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Subscribe to this list via RSS Blog posts tagged in DUI

Posted on in DUI

Understanding the Nuances of Implied ConsentCalifornians who have been arrested on suspicion of driving under the influence of alcohol or drugs have a difficult decision to make when it comes to blood alcohol content tests. According to California’s vehicle code, those who have a California driver’s license have implicitly consented to a BAC test after their DUI arrests. Test results can be damning evidence against suspects in DUI court cases. However, people who refuse the test face legal punishments, including:

  • Driver’s license suspension;
  • Fines; and
  • Additional penalties if convicted on a DUI charge.

Even without the results from a BAC test, prosecutors have successfully used a defendant’s refusal as proof of his or her guilt.

If you have been arrested on suspicion of DUI, the arresting officer is required to inform you of your rights regarding BAC tests. With the stress of the situation, you may overlook some key nuances to the law.


What Distinguishes a Felony DUI from a Misdemeanor DUILast week, many community members in Bakersfield, California, were incredulous after the local district attorney announced that a high-profile case would not include charges of felony driving under the influence of alcohol. The suspect had supposedly been legally intoxicated when his vehicle hit and killed a bicyclist. However, he is being charged with the lesser misdemeanor DUI. The case illustrates the intricacies when deciding between misdemeanor DUI and felony DUI charges in California. Felony charges may require proving negligence and causation, as well as intoxication.

Misdemeanor vs. Felony

Misdemeanor DUI charges commonly occur when a defendant is suspected of being intoxicated after a routine traffic stop. A person can have as many as four DUI convictions within a 10-year period before facing felony DUI charges. However, a DUI charge can be upgraded to a felony if someone is injured or killed as a result of the DUI. There are several types of felony DUI charges involving injury or death:


San Jose criminal defense attorneyOver the past few years, California has upped the ante with new legislation for those choosing to drive while under the influence or DUI.

In 2010, California legislated changes to the existing DUI laws which included the installation of an Ignition Interlock Device (IID) to deter repeat offenders from driving if their alcohol content is over the legal range. The following year, the state expanded the authority of the California Department of Motor Vehicles (DMV) to immediately suspend operating privileges for drivers suspected of a DUI and for longer periods of time.

Although there are additional California laws addressing the issue of driving while under the influence there is little guidance regarding possible long-term DUI consequences. So what happens to the many otherwise conscientious drivers with a previously clean driving record who are now facing the fallout of a DUI conviction? For those who find themselves within this category, even after all the legal ramifications have been satisfied, a DUI conviction can undermine many future opportunities and quality of life.


San Jose DUI defense attorneyA new bill, recently passed by the California State Senate, seeks to increase the penalties for all drivers convicted of a DUI by enforcing the installment of an interlock device. Currently being piloted in four counties – Alameda, Tulare, Los Angeles, and Sacramento – the measure is now being sent to the Assembly for consideration. If passed, this new law could impact the lives and driving rights of more than 200,000 drivers each and every year.

What Is an Interlock Device?

An ignition interlock device (IID) is a lot like a breathalyzer test, but it is connected to the ignition of your vehicle. Before you can start your car, you have to blow into the mouthpiece. If the device detects a blood alcohol concentration above the preprogrammed limit, the ignition remains disabled and you are unable to start your car. The device also requires that you periodically complete what is known as a “running retest” while driving. This requires that you blow into the device at random intervals while driving. If you fail the running retest, the device will not shut off the engine, but it will record the event and cause your vehicle to alert the authorities.


Posted on in DUI

San Jose criminal defense attorneyIf you have been charged with or arrested for driving under the influence (DUI) in California, you are likely aware of the long road ahead to have all of your driving privileges reinstated so that you can move forward with your everyday life and routines. Fortunately, with the help of a qualified lawyer, you can navigate the process more easily.

License Suspensions

Under California state law, an officer is required to immediately forward a completed license suspension notice to all relevant agencies when a person is arrested for DUI, including to the Department of Motor Vehicles. The DMV will immediately conduct a review of the suspension, including a review of any blood or chemical test results and an examination of the revocation order. If the review proves that the arresting officer followed all necessary protocol—and that the person was, in fact, driving under the influence of alcohol or drugs—the agency will approve the suspension. Once the charge passes this review, a person will be required to appear in court before a judge if he or she is interested contesting the suspension or revocation of his or her license.


license suspension, San Jose DUI defense lawyerAfter you are arrested and charged with driving under the influence (DUI) or driving while intoxicated (DWI), the arresting officer may confiscate your driver’s license. The license will remain confiscated—out of your possession—throughout the entire revocation or suspension period. The period of revocation or suspension is determined by the DMV, upon conducting an administrative review. If the review concludes that your license should, in fact, be suspended for a period of time, you may contest the decision by requesting a hearing.

This is, of course, best done with the assistance of a qualified criminal defense attorney. The request for this hearing must be filed within 10 days of receipt of the suspension or revocation notice. If the hearing is unsuccessful and your driving privileges are rescinded, you will have to pay a $125 reissue fee to the California state DMV in order to have your license reinstated after the period of suspension has ended.

Temporary Licenses


drugged driving, proposed law, San Jose marijuana DUI lawyerBetween the legalization of medicinal marijuana and the push for recreational legalization, police officers and state officials are looking for a way to better detect who might be driving while under the influence. Their hope is a handheld electronic device that would automatically detect the presence of various drugs, including marijuana, on a saliva swab. The real question is whether or not they could successfully pass such legislation and if it would, in fact, give them the evidence needed in a courtroom.

When and How the Swab Would Be Used

As the law currently stands, convictions for driving under the influence of marijuana – even medical marijuana – are rather subjective since blood tests are unable to determine the last episode of use. As such, prosecutors and law enforcement use a battery of circumstances, including presence of marijuana in the bloodstream, driving patterns, failed field sobriety tests, and physical appearance.  In contrast, a swab test focuses on recent drug use, typically within approximately 24 to 72 hours with marijuana.


APS law, San Jose DUI defense lawyerIn 1990, a law was passed in California that made it possible for law enforcement authorities to immediately suspend the license of any person caught driving under the influence. This law, known as Administrative Per Se (APS), was implemented as a means to address and combat the state’s 1,500 annual crash-related deaths in which alcohol was a factor.

Underage DUI

The law is only applicable to drivers 21 years and older. If you are charged with a DUI under the legal drinking age, California has a zero-tolerance policy, meaning that regardless of whether your blood alcohol level (BAC) is above the legal limit, if there is any alcohol detected in your system whatsoever, you will be guilty of underage drinking and driving. This results in a one-year license suspension—again, regardless of whether your BAC was below the legal limit. If you are found guilty of DUI as an underage drinker and have at least the legal limit of alcohol in your system (.08 percent or more), you may also be subject to: 


Posted on in DUI

San Jose criminal defense attorneyUnder California law it is illegal to drive under the influence of both alcohol and drugs. Drugs can be anything from illegal substances like methamphetamine, prescription drugs like Vicodin, or even over the counter cough medicine. If you are taking something that impairs your ability to drive, you can be arrested and convicted of Driving Under the Influence of Drugs (DUID).

How a Drug DUI is Different

The signs that a driver is under the influence of drugs will often be different than the signs of alcohol use. Many law enforcement agencies have special drug recognition experts that are brought in to observe suspects who are believed to be on drugs.


DUI, San Jose DUI defense attorneyWhen you are arrested for DUI in the state of California, the procedure from the time of being pulled over to being charged is rapid—and a significant portion of your immediate future hangs in the balance of those few minutes. Immediately following an arrest, the officer must immediately forward a copy of the suspension (or revocation, depending on the severity of the incident and your prior record) to the California DMV. The DMV will then determine whether or not that suspension will be upheld. If you receive word from the DMV that the suspension will indeed be upheld, you have 10 days to request a hearing with the DMV in an attempt to overturn this. If you miss the window of those 10 days (beginning upon receipt of receiving the suspension notice), you forfeit your right to a hearing at the DMV. It is likely that your license will be confiscated by the officer at the time of arrest. In order to receive it back at the end of the suspension period, you are required to pay a $125 fine to the DMV.

In California, you imply consent to taking a roadside chemical test if asked to do so when you get behind the wheel. This means that refusing to take a Breathalyzer test is illegal in California. If you fail the chemical test when administered and it is your first DUI offense, your license will automatically be suspended for a period of four months. A second, third, fourth, or subsequent offense will carry a much more stringent punishment. For a second offense alone, your license can be suspended up to a full year. If it is your second offense and someone was injured in an incident in which you were required to submit to chemical testing, you will likely spend time behind bars.

The only reasons allowed by law for refusing a roadside chemical test are:


Posted on in DUI

holidayEach year around the holiday season, traffic on the roadways increases significantly.  It is estimated that 30 percent of all Americans travel during holiday celebrations.  As you can imagine, with a surge in travel also comes a rise in DUI-related traffic incidents.  In 2013 alone, 10,076 people were killed in alcohol-related vehicular accidents, accounting for nearly one-third (31 percent) of all traffic-related deaths in the United States.   For those affected, the holidays are not always so merry and bright. 

With the climbing amount of traffic fatalities in the Bay area this year, local law enforcement is out to ensure that everyone makes it to their holiday destination safely.   In addition to patrol units, we can anticipate sobriety checkpoints.  Through their new campaign, “Buzzed Driving is Drunk Driving,” the San Jose Police Department reminds drivers to be cautious of the amount they drink before you drive, even if it is just one beer.  There are a few methods to ensure that you can have a memorable celebration without getting a DUI: 

  • Abstain From Drinking: Not only will you not risk a DUI, but you may also even be able to provide transportation to a friend, family member, or acquaintance if they are in need of assistance.  
  • Get a Designated Driver (DD):It is best to agree upon this before you make your plans, so this person is aware that they are responsible for your safety. They are not supposed to drink alcohol that night (or take any medications that may impair driving abilities).  If you see them not fulfilling their duty and partake anyway, find another DD. There also are many public service sober ride options available online.
  • Take Public Transportation: There are dozens of cab companies that will gladly take you home (for a fee). The bus system is another option if one is running within walking distance of your location.
  • AAA Tipsy Tow: This is a free service offered during the holidays by AAA (whether you are a member or not). It gets your vehicle, and you, home within a five-mile radius. Their number is 1-888-AAA-HELP (222-4357).
  • Stay the Night: Most hosts care about their guests’ safety. If you have had too much and there is not a better option, stay the night where you are.

If all else fails, and you do end up drinking, driving, and are pulled over by police, there is hope. Make sure that you have a trusted, knowledgeable attorney to call to assist you in everything that happens after the DUI. Having processed cases in excess of 3,000, Attorney Thomas Nicholas Cvietkovich can be that life-altering phone call. To schedule a free consultation with our San Jose DUI defense lawyer, call 408-625-1130.


Posted on in DUI


With summer’s official arrival, Californian’s are preparing for all types of water based fun. Millions of California residents safely enjoy boating on rivers, lakes, and on the ocean each summer. With nearly a million registered boats in the state, and no license required to operate a watercraft, the chance for danger while boating is high. Add alcohol into the mix, and the likelihood of an accident or injury becomes much higher.  For this reason, the state of California treats boating and drinking much like drinking and driving a motor vehicle. Though it is not illegal to operate a boat while drinking, the same legal limit of intoxication stands for boaters in California.

Alcohol and boating is a dangerous combination. Recent studies estimate that nearly 25 percent of boating accidents in the United States are alcohol related. Often, boating and drinking is more dangerous than drinking and driving, due to factors like engine noise, waves, wind, and glare from the sun. Operating a boat also requires specific skills like balance, coordination, and depth perception, all of which are suppressed when drinking alcohol. On top of that, alcohol often leads to overconfidence, cause watercraft operators to take more risks while boating. All of these factors lead to increased chance for accidents, collisions, injuries, or worse.  

Failed a San Jose DUI Breathalyzer Test

As someone who recently failed a breathalyzer test for driving under the influence in San Jose, you are probably feeling ashamed, humiliated, and terrified about the potential legal consequences.

Even if you didn’t cause any damage or hurt anyone – and thus you cannot be subjected to punishments per California Vehicle Code section 23153(a) or 23153(b) – you no doubt fear going to jail, having your license stripped, and paying potentially thousands of dollars in fines and fees (and that’s the tip of the iceberg).

On the other hand, you may be prematurely judging yourself as “guilty.”

Tagged in: Alcohol DUI
Arrested for DUI – What Should I Do Next?

You’ve just been arrested for DUI. Now the question is—“What should I do next?” The most important action to take after being arrested for a DUI is to seek out an attorney who extensively works on DUI cases. Time is of the essence because you only have 10 days to set a DMV hearing. Otherwise you will automatically lose your license. By setting the hearing you will get a stay of suspension of your license—which means you will keep your license at least until the DMV makes a decision on the hearing.

The DMV hearing should always be handled by an attorney. People often ask me if they can handle the hearing. The analogy I give is the question, “If you had an electrical problem in your house would you re-wire your own house?” You need a professional who knows what he or she is doing, and has handled such hearings many times! Many people think that if they blew or gave blood and the result is over .08 then why get an attorney? I always hear “I’m already screwed.” Not true. DMV hearings are won on defects and mistakes in the officer’s report or procedure.

Here are some examples:

Tagged in: Alcohol DUI

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