What Is The Difference Between A Dui And Drunk Driving And Can You Help Me?
Dec. 29, 2014
With Labor Day upon us, these are the questions I will be asked for the next few weeks by potential clients who are often my law abiding friends. I choose to not view my DUI clients as “criminals”. I prefer to view those arrested for a DUI, and more importantly to “treat them” as good, honest people that have found themselves in a scary and unfortunate isolated situation.
Initially everyone has to understand the terms Drunk Driving and DUI are the same charge. There is technically no such thing as a Drunk Driving. The correct charge is a Driving Under The Influence (DUI). In other words, you do not have to be drunk. When I try to teach young lawyers, I explain they should constantly use the term Drunk Driving in trial when referencing the stop, the tests, etc. etc. That way the jury gets used to hearing the word Drunk. However, that is truly a misnomer. You only have to be Under the Influence.
The DA has the option of prosecuting a driver for one of two charges. They can pursue your being impaired while driving or that you had a Blood or Breath Alcohol Content (BAC) of .08 or higher while behind the wheel. They can even prosecute you for a DUI when you are not driving and are passed out in a parking lot behind the wheel with the key in the ignition and the hood still hot.
There was even a case from the Supreme Court that upheld the arrest and conviction of a defendant pushing his motorcycle on the side of the road with the key in the ignition, because he thought he was too drunk to drive. The bottom line is Don’t Drink and Drive…….call a taxi…….it is a lot cheaper than calling a DUI lawyer.
In California you are under the influence if your ability to drive is impaired. This is the “common law” DUI charge and relates to the driver’s ability to safely operate a motor vehicle. It recognizes that some people have a low tolerance to alcohol and will be under the influence way before they reach .08 and in Indio they prosecute .07’s all the time. You must also consider whether you are taking a medication that has a warning not to mix with alcohol. The combination of the two creates a Potentiation that increases the effect of the alcohol and makes one under the influence at a lower reading. If that is the case the DA can file Under the Combined Influence of Alcohol and a Drug. That can be an illegal drug or a prescriptive drug. The law presumes your ability to drive is impaired when your blood alcohol reading is .08 or higher. Thus if you are driving on a California road with .08 or higher the burden of proof almost reverts back to you to show that you weren’t under the influence and/or your blood alcohol was not .08.
When I am first contacted by someone arrested for a DUI/Drunk Driving the first question I am asked is “What Can You Do For Me…..and What Will It Cost?” If I was a doctor and you had a pain in your stomach, you would not ask the doctor “what is wrong with me and what will it cost” when you first met the doctor and before an exam. You would understand a doctor would have to take a history, perform a physical exam, order blood tests, X-Rays, and MRI’s etc. Maybe the doctor would even perform exploratory surgery before telling you what was wrong. If it was Cancer the surgeon might sew you up and explain there is often little he or she can do. A DUI is usually not cancer, but with a (1) High Blood Alcohol Reading of .15+; (2) Drugs (Prescriptive or street drugs) or (3) a Traffic Accident, your case becomes more challenging.
So if you are one of the throngs with a serious DUI………what is going to happen? The DA’s and the Indio Court recently changed their policy on DUI sentencing and with Mike Hestrin, the new DA set to take office in January 2015, things are up in the air as to what HIS policy will be on DUI’s. The DA’s were recently demanding a minimum of 10 days in jail on all standard first offense DUI’s with a reading up to a .10. Then they added an additional day in custody for every .01 over .10. Thus, a .15 was 15 days and a .24 was 24 days in custody. If the reading is .20 or higher or if there is an accident the courts may want 30 days or so in jail.
We will see what the DA and courts will do with DUI’s in the next few months but do not assume the sentencing will become more lenient. This is in part because the Coachella Valley has more DUI fatalities per capita than any other part of California. Thus we should expect lots of checkpoints this Labor Day weekend.
The bottom is line is