An arrest for a Sacramento DUI is only the beginning of a long process. Under normal circumstances you will have to deal with the Criminal Court System and DMV.
If your case involves alcohol there may be a need to contact DMV's Drivers Safety Office within ten (10) calendar days of the date of the incident. If you miss this important deadline you may be cheating yourself out of the chance to save your license.
Check out our Sacramento DUI License Suspension Guide for a more in-depth understanding of how to approach DMV hearings. If your DUI arrest was for drugs rather than alcohol, DMV may not be involved in the beginning.
In this guide, longtime Sacramento DUI Attorney Denis White shares a road map for individuals who find themselves in the unfortunate position of being arrested for DUI.
Cops are looking for certain violations in order to stop you and check for alcohol impairment, like:
The first thing you should expect is a couple of casual questions like; do you know why I pulled you over? Or, have you been drinking? If you tell them you’ve been drinking or they come to that conclusion because of the smell of alcohol, you will probably be asked to exit the vehicle.
While you will need to give the officer your license, registration, insurance and perhaps confirm your name and date of birth, there isn’t much more you need to tell them. Unless you really are sober, trying to be clever in the way you answer the officer’s questions rarely works out.
Trying to have a nice conversation or being chatty with the police normally isn’t helpful either. There are two schools of thought on how to handle the situation. You can assert your rights and just give them basic information or you can cooperate. If you elect to assert your rights, there is a risk that you will be treated less than fairly in the reports, if a decision is made to arrest you for DUI.
Law enforcement will be preparing a report during and after arresting you and it will likely make you look bad to the prosecutor that is evaluating your case, and later, to the prosecutor that will be making an offer to settle the case in court. Whether it’s the attorney deciding what charges to file or the one making an offer to settle your case, what the arresting officer writes does make a difference.
The reason it’s important to consider how you handle the situation is because, while you have an absolute right to trial, very few cases actually make it that far. Reviewing the next section on Pre-Field Sobriety Test Questions is a good way to prepare for the possibility of being stopped. Of course, as I tell everyone I talk to, it’s easier to stay out of trouble than to get out of trouble.
Law enforcement frequently uses DUI checkpoints as a tool to prevent drunk driving in the community. We see this especially around holidays and at the time of major sporting events.
The number of drunk drivers actually caught while driving through check points is relatively small but the California Courts had this to say [in the 1987 case of Ingersoll v. Palmer];
“Common sense suggests that the effectiveness of sobriety checkpoints should be measured largely by the number of persons deterred from driving while intoxicated, not by the number of persons arrested. The People concede that the evidence in this record of deterrence is “tentative.”
Nevertheless, we have no difficulty in concluding that well publicized, properly placed and timed sobriety checkpoints will have a significant deterrent effect upon drunk driving, especially in view of the stiff penalties drunk drivers now face in this state. The idea is that, if the public is aware of them, they will deter individuals from driving drunk in the first place.”
The controlling case for DUI checkpoints in California is Ingersoll v. Palmer (1987) 43 Cal. 3d 1321, in which the California Supreme Court outlined eight factors that a court should consider in deciding whether the checkpoint meets the constitutional standard.
Bear in mind that any analysis of the constitutionality of a checkpoint requires a balance of the Ingersoll factors and an assessment of the reasonableness of these factors in relation to the search and /or seizure of the motorist at the checkpoint. Sometimes only a few of the Ingersoll factors may be present, yet still provide enough of a “balance” to make a DUI check point legal.
There is no perfect formula, but the information below provides a basic outline for the law in California that governs DUI checkpoint stops.
The following eight factors should be evaluated in determining the constitutionality of a California DUI checkpoint:
This means that a supervising officer should decide when, where and how the checkpoint will be run. This is to reduce the possibility of having arbitrary decisions made by the patrol officers working the checkpoint.
Patrol officers working checkpoints are not allowed to decide which specific vehicles to stop, unless the driver exhibits some obvious impairment. Absent this, a neutral formula should be in place for deciding which vehicles are stopped for questioning.
It could be every car, every other car, every third car, etc. That doesn’t mean that there can’t be a change but it should be pre-determined for instances like heavy traffic that would tend to make the overall delay unreasonable for passing motorists.
Safety precautions might include having the site be clearly visible to approaching motorists by making sure the site is well lit with safety cones to direct the vehicles. There should also be an adequate secondary place for officers to conduct a further investigation of drivers that exhibit impairment at the initial screening.
There should be records or statistics that support that the checkpoint is in area with a high number of DUI related arrests or accidents. It’s not enough to say there are lots of drunk drivers on a major holiday or on the day of a major sporting event.
A DUI checkpoint during the morning commute time would not be appropriate, whereas a checkpoint between 10:00pm and 2:00am in the same area might be.
The site should be well lit and include warning signs visible for some distance. There should also be marked patrol vehicles, flashing lights, and uniformed police officers. In other words, the motorists should be able to see that they are entering a DUI checkpoint.
Inconvenience to passing motorists is a consideration. If or when traffic backs up, the neutral formula used for deciding which vehicles to make contact with should be adjusted but the formula should be predetermined.
The actual contact by law enforcement should also be limited to just enough time for the officer to look for signs of impairment from alcohol or drugs. If the driver doesn’t exhibit any signs, the motorist should be permitted to pass without any further delay.
DUI checkpoints should be advertised in advance, since one of the objectives is deterrence. Law enforcement websites, news stations and newspapers are some of the more regular forms of advance notice.
Even though one of the major purposes of a DUI checkpoint is deterrence, the lack of advance publicity alone will not be enough to make the checkpoint unconstitutional.
There is normally a way to avoid driving through a DUI checkpoint. Remember that there may be roving patrols watching for people committing traffic infractions like illegal u-turns, etc. Still, law enforcement can’t pull you over for legally avoiding the checkpoint. They must have some reasonable suspicion or probable cause to make an enforcement stop.
Effective January 1, 2012, CA VC2814.2 (a) became law. It states, “A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop.”
Wouldn’t you like to have all the questions for a test you might have to take some day? If it were a normal college test, you’d be able to prepare without wasting a lot of time studying the wrong things and you’d have all your answers/responses ready before the teacher even handed out the test.
I’m going to give you all or at least most of the possible questions asked in a DUI investigation, so listen up. The investigation Interview page of the CHP202 contains all the normal questions. As I go through them, I’ll share some thoughts with you.
Do you know of anything mechanically wrong with your vehicle? If nothing is wrong with your vehicle then any bad driving observed might be linked to your impairment.
Are you sick or injured? Again, if nothing is wrong with you physically, then how you appear and how you do on field sobriety tests might be linked to impairment.
Are you diabetic or epileptic? Do you take insulin? If you suffer from one of these conditions the officer’s observations of dizziness, slurred speech or disorientation might not be from alcohol. A person might also show signs of fatigue, difficulty breathing, confusion or even be throwing up. There may be an unusual fruity acetone-like smell to the breath caused by ketoacidosis. The question is used to rule out any related medical conditions.
Do you have any physical impairments? In other words, are there any reasons you might not be able to perform any of the field sobriety tests.
When did you last sleep? How long? Being tired might provide another reason for your poor driving or performance on field sobriety tests.
When did you last eat? What did you eat? Food tends to slow the absorption of alcohol. Therefore, if you drink on a full stomach the alcohol takes longer to get into the blood. Instead of a sharp rise in your BAC, your blood alcohol level may follow more of a bell curve.
Where did you start driving? Where were you going? The answer might be used to prevent you from effectively making a case for a rising BAC defense. It could also show a greater degree of danger to others if you’ve been on the road for an extended period, etc.
Where were you stopped? It might show you to be unaware or confused of your whereabouts.
What have you been drinking? How much? Time started? Time stopped? These questions are important. If the number and type of drinks, over the time period you share don’t work with the BAC in your case, it suggests that you’ve lied to the officer. In DMV hearings and court, it’s always the same; if he/she lied to the officer why should we believe him/her now? So often, people with lower blood alcohol levels think they’re going to talk their way out of being arrested by trying to appear conscientious. Two beers a couple of hours ago isn’t very helpful to your cause if you just took a couple of shots over a short period of time, then hopped in your car and tried to get home before you’re in trouble with your significant other. You’ve effectively cheated yourself out of a simple last gulp defense. Play with a couple of online BAC calculators and see what your BAC might be, based on the type of alcohol and the time period it took you to consume it. You may be surprised.
If you're out drinking and want to estimate your BAC, Drinkfox.com has an online tool for you to use.
Location where you were drinking? If you just left a bar and were drinking close in time, your BAC may still be rising. If you were drinking far from the place you’re stopped, or more than an hour has past, your body is likely eliminating alcohol at a fairly constant rate of about .015 to .02 an hour.
Do you feel the effects of the drinks? Just say no! Yes or providing a number on a scale of 1-10 is never helpful.
Did you bump your head? If you have a head injury it may provide a defense to a refusal allegation at DMV.
Have you been drinking since the accident? This is to head off any "drink after drive" defense.
Are you under the care of a doctor or dentist? Have you taken any medicine or drugs? A yes answer to either of these questions might invite a blood test to see what’s in your system. A simple alcohol DUI defense case can turn into something worse. If there’s no obvious sign of drug use, you may just invite more problems by sharing too much. Remember that you can be prosecuted and convicted for driving under the influence of prescription medications as well as illegal drugs, if they impair you.
The rest of the form is reserved for the officer’s observations or what they term “Objective Signs of Impairment”, along with the time and type of chemical test(s) you’ve submitted to.
When you are first contacted by police, but before they have decided they have enough evidence to arrest you for DUI, they may ask you to perform field sobriety tests (FSTs). You DO NOT have to perform these exercises and there is no actual criminal or DMV penalty for not doing them
The downside to refusing the FSTs is the same as refusing to answer the officer’s Pre-Field Sobriety Test questions. You run the risk of having the reports written even less favorably than is fair. Before an arrest, police may also ask you to blow into a portable breath testing device in order to measure the percentage of alcohol in your blood. You DO NOT have to perform this test either (unless you are under 21 or are on DUI probation) and the police are supposed to tell you that it is voluntary by reading an advisement form.
Performing these tests before you have been arrested only provides the police with evidence that they will enter into their report and will be later used against you in court. There is a high likelihood that the police will elect to arrest you if you appear to be anywhere close to the legal limit, with or without FSTs. The police would simply arrest you and take you to jail based on what they call the “totality of the circumstances” and their belief that you are DUI. The DA may also treat your lawful right to decline answering questions or doing the field sobriety and breath tests as a sign of your guilt and then refuse to make you a reasonable offer to settle your case. What you do will be a judgment call that only you can make. If you decide to decline performing field sobriety tests and refuse to provide a breath sample on the preliminary alcohol screening (PAS) instrument, I suggest you first ask the officer if the tests are voluntary. If the officer agrees that they are voluntary and then you decline, it makes it more difficult for the DA to use this against you later. Hopefully, the questioning is captured by video and audio.
There are only three Standardized Field Sobriety Tests. The instructions and what law enforcement is supposed to record when grading them is included below. There are several non-Standardized field sobriety tests and a few are listed below.
Nystagmus is an involuntary jerking of the eyes that is seen in approximately 93% of the population when a person has been drinking or taking certain drugs. Nystagmus may also be caused by certain pathological disorders, which is why the police check pupil size, resting Nystagmus and tracking ability.
Individual needs to remove eyeglasses, if applicable.
Officer’s gun should be out of reach, and instructions should be given from a safe distance.
Suspect is then told;
The test begins by the officer holding the pen or stimulus 12-15 inches from suspect’s nose and slightly above eye level.
Then the officer checks for:
There are 3 possible clues in each eye and they are listed as items 4, 5 & 6 above. The decision point is at least 4 of the 6 possible clues.
If the test is done correctly and 4 or more clues are present, the studies say that it’s likely that a person’s BAC is .08% or more. The studies also state that by using these criteria this test is accurate 77% of the time.
The instructions for this test are fairly simple and should be as follows, with the officer giving a brief demonstration:
Start the test. If you put your foot on the ground the officer will instruct you to pick your foot up and keep counting from where you left off.
There are 4 possible clues and the decision point is at least 2 of 4. The actual clues the officer is looking for are:
The officer should only record a clue as 1, even if he sees a specific clue multiple times. The test should be terminated at 30 seconds. If the officer sees 2 or more clues, the test suggests the BAC is .08 or higher with about 65% accuracy.
The instructions for this test are fairly long and you are asked to stand in a position that is difficult to hold. The instructions should include demonstrations and are as follows:
Begin and count your first step from the heel to toe position as one.
There are 8 possible clues that the police are looking for. They are:
If a person exhibits 2 or more of the 8 possible clues, research indicates the BAC is .08 or more with 68% accuracy. The Walk and Turn test requires a designated straight line and should be conducted on a reasonably hard, dry level surface. The research indicates that people over 65 or with back, leg or inner ear problems had difficulty with this test and people with heels of more than 2” should be given the option to remove their shoes.
There are several other alternate Field Sobriety Tests (FSTs) that may be administered but even the CHP HPM70.4 Driving under the Influence Enforcement Manual suggests that they only be used if the Standardized Field Sobriety Tests (SFSTs) cannot be given.
Some of these tests are:
The instructions are normally to say the alphabet without singing it. I’ve also seen incidents where the officer has people write the alphabet. The officer is looking to see if you skip any letters.
There are other tests but they are given with less frequency and are probably not worth mentioning here.
Being arrested is never a pleasant experience. Some officers will treat you with a certain amount of respect while doing their jobs and others will not. The last thing you want to do is “flunk the attitude test” by giving the officer a bad time. This generally leads to poor treatment of you and sometimes a more harshly written police report. At the point you realize the police have made the decision to arrest you, try to calm down and go with the flow.
If police place you under arrest for DUI, California’s “implied consent law” law comes into play. The implied consent law says that when you drive a vehicle on California roads, you agree to consent to a chemical test if you are arrested for DUI. The implied consent law states that you must be told that you have the choice of chemical tests to measure the percentage of alcohol in your blood. These test options include a breath test or a blood test, and in certain instances, a urine test. Police are also required to tell you that you can refuse such tests, but that if you elect to do so that your driving privilege will be suspended by the Department of Motor Vehicles for specific periods of time and that your refusal can be used against you in criminal court. If you refuse this evidential test, the police will very likely get a judge to issue a warrant for a blood draw and will get the evidence anyway. Since about 2013, refusing the chemical test rarely works out for the arrestee and you can pretty much expect a one, two or three year suspension or revocation because of it, unless there is a defense. It’s impossible to give you a simple answer for which test to take, since there are many factors to be considered.
Each county has its own policies on whether people are released on their promise to appear for a future court date or whether they are required to post a bail bond. You will almost certainly have to post a bail bond if your case is a Felony. This may not be so if your DUI case is a Misdemeanor.
Sacramento County will almost always release people from custody on an individual’s promise to appear in court about three weeks after they are released from jail. This is called release on one’s own recognizance or as it is more commonly called, OR’d.
If you are arrested for a DUI and suffered one or more prior convictions in the past 10 years, you will almost certainly have to deal with the issue of bail at your first appearance in court. It’s a bad idea to bury your head in the sand and get ambushed in court. The amount of bail being ordered is not small and you will be taken into custody unless you resolve your case right then.
As a female who has not been put through “the system” before, the very idea of spending four days in the slammer was petrifying. I had spoken to a couple others who had done some time for similar reasons, but my one female source was vague, probably trying to keep me calm. The following is my personal opinion on what to expect when spending 4 days in RCCC.
First of all, make sure your ride home knows to check in with an ID at the small front office on your release date. You need to be claimed to be released. They will ship you downtown by taxi or bus if you do not have a ride, or your ride fails to check in.
When surrendering on your first night, check in just before your surrender time. Don’t bother getting there more than 10 minutes early. Of course, don’t even be one minute late, or you won’t get in. You will sit outside waiting for hours; you might want your ride to wait with you. In my case, no one else was surrendering at that time but Fridays have a lot of 6pm surrenders, so often there will be others waiting with you. At the front lobby, they take inventory of what you have, including clothes. Don’t bother bringing anything but your ID, surrender paperwork, and maybe some change for a phone call if for some reason they release you downtown. You cannot put money into commissary. One thing I remembered at the last minute was piercings and jewelry. You can’t wear it in, so take it all out/off at home and save yourself the trouble. They separate you from the male intakes and walk you to the female facility where you wait some more in a holding cell. While in the cell, I had a “trustee” (inmates working off time) ask for my clothing/shoe size. Expect a TB test, mug shot, and quick psych evaluation from the nurse. Don’t bring meds, unless you absolutely need them to survive the weekend. It’s a process that takes a full day to get set up with the nurse. [My attorney, Denis White, says it’s best to have him contact RCCC’s medical unit in advance and give them your prescription information to avoid problems] Probably the worst part of the stay is the embarrassing strip search. The officer is professional of course, but you will have to be naked for about 3 minutes in front of them. They will ask you to lift up your breasts and bend over and spread your cheeks. It’s a hands off search, and they go as fast as possible. You will be handed your new wardrobe, but you only get to wear a smock, underwear and shoes into the dorm. They slap a heavy plastic bracelet on you that has your picture, name, and X-Ref on it and secure it with a washer. A trustee will lead you to your room and point out various need-to-know places. The trustees are probably the best ones to ask questions to because they are working off their time and will be on their best behavior.
The dorms are separated by shirt color. You will be in the non-violent dorm/pink shirts. Yellow are the violent crimes. Purple are the trustees. There is hardly any interaction between the dorms. Each dorm has a “house mother.” She is an inmate as well, but she is also the one to go to for questions. She is probably getting bonus points from the jail for playing hostess. She will show you to your bunk, set you up with a mattress and a brief rundown. From check in to getting to my bunk was a 4 hour process. I was stressed and exhausted by then, so I pretty much went straight to sleep. The bathroom stalls have doors; the showers do not. However if you do shower, all the females use a blanket from their bedding and sling it over the shower so they have privacy. There is hot water, but it is a privilege that can be taken away if your dorm misbehaves. They give you a comb, a toothbrush, a small tube of toothpaste, 2 shampoo packs. The dorm has unlimited soap bars, toilet paper, and pads so there’s little hygiene problems to deal with in 4 days. You have to wash your clothes in the sink if you get them dirty, but with 2 bras, socks, underwear, shirts, pants and 1 thermal, you should be set for the weekend. I was told to keep my clothes under my mattress because they can get stolen. I had no problems with thievery, but I did see some girl have a melt down because someone stole her panties.
Most of the inmates are surprisingly welcoming for the most part. Don’t get me wrong, these girls are nuts. But they’ll leave you alone. Most are drug addicts or probation violators. Many are detoxing or busy trading commissary goods with each other to get their hair braided… and re-braided…over and over. People are always coming in and being released so there’s no need to feel embarrassed walking in in your little tie-dyed smock and blankets. There will be other weekenders as well, and in my case, we kind of stuck together. You’ll have a book shelf full of crappy Danielle Steele novels to read, and a TV that the house mother controls with an iron fist. My house mother was very approachable though and took into consideration what others wanted to watch. There is a yard as well. The yard and the TV are privileges that can be taken away.
As a weekender, you do not have the privileges that the long term inmates have, such as phone calls and commissary. If you get friendly enough with an inmate, they tend to be more than willing to help you use the phone. They are collect calls so it must be a land line. If you call a cell phone, it must be a 916 area code, and you get 1 free minute, then you get cut off. There are phones in the dorms that you can use at any time during daytime hours, as long as it hasn’t been taken away as a punishment.
The minutes pass like hours. It’s boring…so, so boring. I read until I was exhausted and then slept. The other inmates have classes and work assignments, so mornings are often quiet. Nights are extremely loud. Everyone is playing cards/dice/board games and screaming and gossiping. The correctional officers come in at various times and count inmates. You must be completely silent and on your bunk. Sometimes they need to see your face, so you must sit up and talk to them. Other times, you can just be lying down. The inmates have the hardest time shutting the heck up and this is mainly when a privilege gets revoked. You eat at 5:30AM, 11:30AM, and 3:30PM. You are funneled in/out of the mess hall and must be completely silent for “chow” time. They don’t let you pick where you want to sit either, so there’s no “You can’t sit here” issues. The food sucks. Lunch was almost always a bologna sandwich. I gave my food away a lot, and made some fast friends in doing so. The other inmates have food from their commissary, but you’ll be screwed if you get hungry after 3:30pm, so be prepared. The officers are always on the intercom shouting, loudly, instructions to inmates at ALL hours of the day and night. There are chores assigned to bunks and the house mother will let you know if you have any. You may have to scrub a toilet. It takes 5 minutes and you’ll be back on your bunk being bored in no time.
There are as many as 80 women in the dorm at a time so it’s basically like summer camp for the crazies. The officers aren’t pleasant, and do not want to talk to you, or anyone for that matter, but they know a weekender generally isn’t the everyday criminal they deal with. Some people were getting released a little early if their ride checked in early. I was not so lucky. It was intimidating my first night, but after that, everything just fell into place in a slow…slow routine of sleep and reading.
If this is of concern to you, give the Law Office of Denis White a call so that we can explain your options.
Following a DUI arrest, police will write a report about what happened and they will send a copy of the report to the district attorney’s office. The district attorney is the criminal prosecutor for the government. The district attorney’s office will decide which, if any, charges to file against you following your arrest.
The first criminal court appearance after an arrest for DUI is called an arraignment. There are many instances where a case won’t be filed on time. You can’t invoke your right to a speedy trial because the DA has up to one year to file charges in Misdemeanor cases. If you have posted a bail bond to get out of custody, keep your bondsman notified about what is going on with your case. If you are in custody, you must be taken to court within 3 court days.
In Sacramento County, court appearances are generally set about three weeks after the arrest date. If you elect to handle your case on your own, you may show up and be told to come back at a later date. The reason for not filing a case on time is generally because the lab results haven’t come back but it could also be that the DA is doing further investigation or waiting for reports from law enforcement.
If you do not have an attorney, the court may give you additional time to hire one or may appoint an attorney to represent you if you cannot afford one.
The court will also set a future court date in your case. This is often called a settlement conference. At a settlement conference, your attorney can discuss the case and possible settlement with the prosecutor. If you are not represented by an attorney, there really isn’t much negotiating.
If you are not able to agree with the district attorney about a fair settlement, you and your attorney may decide to file certain motions with the court. The most common is a motion to suppress evidence against you. If a motion to suppress evidence is granted by the judge, your case will usually be dismissed. This is generally because there will not be enough admissible evidence to convict you.
You have an absolute right to go to trial. We suggest that, in most instances, you should obtain all the available evidence before you commit to going to trial.
The Law Office of Denis White can advise you on which course of action is best for your particular situation.
Add 2 days for every point above .15
If a person is traveling 20 miles over the posted speed limit on a surface street or 30 miles an hour over the posted speed limit on the highway, 60 additional days will be added.
1st offense(2 days in jail per minor) 2nd offense (10 days in jail per minor) 3rd offense (30 days in jail per minor)
30 additional days of time
add 5 days for each stale prior
After a DUI arrest, the arresting officer will likely take your driver’s license and issue you a paper order of suspension and temporary driver’s license (Form DS367-pink in color). If you have an out of state license, it should not be taken. This doesn’t mean you don’t need to concern yourself with the potential loss of your privilege to drive in California and your home state may find out if it is one of the states included in the Interstate Compact Agreement.
The Driver’s License Compact Agreement applies to all states except for Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin. The agreement is used to share driver’s license and traffic violation information between the member states. If you live in any state that’s not listed above you can expect that they will find out about a DUI that occurred in California. Although there’s no guarantee your state won’t find out sooner, we believe it doesn’t become an issue until you have to renew your license.
The officer will send all the paperwork from your arrest to the Department of Motor Vehicles, triggering an administrative process that is completely separate from the criminal case. In this process, in a case involving a driver age 21 or over who is arrested for DUI, the DMV will suspend your driving privilege if it finds that:
(1) A police officer had reasonable cause to believe you were driving in violation of Vehicle Code section 23152 or 23153 (the drunk driving law);
(2) You were lawfully arrested; and
(3) You were driving with a blood alcohol concentration of 0.08 percent or more.
That temporary license (pink form) the officer gave you says that you have ten (10) days to contact the DMV and request a hearing regarding your license suspension. If you do not request a hearing within the ten (10) day period, you should expect that the DMV will suspend your license 30 days after the date of the arrest. If your case does not involve a refusal to take a chemical test, and DMV later finds out that the BAC was below .08, they should issue a set aside so that you can get your CDL back. (*Practice Tip: DMV should allow for a grace period to the next business day if the 10th day falls on a weekend or holiday but it’s advisable to make the call before the deadline)
If you make a timely request for an APS hearing on the issue of your license suspension, you will be dealing with a Hearing Officer appointed by DMV. The hearing officer is not a judge or a lawyer. He or she is an employee of the DMV. The hearing officer’s job is to decide whether to uphold the suspension of your license. Unlike in the criminal court process, the DMV hearing officer performs the role of prosecutor and judge. The hearing officer will present the DMV’s case, question witnesses, and cross-examine the DUI client and his or her witnesses. The hearing officer also makes rulings on the admissibility of evidence and objections.
DMV hearings are unlike the regular court process. They have very specific rules and procedures and the process can be very confusing to the average person. This hearing is not a forum for you to try to convince a hearing officer that you need to drive. There are also certain instances where you may be better served to NOT make a request for a hearing. This is why it is important to contact the Law Office of Denis White immediately after your arrest.
It takes very little for law enforcement to justify a belief that a person was “driving” in violation of VC23152, VC23153 or VC23136. There has to be volitional movement, which just means the driver has to have moved the vehicle. Even the slightest movement is sufficient. In many cases “driving” is found circumstantially, rather than through the officer’s observations. Accident cases are a good example.
A “Lawful Arrest” requires sufficient probable cause. First of all, this means that law enforcement must have lawful reason to contact you. For example, if the officer observes you committing a traffic violation that would be considered a valid reason to contact you.
Not all unusual driving is enough to stop a vehicle. A sharp but legal turn behind a patrol vehicle and yell from inside the same car was held insufficient in the 1995 case of Taylor v. DMV.
DUI Checkpoints complying with most of the 8 factors outlined in the case of Ingersoll v. Palmer have been held constitutional.
In traffic accident cases VC40300.5 provides exceptions to the normal rule that the officer must observe driving. The exceptions are:
“Reasonable suspicion” to believe you were driving under the influence along with evidence that indicates impairment or a BAC of .08 or more can also justify probable cause to arrest. When I use the term “Reasonable Suspicion” I’m referring to the many clues Law Enforcement is looking for in the National Highway Traffic Safety Administration’s training manual in the section titled “Vehicle In Motion”.
To help you visualize better, we made a playlist of all the violations that can attract the wrong attention from law enforcement. Click here to see the reasons a cop can pull you over.
There is a rebuttable presumption that the evidential Blood or Breath test results are sufficient if the samples are taken within 3 hours of the time of driving.
With an expert, it may be possible to show a Rising Blood Alcohol Defense to rebut the presumption. The basic argument is that the driver was below .08 or .01 at the time of driving.
Many individuals are more than capable of sharing their side of the story regarding the initial contact, field sobriety tests, and generally what happened. The difficulty is knowing what and why certain documentary evidence may not be admissible. There are often records that should be subpoenaed from the arresting agency, crime lab or individual witnesses, including the officer(s). It’s just too late if you wait until the date of the hearing to figure this out. There are some technical issues that are automatic winners if you’re lucky enough to spot them and the DMV hasn’t subpoenaed the officer to cure the defect(s). The one that’s the easiest to explain and for you to look for is the lack of an officer’s signature on the DS367 Officer’s Sworn Statement. Look at the bottom of your Pink form DS367 Temporary License. See if it contains the required signature. It’s often very faint because you have the third page of the form and unless the officer presses hard, it may be difficult to see.
Not all DMV hearings are winners but, at the very least, it gives the Law Office of Denis White a preview of both DMV and the Court Cases. It also provides a legitimate way to gather additional available information like In Car Camera Video, Body Cam Video, Audio Recordings, Breath Machine Records, etc.
Different counties process criminal cases differently. The DMV hearing process allows the Law Office of Denis White to manipulate the DMV side of the case to make reasonable accommodations in the timing of license suspensions.
If your only reason for requesting a DMV hearing is to delay the start of the suspension or get you a copy of the police reports, then perhaps you can handle the hearing yourself. Although DMV is now making an effort to have the APS Suspension and the Court Conviction Suspension run concurrently, we are still trying to resolve the APS matter first or on the same date as the resolution of the court case to avoid any issues leading to unnecessarily longer suspensions.
Normally, when an individual is arrested for a DUI they are issued a DS367, which explains their right to a hearing on the potential license suspension. If you don’t believe you were given a DS367 temporary license by law enforcement on the date of your DUI accident and you didn’t receive one later by mail, there may be a notice issue that will extend the time you have to request a hearing, stay and discovery. In Sacramento and the surrounding counties that we serve of Yolo, Placer and El Dorado, the DMV Drivers Safety contact phone number is (916) 227-2970. Have your California Driver’s License number handy when you make the call. The people that answer the phones and schedule the hearings are a pretty nice group of people, so be nice to them. (*Practice Tip; Don’t use the number at the top right corner of the Temporary License)
Unless there is a notice issue, you only have 10 calendar days (not business days) to make the request for a hearing. If you don’t think you were given a DS367 temporary license but DMV’s records show that one was issued, it may have been misplaced while you were at the hospital being treated. DMV may ask you to write a letter making a late hearing request if your call to them is beyond the 10 day time limit. This is a simple task and doesn’t have to be very formal. In fact, you can probably write a letter of explanation and fax it to the Driver Safety Office just like we do occasionally. Ask for their fax number when you call them.
If you were driving on an Out of State license, the California (CA) DMV can’t suspend your license but they can suspend your privilege to drive in the State of California. If you don’t follow up with the CA DMV, you may find that the hold on the privilege here affects your license wherever you call home. Filing a 1650 Waiver with the CA DMV may be the answer to avoiding problems in your home state. It can only be used once and can’t be done until all the mandatory suspension time has passed. and there may be other restrictions on cases involving refusals and high BACs. Contact DMV for more information at (916)-657-6525 or the Law Office of Denis White.
Most people are very overwhelmed by the immediate effects of a DUI, however, most have not considered how a DUI will affect their future. A DUI conviction does go on your permanent criminal record, therefore, it’s possible that it is out there for potential employers, college admissions, licensing agencies, and family to see. Having a record expunged in California will not erase a DUI conviction completely but it does add a line showing Dismissed After Conviction. DUI expungements are discretionary with the courts but I recommend taking advantage for several reasons I’ll share with you if you like.
When it comes to employment or potential employment one probably does not want to draw unnecessary attention to themselves. Some employers require that any DUI arrest or conviction must be reported within a certain time frame. If your job involves driving, you may find yourself with a license suspension that will prevent you from performing your work duties. When your job involves driving your employer may no longer be able to afford to insure you based on having a DUI conviction, even if you have had your privilege to drive restored.
Those who hold professional or state licenses such as physicians, nurses, real estate agents or pilots are a moving target. Professional and state licenses are all different; the requirements are not the same across the board. Tolerances for DUI convictions can vary between licensing agencies with nursing being one of the strictest. If you hold a Professional License the Law Office of Denis White will give you one or two referrals to attorneys that handle these matters.
The effects of a DUI can be damaging to your lifestyle should you choose to travel. Some countries will not allow you to enter their country if you have a criminal record which includes DUI convictions. It is possible that a person would not be allowed to enter a county even if they have family who resides there or a work obligation. Close to home, Canada has been the greatest problem. For more information on admission to Canada, contact Canadian Immigration attorney Marisa Feil
Link to her youtube video: https://www.youtube.com/watch?v=Xn0fWrtd6S0
Marisa's website: http://www.marisafeil.com/
A DUI can interfere with your insurance rates or your ability to actually be covered. It is typical that once an insurance company finds out you were convicted of a DUI they raise their rates through the roof or they will cancel your policy. Most of us use an insurance company that we have had for many years. With those long term policies people usually get discounts unique to their situation. If a person has to switch insurance carriers they will likely lose some or all of those discounts which had been applied over the years.
If you have already been arrested for a DUI, contact the Law Office of Denis White before going to confession with your insurance company to talk about SR22 insurance coverage. There may be a real financial benefit in handling this issue differently.
What is the cost of hiring a lawyer to represent you in your DUI case? A DUI defense cost varies, depending on each individual attorney’s belief of the value of their services, since they ultimately set their own price. In the past we’ve seen advertisements as low as $695 and have heard of retainers as high as $10,000 in the same city. If there are additional charges or the DUI happens to be a felony, you can expect to pay more. Most attorneys will charge a flat rate for representation up to but not including trial. This may or may not include things like a suppression motion. The attorneys that charge just a few hundred dollars are generally newer attorneys handling a variety of different types of case to make ends meet and likely do not prepare a case the same as those that charge more and focus on a single area of law like DUI Defense. In most cases, you get what you pay for.
If all an attorney does is order police reports from the District Attorney or DMV, you may not be getting much for your money. If the attorney is simply going to explain what the District Attorney proposes the punishment is going to be or what the DMV is going to do to your license, all you have is an interpreter. What you really need is an attorney that knows the law and will investigate the legitimacy of the facts reported by law enforcement and look for defenses.
Maybe a better question is what does it cost when you don’t hire a reputable DUI attorney? Some numbers we’ve seen set that amount at $10,000 to $25,000.
Besides having the police reports, you might want to gain access to breath machine records, radar or lidar records and the officer’s certification, 911 call recordings, Mobile Video Audio Recordings (MVARS), in car camera (ICC) videos and any audio recordings by law enforcement. This is not an exhaustive list but is meant to give you an idea of what might be available.
It may also be necessary, or at least helpful, to visit the scene to see if the officer’s reports are accurate. Sometimes law enforcement writes reports that have facts that are possible to contest. An example might be a stop sign instead of a stop light. Perhaps a report indicates that the location of the field sobriety tests was flat level asphalt rather than your recollection of doing the tests on the side of the freeway with loose gravel and a slope.
The idea is to investigate and prepare each case, from the beginning, as if it’s going to trial. Don’t cheat yourself out of possible defenses by assuming everything written in the police report is accurate. Remember, before you plead or are convicted by a jury, you are presumed innocent. It does no good to complain about your dispute of the facts after you resolve your case.
Other advantages to working with attorneys that focus only on DUI defense is that they have more experience in dealing with collateral issues such as DMV driver’s license issues , cost saving approaches to handling SR22 insurance filings, being knowledgeable about DUI Schools and Ignition Interlock Device (IID) requirements. An attorney that works regularly on DUI cases will have access to experts and investigators with training and experience that may benefit your case. If you want to know if a law firm handles more than DUIs a good place to look is their website.
Don’t give too much value to a low priced defense. It may cost you more at the back end in time, money and frustration. Ask lots of questions and take the time to meet with lawyers in person if you can. Hiring the right lawyer for you is like finding the right doctor. You wouldn’t go to an eye doctor for a heart condition. We at the Law Office of Denis White like to meet the people we are going to help. Unless you live outside the area, we would like to spend some time talking with you early on and again after we have the police reports and any records that we might have subpoenaed. We also invite regular communication by phone, e-mail and in person. For this reason, we’ve placed our e-mail and cell phone numbers on our business cards.
The Public Defender isn’t involved early enough in the process and probably doesn’t have much, if any, experience with the civil side of things as it pertains to DMV. If you are arrested for an alcohol DUI and the officer issues you a pink temporary license, you only have 10 calendar days to contact DMV to request a hearing. In most instances, people are out of custody by the time they go to court weeks or months later. If you just show up in court and ask for the Public Defender, ask yourself, what do they know about your case? The answer is simple. They only have what the prosecutor shares with them right then. By the time we at the Law Office of Denis White show up for court on a DUI case, we have the police reports and often a great deal more that we’ve subpoenaed from various sources, depending on the facts of your case. This puts us at a distinct advantage from the very beginning.
Although sometimes an attorney is able to cheat DMV out of suspending your license with an acquittal on the charge of driving with a blood alcohol level of .08 or higher, this is not a regular occurrence and many courts and prosecutor’s offices don’t ever go along with this. Sacramento has become somewhat stingy with these motions and they are pretty much non-existent in Placer, Yolo or El Dorado County. Additionally, if the DMV hearing predates the court appearance it may subject you to a temporary loss of your driving privileges. You really do benefit from having an experienced DUI attorney navigating the system to allow time to explore possible defenses, while keeping your driving privilege in place.
For a second or third DUI offense in Sacramento County, you definitely need a good private DUI defense attorney unless you want to be ambushed with having to post bail or go into custody if you’re not ready to resolve your case immediately. Our office orders prior conviction information and subpoenas any relevant information that might provide a defense when we’re hired, as opposed to after the first court appearance. Our belief is that most people would like to avoid the expense of bail, if the case should be resolved, rather than proceed to a suppression motion or trial.
Access to a private attorney is much more convenient than trying to reach someone at the Public Defender’s Office. Unfortunately, the Public Defender’s Office has a great number of cases and are unlikely to accommodate your work schedule or home life. When we’re retained, you’ll receive business cards with our cell numbers and e-mail addresses. Wouldn’t you like to be able to ask questions when you think of them rather than try to remember what to ask in the few minutes you are afforded before your court appearance?
There are times when a person is charged with a DUI but they are not actually aware until they get a warrant notice in the mail or worse yet, someone shows up at their home or place of business and arrests them. Other times, a simple traffic stop will land the person in jail when law enforcement discovers the warrant.
In most instances, people have failed to appear for their arraignment and this is just a natural consequence of the failure to appear (FTA). In other instances, the individual may have been driving under the influence, been in an accident and been injured badly enough that the police leave the individual at the hospital. If you aren’t familiar with how the process works, you might just think you slipped through the system without being charged.
If law enforcement thinks you were DUI, they’ve probably had the hospital do a blood draw that ultimately finds its way to the Sacramento County District Attorneys Crime Lab. It may sit in their evidence refrigerator for days, weeks and sometimes months before it’s analyzed but this will get done eventually. In the meantime, law enforcement has prepared a report and sent it to the Sacramento County District Attorney with a warrant request. At the same time, they’ve also sent the information to the DMV. DMV handles the license suspension issue separately and we’ve provided a separate article to explain the civil consequences of a DUI.
If you were taken to the hospital rather than jail or a police station first and haven’t been booked, fingerprinted and photographed, this may still need to be done. In most instances in Sacramento County this is done at 711 G Street at the Sheriff’s Warrant Office. If you were arrested by the Sacramento Police Department you will need to clear the warrant at 5770 Freeport Boulevard. Both places have certain operating hours, so you may want to explore this before making a trip only to be turned away and asked to return later.
Once this is done, your warrant will have been recalled and you will have a court date. Remember though, if you have prior DUIs, the DA and Court may bring up the issue of bail even if the incident was a long time before.
On January 1, 2010, Assembly Bill 91 began requiring individuals convicted of DUIs in Sacramento, Alameda, Tulare and Los Angeles Counties to install Ignition Interlock Devices (IIDs) for specific periods of time. The law allowed for two types of exemptions; one for driving an employer’s vehicle and another for those that do not own any vehicles.
DMV says they deal with exemption issues on a case by case basis. Qualifying for Exemptions must be done timely, which DMV indicates is within thirty (30) days of notice of the requirement by mail. DMV will provide a Form DL4055B if you request an exemption. It doesn’t appear to be available online and they’ve refused to provide us with the form.
To qualify for an Exemption allowing you to drive an employer’s vehicle, without the need for an IID on a work vehicle, you should immediately contact the DMV Mandatory Actions Unit at (916) 657-6525 and confirm what documentation they want you to provide. At the very least it will require your employer to provide a letter stating that they are aware of your situation and are authorizing you to use their vehicle(s) without the device. You will still need to have an IID on your personal vehicle(s).
If you don’t own any vehicles, you may qualify for an Exemption. Non-Op vehicles still count as vehicles. It’s not as simple as just telling DMV you don’t have any vehicles. They may check to see if there are vehicles registered to you and perhaps others in your household. You may be required to have those in your household sign declarations that you are not permitted to drive their vehicle(s).
Motorcycles present some difficulty in qualifying for an exemption, as they can’t be fitted with the IID but still count as a vehicle. If your only vehicle is a motorcycle you may have to dispose of it or register it to someone outside your household. It would seem to be the same with a Non-Op vehicle. When I pressed DMV for specifics on what else qualifies as a vehicle, I was told that they deal with that on a case by case basis and could not provide a list.
In order to qualify for the exemption, an individual must still have a SR22, be enrolled in a DUI school and pay DMV fees. The person will then be issued a California Driver’s License that will only permit them to drive a motor vehicle equipped with an IID for the period of time required by law, with the exception of the exemption for the employer’s vehicle.
DMV has some information online that you can access as well. Look at the links posted below:
There is no free parking near the Sacramento County Courthouse. Most of the meters are credit card friendly and take quarters.
There are two Public Parking Garages that are covered in the area.
One takes up the entire block surrounded by “G” & “H” and 7th & 8th Streets. You enter the garage from the “G” Street side just before 7th Street. The cost is $1.75 per 30 minutes.
The second Public Parking Garage is in the alley between “G” & “H” and 9th & 10th Streets. This garage can be accessed from 9th or 10th Streets. The cost is $2.25 per 30 minutes
Anything that causes a DUI case to be rejected without being filed, that causes a DUI case to be dismissed after filing or helps win a jury trial is a defense that works.
Two of the most important considerations are; issues surrounding the reason for the initial contact by law enforcement and the accuracy of chemical testing of blood, breath and less frequently, urine.
If law enforcement initiates contact with you and it was not a consensual contact, the question becomes, have you been unlawfully detained. Law enforcement may detain an individual if they have an articulable suspicion that a person has committed or is about to commit a crime.
Video from the police vehicle is often our best defense to the many things law enforcement is trained to be on the lookout for when it comes to driving under the influence cases but not all agencies have in car cameras. The reason, proposed by law enforcement, for not having video is cost but there is an argument to be made that it may also be accountability.
A good list of what law enforcement is looking for is as follows; 1) “problems maintain proper lane position” which includes weaving in or across lane lines, straddling a lane line, swerving, turning with a wide radius, drifting or almost striking an object or vehicle. 2) “Speed or braking problems” which includes stopping problems, accelerating or decelerating rapidly, varying speed or driving 10 or more mph below the speed limit. 3) “Vigilance problems” which includes driving in opposing lanes or wrong way on a one way street, slow response to traffic signals, slow or failure to respond to officer’s signals, stopping in a lane for no reason, driving without headlights at night and failure to signal or signal inconsistent with actions. 4) “Judgment problems” such as following too closely, improper or unsafe lane change, illegal or improper turn, driving on other than a designated roadway, stopping inappropriately in response to officer or inappropriate or unusual behavior.
If you can make ‘separate’ links to each of the reasons above, people just might stay on our site longer while watching them. We’d probably have to include a line saying that we’ve created short u-tube style videos of each of the reasons to grab the reader’s attention.
Aside from all the above mentioned reasons law enforcement might choose to make contact with you, vehicle code violations, that by themselves would allow law enforcement to issue a ticket, give them the authority to detain you. Some of the more usual reasons for this type of stop are; speeding, use of a cell phone to talk or text, loud mufflers, not wearing a seatbelt, expired registration, missing license plates, throwing something from the vehicle, defective lighting, objects hanging from a rear view mirror, cracked windshields, and illegal parking.
A less frequent reason for contact might be a based on a citizen’s tip to law enforcement. You may have noticed signs on the freeway that tell you to report drunk drivers. In this instance, the you would need to show there was insufficient indicia of reliability to provide reasonable suspicion for the investigatory stop. The Law Office of Denis White routinely subpoenas 911 call and dispatch recordings in these instances.
DUI checkpoints are subject to a defense attack as well. There are eight factors to consider for the checkpoint itself. The factors are listed in the 1985 California case of Ingersoll v. Palmer. Another defense issue might be stopping a motorist for simply avoiding a checkpoint.
A no drive defense is also a viable defense. It’s not a DUI in California unless there is some volitional movement of the vehicle. Sleeping in a car isn’t a DUI.
Necessity is a defense where there is an emergency, you have no adequate legal alternative to driving and you didn’t substantially contribute to the cause of the emergency.
Another defense might be to attack the officer’s competence in connection to the administration of field sobriety tests (FSTs) or how he documents them in his report. In more marginal BAC cases, if we can show the officer doesn’t know what he’s doing, the prosecution may give you the benefit of the doubt.
Is the officer that used the breath testing instrument certified to do so?
Defense issues, with regard to chemical testing, whether it is the preliminary alcohol screening (PAS) device or an evidentiary breath or blood test, are similar. Check the records! Machines mostly do that which they were intended to do but sometimes they break. Even when machines aren’t totally broken, accuracy may provide a defense. If a breath machine accuracy check shows a high bias, the true number may be lower than the one the officer recorded. If the solution or the dry gas used to check the breath machine for accuracy has expired, this should be brought up. You wouldn’t buy a carton of milk past its expiration date because it might be bad. The same theory should hold true for the solution or dry gas.
In blood draw cases, the defense starts with whether it was consensual. Since 2013, we’ve seen a more vigorous prosecution in the courts and DMV of cases deemed Refusals. In that year the US Supreme Court decided a case that reaffirmed a 1966 case which was largely ignored for years. In Refusal cases, law enforcement is having judges sign warrants before conducting the blood draws and the courts and DMV are punishing those individuals harshly. A couple of questions that need to be answered in Refusals are; Was there a willful refusal or willful failure to complete the test?
Even if there is no Refusal allegation; Was the blood draw done in a medically approved manner? Is the chain of custody documented properly? Was the blood refrigerated? Was the preservative (sodium fluoride) level sufficient to prevent fermentation? Was the person that analyzed the blood qualified? What type of equipment was used in the analysis?
In trial, where the defenses were not persuasive enough to get a case rejected or dismissed early on, perhaps a juror could be excused for cause or just because of a bad feeling. Motions in limine are filed to exclude unfavorable evidence that the defense team expects the prosecution to try to use. Consideration in the use of witnesses or your own testimony is weighed. Scientific evidence is scrutinized along with the state’s expert witnesses. Jury instructions are considered. Opening statements and closing arguments are used to summarize your story in a way that is intended to capture the jury’s attention and give them a reason to acquit
These are forms of alternative sentence time that involve wearing an ankle bracelet. The office is at 700 North 5th Street, on the left side of the street, just before the Sheriff’s Work Project Facility.
Home Detention or Lock Down requires you to remain in your home, except for court ordered programs and a few hours each week for necessities like getting groceries or doing laundry. You should expect to pay a daily fee but you’ll need to discuss this with the Sheriff.
Applications are accepted Monday – Friday from 8:00am until 2:00pm ONLY.
The Application Check List indicates the following items must be submitted with the application;
Home Detention Application
Application fee of $130.00 (cashier’s check or money order payable to Sacramento Sheriff’s Department)
Identification (issued by a government agency)
Report Requirement (Probation letter or Crime Report)
Employment or School Documentation
Medical Home Detention is the same as Home Detention, except that I expect there may be some provision for medical appointments.
School Furlough requires that you carry a certain number of units and involves the Campus Police.
The Work Furlough Program requires that your employer know about your case. If your employer is willing to work with you, this is a good way to avoid missing work. There is also a daily cost to participate in the program and it’s based on one hours wages plus a charge for the equipment. If you are self-employed, you may need to provide tax returns or other evidence of your income.
The Application fee is $130.00.
It seems to work best for people that have to serve a little more time because it’s a quicker way to satisfy the commitment than spending every weekend on Work Project.
If the Law Office of Denis White represents you, we will provide you with the application and explain how the program works well in advance of resolving your court case. In unusual cases, we may even go with you to deliver the application and required documents and payment.
The Sheriff’s Work Project facility is located at 700 North 5th Street, just off Richards Blvd., about half way between Highway 160 and I-5.
The Application Fee is $80.00 and the daily charge is $40.00. If you think you might be eligible to pay less because of a lack of income, check with the Finance Department when you go to sign up.
Generally, Sheriff’s Work Project is picking up trash, pulling weeds, etc. There are approximately four locations operating on weekends and more than that during the week. If you are working, the Sheriff’s Department will do what they can to accommodate you on your days off.
If you are disabled, you will likely be rejected from participating in this program. If you make too big of a deal about not being able to do certain things, you may also be rejected. There are other considerations as well but you’ll have to go through the process to find out what they are.
One of the requirements for participation in the program is that you provide this letter from Probation. [If your case started out as a Felony, you will need a complete police report, rather than the paper from probation.]