October 16, 2012

grey steel grill

The Scenario – You just got arrested for DUI in California. You’re not sure what to do. You don’t have your license anymore. You have this pink piece of paper and another piece of paper telling you what your court date is. How do you make sense of this?

Orange County DUI

In Custody at the Jail

Release at the Station 

Once you are arrested for a DUI in Orange County you are taken into the police station. From the police station, you will either sit there until you are released or you are taken into Orange County Jail.  If it is the latter then you will be taken into what they call the loop in Orange County Jail.

Released at Jail

The loop in Orange County jail is not known for customer service. After spending 6-12 hours in jail they will eventually release you. This is assuming that you are not subjected to bail. (see below to see whether you need bail for your Orange County DUI) 

If you are reading this because a loved one is in jail then you can look them up using the inmate locater at OC Jail. In a typical DUI scenario in Orange County, if they were arrested in the evenings then they will be released in the mornings. 

What type of Deadlines am I looking at for my DUI?

The two most important things that you need to remember is the DMV and the court process. The deadlines you are looking at in an Orange DUI is 2 folds. Your DUI is Separated into 2 Parts (The DMV and the Court). 

DMV Deadline at the Orange Driver Safety Office.  

DMV Process has to do with Your Driver License, during this process, as long as the APS hearing is pending, your license will still be good. There are number of advantages for setting a DUI APS Hearing after your Orange County DUI.

Setting a DMV Hearing will keep you Driving 

Temporary driver license. With this driver’s license, you’re able to drive as if your license has never been suspended.  Even if it’s after the 30 day period during the pendency of this hearing, they’ll give you what they call a temporary license which will let you drive. Instead of 30 days to drive, after setting this hearing you will get up to 65-90 days.

THE APS Hearing will get a Preview of Your Case before Going to Court. 

On top of that during this APS hearing, and you can use this process to get the police report for your case, you can also use the subpoena power to get the video for your case and the breath calibration. Strategically, It’s important that you use the DMV hearing to get the police report, breath logs and the video before your court date. So that way, by the time you get to court, we know what to do and where you stand on your case. And then from the court date, it would be a matter of negotiations or going to trial to fight your case. 

If you remember nothing at all about this, remember from the DMV process, it’s going to be a 10 day deadline.

Court Deadlines 

The Date on the First Court Date is called an Arraignment. 

The court deadline is going to be what they call an arraignment date.  Your first court date will be what they call an arraignment and a day where you can enter a plea of guilty or not guilty. An arraignment is also the date where tehe judge will give you another date to come back to court and release you on conditions. Depending on whether you have had previous DUIS, the judge may not let you leave court and demand that you post a bond. This is typical for 2nd and 3rd DUIs. 

Pretrial is a fancy way to say negotiations 

The second court date will be a pretrial date. A pretrial date is a fancy way to say negotiations or going back and forth with the prosecutor about your case.  It gives you an opportunity to get more discovery for your case, if you haven’t seen everything yet. There are times where you may not have received the video and audio for your case yet. It is also during this stage where you can run a motion to suppress to challenge the stop in your DUI case to dismiss the case. In addition, this stage also gives you an opportunity to go back and forth as far as the terms and how to resolve your DUI.

What is This Pink Piece of Paper They Gave Me After Arresting Me for a DUI?

After you get arrested for DUI in California, the officer will give you a pink piece of paper.

The temporary License and what to know about it. 

This is what they call your temporary driver’s license. Your temporary driver’s license will be good for 30 days. After that your license will be suspended. Get the APS Hearing to Stop Your License From Being Suspended.

shows pink temporary license which an officer gives you after an Orange County
A pink license will be given to you after your real license is taken from you.

How Do I Avoid a License Suspension? 

An APS Hearing will Stop your License Suspension 

You want to avoid this license suspension. In order to avoid this license suspension, you have to request what they call an APS. Hearing. An APS hearing is an administrative per se hearing in regards to your DUI at a APS hearing. You will need to be aware of the deadline with the Orange County Driver Safety Office where they will determine your driving privileges. Your driving privileges will be suspended in 30 days if you do not take any actions on your license.   By taking action you are putting a stay with the Orange County Driver Safety and requesting an APS hearing. The APS hearing will give you access to police reports and audio video for your case.

Make Your Appointment or Have your Attorney Do it for You. 

You or your attorney will need to make an appointment at the Orange Driver Safety Office.  to stop your license from being suspended within 30 days.  This is different from the regular DMV Offices.  The direct line to the driver safety office for making an APS DUI appointment is 714-703-2511.

What do they consider at an APS Hearing at Orange Driver Safety? 

They determine whether or not the officer had reasonable cause to pull you over whether or not there was probable cause to arrest you and whether or not you were .08  or more at the time of driving. If any of these is lacking, then the case against your driver’s license is dismissed. 

How Long is the court process for an Orange County DUI?

The court process for Orange County DUI can take several months and up to 3 years. 

The First Month an a half after Your Orange County DUI Arrest. 

The arraignment for an Orange County DUI is typically 45 days from the date of arrest. In addition to this, there are delays. In Orange County DUI the first court date usually results in a person or their attorneys coming to the courthouse to only find out that their case has not been filed which results in them making an empty trip. This is what they call a no file. This means that the person should come back to the district attorneys office or call them every 2-3 weeks. 

The litigation part of Your DUI (Pretrial Process)

However, once the Orange County DUI case gets going in court. There are several court appearances. The typical timeline for Orange County DUI is 90 to 120 days once the case gets going. This includes everything from arraignment, pretrials, motions, and the jury trial. 

Post Conviction (DUI Probation)

If the case resolves with a conviction then the probation period can last for 3 to 5 years. In most cases, a first DUI is 3 years and can be expunged afterward probation. For 2nd DUIs the probation period is 5 years. 

Can I Drive after being arrested for an Orange County DUI?

Yes.

You can drive after being arrested in Orange County for a DUI.  There are deadlines you have to watch for such as the 10-day deadline. In addition, you will be able to drive beyond the 10 deadlines if everything was done right with the 10-day deadline.

What are the penalties for an Orange County DUI?

The penalty for an Orange County DUI depends on the severity and frequency of your case. 

What factors will affect my punishment in Orange County?

The factors that will affect make you go to jail on your 1st time Orange County Dui are whether there was an accident and if there was whether it is property only or whether another person was hurt or whether there was speeding. In addition, the amount of alcohol you have in your system will also be taken into consideration.

Accident Brings in Jail Time

A DUI with an accident assuming it is a property only in Orange County will result in the Orange District Attorneys Office demand 10-20 days in jail.  If the accident involves injury then the driver is looking at 30-45 days. If the injury was serious and a felony then it will range between 120-180 days in county jail. If the injury was what they would classify as “great bodily injury” then it can go substantially higher.  

Speeding Carries Minimum 60 Days in Jail. 

A DUI with speed enhancement will result in mandatory jail time if a driver was going over 30 mph over the speed limit and was driving recklessly. However, speed alone can not be the basis for jail time. The must also be reckless driving involved. 

First DUI Penalties

The penalty for a first DUI in Orange County with no penalties and no enhancement is  3 years of probation and 2100 dollars in fines.  However, the prospect of a maximum sentence still hangs over your head and the Orange County Court still reserves the right to sentence you should you mess up during this time. For a first DUI in Orange County you are looking at 3 years of probation unless it is a felony. If it is a felony then you can be looking at 5 years of probation and jail time. In addition, there are classes and fine for a 1st time DUI you need to consider. 

Classes as Part of Your First DUI [12 hour, 3 Months, 6 Months, 9 Months,]

There are 4 levels of classes you will be looking at for your DUI. 

The 12 hour class for a wet reckless. 

The 12 hour class is given to given to people who have a wet reckless. However, it is not always wise to take these classes as DMV will sometimes require you to take the 3month class to get your license back as discussed below. This is problematic because it has the potential to result in 2 commitments for different organizations. For example, 12 hour for the court and 3 months for the DMV to get the 

3month – The most Common class

This is the most common course if DMV suspended your license. You will need to do this to get your license back unless your license was suspended because of a refusal.  This level of class is reserved for people who have blood result between .08 and .15

6months – For people with a BAC of 15.-19

The 6-month class is reserved for people who have blood alcohol between .15 and .19. However, this is considered no mans land as it can often be negotiated down to a 3-month course with the prosecutors. In addition, DMV does not require it which also adds to it not being a desirable option unless it is negotiated down from a 9 month class. 

9 months – For people who refused or are over .20

This the highest level class for people with first DUIs. It is reserved for those who have a blood alcohol content of over .20 and those who refused to submit to a blood-alcohol test. People who had their license suspended because of a refusal will need to take this class to get their license back.  This has the potential to cause problems with the court and DVM. In many instances, the DMV will suspend and require a 9 months course but the refusal will result in no blood of the case which results in a 12 hour or 3-month course in court. When this happens, a person who commits to the lower class for the court will end up doing unnecessary classes. 

18 Month Class – For multiple Offenders. 

If you have a prior DUI within 10 years then you are looking at a DUI with prior. This is known as a 2nd or 3rd DUI in Orange County. You will need to take a 18 month class if this is the case. 

Fines for DUI 

The Fines for a DUI in Orange County DUI will be around 1600-2100 dollars.  This will differ also differ in the courts you are in. Some judges will let you work it off with community service and others will give you credit for time you spent in jail.  A rough rule of thumb that is used is you will pay the lower range if you were arrested before 12 midnight and the fees will go up if you were arrested afterwards. 

Jail Time Penalties You need to Consider 

Generally, 1st DUIs do not involve jail time unless there were special circumstances and DUIs with priors involve jailtime. 

Jail Time for 1st DUI

On the first DUI’s in Orange County, there is no jail time unless there was an accident. If there was an accident then you need to see if there were injuries to determine the amount of jail time. The amount of jail time for a property only accident is 10-20 days in jail. Jailtime will go up significantly if a person was injured. In addition, if there were speeding and reckless driving then the person will be looking at a speeding enhancement. Speeding enhancements in Orange County will result in 60 day minimum in jail. 

DUI with Priors 

If you are a person who comes back a lot then the penalties for Orange County will go up. For example, you have priors and keep racking up more Orange County Duis then they will give you more.  However, if this is your first time then the penalties will be less.  You can read more about DUIs with priors here

What is the worst-case scenario for a 1st Orange County  DUI with No Injury?

The worst-case scenario for a 1st Time DUI in Orange County is 6 months in jail and a $ 1000 in fines which can total to about 4500-4800 dollars after penalties and assessment. The penalties and assessment is additional money that is tacked onto your base fine in Orange County. For example, if you have ever gotten a traffic ticket for 25 dollars you will realize it is not 25 dollar but 300 instead.  This is because of penalties and assessment.

What is the worse case for a 2nd and 3rd DUI within 10 years in Orange County?

The worst-case scenario for 2nd and 3rd DUIs is 1 year in jail.

What is probation like on an Orange County DUI case?

In every Orange County DUI penalty, there will be probation. 

What is probation? 

Probation means the court reserves the right to bring you back and sentence you to the maximum for your case.  For example, you may get a slap on the hand for your case with no jail however, if you violate the terms of your probation (no listen to the court) then they may bring you back and sentence you to the maximum penalty on your case. 

Probation will involve condition you must obey 

There are general condition that applies to every case whether or not your case is a DUI. For example, obey all orders of the court and any programs you are supposed to take.  However,  there also specific crime probations conditions. Every crime has it’s own and DUI is not the exception,

What is probation like in Orange County for a DUI? 

These conditions include but not limited to no new violations, obey your DUI classes do not drive without a valid license and insurance, and submit to a chemical test of a police officer at their request. There are penalties for violating probation. The penalties vary depending on the severity of the violation.  For example, failure to enroll in class is treated differently from a new DUI charge. 

How do I defend an Orange County DUI?

Fighting the Stop  

There are several defenses to fighting a DUI in Orange County.  One thing all DUI in Orange County has in common is the stop.

An Officer Must Observe A Violation or Driving Consistent with DUI 

The police must have a basis for the stop.  To suspect a person is driving under the influence entails following them and observing bad driving or have some kind of observable law violation. They can’t just stop a person because they do not like the way a person looks or they just have a hunch the person is up to no good. The police officer must have a legitimate reason to have contact with a client such as a traffic violation or a suspicion that the person is driving under the influence.  

Police Dash Cam and Body Cam Can Help Defend a DUI case. 

Often times, police cars will have dash cams that can either confirm or dispute the stop.  Dash cams should be to check every stop when it is available. There are many times when a dash cam is not consistent with an officer’s report which can cause problems for the prosecution and bring up reasons to dismiss the case. 

Retest the Blood Result

A Blood result is supposed to reliable however this is not always the case.

Ethanol Alcohol is Ethanol Alcohol 

Blood is suject to contamination as well.  When this contamination happens in an Orange County DUI then it becomes worthless because the ethanol is produced from contaminated blood indistinguishable from that of alcohol beverages. 

Blood Needs to Have the Proper Anti Coagulant and Sodium Flouride 

Contamination can happen in a few different ways.  The most common is because the vials used provided by the Orange County Crime Lab to the Law Enforcement does not have the proper amount of Sodium Flouride or Anti Coagulant in them.  

The site of the Blood Collection on the Skin was Not Cleaned Properly

There are bacteria on the skin which causes fermentation. In order to clean the site properly, the technician needs to clean the site in an outward circle manner. This is not always done. Many times the skin will just be cleaned in a circular manner resulting in bacteria being pushed in which is not proper. 

How Do I Fight Against the Machines?

Breathe Machines are not perfect. They are subject to maintenance and must be tested. If they read high then they must be recalibrated. These maintencnce records are available to be inspected via a subpoena from the  Orange County DMV or an informal discovery request from the Orange County District Attorneys office

My Blood Alcohol Content is below a .07.

Why are they still prosectuing me? 

Orange County DUI is treated differently from DUI’s in Los Angeles County, San Bernardino County and Riverside DUI. An Orange County DUI is very contentious at even low blood alcohol content because the Orange County District Attorney’s Office knows the jury pool does not like DUIs. There have been a string of DUI accidents making the newsw lately which affects the juror pool. 

Going Back in time and Saying You are Over .08. 

I have seen the district attorney go after an Orange County DUI even when the blood alcohol content is .07 which is below the legal limit.  They will argue that a person was higher than the legal limit at the time of driving. This means that a person was .08 or more at the time of driving.

They do this by ASSUMING and using a process called retrograde extrapolation. Retrograde Extrapolation in an Orange County DUI is not a perfect science.  Actually, it is BAD science.

How Does Retrograde Extrapolation in a DUI Work? 

Some of the things they will consider in an Orange County DUI is when a person stopped drinking. How much a person had to drink and what the person drank. There are more factors as well which is too much to go into in one article. They will assume that a person is already in the elimination phase. This means that a person has finished drinking a few hours ago and the alcohol is leaving the system at a steady pace. This pace is usually .015, however experts will often say something outrageous such as .10-.30. They will say .30 to cut off any argument of absorbing because often times a person’s first blow will be very high which can set up a rising argument. Instead of conceding this experts who work for the state who is prosecuting the Orange County DUI will account for this by saying instead of absorbing and causing the instrument to read higher, the person was actually just eliminating a lot of alcohol. .

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