Category: Driving Under the Influence (DUI)

Preliminary Alcohol Screening (PAS) Devices

Unlocking the PAS Test:

Encountering the flashing lights of a police officer in a DUI scenario often involves a series of field sobriety tests, among which is the Preliminary Alcohol Screening (PAS) device[i]. Before an official DUI arrest, officers administer the PAS test by having individuals exhale into a tube connected to a portable device. It specifically gauges the presence of alcohol, excluding drug detection. After a steady exhale, the digital display reveals an estimated Blood Alcohol Content (BAC), providing the officer with additional grounds for a DUI arrest.

The Science Behind PAS:

A PAS device[ii] functions by measuring the ethanol (alcohol) content in the exhaled air. As alcohol is absorbed into the bloodstream from the stomach and intestines, a portion of it passes through the membranes of the lungs’ alveoli into the air. The concentration in the air correlates with the blood alcohol concentration at a ratio of 2100:1[iii].

Consent Dilemma:

In Los Angeles or Pasadena, consenting to a PAS test is generally voluntary for drivers detained in a DUI scenario[iv]. However, the officer is obligated to inform individuals of their right to refuse the PAS test before its administration[v]. Although voluntary, blowing into the PAS device doesn’t absolve individuals from providing breath, blood, or urine samples after a DUI arrest in Los Angeles or Pasadena.

Admissibility of PAS Results:

The numerical readings from the PAS device post-DUI arrest are likely admissible at the DMV admin per se (“APS”) hearing if provided by the officer. In a felony or misdemeanor DUI trial, admissibility depends on meeting foundational requirements by the Los Angeles District Attorney or Pasadena City Prosecutor[vi].

Strategic Defense by THE LEVENTHAL FIRM:

Specialized DUI attorneys, such as those at THE LEVENTHAL FIRM, possess the expertise to raise objections strategically, limiting the use of PAS readings, showcasing the device’s unreliability, and at times preventing PAS results from reaching the jury[vii]. The firm’s criminal defense lawyers are well-versed in both State and Federal regulations governing the maintenance and use of PAS devices in Los Angeles and Pasadena, ensuring the most robust DUI defense. For comprehensive insights into PAS tests, breath tests, blood tests, or any chemical test related to a DUI arrest in Los Angeles or Pasadena, contact our DUI experts.

Reference List:

[i] Cal VC 23612(h)

[ii] The Alco-Sensor IV is a common PAS device model used by Pasadena and Los Angeles DUI police. Various online retailers and pharmacies offer PAS devices for public purchase.

[iii] For a detailed scientific explanation, see [link to scientific paper]

[iv] Exceptions: If you are under 21 or on probation for DUI, you MUST consent to the PAS test. (See Cal VC 23136(c)(1) and Cal VC 23154)

[v] Cal VC 23612(i)

[vi] People v. Bury (1996) 41 Cal.App.4th 1194

[vii] For example, hearsay and due process issues frequently arise when California DUI officers fail to preserve the PAS device printouts.

 

California DUI Sentencing Part 3:  Felony DUI Convictions

In the realm of California DUIs, the landscape becomes more complex with the prospect of felony convictions. These can arise due to either qualifying prior DUI convictions or if an individual causes injury while driving under the influence.

DUIs with Prior Convictions

What seems like a “simple” DUI (VC 23152(a) or (b)) can escalate to a felony if there are three qualifying DUI convictions within a 10-year window surrounding the current offense. A fourth conviction under these circumstances is usually treated as a felony, with jail time served in the county jail instead of state prison. The penalty ranges from a minimum of 180 days to a maximum of 3 years, accompanied by fines ranging from $390 to $1000 [i] [ii].

A single felony conviction within the past 10 years for VC 23152, VC 23153, or PC 192(c)(1) in conjunction with a current/open VC 23152 or VC 23153 can also lead to felony charges [iii]. In cases of vehicular manslaughter while intoxicated [iv], regardless of timing, the current offense can be elevated to a felony. The consequences may involve formal probation or, if probation is not granted, a prison term of 16 months, 2 years, or 3 years [v].

DUIs Causing Death or Injury

When DUI results in injury, it often translates into a felony charge, especially if more than one person is harmed [vi].

DUI Causing Injury: VC section 23153, a “wobbler” offense, can be charged as a misdemeanor or a felony at the prosecutor’s discretion for a first or second offense. Felony convictions may lead to a state prison sentence of 16 months, 2 years, or 3 years. Fines range from $390 to $5000 if convicted of VC 23153 with one prior DUI conviction within the past 10 years. With two prior DUI convictions, a third-time DUI causing injury is a felony, punishable by 2, 3, or 4 years in state prison and a fine of $1,015-$5000. If the prosecution establishes great bodily injury and four or more DUI convictions in the 10 years surrounding the current offense, an additional 3-year consecutive prison term may be imposed [vii] [viii] [ix] [x] [xi].

Vehicular Manslaughter While Intoxicated: Vehicular manslaughter while intoxicated can be charged as a misdemeanor or a felony. A felony, involving gross negligence, incurs a state prison term of 4, 6, or 10 years. Certain prior convictions can elevate the sentence to 15-life [xii] [xiii].

Navigating felony DUI allegations and their corresponding sentencing provisions requires seasoned Pasadena and Los Angeles criminal defense attorneys. THE LEVENTHAL FIRM takes pride in its expert DUI lawyers with a wealth of experience in handling DUI cases and those involving bodily injury. If you or a loved one faces felony DUI charges, contact our Pasadena and Los Angeles criminal defense lawyers for comprehensive guidance.

Reference List:

[i] Cal VC 23550

[ii] Cal Penal Code 1170(h)

[iii] Cal VC 23550.5(a)

[iv] These include Cal Pen C 191.5(a), 191.5(b), or 192.5(a) – boating.

[v] Cal VC 23550.5(b)

[vi] One year for each victim, with a maximum of three additional years. Cal VC 23558

[vii] Cal VC 23554

[viii] Cal VC 23560

[ix] Cal VC 23566(a)

[x] GBI, or great bodily injury, is alleged by the prosecutor separately under Penal Code 12022.7.

[xi] Cal VC 23566(c)

[xii] See Penal Code 191.5(b), 191.5(c)(2). A range of sentences is available under California’s Realignment Statute, Penal Code 1170(h).

[xiii] Two prior convictions of 23152, or one prior conviction of 23153, one prior of 191.5, one prior of 192(c)(1) (vehicular manslaughter), one prior of 192.5(a) or (b) (boating manslaughter while intoxicated).

CALIFORNIA DUI CONVICTIONS: PART 1 – First Time DUI Sentencing

Introduction

A misdemeanor DUI conviction in California[i] can lead to a slew of consequences, from fines and jail time to classes, license suspension, and the installation of an ignition interlock device. Additionally, first-time DUI convictions trigger collateral repercussions, including court fees, DMV complications, increased insurance costs, and the financial burden of mandatory classes[ii].

First-Time DUI Sentencing

For a first-time DUI in California, the maximum sentence is 6 months in jail and a base fine of $390 (plus penalties and assessments, which significantly inflate the total). Generally, a Los Angeles County judge will grant probation for three years, subject to specific conditions:

– Obey all laws

– Do not drive with any amount of alcohol in your blood

– Consent to all chemical tests, including the PAS test

Other probation conditions may involve:

1. Fines

   – The base fine ranges from $390-$1000 for a first DUI conviction.

   – Assessments increase the fine to around 5 times the base amount imposed by the judge.

   – Payment can be made in installments, and community labor is an alternative at a rate of one day for every $125 of the base fine.

2. Jail Time

   – The judge may but is not required to, impose a 48-hour county jail sentence for a first-time DUI offense[iii]. Jail time is rare in Los Angeles County for first-time DUIs.

3. Alcohol Treatment Classes

   – The required program (AB-541) for first DUI offenders is three months long.

   – Consists of 30 hours of classes, including group meetings, AA meetings, and individual counseling sessions.

   – Charges enrollment and attendance fees, with potential fee reduction or waiver for those unable to pay.

4. Alcohol Education Classes

   – Attendance at the MADD Victim Impact Panel[iv] or the Hospital and Morgue (HAM) program may be ordered, depending on circumstances.

   – Program fees are $40 each, with the MADD panel lasting approximately 2.5 hours and the HAM program requiring 8 hours, split into two 4-hour sessions.

   – The HAM program involves travel to a Los Angeles County ER department and the Morgue, requiring participants to write an essay about their experiences[v].

5. California Driver’s License Suspension

   – The court may order a separate driver’s license suspension, reported to the DMV, which will suspend the license upon receiving notice of the conviction from the court.

6. Ignition Interlock Device (IID)

   – The court may order IID installation after a first DUI conviction[vi].

   – More likely if the BAC is over 0.15% or there was an alleged chemical test refusal.

   – The maximum installation period is three years, with separate DMV requirements for IID installation[vii].

   – DMV mandates IID installation for 5 months under VC 23152 and 12 months under VC 23153 after a first DUI conviction in Los Angeles County[viii].

   – Income-based discounts are available if your income is less than three times the federal poverty level[ix].

Standard Plea Bargain

The “standard” plea bargain for a first-time DUI in Los Angeles typically involves 36 months of court-supervised probation, a $390 fine plus penalty assessments (or 3 days community labor), and a 3-month series of alcohol education classes (AB-541 program). Cases with high blood alcohol levels, chemical test refusal, or accidents may incur additional penalties, including more classes and higher fines.

Conclusion

While many may believe first-time DUI cases are unwinnable, our experienced Los Angeles and Pasadena DUI attorneys know otherwise. A conviction is not inevitable, and fighting DUI charges is crucial. The sentence for a first-time DUI demands a significant investment of time and money, leading to hardship in your life. For personalized assistance and guidance, contact THE LEVENTHAL FIRM today if you or a loved one is facing first-time DUI charges.

Upcoming Topics:

Stay tuned for future installments covering more intricate DUI sentencing, punishment, and probationary conditions, including DUI prior offenses, special allegations, and DUI felony charges, such as DUI with bodily injury.

Reference List:

[i] VC 23152, VC 23153

[ii] www.chp.ca.gov/Programs-Services/Programs/Impaired-Driver-Enforcement-Programs

[iii] VC 23536(a), VC 23538(a)(1)

[iv] http://www.madd.org/local-offices/ca/los-angeles/victim-impact-panels/

[v] https://volcenter.org/hospital-and-morgue-program

[vi] Cal Vehicle Code Section 23575(a)

[vii] Cal Vehicle Code Section 23573

[viii] VC 23700(a)(7)(A)(i) and VC 23700(a)(7)(B)(i)

[ix] VC 23700(b)(1)(A) et seq.

DUI SOBRIETY CHECKPOINTS

Are Sobriety Checkpoints Legal?

Sobriety checkpoints, akin to border checkpoints, have been deemed legal under specific circumstances by the Supreme Court[i]. However, these DUI checkpoints are considered seizures and must align with Fourth Amendment requirements. Unlike illegal dragnets, sobriety checkpoints are established explicitly to deter impaired driving. The California Supreme Court has outlined an 8-factor test to determine the legality of a sobriety checkpoint[ii]:

– Did police personnel decide the location and procedures for the DUI checkpoint?

– Was there a neutral formula for determining which cars were stopped? (e.g., every 4th car)

– Was the DUI checkpoint maintained safely, with proper signs, signals, and lighting?

– Was the checkpoint located on roads with a high incidence of alcohol-related incidents?

– Was the time and duration of the DUI checkpoint reasonable?

– Was it apparent to drivers that the checkpoint was official, with the option to turn off?

– Did the checkpoint minimize the average time each motorist was detained?

– Was there advance notice to the public about the checkpoint’s time and location?

In misdemeanor or felony DUI cases involving a sobriety checkpoint, prosecutors must present evidence supporting each of these eight factors. Despite their purpose, sobriety checkpoints have been criticized for financial gain and racial profiling[iii][iv]. Government funding supports many Los Angeles DUI checkpoints, mandated by traffic safety grants[v]. These grants require police agencies to conduct “high-visibility enforcement efforts,” encompassing sobriety checkpoints and saturation patrols[vi].

Your Rights at a DUI Checkpoint

Most Los Angeles DUI checkpoints are visible, allowing drivers to choose alternate routes. If you enter, you must stop and submit to inspection[vii]. Your rights during a sobriety checkpoint mirror those during any traffic stop. While you must provide your license or registration upon request, you can refuse to answer police questions unrelated to the checkpoint’s purpose. It is illegal for officers to interrogate you about non-relevant matters[viii]. You have the right to decline field sobriety tests and refuse a search at a DUI checkpoint. While you can refuse the handheld PAS (Preliminary Alcohol Screening) device, California’s implied consent law mandates blood-alcohol testing upon DUI arrest[ix]. You also have the right to request a chemical test of your blood or breath[x].

Finding Police Checkpoints Tonight

Most California police departments announce DUI checkpoint locations in advance through press releases, local newspapers, neighborhood websites, and services like Nixle. Police department websites under “news” or “press releases” also provide information. For instance, the LAPD publicizes Los Angeles sobriety checkpoints at lapdonline.org/newsrooms.

If you’ve been arrested at a DUI checkpoint or face charges from police conduct near one, contact THE LEVENTHAL FIRM. Our skilled criminal defense lawyers challenge the prosecution to prove the checkpoint’s legality, advocating for the dismissal of your misdemeanor or felony DUI.

Reference List:

[i] Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444

[ii] Ingersoll v. Palmer (1987) 43 Cal.3d 1321

[iii] http://californiawatch.org/public-safety/car-seizures-dui-checkpoints-prove-profitable-cities-raise-legal-questions

[iv] California Government Code 12525.5 requires police to report data on all traffic stops, beginning April 1, 2019, for large police agencies, to prevent racial profiling.

[v] [For a list of grant recipients, amounts, and conditions of the grant, see the OTS annual Highway Safety Plan publication. 2016 HSP can be found here.

[vi] CFR 1300.23

[vii] VC 2814.2(a)

[viii] People v Valenzuela (1994) 28 CA4th 817, 826

[ix] VC 23612

[x] VC 23612(d)(1)

Violating VC 23152 and VC 23153 (drunk driving, driving under the influence) extends beyond traditional vehicles [i]. Common sense and the law dictate that self-propelled or motor vehicles [ii], such as motor trucks, golf carts, motorcycles, and snowmobiles, should not be operated under the influence. However, California’s DUI laws have a broader reach, encompassing all vehicles, regardless of motorization.

DUI Bicycle

Is operating a bicycle under the influence unlawful? YES. Despite California Vehicle Code 670 excluding vehicles moved exclusively by human power, the Vehicle Code specifies that cyclists, including those on electric bicycles [iii], are subject to all Rules of the Road, including DUI provisions [iv]. The penalty for DUI on a bicycle is a $250 fine [v], with a one-year driver’s license suspension for offenders aged 13-21 [vi].

DUI Horse

DUI on a horse? NO. However, DUI on a horse-drawn carriage? POSSIBLY. Horses, as living beings, are not classified as “devices,” and those riding them fall under separate traffic categories from vehicles [vii]. While VC 21050 subjects horse riders to road rules, it lacks inclusive language regarding DUI.

DUI Wheelchairs

What about wheelchairs? NO. Pedestrians, including wheelchair users, are not subject to DUI laws [viii]. Segways, hoverboards, and similar devices also fall under the pedestrian category [ix].

DUI Boating

DUI Boating, or BUI – YES. California Harbors and Navigation Code section 655 prohibits operating any “vessel,” waterskis, or similar devices under the influence, with a BAC over 0.08%. The law applies to non-recreational boats with a BAC of over 0.04%, covering kayaks, rowboats, and sailboats [x].

DUI Flying – YES. Operating an aircraft [xi] or parachuting “for sport” under the influence is unlawful. The legal BAC limit is 0.04%, applicable to flying in the air, on water, or the ground [xii][xiii]. Drones or remote-controlled flying objects may not be considered “aircraft.”

For unique DUI cases, from boating to flying, contact THE LEVENTHAL FIRM. Know your rights, stay safe, and consult our expert DUI and BUI lawyers.

Reference List:

[i] VC 670: A “vehicle” is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

[ii] VC 415(a)

[iii] VC 312.5

[iv] VC 21200

[v] VC 21200

[vi] VC 21200.5, 13202.5

[vii] VC 620

[viii] VC 467 (b)

[ix] VC 467(a)(2)

[x] Punishment for BUI is found in California Harbors & Navigation Code section 668

[xi] Cal Public Utilities Code Section 21012: “Aircraft” means any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation.

[xii] Cal Public Utilities Code Section 21407.1(a)

[xiii] Cal Public Utilities Code Section 21407.1(b)

With years of experience handling countless DUI cases, my encounters in the legal arena have crystallized a consistent approach for individuals faced with a DUI stop. While other lawyers may offer differing opinions, I’ve distilled key insights on what you should do—or refrain from doing—when pulled over for DUI.

Phase One – The Point of Contact

Picture this: You’ve been pulled over, and the police officer is at your window, firing questions about your alcohol consumption or potential drug use. Despite Miranda rights not being applicable at this stage (Berkemer v. McCarty, 468 U.S. 420 (1984)), you’re not obligated to provide self-incriminating information. Maintain respect and kindness, and say something like, “Sir, I understand you’re doing your job, and I appreciate your efforts to keep our roads safe. Respectfully, I prefer not to answer these questions. I’m willing to cooperate with other aspects of your investigation.”

Phase Two – The Field Sobriety Exercises (FSTs)

After attempting to establish a drinking pattern, the officer may instruct you to perform field sobriety exercises and blow into a preliminary alcohol screening or preliminary breath test device (PAS or PBT). Vehicle code section 23612(h) and (i) afford the right to refuse FSTs and PAS (unless on probation or under 21), a right the officer is supposed to disclose but often doesn’t. Politely assert your right by saying, “Sir, respectfully, I appreciate your diligence, but kindly, I choose not to do the FSTs and PAS. Thank you.” Following this, the officer may proceed with an arrest.

Phase Three – The Station House or Hospital (Breath or Blood?)

At the station, you face a choice: another breath test or a blood test. While station house (or hospital) tests are mandatory and refusing them carries administrative penalties, the question arises: breath or blood? If uncertain about your blood alcohol content, opt for breath. If confident you’re under the limit, choose the blood test. The breath test’s reliance on a standardized breath-to-blood partition ratio introduces variability, making the blood test, which directly analyzes blood alcohol content, a more accurate choice. Ideally, at this stage, the officer should possess zero drinking or use pattern evidence, zero FSTs, and zero PBTs. Understanding these phases can significantly impact the outcome of your DUI case.