DID YOU DRINK AND NOT THINK DURING NEW YEARS?
Jan. 17, 2015
THIS IS THE TIME OF THE YEAR WHEN I GET DOZENS OF CALLS FROM READERS OF MY WEEKLY LEGAL COLUMN THAT WERE ARRESTED FOR A DUI... AFTER 2 BEERS.
Every caller says they were not drunk and asks how this could happen to them? In addition some of these callers were drinking and had a traffic accident with serious injuries to the victim. It is hard to explain to them that the DA will file the case as a FELONY unless we can talk to the investigating officer and suggest why a felony may not be appropriate. Whether it is a misdemeanor or felony the DA wants JAIL time on ALL DUI's in Indio.
MOST CALLERS DO NOT REALIZE YOU CAN BE ARRESTED FOR A DUI WHEN YOU ARE NOT DRUNK?
The TERM DUI IS OFTEN MISTAKENLY USED INTERCHANGEABLY WITH DRUNK DRIVING BY THE PUBLIC. There are different stages of having consumed too much alcohol (DUI). THE LOWEST stage is called HAD BEEN DRINKING (HBD). However you do not need to have reached these stages to be arrested for a DUI. In the Indio Court the DA's prosecute .07's.
The Term Deuced is used BECAUSE A DUI CHARGE HAS historically ENDED WITH A TWO.......initially it was called a 502. Then it was called a 23102, AND NOW the charge is 2 counts i.e. 23152 a & 23152 b, OF THE VEHICLE CODE.
WITH ENOUGH ALCOHOL ONE BECOMES "DRUNK; IMPAIRED; SOUSED; PLASTERED, FACED (AS IN SHIT FACED)" but you do not need to have reached that stage to be arrested and convicted of DUI.
A driver does not have to be drunk. THE CORRECT TITLE for a DUI is NOT DRUNK DRIVING, AS YOU DO NOT HAVE TO BE DRUNK. YOU MERELY HAVE TO BE UNDER THE INFLUENCE OR IMPAIRED. The experts for the DA will testify that takes place when the BA level is .08 or higher.
Hopefully my readers stopped for a DUI remember my admonition that: SILENCE IS GOLDEN AND HANDCUFFS ARE SILVER and thus did not talk to the police. In addition I have educated my readers that the Field Sobriety Tests at the scene are OPTIONAL as is the Breath test at the scene. If the driver had not consumed any alcohol for a while then I hope they requested a Blood test. If they REFUSE a test at the station their license will be taken away by DMV for 1 year.
The DA wants to be sure of a conviction and not have the jury dismiss the DUI b/c the jury thinks the driver was not drunk. Thus the DA now files not only a DUI count but also a 2nd count of Driving with a BA of .08 or higher. That way the likelihood of a conviction of one count is increased dramatically. The jury thinks they are doing the driver a good deed by splitting the baby and finding the defendant guilty of only one count. The same DUI sentence applies for a plea or conviction of 1 or 2 counts.
If the chemical reading is .15 or higher, an enhancement will be filed by the DA resulting in a higher sentence by the court. Unlike the court, the DMV usually looks at .20 to consider the case more serious.
After the arrest the driver only has 10 days for their attorney to request a DMV hearing. My regular readers remember this is separate and apart from a Court proceeding. So the bottom line is do not drink and drive while driving the roads in the CV