A San Jose DUI arrest can result in at least a few days of jail or work-project, thousands of dollars in fines, increased car insurance rates, and a mandatory alcohol class that lasts for several months. Although this is harsh (especially comparing it to many felonies where NO jail time is actually required), the courts are not usually trying to destroy people's lives on a first offense San Jose DUI.
The San Jose misdemeanor court system is ridiculously backed up, meaning that a typical DUI case in San Jose can take upwards of four months to resolve, even if the defense does not contest the case. In a contested case, unfortunately, it takes closer to six months to a year for a case to completely resolve.
A San Jose DUI Attorney MIGHT JUST WIN YOUR CASE!
A good San Jose DUI Attorney will know what to look for to try to win your case. Whether there was a valid reason to stop your car, whether there was sufficient cause for the officer to start a drunk driver investigation, who was actually driving the car, what the BAC was and whether it will be provable in court.
A San Jose Drunk Driving Lawyer CAN HELP YOU, EVEN IF YOU WERE DRUNK
Even if you know your case is not winnable, contact me now! There are many things that a San Jose Drunk Driving Lawyer can do for a client with an unwinnable case that can result in what is effectively a shorter license suspension, and sometimes shaving off several months of the mandatory alcohol class - completion of which is mandatory before getting your unrestricted license back.
Just as important to many San Jose DUI clients is the confidentiality that I help you achieve - in many cases, the San Jose DUI client can get through the whole situation without their employer finding out about the DUI arrest. San Jose DUI Lawyer Matthew Becker helps clients stay at the office instead of having to take time off from work to be in the courtroom. So long as the charge is a misdemeanor, San Jose DUI Lawyers are usually able to keep the client out of the courtroom - But Beware, some judges will not cooperate with this for multiple offenders.
DEALING WITH THE DMV
You only have 10 days after the drunk driving arrest to contact the California DMV driver safety office - or have San Jose DWI Attorney Matthew Becker contact them for you. If the DMV is not contacted in time, either by you or by your San Jose DWI Attorney, you will almost certainly face a suspension of your driving privileges.
The effect of this DMV suspension can frequently be worse than the effects of the criminal charge. San Jose DWI Lawyer Matthew Becker will handle the DMV bureaucracy for you, in some cases saving your license entirely; and in others, maximizing the overlap between the DMV license suspension and any court ordered license suspension so that you suffer the minimum amount of time without a license.
The DMV is biased against the client in their drunk driving License Suspension Hearings. The DMV hearing officer acts as judge, jury, and prosecutor. For this reason, you really need a San Jose DWI Lawyer on your side. At least in court there is a separate judge. You can read more about this on my drunk driving Resources Page. If a suspension is unavoidable, the skills of your San Jose Drunk Driving Attorney can still be invaluable in terms of timing the suspension around your life and minimizing the total length of your license suspension.
FREE INITIAL CONSULTATION
Call now. (408)625-7969. Many attorneys offer a free initial consultation that involves asking what you are charged with and quoting a price. I do things differently. Since I post my prices online, if you call me, we will discuss the facts of your case. I will give you a heads-up on what the maximum and minimum you are facing if convicted and will discuss with you what options might be available. Call me or check out my San Jose DUI resources at the bottom of the page.
Click on any link below to learn more.
RESOURCES FOR DUI DEFENDANTS
- Effect of A Drunk Driving Conviction on Car Insurance Rates; How to get SR22
- Getting a Restricted Privilege on your License Suspension
- Restricted Privileges License Suspension for First Offenders
- Restricted Privileges License Suspension for Second Offenders
- DUI - The Criminal Case
- Process of a Drunk Driving Criminal Case with an Attorney
- Standard Motions Your DUI Attorney Can File
- Special Motions Your DUI Attorney Can File
- Trial Case
- Plea Negotiations between District Attorney and your DUI Attorney
- More Discovery
- Drunk Driving Penalties
- First Offense Misdemeanor Drunk Driving Penalties
- Second Offense Misdemeanor Drunk Driving Penalties
- Third Offense Misdemeanor Drunk Driving Penalties
- Fourth Offense Felony Drunk Driving
- Felony Injury Drunk Driving
- 0.15% BAC
- 0.20% BAC
- Child Under 14 in Car
- Refusal to take chemical test
- DMV Hearing
- Drunk Driving License Suspension
- Refusal to Submit for Chemical Testing
- Resolving Criminal Charges in a DUI Case
- District Attorney?s Office Doesn't File Charges
- Dismissal for Lack of Proof
- Plea Bargaining
- Jury Trial
Selected Drunk Driving Resources
DUI Insurance - SR22
Car Insurance after a drunk driving arrest is required by law to have a high-risk designation for a number of years. Generally, SR22 drunk driving insurance is required for three years by the court. Driving without SR22 insurance during this court ordered time period is not only a violation of probation, potentially exposing you up to the remainder of your six month sentence, but you will also be guilty of driving on a license while knowing of a drunk driving suspension. This is true even if you have your unrestricted license, apparently unsuspended. On a first offense DUI, this SR22 requirement extends for three years and you can strangely be convicted of driving on a license while knowing of a DUI suspension even though you possess an unrestricted license and the suspension is over! Make sure you talk to your San Jose DWI Lawyer before you drop your SR22 designation.
California DMV also requires SR22 in order to obtain a restricted license suspension for five months. For second-offense DUI, the DMV requires DUI insurance after the end of the first year of (hard) license suspension - for one year. Obviously, since the court requires the SR22 for longer than the DMV,you will have to obey the court. Notice, however, for those whose probationary terms have expired, if you have not completed your alcohol class, the DMV will still need the SR22 for a restricted privileges on your license suspension during that period. Talk to a San Jose DWI Attorney if you have a case this old. There are many strange things that a San Jose DWI Attorney can do in an old case situation.
Your car insurance premiums are going to rise because of this high-risk designation. Sometimes you will be dropped entirely, in which case you will have to find new basic insurance as well in order to lawfully drive. But how much extra you have to pay for the court and DMV-mandated SR22 designation depends on a number of factors. If you want to have comprehensive collision coverage with your SR22, the increase in premiums will be much greater. On the other hand, if you want only liability insurance, your increased costs might be fairly minimal with an SR22 after a first offense drunk driving conviction.
Other factors include your driving history. A 45 year old getting his first drunk driving conviction with no prior tickets for anything (speeding included) is going to hardly notice the increase in costs if liability SR22 insurance is all he wants. A 23 year old with two recent speeding tickets and a red light violation - all within the past couple of months prior to the drunk driving conviction? That will be a different story. Getting his DMV-restricted privilege on the license suspension will be quite expensive with the SR22 requirement - and the court's three-year requirement of SR22 may make it cost-prohibitive to have a driver's license for up to three years. In this above example, the threat of falling into the lifetime suspension trap is quite significant for the younger driver and he needs a San Jose DWI Attorney to see if there is any way to avoid the initial suspension.
For suggestions on where to call for SR-22 Insurance, download the DUI Survival Guide. The way this whole web-site is set up it is much easier for me to update the Survival Guide pdf file than the web page. Plus, you will find a lot more goodies in there as well, such as DUI school contact information...
Getting a Restricted Privilege on Your License Suspension
Car Insurance after a drunk driving conviction is required by law to have a high-risk designation for a number of years. Generally, SR22 drunk driving insurance is required for three years by the court. Driving without SR22 insurance during this court ordered time period is not only a violation of probation, potentially exposing you up to the remainder of your six month sentence, but you will also be guilty of driving on a license while knowing of a drunk driving suspension. This is true even if you have your unrestricted license, apparently unsuspended. On a first offense misdemeanor San Jose DUI, this SR22 requirement extends for three years and you can strangely be convicted of driving on a license while knowing of a DUI license suspension even though you possess an unrestricted license and the suspension is over! Make sure you talk to your DWI Lawyers before you drop your SR22 designation.
I know that this is what most of you are most concerned about. You need to be able to get from point A to point B - for work, for school. And the idea of doing that without access to a car is crazy. The best way to deal with the threat to your financial stability is to hire a good San Jose DUI Attorney, but if your case has already been resolved, then here is what you have to do to get back behind the wheel, after a San Jose DUI arrest:
First Offense DUI in San Jose
There is a 30 day hard license suspension - and no conversion to restricted privileges on the license suspension is possible during the first thirty days.
After 30 days, you can go to the DMV to get a restricted privilege on the license suspension, provided that you have done the following things:
Get a copy of your H-6(driving history) DMV printout (from DMV)
Take H-6 printout to a DUI school and sign up for the appropriate length class.
Get SR22 insurance.
If you were arrested within one of the four test-counties, you will need to install an ignition-interlock device for a period of five months. This can be done with the restricted portion of the license suspension.
Take proof of 3 years of SR22, plus proof of enrollment in the DUI class, plus $125 to the DMV and apply for a restricted privilege on your license suspension (again, after the first 30 days)
This will lengthen your California DMV license suspension from being four months to six months on a first offense DUI in San Jose, but the remainder of the license suspension will be with a restricted privilege on the license suspension for going to and from DUI school and/or work. A San Jose DUI Attorney will frequently be able to make the 6 months total (including the restricted privilege on the license suspension) be the same six months that the court license suspension runs for the conviction. The court license suspension is also eligible for a restriction as soon as DMV permits, so you really will be back to driving!
Second Offense DUI in San Jose
What to do if you were arrested for the second offense prior to July 1, 2010:
Get a copy of your H-6(driving history) DMV printout (from DMV)
Sign up for an 18 month class with a DUI school.
Get 2nd offense DUI insurance.
Get ignition interlock device installed.
Wait through the first year of your two-year license suspension.
Show DMV proof that you have done all of the above plus pay them $125.
This will allow you to get a restricted privilege for the second year of your license suspension after a second offense DUI in San Jose so that you can drive to and from and in the course of work. Your DWI Lawyers can explain the process in more detail as well as what the differences are between a restricted and an unrestricted license.
If you were arrested AFTER July 1, 2010:
Same as above, but the law has changed allowing persons arrested after July 1 to get a restricted privilege on their license suspension after both (1) 90 days of no drive (can include DMV APS suspension time) AND (2) after the DMV receives the abstract (notice) of the conviction for the second offense DUI in San Jose.
Drunk Driving - The Criminal Case
WHAT PROCESS IS FOLLOWED IN A CRIMINAL CASE?
After you have been arrested on suspicion of DUI, the officer writes up a report and sends it to the District Attorney's office. If you took a blood sample, the District Attorney office will wait until they have the results before filing charges. If there was no blood (or urine) sample, then the District Attorney will have enough information to determine whether or not to file charges.
Typically, they will file both the strict-liability 0.08% charge(VC 23152(b)) and the "driving while impaired" charge (VC 23152(a)), both misdemeanors carrying nearly identical sentences. Since the penalties are essentially the same, and since both charges are for essentially the same conduct, with rare exceptions, the state can only punish for one even if they get a conviction on both. Talk to you your local San Jose Drunk Driving Lawyers or see DUI Penalties below for more information.
Because the charge is a misdemeanor, if you hire a San Jose Drunk Driving Attorney, in most counties you should not have to ever appear in court. Private San Jose DWI Attorneys can appear in court without their client present so that the client doesn't have to miss work - so long as it is a misdemeanor, and with certain exceptions that allow some tyrants-in-robes to force the client to go anyway. For first-offenders, this is rarely a problem. For repeat offenders, because bail is frequently involved, appearances by the client sometimes can be difficult to avoid.
By (the end of) your first court date, your San Jose DWI Attorney should have a copy of the complaint and the police report. After the necessary initial information is obtained, the case will be categorized as one of a few types of cases. At least this San Jose Drunk Driving Lawyer always evaluates each case for each of the following five options.
Was the arrest legitimate? Did the officer have a valid reason to pull you over? If not, a motion to suppress evidence might win the case outright. Likewise if the DA waited too long to file charges, a San Jose Drunk Driving Attorney can file a speedy trial motion that can put the DA's case in the circular filing cabinet! A good San Jose Drunk Driving Attorney has these and a few other standard motions, some of which can win a case outright in the right circumstances. Approximately half of DUI cases will have enough evidence in favor of the defendant to support a decision to file a standard motion. They win far less than that, but because of the minimal work needed to prepare these motions, they are generally included in all contracts with our firm.
Lately, our firm has filed many motions to suppress evidence based on a new US Supreme Court case, Missouri v. McNeely (2013) 133 S.Ct. 1552. This case tells the cops that they are supposed to be getting a warrant on every DUI investigation. Do NOT take this to mean that it is ok to refuse the officer's request to submit to a breath or blood draw. Failing to take the test for any reason can still clearly lead to harsh sanctions and the benefits incurred by failing to submit to the officer's request is low in many cases.
This can be anything under the sun. A skilled San Jose Drunk Driving Attorney can look at a case and find that one section of law that was violated by a police officer or the mistake made by the DA and turn their case upside down. These motions are often complex and extensive research and writing will be necessary. Special motions are sometimes not covered in the initial contract with some San Jose Drunk Driving Attorneys. Ask about whether all pretrial motions are covered under the contract. Special motions are infrequently available in cases - maybe ten percent of clients will hear that their San Jose Drunk Driving Attorneys have a special motion to file in their case. But when the facts support filing a special motion, the chances of winning the motion are often fairly reasonable.
Second only to a very strong standard motion, having a San Jose Drunk Driving Attorney tell you that you have a trial case is about the best news you can get. A trial case is any case where your San Jose DUI Attorneys believes that he can make a jury have doubt about a key aspect of the criminal case. Although a trial can be expensive - especially if you have to hire an expert in addition to the San Jose Drunk Driving Lawyers fees, there are ways of cutting down on the cost if it is unaffordable. I try to encourage clients to retain their San Jose Drunk Driving Attorneys through trial from the start. The likelihood that a case will settle before trial allows me to offer a significant discount for those who wish to retain for a trial at the outset. Think of it as like a "bad offer from the DA" insurance. If a reasonable offer is obtained, you take it. If not, your San Jose Drunk Driving Attorney's trial fees are already paid. Expert witnesses can be somewhat expensive, but are probably not as bad as you fear, (especially if your DUI Lawyer offers the re-testing of blood and expert consultations as included in the fee) but in many cases the defense theory of the case can be brought out through the state's expert, in which case there would be essentially no cost to rejecting the bad offer and taking the case to a jury trial. Oftentimes (but by no means always), this can lead to your San Jose Drunk Driving Attorneys being able to get a spectacular last-second deal.
Obviously this is not the first-choice (dismissal after motion), but ultimately many cases will resolve by plea negotiations between the DA and your San Jose DWI Attorneys. Here, although the minimum penalties are harsh, there are a number of things that your San Jose Drunk Driving Lawyer can negotiate for. If the alcohol level is low enough, sometimes it can be reduced to reckless driving, which usually (depends on the county) eliminates the mandatory jail time and cuts 30-50% off the fine. Even if a reckless-driving plea is not an available option, your San Jose Drunk Driving Attorney can frequently improve the situation by getting the DA to drop or lower some penalty enhancements such as the length of the alcohol class.
More Discovery Needed:
Sometimes the police report and blood test results will not be enough to allow your San Jose Drunk Driving Attorneys to properly evaluate the case. The most typical situations are to request calibration records for the breath test or if a blood test was done, a retesting of the blood. Another common special discovery request is the patrol car video or other A/V recordings, if they exist. Your San Jose DWI Lawyer will evaluate the case after seeing the police and lab reports and will know what else he needs to defend you. Each case is different and what additional information your San Jose DWI Attorney needs depends on the facts involved and what the client's goals are.
MINIMUM, MAXIMUM, & LIKELY DUI PENALTIES
First Offense Misdemeanor San Jose DUI Penalties
California minimum penalties for a first offense misdemeanor DUI conviction include 4 days county jail (2 days jail if probation is granted), a $390 fine plus penalty assessments (which is a total of approximately $1,800), 3 years of informal court probation, and an alcohol class of 3, 6, or 9 months.
Maximum penalties for a first offense misdemeanor San Jose DUI conviction include 6 months jail, a $1,000.00 fine plus penalty assessments (total of over $4,000), and up to 5 years of formal probation.
As long as you BAC was below 0.15%, the San Jose DA has what it calls a "standard first" offer for a first offense misdemeanor San Jose DUI conviction which is usually close to the minimum jail time, and although very few judges will impose the actual minimum fine, it will be on the lower side of the range as well. Expect the fine (and penalty assessments) to run between approximately $2,000 to $2,800. Payment plans are almost always available for the fine. In any event, a San Jose DUI Lawyer is frequently able to improve your situation. Even if the DA makes a minimum-jail offer, a San Jose DUI Lawyer can frequently improve the offer by helping you get a shorter alcohol class (which results in an effectively shorter suspension of your drivers license).
Second Offense Misdemeanor San Jose DUI Penalties
California minimum penalties for a second offense misdemeanor DUI conviction include 90 days county jail (10 days jail if probation is granted), a $390 fine plus penalty assessments (total of approximately $1,800), 3 years of informal court probation, and an alcohol class of 18 months.
Maximum penalties for a second offense misdemeanor San Jose DUI conviction include 12 months jail, a $1,000.00 fine plus penalty assessments (total of over $4,000), and up to 5 years of formal probation.
San Jose generally has the same standard fine for a DUI conviction, regardless whether there are prior convictions or not. Payment plans are almost always available for the fine. As for jail time, however, there is a huge variance between the different counties, and depending on the facts of the case. If you are lucky, and have an older prior DUI conviction, your San Jose DUI Lawyers might be able to get what that county considers its "standard second". Usually a "standard" offer on a second offense misdemeanor San Jose DUI conviction will be for 10-30 days of jail, which your San Jose DWI Lawyers will usually be able to convert to mostly work-release. But if your first offense conviction was just two weeks before the second arrest and you have violated probation then don't expect to receive the "standard" offer. Ditto if you blew a 0.23% at the side of the road and then refused to take a blood sample. You should also expect that the probation will be stricter than with the first offense misdemeanor San Jose DUI conviction. Also there is a possibility that you will get a formal probation officer to report to instead of the very loose informal probation that you got on the first offense misdemeanor San Jose DUI conviction where you basically just had to stay out of trouble.
Third Offense Misdemeanor San Jose Drunk Driving Penalties.
Third offense misdemeanor drunk driving penalties involve serious time and you definitely need a San Jose DWI Lawyer. For first and second offense misdemeanor San Jose drunk driving charges, unless there was an injury in the case, both the DA and the courts will work with your San Jose DUI Lawyer to help make sure that your life isn't destroyed by the jail time. This is no longer true. Instead of just a few weekends (any 2 consecutive days is a weekend), now you are looking at a mandatory minimum of 120 days of jail. And if that is all you get, then your two priors were probably close to the 10-year expiration period and you hired a good San Jose DWI Lawyer. If your prior convictions were more recent, then a sentence of 8-10 months should be expected - with the remainder of the one-year maximum being held over your head until the 5 years of formal supervised probation is over. A good San Jose DUI Lawyer can help you out a lot in a third offense and can sometimes help you get into a treatment program that can count for some of your sentence.
Another problem for a third offense misdemeanor San Jose drunk driving case is what happens to your driver's license. I have more on that in my DMV and your license section, but in short, you will be without it for at least three years. And no work restriction privilege is available at all because unlike the first and second offense misdemeanor San Jose drunk driving license suspension, a third offense is a license revocation and not a license suspension. Keeping in mind that a formal probation agent and (since the first term of probation is to obey all laws) if he sees you driving or hears of you driving, you will be going back to jail for violation of probation, to say nothing of the new criminal charge you will be facing for driving with knowledge of a drunk driving license suspension. (Cal. Veh. Code Section 14601.2)
Fourth Offense Felony Drunk Driving Penalties
A fourth arrest on drunk driving within 10 years of the first such arrest will be charged as a felony. State law mandates at least a year in jail, minimum - or state prison for a term of 16, 24, or 36 months. Yes, there is still the fine, but who cares about that. If you are convicted of a fourth offense drunk driving, your career is toast. Your right to vote is toast. Unless you have the right facts and get a San Jose DUI Lawyer on your side, you should be expect to be imprisoned - for a considerable period of time. If this is beyond a fourth offense (fifth, sixth, etc), then you should expect to receive the longer end of the range of sentences. Of course, all of the above discussions about how a San Jose DWI Lawyer can win a case with a motion in some cases are just as applicable to felonies as to misdemeanor.
Felony Injury DUI Penalties
Any injury to someone other than the drunk driver is grounds to make the charge a felony (VC 23153), eligible for a prison term of 16, 24, or 36 months - or for jail. If you have injured someone in a DUI incident, you need a San Jose DUI Lawyer. This is one case where a good San Jose DUI Lawyer can do a lot of good. Although each county is different and each case is different, as a rule of thumb, a DUI causing minor injuries should end up receiving punishment somewhat similar to that of a misdemeanor with one more prior. (I.e. if you cause minor injury on a second offense DUI, your punishment will be closer to that of a third offense misdemeanor DUI. Keep in mind however, that this does not apply to all cases and that state law has provisions that allow fairly minor injuries to turn an inconvenient sentence on a misdemeanor into serious prison time if the DA wants to be a $#!+.
ENHANCEMENTS TO DUI PENALTIES
0.15% BAC - On a first offense misdemeanor San Jose DUI conviction, this will trigger a 6 month alcohol class instead of only 3 months for a low BAC DUI. Since you don't get your unrestricted license back until after the class is completed, this can significantly delay your getting back behind the wheel. If this is not a first offense, the higher BAC is something that gets considered in determining the sentence, as a formal sentencing enhancement
0.20% BAC - On a first offense misdemeanor San Jose DUI conviction, this will usually trigger a 9 month alcohol class instead of the 3 month class for a low BAC DUI. Since you don't get your unrestricted license back until after the class is completed, this can significantly delay your getting back behind the wheel. If this is not a first offense DUI, the higher BAC is something that gets considered in determining the sentence, and for the 0.20% mark, is a frequent justification for imposing significantly harsher sentences. Because both the three-month classes and six-month classes can be completed within a reasonable time period of the end of the ordered court license suspension and the end of the DMV license suspension, they do not interfere at all (3 month) or significantly (6 month classes) with getting back your unrestricted license. The 9-month class is different. To get the overall license suspension length down, if your BAC was between 0.20% to 0.23%, your San Jose DWI Lawyers can try to plea-bargain down by stipulating to say that the alcohol was in the range of 0.15-0.19% and therefore allow the shorter class and therefore the effectively shorter overall drivers license suspension. Since the next shorter class length is usually 6 months, and since both the court license suspension and the mandatory DMV license suspension (extended upon assumption you want to be able to drive to work) are also both 6 months, this negotiation can effectively shorten the time until full license is returned by up to three months.
Child Under 14 in Car
A DUI arrest with a child under 14 in the car at the time of the arrest effectively doubles the minimum sentences for a San Jose misdemeanor DUI conviction.
Speeding (way over the speed limit)
A speed enhancement on a San Jose DUI conviction adds an extra 60 day flat sentence, tacked on to whatever the sentence is for the DUI. This is mandatory and there is no room for flexibility on the judge's part if the DA sticks to their guns on this enhancement.
Refusal to Take Chemical Test
A refusal to submit to a chemical test leads to an effective doubling of the mandatory minimum sentences for San Jose misdemeanor DUI conviction. More seriously, a similar allegation will be being brought by the DMV which will result in a one year hard license suspension - with no work restriction privilege available. This is the type of sentencing enhancement where the criminal penalties are minor, but the effect on the DMV civil proceeding is so drastic that you need to hire a San Jose DUI Lawyer. The DMV refusal case is more-than-just-occasionally winnable and if you are facing this serious accusation of refusing a chemical test, you need to hire a San Jose DUI Lawyer and you need to hire a San Jose DWI Lawyer now. A San Jose DUI Lawyer knows the issues that have to be proven by the DA to allow for a refusal enhancement to stick. The steps that a cop has to follow for a refusal case are complicated and officers don't always get it done right. But you need a San Jose DUI Lawyer to identify the steps that the officer missed so you won't face a suspension of your license.
In almost all drunk driving cases, there are two criminal charges: Driving Under the Influence, and Driving with a blood-alcohol content in excess of 0.08%. If you were arrested for the prohibited blood-alcohol content (over 0.08% BAC), the DMV will try to impose a four month minimum license suspension. This is in addition to a separate license suspension that the court will impose if you are convicted.
On a first offense misdemeanor San Jose drunk driving conviction, assuming no aggravating factors exist, the court impose a six month license suspension, but will not object to a restricted privilege on the license suspension if the DMV is okay with a restricted privilege on the license suspension as well. Assuming no aggravating factors such as a high BAC of 0.20% or more, the DMV license suspension will be for your choice of four months (hard license suspension; no restricted privileges on the license suspension) or one month hard license suspension plus five months license suspension with restricted driving privileges (which allow you to drive to and from DUI school and to, from and during the course of employment).
On a second offense drunk driving conviction (within 10 years of a previous drunk driving arrest), the DMV license suspension will be for two years. You will be eligible for a restricted privilege on your license suspension in most cases after 90 days, although if you were arrested before July 1, 2010, you will not be eligible for restricted privileges on your license suspension until after one year of a hard license suspension.
A third or subsequent drunk driving conviction will lead to revocation (not suspension) of your license for several years.
Your San Jose Drunk Driving Lawyers will set up a DMV hearing and request a stay (delay) of the start of the license suspension until after the hearing is over. If this is not done by either you or your San Jose DWI Attorneys within 10 days of the arrest, you will be unable to request a hearing and the license suspension will almost always be automatically imposed starting on the 30th day after your arrest.
Yes, the DMV drunk driving license suspension hearings are biased against the driver. A single DMV employee who is not an attorney acts as judge, jury, and prosecutor, but many times, a skilled San Jose DWI Lawyer can help persuade the DMV set the license suspension aside.
Although it is a separate proceeding from the criminal charges, there are ways to get the DMV out of their comfort zone and have the courtroom control the outcome of the DMV license suspension hearing. In many counties (but not all), your San Jose Drunk Driving Attorneys can negotiate with the District Attorney on lower blood-alcohol cases down to a lesser charge with a stipulation that can force the DMV's hand.
If you are going to have to face both the DMV license suspension and the court post-conviction license suspension, your San Jose Drunk Driving Lawyers can make sure that the DMV license suspension and the court license suspension run at the same time and overlap entirely.
DMV HEARINGS: REFUSAL TO TAKE CHEMICAL TEST
This is nasty. You were told that you had a right to an attorney - you were even promised an attorney at no cost if you could not afford one. Then they tell you to give them evidence against yourself and tell you that you have NO right to an attorney - even if you pay for it! Maybe you even admitted you were DUI. Maybe their breath machine wasn't working and you are afraid of needles. For whatever reason, the police marked down on your pink sheet that you had refused to submit for chemical testing after the San Jose drunk driving arrest.
For a refusal on a first arrest misdemeanor San Jose drunk driving, you get a one year hard license suspension from the DMV, separate from any court imposed license suspension. And the DMV does not allow a restricted privilege on the license suspension to get to and from work or school. No driving. Period.
A refusal on a second offense misdemeanor San Jose drunk driving arrest leads to a two year hard license suspension.
A refusal on a third or subsequent drunk driving arrest is a revocation of the license.
A chemical test refusal charge is a nasty situation, and you need a San Jose DWI Attorney. If you were alleged to have refused the chemical testing, for whatever reason, you will need to change your lifestyle so you won't need to drive (move to walking distance from work, etc). If you do not, you can easily fall into a lifetime license suspension trap - since driving while knowing of a license suspension is two points (as is drunk driving) and since the DMV imposes an additional license suspension to people who have 4 or more points - it is a trap that can be impossible to get out of. As a San Jose DWI Attorney, I have come across a number of people who have been in this trap for 25+ years. And from then on, each minor traffic incident - or even innocent contact with the police can lead to 30+ days of jail, another lengthy license suspension, and a whole host of other undesired consequences.
A San Jose DWI Lawyer can do a lot of good on a refusal case. There are a number of steps that have to be taken by the police officer for the refusal to be valid, and a San Jose Drunk Driving Lawyer will know how to deal with these. And not it is not infrequent for them to not follow all of these steps. One of the first things I look for in a refusal case is a statement that the officer explained each consequence of the refusal to the driver and got a separate acknowledgment of understanding each warning. If it is not in the police report, then there is at least a decent chance of beating the DMV in the refusal hearing. There are other ways that a San Jose DWI Attorney can beat a refusal case as well. If you have been charged with refusal in a drunk driving case, you need a San Jose DWI Lawyer and you need one now.
ENDING A DUI CASE
RESOLVING A San Jose DUI CRIMINAL CASE
Your San Jose DUI Attorneys will talk to you about your specific case, but for here I want to give you some information about what outcomes are possible in a San Jose DUI case. Sometimes the DA will decline to file charges. Other times, there will be a plea "bargain". Sometimes a dismissal for lack of proof will be won. And yet still other times, the DA will make an offer that the client just cannot accept and the case will end up going to a jury trial.
FAILING TO FILE CHARGES
This happens in one of two situations: If there was a blood test and the results came back under 0.07% (yes in most counties, they do charge people with DUI even if the BAC was that low), then the DA won't charge (They will charge DUI at even lower levels if it is a minor or a commercial driver. The other situation where charges can be avoided entirely is if there was a clear flaw in the police procedure that your San Jose DUI Attorney notices from the client's initial interview and is able to point it out to the DA before they had a chance to file charges. This can come from situations such as it was clear that there was no valid reason for the stop.
Be aware, however, that this is not always the best option and in some cases you may even want to bait the District Attorney into filing DUI charges. A failure to charge still leaves the DMV with the ability to hold its license suspension hearing. And a failure to file charges leaves your DWI Lawyers without the ability to use one of his tools to eliminate the DMV license suspension (see reference to Helmandollar agreements below).
DISMISSAL FOR LACK OF PROOF
This happens most frequently for one of two reasons: either the DA has witness problems, or if the defense wins a motion to suppress evidence. In these events, sometimes the DA will try to dismiss the case for lack of proof. The problem with this is that just like if the DA fails to file charges, your San Jose DUI Attorneys loses one of his possible paths for beating the DMV. On the other hand, sometimes you can get the stipulated not-guilty to the 0.08% charge in exchange for agreeing to the dismissal of the other count. Sometimes the deal can be sweetened by agreeing to a different infraction in exchange for the Helmandollar (stipulated not-guilty) that forces the DMV to set aside the license suspension.
Technically, a dismissal for insuficiency of evidence is one of the few court outcomes that can affect the DMV. Unfortunately, while it is necessary for one of the paths of affecting the DMV from the outside, a dismissal for insuficiency of evidence is not sufficient by itself to force the DMV's hand. You also have to get a prosecutor to sign off on the DS-702 form. Unfortunately, signing the DS-702 form is utterly discretionary and some persecutors are perfectly happy to abuse their discretion to make sure someone gets punished even when there is no proof beyond a reasonable doubt.
This is by far the most common outcome in a San Jose DUI criminal case. In many cases, your San Jose DUI Attorneys will get an offer from the District Attorney's office to either reduce the sentence, to eliminate enhancements such as high blood alcohol, or to reduce the charge. If there is going to be a charge reduction, it will usually be reduced to alcohol-related reckless driving, which is sort of a DUI-lite - no jail and smaller fine, but it still counts as a prior DUI for a subsequent arrest - and still requires DUI insurance such as SR22. The outcome of plea bargaining depends on both the facts of your case and what county the case is in. Low blood alcohol tests or no bad driving are factors that tend toward better settlement offers, but even when the DUI lawyer has some cards to play for the negotiations, if it is in the wrong county, there might not be any negotiation authority on the other side. I have seen more than one DA that would have their office-printed chart with them and look at it for every case to determine the offer. Especially in arraignment court (the case is not yet set for trial), the attorney for the District Attorney office in some counties (Marin County which at least occasionally uses non-attorney interns in arraignment court) will not have authority to negotiate away from the chart-guidelines.
This will result in one of three outcomes for each charged crime (usually two charges in a DUI case): guilty, not guilty, or mistrial. If the jury hangs, the prosecuting attorney gets one more try at it. If the jury hangs twice - the San Jose DWI Attorney, the judge, and the DA have a heart-to-heart about the viability of the prosecution. Jury trials rarely take place in time to avoid the DMV license suspension. Because of this, unless the hung juries were breaking 10-2 or better in favor of acquittal (making it reasonable to take one more shot at the not-guilty verdict), the calculation of incentives and odds shifts in favor of taking the dismissal that is frequently available after a multiple-hung-jury, as opposed to an earlier dismissal.
The Supreme Court has said that it is unconstitutional to punish someone for exercising their constitutional rights. Since there is a constitutional right to a jury trial, it is unconstitutional for the court to give a harsher sentence to someone because the right to a jury trial was invoked. Unfortunately, life does not always work out as it is supposed to in theory.
Although this binding Supreme Court statement is recognized by some counties, in other counties, including Sacramento County and Marin County, the District Attorney's offices in those two counties have a policy of substantially increasing the time they request as the case advances. In Marin County, the District Attorney office asks for 5 days jail after trial as opposed to zero days if the case is resolved by plea negotiations with a Marin DUI attorney. Sacramento County is worse. They go from a standard first penalty of 2 days of work project to 5 days after a major motion (such as a motion to suppress evidence due to constitutional 4th amendment violations) to 20+ days after a jury trial on a first offense DUI. Judges don't always go along with the District Attorney requests however, but you should consult with your San Jose Drunk Driving Lawyer about the risks involved with a DUI jury trial.
Other counties do respect the Supreme Court rulings. Placer County starts off with high (bad) offers to begin with - but then sticks to them and doesn't ask for extra just because of a trial. That is one county where a trial-inclusive contract with a DUI attorney can do a lot of good.
FREQUENTLY ASKED QUESTIONS
I was stopped at a DUI Checkpoint. Are those legal?
They can be if they follow certain rules. See Ingersoll v Palmer 43 Cal.3d 1321 (1987) - See Also on Google Scholar. But checkpoints shouldn't be legal. See a rare glimpse of Justice Thomas understanding the Fourth Amendment in Indianapolis v. Edmond, 531 US 32 - Supreme Court 2000. - (or on Scholar)
Why didn't they get a warrant?
I don't know. The US Supreme Court has said it is illegal for them not to. See Missouri vs. McNeely 133 S.Ct. 1552 (2013) - (on Scholar). Yet they do it anyways. And to be blunt, our cowardly courts here in California have continued to uphold this practice of police issuing themselves a general warrant.
Hey, they never read me my rights? What about Miranda?
California pretends that the case of Berkemer v McCarty means that Miranda doesn't apply at all in DUI cases - or at least not to pre-arrest statements, or to certain post-arrest statements either! The California courts seriously twist the Supreme Court's allowance of a single question as a justification for a 100-plus question interrogation without advisement of rights.
What is a Motion to Suppress?
The Fourth Amendment guarantees the right of the people to be free against unreasonable search and seizure and requires a warrant in most situations. If the police lacked justification for stopping your car, or if the police lacked justification to make an arrest, or if the police lacked justification for engaging in a search without a warrant -- any of these would lead to a Suppression Motion to get the court to prevent the DA from using ANY evidence obtained after the time when the Fourth Amendment was violated. There are exceptions to this rule, but a hearing on a Motion to Suppress is where that gets sorted out. The cop will testify. So may other witnesses. Then both sides get a chance to argue based on the facts. Then the judge rules.
Why was I pulled over? Was it Driving While Black?
The rule has always been that any violation, if observed by an officer, is sufficient to stop the car. This can even be for something trivial like an expired registration. But unless the cop knows you personally, seeing that the car's owner's drivers license is suspended should not be enough to stop a car. The driver might have borrowed it from the owner (who because of the suspended license might be willing to lend his car out?). Neither is it illegal to be pulling out of a bar parking lot at closing time. You might be the designated driver. But some cops are also known to profile based on race. If you feel that you were stopped because of profiling, and not because of a violation the cop could see, call now. And look at the Motion to Suppress Question immediately above this paragraph.
Do I have to do the DUI program? I heard there was a way out of it.
If you have an out-of-state license prior to the start of the suspension, you can in some cases agree to not drive in California for a very long time in exchange for being released from the obligation to take a DUI program. Judges will also normally order it after conviction anyways, but for out-of-state drivers, some judges will be flexible on this. On the other hand, if you have a California driver's license or for any reason intend to drive in California anytime soon, you will need to take the required class.
Do I have to do SR-22?
Yes. Unless you never want to drive again. FREQUENTLY REQUESTED CONTACTS. The SR-22 guys there have have saved many of my clients more money than what I charge for my fees. Seriously.
FREQUENTLY REQUESTED CONTACTS
Who do I go to for SR-22 Insurance?
There are three places we recommend:
Breathe-Easy insurance at 866-822-7755
Fresh Start Insurance Services, Inc. at 844-443-7374
John MacDonald Insurance at 800-346-7370
Where do I get a list of DUI programs?
Here is a list of ALL LICENSED DUI PROGRAMS IN CALIFORNIA, SORTED BY COUNTY.
Where do I go for an ignition interlock device?
There are three places we recommend:
Breathe-Easy insurance at 866-822-7755
Fresh Start Insurance Services, Inc. at 844-443-7374
John MacDonald Insurance at 800-346-7370
How do I find my court date?
You are lucky. Your county does have a way to look up your court date online at Alameda County Case Look-Up
What you really should do is go to the courthouse and talk to the clerk at the criminal window of the clerk's office. They can look it up and will write out the date for you. Another option is to call the clerk. Look up the clerk's phone number here but expect to get put on hold. For a VERY long time.
The location of the courthouses are
2233 Shoreline Drive - Alameda, California 94501
2120 Martin Luther King, Jr. Way - Berkeley, California 94704
1225 Fallon Street - Oakland, California 94612
661 Washington Street - Oakland, California 94607
39439 Paseo Padre Parkway - Fremont, California 94538
24405 Amador Street - Hayward, California 94544
2500 Fairmont Drive - San Leandro, California 94578
5672 Stoneridge Drive - Pleasanton, California 94588
What is the court's website?
Here is the website for the Alameda County Superior Court
How do I pay my fine? (What is the phone number for "Revenue Recovery"?)
Here is the phone number for Fines Collections -- 510.208.9900
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