What is a DUI?
What are the consequences of a first-offense DUI?
What is a “Wet Reckless”?
Can I be in trouble even if my BAC is below the legal limit?
Do I have to submit to a breath, blood, or urine test?
Can I fight my DUI arrest-related suspension?
If I am arrested for a DUI, will I lose my license?
For how long will I lose my license?
What if this is my second or third DUI arrest?
What is a DUI?
In California, Driving Under the Influence (DUI) is usually charged as a misdemeanor where an individual is suspected by the police of having violated one, or both, of the following Vehicle Code sections:
- Section 23152(a), it must be proven beyond a reasonable doubt that the charged individual was the driver of a vehicle within the State’s boundaries while so intoxicated, with either alcohol that he or she was unable to operate the vehicle as safely as an ordinarily prudent person would under like circumstances.
- Section 23152(b), it must be proven beyond a reasonable doubt that the charged individual was driving a motor vehicle within the State’s boundaries with a Blood Alcohol content of at or greater than .08%.
In cases where one or more drugs – no alcohol – are believed to be in the individual’s blood, and causing impairment, section 23152(f) maybe charged. In cases involving both alcohol and drugs, section 23152(g) is often charged.
The above sections are by no means an exhaustive list of all of the code sections which prohibit various forms of driving under the influence. For example:
- Section 23153 prohibits driving under the influence of alcohol and/or drugs in a manner which causes injury to another. Depending on the seriousness of the injury(ies) and how many people (other than the DUI driver) were injured, this offense may be filed a felony.
- Section 23140(a) prohibits driving with a blood alcohol content of .05% or greater while under 21.
- Section 23136(a) prohibits driving with a blood alcohol content of .01% or greater while under 21.
- Section 21200.5 prohibits riding a bicycle while under the influence of alcohol.
- Section 21221.5 prohibits riding an electric bike or scooter while under the influence of alcohol.
To view these, and other pertinent code sections, you are referred to the California Code.
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What are the consequences of a first-offense DUI?
For South Santa Barbara County only:
- Three years of informal or formal probation (aka “suspended sentence”) with anywhere between 60 and 180 days of jail “suspended” (i.e., not served unless the probation is violated and a “sentence” is imposed);
- Zero to 180 days of actual jail. How much actual jail typically depends on the following factors:
- The degree of intoxication,
- Your level of cooperation with the police,
- The dangerousness of your driving behavior,
- Whether there was an accident,
- Whether property was damaged,
- Whether there were injuries,
- Whether there are other criminal charges,
- Your criminal history (if any), and
- The quality of your legal representation.
Jail on a first offense DUI is most typically served on the Sheriff’s Work Alternative Program (aka “SWAP”). A daily fee and an application fee is charged to allow you to perform light industrial work under the direct, or indirect, supervision of the Sheriff’s Department on County property. A day of jail credit is granted for each 8 hour work day. A minimum of two days must be served each week. No more than 60 days of jail may be served on SWAP.
- $1,840+ in fines and fees (payable in monthly installments of at least $100 per month); A 180 day drivers license suspension.
- A three or nine month DUI class depending on whether your blood alcohol level tested at .20 or above. The local program provider, Zona Seca, Inc., charges $800+ or $1,000+ depending on which program you are required to attend; The obligation to obey all laws;
- The obligation to submit to testing of your blood or urine for the presence of alcohol, if asked by a law enforcement officer with probable cause to believe that you have been driving under the influence of alcohol, AND
- The obligation to refrain from driving a motor vehicle with any measurable quantity of alcohol in your blood.
Other financial setbacks related to a DUI include the increased cost of auto insurance for being labeled a “high risk” insured, a booking fee (e.g., $130), and a drivers license re-issue fee (i.e., $120). Also, depending on the circumstances of your arrest, you may also be billed for the costs of an “emergency response” (usually where there has been an accident) and, if your car was impounded, of course you will have to pay an impound fee to get it back.
Some DUI related setbacks are hard to quantify in financial terms, however, they can be emotionally and financially devastating. For example, if you are convicted of a misdemeanor or a felony DUI, you must typically disclose the conviction on job applications, applications for public assistance, applications to run for public office, and applications submitted to educational institutions (and for financial aid). A felony conviction will, at least temporarily, bar you from the privilege of voting. While most first-offense misdemeanor dui convictions won’t restrict your right to travel, Canada, for example, often bars the entry of non-Canadian citizens previously convicted of even misdemeanor charges of DUI (in the U.S.) for five years from the date of conviction. Rumor has it that England and Japan may do the same..
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What is a “Wet Reckless”?
A “Wet Reckless” (aka “Wet”) is a misdemeanor reckless driving offense sentenced under section 23103.5 of the Vehicle Code. It is a Reckless Driving offense which was found to have involved alcohol and/or drugs. A “Wet” is actually never charged in an original complaint. Instead, it is offered by way of a plea bargain when you have been arrested and charged for a DUI, but where the prosecutor believes that he or she may have some difficulty proving you guilty of the charged DUI offenses.
The consequences of a “Wet” in South Santa Barbara County TYPICALLY are as follows:
- Consequences TYPICALLY imposed by the Superior Court
- One year of summary probatioon,
- $1,100 in fines,
- A 12 hour alcohol education class (aka “wet school”/$350+),
- A requirement to obey all laws,
- A prohibition against driving with any measurable alcohol in your blood, and
- A requirement to submit to testing for the presence of alcohol in your blood or breath by any police officer with probable cause to suspect that you have been driving with a measurable quantity of alcohol in your blood.
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Can I be in trouble even if my BAC is below the legal limit?
Yes. It is also unlawful to drive when you are impaired by alcohol such that you are not able to exercise ordinary caution of a sober driver. Your reaction time and motor coordination must not be “impaired” by alcohol. Some scientists take the position that everyone is “impaired” at a .05% or greater blood alcohol content (BAC). Also, the combination of either a low blood alcohol level (or none at all) while under the influence of a drug which may affect your ability to drive safely is considered a DUI as well (§§ 23152(f) and (g) CVC)).
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Do I have to submit to a breath, blood, or urine test?
If you are under 21, and under suspicion of DUI, you must submit to a preliminary alcohol screening test.
If you are over 21, not on probation, and are under suspicion of DUI, you are not required to submit to any chemical tests unless you are arrested. Once arrested for DUI, you may be required to submit to a breath or (rarely) a urine test. You need not consent to a blood test but one may be done against your choosing if you have refused a breath test or are believed to under the influence of a drug (in addition to or other than alcohol) AND a judge issues a warrant.
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Can I fight my DUI arrest-related suspension?
Yes. You may request a review of the administrative license suspension action by the Department of Motor Vehicles within 10 days following your arrest. At a formal review, the hearing officer is authorized to admit documentary evidence and testimony. Taking advantage of your right to a hearing will cause a delay of the imposition of the suspension until a decision is reached on the merits. In practical effect, choosing to fight the suspension, administratively, will extend the temporary driving privilege for additional period of months if it doesn’t actually prevent the suspension of your driving privileges. Moreover, winning the hearing will prevent the DMV from requiring you to purchase “high risk” insurance coverage and to enroll in any courses.
Ask Mr. Makler about how he routinely beats administrative suspensions.
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If I am arrested for a DUI, will I lose my license?
Yes, the law enforcement officer will seize your license if you are arrested for DUI with an unlawful BAC or after you have refused to submit to all chemical tests (you may choose between breath and blood, ultimately). Your license will be confiscated, and the officer will issue you a citation as well as a pink form which acts as both a temporary driver’s license and as your notice of suspension. To learn more about how drinking affects your BAC, you may wish to try our BAC Calculator.
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For how long will I lose my license?
This will vary depending on the circumstances. However, if you have refused to submit to any chemical tests, the DMV will seek to suspend your license for a period of one year for a first refusal. It will be revoked for 2 or 3 years depending on whether you have one or two prior DUI convictions and refuse a chemical test. If you have an unlawfully high BAC, the DMV will seek to suspend your license for six months for a first offense, and one year for a second offense. If you are under 21, the minimum suspension length is one year for any alcohol related offense.
In select circumstances, repeat offenders may qualify for driving privileges after 90 or 180 days.
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What if this is my second or third DUI arrest?
The consequences of a DUI with one or more prior DUI’s (within the last 10 years), or a DUI with other aggravating facts, such as injuries, deaths, major property damage, resisting/evading arrest, and driving without a valid driving privilege, can be very severe and must be evaluated on a case-by-case basis.
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Santa Barbara Lawyer William C. Makler has over 20 years of experience working in the State and Federal criminal justice systems and represents clients charged with all varieties of DUI/Drunk Driving offenses.
Call us now at (805) 892-4922 or email us for a free, no obligation consultation and Mr. Makler will get back to you as soon as possible, frequently within a few minutes.
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Law Offices of William C. Makler, P.C.
140 East Figueroa Street
Santa Barbara, CA 93101
(805) 892-4922
