Frequently Asked Questions

Depending upon the specifics of your case, you may be required to attend drug and alcohol counseling, such as:

Alcoholics Anonymous (AA)

Cocaine Anonymous (CA)

Narcotics Anonymous (NA)

DUI is charged under the California Vehicle Code, sections 23152(a) and (b), which state respectively:

“It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle.”


“It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

In addition, if you cause bodily injury to another person while driving under the influence, you may be charged under Vehicle Code sections 23153 (a) and (b), which state respectively:

“It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”


“It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

Drunk driving may be charged as a felony or a misdemeanor, but most DUIs are misdemeanors. If you have been convicted of four or more DUIs, you can be charged with a felony if the District Attorney so chooses, as well as if you are accused of causing injury while driving under the influence. Remember, a felony prosecution can result in over a year in state prison.

As always, every punishment depends on the crime. Generally, for a first time DUI offense with a blood alcohol level below .20%, the maximum penalty includes:

  • Summary Probation for three to five years (unsupervised by the Court),
  • Six months in county jail,
  • Six months suspended license,
  • Fines of up to $1,000, plus penalties of up to $2,710 (the penalty is currently 3x the amount of the fine, and may increase if the California Legislature agrees to it),
  • A $100 contribution to the California State Restitution Fund for victims of DUI accidents,
  • Proof of enrollment and completion of an alcohol education program,
  • A fee of $50 towards “Alcohol abuse Prevention,”
  • A fee of $37 towards the blood alcohol content testing,
  • A fee of $20 for Court security.

You may be assessed additional penalties if your blood alcohol was above .20%, you injured someone, or had a child in your car.

For a second time DUI, all of the fines and penalties mentioned above will increase, plus:

  • Up to one year in county jail,
  • Vehicle impoundment for 30 days,
  • Driver’s license suspension for 18 months.

For a third or fourth time DUI, all of the fines and penalties mentioned above will increase, plus:

  • The DMV can revoke your license for up to 4 years,
  • Completion of a 30-month alcohol treatment program,
  • Up to 120 days in county jail for a third offense,
  • Up to 180 days in county jail for a fourth offense,
  • 16 months to 3 years in state prison for a felony.

In addition, you may have to pay increased insurance premiums for SR-22 coverage, tow and impound fees, alcohol rehabilitation program costs, and legal fees for an attorney and the court.

Upon conviction of DUI, the court will send an abstract to the Department of Motor Vehicles to suspend your license. This is an action separate of any suspension that may have been imposed through an Administrative Per Se hearing based solely off of the arrest.

A commercial driver driving a commercial vehicle is held to a .04% BAC instead of the normal .08% BAC requirement. The Department of Motor Vehicles will suspend your commercial license for one year without eligibility for a restricted commercial license but you may apply for a Class C restricted license after 30 days of hard suspension. Additionally, even if you are not driving a commercial vehicle but are found to have violated VC 23152 (a) and/or (b), and hold a commercial license, the DMV can suspend your commercial license for one year on a first offense and revoke the privilege for a lifetime on a second offense.

There are many defenses available in a drunk-driving case. Some of the common ones include:

The police have to read you your Miranda rights before they question you in custody. If the police didn’t read you your Miranda rights before questioning you, the evidence they obtained from your statements, and the statements themselves, might be excluded at trial through a motion to suppress evidence.

If you have been arrested on charges of driving under the influence, here are some of the most common mistakes for you to avoid:

  • Not taking the matter seriously. This is a charge that could follow you for years, and the Department of Motor Vehicles will keep it on your driving record for the rest of your life. You can lose your driver’s license, and the additional insurance charges alone could cost you thousands of dollars. If your license is suspended or revoked, you will have to prepay for an SR-22 endorsement on your insurance policy. Your insurance company must notify the DMV in advance if you do not maintain your insurance, and you will have to pay higher premiums based on your conviction.
  • Not hiring an attorney. The law is complex, and you need skilled representation to raise the right defenses at the right time or you will most likely lose the case. Evidence can disappear, memories fade, and witnesses vanish. A winnable case can quickly become a loser. What should you do? You need an attorney who knows how to resolve the charges you face.
  • Hiring an attorney based on the amount of the fee alone. The State has almost unlimited resources when it comes to prosecuting your case. You need to hire an attorney and pay a fee, which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, you may end up with an attorney who specializes in guiding his clients to accept unfavorable plea bargains. Look for a reasonable, predictable fee, but not the lowest.
  • Not obtaining a temporary license and requesting a DMV hearing within 10 days. If you do not request a hearing, you will not be able to drive until after a hearing or for 90 days to a year. Driving during this time is a serious traffic offense, and a misdemeanor carrying mandatory jail time, regardless of whether you need to drive for work or personal reasons.
  • Driving after your license has been revoked. Driving after your license has been revoked is in many ways a more serious offense than your original charge. There are no provisions for you to drive for work or personal reasons, though after a period of time you may qualify for an interlock device. If arrested for driving while your license is revoked, you may have to post a $10,000 bond just to get out of jail. If convicted, you face significant time behind bars.
  • Not requesting that the arresting officer be present at your motor vehicle hearing. If you do not request the officer’s presence, you will have to seek a subpoena or waive the option of having the officer at the hearing. The hearing will be based on the officer’s report only and the officer will not be called upon to testify. Having the officer present at the hearing gives your attorney the opportunity to learn a great deal about the case and can not only make it easier to fight the license suspension, but also provides valuable information for the criminal case. If the officer fails to appear or justify what was done, you may get your license back.
  • Taking the District Attorney’s first offer. The first offer is not a bargain; it’s just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on Constitutional challenges. You give up your right to raise these issues and to make the State prove its case.
  • Failing to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be taken to jail and have to post a bond for your future appearances.
  • Talking to anyone but an attorney about your case. You will get advice, some of it good, some of it bad, some of it based upon personal experience in other jurisdictions, or years ago, that may not apply in your case at all, from your family and friends, even co-workers. Don’t listen to anyone except an attorney experienced in DUI law. You can either choose a lawyer or risk the consequences of representing yourself. By hiring an attorney immediately following your citation, you are less likely to miss any important deadlines in your case. You will have someone to guide you through the court process. Judges won’t know whether they should protect your rights unless someone defends you. For example, overworked prosecutors may use reports from inexperienced or over-zealous police officers to prosecute a case. Defense attorneys are aware of these tendencies and are trained to handle such situations. If you ask the judge to let you be your own attorney, he or she must allow this in most cases, but this is not advisable. The best advice is to get a lawyer, and do it quickly. Remember, you must request the DMV hearing within ten days of your arrest.

Circumstances vary from case to case requiring different defense strategies. However some defenses that may be approachable if you are charged with Domestic Violence of Spousal Abuse include self-defense, insufficient evidence, factual innocence and matters of jurisdiction. Simple errors on the part of law enforcement in preparing, filing or serving summons and complaints could warrant dismissal of a case. An experience attorney who knows the ins and outs of Domestic Violence law can pinpoint and initiate your best avenue of defense.

Consequences of a Domestic Violence Conviction will vary depending upon the circumstances of each case, such as whether or not the defendant had prior charges of Domestic Violence or a history of violence and the severity of injury to the victim. The prosecutor may file Domestic Violence charges as a misdemeanor or a felony.

If charged with Domestic Violence or Spousal Abuse penalties may include jail time in a county jail or state prison, probation, community service, a Criminal Protective Order placed against you, court-ordered enrollment in a 52-week anger management course, counseling and fines.

An arrangement for mediation may be necessary to negotiate visitation if you are charged with Domestic Violence or Spousal Abuse against the parent of your shared child. You may also be ordered to only see your child or children under supervision.

State law defines child abuse as:

  • Non-accidental physical injury inflicted on a child by its caretaker, including willful cruelty, unjustifiable punishment, or corporal punishment
  • Sexual abuse, the victimization of a child by sexual activities, including molestation, indecent exposure, fondling, rape, and incest
  • Emotional abuse, willfully causing any child to suffer, inflicting mental suffering, or endangering a child’s emotional well-being
  • Exploitation, forcing or coercing a child into performing activities that are beyond the child’s capabilities or which are illegal or degrading, including sexual exploitation

Child neglect is defined as negligent treatment that threatens the child’s health or welfare, such as failure of a parent/guardian or caretaker to provide adequate food, clothing, shelter, or supervision, and in more severe instances, where the child’s health is endangered, such as in cases of severe malnutrition.

Committing Spousal Abuse in the presence of a child can bring charges of child endangerment.

Yes. The unlawful attempt to commit a violent injury upon a person (Assault), or the willful and the unlawful use of force or violence upon a person (Battery) is grounds for conviction. Any offensive touching, including actions that may not render visible physical injury, such as pushing, pulling hair, or severe shaking, can be considered a battery. Verbal or emotional spouse abuse coupled with threats of violence can also result in a conviction.

No. Once Domestic Violence has been reported to law enforcement, the District Attorney and City Attorney will aggressively pursue prosecution, even if the alleged victim tries to deny the initial accusations or refuses to press charges. Alleged victims who refuse to testify in court or who change their story could face charges, such as falsely reporting to authorities or perjury.

Domestic Violence is abuse inflicted upon a spouse or former spouse, an intimate partner (boyfriend or girlfriend) or former intimate partner, a cohabiting elder or child, or upon the other parent of a shared child. Abuse is causing or attempting to cause bodily injury, intentionally or accidentally, sexual assault and/or molestation, and violating a Restraining Order. Domestic Violence and Spousal Abuse can be charged as a misdemeanor or felony.

In order for you to qualify for the services of a court appointed Public Defender, you must first prove that you are financially unable to hire an attorney. If a Public Defender Attorney is assigned to your case, though capable, it most likely will be one of many on his or her case list. Retaining your own experienced attorney will usually mean your case receives more personal attention, a more thorough investigation and more time will go into building the best defense possible.

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Attorney Scott Henry: Criminal & DUI Defense