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An arrest for DUI might be labeled a misdemeanor, but it is not a walk in the park. Misdemeanors are not like “jay-walking” infractions, and they can carry jail time, loss of driving privileges, and damage your permanent record.

If you have been arrested for DUI, you should contact an experienced Driving Under the Influence – Driving While Intoxicated defense lawyer right away to protect your rights. At Tully & Weiss, our DUI – DWI attorneys have been aggressively and successfully defending people in Driving While Intoxicated and Driving Under the Influence cases for 20 years in California.

Whether you failed a sobriety test, refused a chemical test, or suspect the test was administered incorrectly, we can help.  Alcohol, cannabis, medications, or nothing at all? On this page you will find information about the DUI process, tips for dealing with the aftermath, and help you get through this difficult time.

This is only a general legal outline and is not intended to substitute for legal counsel as all cases can vary depending on the specific facts of your case. It is highly recommended that you speak with a qualified attorney right away such as our DUI attorneys at Tully & Weiss.

WHAT TO KNOW ABOUT A California DUI ARREST:

• California DUI and DWI laws are among the country's toughest;
• Drunk driving, driving while intoxicated (DWI), and driving under the influence (DUI) convictions can have serious consequences including loss of your drivers license, potential loss of freedom with jail time, problems with job applications, red flags on background checks, potential loss of a professional license, skyrocketing insurance rates, damage to your credit rating, as well as social and family problems;
• If your civil rights were violated in your arrest or if there are flaws in the evidence or police procedure it is possible to get the charge dismissed altogether;
• There is always a strong defense strategy for beating or mitigating DUI and DWI cases if you begin soon after being charged, even if the breathalyzer or other evidence seem overwhelming.

Whether this is your first charge or if you have a record of prior offenses, it is important to talk to the experienced DUI – DWI lawyers at Tully & Weiss immediately to preserve your rights.

Being arrested for DUI can be scary and confusing. Our goal is to help you understand your rights, the procedures, and possible defenses and outcomes for your case. This video explains the misdemeanor process in detail. Below we look at specific DUI defenses and the procedure from arrest, through temporary licenses, to trial or resolution. Tully & Weiss has gone to trial representing defendants all over California. Defending cases large and small, right here in Martinez and Contra Costa, as well as from LA to Shasta. Our firm's success at criminal defense tells of our proactive approach to helping you make sure your rights are protected and the process is not abused by prosecutors. If you are concerned about how to fight a DUI or impaired driving charge, read about the procedures here, and call us for an aggressive defense of your liberty.

What are the Penalties for a DUI conviction in California?

The first thing that you need to know about a DUI case is that, once you are arrested, you have to answer to two different entities, the courts and the DMV. In court, you will have to battle over fines, fees, potential jail time, and the long term effect of a conviction on your record. At the DMV, you'll have to battle over whether or not your license gets suspended and, if so, under what conditions and for how long.

The California DUI Court Process – What You Need To Know:

If you are ever convicted in court of a DUI, the penalties vary depending on many factors. These include, whether or not you have had a previous DUI, if there are injuries or damages, and the facts specific to your case. DUI penalties can range from to misdemeanor with trash pick-up (work alternative) to a serious felony which can include years in prison. Below are standard penalties that someone could face in a California criminal court for a DUI conviction. Remember though, no two cases are alike and every case is different depending upon the unique facts of that case. What's listed below is standard under the law but can be altered, modified, or dismissed depending on how your case goes.

 

Standard DUI

23152(a)[under the influence] or (b)[above .08% BAC]

0 priors – misdemeanor

2 days – 6 months in county jail
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

1 prior – misdemeanor

10 days – 1 year in county jail
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

2 priors – misdemeanor

120 days – 1 year in county jail
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

3 or more priors – can be charged as misdemeanor or felony, known as a “wobbler.”

Misdemeanor: 180 days – 1 year in county jail
Felony: 1 year 4 months – 2 years – 3 years in state prison
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

Note: in addition to the maximum statutory fines even without the additional fees and costs associated with probation, mandatory penalty assessments, court fees, and other costs as well as having one or more prior DUI conviction, will likely more than double the maximum fine in standard DUI cases.

DUI with injury

23153(a)[under the influence] or (b)[above .08% BAC ]

0 priors – can be charged as misdemeanor or felony, known as a “wobbler.”

Misdemeanor: 5 days – 1 year in county jail
Felony: 1 year 4 months – 2 years – 3 years in state prison
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

1 prior – can be charged as misdemeanor or felony, known as a “wobbler.”

Misdemeanor: 120 days – 1 year
Felony: 1 year 4 months – 2 years – 3 years in state prison
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

2 or more priors – felony

2 Years – 3 years – 4 years in state prison
A base fine of $390 and a maximum fine of $1000 plus fee assessments totaling roughly $2000

Note: in addition to the maximum statutory fines, mandatory penalty assessments, fees not related to probation, and other mandatory costs, as well as having one or more prior DUI conviction, may significantly increase the actual monetary penalty in DUI with injury cases. Your options will depend on a number of variables including your criminal history and specific circumstances.

How a DUI Conviction Can Affect Your Life in Other Ways Outside of Court

For many defendants, arrest and conviction for a DUI charge can lead to a number of secondary issues that can cause problems that linger for years. These secondary, or collateral, consequences often affect:

• Driver's license validity
• Child custody
• Much higher insurance rates
• Job Applications and Employment Outlook
• Red flags on background checks
• Potential loss of a professional license
• Damage credit rating
• Social problems
• Adoption eligibility
• College acceptance
• Student loan eligibility
• Firearm purchase eligibility
• Military eligibility
• Government assistance eligibility

California DUI criminal lawyer Joseph Tully's legal team will examine the details of your case and the prosecution's case against you. This is in order to build a customized, comprehensive defense strategy. Ensure your rights and future opportunities are protected from the harsh penalties that come with a DUI conviction.

What are the Strategies for Defending a DUI Charge?

If you have been arrested for DUI charge in the state of California, a number of defenses may be available to you. As a result, the defense your lawyer applies will depend upon your criminal history and the specific circumstances involved. Some of the available defenses your attorney may consider include:

• Disproving the charge: Each offense has a group of elements that define it. In criminal law, the state is required to prove each element of the crime beyond a reasonable doubt (meaning more than 50:50). Elements the prosecutor must prove include 1) you drove a motor vehicle, 2) under the influence of alcohol or another substance. Your defense attorney will attempt to show that one of the elements was not present.
• Illegal Search and Seizure: If the police gathered evidence during the search of your person, vehicle, or other property in an unconstitutional manner, or if police used an improperly drafted search warrant or searched areas outside the scope of the search warrant, the evidence may be suppressed and will not be eligible for use against you in court.
• Police Misconduct or Entrapment: If the police engage in inappropriate or illegal actions or use false arrest, intimidation, brutality, racial profiling or other abuses of power, or if a police officer induces a person to commit a criminal offense that the person would have otherwise been unlikely to commit, charges may be dismissed, convictions reversed, or sentences reduced.
• Prosecutorial Misconduct: If the prosecutor attempts to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment, charges may be dismissed, convictions reversed, or sentences reduced.
• Civil Rights Violations: Your attorney will not only defend your civil rights at trial, but research the incident and evidence to ensure your arrest is not based on personal bias.

Attorney Joseph Tully's meticulous preparation consistently uncovers reasonable doubt. The hard work starts by identifying every imperfection in the prosecutor's case, discrediting unreliable witnesses, excluding tainted evidence, spotlighting police misconduct and identifying legitimate alternative fact narratives. Superficial cases fail and justice is restored under Joseph's scrutiny and diligence. Check out his record.

Where in the Process Should I Contact an Attorney?

If you are arrested for a DUI-related offense, the first thing you need to do is to connect with an experienced criminal defense attorney. You have a limited amount of time to prepare your case, and police, prosecutors and investigators are already deep in their own case preparation.

The Tully and Weiss criminal defense team has represented many clients charged with DUI and has the knowledge and experience necessary to develop a powerful defense to prevent your arrest from affecting your future goals.

The California DMV Process – What You Need To Know:

In 1990, California implemented an immediate driver license suspension law for alcohol-impaired drivers, referred to as an “Administrative Per Se (APS)” license. The DMV is the agency that issues and revokes driving privileges. If you are arrested for DUI, the DMV will issue its own license suspension. This suspension is known as Admin Per Se suspension (APS) or simply administrative suspension. Upon arrest for a driving under the influence in California, the arresting officer will seize your California Driver License and send it to the DMV along with the arrest report. California's Administrative Per Se law immediately suspends or revokes your driver license upon your arrest for DUI. Once you are released from custody, the police should provide you a copy of DMV Form DS-367, “Age 21 and Older Administrative Per Se Suspension/Revocation Order and Temporary Driver License.” This form is usually a pink form, and the third page is the most important.

Page 3 of the DS-367 form has several purposes. First, it contains critical information regarding your arrest, including the law enforcement agency that arrested you and the date of your arrest. Next, it gives you notice that the DMV intends to suspend or revoke your driving privilege and that the process has begun. This document also acts as a temporary driver license and is valid for 30 days from the issue date, assuming that your regular driver license was valid at the time of your DUI arrest. You must carry the form with you, and it is subject to the same class and restrictions as your permanent driver license. If you do not take any action to protect your license, this temporary license will expire and your driver license will be automatically suspended or revoked at midnight 30 days from the issue date.

The DS-367 form also serves to inform you that you have 10 days from the receipt of the notice to request a hearing with the DMV. You can schedule a DMV hearing by calling the number provided on the form or by contacting your DMV Driver Safety Office. DSO locations include Bakersfield, City of Commerce, City of Orange, Covina, El Segundo, Oakland, Oxnard, Redding, Sacramento, San Bernadino, San Diego, and Van Nuys. The full list with addresses can be found online at https://www.dmv.ca.gov/portal/dmv/detail/fo/dsolistings

If you retain the services of the attorneys at Tully & Weiss to handle your DUI matter within 10 days of your arrest, we will contact the driver safety office to formally request a hearing with the DMV. Requesting a DMV hearing is vitally important because while the outcome of the hearing is pending, the suspension or revocation of your driver license will be stayed. This means that until the hearing takes place and the DMV renders a decision, you will still maintain your driver license beyond the initial 30 day temporary driver license provided by the DS-367 form. Additionally, a DMV hearing gives you the ability to fight any suspension or revocation as a result of the DUI. The issues to be resolved in a DMV hearing for a DUI are discussed below.

Even if you are unable to retain an attorney before the 10 days have elapsed, you should contact the DMV and schedule a hearing so that you do not waive any rights to the hearing. If you take this action to preserve your rights, once you retain an attorney, they should be able to step in and conduct the hearing on your behalf. Once you have successfully requested a DMV hearing, you will receive a notice of the hearing date and time from the DMV.

DMV Form DS 2304 is the DMV Notice of Hearing. This form notifies you of the Hearing Appointment Information, including whether it will be via telephone or in person (per you or your attorney's request), as well as the date, time, location, and the hearing officer who will be conducting the hearing.

This notice also provides that you will have the opportunity to challenge the evidence in the DMV's records (i.e. police reports, breath/blood test results, etc.) and to present information on your behalf. As noted in this notice, you are not required to have an attorney represent you, but you may have an attorney represent you at your own expense. At Tully & Weiss, we strongly encourage you to have an experienced DUI attorney represent you at the DMV hearing, as they will be able to identify the important issues and defenses and navigate the intricacies of the Vehicle Code and case law to work to avoid the consequences of a DUI to your driver license. We have years of experience conducting DMV hearings and have successfully stopped the DMV from suspending or revoking driver licenses for clients that have been
arrested for a DUI.

The usual issues to be resolved at a DMV hearing, known as an Administrative Per Se (APD) hearing, depending on the facts and circumstances of the arrest are as follows:

• A. If you took a chemical test:
  1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
  2. Were you lawfully detained while on DUI probation or lawfully arrested?
  3. Were you driving a motor vehicle when you had 0.01% BAC or more while on DUI probation; 0.04% BAC or more while driving a commercial vehicle; or 0.08% BAC or more while driving a noncommercial vehicle?

 B. If you refused or failed to complete a chemical test:

• 1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
  2. Were you lawfully detained while on DUI probation or lawfully arrested?
  3. Were you told that your driving privilege would be suspended or revoked for 1, 2, or 3 years if you refused to submit to or failed to complete a chemical test?
  4. Did you refuse to submit to, or fail to complete a chemical test or preliminary alcohol screening (PAS) test (while on DUI probation) after being requested to do so by a peace officer?

An experienced DUI attorney like those at Tully & Weiss will be able to examine your case to identify any defenses that can be raised at an APS hearing to help save your license. In addition to the Notice of Hearing, you will also receive a DS 2030A Form, a Temporary License from the DMV.

The Temporary License includes your information as well as the reason for its issuance – in these cases, a pending APS hearing (“Admin Per Se Hearing Pending”) The temporary license should state the dates through which it is valid, and informs you that the suspension taken against your driving privilege due to your DUI arrest is stayed (that is, delayed) pending the outcome of the hearing. So until the DMV hearing takes place and the DMV issues its decision, the temporary license is valid.

Once the DMV hearing takes place, the DMV will issue a decision within two weeks. If you were successful in the hearing in demonstrating that you did not drive under the influence, did not refuse a chemical test, or other issue subject to the hearing, you will receive DMV Form DS 2565, Order of Set Aside or Reinstatement.

This form informs you exactly what decision the DMV is making in setting aside their administrative proceeding or reinstating your license, and what, if any, other steps need to be taken in order to have your driving privileges reinstated.
However, if you are not successful at the DMV hearing, you will receive a different form. If the sole issue at the hearing was whether you were driving with a .08% BAC or above, you will receive a form titled, “Administrative Per Se – .08% BAC Notification of Findings and Decision.”

This notice informs you that stay of the suspension against your driving privilege has been ended, and that it will be re-imposed effective on a certain date, and that it will remain in effect until a further specific date.

This notice will also describe the specific findings of fact that the DMV makes based upon the evidence presented at the hearing, including a determination of probable cause, the objective symptoms of intoxication, reasonable cause, lawful arrest, the chemical test, and any other relevant findings. This notice will also provide you with information regarding the necessary steps that you must take before your driver license can be returned or issue to you after the
suspension has ended.

If the issue at the hearing was whether you refused to submit to a chemical test, you will receive a different notice titled, “Administrative Per Se – Refusal, Notification of Findings and Decision.”

This notice is similar to the previous notice, except it makes the explicit finding that you refused to submit to a chemical test pursuant to California's implied consent laws. Such a refusal may lead to different or additional penalties to a finding that you were driving under the influence, including the revocation, rather than the simple suspension, of your license.

Be aware that this is only a general legal outline and is not intended to substitute for legal counsel as all cases can vary depending on the specific facts of your case. It is highly recommended that you speak with a qualified attorney right away such as our DUI attorneys at Tully & Weiss.

Now What? After a DUI Hearing or a Conviction

The DMV impacts of losing the DMV Hearing can vary, depending on if you have had priors, if anybody was injured, or if there were drugs involved. Just because the DMV Hearing was not successful does not mean that you are out of options. 

What happens if I lose at a DMV DUI Hearing?

If it's a first time DUI, you'll have 3 options:

1. Get an Ignition Interlock Device. If you do this, you'll get your full driving privileges back but you'll have to have the IID in your car for the duration of your suspension. The suspension imposed for a first time DUI by the DMV is 4-months. You may apply for an IID immediately to cover the entirety of this 4-month suspension. This IID covered suspension will only count towards subsequent conviction suspension if the time actually overlaps, otherwise they are separate time periods. The cost of an IID typically costs between $60 and $90 a month with a usual installation cost of between $70 and $150. You can learn more about IID solutions here https://yourduisolutions.com/consultations.
2. Get an Employment/Treatment Program Restricted License. If you do this you will be allowed to drive to, from, and during employment, and to and from your DUI program. No other time or place. First, you must serve 30 days of your 4-month suspension, meaning not drive for 30 days. Then you will need to go the DMV with proof of insurance (SR-22), proof of signing up for driving safety classes (DUI school), and a $125 Administrative Per Se fee. This restricted license will last for up to 5 months. This Restricted License time does not count towards any credit if the DMV later suspends your license because you entered a plea or got convicted in court.
3. Do nothing and you'll have a hard suspension for 4-months. After you serve your full “hard” suspension, you'll be  eligible to get your driver's license back. This 4-month suspension will count towards any subsequent conviction suspension.

What happens if I lose at a DMV DUI Hearing and it's my 2nd, 3rd, or 4th DUI (second Driving Under the Influence offense)?

1. Get an Ignition Interlock Device. If you do this, you'll get your full driving privileges back but you'll have to have the IID in your car for the duration of your suspension. The suspension implemented for a second or subsequent DUI by the DMV is commonly 1 year. You may apply for an IID immediately to cover the entirety of this 1-year suspension. This period can get you credit towards your mandatory IID restriction period required if you plead or get convicted in court. To get your IID you will need to visit a DMV office with proof of signing up for DUI program classes, proof of insurance (SR 22), proof of IID installation, and a $125 fee.
2. Do nothing and you'll have a hard suspension for 1 year. After you serve your full “hard” suspension you'll be eligible to get your driver's license back, unless the judge in your criminal case has ordered a longer suspension. This hard suspension may count towards your conviction suspension.

The DMV Hearing almost always occurs well before the DUI criminal charge is resolved. This means you may go through the hearing process and completely resolve your suspension, or the installation of your IID, before the criminal case is completed. If you are convicted of a DUI charge, either through a plea bargain or after jury trial, there are separate DMV consequences. We will discuss those now.

What happens if I'm convicted in court of a 1st DUI?

If you are convicted of a DUI, the DMV will suspend your license for 6 or 10 months. While the suspension is usually 6 months, it can be increased to 10 if other circumstances are present, such as a BAC of greater than 0.20%. You may also be ordered by the judge to install an IID. 

If you are not ordered to install an IID, the option is available as a type of restricted license to allow for full driving privileges during your conviction suspension. This restriction requires that you visit a DMV office with proof of enrollment in your DUI program, proof of insurance (SR 22), proof of IID installation (DL 920), a $55 reissue fee, a $15 restriction fee, and an IID restriction fee. You will have this IID restriction until you meet all reinstatement requirements

You can also elect to get an Employment/Treatment Program restricted license that will allow you to drive to and from work and your DUI program. This requires a DMV appointment where you bring proof of enrollment in your DUI program, proof of insurance (SR 22), a $55 reissue fee, and a $15 restriction fee. This restriction will last for 12 months and until you meet all reinstatement requirements.

There is no mandatory IID time for a 1st DUI unless otherwise ordered by the court.

What happens if I'm convicted of a 2nd DUI?

If nobody was injured and you have no prior felony DUI conviction, then you will face a 2-year suspension. You can get your IID restricted license immediately upon suspension. However, if you elect not to get an IID restricted license during your suspension, once the 2-year suspension is done, you will be required to have an IID restricted license for another year. You will not be able to reinstate your driving privilege without the installation of this IID, even if the initial 2-year period is up. Therefore, it is more efficient to serve this 1 year of a restricted license during your initial suspension, as the two can occur simultaneously.

If nobody was injured but you have a prior felony DUI conviction, then you will face a 4-year revocation, and will be required to have an IID installed for either 3 years of that revocation, or an additional 3 years after this revocation period. 

What happens if I'm convicted of a 3rd DUI?

If nobody was injured, then you will face a 3-year suspension. You may get your IID restricted license as soon as this suspension begins. If you do not have an IID restricted license during this time, then after the 3 year suspension is up, you will be required to have an IID restricted license for another 2 years. You will not be able to reinstate your driving privilege without the installation of this IID, even if the initial 3-year suspension is up. 

What happens if I'm convicted of a 4th DUI?

If nobody was injured, then you will face a 4-year suspension. This suspension is immediately qualified for an IID restricted license. After this 4-year suspension is up, if you have not previously gotten a restricted license, you will be required to have an IID restricted license for another 3 years. You will not be able to reinstate your driving privilege without the installation of this IID, even if the initial 3-year suspension is up. ]

Next Steps for dealing with a DUI arrest in Martinez, Contra Costa, or anywhere in California?

Hopefully this general legal outline has helped you learn about the process and repercussions of a DUI or DWI arrest. This information is not a replacement for qualified legal advice from an attorney. Every case is different, and only a lawyer who has been engaged and has heard the circumstances of your case is in a position to offer counsel. Being arrested for DUI is a stressful process, and perhaps reading this page has answered some of your procedural questions and addressed some of your initial concerns. Please give us a call for help with your DUI case in Contra Costa if would like to talk to a Tully & Weiss attorney who can answer your in-depth questions and help protect your future.