NapaCounty DUILawyer.com

FAQs

1. I received a wet reckless about a year ago. On a new employment application, what term should I use for "wet reckless"? I keep hearing that it's not the actual name of the charge and I'm just wondering what to call it.

The term "wet reckless" does not appear anywhere in the statutes. A "Wet" is a guilty or nolo contendere plea to a lesser charge of a violation of Vehicle Code Section 23103, Reckless Driving, in satisfaction of, or as a substitute for, an original charge of DUI. Most of the procedures and consequences are indicated in Vehicle Code Section 23103.5.

You may wish to consider an expungement which is a procedure used so that in many cases you need not disclose a conviction on an employment application. You may click on Jake's Expungement Discussion on this site for more information.

2. I have a breathalyzer in my car due to a previous DUI.... It turns out that the machine wasn’t working properly and I blew a .000 before I turned my car on. If it had blown any numbers at all, not only would I not drive, but I wouldn’t be able to considering my car will not turn on if it is anything past .008. I feel like if they had given me a proper machine that actually worked, none of this would have happened. I had no clue it was broken since I don’t drink and drive anymore. I felt completely fine and had stopped drinking hours before. Is there any way I can fight this?

One can always fight a DUI. In your case, if the ignition interlock device records and other evidence and witnesses support your version of the incident, then your case may seem more compelling to a district attorney who may offer a better resolution, or to a jury who may find you not guilty. You should definitely get help, investigate the underlying facts you identified (and any other facts that may bear on your case such as the accuracy of the police chemical tests and more) and have a lawyer research the possibilities.

3. Can I transfer my dui school to a different state?

Unfortunately the law does not appear to provide for enrolling or completing a DUI program from outside California. But a two-track approach outlined above may help you. Someone who moves out of state can request from DMV in Sacramento at 916-657-6525 relief from the requirement to complete the program in order to clear a California driving record so that the new home state can then issue a new driver license.

This approach does not satisfy any court order (typically part of a probation order at the time of sentencing) to complete a DUI program. In this case one generally must go back to court and modify the sentence to permit any number of alternatives including a complete waiver of the program, completion of a similar program in the new home state, completion of an on-line DUI program (such as Tom Wilson Counseling) or "self-enrollment in any program required by CA DMV" which would then be satisfied by the approach above.

The court and CA DMV requirements are independent; failure to address both may result in outstanding issues. This area is a hyper-technical bureaucratic jumble and may benefit from a lawyer's assistance.

4. How long does a DUI stay on your record? Can you get it off your criminal record also?

It depends on what records you are asking about, your age at the time of conviction, and for what purpose you are asking.

Juvenile criminal records are sealed at age 18. But DMV records typically remain forever, whether juvenile or adult (although insurance companies typically stop using driving history after three years in auto insurance rate calculations).

An adult criminal DUI record typically remains forever. A DUI can only be charged as a prior for ten years, but the existence of a prior DUI conviction outside of ten years can still be used to increase the severity of penalties in a present DUI.

One can try to expunge an adult DUI criminal conviction. Subject to certain limitations, once someone's local court probation is completed, they may petition for an expungement (basically a withdrawal of plea and a dismissal) of a criminal conviction in order to legally not disclose a DUI conviction on a future application for employment in the private sector. Even government jobs and state licensing boards, or other situations where disclosure might still be required, will almost always view a successful expungement as a helpful, court-approved rehabilitation and a respectful final outcome.

Expungement has limitations, so be sure to ask an attorney before relying on this procedure to “erase” a DUI. Moreover, an expungement will likely not automatically erase, seal, or cause the destruction of state and federal department of justice and homeland security records. Usually, courts will still be able to “see” an expunged prior DUI, and it will still be usable in a new criminal case. Nevertheless, the results of a successful expungement can be beneficial and are generally advisable.

5. My friend has 3 dui's the third being in California; what can happen to him?

If you mean that he just got arrested for his third in CA within 10 years of two others that the District Attorney finds and charges as priors, then he better get a good lawyer and beat or reduce the new case because the statutory minimum pursuant to Vehicle Code Section 23548 is 120 days jail for a DUI with two priors. Jail alternatives are tougher to obtain as the number of priors increases. He would also be exposed to a new 18-month DUI program and at least one year off the road, thanks to DMV, plus fines and likely 5 years probation, no alcohol, etc, depending on the county where he was arrested. If he was driving on a suspended license at the time, or had a high blood alcohol level, or violated his probation on a prior case, or other types of aggravating circumstances, then the penalty exposure increases.

6. My husband was on his own property he was drunk they cuffed him on his own property and took him in the car took him to jail and gave him a ticket for drunk in public. What will happen?

First, getting a ticket doesn't mean that charges will be filed, and if you get an attorney (recommended) then your attorney may be able to get any charges dropped (either by pointing out that your husband's conduct doesn't violate the law, or by agreeing to AA meetings or a conditional dismissal as long as your husband doesn't violate the law for a certain length of time), or fight the charges and exonerate your husband.

Second, whether someone is "drunk in public" in violation of California Penal Code Section 647(f) depends in part on whether someone is intoxicated to the degree that he is unable to exercise care for his own safety, not just "drunk."

Third, whether someone is "drunk in public" in violation of 647(f) depends in part on what is "public." Generally, courts will use the definition from the California Supreme Court of an "area open to common or general use," which theoretically could include someone's front yard, unless it is fenced and closed.

This is not a terribly complex area of the law, but every case is different from the next, and it may not be enough for the cop to simply argue your husband was "drunk" or for your husband to simply argue that he was "on his own property."

If charges are filed, then your husband should get a lawyer to examine these issues and give him advice tailored to his situation, resources and goals.

7. I was arrested for dui a few months ago and have already been to my sentencing and my dmv hearing. I had my license suspended for 4 months but from what I understand in California I can ask for a restricted license after 30 days to get to and from work and/or school. I know that to do this I need to fill out an SR22 with my insurance and turn it in to the dmv. My question is how I go about getting the SR 22 and what I need to do to petition for this restricted license as it is essential as I am in my last semester of college and need my car to get to work because I work at 430 in the morning. I am so confused HELP!!

This can be complicated because of lots of bad advice out there, but the reality is that this should be very easy.

Three steps to the misdemeanor 1st DUI restricted license for adult California licensees, assuming no other problems with your DMV record causing stops or suspensions:

(1) Enroll in the DUI Program (the program sends proof of enrollment directly to DMV and can take a week or more to accomplish; ask your program when that will be accomplished following your enrollment);

(2) Contact your insurance company (or shop around for the best rates) and ask them to file an SR-22 directly with the DMV (this should only take hours, not days, for most drivers). Ask a lawyer for an insurance company referral if you are having difficulty;

(3) Go to your local DMV field office on the 31st day (or thereafter) of your DMV administrative suspension and pay a "re-issue fee." DMV will give you a new temporary license and then mail you your plastic license (should look just like your original except for the restrictions printed on the reverse).

Everyone and every case is different, and timing of conviction vs. administrative suspension can affect the reactions of the DMV, insurance agents and the DUI program when you inquire about restricted licenses, but if you have wrapped up your DMV case and served your 30 days then in most cases one should be entitled to the restricted license. If you are having difficulty, contact a DUI lawyer.

8. I want to know if I was driving very slow because I had a flat tire and the police saw this and stopped me and then ask me if I had been drinking I say yes but 1 glass of wine. I pass every test but was a little over the breathalyzer test. What does this mean for me. Will I have a dui on my record or can I fight this and have the charges dismissed?

If you only had one standard glass of wine that day, and no other intoxicants in your body, then this case will likely either never be filed or will be dismissed in short order. The rest of this answer assumes you actually consumed more than one glass of alcohol.

Driving with a flat tire and driving too slowly are likely to be viewed by a court as vehicle code violations which would justify a police stop. Further, the police are generally allowed to stop vehicles while performing their “community caretaking” function, or to execute a “welfare check,” to determine if their further assistance or intervention is required. Your description indicates likely sufficient cause for the police stop, although one can always challenge this aspect of the case in a "fight all aspects of the case" kind of approach.

During these minimal intrusion stops, if the police encounter you behind the wheel, smelling of alcohol, or even just admitting to modest consumption, most courts today allow the police to investigate further, including initiating a DUI investigation. Therefore, the facts you offered do not immediately suggest a viable defense based on illegal police conduct, although it is important to confirm or dispel by carefully examining the police report and your written narrative of the events. BUT: you may have substantial defenses in your case if your blood alcohol levels are confirmed low in the police report, and you did in fact perform very well in the field sobriety tests. In this event, you may very well have a triable case, arguing to a jury that your blood alcohol level was not .08 at the time of driving, and that you were not an impaired driver. There also may be other defenses in your case, as with any other, with respect to legal procedure, science, or other facts or circumstances which come to light later. The district attorney rarely dismisses charges that they have already decided to file against you. But yes, you can always fight a DUI. Whether or not you win depends on the strength of the evidence and the defenses. If you won, then you would be found “not guilty” or your charges would be dismissed. If you were to fight and lose, or alternatively obtain the best possible deal (for example, a reduced charge of “wet reckless” or better) then yes, you would have a misdemeanor criminal record, and also the DMV suspension consequences (don’t forget to call, or if you hire a lawyer, have your lawyer call, the DMV within 10 days of arrest to preserve your right to a DMV hearing to challenge any suspension; this information is contained on the front of the “pink temporary” that was likely handed to you at the time of arrest). You should hire a competent local DUI defense lawyer to explore these and other issues with you, or, if you cannot afford a private attorney, then appear at your first court date and ask that the public defender be appointed to represent you.

9. I got a traffic ticket stop for speeding on my way to the hospital to pick up my med's for my pneumonia. I had a suspended license at that time. I told the officer that I have a emergency I on my way to pick up my med's. I'm going to give you a ticket for driving with a suspended license and speeding. I'm low income, unemployed. Please help me that I going to get a public defender what can I say to him?

You should definitely get a lawyer, because driving on a suspended license is a new and serious charge with jail exposure, fines, further license consequences, etc.

Tell your lawyer about the reasons you felt it was necessary to drive; depending on the severity of your medical condition and any alternatives to driving which were or were not available to you at the time of this incident, you may have a defense to this charge. Also there may be other defenses in your situation which your lawyer may be able to uncover after examining your present case, any past case(s) which may be causing the suspension, and your underlying DMV record.

Further, in most cases it is best to do everything possible to fix the problems causing your license to be suspended. Understand that typically someone facing a suspended license charge who walks into court with a valid license prior to resolving a suspended license case will make the judge happier and will have better bargaining strength with the district attorney. Consider that most judges will allow a reasonable delay in a suspended license case to allow someone to fix underlying problems causing the suspension.

10. I missed the work release for shop lifting, and received two bench warrants, then I went to the court and talked to a clerk they gave me a court date and said ill either be given an extension or jail time... which is the bigger possibility? Is there anything I can do to have a better chance for an extension?

It depends on the county, the judge, and the circumstances of your case, but the best way to promote compassion and a better chance of preserving your jail alternative is to present a legitimate and compelling reason why you were unable to appear for work release or notify the court or the sheriff prior to that date with a request to reschedule. In other words, do you have a good excuse? Can you bring proof?

The next best way to increase your chances of preserving this jail alternative is to be polite and respectful, to apologize for missing the date, to acknowledge that jail alternatives are usually a privilege rather than a right, and to ask for another chance. It is also a good idea to be sure that there are no other outstanding obligations which are late, such as fines, signing up for other classes or compliance which the court would expect to see. If you can get ahead on any other obligations before going into court (such as paying off a fine in total rather than just being up on the payments) then this is something in addition which you can point out to the court.

11. What would happen if I did not have the money to pay for my 3 month program and I already modified for the last time with the court. What can happen?

If you do not complete the program as directed, then typically you would be in violation of your probation (arrest warrant in some counties and possible jail exposure -- usually unlikely but it is possible) and in most cases you will not be able to re-obtain full (or any) driving privileges from DMV until program completion. If you need more time, you should continue asking for it rather than just giving up. BUT...

You cannot be denied participation in a DUI program just because you can't pay. This is so because the DUI program is required by the court to comply with its orders, and by DMV to re-obtain your driver license, and it wouldn't be fair if such requirements could only be satisfied by those who can afford it.

Title 9 Section 9879 of the California Code of Regulations (which you should read carefully to see how it applies to you -- find it at http://www.oal.ca.gov/ccr.htm) states that "The program shall not deny services to a participant if, based on the results of a financial assessment, the program determines that the participant is unable to pay..." Note that there is a minimum fee of $5 per month, and the program may charge you regular fees up to the time that you asked for the assessment (assuming they are complying with these rules).

Programs are required to post a notice at each location at which program services are provided, in a location visible to all participants and to the general public, informing them of the option to request a financial assessment to determine ability to pay.

If you have asked for a financial assessment, and provided the required proof of income/inability to pay, and you feel that the review by your program was not fair or adequate, then you may request a review by the department that regulates these programs: "A participant may request the Department to review a financial assessment conducted by the program, in accordance with this regulation. To do so, the participant shall submit a written request to the Driving-Under-the-Influence Program Branch, Department of Alcohol and Drug Programs, 1700 K Street, Sacramento, CA 95814."

12. I was arrested for DUI, it was reduced to reckless driving in LA, CA and it's been more than 4 years. Can I request an expungement of my record? This is the only record I have.

The easiest answer for you is that you can always request anything! The question is "will it be approved?" If you completed your probation then you should definitely consider this option.

Generally, California law (Penal Code Section 1203.4) provides that if a defendant has fulfilled the conditions of probation for the entire period of probation, then he/she shall, at any time after the termination of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or currently charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; the court shall thereupon dismiss the case.

There is a relatively new requirement that the defendant shows that the expungement is "in the interests of justice," which should encourage anyone seeking to expunge a DUI or Wet Reckless to include in the Petition for Dismissal all the good things about you and your history, and compelling or deserving reasons, if any, for the court to order this relief.

There are limitations to the usefulness of an expungement, so it is best to discuss this approach with a lawyer to be sure that you are eligible (or arguably eligible) and to be sure that you will accomplish your goals if the petition is successful, but generally an expungement is always a good thing. Lawyers provide lots of explanation and guidance, but most courts have expungement packets and you can find official forms on the official California court website.

13. If someone gets a DUI in a county outside of their residence (in the state of California), do they have to stay in the county they were arrested in to complete the Drug & Alcohol program as well as possible community service?

With respect to the DUI program, you or your attorney typically must ask at the time of sentencing for a specific out-of-county referral by the sentencing judge to the specific DUI program you wish to attend. These requests are routinely granted. You can find the entire state listing of locations and program lengths offered at the following link: CA DUI Programs. Locate the right program most convenient to your home (this can get complicated so you should consult with an attorney about your specific situation and timing) and have that information handy at the time of sentencing.

With respect to "community service" or other jail alternatives, assuming you are facing a first DUI, each county (and often each judge) is different. Depending on the sentence in your case, a defendant can usually obtain a combination of credit for time served and out-of-county (or even out of state) volunteer time to satisfy a small jail sentence (some counties do not even impose jail time for a first DUI).

These are good and important questions that you should really discuss with a local lawyer because certain facts and situations particular to you, your case and your courtroom may alter the outcome of your matter.

14. I ran over something on the highway and severely hurt the suspension on my car. While standing and waiting for AAA to come on the line, a cop car pulled up. They arrested my on suspicion of a dui. I now have a pink temporary license as they took the real one. I have been reading that I have to arrange a separate hearing from the DMV within the first 10 days to get my license back. I don't understand this since my hearing is on 12/10. In any case, how do I go about getting this DMV hearing since I hear my license might be totally lost without doing so?

The DMV hearing is where one can challenge the DMV's intention to suspend driving privileges as a result of a DUI allegation, but usually one can only preserve the right to such a hearing by taking steps within ten days from date of arrest (with some exceptions) to ask for the hearing by telephoning the number in the upper right corner of the pink temporary license (or by asking a DUI defense attorney to do so).

Lawyers almost always ask for the DMV hearing because we don't know yet (until we see the police report) precisely what the case is about and whether there are viable defenses, so we act now to preserve rights for later in case we decide to fight the case. Once a hearing is requested, typically a date for the hearing will be assigned later, usually at least 30-60 days from now. A new temporary license is typically sent to the arrestee (if validly licensed apart from the DUI arrest) before the 30-day pink temporary license expires.

By contrast, the first criminal court date (usually indicated at the bottom of the citation or in bail documents handed to the arrestee if bailed out of jail) is usually already set and deals with criminal court proceedings such as plea bargaining, trial, not guilty findings or convictions, jail, probation, etc.

These are completely different proceedings that rarely affect each other (although a good case may include the same winning arguments in each proceeding, and a not guilty finding by a jury may automatically reverse a negative finding at DMV). But both DMV and court proceedings should be addressed early in order to understand and fight or navigate a DUI properly and avoid missed opportunities or missed obligations, and in order to suffer the least consequences and bureaucratic complications.

Bottom line: it most cases it is best to preserve rights and options by asking for a DMV hearing within the 10 days from arrest. To be sure in your individual case, you should definitely discuss your particular situation and options with a DUI defense attorney immediately.

15. I have a 647(f) PC, first time in court. I'm 19 years old, go to a reputable 4-year university, and looking to go to medical school. I had a rough week of midterms so my friends and I decided to go to a Santa Barbara party on Halloween. Honestly, I got so drunk I don't even remember how I got to jail. I was apprehended that weekend and was placed in a holding facility with other college students. They told me I was charged with 647(f) PC, told me I had to go to court on a certain date. I have never been pulled over, never got a speeding ticket, and never been in trouble with the law. I do extensive community service. I don't mind doing more community service, and paying a fine. All I care about is that this is off my record, so when medical schools/jobs do a background check this will not show up. What are my options? Is an attorney worth it? Will this be off my record after paying the fine and possibly taking a youthful offender class? I heard there were over 700+ students apprehended that weekend; I don't think they are going to find guilty each and every one of them.

You should find a local attorney and discuss all options with him/her. It is true that many jurisdictions will prosecute a 647(f), but many also allow some sort of community service, diversion, or combination of fines and AA meetings, etc, to dismiss the charges, or to conditionally dismiss (the condition being no further adverse contact with law enforcement for a specified period of time).

Sometimes a district attorney needs some persuading such as actually setting a case for trial and some pre-trial work before agreeing to a better resolution. This is why getting a local lawyer who understands the local players and available local options can be so vital to obtaining a resolution which is acceptable to you. A local lawyer can also tell you whether substantial AA attendance prior to your first court date, or prior to resolution of your case, might soften the DA's position.

Finally, sometimes the best and only way to obtain an acceptable resolution is to actually go to trial. Most "drunk in public" charges are hard for the government to prove because the DA must prove to a jury beyond a reasonable doubt that you were so intoxicated that you were unable to exercise care for yours or others safety, not just "drunk," or, because of your intoxication, you were obstructing a public way. Obviously you would need a good lawyer to maximize your chances of success.

Also remember that you may explore expungement options if you do emerge with a conviction. In most cases, someone may withdraw a guilty plea or verdict following successful completion of probation in a case such as this one, and the court will dismiss the case so that one can honestly say on most applications for private employment that this incident never happened. The benefits of expungement are limited, and may not apply in a medical licensing context so this is yet another reason to consult with an attorney.

16. I got pulled over for cutting off a big rig to exit. I had 2 drinks that night. I passed the physical tests but failed the breathalyzer. They did not say if I had a choice to take the test till I got to the jail, then they gave me the option for a blood test, which I took, but I haven’t gotten the results yet. What should I do?

There are many ways to fight a DUI, or to negotiate for a reduction of charges or a dismissal. Three major areas which defense attorneys examine before advising a client on the strengths and weaknesses of a case focus on (1) whether the police had a valid reason to pull over the driver, (2) whether the results of the breath and blood tests show the driver was below .08, and (3) whether required technical procedures were followed by the police during the encounter with the driver. In most cases, we don't know the underlying facts for these issues (the test results or the arresting officer's allegations of wrongdoing, etc) until we get your full version of the events and then see the police report at the first court appearance.

In your case, with respect to the validity of the police stop, if the cop witnessed you executing an unsafe maneuver, then the initial stop might be found to be valid, but it seems like only a matter of opinion whether

"cutting off a truck" was actually a violation or simply a last minute decision expertly executed. If the cop didn't witness the alleged unsafe maneuver, then the government might have a hard time convincing a truck driver to give up a day's pay to appear in court or at the DMV to testify against you, especially if the truck driver was just passing through and lives far away.

With respect to the chemical test results, if you only had two drinks, then depending on how long it took for the officer to accomplish your blood draw, your results may very well be below .08, which could allow your lawyer to beat the DMV case (keeping you driving) and beat the criminal case or obtain a terrific resolution for you (like a wet reckless or better), especially if you performed well on field sobriety tests.

With respect to procedural issues, it appears from your initial description that the cop administered a preliminary breath test to you roadside (you should have been told at that time that a preliminary test is voluntary, and isn't the same as the implied consent test required after arrest), and then properly advised you after arrest that you had a choice of another breath or blood test, or he/she advised you later that the breath tests roadside don't retain your breath sample, so you have the right to a blood test which can be retested later by you and your lawyer to confirm accuracy, proper procedures, etc. Depending on the nature of the first test, there may be a remedy (not automatic dismissal) if the officer failed to inform you it was voluntary, but otherwise it sounds like the cop followed proper procedure in this area.

Overall, your description suggests you may very well have a good case, but a thorough review of the police report will confirm or deny this. You should discuss all of the details of the incident and your unique situation (age, job, any prior arrests, need to drive, etc) with a local lawyer who regularly handles DUI cases in the county where your arrest occurred.

Also, if the officer took your license and handed you a "pink temporary license," then you should read it and telephone the number at the top (or hire a lawyer and let him/her do it for you) within 10 days of arrest in order to preserve your right to challenge the DMV case against you. If you fail to act with DMV during the first 10 days, then you may jeopardize your right to fight the separate DMV case and resulting suspension.

17. I was just arrested for a DUI about a week ago, and I received a phone message today from my insurance company regarding a claim that was submitted for the minor accident I was in during the DUI incident. I know that there was no damage done to the other vehicle but I guess that the owner submitted a claim regardless. The insurance company wants me to call back regarding the details of the accident. What should I tell them and do I need to inform them of the DUI as well?

In most cases, one should return such a phone call because the insurance policy likely requires it; most policies require that you cooperate with your insurance company so that they can represent you properly if necessary. Usually it is best to listen carefully to each question, and then answer as tightly and succinctly as possible without providing any unasked information. This can be hard to do, so keep focused on this approach throughout the call. Typically, one should not offer information about alcohol or DUI, or otherwise admit to being DUI, under the influence, or doing anything illegal, as this has yet to be determined. Remember that there is no DUI at this time.

It always best to say that you don’t know something or don’t recall, rather than being tricked or convinced into guessing or giving an unsubstantiated opinion or providing an admission that serves the insurance company (most don’t want to pay out) when such unproven opinions may or may not be true once all the facts are aired. Usually it is best to stick with basic facts of directions of travel, visibility, road and weather conditions, extent of damage, etc, and do NOT give opinions as to causation, fault, or physical, mental or physiological or medical conditions. Remember, facts, not opinions or conclusions. Unless you are a doctor, lawyer or accident reconstructionist, you are probably not qualified to provide such opinions, and if this type of response is requested, it is usually best to just say in your own words that you don’t know or don’t want to speculate until all of the information is properly reviewed.

You should ask them to provide you now or later with any documentation or reports they have received or will receive in the future.

18. Jake: Excellent site and easily the most informative I have seen on the internet regarding DUI. I received a DUI and I refused the blood test. The arresting officer told me I would get a one year suspension and 48 hours jail time. However, from what I have seen it is 96 hours jail time, one year and no probationary license. If he had mentioned this, I actually would have taken the test. Anyway my main question is will I be able to receive a DUI license allowing me to travel to work which is 50 miles away and not accessible by public transport? Basically my job is toast otherwise. I know one can keep driving if one can beat the DUI hearing but this I understand is difficult. It seems some sites are referring to an extension for a DUI with refusal but DMV seems to say not.

If one emerges from the DMV administrative hearing with the refusal allegation sustained in a 1st DUI case, then no, there is no provision for a restricted “work” license or any driving privileges at all for one full year. Understand that this is a DMV result, not a court result (this may be the source of your confusion); one may still get a restricted license even if the refusal enhancement is admitted in court, but only if you beat the separate DMV hearing (see my “Anatomy of a DUI” flow chart to get a better sense of the two proceedings).

My caution to you is to get a lawyer to fight the DMV part of your case if you asked for a hearing within 10 days of arrest (or if you are still within that time and can still ask for the hearing, or get a lawyer to request the hearing for you). Refusals can be won at the DMV even if it doesn’t seem like you have defenses in court (tough but absolutely possible to win in the right cases). One winning argument is the insufficient nature of certain warnings to you by the cop prior to your alleged refusal (sounds like a possibility in your case).

In short, given the facts you presented, you must beat the DMV administrative hearing in order to get a restricted license in a 1st DUI refusal case. Get a lawyer! Sorry for your troubles, and good luck to you.

19. I was stopped and ticketed for a DUI. The DA's office threw it out due to lack of evidence. Can I get my license back because I wasn't charged and the case was rejected?

If criminal charges under Vehicle Code Sections 23140, 23152 or 23153 (the typical DUI statutes) are not filed by the district attorney because of a lack of evidence, or if those charges are filed but are subsequently dismissed by the court because of an insufficiency of evidence, the person has a renewed right under Vehicle Code Section 13353.2(e) to request an administrative hearing before the department to challenge the DMV's adverse action against your driving privilege. This must be accomplished within one year from the date of arrest in order to meet statutory time limits.

There is a DMV Form DS702 which you may obtain from the DMV, and which the DA may complete, stating the reason why charges were not filed in your case. In the proper circumstances, the DMV, upon receipt of this form from you or your lawyer, will provide you with this renewed right to a hearing. This is relatively complicated law and procedure and you would be well-advised to seek help from an attorney who practices DUI defense in your area.

Good luck.

20. The perfect storm: DUI, property damage, unknown BAC, hit and run, suspended license, no insurance, no witnesses. I think I can reasonably convince and prove that I don’t go anywhere but home and work, single income family of 5, otherwise model citizen. Is my defense the unlikelihood of repeating and pleading -or- the burden of proof with no witness and rising BAC?

The answer to your question is that, of the choices you offer, "rising BAC" is the only actual defense (to the charge of driving with a BAC of .08 or higher), because it is a direct challenge to a charged violation.

"No witness" may be a weakness in the government's case, particularly if you go to trial and place at issue whether it was you or someone else who drove the vehicle, or if certain timing issues are raised. Depending on the issues raised in a case, the government's lack of witnesses may make it difficult to prove certain conduct or occurrences, although your admissions at the time of the events, and certain circumstantial evidence is often enough to make the government's case against you without actual eye witnesses.

Burden of proof (beyond a reasonable doubt) is the standard with which the government must prove each element of each charge on the face of the complaint against you (typically, that you were impaired and that you were above a .08 at the time of driving), which is not a defense so much as it is a very high level of comfort which a jury must reach before finding you guilty on each element. Whether or not a particular case has "defenses," is not the same as simply requiring the government to do its job and put on its case to try to prove the charges against you to the degree required, which is beyond any reasonable doubt.

"Unlikelihood of repeating" and "pleading" (presumably you mean pleading for leniency) are not defenses, nor are they new urgings never heard by judge or district attorney, nor are such generally convincing or successful. Rather, generally, to obtain a dismissal or reduction of charges, one must successfully show legal infirmities in the government's case. Sometimes, depending on the severity of facts alleged, substantial pre-trial efforts to demonstrate a commitment to sobriety, as well as reimbursement for any damages caused in a hit and run case, may help to soften the consequences, although these remedial efforts typically are not helpful with respect to DMV suspension consequences.

Successfully identifying and arguing the weaknesses of a case against you and attempting to dispose of driving suspension issues and consequences are what lawyers do. Good luck, Jake

21. How long does it take for a bail company to exonerate the bail deposit in California? Does 8 months seem excessive?

Typically someone who uses a Napa County bail company for a DUI simply pays a premium (much like a car insurance premium) which is NOT returned to the payer, but rather it is kept by the bail company as the price for their services. Usually a "bail deposit" refers to a cash deposit with the court rather than with a bail company; cash deposits are returned to the payor by the court once the court (not the bail company) exonerates the DUI bail following conclusion of the court case in Napa, typically within 30-45 days of sentencing.

However, if a payor makes any kind of deposit with the Napa County Superior Court or with a local Napa bail company, he/she should confirm first with the court clerk that bail was, in fact, exonerated by the court in the particular case for which the deposit was made, and then determine the reason being given for failure or refusal to return the deposit.

If you feel that a Napa bail company is acting improperly, you may wish to contact a Napa County DUI defense attorney directly for actual detailed analysis and advice, or contact the agency which oversees and regulates bail companies which is the California Department of Insurance. You may find more information by reading laws regarding bail which are generally found in California Penal Code Sections 1268-1320.5 and in Title 10 of the California Code of Regulations, Sections 2053-2104. Good luck.

22. How long do you have to wait to get your driver license back after a DUI if you don't do the DUI program classes?

It depends on a number of factors, including your age, whether you have a California license, how and when you resolved your court case, how you resolved any DMV case, and other possible unknowns, but the typical case is a California-licensed adult with a recent Napa County misdemeanor DUI conviction (no injuries alleged), chemical test result below .20% alcohol, nopriors, and a separate administrative suspension.

In such a typical scenario, if the court case is resolved by your Napa County DUI defense lawyer as a DUI (rather than wet reckless or less than DUI), then in most cases your attorney should tell you that the following is required to obtain a restricted Class C California license: a minimum 30 days off the road, Napa DUI program enrollment, SR22 filing and DMV reissue fee. In most cases, Napa DUI program completion is required to re-obtain an unrestricted license.

If you live outside California as your zip code suggests, then in the typical DUI case described above, most non-California residents may sit out the Napa County classes (assuming the court did not order attendance as part of probation) and petition Sacramento DMV to remove the driving suspension and DUI program classes requirement after a six-month driving suspension (or ten months if over .20% or one year if refusal or under 21 years old, two years if second DUI, etc). Ask a local Napa lawyer for the correct DMV contact information for such a petition.

If your attorney resolves your case with a wet reckless or better, or you or your lawyer get your case dismissed, but the DMV’s separate administrative suspension is still imposed, then if a restricted California license is not desired, one can usually sit out the Napa DUI classes (assuming the court did not order attendance as part of probation) and sit out the four-month administrative suspension for a common adult first offender misdemeanor DUI, and then re-obtain driving privileges. In this reduction/dismissal scenario, if one wins the DMV hearing, then typically there should be no suspension and no program requirement to re-obtain driving privileges.

You can see that the answer to your question depends on many factors; the outcomes discussed above may vary once the law is applied to your individual situation, and laws change and are subject to differing interpretations, so it is critical that you consult with a local Napa County DUI defense attorney (or local to the location of the arrest if it wasn't in Napa County) in order to obtain specific advice from a lawyer tailored to your unique circumstances rather than reading general discussions which may not apply to you.

Good luck, Jake

23. I recently got into an accident and no one was hurt, but me. I went to the hospital few days later. I was hurt and could not move. The ten days to request a DMV hearing has past. Is there anything I can do to retain my commercial license?

In most cases, a commercial holder facing a DUI in Napa County must beat or reduce both the criminal court case and the separate DMV administrative case in Napa in order to have a shot at saving a commercial license. You should speak with a local Napa DUI attorney immediately and he/she may very well advise that you ask for the DMV hearing immediately.

The pink temporary license you apparently received states that one only has ten days, from the date it was handed to you, to request a stay on the suspension (temporary relief so you can keep driving), and to request a hearing to challenge the DMV suspension (one-year suspension for a commercial license on a 1st DUI conviction or administrative suspension although a restricted Class C is available after 30 days in most cases).

But certain situations may move the DMV to grant a hearing even after the ten-day period has expired (sometimes with or without the stay) so that you may try to preserve your Class A or B license by presenting viable defenses. A local Napa County DUI defense lawyer can advise you further on your options and chances of success after you inform him/her about the specifics of your case, and a DUI attorney can probably submit the hearing/stay request faster and with the proper advocacy to increase your chances of DMV granting a belated request.

Good Luck, Jake

24. I have 2 DUI’s pending in Fremont, CA. Also I am convicted on one DUI in Stockton and I have a new one pending in Stockton. Will the two counties find out about each other?

Napa DUI defense attorneys typically advise clients in Napa County not to underestimate your adversaries. It is likely that each county will be aware of a pending DUI elsewhere.

However, it is NOT likely that either county would count pending matters from the other county in any sentencing because pending matters are not convictions. This is why attorneys often plead pending matters from different counties simultaneously to avoid the increased charging and jail exposure. This would be very important in your case because otherwise you would be facing a felony fourth DUI in the last county to be resolved.

Although charging and sentencing matters might be finessed, your more immediate concern may be bail and/or custody status during these cases. Clearly you need a good DUI defense lawyer, who may very well advise you to check in to residential rehab, especially if one or more of your pending cases do not suggest viable defenses. Judges in both counties may grant custody credits for such work. Good Luck, Jake

25. I received a DUI which has severely impacted applying to the Coast Guard, which they say automatically disqualifies you during the 36 month DUI probation period. The city attorney will not eliminate this probation. The offer was the DUI program, the Coroner's program, the MADD victim impact panel, a fine, 30 days of Cal-Trans, and elimination of the probation on the condition of my acceptance into the Coast Guard, which creates a sort of catch-22, as I can't even apply until this probation is removed. Will I still receive probation if I elect to go to jail, how long is the jail sentence for a 1st time DUI (BAC of .15), and how long would I be in jail (assuming overcrowding and an otherwise spotless record)?

First, it would appear that you already have a no-probation offer: 30 days of Cal-Trans, which is a jail alternative; most Napa DUI defense lawyers would assume 30 days of county work is an awful lot for a .15 1st so, absent other aggravating circumstances in your DUI, it sounds like your jail offer (which conveniently includes the Cal-Trans jail alternative) has already been bumped up to accommodate your no-probation or early termination request. A local attorney is critical to confirming this.

Second, other courts (Napa County and elsewhere) have agreed to reasonable no-probation DUI resolutions after a DUI attorney submits a letter from a Coast Guard or other military recruiting officer stating what concrete measures have actually been taken to show serious interest in applying to the armed services, such as recruitment office visits, taking the ASVAB test, and completing your physical. Such letters often include an actual request from the military recruiting officer to allow a decent no-probation resolution, or a shorter probation period. See here a Sample Recruiter Letter I used in a past case to obtain the needed result. In Napa County DUI cases, DUI lawyers try to ensure the writer includes his/her personal knowledge of the recruit and an indication that the recruit is a strong candidate who should be allowed to serve his/her country. In your case, a letter from your elected city representative might also help move the city attorney.

Finally, one can always set the case for trial and attempt to obtain a reasonable resolution during pretrial negotiations just prior to your DUI case being tried, and/or take your lumps and simply apply for early termination with the court some months following resolution with the additional documentation discussed here. Additionally, proof of substantial AA attendance may further your current or future court goals, and your military application. Napa County DUI defense lawyers often have great success with such evidence.

Your situation is precisely the type that calls for negotiating savvy from a local DUI defense attorney. This is exactly what we do in Napa: take a client’s DUI facts and viable defenses, and his/her unique life situation, and advocate for a favorable or reasonable result. If you cannot afford to hire a lawyer, then obtain the services of the public defender to accomplish your goals. See my larger discussion about these issues at: Job Effects of a Napa County DUI, and scroll down to "Military and Law Enforcement."

Good luck, Jake

26. If you plead guilty to a misdemeanor DUI and were put on summary probation that just states obey all laws and then received a citation for trespassing, what do you need to do. Is this a probation violation?

Yes, it certainly can be. Get a Napa DUI defense attorney to help you. Summary probation in a Napa County misdemeanor DUI case is also called a conditional sentence, meaning that as long as you comply with the conditions of probation, there will be no further consequences in your old case. The most common DUI conditions imposed in a Napa courtroom are to obey all laws and be of good conduct, as well as a prohibition on driving with any measurable alcohol in the body.

If you are charged with violating the law again in Napa County, then obviously you may also be charged with violating your DUI probation condition to obey all laws. Whether you are actually charged with or convicted of a violation of probation (“VOP”) on an old DUI depends on whether both cases are in the same county, the nature and seriousness of the old and new cases (trespass can be an infraction, misdemeanor or felony in Napa County), any viable defenses in the new case, the charging policies of the District Attorney and whether the new case if filed, can be resolved before or instead of admitting a VOP on the DUI.

It is important to try to avoid admitting a VOP in Napa County, not only because of possible additional penalties on top of any consequences from the new case, but also because a VOP may lengthen your Napa County DUI probation period, and may make a later expungement of the old DUI case in Napa more difficult to obtain. You can see that this is important and potentially serious. Get a local Napa County DUI lawyer to help you navigate the system. Good Luck, Jake

27. I was acquitted of VC 23152(b) and my (a) case is still pending. Can I get the initial suspension from the DMV hearing dropped and thus have my driving privileges back until the (a) case is decided? After the prosecution's case, the judge determined the machine was so unreliable that he dismissed the (b) count. My case in chief was held over do to scheduling issues and will not continue for over a month in a half. So, in the meantime I need to know the steps to get my license back for the month and a half if possible. I figure I can get my license, just how?

I have to assume that you have at least one prior DUI conviction in Napa County, because otherwise it is likely you would already be eligible for a restricted license from the Napa DMV assuming the first 30 days of your administrative suspension have elapsed and you are signed up for SR22 and DUI program classes.

So, congratulations on a great result, but was it an acquittal as you say in the first sentence, or a dismissal as you say in the third sentence?

A Napa County DUI lawyer will tell you that an acquittal (not dismissal) on the (b) count entitles a defendant to a "set aside" of any related DMV administrative suspension in accordance with vehicle code section 13353.2(e) and Helmandollar v. Department of Motor Vehicles, 7 Cal.App 4th 52 (1992).

Your Napa DUI defense lawyer may obtain a set-aside of a suspension by sending a certified copy of an actual acquittal (again, not just a dismissal), together with appropriate cover letter and identifying information, to Driver Safety Litigation Services, 2570 24th Street, Mail Station J-234, Sacramento, CA 95818.

If you do not have a local lawyer, then before you engage such a procedure, you should definitely consult with a Napa County DUI attorney to confirm that this procedure applies to your situation, and to confirm the accuracy of this mailing address and to present and mail such documentation in the proper manner on your behalf; a Napa DUI lawyer can likely accomplish all of this for you for a modest fee if the procedure is appropriate in your case.

Good luck, Jake

28. My girlfriend blew a .20; also, she was in custody for 12 hrs that night. Will she have to serve more jail time? And will they make her install a breath ignition system in her car now with the new 2010 laws?

This answer assumes your girlfriend has no prior DUI convictions. If her 12 hours of jail started before midnight and ended after midnight then most courts grant 2 days credit against any subsequent jail sentence when the case is resolved later. Obviously if she wins her case then there would be no further jail. Otherwise further jail time (or a jail alternative such as “volunteer” work for the county) depends on lots of factors such as what the DA wants, plus the strength of the case and the success of any negotiating by your DUI defense attorney, the typical jail sentence for your county in this type of case, the sentencing practices of the assigned judge, and the intake practices of the local jail (book and take-in vs. book and release, etc).

The new 2010 laws include AB 91 (codified at VC 23700) which is a 6-year pilot program requiring a court-ordered ignition interlock device (IID) for persons convicted of a first DUI in four test counties, Alameda, Sacramento, Los Angeles and Tulare. Napa County is not one of these test counties. If your girlfriend lives in one of those counties then she would be well-advised to consider resolving her case before the effective date for this new law, July 1, 2010.

Regardless of the new law, understand that a different law went into effect last year, Vehicle Code 23575, requiring the court to give heightened consideration to imposing an IID for any person found to have a blood alcohol concentration (“BAC”) above 0.15% . In addition, under the existing VC 23578, a person with an alleged BAC above 0.15% faces additional punishment (typically a few added days of jail or jail alternative in the usual Napa case). In addition, if a person pleads guilty to a 0.20% or more BAC, then under the existing VC 23540, the 9-month extended DUI program (weekly classes) is likely imposed rather than the standard 3-month program. There are typically additional DMV consequences too, such as a longer period of suspension/restricted license.

Finally, courts are often concerned at the beginning of any DUI case which involves a high BAC and no readily apparent defenses. A good Napa County DUI lawyer will often advise a client with a high BAC to start collecting a substantial number of AA meeting attendance sheets long before the first court date or engage other activities depending on the severity of the situation, to reassure the court that additional monitoring by probation officers during the course of the case is not necessary.

You can see that this is not simple, and your girlfriend may be facing harsher consequences with a high BAC, regardless of any new law. She should get a local DUI defense attorney to try to beat this case, or if there are no viable defenses, then to try to negotiate away any of these or other enhancements which she may be facing, and finally to give her the proper advice, including practical tips and shortcuts, to get through this situation with the least consequences, stress and inconvenience. Good luck. Jake

29. Last night I was pulled over. The cop was on the opposite side of the street and when he pulled me over he said it was because of the right tail light being busted. I told him I got a ticket for that last week. I asked for him to let me go or to give me a ticket for it. He asked if I was on probation or parole, I stated court probation for a 2008 DUI. He asked for my driver license. When I gave it to him he asked me to step out of my car. When I did, he asked all the other passengers for their id's. Upon search of the other passengers, they retrieved marijuana and other items. I told them they could search my car since I had nothing to hide. They did not find anything in my car or in my possession; however, they still gave me and the passenger a ticket for possession of marijuana. Ticket states - 23223 (b): drive possess marijuana. What are my rights? Can they do this? What is the worst scenario for me considering my DUI – court probation?

I like your case. You should write down every single detail while you still remember, including the precise order of questions, answers, actions and reactions, as soon as possible. Have each passenger do the same. If you live in Napa County, then get a local Napa DUI lawyer to review these facts with you in detail. Fix your tail light!

Your rendition of the facts indicates that you have an arguable defense to the possession charge based on the fact that others possessed the marijuana rather than you. Assuming that the personal searches were not consensual, your passenger has an arguable defense that the police had no justification to detain or search him/her. Napa County law enforcement is not legally allowed to conduct unreasonable searches and this may very well be such a case.

Your worst case scenario would appear to be that the Napa County District Attorney files a case against you, and you fight and lose, and you are found guilty of the possession charge and also found to be in violation of your DUI probation. The consequences would vary depending on the strength of the case against you, any additional DUI or criminal history, the nature and quantity of pot and “other items” found, and the charging and sentencing policies of your local district attorney and the assigned judge, but typically Napa DUI attorneys advise that such cases in Napa County usually do not involve significant jail (or jail alternative) exposure. Nevertheless, you should definitely explore the defenses discussed above, and any others which might suggest themselves after a thorough review with an experienced local Napa County DUI lawyer. Good luck, Jake.

30. If someone got a DUI 8 years ago and received another one right now, would that person be under the 10-year rule according to CA law? If so, what are the consequences?

Yes, if a person is convicted of a DUI (Vehicle Code Section 23152) and the offense occurred within 10 years of a separate California adult DUI or Wet Reckless conviction, then the new conviction is considered a second offense.

In Napa County, the consequences of a second DUI would be next to nothing if you get a good local Napa County DUI lawyer and beat the case in court and at Santa Rosa DMV. In addition, a good local Napa DUI attorney may be able to examine the first DUI conviction and have it tossed, or reduce the second DUI to a wet reckless, or both, or better.

The consequences of a second DUI conviction if you fight and lose, or do not fight at all, vary widely depending partly on the severity of the first case and the nature of the allegations in the second case (such as injuries, blood alcohol level, refusal, driving behavior, hit & run, kids in the car) and also whether there are other DUI convictions outside the 10 years, or other types of prior convictions, age of driver, etc. Additionally, every county has its own sentencing practices which may include these and other considerations.

All of that said, in the typical adult misdemeanor case, the statutes provide a minimum 90 days in jail (no probation) or 4 or 10 days in jail (with probation), and a maximum of one year. Most counties sentence a typical second DUI to 10 to 30 days jail (Napa County’s typical second DUI sentence is 10 days) with probation and usually allow some kind of jail alternative such as a sheriff’s work program or electronic home confinement. Additional consequences typically include two years license suspension (restricted work license possible after 1 year, or perhaps 90 days according to a new law), a fine, usually in the range of $1500 to $2500 (most elect monthly payments), an 18-month DUI program (weekly 1 to 2 hour classes), 3 to 5 years of informal probation (obey all laws, no alcohol in system when driving), sometimes an ignition interlock device during probation, and sometimes mandatory AA meetings and/or an alcohol monitoring anklet for several months.

The consequences of a second DUI vary widely depending on many factors. Get a good local Napa County DUI attorney to examine your case, and fight it, or navigate all of these possible consequences with you to get you through this situation with the least stress and pain. Good luck, Jake.

31. I was arrested for a Napa County DUI and the American Canyon Police took my California Driver's License but I need a picture ID for an upcoming airplane trip to San Diego. When can I get my license back, and is there any way to get a temporary license?

I usually advise new clients to visit any California DMV field office early in this process to obtain a California picture ID card so that you do not have difficulty when required to show a picture ID, and you can avoid walking around with your passport. You should talk to a good Napa DUI lawyer about all of your circumstances, since advice from Napa County DUI attorneys vary depending on each person's unique situation, but in most DUI cases, when the police take your actual driver license, they hand you a pink temporary license (see my discussion here on my website about Contacting the DMV and Saving the Pink License) which allows you to drive for 30 days. If someone arrested for a DUI wins the whole case then driving privileges should not be interrupted at all during the process of the case if you or your Napa DUI lawyer do everything properly immediately after arrest, but in any event most standard first offenders would expect to get the actual replacement driver license back within about three months of arrest, again if all the proper procedures are followed from the beginning. Contact a local Napa County DUI lawyer about your specific case. Good luck, Jake.

32. Can I rent a car with the pink temporary license the St. Helena police gave me after my DUI arrest?

Napa County DUI lawyers nearly always see that their clients' real driver license was confiscated by local police after a DUI arrest, whether by St. Helena, Napa police, or CHP, or other local law enforcement. In most cases you are given a pink temporary license (see my discussion above, and here on my website about Contacting the DMV and Saving the Pink License) which allows you to continue driving during your case if you or your Napa DUI attorney do everything properly immediately after arrest, but often car rental companies (or the youngsters behind the counter of your typical rental agency) don't know what the pink temporary license is supposed to be, or can't rent pursuant to company policy unless a customer has a valid picture license. Even though a driver should be perfectly legal to drive with a temporary license, a rental agency might refuse to rent with such paper. A good Napa DUI lawyer would advise that you investigate and join one of the premium clubs offered by several national car rental chains which permit you to arrive at an airport and walk to a lot and drive off with a vehicle without any encounter in an office or any other requirement to physically show or sign paperwork. Contact a local Napa County DUI lawyer about your specific case. Good luck, Jake.

33. I was arrested by Napa County sheriff deputies for a DUI on a jet ski. Is this the same as a DUI? What is the difference between a DUI in a car and a DUI on a boat?

In Napa County, Boating Under the Influence ("BUI") is very similar to a DUI in terms of the nature of the crime alleged (in other words, the elements of the crime are very similar even though one is in a boat in water and the other is in a car on the road), but the penalties for a typical first offense BUI are often very different than the penalties for a typical first offense DUI. Napa DUI attorneys know that you can be arrested for a DUI in a surprisingly large variety of types of "vehicles" and situations outside of the traditional car on a road; see Jake's colorful examples here: Can I Get a DUI Riding a...?

With respect to boating DUI's in Napa County, first, understand that, whereas the laws controlling DUI's are in Vehicle Code Sections 23152(a) and (b), the laws controlling BUI's are not in the vehicle code, but rather in the California Harbors and Navigation Code: HNC 655(b),(c), or HNC 655.6 for zero tolerance under-21 cases. For the full boating safety statutory scheme, see HNC 650 et. seq. But similar to the vehicle code prohibitions on driving under the influence or with .08% or more blood alcohol (BAC), the applicable HNC sections outlaw operating a vessel under the influence, and operating a vessel with a BAC of 0.08% or more. You can already see that there are subtle differences between DUIs and BUIs, such as "driving versus operating," and what exactly is a vessel, but the essence of the charges are basically the same.

What good Napa DUI lawyers know for certain is that penalties are vastly different, if a case actually results in a conviction for a BUI. One may be able to avoid jail completely, and even get misdemeanor diversion (essentially the case would be dismissed without a conviction) in certain BUI cases, whereas diversion or avoiding jail (or a jail alternative) is nearly impossible with a typical Napa County DUI conviction.

A Napa County DUI lawyer who understands these differences will also tell you that there are no direct DMV consequences from a first-time BUI; in other words there is no license suspension in the typical BUI case, as compared to a typical DUI where there is usually some time off the road due to a license suspension. Years ago, the DMV utilized the practice of suspending driver licenses upon conviction for a BUI, but DUI lawyers fought and won that issue, stopping driver license suspensions for a single BUI conviction. See, Cinquegrani v. DMV, 163 CA4th 741 (2008). The remaining consequences to be expected, particularly if diversion is not obtained, would be a fine, a probation period of 12 months to 3 years, and sometimes a DUI program of weekly 2-hour classes for six weeks or more. Any aggravating factors such as higher alcohol levels, refusals, or collisions, may result in jail exposure. An experienced Napa DUI attorney can analyze your specific situation and give you a good sense of the penalty exposure you may be facing in your unique case.

It is important to note that a BUI conviction counts as a prior conviction in a later DUI case (see, CVC 23620), and therefore, although the penalties for a first BUI are typically far less severe than a first DUI, it is important to speak with a good Napa County DUI lawyer about your specific case to determine if, not only may all the consequences may be avoided completely, but also can you protect your legal future against a tough "second DUI" conviction in the event that you are unfortunate enough to be faced with an unanticipated vehicle DUI arrest later which would have otherwise been a standard first DUI charge but for a prior BUI conviction.

34. I was arrested by Napa police for a DUI but the Napa District Attorney never filed charges. How do I answer an employment application question whether I've ever been arrested or convicted?

Any good Napa DUI attorney will tell you that if charges were not filed against you within one year following a misdemeanor DUI arrest (typically a first DUI arrest with no aggravating factors such as an injury or evading, etc.), then as far as this arrest is concerned, in most cases you should be able to answer "No" to your job application question about whether you have ever been arrested or convicted of a DUI.

The best Napa DUI lawyers know that according to California Penal Code Section 849.5, in any case in which a person is arrested and released and no accusatory pleading (in other words, no "complaint" or charging document) is filed charging him/her with an offense, any record of arrest of the person shall include a record of release, and thereafter, the arrest shall not be deemed an arrest but a detention only. Therefore, if the status quo continues and no complaint is filed within the statutory one-year time for misdemeanor DUIs (Penal Code Section 802(a)), then assuming no other unusual facts or circumstances, you would forever be deemed detained only, and not arrested. This would allow you to permanently state legally in most cases that you were never arrested or convicted with respect to this matter.

However, the record of arrest may still exist, making your record status seem incomplete, or confusing how to honestly answer certain special kinds of employment or other questionnaires (such as law enforcement, immigration). Napa DUI lawyers will tell you that Penal Code Section 11115 makes it the duty of law enforcement to report the detention-only disposition in such no-file cases to the Department of Justice and the FBI. If you did not receive a Certificate of Detention pursuant to Penal Code Section 851.6, then you may wish to consider asking for one. The CHP's Certificate of Detention is a CHP Form 103. See, Schmidt v. California Highway Patrol. In the event of factual innocence, Penal Code Section 851.8 provides the proper procedure for submitting a Petition to Seal and Destroy Adult Arrest Records. The petition is submitted the arresting agency within two years from the date of arrest, with a copy to the prosecutor, or to the court if denied, and if successful, all records of the arrest are finally sealed and destroyed after three years from the date of arrest.

What good Napa DUI lawyers know for certain is that California Labor Code Section 432.7 prohibits employers from asking an applicant for employment to disclose information concerning an arrest or detention that did not result in conviction, or seeking out or using as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship or other training program leading to employment, any record of arrest or detention that did not result in conviction. An employer’s intentional violation of this law is a misdemeanor offense and would result in treble money damages to the applicant or employee.

I hope this general information helps you, but you should contact a local Napa County DUI lawyer about your specific situation to ensure that there are no other factors which would indicate a different analysis. See my discussion of all kinds of job-related questions with respect to DUI arrests: Easing the Consequences of a DUI: Job Effects. Congratulations on a great resolution to your DUI in court.

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Any result portrayed was dependent on the facts of that case, and the results will differ if based on different facts.

Our DUI Lawyers

Dave Jake Schwartz is an Honors Graduate from UC Hastings Law School, and UC Davis, former Federal Judicial Clerk, and Nationally Qualified Sobriety Tests Practitioner. Member of the California Bar for 30 years, Wine Country resident for over 20 years, handles only DUI cases, including thousands of North Bay DUIs and DMV hearings: first/multiple offenders, minors, seniors, tourists, undocumented immigrants, veterans, probation violations, suspended license, public intoxication, open container, minor in possession, child endangerment, collisions, hit and run, evading, resisting arrest.

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