Note: the law on this subject is unclear; it is at least arguable that there is no statutory authority for a continuance prior to administrative review of a decision without the licensee's consent.

To have any questions answered contact our office at (916) 447-7842
Information from CA DUI Legal Guide