Fight Your Orange County DUI

A DUI is not just about an .08. There is a lot of science that goes into the breath and blood. Having a skilled attorney can mean the difference between a guilty verdict and not guilty. 

What happens when you are stopped for an Orange County DUI?

There is a lot of information in this article. This is probably one of the most informational piece written on the Orange County DUI Court system. Please feel free to take your time. However, the inforamtion here is for educagtional purpose only. I suggest you have a professional or a an an Orange County DUI Attorney look at your case and evaluate it for you.

Why are they charging me with two charges? 



Orange County DUI Guide

Everything you wanted to know and more

23152 (A) -  Driving Under the Influence

To prove that you are guilty of this crime, the People must prove that:

1. You drove a vehicle;

AND

2. When you drove, you were under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].

23152 (B) - Driving With 0.08 Percent Blood Alcohol

To prove that you are guilty of this crime, the People must prove that:

1. You drove a vehicle;

AND

2. When you drove, your  blood alcohol level was 0.08 percent or more by weight.

23152A is a very generic DUI charge. It is the default DUI. This means you were driving a motor vehicle under the influence. This has nothing to do with what your blood alcohol was at the time of driving. Most of the time the legal limit is .08 of alcohol in your blood and a police officer’s description of your driving and a description of how you are fumbling thru your belongings and some bad field sobriety test will be enough to do you in for 23152 A. This is why lawyers often joke that there is no investigation during the field sobriety test and the officer is only looking for confirmation of the suspicion.

There is some history here. A long time ago before I started practicing and when many of the district attorneys did as well. Many DUI attorneys were winning the 23152A count. (Generic DUI with officer’s description of driving pattern and Field Sobriety Test). However, the laws changed in order to make it easier for people to prosecute those who drink and drive and they added the B count. This B Count is driving with a set level of alcohol in your system. The limit in California is .08 or higher.

Even if you are not under the influence. You can still be found guilty if you are not under the influence. The prosecution can go after you with driving with over .08 (the B count) in your system. The penalties are the same. It’s not fair but it is the way it is. This is unfair to the people who can hold their liquor and are experienced drinkers because they can still be found guilty regardless of 23152A. This will be explained away with alcohol tolerance. They can mask symptoms of alcohol consumption and not appear intoxicated. Unfortunately, if they are tested and there is more than a.08 of alcohol in their system things can get a little messy.

Do Not Refuse After they Give you the Admonition

There are two different kinds of test in an Orange County DUI. There is one you can refuse and there is one you can not refuse. The one you can refuse occurs prior to you being arrested and is only used to help the officer make a determination for the purpose of his investigation. The second one is the chemical test.

Refusing the chemical test after the admonition will result in harsher penalties and guarantee a one year driver’s license suspension. The PAS test refusal can not be used against you. In addition, it is better to have no field sobriety test then to have bad sobriety test. In addition in an Orange County DUI arrest you Should Pay Attention to the 10 Day Rule.

You should know your rights at the stop to prevent further damage


You need to know what to refuse and how much you can get away with in an Orange County DUI . Unless you are on probation, you can refuse the preliminary alcohol screening and the field sobriety test however you are required to take the chemical-breath or blood test by law once you are arrested. If you refuse the PAS and the Field Sobriety Test you will most likely be arrested. However, this is better than making the case for them by giving them all the evidence they need.

Do not talk when you are pulled over

One of my biggest pet peeves as an Orange County DUI lawyer is people talking when they are pulled over for a DUI. The truth about a DUI is you do not have to say anything when pulled over. In fact, when you do start talking when you’re pulled over it only makes things worse. It’s understandable when you are scared and facing arrest. Having a police officer offering to let you go if you comply with the field sobriety test is a very enticing option. However, it is my opinion that by the time they have asked you to do these tests; they have already decided to collect information. This advice does not apply if you are under 21 or are on probation. Let’s look at one example where talking will mess you up.

Keeping the Rising Blood Alcohol Defense Alive

A common defense in DUI is called the rising blood alcohol defense. This defense involves recent drinking. If you drank less than an hour ago and started driving then this defense will be available to you. However when people talk they often say I had two beers a few hours ago. This destroys their rising blood alcohol defense. It makes things very hard for me as an Orange County DUI lawyer to work around this. I have to do creative things to establish a rising blood alcohol defense. One of these creative things is having you testify on the stand during trial. The purpose of this is to change your drinking pattern from two hours ago which was what you told the cop to one hour before driving. This doesn’t look good and it makes it look convenient for you.

The truth is most people get scared when they see a police officer so the most logical thing is to say you had your drinks a few hours ago. The bottom line is an Orange County DUI lawyer will have another option to defend you if the facts show you drank recently as opposed to a long time ago.

Why does drinking recently help my case?

If you recently drank then the experts will not know for sure what your blood alcohol content is at the time of driving. They will never know what your blood alcohol is at the time of driving. The prosecution can only estimate as to what it is at the time of driving. However if you said you stopped drinking two or three hours ago than the prosecution will give a higher estimate because they are assuming you are in the elimination stage.

Do Not Refuse After they Give you the Admonition

Refusing the chemical test after the admonition will result in harsher penalties and guarantee a one year driver’s license suspension. The PAS test refusal can not be used against you. In addition, it is better to have no field sobriety test then to have bad sobriety test. In addition in an Orange County DUI arrest you Should Pay Attention to the 10 Day Rule.

Bottom Line

As an Orange County DUI lawyer, if you are pulled over and you have been drinking then I recommend you skip the field sobriety test and do not answer any questions as to drinking. In fact, you should tell the officer to cite you for what you were pulled over for and let you continue to your destination. Realistically, this will not happen. The officer will insist and asking aggressively ask what you had to drink. You have to respond back that you do not feel like answering any questions and you would rather be on your way home. The officer will ask what you have been drinking again. You need to insist that you want to exercise your rights. You will then ask you to step out of the car and do some sobriety test. You do not need to do these field sobriety tests. Instead ask him to arrest if he has probable cause or let you go if you doesn’t. One of two things will happen. He will let you go or he will arrest you. If he arrests you then you will have to pay the towing feet, however this is much better than making the case for your DUI. If you do everything right and grab an Orange County DUI Lawyer who knows what they are doing then you setting up a very strong case for the defense.

Rights in Court

This is a long procedure that can span for months on an Orange County DUI. There are evidence to be uncovered and negotiations to be made in hopes of cutting or dismissing the charges. If in the end you need to plea, you can do it in person, or sign a document known as a Thal waiver to plea on your behalf. And if there is no solution the case goes to jury trial.

Many rights are kicked in once you are stopped or detained for an Orange County DUI. Even more rights are kicked in once you are arrested for an Orange County DUI. It is important that you know these rights. Many people do not know they have these rights or simply do not understand them. I see many people go into court and give away these rights for their DUI.

3 Biggest Rights in Court


1

Speedy Trial

You have the right to a jury trial within 45 days of your arraignment for your Orange County DUI.

Generally speaking if you were arrested for an Orange County DUI and you are out of custody then you are entitled to a trial within 45 days of your arraignment. This means that your trial must take place within 45 days otherwise your case is dismissed. You have the right to a speedy trial. However, sometimes it is a strategic move to delay a case. Some attorneys will delay a case as far as possible in hopes of making an officers memory vague. Other attorneys will do the opposite they will purposely take the Orange County DUI to trail as soon as possible because it puts pressure on the other side.

2

Right to Confront Witness

You have the right to bring in the officer who arrested you for your DUI.

People often overlook this one. A person will look at a police report and think it is over. But the state must bring in an officer to testify and the officer is subject to cross examination. Officers have many arrests in a year. It is doubtful they remember yours. It is important that you exploit this for case. You need to know these and when to exercise them for your Orange County DUI.

3

Subpoena Power 

You have the right to use the court's subpoena power to compel witnesses and evidence on your behalf. 

This is one of the most important rights.  You have the power to use the court to bring in whoever you think can help your defense. 

In addition to bringing in people who you think they can help your case, you can also bring in records and documents.  This comes in handy when there is video and calibration logs for machines. 

Many police dashcams have videos. Often times these will not be provided unless you have someone on your side to fight for them. 

Orange County DUI Penalties


An Orange County DUI is a serious offense-particularly when a crash takes place and somebody is injured or killed. In recent many years, legislation involving DUI and its Consequences has begun cracking away on vehicle operators that are suspected of driving under the influence and whom do not pass the roadside field sobriety test regularly given to assess their sobriety.

A bad breath sample or not so great sobriety test entails serious facts against the driver whom happens to be stopped on suspicion of drunk driving. A blood test to assess the driver’s blood alcohol material (BAC) degree during the occasion of the crash or traffic provides even more proof against the already charged.

Groups like MADD (Mothers Against Drunk Driving) make an effort to lobby to get more severe penalties for those convicted of a DUI and its Consequences . In addition to advocating a higher-visibility rule administrating measures such as sobriety checkpoints, these groups really forced treatments on to the public.

DMV Administrative Per Se Hearing

What Must I Do to Avoid my License Suspension in the DUI 10 Day Rule?


In order to stop this suspension, you must schedule a DMV hearing within 10 days of your Orange County DUI arrest. Once this happens you will be granted an automatic stay on the suspension of your license. What this means is that after the 30 days, your license will still be good and you will be able to drive. However, this is pending the outcome of your DMV hearing. Typically, you will get a DMV hearing in your DUI within 30-60 days of your DUI arrest.

The first thing you must do is to have your lawyer call the driver safety office who handles your police department. If you are in Orange County it will be the Orange Driver Safety Office. You will need to talk with their operator and have basic information for scheduling your hearing. Some of this the basic information is the agency that arrested you and the type of test that was given to you.

What is the DUI 10 Day Rule?


The DUI 10 Day Rule: says that you must request your DMV hearing within 10 days of your Orange County DUI arrest. An officer will confiscate your driver’s license after you he arrests you for an Orange County DUI. In its place he will give you a pink sheet of paper. This pink sheet of paper is your new driver license.

The new license is only good for 30 days from the date of your Orange County DUI and will expire automatically. After a DUI arrest you are given a temporary license. This license will let you drive for another 30 days. This is called a temporary license. After the 30 days the temporary license will expire. However, there are ways to continue driving beyond the 30 days. Often times when people try to make this request themselves, they mess up. You will have no license and your license will be suspended for either 4 or 6 months.

If your attorney complied with the DUI 10 Day Rule. You will also have to ask for a stay on your license suspension. The stay on your license suspension prevents your license suspension from becoming active. If you are unsuccessful in your APS hearing then the stay will be lifted and the suspension will become active again. If you have an attorney then your attorney will be able to get the police report and start preparing your case. There are a number of issues that the DMV must show for them to suspend your license.

You or your counsel has to get in touch with the DMV within 10 days of the arrest to get a hearing or else you automatically get your license suspended after 30 days. If you hired an attorney they can request it for you, and they may be able to schedule it much later, and can have an effect on hearing officers in the case. The hearing is used as a time to get evidence that can be used in court. An example would be logs and improper training. This process can be used to get all the evidence for your case prior to the court case.​

3 Main Issues at the Orange County DMV Driver Safety Office

1)Law Fullness of the Stop

One of the main issues in an Orange County DUI is lawfulness of the stop. This means that the police must show that they had a good reason to pull you over. A police officer can’t pull you over because he has a hunch. If it can be shown here then the DMV process can be thrown out and the driving suspension will not go into effect. There are also other grounds to save your license beyond the scope of this blog.

2)Whether there was probable cause to arrest you

If the police officer had enough justification to arrest the person.

3)Whether you had over .08 of alcohol in your system

The DMV hearing is another beast in itself. In short it is a hearing with a DMV hearing officer and that officer will decide whether or not you were driving under the influence or over .08 and whether the officer had probable cause to arrest you.

Have representation for Your DMV hearing 

A Different Standard of Proof at the DMV


The DMV and hearing officer determine your driving privileges. This is different from the court process where your liberty can be affected. Because it is a different process the DMV’s burden of proof is only a preponderance of the evidence as opposed to the Court’s where the prosecution must prove their case beyond a reasonable doubt.

The DMV hearing is a contentious area of DUI law right now. There is a lot of disagreement with how hearing officers are conducting themselves. The hearing officers are often based against a person who has been accused of driving under the influence. They will often take the case into their own hand and ignore the law.This is how your license is affected in a DUI case.

What are the three pieces of paper after my Orange County DUI Arrest?


This is your pink temporary license

Orange County DUI - Pink License

Your license will automatically be suspended in 30 days if you do not do anything.

Blood Receipt. 

Orange County Crime Lab

Orange County DUIs will let a person look up their blood result

Promise to appear in court. 

Promise to Appear

When you are arrested you are given a citation to appear. This i s a promise to show up to court on a certain date.

What to do if your name isn’t on Calendar


There are many things that can happen with you DUI case not filed. This can mean anyone of the three things. A DUI case not filed does not mean that the prosecuting agency will not move forward with your case. It could mean that the police agency has not sent the case to the district attorney for filing yet. It can also mean that the district attorney who is the prosecuting agency has not gotten around to reviewing the file and recommend to prosecuting it, and finally the last one it could mean that the prosecuting agency has decided a DUI case not filed is the right course of action. It’s important to know which one of your cases has fallen into. The best scenario and the one that you want is for the district attorney to reject the case and send it back for further investigation thus resulting in a DUI case not filed. Unfortunately that doesn’t always happen.

Arrest warrants orange county

Arrest Warrants in Orange County can be issued for a number of things.

If your name is not on calendar for your Orange County DUI then there are a few things you have to do to cover yourself.

When you have a DUI case not filed, it can mean that the police agency has not sent the case over yet. Some police agencies are slow to send over reports to the district attorney’s office for review. For example, local police stations are usually slower to send out their reports for District Attorney than CHP are. District Attorneys’ Offices are impacted with lots of cases. When this happens, it is important to know that they may take more time to review a case. What may happen is that they may be a few weeks behind on their filing. However, it is normal to see some offices fall back months.

First, double check that screen. Clerical errors happen a lot and middle names can go first or last. Whatever happens, it’s important to keep an eye out on your case. It’s also important not to tip anyone off if your case is not filed. For example, your case got lost in the filed stack and you come by and remind the prosecutors about your case, then that means they will take your file and put it back in the file stack. It’s important to take the right steps with a DUI case not filed and to take advantage of anything that can come out of it.

Orange County Arrest Warrant -

This is how Orange County send out there arrest warrants.

Second, to watch your mailbox and check with the prosecutor’s office every few weeks to make sure your case(s) are filed. Failure to do this can result in your case going to warrant and result in a warrant for your arrest. This is one of the worst things you can do for your DUI. The court gets really agitated when you do not show up to court for your Orange County DUI . When you miss out on your date, then judge will call your name and when there is no answer, a warrant will be issued. In addition to this, the court also sends a sheriff to your place of residence to pick you up. To read more about warrants, you can read “

What Happens when you don’t show up to court

Orange County DUI Penalties


An Orange County DUI is a serious offense-particularly when a crash takes place and somebody is injured or killed. In recent many years, legislation involving DUI and its Consequences has begun cracking away on vehicle operators that are suspected of driving under the influence and whom do not pass the roadside field sobriety test regularly given to assess their sobriety.

A bad breath sample or not so great sobriety test entails serious facts against the driver whom happens to be stopped on suspicion of drunk driving. A blood test to assess the driver’s blood alcohol material (BAC) degree during the occasion of the crash or traffic provides even more proof against the already charged.

Groups like MADD (Mothers Against Drunk Driving) make an effort to lobby to get more severe penalties for those convicted of a DUI and its Consequences . In addition to advocating a higher-visibility rule administrating measures such as sobriety checkpoints, these groups really forced treatments on to the public.


Orange County DUI Attorney
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  • Client had .22 and passsed out in car. 
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About Hieu Vu

Tustin Criminal Defense Attorney

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Orange County DUI Attorney 

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