Every day, dozens of lives are lost because of an avoidable decision: driving under the influence (DUI). It is not a simple mistake. It is a serious legal and personal event that can threaten your liberty, finances, and future. A DUI arrest often leads to a series of harsh penalties, including the automatic suspension of your license, mandatory ignition interlock use, substantial fines, and possible imprisonment.
The criminal court pathway is complex, involving challenging toxicology evidence and handling DMV administrative hearings, which begin immediately after your arrest. You need a DUI attorney who can offer a strategic defense to aggressively defend your rights.
Never leave your future to chance. When you are charged with DUI in El Cajon, or a loved one is, contact the San Diego DUI Attorney immediately for confidential representation.
Blood Alcohol Concentration (BAC) and Impairment
The conviction for driving under the influence (DUI) depends on two theories, outlined in Vehicle Code (VC) subsections 23152(a) and 23152(b). Understanding these differences, along with how alcohol is absorbed, is essential to building a DUI defense.
The most recognizable one is the per se limit, which is enforced in VC 23152(b). Under this rule, it is illegal to drive with a blood alcohol concentration (BAC) of 0.08 % or higher. “Per se” means the prosecution does not need to prove actual impairment, only that the driver’s BAC was 0.08 % or higher at the time of driving.
A BAC of 0.08 % is the legal threshold for a per se DUI violation. The limit is 0.04% for commercial drivers, and zero for drivers under 21 years of age.
The second basis for which you can be found guilty of DUI is the impairment theory as provided by VC 23152(a). Under this section, it becomes unlawful to drive when intoxicated by any alcoholic drink. Importantly, the charge is not dependent on a BAC of 0.08% or more.
Under VC 23152(a), prosecutors must show that alcohol impaired your physical or mental abilities to the extent that you could no longer operate a vehicle with the care of a sober person. Although you may be found not guilty when the BAC is 0.05%, 0.06%, and 0.07%, it is possible to be convicted as long as there is evidence of impaired driving, like weaving, speeding, and failing field sobriety tests. This standard emphasizes the fact that legal intoxication is not necessarily a condition to obtain a conviction of DUI.
Consumption of alcohol is not an event, but a process. After alcohol is consumed, it takes time, usually 30 to 90 minutes, for it to be absorbed from the stomach and intestines into the bloodstream, where BAC reaches its peak.
When you drink and are stopped on the absorption stage, your BAC could still increase. A chemical test taken later may show a BAC of 0.08% or higher, even if the BAC was lower at the time of driving. Nonetheless, an El Cajon DUI defense attorney could claim that you had a lower BAC than the legal 0.08% limit when you were driving.
VC 23152(b) can be contested in case your attorney manages to demonstrate that your BAC was under the per se limit at the time when you were driving the vehicle. The prosecution is then left only to apply the difficult-to-prove impairment theory of VC 23152(a).
The “Pink Sheet” and the DMV Admin Per Se (APS) Hearing in El Cajon
As soon as you are arrested for a DUI in El Cajon, two legal proceedings begin: a criminal case in court and an administrative case with the Department of Motor Vehicles (DMV). It is critical to understand this two-step process, which begins with the issuance of the pink DMV form (DS-367), provided to you by the arresting officer.
The 10-day rule is a crucial aspect of a DUI arrest. The pink DMV form serves as both a temporary driver’s license (valid for 30 days) and a formal Notice of Suspension. You can waive the right to contest the suspension by failing to do so within ten (10) calendar days after being notified by contacting the Driver Safety Office (DSO) of the DMV. Missing this deadline results in an automatic four-month driver’s license suspension, which begins 31 days after the date of arrest.
It is important to know that DMV hearings and criminal court cases are two different cases.
- The DMV hearing (administrative) — This hearing deals with only three particular matters: whether the officer had probable cause to stop you, whether you were under arrest, and whether you were operating with a BAC of 0.08% or more (or refused a chemical test). The burden of proof presented by the DMV is extremely low (preponderance of the evidence).
- Criminal Court (Judicial) — The criminal court case determines whether you are guilty of the DUI charges (VC 23152(a) and 23152(b)). The burden of proof in criminal court is much higher (beyond a reasonable doubt).
Winning the DMV hearing does not dismiss your criminal case, and entering a guilty verdict in the criminal court does not necessarily solve your license suspension with the DMV. Each matter must be handled separately.
The attorney will also request a stay of suspension when he/she calls the DMV during the 10-day period to set the APS hearing. When a stay is granted, the license suspension is temporarily paused. This will enable you to continue driving legally until the APS hearing is determined, which can take weeks or months. This stay is one of the essentials to preserving your ability to drive until the preparation of your case.
Implied Consent Law and Refusal Enhancements (VC 23612)
Driving a motor vehicle on the public roads is an act that has an implicit and legally binding condition referred to as the implied consent law, which is under the Vehicle Code (VC 23612).
According to this law, when you are properly arrested on suspicion of driving under the influence (DUI), you are deemed to have already agreed to cooperate by giving a chemical test of your blood or breath to determine your blood alcohol concentration (BAC).
When you are arrested, you are typically offered the choice of a breath test or a blood test. However, an officer could require a blood test if he/she suspects drug impairment. Nevertheless, it is not the decision of whether to be tested, but rather the decision of which test to take.
Refusing to submit to a post-arrest chemical test is a separate offense that can result in penalties more severe than a standard DUI conviction:
- Mandatory 1-year (first time) “hard” suspension — A first-time refusal will lead to an automatic, one-year mandatory DMV suspension of your driving privilege. Most importantly, at this stage, you cannot have a limited license to access work, school, or court-ordered programs. This is referred to as a hard suspension.
- Harsher criminal court consequences — A refusal is a sentencing enhancement in your criminal case. In the event of conviction of the underlying DUI, the refusal will impose mandatory, consecutive jail time (for example, 48 hours for a first offense), and you must undergo a longer, more costly DUI school.
- Refusal as evidence of guilt — The prosecution may argue that your refusal shows a consciousness of guilt and that you refused because you knew you were impaired.
Although there is nothing wrong with refusing, law enforcement is not bound to honor the refusal. After the U.S. Supreme Court decision of 2013, Missouri v. McNeely, officers are generally not authorized to perform a warrantless, non-consensual blood draw based on the fact that alcohol dissipates with time.
Instead, by refusing to consent to the chemical test, police officers may immediately seek a McNeely warrant (a search warrant to have blood samples). Because judges are available 24/7 to sign these warrants electronically, the process is speedy. In the event a warrant is granted, the officers are entitled to take a blood sample forcibly.
Importantly, even if police obtain a forced blood sample, you will still face the mandatory refusal-based license suspension and the increased penalties associated with the refusal. The refusal triggers a refusal penalty, whether a sample is finally obtained or not.
The Unique Plea Bargain of Wet Reckless: California (VC 23103.5)
“Wet reckless” is an informal term for a strategic plea bargain codified under Vehicle Code (VC) 23103.5. It is not an offense that will result in your arrest and later charge, but rather one that is negotiated from an original DUI count under VC 23152. In the case where you are found guilty of alcohol-related reckless driving {VC 23103}, the court will reflect this by a note in the records of conviction, which is then referred to as wet. This plea is typically considered when the prosecution’s evidence is weak, for example, borderline BAC, questionable traffic stops, or unreliable testing.
In the case of a first-time offender, there is a combination of benefits based on a resulting conviction of wet reckless as compared to a complete DUI conviction:
- Light fines and fees — The amount of required court fines and penalty evaluations is typically lower compared to a typical DUI
- Shorter DUI school — The mandated period of alcohol education is much less than it should be, a minimum of three months. It is sometimes only six weeks
- Reduced probation — The probation phase is often shortened from the three to five years assigned to someone with a DUI to either one or two years
- No mandatory jail time — While first-time DUIs rarely result in jail, wet reckless convictions make jail time even less likely and reduce maximum exposure
- Reduced Stigma — On a background check, the conviction is listed as reckless driving involving alcohol, which is usually less stigmatized than a driving under the influence conviction would have been
- No Automatic Court Suspension — A wet reckless conviction does not automatically trigger a court-ordered license suspension. However, the DMV may still impose an administrative suspension based on the original arrest.
Despite its short-term benefits, wet reckless carries a significant long-term drawback. A wet reckless conviction is a priority under the provisions of VC 23103.5. This means that in the event of an arrest and conviction of a future DUI within ten years of the wet reckless plea, the latter DUI will be considered a second (or subsequent) offense. This significantly increases the penalties for the later DUI, including:
- Mandatory jail time
- Increased time of license suspension
- More intensive, more costly DUI school programs
Hence, a wet reckless is a good quick-fix defense mechanism, but this serves as a red flag on your record for the next decade.
Penalties for a First-Time DUI Conviction
A first-time DUI conviction, typically under Vehicle Code (VC) 23152, can result in significant and life-altering penalties. To assess its risks, it is essential to recognize that it is not merely a simple traffic ticket, but a criminal misdemeanor conviction with non-negotiable penalties that can impact finances, freedom, and mobility for several years.
Probation and Financial Burdens
The legal implications begin with the criminal court sentence. You are usually put under three to five years of informal (summary) probation, where you are required to follow rigorous requirements like being sober and undergoing chemical testing if arrested again. Although the legal maximum is six months in county jail, the actual sentence is often waived or converted to alternatives like work release. This remains the case unless aggravating factors exist, for example, high BAC, refusal to take a chemical test, or involvement in an accident involving injury.
Nevertheless, fines are substantial. Base court fines are between $390 and $1,000. However, the total financial burden is far over $2,000, usually $4,000 to $5,000, including mandatory state and county court evaluation charges and additional fees.
DUI School, SR-22, and IID
The most short-term and disruptive punishments involve driving privileges. All first-time offenders are required to undergo an alcohol court-administered education program. This usually comprises the AB 541 Program, which is a 3-month (30-hour) DUI school. The program may take a considerable amount of time when the level of the BAC is higher, or the allegation of refusal is made.
Moreover, most offenders must pay a fee for SR-22 insurance as evidence of financial responsibility to be reinstated to drive, and the insurance must be maintained for three years, typically leading to much higher insurance premiums. Furthermore, the law mandates the installation of an Ignition Interlock Device (IID) for a period of at least six months to one year for those who wish to drive during their license restriction period. This imposes an additional cost of mandatory monthly maintenance and installation.
First-time DUI sentences are both preventive and punitive in nature. The combination of probation, financial obligations, and restricted driving privileges (DUI school, IID, SR-22) creates a high-risk record that can impact employment, travel, and personal freedom.
Aggravating Factors that Could Result in Sentencing Enhancements
Besides the usual punishments, the court has the responsibility to impose mandatory improvements in cases where definite aggravating aspects are found. All these elements transform an otherwise simple first-time offense into an aggravated DUI and make the sentence much more severe. It usually demands an immediate jail term.
- Excessive speed (VC 23582) — This is among the worst aspects. In the situation where the defendant was recklessly driving at a speed exceeding by at least 30 mph, or more, than the posted speed on a freeway or 20 mph on a surface street. The court could impose an extra and compulsory 60-day jail sentence within the county. This is the consecutive service of the term, which cannot usually be substituted for other sentencing.
- High BAC VC 23578 — The degree of drunkenness triggers more punishments. A BAC of 0.15 % or above results in an enhancement, which generally causes an increase in the length of the DUI school program (usually 6 or 9 months as compared to 3). Increased fines and even jail time are among the additional penalties that result from a BAC of 0.20% or higher.
- Denial to submit to chemical test — The denial of taking a legally requested breath or blood test after arrest causes a one-year non-negotiable mandatory suspension of the driving privilege by the DMV. The refusal alone can also be enhanced with a concurrent jail sentence by the court.
- Child endangerment (PC 273a) — Driving under the influence and knowing the passenger is under the age of 14 is a separate and serious misdemeanor or felony. Even in a first DUI, this improvement is a mandatory 48-hour consecutive jail sentence, which can be applied as child endangerment in Penal Code (PC) 273a.
- Below 21 — There is a zero-tolerance policy for drivers under 21 years. A driver with a BAC of at least 0.01% but less than 0.08% will have his/her DMV license suspended for one year, regardless of whether they face criminal prosecution for the 0.08% point DUI charge.
The combined effect of probation, financial obligations, and restricted driving privileges (DUI school, IID, SR-22) creates a high-risk record. Aggravating factors may also lead to non-waivable jail time, making the conviction significantly harsher.
Find an El Cajon DUI Attorney Near Me
The path following a DUI charge is fraught with anxiety, life-altering penalties, and complex legal challenges. Your current choice of legal assistance will impact your driving license, financial stability, and your future right to move freely.
When you or your loved one is charged with DUI, call a San Diego DUI Attorney and have a confidential case assessment. Our El Cajon DUI attorneys are committed to delivering the vigorous and seasoned defense that is required to seek the most preferred outcome for your case. Contact us at 619-535-7150.
