Criminal Law Legal Topics

DUI Basics Every Attorney Should Know

DUI cases are complex and can deter even the most senior practitioner. But it’s not uncommon for attorneys to be contacted on DUI cases by clients, and even friends and family — particularly during the holiday party season. For this reason, it’s important for every California attorney to know at least the basics of California DUI law.

When an individual is arrested for a DUI, the first thing that should happen is that the arrestee is admonished under Veh C §23612, the “implied consent” statute, that he or she will be given a chemical test and has a choice of (1) a blood test; (2) a breath test; or, if arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, (3) a urine test. Uncooperative arrestees may be compelled to submit to a blood test.

In most DUI cases, a person is arrested, booked, and released within 4 to 12 hours after arrest, with the actual time reflecting the arresting agency’s view of the appropriate sobering up period. Release may be delayed based on other factors such as prior convictions for similar offenses, aggravated fact situations, or the arrestee’s attitude.

The arrestee is then released with a citation and promise to appear (i.e., on own recognizance). A citation is given to the arrestee informing him or her of the date, time, and place to attend court.

There’s not much for counsel to do at this stage, unless the arrestee won’t be released on his or her own recognizance. In that situation, you’ll need to look to the applicable bail schedule for the bail amount.

And there’s the issue of getting the arrestee driven home, because the arrestee’s license will have been seized by the arresting agency. See Veh C §13382. The issue of the suspension will then be in the hands of the Department of Motor Vehicles (DMV). Veh C §13557(c).

Unless a special circumstance exists, anyone arrested for driving under the influence of alcohol, drugs, or both is charged with violating Veh C §23152(a), commonly referred to as the “DUI count,” and is prosecuted for a misdemeanor. Veh C §§23536-23552. Other potential sentences are covered in our earlier blog post, What Does a DUI Bust Really Mean?.

DUI cases are complex. In addition to general practice requirements, counsel handling a DUI case needs to be thoroughly familiar with

  • applicable scientific and medical evidence,
  • rules of evidence on examination of expert witnesses,
  • introduction of documentation, hearsay rules and their exceptions,
  • applicable California Vehicle Code sections,
  • current case law,
  • numerous manuals and related materials from police agencies and manufacturers of chemical-testing apparatus, and
  • applicability of the California Code of Regulations, commonly known as “Title 17.”

You’ll also need to know about DMV administrative procedures, which are separate from the criminal action, but a criminal conviction may affect the DMV proceeding.

If you don’t have these qualifications, it may be time to refer the case out to someone who does.

For everything you need to know about DUI cases, turn to CEB’s California Criminal Law Procedure and Practice, chap 55, and Defending Your Client in a Misdemeanor Case (Including a DUI). On DUI sentencing, check out to CEB’s California Criminal Sentencing Enhancements, chap 9.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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