A DUI prosecution involves two major aspects. First, law enforcement is responsible for investigating facts surrounding a prospective DUI, which involves collecting observations, statements, and evidence. Contrary to popular belief, peace officers cannot file charges, instead, they compile as much information as possible and merely recommend charges in their police report. After compiling a complete DUI police report and obtaining lab results (if applicable), the file is sent the District Attorney's office where the DUI prosecutor assigned to the case ultimately decides what charges to file. Accordingly, it is often helpful to retain a DUI defense attorney as early as possible so as to afford him an opportunity to discuss your case with the prosecutor before formal charges have been filed.
Please review the information on our website and feel free to contact us if you would like to discuss your DUI case.
Most Santa Barbara DUI investigations begin with a traffic stop or a DUI checkpoint stop. When stopped for an alleged traffic violation, the officer must have witnessed a California Vehicle Code violation firsthand, or he or she must have another valid warrantless exception for the stop to be lawful (Please see “DUI Defense” for a brief discussion regarding defenses to unlawful stops). Once you have been contacted by a Santa Barbara police officer, he will ask you a series of questions about your alcohol consumption or, depending upon your physical symptoms, about your illegal or legal drug use. The DUI investigator will then ask you to participate in a series of field sobriety tests, which are not administered on a pass/fail basis, but instead are utilized to ascertain motor and cognitive function. Such tests are used to draw inferences about your level of impairment and fitness to drive (or lack thereof). The next step in a Santa Barbara DUI investigation involves the attempted administration of a handheld breathalyzer known as a “Preliminary Alcohol Screening Device” or “PAS.”
While California DUI Law does not require you to take the PAS due to its unreliability, you are required to submit to a chemical test (breath or blood) back at the police station, hospital, or jail. If you refuse the chemical test at the Santa Barbara Police, Hospital, or Highway Patrol Station, the District Attorney's Office may allege a “refusal” under California's “implied consent” law. Implied consent mandates that you submit to a chemical test after being arrested for driving under the influence of alcohol or drug, which is why you may refuse the PAS at the scene of the initial investigation. If convicted of a refusal, the California DMV will levy an automatic one-year driver's license suspension.
During misdemeanor DUI investigations, if there are no aggravating or special circumstances, the officer will physically take your driver's license and generally release you from the Santa Barbara county jail after several hours. For a felony DUI or DUI with an accident or injury, you may have to post bail before being released. If you are from outside of California, then the officer may not physically take your driver's license during a Santa Barbara DUI investigation.
Generally, if your Santa Barbara DUI investigation involves alcohol and no unusual or aggravating circumstances, you will be charged with both 23152(a) and 23152(b) of the California Vehicle Code. 23152(a) refers to the actual driving pattern associated with intoxication and states as follows:
- 23152(a) 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 and drug, to drive a vehicle.
- 23152(b) refers to the objective blood alcohol content and reads as follows:
- 23152(b) 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.
DUI of Drugs
If you are under the influence of illegal or legal drugs, you may be charged with section 23152(a) of the California Vehicle Code. A doctor's prescription is not a valid defense to a charge of 23152(a) since the key is not the legality of the actual drug consumption, but rather the resulting impairment you may have experienced while behind the wheel. During a Santa Barbara DUI of Drugs investigation, the police officer will look at your driving pattern in conjunction with your physical symptoms to ascertain if a DUI of drugs investigation may be necessary. If the officer believes you may be under the influence of illegal or legal prescription drugs and that your driving has been impaired, he may subject you to a urine test in order to test his theory.
DUI Under the Age of 21
Persons under the age of 21 may also be prosecuted under 23152(a) and 23152(b) of the California Vehicle code as well as for DUI of drugs. In a Santa Barbara DUI prosecution, minors are held to the identical standard as adults when charged with either 23152(a) or 23152(b); however, they may also be subject to more stringent standards.
California has a “zero tolerance” law when it comes to minors and driving under the influence of alcohol or drugs. California Vehicle Code (CVC) Section 23136 holds minors civilly liable for driving with even .01 blood alcohol content or “any measurable amount of alcohol.” Since the reason for the blood alcohol reading is irrelevant, a minor may be liable under this statute for driving after consuming something as seemingly benign as cough syrup. Since this is a civil and not a criminal offense, a DMV hearing is utilized in lieu of a formal court proceeding.
Under CVC Section 23140, a minor driving with between .05-.07% BAC may be convicted of a DUI and subject to a one-year license suspension and other criminal penalties.
DUI Causing Injuries
During a Santa Barbara DUI investigation, you may be charged with DUI with injury under CVC section 23153.
California Vehicle Code Section 23153 states in pertinent part:
- 23153. (a) 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.
- 23153. (b) 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.
California Vehicle Code Section 23153 is a “wobbler,” which means that this section may be charged as either a misdemeanor or a felony. Depending upon the specific circumstances, you may face county jail or state prison exposure.
If a DUI results in death to any passenger or any driver of another vehicle, you may be charged with vehicular manslaughter under California Penal Code (PC) Section 191.5.
PC 191.5 States in pertinent part:
- 191.5 (a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
- (b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140,23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
If driving under the influence of alcohol with a young child in the vehicle, you may be subject to prosecution for child endangerment under California Penal Code Section 273(a).
California Penal Code Section 273(a) states in pertinent part:
- (a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
- (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.
A Santa Barbara DUI conviction is “priorable,” which means that each successive penalty conviction within a ten-year period carries a more severe punishment. Priorable DUI offenses include any California DUI conviction, California “Wet Reckless” conviction, or any out of state DUI conviction.
The first DUI conviction carries a penalty of up to six months in jail, a maximum $1000 fine, court probation, up to nine-months of an alcohol education program, and a mandatory driver's license suspension pursuant to the California DMV.
The second DUI offense within ten years exposes you to up to one year in jail, a maximum $1000 fine, court probation, an 18 or 30 month alcohol education program, and a mandatory driver's license suspension pursuant to the California DMV.
The third DUI conviction within 10 years carries the same exposure as the second offense; however, in addition, the DMV may label you as a “habitual traffic offender.”
The fourth DUI offense within ten years is automatically a felony and may include a sentence to state prison.
The District Attorney may assert a special allegation for a blood alcohol content level above 0.15%, which may increase the severity of the punishment. In these cases the judge will look at the totality of the circumstances and may order additional time in custody, more alcohol education courses or alcoholics anonymous classes, and/or the installation of an Ignition Interlock Device, which requires the driver to provide a clean breath sample before starting his or her vehicle.
Additional aggravating factors, other than a high BAC, include excessive speed, DUI with a child under the age of 14 in the vehicle, DUI with an accident, DUI with injury or death, DUI while under 21 years old, and refusing to submit to a chemical test.
In most cases, the judge suspends a harsh sentence as long as the defendant complies with court (informal) probation, which mandates specific terms and conditions. Typical terms include obeying all law, submitting to a chemical test upon request, participation in the Mothers Against Drunk Driving Victim Impact Course, attending at alcoholics anonymous (AA) meetings, and the payment of restitution to any victims, if applicable.
Alternative sentencing may include community service in lieu of jail time. In Santa Barbara, this program is administered by the Santa Barbara Sherriff and is known as the Sherriff's Work Program or “SWAP.” Also, some clients are able to arrange Electronic Monitoring in lieu of serving time in the Santa Barbara County Jail. Electronic Monitoring mandates that you wear an ankle bracelet and stay in your home unless you receive specific permission to leave the premises.
DUI Court Process
Once the Police or California Highway Patrol has conducted a DUI investigation, they compile all of the information into a police report. The report includes all of their observations, including any statements or answers to questions that you have provided. In addition, the officer will recount a detailed evaluation of your performance on the field sobriety tests, if you in fact took them (despite popular belief, you are not legally required to do so). Finally, the report will include the results of the chemical tests, which will usually consist of a breathalyzer printout or a lab result analyzing your blood sample. All of this information is forwarded along to the District Attorney's Office for review.
While police officer's are responsible for gathering evidence, it is the duty of the District Attorney's Office to decide if charges should be filed and if so, which specific charges should be levied. Since prosecutors tend to “dig in” once they have decided to file certain charges, it is advantageous to hire an attorney early on in the process so that he may contact the Deputy District Attorney responsible for your file and attempt to dissuade him from filing charges in the first place.
If charges are in fact filed, then they are articulated on a document called a “complaint.” The complaint is formally read at the first hearing known as the “arraignment.” At the arraignment, the defendant must plead “no contest,” or “guilty,” (both pleas have the same legal effect in a criminal law context), or he may plead “not guilty.” If a not guilty plea is entered, then discovery is obtained, which is all of the evidence and documentation intended to be utilized by the prosecution to obtain a DUI conviction. The matter is then set for a readiness conference, which provides the defense attorney an opportunity to discuss the merits of the case with the prosecutor. If no resolution can be reached, then subsequent readiness conferences may or may not be necessary. The Defense may file various motions prior or subsequent to the readiness conference and may also retain the services of a private investigator and/or forensic toxicologist in order to better understand the facts and evidence.
In felony DUI case, the prosecution would need to put on a “preliminary hearing,” where the District Attorney's Office must introduce evidence and prove that there is probable cause that the DUI crimes alleged actually occurred. The DUI preliminary hearing carries a different set of evidentiary rules and a much lower burden of proof then a jury trial.
If a dismissal or plea bargain cannot be achieved in either a misdemeanor or felony DUI case, then the matter would be set for a jury trial.
In most misdemeanor DUI cases, if you hire a Santa Barbara DUI Defense Attorney prior to your arraignment you will never have to personally appear in court as your attorney may file a “waiver of defendant's personal presence” under California Penal Code Section 977. This helps to alleviate some of the anxiety of the DUI defense process as you will be able to continue your normal activities and routines, while only corresponding directly with your Santa Barbara DUI Defense Lawyer.
A Santa Barbara DUI defense involves a comprehensive analysis and varies substantially depending upon the unique factors and circumstances of each unique DUI case.
DUI Suppression Motion (PC 1538.5)
The 4th Amendment of the United States Constitution protects the citizenry by prohibiting unreasonable search and seizure. This means that a law enforcement officer cannot stop you without a warrant, unless the circumstances fulfill one of the many “warrantless exceptions.” Accordingly, every DUI defense attorney should first analyze the circumstances surrounding the initial contact with law enforcement, whether it was a DUI checkpoint, an alleged California Vehicle Code violation, or any other purported reason. In the DUI context, the criminal defense attorney should consider filing a motion to suppress evidence under California Penal Code Section 1538.5, if the officer's initial seizure of the defendant was without a properly issued warrant or without probable cause. At this “suppression hearing,” the DUI defense attorney would have the opportunity to question the officer and fleshing out facts before making legal arguments. If the court grants the 1538.5 motion then all evidence obtained by the officer would be “suppressed,” meaning the DUI and any other criminal charges would all be dismissed for insufficient evidence. Even if the suppression hearing is not successful, any statements made by the officer may be used in later proceedings, including a DUI jury trial.
Police Officer Biases and Errors
It is not uncommon for law enforcement officers to make errors while conducting a DUI investigation.
Once you have been arrested the police officer must read you your Miranda Rights, prior to conducting a custodial interrogation, otherwise, any statements you may have made to the officer may be excluded. Depending upon the facts of the case, this may lead to a favorable disposition or even an outright dismissal.
Santa Barbara DUI investigators will often report that they observed the same physical symptoms in the majority of their DUI investigation police reports. Some of the most common reported observed symptoms are:
- Slurred Speech
- The odor of alcohol emanating from the person
- Red, bloodshot, water eyes
- An unsteady gait
Obviously, there may be other reasonable conclusions that may be drawn from these observations other than impairment due to alcohol or drugs. Furthermore, the officer's credibility may be questioned since most Santa Barbara Police Reports contain identical language, even though the underlying facts may be substantially different.
Police officers often administer what are known as Field Sobriety Tests in order to ascertain impairment from drugs or alcohol. A brief sampling of Field Sobriety Tests is listed below:
- Walk and turn test
- One-leg stand
- Finger Count
- Finger to Nose
- Lack of smooth pursuit on a horizontal gaze nystagmus test.
It should be noted that these DUI “tests” are not truly pass/fail. Instead, they simply provide an opportunity for the officer to record his observations and make the inference of intoxication without taking into account the numerous explanations for a specific level of performance on a Field Sobriety Test. The subject may be injured, on uneven ground, severely fatigued, distracted by the passing cars on the side of the road, or subject to a number of other factors. A DUI defense attorney may have the opportunity to analyze the officer's observations and seriously question his conclusions.
Scrutinizing the Chemical Tests (Breath and Blood)
Title 17 of the California Code of Regulations mandates specific protocols for obtaining and handling DUI breath, blood, and urine samples.
Title 17 requires proper calibration and record keeping for all breathalyzers as well as proper administration of such tests. For example, subjects must be observed for a continuous period of 15 minutes prior to the taking of a breath sample. During this observation period, the subject should not eat, drink, burp, regurgitate, or vomit, as doing so could substantially alter the test result.
Title 17 also requires that all blood draws are conducted by a qualified technician and that blood samples must be void of any contaminants and stored in a specific manner with proper preservatives and anticoagulants. Blood (and urine) samples must be stored for one year so as to ensure that the DUI defense lawyer may order a retest of the sample at an independent lab. A discrepant lab result from the independent lab or any Title 17 violation may seriously question the credibility of any chemical evidence, and may ultimately lead to lesser charges or even outright dismissal of your DUI case.
Concurrence of the Elements
In order to convict someone of a DUI, the Santa Barbara District Attorney's Office must not only prove that you were substantially impaired and that you were driving a vehicle, but also that you were intoxicated at the time of driving.
The prosecutor must prove that you were actually driving the vehicle at the time you were sufficiently intoxicated. This is an important point in cases where law enforcement relies heavily on inferences as opposed to actual observed driving. In these cases, police officers attempt to rely on a warm engine hood, third-party statements, and other circumstantial evidence, however, these cases can be very difficult to prove. Unobserved driving cases are often strong candidates for a DUI jury trial.
Another important issue revolves around the rate at which alcohol saturates into the blood stream and the rate at which it is expelled. As a general rule, one standard drink (glass of wine, beer, one shot, etc.) equates to .02% BAC. Similarly, the average person burns off .02% BAC per hour. For example, an average person who has consumed 5 drinks over the course of 1 hour, may be right at .08% BAC.
EX: .02 + .02 + .02 + .02 + .02 = .10, however, we subtract .02 for the passage of 1 hour of time for metabolizing and arrive at .08.
However, alcohol saturates into bloodstream at specific rate, meaning there is a point in time when your blood alcohol content (BAC) is still rising before it begins to decline.
EX: If you slam 5 shots of tequila immediately before driving and you are stopped right away, it is safe to assume that your BAC will be substantially higher when tested at the police station then it was while actually driving.
The above phenomenon is known as the rising curve defense, and can be very effective when a blood or breath sample is taken a substantial period of time after the arrest and reveals a result anywhere near .08% BAC. At this point, a DUI defense lawyer may employ the assistance of a forensic toxicologist to opine at to a probable BAC at the actual time of driving, rather than merely when law enforcement administered the breath or blood test.
Often times the goal of a Santa Barbara DUI Defense Lawyer is to identify weaknesses in the prosecutor's case in an attempt to encourage a favorable plea bargain. One of the most common resolutions in borderline cases is negotiating the dismissal of CVC 23152(a) and CVC 23152(b) in favor of a plea to CVC 23103.5, which is known as a “wet reckless.” While a wet reckless is still priorable, meaning a subsequent DUI would be considered a second offense; there are still advantages to this disposition. A plea to a wet reckless allows the defendant to keep a DUI off his or her record, while also incurring lesser fines, a shorter DUI class, and possibly avoiding driver's license suspension (subject to the DMV hearing).
An even more favorable resolution would be a plea to CVC 23103, which is known as a “dry reckless.” The primary advantage of a dry reckless is that this offense is not priorable, and therefore, a subsequent DUI conviction would only be considered a first offense.
Finally, next to a dismissal, the most favorable resolution would be a plea to a California Vehicle Code Violation as an infraction. “Speeding” would be an example of such an infraction.
A DUI conviction can have lasting negative consequences and therefore it may be prudent to retain a DUI appellate lawyer to review your case in its entirety and attempt to overturn the conviction. On appeal, no new evidence is introduced. Instead, the court of appeal focuses on legal arguments in the context of the facts already presented at the trial court.
The first step of a DUI appeal involves reviewing all evidence and documentation in your case, including transcripts from any hearings and the jury trial, if applicable. After meticulous review of the record, a DUI appeals lawyer will then speak with the DUI trial attorney to flesh out the facts further. After the DUI appellate lawyer has a clear picture of the facts and procedural posture, he then conducts legal research and searches for any legal issues that may be examined by the Court of Appeal. These issues are analyzed and argued in a document called, “Appellant's Opening Brief” (AOB). After filing the AOB, the Attorney General's Office, which advocates on behalf of the prosecution, addresses the AOB's arguments in a “Respondent's Brief.” Finally, the DUI appeals lawyer can then file a rebuttal to Respondent's Brief, before deciding whether to request oral arguments in front of the appellate court. After considering all arguments, the appellate court renders a decision and can overturn the conviction, grant a new trial (or hearing), or simply uphold the conviction.