If you have been arrested for driving while intoxicated in California, you don’t just have to go to court. In most DUI arrests you also will have to face a hearing with the DMV. In fact, you should move fast after a DUI arrest, because you have just ten days to request a DMV hearing to prevent your driver’s license from being suspended. If you don’t, your license will be automatically suspended for four months (on a first offense).

It is very important when you first get arrested for a DUI that you immediately contact our law firm. We can meet with you and we can contact the DMV on your behalf to demand a DMV hearing be set. Once we do that this will preserve your driving privilege and you will be able to continue to legally drive pending the outcome of the DMV hearing.

California has two separate laws on DUI. One, Vehicle Code 23152 (a), prohibits “driving under the influence of drugs or alcohol (or both)”; the other, VC 23152 (b), prohibits “driving with a blood alcohol level of .08 or higher.” You face the same punishment regardless of how you are charged.

However, it is critical to understand that the sentencing practices vary widely depending upon the specific court your case is pending in. Our law firm has offices from San Diego to Santa Barbara. In each court and county the courts will have different sentencing guidelines. Some courts demand jail time on a first DUI offense. In other courts you can avoid mandatory jail time and do community work service. In every court the specific alcohol school required upon a conviction for a DUI will be different. The court will also suspend your driving privilege for six months upon a conviction for a DUI. Some courts require you to perform community service hours and may demand you complete Alcoholics Anonymous meetings, victims’ rights proceedings or have an ignition interlock device on your car. This is why it is so vital that you retain the services of a law firm like Wallin and Klarich who have drunk driving defense lawyers who know the procedures in the local court where your case is pending.

Special circumstances, like a very high BAC, speeding or refusing to take a BAC test will add more time to any of the basic penalties. Any future violations will be punished more severely if you have a DUI on your record. And clearly, repeat offenses carry increasingly harsh punishments, which include significant time in jail and the loss of your license. In general, a DUI conviction is a huge, life-changing event that will affect your employment, your family and your financial well-being. If you’ve been charged with a DUI, you should call Wallin & Klarich as soon as possible. Our California DUI defense attorneys have the experience and the technical knowledge to find the weak points in the prosecution’s case and win your case or get your charges reduced or dismissed.

At Wallin and Klarich we begin every case with the assumption that our client is INNOCENT of the pending DUI charge. We know what the District Attorney must prove in a DUI case and we make certain that he can proof each element of the crime or we will not allow our client to enter a guilty plea. We work very hard to negotiate a reduced charge to allow our client to remain free from jail time and to retain their driving privilege. This does not happen with hard work and with powerful teamwork between our law firm and our clients.

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DUI Prosecution – california vehicle code 23152(a)

Driving under the influence Overview California Vehicle Code Section 23152

DUI laws in California are very serious crimes. Under California Vehicle Code Section 23152, driving under the influence of drugs or alcohol is a serious criminal offense. A DUI conviction may result in substantial jail time and severe fines and fees. Being arrested for a DUI is just the beginning of a long process. Other than the criminal case you will face, you must also answer to the Department of Motor Vehicles, who will attempt to suspend or revoke your driving privilege. It is important that you speak with a drunk driving defense lawyer if you are facing a DUI charge.

There are different types of DUIs. The most common DUI occurs when the drivers blood alcohol concentration (“BAC”) is at 0.08% or higher at the time of driving. [See California Vehicle Code Section 23152(b)]

A driver may still receive a DUI if his or her BAC is lower than 0.08%. California Vehicle Code Section 23152(a) states that it is unlawful for any person who is “under the influence” of any alcoholic beverage and/or drug to drive a vehicle. It does not say that the drivers BAC needs to be 0.08% or higher. A driver is considered “under the influence” for purposes of California Vehicle Code Section 23152(a) when his or her mental or physical abilities are so impaired by drugs and/or alcohol that he/she is no longer able to drive a vehicle with the same caution as a sober person using ordinary care under similar circumstances.

Another type of DUI offense is a DUI that causes an injury to another person. See California Vehicle Code Section 23153. The DUI penalties are severe, but the penalties will increase dramatically if the DUI caused an injury to another person.

Outside of your DUI case in court, you must also worry about the Department of Motor Vehicles (“DMV”) suspending your drivers license. After an arrest for DUI, the driver has only 10-days from the date of arrest to schedule a DMV Hearing to contest the suspension of his or her drivers license. A DMV hearing is an administrative process that is separate and distinct from the criminal charges. If you do not schedule a DMV hearing, your license will be suspended for a proscribed period of time, and you will waive your right to have a DMV hearing in the future.

If you or a loved one has been arrested for a DUI, it is critical that you speak with an experienced DUI attorney. At Wallin & Klarich, our DUI attorneys have over 30 years of experience in handling all types of DUIs. Our attorneys will aggressively fight to get the best possible result in your case. We understand that this is a stressful time. Our attorneys will always keep you updated with your case and provide you with the quality representation you deserve. Call us today at (888) 749-0034 or visit us on our website at www.wklaw.com. We will be there when you call.

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DUI Prosecution – california vehicle code 23152(a)

Driving under the influence California Vehicle Code Section 23152(a)

To prove that the defendant was driving under the influence of a drug or alcohol, the prosecution must prove that:

The defendant drove a vehicle; and
When the defendant drove, the defendant was under the influence of an alcoholic beverage and/or a drug or under the combined influence of an alcoholic beverage and a drug.

A person is “under the influence” if, as a result of drinking an alcoholic beverage, and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives by itself is not enough to establish whether the person is or is not under the influence of an alcoholic beverage or a drug. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

A “drug” is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would significantly impair his or her ability to drive as an ordinarily cautious person.

Driving under the influence Prosecution California Vehicle Code Section 23152(b)

Driving With a Blood Alcohol Level of 0.08 or greater California Vehicle Code Section 23152(b)

To prove that the defendant is guilty of DUI with a BAC of 0.08% or higher, the prosecution must prove that:

The defendant drove a vehicle;AND
When (he/she) drove, the defendantâ€™s blood alcohol level was 0.08 percent or more by weight.

California Vehicle Code Section 23152(b) states that it is a rebuttable presumption that the person had 0.08 percent blood alcohol level, if a chemical test was performed within three hours after driving, which resulted in a 0.08 blood alcohol level or more.

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DUI defenses – california vehicle code 23152

Driving under the influence Defenses California Vehicle Code Section 23152

There are a number of drunk driving defenses that an experienced DUI attorney can raise to help you get the best possible result in your DUI case. Below are just a few to consider.

Defendant Not Driving Vehicle

If charged with a DUI, the prosecution must prove the defendant was driving the vehicle. If the prosecution cannot prove that the defendant was driving, the charges will likely be dismissed or the defendant will be acquitted of the charges at trial.

Defendant Was Not Under The Influence

If charged with a DUI under California Vehicle Code Section 23152(a), the prosecution must prove that the defendant was “under the influence.” It is a rebuttable presumption that the defendant was not under the influence if his or her BAC was less than 0.05 percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496.) This means that if your BAC was lower than 0.05%, the prosecution has to use evidence outside of your BAC. This makes it more burdensome to prove that you were actually “under the influence” under Section 23152(a).

The arresting officer may also note in the police report “objective symptoms of intoxication” such as blood shot eyes, slurred speech, and the odor of alcohol. Even if objective symptoms of intoxication are notes, it does not necessarily mean you were under the influence. An experienced DUI attorney can illustrate alternative explanations for these symptoms to the jury.

Defendants BAC Was Under 0.08%

If a DUI charge is given under Section 23152(b), the prosecution must prove that the defendants BAC was 0.08% or higher. If the results from the chemical tests show that your BAC was lower than 0.08%, this can be used as a drunk driving defense to dismiss your charges or get you acquitted at trial. You can also use this for your DMV hearing as a defense to having your driverâ€™s license suspended.

Probable Cause

If the original traffic stop was made without probable cause, it is unlawful and any evidence that resulted from the stop must be suppressed. This means that if the officer never had any lawful reason to pull you over, you may have your case dismissed because all of the evidence will be suppressed.

Alternative Explanations For Faulty Driving

There are innocent and alternative explanations for faulty driving other than drunk driving. The majority of traffic violations are committed by sober people. For example, current research shows no link between drunk driving and speeding. An experienced DUI lawyer understands how to elicit favorable testimony from an officer designed to highlight all of the ways you drove properly and safely.

Alternative Explanations for Objective Symptoms of Intoxication

There are often innocent explanations for signs of intoxication noted in the police report (blood shot/watery eyes; slurred speech; nervousness). Such alternative explanations include: allergies, fatigue, eye irritation, embarrassment, frustration, or nerves. In addition, an argument can be made that the odor of alcohol, standing alone, cannot prove impairment for purposes of driving under the influence.

Testing Procedures

Breathalyzer tests are inaccurate. They are prone to mistakes. The results of a chemical test can be challenged if the testing procedures were not properly administered or if the agency maintaining the testing device did not follow regulations. The breathalyzers must constantly be recalibrated to get the most accurate results, and at their best they are still not completely accurate. An experienced DUI attorney can help you defend your case by scrutinizing the breathalyzer tests.

Rising BAC DefenseThe “rising BAC defense” can usually be used when your BAC is close to 0.08% and the last drink you had was consumed fairly recent to the time you were pulled over. Alcohol takes time to metabolize in a human body. Taking a shot of alcohol will not make you immediately drunk or put you over the legal limit. Your BAC will start at 0.00% and will gradually rise as your blood metabolizes the alcohol. The defendant raising this drunk driving defense will argue that at the time he/she was driving, his/her BAC was not over the legal limit.

For example, the defendant was pulled over on suspicion of driving drunk. The defendant fails the field sobriety test and is arrested and taken to the police station to have a blood test conducted. The blood test showed that the defendants BAC was at 0.09%. The blood test was taken an hour after the defendant was originally pulled over. If the defendant just had his last drink before getting pulled over, the defendant would argue that his BAC was still on the rise. The defendant would argue that his BAC was 0.07% or below at the time of driving, and it eventually rose to 0.09% within that hour it took to take the blood test. This would be a viable defense because the BAC must be 0.08% or higher at the time of driving the vehicle, not at the time the blood test was taken.

Mouth Alcohol

“Mouth Alcohol” can be used as a defense to challenge the breathalyzer reading as inaccurate. Did mouth alcohol contaminate the breath test results? Breath alcohol test results can be skewed by latent oral alcohol caused by burping, belching, or by cough syrup and cold medicines, breath sprays, mouthwash, dentures and adhesives, braces, trapped food between the teeth, orthodontics, and more.

Gastroesophageal Reflux Disease (GERD)

Did the DUI suspect suffer from Gastroesophageal Reflux Disease (GERD), heartburn, or acid reflux? These symptoms, and others, can cause alcohol to makes its way up from the stomach and back into the throat and mouth areas. If you experience these symptoms, your breath test could have resulted in a falsely high reading.

Inaccurate Field Sobriety Testing MethodsOften times, DUI suspects with medical conditions, obesity, injuries, and seniors cannot be fairly evaluated using standard field sobriety testing methods. Did the officer administer the tests in full compliance with the requirements set out by the National Highway Traffic Safety Administration (NHTSA)? Were Field Sobriety Tests administered on a flat surface away from passing traffic? If the test was administered on a hill, slope, an uneven surface, on rocky or slippery terrain, in the presence of heavy traffic, wind or rain, or the suspect was wearing constricting shoes or high heels, there is a good chance the results were negatively affected by these factors.

Miranda Rights

Any incriminating statements may be suppressed if the officer did not properly give you your Miranda Warning, on the right to remain silent. The officers only need to give you this warning when you have already been arrested and you are being interrogated by law enforcement.

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DUI sentencing and punishment – california vehicle code 23152

Driving under the influence Sentencing & Punishment: First Conviction: California Vehicle Code Section 23152

Penalty: First Conviction

If a person is convicted of a first-time violation of Vehicle Code Section 23152, that person shall be punished by imprisonment in the county jail from 96 hours to six months, and by a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000). See California Vehicle Code Section 23536.

Upon the conviction of a DUI under California Penal Code Section 23152, the DMV will suspend the drivers license of the person convicted for a period of six months. See California Penal Code Section 13352.Sentencing: Minimum Probation Conditions

Under California Vehicle Code Section 23600, if any person is convicted of DUI, a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following:

A period of probation from three to five years.
A requirement that the person shall not drive a vehicle with any measurable amount of alcohol in his or her blood.
A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcohol content of his or her blood.
A requirement that the person shall not commit any criminal offense.

Additional Conditions of Probation: First Conviction Under California Vehicle Code Section 23538, in addition to the provisions of Section 23600, and any other terms imposed by the court, the court shall impose as a condition of probation that:

The person pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000). The court may also impose, as a condition of probation, that the person be confined in a county jail for 48 hours to six months.
The driver shall enroll and participate in, and successfully complete, a driving-under-the-influence program.
If the first time offender had a BAC that was lower than 0.20%, the court shall refer the offender to participate for at least three months or longer, as ordered by the court, in a licensed program that consists of at least 30 hours of program activities, including education, group counseling, and individual interview sessions.
If the first time offender had a BAC of 0.20% or more, or who refused to take a chemical test, the court shall refer the offender to participate for at least nine months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including education, group counseling, and individual interview sessions.

Driving under the influence Sentencing & Punishment: Second Conviction – California Vehicle Code Section 23152

Penalty: Second Offense Within Ten YearsIf a person is convicted of a second DUI violation of Vehicle Code Section 23152, and the offense occurred within 10 years of a separate DUI or reckless driving charge that resulted in a conviction, that person shall be punished by imprisonment in the county jail for a period of 90 days to one year and by a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000). See California Vehicle Code Section 23540.

The DMV will also suspend the persons license for a period of two years if convicted of being under the influence of alcohol under Section 23152. See California Vehicle Code Section 13352(a)(3). Conditions of Probation: Second Offense Within Ten Years

Under California Vehicle Code 23542, in addition to the provisions of Section 23600, and any other terms and conditions imposed by the court, the court shall impose, as conditions of probation, that the person be confined in county jail and fined under either of the following:

For a period of 10 days to one year, and pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000).
For a period of 96 hours to one year, and pay a fine of at least three hundred ninety dollars ($390) to one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each.

The DMV will still suspend the persons license for a period of two years if convicted of driving under the influence of alcohol under Section 23152 and is given probation. See California Vehicle Code Section 13352(a)(3).

The court shall also require the person to do either of the following:

Enroll and participate, for at least 18 months, in a driving-under-the-influence program.
Enroll and participate, for at least 30 months, in a driving-under-the-influence program.

Driving under the influence Sentencing & Punishment: Third Conviction: California Vehicle Code Section 23152

Penalty: Third Conviction Within Ten YearsIf a person is convicted of a violation of Vehicle Code Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for a period of 120 days to one year and by a fine three hundred ninety dollars ($390) to one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be revoked by the DMV as required in Section 13352(a)(5) for a period of three years. See California Vehicle Code Section 23546.

A person convicted of a violation of Vehicle Code Section 23152 shall be designated as a habitual traffic offender for a period of three years subsequent to the conviction. Being deemed a habitual traffic offender will increase the penalties for certain subsequent driving offenses.Conditions of Probation: Third Conviction Within Ten Years

If the court grants probation to any person punished for a third DUI conviction within 10 years, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in the county jail for a period of 120 days to one year and pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000). See California Vehicle Code Section 23548.

The DMV will suspend the persons license for a period of three years if convicted of driving under the influence of alcohol under Section 23152. See California Vehicle Code Section 13352(a)(5).

The court may also order, as a condition of probation, that the person participate in a driving-under-the-influence program for at least 30 months. In lieu of the minimum term of imprisonment of 120 days, the court shall impose, as a condition of probation, that the person be confined in the county jail for a period of 30 days to one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order.

Driving under the influence Sentencing & Punishment – Fourth or Subsequent Conviction – California Vehicle Code Section 23152

Penalty: Fourth or Subsequent Conviction Within Ten Years On the fourth or subsequent DUI under Vehicle Code Section 23152 within 10 years, the crime becomes a “wobbler.” This means that the prosecution has the discretion to charge the crime as a felony or a misdemeanor. A felony conviction is punishable by imprisonment in state prison for up to three years. A misdemeanor conviction is punishable by imprisonment in county jail for a period of 180 days to one year, and by a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000). Under California Vehicle Code Section 13352(a)(9), the person’s license shall be revoked by the DMV for a period of four years. See California Vehicle Code Section 23550.

A person convicted of the fourth or subsequent DUI under Vehicle Code Section 23152 shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. Being a habitual traffic offender will increase the penalties for certain driving offenses that are committed after being designated. Penalties: Conviction Within 10 Years of Prior DUI Conviction

Under California Vehicle Code Section 23550.5, a person is guilty of a public offense, punishable by imprisonment in the state prison for up to three years or confinement in a county jail for up to one year and by a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000) if that person is convicted of a DUI under Section 23152 or 23153, and the offense occurred within 10 years of any of the following:

A prior DUI conviction under Section 23152 that was punished as a felony because it was the fourth or subsequent DUI conviction under Section 23550 or this section, or both.
A prior DUI causing injury under Section 23153 that was punished as a felony.
A prior gross vehicular manslaughter under California Penal Code Section 192(c)(1) that was punished as a felony.

Each person who, having previously been convicted of gross vehicular manslaughter while intoxicated under California Penal Code Section 191.5(a), a felony violation of vehicular manslaughter while intoxicated under California 191.5(b), is subsequently convicted of a DUI under Section 23152 or 23153, is guilty of a public offense punishable by imprisonment in the state prison for up to three years or confinement in a county jail for up to one year and by a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000).

A DUI conviction under Section 23152 that is punishable by Section 23550.5 will result in the DMV revoking the persons license for a period of four years.

A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years subsequent to the conviction. Being a habitual traffic offender will increase the penalties for certain driving offenses that are committed after being designated. Conditions of Probation

Under California Vehicle Code Section 23552, if the court grants probation for a fourth or subsequent DUI conviction punishable under Section 23550, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in a county jail for a period of 180 days to one year and pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000).

The persons license shall be revoked by the DMV for a period of four years. See California Vehicle Code Section 13352(a)(9).

The court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program. In lieu of the minimum term of imprisonment of 180 days, the court shall impose as a condition of probation that the person be confined in the county jail for 30 days to one year.

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DUI – implied consent law – california vehicle code 23152(a)

Driving under the influence Californias Implied Consent Law – California Vehicle Code Section 23152

Implied Consent For Chemical Testing

Implied Consent Rule for Alcohol – California Vehicle Code Section 23612

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for a DUI offense committed in violation of Section 23140, 23152, or 23153.

Implied Consent Rule for Drugs

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for a DUI offense allegedly committed in violation of Section 23140, 23152, or 23153.

Result of Refusal to Submit to Chemical Testing

The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in the following:

A fine
Mandatory imprisonment if the person is convicted of a DUI under Section 23152 or 23153, AND

- (i) The suspension of the persons privilege to operate a motor vehicle for a period of one year,

- (ii) The revocation of the persons privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate DUI, reckless driving, or vehicular manslaughter conviction, or if the personâ€™s privilege to operate a motor vehicle has been suspended or revoked for an offense that occurred on a separate occasion, OR

- (iii) The revocation of the persons privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate DUI, reckless driving, or vehicular manslaughter convictions or if the persons privilege to operate a motor vehicle has been suspended or revoked two or more times for offenses that occurred on separate occasions.

Option of Which Test to Take For Alcohol

If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.

Officer May Have You Submit to Additional Tests

A person who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which that belief and that clear indication are based. The person has the choice of submitting to and completing a blood or urine test, and the officer shall advise the person that he or she is required to submit to an additional test and that he or she may choose a test of either blood or urine.

If Medical Attention is Needed Prior to Tests

If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the personâ€™s blood, breath, or urine, the person has the choice of those tests that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the personâ€™s choice is limited to those tests that are available.

No Right to Attorney During Tests

The officer shall also advise the person that he or she does not have the right to have an present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

Tests Can Be Administered When Unconscious

A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the non-completion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle. A person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a police officer.

Individuals Exempt From Blood Test

A person who is afflicted with hemophilia is exempt from the blood test.

A person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test.

Notice of Driving Privilege Suspension

If the person, who has been arrested for a DUI under California Vehicle Code Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the police officer, acting on behalf of the department, shall serve the notice of the order of suspension or revocation of the personâ€™s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

Temporary License

If the police officer serves the notice of the order of suspension or revocation of the persons privilege to operate a motor vehicle, the police officer shall take possession of all driverâ€™s licenses issued by this state that are held by the person. The temporary drivers license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of arrest.

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DUI chemical test procedure – california vehicle code 23152

Driving under the influence Chemical Test Procedure – California Vehicle Code Section 23152

Chemical Testing Procedure in DUI Context

Who Can Administer Test

Under California Vehicle Code Section 23158, only the following persons are allowed to withdraw blood for the purpose of determining the alcoholic content of the person being tested:

A licensed physician and surgeon;
Registered nurse;
Licensed vocational nurse;
Duly licensed clinical laboratory scientist or clinical laboratory bioanalyst;
A person who has been issued a “certified phlebotomy technician” certificate pursuant to Section 1246 of the Business and Professions Code;
Unlicensed laboratory personnel regulated pursuant to Sections 1242, 1242.5, and 1246 of the Business and Professions Code;
Certified paramedic acting at the request of a police officer

This limitation does not apply to the taking of breath specimens. An emergency call for paramedic services takes precedence over a police officers request for a paramedic to withdraw blood for determining its alcoholic content. A certified paramedic shall not withdraw blood for this purpose unless authorized by his or her employer to do so.

Additional Test on Request

The person tested may, at his or her own expense, have any of the above listed persons or any other person of his or her choosing to administer a test in addition to any test administered at the direction of a police officer for the purpose of determining the amount of alcohol in the personâ€™s blood.

Disclosure of Test Results

Upon the request of the person tested, full information concerning the test taken at the direction of the police officer shall be made available to the person or the person’s attorney.

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DUI faq – california penal code 23152

Driving under the influence FAQs California Vehicle Code Section 23152

How can the prosecution prove I was driving when I was not even in my car when they arrested me on suspicion of driving under the influence?

Driving may be established through circumstantial evidence. (See Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768). Even though it may be that no officer saw you driving, the prosecutor and DMV may rely on circumstantial evidence (as opposed to direct observation) of driving. Examples of circumstantial evidence used to prove driving include the defendant is found asleep in the driverâ€™s seat with the engine running, the vehicle hood is warm to the touch, the defendant is the registered owner of vehicle, and the defendantâ€™s own admission to driving.

What are the possible reduced charges to a DUI?

An experienced DUI attorney will first attempt to dismiss all the charges against you. If the charges cannot be dismissed in its entirety, the attorney would negotiate with the prosecution to reduce any felony charges to a misdemeanor charges. Misdemeanors have lighter penalties. An attorney can also try to reduce the charges to reckless driving.

A wet reckless is a plea bargained crime from a DUI. It cannot be originally charged. It can only be given through a plea bargain in which the prosecution agrees. It cannot be imposed by the court. A wet reckless indicates that there was alcohol involved when the driver was driving.

The penalties for a wet reckless can be jail time, fines, loss of driving privileges, and enrollment in alcohol educational programs. However, a wet reckless conviction has lighter penalties compared to a DUI. For example, the loss of your driving privileges is not mandatory, your attendance of a DUI class is for a shorter period of time, you will have a shorter probationary period, and the fines assessed will be less than the fine assessed for a DUI. In addition, you will not have to fill out a SR-22 form to show proof of insurance before you get your driverâ€™s license back. It may also be beneficial to some professions that require the reporting of DUI convictions.

It is a reduced charge with lighter penalties, but it is still considered as a functional equivalent to a DUI conviction. What this means is that if you get a subsequent DUI within 10 years, the wet reckless can be considered a prior conviction to increase your punishment as if you had plead guilty to a DUI. This means that if you have one wet reckless conviction, the next DUI conviction you get will be considered as your second DUI. A second DUI has increased penalties. Another downside to a wet reckless conviction is that your insurance company will also consider a “wet reckless” as a DUI for insurance purposes. The cost of auto insurance will most likely increase. See California Vehicle Code Section 23103.5.

A dry reckless refers to reckless driving without any alcohol involved. This is a misdemeanor reckless driving under California Vehicle Code Section 23103. In some DUI cases, your skilled DUI defense lawyer may be able to convince the prosecution to reduce the charge to a dry reckless. With a conviction for a dry reckless, you face the possibility of jail time, fines and probation. However, the beneficial element of this charge is that it is not “priorable.” If this charge is given, it will not be treated as a DUI if you are arrested in the future for a subsequent DUI.

When can the prosecution use PAS test results as evidence?

The results of a preliminary alcohol screening (PAS) test are admissible upon a showing of either compliance with Title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.

If you or a loved one is facing a charge for a DUI, it is important that you speak with the experienced DUI defense attorneys at Wallin & Klarich. With our 30 years of experience, we will help guide you through the long court process as we defend your rights and fight to get you the best possible result in your case.

More California Drunk Driving Information

Testimonials

Drunk Driving Offenses

Attorney Matt Wallin stood up for me and by my side through the entire DUI process. His legal representation through the judicial system got my license back, when the police had not conducted the chemical test of my blood (BAC) properly.

Without Attorney Matt Wallin I would not have known that my rights had been violated by the arresting officer. If you need a DUI defense attorney, contact Matt Wallin. He is personable, friendly, and has great relationships throughout the Orange County court system.

- DM

I was charged with Driving under the influence of drugs by the Ventura County District Attorney’s Office. I believed I was innocent of the charges and wanted to fight my case even if I had to risk jail time. Originally, I hired another law firm but they tried to convince to plead guilty even though I thought I was innocent.

So, I sought the services of the experienced criminal defense law firm of Wallin and Klarich and met with Rene Munoz who reviewed my case and told me I had a good case. He saw that the CHP officer made several inconsistent statements in the police report and various other mistakes. Wallin and Klarich’s brilliant associate Rene Munoz told me that to obtain the best possible result you have to hire a law firm that has the guts to “not back down” and to fight for their clients. In fact Mr. Munoz refused to back down and we demanded a trial. Wallin and Klarich never stopped fighting and my case was dismissed when Wallin and Klarich pushed my case to the eve of trial. Mr. Munoz helped preserve my reputation and career because of his willingness to take on the prosecutor.

If you want a law firm that is really willing to fight for you to obtain the best possible result possible in your case I would strongly recommend you calling Wallin and Klarich. I am sure glad I did.

-Confidential Client

After causing an accident, I was charged with Driving Under the Influence. Vehicle Code Section 23152(a) and Vehicle Code Section 23152 (b) which are both misdemeanor offenses. In addition, at the time of the accident I had a very high blood-alcohol content well above the legal limit and faced a sentence enhancement because of that. To make matters worse, I failed to provide insurance and was charged with an additional account.

I was looking at serving more than 6 months in county jail. This would have been devastating to my career, my family, and my reputation. Thankfully I found the criminal defense firm of Wallin and Klarich who took control of the case and advocated on my behalf, without me having to ever step foot inside the courthouse. Wallin and Klarich’s familiarity and reputation with my court and his relationship with the prosecutor and judge allowed for a very favorable outcome. I was only sentenced to informal probation (no probation office) and not a single day of jail time. I would highly recommend hiring Wallin and Klarich for any drinking and driving related criminal offense. It will make the difference between jail and freedom.”

-K. L.

I was charged with driving under the influence of alcohol; because I had two prior felony convictions within 10 years of my new DUI case, the new case was also charged as a felony. In addition, my blood alcohol level on my new case was a 0.3, over three times the legal limit. I have also had approximately 17 alcohol related arrests over my lifetime. I then contacted the law offices of Wallin & Klarich to help me. I soon learned that Wallin & Klarich is unique in that they place one attorney per court which allows that attorney to build a relationship with the judges and the district attorneys and generally mastered a particular court. This in turn permits the Wallin & Klarich attorney to get better results for the client. Due to my record the district attorney wanted to sentence me to state prison for 16 months to two years. However my attorney negotiated with he judge and ended up getting sentenced to a program. I WAS NOT SENTENCED TO ONE DAY IN JAIL! I truly believe that without the familiarity my Wallin & Klarich attorney had with the court I would be in state prison.

-D.M.

I was under 21 years old and was cited for driving under the influence of alcohol. I knew what I did was wrong, but I did not know the full consequence of my actions. I learned that if either the DMV or the court find a person under 21 years of age driving with a blood alcohol level over 0.08% the law requires their license to be suspended for 1 year in addition to other consequence. My blood results were over the legal limit and I was scared. I hired one firm but did not feel secure in their representation or that they really treated my case as very important. Then I hired Wallin & Klarich and immediately felt my case was in good hands. WK Attorney won my DMV hearing and stopped them from suspending my license. Then I was able to get my court case reduced to a less charge and persuaded the judge not to suspend my licenses. He saved my driving privilege so I can still attend school and work.

-S. L.

I was arrested and charged with driving under the influence. I took a blood test, which the police claimed was 0.15. I retained the Law offices of Wallin & Klarich to represent me. My attorney David Cohn fought for me, he was aggressive and knowledgeable with the issues surrounding my DUI case and ultimately resulting in the entire case being dismissed. Thank you David and Wallin & Klarich. I would highly recommend them to family and friends.

-M. J.

I was on my way home at about 1a.m., and a police officer began to follow me. For no apparent reason at all, the officer pulled me over. He said that I was weaving and arrested me for driving under the influence. I later found out that I had a blood alcohol content of 0.10.

I hired the Law firm of Wallin & Klarich, and my attorney obtained all the pertinent records pertaining to my case. My attorney filed a motion to suppress the evidence based on the testimony of a witness that my driving was fine. Also, he showed the judge that the officer was less than truthful about my driving because there was only one lane of traffic due to road construction. The judge ruled that the stop lacked probable cause and dismissed the case. Thank you Wallin & Klarich.

-R.P

“After interviewing various attorneys and doing some research online, I retained the Law Offices of Wallin & Klarich to represent me. I was charged with a DUI and driving on a suspended license. Attorney David Cohn went to court and filed a motion to dismiss the case, he was aggressive and determined to see that the case would be dropped. When we appeared in court for the hearing, the judge granted the motion and case was dismissed.”

-Thank you Wallin & Klarich.

I was on my way home from the desert at dusk on a two lane highway when a car approached from the other direction. The other car was swerving onto my side of the road and then straightened out. As the car got very close to me it swerved onto my side of the road again. At the last moment, I turned off onto the shoulder, and my jeep spun out. The accident caused the hood of the jeep to fold, the windshield was broken, the roof was partially collapsed, and there was major front-end damage. The jeep was totaled.

Other motorists called the police. When the CHP arrived I admitted that I had been drinking. At the hospital, I was treated and tested for my blood alcohol content. I later found out that I had alcohol content of 0.14. The CHP officer arrived at the hospital and took my driver’s license. He handed me a pink sheet of paper and told me that my license would be suspended.

I hired the law offices of Wallin & Klarich. My attorney obtained all the records and DMV documents pertaining to my case. After a review of the evidence, my attorney set up an in person hearing at the DMV. It turned out that even though my blood alcohol level exceeded the limit, the blood test was done more than three hours after the time of driving in violation of the administrative regulations governing blood test procedures. Shortly thereafter, I received notice that my driver’s licenses had been reinstated. Thank you Wallin & Klarich for your help in this matter. Thank you Wallin & Klarich for being there when I needed you.

-J.H.

I was arrested for a DUI with injury from traffic collision. I sought the services of Wallin & Klarich for representation. Because this accident involved alcohol and injuries, I was facing a felony charge, which could have placed me in state prison. My blood alcohol level came back at 0.06%. My attorney had my blood re-tested and it came back 0.05% prior to my court date, my attorney was able to get these charges filed against me as a misdemeanor. Once in court, my attorney negotiated with the DA to get the DUI with accident charge dismissed. He was able to get the charge reduced to a wet-reckless. I did not have to serve a day in jail. I would recommend the services of Wallin & Klarich to anyone in need of an attorney.

-M.M.

I was arrested and charged with a first time DUI. I was facing possible jail time and losing my license. I hired the law offices of Wallin & Klarich to assist me with my case in Riverside Court. They were able to negotiate with the district attorney and get the DUI charge dismissed and reduced to a dry reckless, which is not alcohol related, and will not affect my license. I would recommend the services of Wallin & Klarich if you were in need of an experienced attorney who knows the local courts.

-L. M.

“I knew I was well represented but the NOT GUILTY jury trial verdict in Los Angeles County just reinforced my praise for my lawyer at Wallin & Klarich. We went up against the governments senior criminalist and a 14 years veteran of the CHP who qualified as a Drug Recognition Expert and still won. The officer indicated he saw me weaving for several miles and speeding at more than 85 miles per hour. My attorney was able to attack the unreliability of the prosecutors evidence. My only reason for going to trial was because my job was on the line. I am glad I did, I was able to keep my job. I will refer anyone who needs a good lawyer to Wallin & Klarich. Thank you for helping me when I was in a jam. You guys are real problem solvers. Thank you again.”

-J. G.

“On March 4, 2000, I was arrested for my second DUI in seven years. I tested for a 0.17 Blood alcohol level. I was concerned about having to serve jail time, having to install the breathalizer machine in my car and having an expensive fines and a lengthy 18 months state mandated program.

Thanks to the efforts of my lawyer at Wallin & Klarich he was able to have my entire 2nd time DUI case thrown out!.. I resolved the case for a non moving violation which resulted in zero points being put on my driving record. The result was no jail, a small fine, and only one year of probation. I could not have asked for a better result.

Thank you so much Attorney of Wallin & Klarich for helping protect my rights.”

-D. A.

“I just wanted to take this opportunity to express how happy and impressed I was with the way you handled my case. Not only did I feel comfortable with your expertise, but also the reputation of your firm exceeded all my expectations. I will definitely refer any of my friends, family or colleagues to you and your firm should they require your professional abilities. Thank you for all your help.”

-C. R.

“I was charged with driving under the influence of alcohol and hired Wallin & Klarich. I knew that I was intoxicated, but I also knew that my rights had been violated and that officers did not see me drive even though others had. My attorney met with me on several occasions to strategize how we were going to disprove the charges. He was able to convince the District Attorney to dismiss the DUI case and only charge with me with drunk in public. This was important since I was already on probation for a previous DUI. This result was fair since my blood alcohol level was 0.24%, well over the legal limit. Wallin & Klarich was also able to review and argue all the evidence at my DMV hearing. Wallin &Klarich found out that the officer lied and was not certified under Title 17 to give breath results and had my entire DMV case thrown out and my driver’s license returned to me. Originally attorneys told me that I could go to jail and lose my license for a year. Wallin & Klarich helped me keep my license.”

-F. B.

“I was charged with a second DUI, the District Attorney wanted me to do jail time, suspend my license for 18 months and join an alcohol program for 18 months. I hired the law offices of Wallin & Klarich and through the efforts of my lawyer, my case was reduced to a reckless driving charge with no jail time, no penalty on my drivers license and hundreds of dollars less in fines. I am very grateful to Wallin & Klarich.”

-J. T.

“I was on probation for DUI and I was arrested for a second DUI. On the following night I was arrested again for DUI, which would make it my third DUI. I hired Wallin & Klarich to handle my cases. Because of my prior DUI and my blood alcohol level, I was facing a mandatory minimum jail sentence of 180 days. My attorney negotiated my case with the District Attorney and was able to get me help for my addiction. She was able to negotiate NO JAIL. I was sentenced for six months in an out patient rehabilitation program. Not only did my attorney keep me out of jail, she was also able to get me the help I needed to fight my addiction.”

-K. A. E.

“I want to say that I am pleased to have been represented by Wallin & Klarich. My attorney represented me in a DUI during a very difficulty time for me. He managed to get my refusal allegations stricken to help me avoid jail. For that I am pleased and will recommend Wallin & Klarich to my friends.”

-M. C.

“I had a public defender when I started my case. The public defender said I was looking at one year or year and a half jail. I was also looking at substantial fines. My attorney of Wallin & Klarich helped me avoid that offer and saved me substantial money in fines. I will recommend him to all my friends. I am very, very pleased with my legal results.”

-C. N.

“I am very pleased with my legal representation by Wallin & Klarich. I was facing jail time because of having a high blood alcohol level and for having a car accident. I meant no harm. Wallin & Klarich was able to keep me out of jail and get me the help. I would recommend Wallin & Klarich to anyone.”

-S. K.

“I was arrested for a DUI. I was concerned because the DUI involved an accident with my car being totaled. I was worried about jail so I hired Wallin & Klarich. Wallin & Klarich was able to keep me out of jail and was able to resolve my case for a lesser charge. I received a nominal fine and only a one-day (8 hour) alcohol class. I am very, very pleased with my results.”

-M. R.

“I was very pleased with my legal representation. I was charged with driving under the influence and for damaging prison property. My attorney got me a nonalcoholic related charge. I did not have to do the alcohol classes. He also got me a NOT GUILTY finding by way of a Court Trial on the allegation of having a 0.08 or higher. I am very pleased with my result.”

-R. L.

“I was arrested for a DUI and had a blood alcohol level of 0.12. My attorney was able to poke holes in the case and get me a reduced charge. I am pleased with my representation by Wallin & Klarich. Wallin & Klarich is a very good law firm.”

-A. A.

“I had a 0.14 BAC through a blood test. My lawyer at Wallin & Klarich was able to get me reduced charges by showing a chain of custody problems. Needless to say I am very pleased with my representation by Wallin & Klarich. I will recommend them to all my friends.”

-G. B. J.

“On July 8, 2000 I was arrested for driving with a blood alcohol of 0.18. My lawyer at Wallin & Klarich was able to show a title 17 violation that helped me resolve the case for a lesser charge. I am very pleased with my legal representation by Wallin & Klarich.”

-J. T.

“I would like to thank you for all your help. To say the least, this was a very traumatic period in my life. I was facing two situations in two courts. You were able to explain everything to me and work closely with the courts to get me through this trying period. Initially, I knew I was facing lots of jail time as well as other consequences. Together, we were able to get me to face my problem and seek help. You were able to even alleviate some of the harsh court consequences by implementing my alcohol program as part of my sentence. In this way, the courts’ were able to see that I was serious about making myself better and they gave me this opportunity. Thank you for all your hard work and compassion.”

-T. L.

“I was arrested for a Misdemeanor DUI in October 1999. I contacted Wallin & Klarich for representation. Wallin & Klarich was assigned to handle my case. My case was not filed until May of 2000. Wallin & Klarich was informed that in addition to the misdemeanor charge of DUI, charges of Felony Evading were filed. I was never cited for this nor informed of this additional charge. I was willing to admit the DUI charge and take my case consequences, which would have entailed NO jail time. Wallin & Klarich presented the evidence to the District Attorney to try and resolve the case but he did not want to listen. He wanted to send me away to State Prison for 2 years. With Wallin & Klarich’s advise the FELONY EVADING CHARGE WAS DISMISSED. Wallin & Klarich was able to keep me out of State Prison, and from losing my job and everything I had ever worked for. I would recommend Wallin & Klarich to anyone who is in need of a good criminal attorney who fights for their clients.”

-C. F.

“I was very depressed and did not know what to do when when I got arrested again for my third DUI. I called Wallin & Klarich and my attorney was able to successfully resolve my case. My lawyer gave me hope and he was right that, “there is a light at the end of the dark tunnel.”

-J. R.

“My husband was arrested for a DUI for having a 0.15 BAC. He was being charged with a 2nd time DUI offense, looking at mandatory jail, a lengthy 18-month alcohol program and stiff fines. His lawyer George Kita filed a MOTION TO SUPRESS all evidence seized as a result of an ILLEGAL TRAFFIC STOP. He WON the motion! No fines, No jail and No alcohol school. My family and I thank Wallin & Klarich.”

-M. W.

“I am writing this letter to thank you for your great effort on my behalf. I was charged with a DUI and an accident and to make things worse, with an allegation that I refused a blood alcohol test. Wallin & Klarich worked hard on my case. I was looking at 45 days in the county jail, but Wallin & Klarich was able to talk to the prosecutors and expose the weaknesses of their case. In turn, the prosecutors finally agreed that the case merited NO JAIL TIME. Not having to go to jail for that long, saved me my job and my family. Thanks Wallin & Klarich.”

-J. P.

“I had four open DUI’s, one could have been a felony. I am thankful for the services of Wallin & Klarich. I was very happy with the services provided and would recommend the law firm of Wallin & Klarich to anyone else in my position.”

-T. B.

“I was arrested for a DUI with injury from a traffic collision. I sought the services of Wallin & Klarich for representation. Wallin & Klarich was assigned to handle my case. Because this incident involved alcohol and injuries, I was facing a felony charge which could have placed me in state prison. My blood alcohol level came back at 0.06%. Wallin & Klarich had my blood re-tested and it came back to 0.05%. Prior to my court date, Wallin & Klarich was able to get the charges against me filed as a Misdemeanor. Once in court, Wallin & Klarich negotiated with the District Attorney to get the DUI with Accident charge dismissed. They were able to get the charge reduced to a wet-reckless. I did not have to serve one day in jail. I would recommend the services of Wallin & Klarich to anyone in need of an attorney who will fight for them.”

-S. M.

“I was charged with driving under the influence when driving from Las Vegas to California. I am a lieutenant in the Navy and was immediately sent to sea; however, prior to leaving I hired the law firm of Wallin & Klarich. While at sea, my attorney and I communicated from email aboard my ship and we were able to discuss my case extensively. I knew that a conviction for a DUI would jeopardize my career in the military especially because I caused an automobile accident as well. On my own initiative and with the help of my attorney I started alcohol programs aboard the ship and obtained letters of recommendation and a brief history of my life. My attorney was able to argue with the DA and eliminate jail time and a DUI charge and eventually get a charge reduced. The reduced charge will allow me to live and continue working as an officer in the armed forces without a court martial or obstructing my career goals.”

-E. Be.

“When I went to your office, I was looking at some serious jail time. I had two prior DUI convictions and was facing my third in front of an especially tough Judge in Whittier. I was told that I would be spending at least 6 months in jail. I am a person with special needs and could not survive that long in jail. I also had to take care of my ailing father. Thanks to Wallin & Klarich, I was able to serve only 4 months and do so at my house on house arrest. This allowed me to take care of my father and go to work. Thank you for all your efforts.”

-T. J.

“I was arrested for a DUI with enhancement penalties. My attorney at Wallin & Klarich was able to get all the enhancements stricken to avoid any mandatory jail. I am impressed.”

-W.H.

“I had a 0.25 Blood alcohol level test result. Yet my attorney was able to show that I had a rising blood alcohol level and was able to get the enhancement charged dismissed. Terrific result!”

-C. R.

“I was charged with driving under the influence; my blood alcohol level was a 0.19, which is over twice the legal limit. I hired the LAW OFFICES OF Wallin & Klarich to defend me in the court matter and for the DMV hearing. I learned that while the court could have restricted my license for 90 days, the DMV could have suspended it for up to 5 months, which means that I would NOT be permitted to drive for any purpose because of the potential DMV hearing result. This would have been a disaster for me since my job requires that I drive every day. As such I needed an experienced attorney to represent me with the DMV and with the court. I hired WALLIN & KLAIRCH because of their experience with DMV and DUI matters. My Wallin & Klarich attorney attended the hearing without my being present; a few days later I received a letter saying that the action against me had been SET ASIDE, meaning that I had won the hearing and my license would NOT be suspended despite my 0.19 blood alcohol level. I truly believe that the experience Wallin & Klarich attorneys have in DMV and DUI matters. which makes up the majority of their practice, made the difference in my case and helped me keep my job.”

-A.H.

I was involved in a traffic collision and was arrested a few hours later at my house with the officer claiming that I was driving under the influence of alcohol. I had exchanged information with the party involved and over an hour later she decides that she feels I had been drinking and calls the police. The DMV wanted to suspend my license for 1 year because I was under 21 years of age. I hired Wallin and Klarich to represent me with this DMV matter. Wallin and Klarich conducted many hearings with the DMV and is known by the Driver Safety Hearing Officers. The attorney argued several issues with the DMV Officer including no probable cause for the contact at my home, and the Officer could not establish the time of driving which is required under Title 17. The hearing officer rendered a favorable decision and my license has been reinstated with no action against it. Wallin and Klarich saved me from having my license suspended for 1 year by the DMV. If you are ever in need of an attorney, I would highly recommend you hire Wallin and Klarich. They will fight for you!

-Confidential Client

Dear Wallin & Klarich Attorney:

Wallin and Klarich provided excellent service when my 18-year-old son was arrested for a DUI. Their dedication to insuring that my son received a second chance at being a responsible, productive adult was impressive, to say the least. As a mother, it means the world to me. As a legal professional, I know what a find it is to have legal representatives with their talent and quick-wittedness on your side. Hopefully, my son will not need legal assistance again. But if he does, I would not hesitate to call Wallin and Klarich.

Sincerely,
S. D.

I was arrested for a DUI. I was facing a possible suspension of my license and possible jail time. I hired Wallin and Klarich to represent for the court proceedings and also the DMV hearing regarding my license. An attorney was assigned to handle my case. She has conducted many hearings with the DMV and is known by the Safety Hearing Officers in San Bernardino Driver’s Safety. She was successful in her cross examination of the police officer to show that the officer could not establish a time of driving or if I was even driving the vehicle. Due to her argument, the action against my license was set aside and I did not suffer any type of suspension on my license. Also due to the above issues, she was able to convince the District Attorney not to file the criminal case. In fact, the case was rejected for lack of sufficient evidence. If you are ever in need of an attorney, I would highly recommend you hire Wallin and Klarich. Their associates are local to the courts, which helps with negotiations with the District Attorneys and the Judges.

-Confidential Client

Sometimes you just have to trust in a voice. I did. And it made all the difference.

A few days after I was arrested for my second DUI this past January, I flipped open the Yellow Pages to a section I wouldn’t wish on my most loathsome enemy- law firms touting their DUI expertise. The whole process of calling strangers and recounting the details of an event still agonizingly fresh in my memory can be frustrating and demeaning. Not to mention downright frightening, once you hear the sanctions you’re facing as a repeat offender- as much as a year behind bars in some cases. Jail time, they all confirmed, was most likely a forgone conclusion.

So, who was I to choose? Nobody was promising me community service, house arrest or a papal dispensation. Even those guys with the ubiquitous slogan didn’t seem all that friendly. The answer came from my gut, or more precisely, my ear.

I called Wallin and Klarich and spoke to an experienced attorney. I must admit, I found the tone of her voice utterly reassuring. It possessed a certain calm precision no doubt honed from hours in the courtroom. But there was something else. An immediacy. An accessibility. True sincerity. Without making and promises, she won me over at once. And I couldn’t help thinking that this is the person I want talking on my behalf to the district attorneys.

When we met in person, my aural hunch proved true. She was the real deal. As my case moved forward, she was always on top of things, quick to return my calls and decisive when a continuance was needed to keep me away from a particularly severe judge. In the final analysis, her relationships with attorneys in the D.A.’s Office helped cut my jail time by more than half. Something I’m ecstatic about every morning I wake up in my own bed.

Facing a second DUI is something I wish on nobody. But should you find yourself in that harrowing predicament, it sure helps to have a strong voice helping you through.

-J. P.
Erstwhile TV Writer

I am submitting this letter and the enclosed gift as a token of gratitude to my son’s attorney [from Wallin & Klarich]. My son was charged with two counts of driving under the influence and reckless driving. He was facing at least 60 days in the Orange County Juvenile Detention Facility. After three appearances, submitting samples to a retained expert and some hard nosed negotiations however, [my attorney] dismissed the driving under the influences charges. As a result, my son did not serve a day in Juvenile Hall. Thanks again. We hope that neither we nor anyone else we know will ever need your services in the future, but if we ever come across someone that may need legal help, we will definitely recommend you any time.

Sincerely,
L.S.

I was arrested for driving under the influence and being under the influence of a controlled substance. I went into court the first day and the District Attorney’s Office offered 120 days in Orange County Jail. Then I hired [a Wallin & Klarich attorney]. After one appearance, [he] reduced the jail time to the mandatory minimum. I thought that I would have to surrender myself, but [my attorney] asked me to be more patient and after three months of tough negotiations and countless number of exchanges with experts and potential witnesses, [he] dismissed two counts and I did not have to serve any jail time.

Thank you [Wallin & Klarich]

-L.G.

More California Drunk Driving Information

Drunk Driving: What You Need to Know

DUI causing an injury overview – california vehicle code 23153

Driving under the influence Causing Injury Overview – Caifornia Vehicle Code Section 23153

Under California Vehicle Code Section 23152, driving under the influence (“DUI”) is a serious offense in California. DUI penalties may include jail time, fines, fees, and loss of oneâ€™s driving privileges. However, if you are arrested for a DUI and you caused an injury to another person, the crime will have more severe penalties and be charged under California Vehicle Code Section 23153.

Under California Vehicle Code Section 23153, the DUI is similar to Section 23152 with the additional element of an injury occurring to another person. The crime is committed when (i) a person drives under the influence, (ii) the person commits an illegal act or neglects to perform a legal duty, and (iii) another person is injured as a result. See California Vehicle Code Section 23153(a). A person is “under the influence” if, as a result of drinking an alcoholic beverage or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. Under this subdivision, there is no requirement that the drivers blood alcohol concentration (“BAC”) was 0.08% or higher.

You can be charged under California Vehicle Code Section 23153(b) if your BAC is 0.08% or higher. Under this subdivision, the crime is committed when a person drives with a BAC of 0.08% or higher, the person commits an illegal act or neglects to perform a legal duty, and another person is injured as a result.

The penalties are severe for a DUI causing injury to another person. In some circumstances, the crime can be a misdemeanor. In other circumstances, the crime will be a felony. The punishment can increase if there are multiple people injured. It is essential that you speak with an experienced attorney who can provide you with all the available defenses in your case.

You should also be aware of the Department of Motor Vehicles (“DMV”) suspending your drivers license. After an arrest for DUI, the driver has 10 days to schedule a DMV Hearing to contest the suspension of his or her drivers license. A DMV hearing is a process that is separate from the criminal charges. If you do not schedule a DMV hearing, your license will be suspended for a minimum of 90 days and you may not have a DMV hearing in the future.If you or a loved one has been arrested for a DUI causing an injury, it is critical that you speak with an experienced DUI attorney. At Wallin & Klarich, our DUI attorneys have handled all types of DUI cases for over 30 years. Our attorneys are highly knowledgeable on how to fight DUI charges. We also have access to experts on chemical testing who can provide critical input on any inaccuracies that may have occurred. Our attorneys will defend your rights and fight to get you the best possible result in your case. It does not matter what your BAC was. You should speak with an attorney to see what all of your options are.

More California Drunk Driving Information

DUI causing an injury prosecution – california vehicle code 23153(a)

DUI Causing an Injury Prosecution: California Vehicle Code Section 23153(a)

To prove that the defendant is guilty of DUI causing injury, the prosecution must prove that:

The defendant drove a vehicle;
When he/she drove, the defendant was under the influence of an alcoholic beverage or a drug;
While driving under the influence, the defendant also committed an illegal act or neglected to perform a legal duty;AND
The defendantâ€™s illegal act or failure to perform a legal duty caused bodily injury to another person.

A person is under the influence if, as a result of drinking an alcoholic beverage and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

A drug is a substance, or combination of substances other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.

Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act.

A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. All the circumstances established by the evidence must be considered in deciding whether a consequence is natural and probable.

There may be more than one cause of injury. An act causes bodily injury to another person only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the injury.

Driving under the influence Causing Injury Prosecution: California Vehicle Code Section 23153(b)

Driving With 0.08 % Blood Alcohol Causing Injury â€“ California Vehicle Code Section 23153(b)

To prove that the defendant is guilty of this crime, the People must prove that:

The defendant drove a vehicle;
When (he/she) drove, the defendantâ€™s blood alcohol level was 0.08 % or more by weight;
When the defendant was driving with that blood alcohol level, (he/she) also (committed an illegal act/ [or] neglected to perform a legal duty);AND
The defendants (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person.

It is a rebuttable presumption that the person had a BAC of 0.08 % or more in his or her blood at the time of the performance of a chemical test within three hours after driving.

An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act.

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DUI causing an injury defenses – california vehicle code 23153

DUI Casuing an Injury Defenses: California Vehicle Code Section 23153

Driving under the influence Causing Injury Defenses: California Vehicle Code Section 23153

There are a number of drunk driving defenses. An experienced DUI lawyer can raise these defenses to help you get the best possible result in your case.

Defendant Not Driving Vehicle

If charged with a DUI causing an injury, the prosecution must prove the defendant was driving the vehicle. If the defendant can prove that he or she was not driving, the charges will be dismissed or the defendant will be acquitted of the charges at trial.

Defendant was not Under the Influence

If charged with a DUI under California Vehicle Code Section 23153(a), the prosecution must prove that the defendant was “under the influence.” It is a rebuttable presumption that the defendant was not under the influence if his or her BAC was less than 0.05 %. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496.) This means that if your BAC was lower than 0.05%, the prosecution has to use evidence outside of your BAC. It makes it a more difficult burden to prove that you were actually “under the influence” under Section 23153(a).

The arresting officer can attempt to show that you were under the influence by testifying that you had blood shot eyes, slurred speech, the smell of alcohol on your breath, and other objective symptoms of intoxication. Even if this were true, it does not necessarily mean you were under the influence. An experienced DUI attorney can illustrate to the jury alternative reasons for these symptoms.

Defendants BAC Was Under 0.08%

If a DUI charge is imposed under Section 23153(b), the prosecution must prove that the defendants BAC was 0.08% or higher. If the results from the chemical tests show that your BAC was lower than 0.08%, you can use this as a defense to dismiss your charges or get acquitted at trial. You can also use this for your DMV hearing as a defense to having your drivers license suspended.

Emergency Doctrine

The prosecution must prove that the defendant committed an illegal act or failed to perform a legal duty. However, a defense can be made for this element if a sudden, imminent, and emergency situation forced the defendant to act the way he or she did. A person facing a sudden and unexpected emergency situation not caused by that personâ€™s own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer.

No Injury Caused

The prosecution must prove that a bodily injury was caused to another person. If another person was not injured, the defendant cannot be convicted of a DUI causing an injury. However, the defendant may still be convicted of a DUI under California Vehicle Code Section 23152.

Probable Cause

If the original traffic stop was made without probable cause, it is an unlawful stop and any evidence that resulted from the stop must be suppressed. This means that if the officer never had any valid reason to pull you over, you will most likely get your case dismissed because all of the resulting evidence will be ignored by the court.

Testing Procedures

The results of a chemical test can be challenged if the testing procedures were not properly administered or if the agency maintaining the testing device did not follow regulations.

Breathalyzer tests are inherently inaccurate. They are prone to mistakes. The breathalyzers must constantly be recalibrated to get the most accurate results. Even at their best they are still not completely accurate. An experienced DUI attorney can help you defend your case by scrutinizing the breathalyzer tests.

Rising BAC Defense

The “rising BAC defense” can usually be used when your BAC is close to 0.08% and the last drink you had was consumed fairly recent to the time you were pulled over. Alcohol takes time to metabolize in ones body. Taking a shot of alcohol will not make you immediately drunk or put you over the legal limit. Your BAC will start at 0.00% and will gradually rise as your blood metabolizes the alcohol. The defendant raising this defense will argue that at the time he/she was driving, his/her BAC was not over the legal limit.

For example, the defendant was pulled over on suspicion of driving drunk. The defendant fails the field sobriety test and is arrested and taken to the police station to have a blood test conducted. The blood test showed that the defendants BAC was at 0.09%. The blood test was taken an hour after the defendant was originally pulled over. If the defendant had just had his or her last drink before getting pulled over, the defendant would argue that his or her BAC was still on the rise. The defendant would argue that his or her BAC was 0.07% or below, and it eventually rose to 0.09% within that hour it took to take the blood test. This would be a viable defense because the BAC must be 0.08% or higher at the time of driving the vehicle, not at the time the blood test was taken.

Mouth Alcohol

“Mouth Alcohol” can be used as a defense as to why the breathalyzer reading was inaccurate. Mouth alcohol refers to the alcohol that is present in your mouth. Having mouth alcohol at the time you are blowing into a breathalyzer will result in an inaccurate reading since the breathalyzer will mistake the alcohol in your mouth as being present in your system. Burping or vomiting may cause mouth alcohol. The alcohol vapors will travel from your stomach into your mouth. Thus, it will make it seem like you have more alcohol in your system than you actually do.

Miranda Rights

Before police can question you after your arrest, they are required to notify you of your Miranda Rights, which include your right to remain silent and to have an attorney present on your behalf. Any incriminating statements you may have uttered can be suppressed if the arresting police did not properly give you your Miranda Rights before they began interrogating you.

“Legal Drugs” Not a Defense

It is not a defense that the defendant was legally entitled to use the drug.

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DUI causing an injury sentencing and punishment – california vehicle code 23153

Driving under the influence Causing Injury Sentencing & Punishment: First Conviction: California Vehicle Code Section 23153

Penalties: First Conviction: California Vehicle Code Section 23554

The penalty for a first time conviction of a DUI causing injury is listed under California Vehicle Code Section 23554. DUI causing an injury is a “wobbler.” This means the prosecution has the discretion on whether to charge the crime as a felony or a misdemeanor. A felony conviction is punishable by imprisonment in the state prison for up to three years. A misdemeanor conviction is punishable by imprisonment in county jail for a period of 90 days to one year. A fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000) will be accessed. The persons driving privilege shall be suspended by the DMV for a period of one year pursuant to California Vehicle Code Section 13352(a)(2).

Sentencing: Minimum Probation ConditionsUnder California Vehicle Code Section 23600, if any person is convicted of DUI, a violation of Section 23152 or 23153, and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following:

1. Notwithstanding Section 1203a of the Penal Code, a period of probation from three to five years.
2. A requirement that the person shall not drive a vehicle with any measurable amount of alcohol in his or her blood.
3. A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcoholic content of his or her blood.
4. A requirement that the person shall not commit any criminal offense.

Additional Conditions of Probation: First ConvictionUnder California Vehicle Code Section 23556, if probation is granted for a first time conviction of a DUI causing injury, in addition to the provision under California Vehicle Code 23600, and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person be confined in the county jail for five days to one year and pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000).

The persons privilege to operate a motor vehicle shall be suspended by the DMV for a period of one year pursuant to Section 13352(a)(2).

The court shall also impose as a condition of probation that the driver shall participate in, and successfully complete, a driving-under-the-influence program, an alcohol and other drug education program, and a counseling program.

The court shall refer a first-time offender whose BAC was less than 0.20 % to participate in, as ordered by the court, a licensed program that consists of at least 30 hours of program activities, including education, group counseling, and individual interview sessions for three months or longer.

The court shall refer a first offender whose blood-alcohol concentration was 0.20 % or more, or who refused to take a chemical test, to participate in, as ordered by the court, a licensed program that consists of at least 60 hours of program activities, including education, group counseling, and individual interview sessions for nine months or longer.

Driving under the influence Causing Injury Sentencing & Punishment: Second Conviction California Vehicle Code Section 23153

Penalty: Second Conviction Within Ten Years â€“ California Vehicle Code Section 23560Under California Penal Code Section 23560, if a person is convicted of a DUI causing injury under Section 23153 and the offense occurred within 10 years of a separate DUI or reckless driving that resulted in a conviction, the penalties will increase. A felony conviction shall be punished by imprisonment in the state prison for up to three years. A misdemeanor conviction is punishable by imprisonment in county jail for 120 days to one year. The person will also be fined three hundred ninety dollars ($390) to five thousand dollars ($5,000). The persons driving privilege shall be revoked by the DMV for a period of three years pursuant to Section 13352(a)(4). Conditions of Probation: Second Offense Within Ten Years

Under California Vehicle Code Section 23562, if the court grants probation to a person punished for a second DUI causing injury, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be subject to either subdivision (a) or (b), as follows:

Be confined in the county jail for at least 120 days and pay a fine of three hundred ninety dollars ($390) to five thousand dollars ($5,000). The persons driving privilege shall be revoked by the DMV for a period of three years pursuant to Section 13552(a)(4).
All of the following apply:

1. Be confined in the county jail for 30 days to one year.
2. Pay a fine of three hundred ninety dollars ($390) to one thousand dollars ($1,000).
3. The persons driving privilege shall be revoked by the DMV pursuant to Section 13552(a)(4).
4. Either of the following:
  1. Enroll and participate, for at least 18 months, in a driving-under-the-influence program.
  2. Enroll and participate, for at least 30 months, in a driving-under-the-influence program.

Driving under the influence Causing Injury Sentencing & Punishment: Third Conviction California Vehicle Code Section 23153

Penalty: Third or Subsequent Conviction Within Ten Years â€“ California Vehicle Code Section 23566Under California Vehicle Code Section 23566, if a person is convicted of a third or subsequent DUI causing injury under Section 23153 and the offense occurred within 10 years of two previous DUI or reckless driving convictions, the penalties will increase. A conviction shall be punished by imprisonment in the state prison for a term of two, three, or four years and by a fine of one thousand fifteen dollars ($1,015) to five thousand dollars ($5,000). The persons privilege to operate a motor vehicle shall be revoked by the DMV for a period of five years pursuant to Section 13552(a)(8).

If a person is convicted of a violation of Section 23153, and the act or neglect causes great bodily injury, as defined in California Penal Code Section 12022.7, to any person other than the driver, and the offense occurred within 10 years of four or more separate DUI or reckless driving convictions, in addition to the state prison term of two, three, or four years, that person shall be punished by an additional term of imprisonment in the state prison for three years, and by a fine of one thousand fifteen dollars ($1,015) to five thousand dollars ($5,000). The persons driving privilege shall be revoked by the DMV for a period of five years pursuant to Section 13552(a)(8). See California Vehicle Code Section 23566(b)-(c).

A person convicted of Section 23153 punishable under this section shall be designated as a habitual traffic offender for a period of three years subsequent to the conviction. Being a habitual traffic offender will increase the penalties for certain driving offenses that are committed after being designated.

A person confined in state prison under this section shall be ordered by the court to participate in an alcohol or drug program, or both, that is available at the prison during the persons confinement. Conditions of Probation: Third or Subsequent Conviction Within Ten Years

Under California Vehicle Code Section 23568, if the court grants probation to a person convicted of a third or subsequent DUI causing injury, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in the county jail for at least one year, that the person pay a fine of three hundred ninety dollars ($390) to five thousand dollars ($5,000), and that the person make restitution or reparation.. The persons driving privilege to operate a motor vehicle shall be revoked by the DMV for a period of five years pursuant to Section 13552(a)(8).

The court shall also impose as a condition of probation that the person enroll in and complete an 18-month driving-under-the-influence program, or if available in the county of the persons residence or employment, a 30-month driving-under-the-influence program. In lieu of the minimum term of imprisonment of one year in county jail, the court shall impose, as a minimum condition of probation, that the person be confined in the county jail for a period of 30 days to one year.

Driving under the influence Causing Injury Sentencing & Punishment: Enhanced Penalty California Vehicle Code Section 23153

Multiple Victims: Enhanced Penalty

Under California Vehicle Code Section 23558, a person who causes bodily injury or death to more than one victim in any one instance from a DUI causing injury under Section 23153, shall, upon a felony conviction, receive an enhancement of one year in the state prison for each additional injured victim. The maximum number of one-year enhancements that may be imposed pursuant to this section is three.

Although the penalty is enhanced, a defendant can only be charged with one DUI if multiple victims were injured in a single DUI incident.

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DUI causing an injury FAQ- california vehicle code 23153

DUI Causing an Injury FAQ â€“ California Vehicle Code Section 23153

What if I was the only one injured?

You cannot be charged with a DUI causing injury under California Vehicle Code Section 23153 if you were the only one injured. To be convicted, the crime requires an injury to occur to another person other than the driver.

What if the people in the other car were not injured, but only my passenger was injured?

You can still be charged and convicted of a DUI causing injury under California Vehicle Code Section 23153. The crime only requires another person to be injured. There is no requirement someone in a different vehicle must be injured.

What constitutes a “legal duty” for a charge of DUI causing injury?

There are a number of duties that drivers must uphold to maintain safe driving for everyone. Any vehicle code violation that causes injury may serve to fulfill a neglect to fulfill a “legal duty.” One of the more common duties that is breached in these types of cases is the drivers duty to exercise ordinary care at all times and to maintain proper control of the vehicle. This duty is usually breached when the driver is driving under the influence and ends up getting into an accident. From the accident, another person is injured. Therefore, the driver failed to perform a legal duty and a DUI causing injury will be charged.

If the blood test shows that I had a BAC of 0.08%, does that mean I will lose my case?

Having a test result showing that you had a BAC of 0.08% does not mean you will automatically lose your case. However, if a chemical test of the defendantâ€™s blood within three hours after driving reveals a BAC of 0.08%, the courts will presume that the defendant had a BAC of 0.08% at the time the defendant was driving. This presumption, however, is not set in stone and can be rebutted by contrary evidence. This means that the burden will shift to the defendant to raise a defense and argue that their BAC was not over 0.08%. See our Defenses section.

If the person administering the test failed to follow the proper testing procedures, does that mean I can get my test results dismissed and automatically win my case?

A failure to follow testing procedures does not automatically win your case. Failure to follow regulations in administering tests goes to weight, not admissibility. This means that the evidence will still be admitted, but the defendant will have a chance to cross-examine the person who administered the test and highlight the prosecutionâ€™s weak evidence against you. This is why it is important to have an experienced DUI attorney representing you. It could make the difference between winning and losing your case.

What are the possible reduced charges for a charge of DUI causing injury under California Vehicle Code Section 23153?

An experienced DUI attorney would first try to dismiss all of your charges. If the charges cannot be dismissed entirely, an attorney can negotiate with the prosecution to reduce a felony charge to a misdemeanor charge. Another possible reduced charge would be a misdemeanor DUI without an injury under California Vehicle Code Section 23152.

What charges will I face if there were multiple victims in a drunk driving accident?

You will be charged with one DUI under California Vehicle Code Section 23153. A defendant cannot be charged with multiple counts of felony drunk driving under California Vehicle Code Section 23153, where injuries to several people result from one act of drunk driving. See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 352.

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