California has the strictest and most rigorous DUI penalties, whether you are a Californian or a non-California resident. When you are from another state but live in Bakersfield and have been apprehended for driving with a Blood Alcohol Concentration (BAC) of not less than .8% or driving under the influence of alcohol, the state DUI statutes will apply to your case. You will face criminal charges and possible penalties in California and your home state.
Furthermore, even though the arresting officer will not confiscate your license, they will issue a suspension order informing you of the suspension of your driving privileges for thirty days. You should request a Department of Motor Vehicles (DMV) proceeding within ten days to contest the suspension. Understanding these proceedings and your responsibilities is difficult because you lack knowledge of California's DUI statutes. To avoid the consequences, we can handle your out-of-state DUI arrest at Koenig Law Office.
Out-of-State DUI Apprehension Overview
Very often, non-California drivers are apprehended for driving under the influence. These arrests are customarily based on violations of Vehicle Code (VC) 23152(a), which defines driving under the influence of alcohol, and VC 23152(b), which defines driving with a minimum BAC of.08%. Violating any of these statutes will result in apprehension and possible charges. If you are a Californian, the arresting cop will impound your driving license and issue you a temporary one valid for thirty days before the actual suspension happens.
Nevertheless, for a driver from outside the state, the arresting cop will not take your physical license because they lack the authority to confiscate out-of-state driver’s licenses. Instead, they will inform you of your 30-day driving privilege suspension. If your outside California driver’s license is suspended, even if you keep the physical one, you cannot lawfully operate an automobile on California roads.
Requesting a DMV Proceeding
When you receive a suspension order informing you of the revocation of your driving privileges for thirty days, you have ten days from the apprehension date to apply for a DMV suspension proceeding to contest the revocation.
DMV suspension proceedings, unlike court hearings, are more relaxed. They are relaxed because a DMV officer with zero training oversees the proceedings instead of a twelve-member jury and a judge.
Also, the evidentiary standard in DMV hearings is lower and more straightforward to satisfy than in criminal cases. In a court case, the prosecutor demonstrates beyond reasonable certainty. At the same time, in a DMV proceeding, the apprehending officer only needs to prove a preponderance of the evidence because it is a civil matter.
The arresting officer only needs to demonstrate that they reasonably believed you were operating an automobile while intoxicated and that the arrest happened within the confines of the law. Besides, after conducting a BAC test, the arresting traffic officer must show that your results exceeded the designated limit. It is possible to obtain an unfavorable decision in the DMV proceeding but still win the criminal court case.
The purpose of the hearing is not to prove that you are guilty or innocent of the traffic violation. The officer in charge of the case focuses on the circumstances leading to the apprehension and whether your action warrants a suspension of your driving privileges.
Again, these proceedings occur at the DMV office or by phone but not in court.
Despite the informality of this hearing, as a non-California driver, you have the same privileges as resident drivers in the DMV license suspension proceeding. These rights include the right to:
- Have legal representation from an experienced DUI legal expert at your expense. The court will not assign you a public defender if you cannot afford a private attorney.
- Analyze evidence, primarily the police statement on your DUI case
- Subpoena and call witnesses for cross-examination
- Present your proof in a DMV proceeding
- Appeal an unfavorable ruling by the DMV officer
If this is your first DUI arrest in California, you will likely not know what to do. Therefore, talk to the Koenig Law Office to explain your rights and how to schedule the hearing.
To arrange a DMV suspension proceeding, talk to a DMV driver safety branch in Bakersfield, where the hearing will occur. The offices are distinguishable from the conventional field offices you visit to acquire a driver’s license or register a car. You should reach out to this office within ten days following your apprehension; otherwise, you will relinquish your right to the hearing.
The advantage of having the guidance of an attorney from California is that they understand the filing process for the hearing and can do it for you. However, this will only happen if you enlist their services before the ten-day window expires. With a legal representative, showing up for the DMV proceeding is not mandatory, as the attorney will do it for you. Nevertheless, you must appear to testify if your testimony is critical to the proceeding.
A local attorney who knows the processes and the DMV officer conducting the hearing can even negotiate to have the proceeding happen by phone instead of physically appearing in their offices.
Do legal research and prepare adequately for this hearing because DMV hearings are broad enough to present a solid argument. Once the hearing ends, the DMV officer can sustain the action to suspend your license due to the drinking and driving allegations. For a first-time offender, the suspension duration will be four months. This is a long time to be without a license, but luckily, under the new laws, you can apply for a restricted driver’s license within the first month of the revocation. With this license, you can drive to particular areas like work, school, or DUI sessions.
Alternatively, if you build a compelling argument, the officer can reverse or set aside the license suspension order, letting you retain your driver’s license.
The suspension of your driving privileges will be final when you fail to request a hearing within ten days. Besides, if you request a proceeding and fail to attend or appear but the ruling is not in your favor, the license suspension will be final.
California Courts and Out-of-State DUI Charges
After an apprehension, the arresting cop will present their report to the District Attorney (DA), who will evaluate the evidence against you and, if compelling, file criminal charges in court. The primary statutes under which the counts can be filed are VC 23152(a) and 23152(b). Most DUI offenders are charged under any of these sections.
If you are an out-of-state commercial driver, you will face criminal charges when you operate the big rig with a .04% BAC or are serving probation for a previous DUI. Underage drivers in California face charges when they drive with a blood alcohol content of .01%.
Driving while impaired by prescription drugs like sleeping pills, OTC drugs like cough syrup, or controlled substances will lead to VC 23152(f) charges. The DUI offense is chargeable as a felony or misdemeanor, depending on your DUI history and the case’s nature. Most DUI cases are filed as misdemeanors, but you could face felony charges if the following is true:
- Someone sustained injuries due to your drunk driving
- You have been previously convicted of a felony drinking and driving charge
- You have at least three prior DUIs or a wet reckless sentence with a ten-year lookback period
You should be involved in the court process regardless of the outcome of your DMV case. Many court hearings are engaged in these criminal charges, and if you or your attorney fails to appear, the court will issue a bench warrant for your arrest.
Nevertheless, when you are under arrest for a misdemeanor DUI, the court allows you to waive court appearances and appoint an attorney to be present. Even if you fail to stay in Bakersfield after the arrest and return to your home state, you will not need to return for your court cases. Nonetheless, if the apprehension was for a felony, you must appear for all court proceedings, but your attorney can negotiate for a waiver whenever you cannot show up.
Also, it would help if you understood that the DMV proceeding differs from the criminal case. The DMV focuses on revoking your driving privileges, while the court imposes criminal penalties upon conviction.
Out-of-State DUI Penalties
When convicted of a VC 23152 violation, you will face the same penalties as California drivers for the same offense. The penalties depend on your DUI record and the severity of the current charges.
If this is your first misdemeanor DUI, a conviction will lead to the following:
- Informal probation for approximately thirty-six to sixty months
- Jail incarceration for at most half a year
- The court imposed monetary fines of $390 to $1,000
- Three to nine months of drug or alcohol school
- Six months of installing an ignition interlock device IID before the driving restrictions are scraped
A second misdemeanor DUI offense attracts the following punishment when the prosecutor secures a conviction:
- 36 or 60 months of misdemeanor probation
- Ninety-six hours to twelve months of jail incarceration
- $390 to $1,000 in court fines
- Mandatory 18 to 30 months of DUI school
- Twelve months of mandatory IID installation
The punishment for a third DUI within ten years is as follows:
- 36 to 60 months of summary probation
- 120 hours to twelve months of jail incarceration
- Mandatory completion of 30 months of DUI school
- DMV designation as a habitual traffic offender (HTO)
- Compulsory installation of an IID for twenty-four months
When drunk driving causes an injury, the punishment is more severe. The offense is a wobbler, and if convicted as a misdemeanor, you will face the following:
- Summary probation for 36 to 60 months
- Five days to twelve months jail incarceration
- $390 to $5,000 in financial court fines
- Three, eighteen, or thirty months of DUI school
- Victim restitution
- Six months of mandatory installation of IID
For a felony sentence, the penalties are stricter and include the following:
- 16 to 120 months of prison incarceration and an additional twelve to 72 months prison sentence depending on the number of your drunk driving victims and the degree of their injuries.
- The court imposed monetary fines of $1,015 to $5,000
- Eighteen to thirty months of DUI school
- Thirty-six months of HTO status
- Victim restitution
- Compulsory installation of an IID for twenty-four to thirty-six months to continue operating your vehicle without restrictions
- The addition of a strike on your record
When you obtain at least four DUIs on your record in ten years, your drunk driving offense will be filed as a felony, attracting the following penalties if you are guilty:
- 16, 24, or 36 months of state prison incarceration
- 30 months alcohol or drug treatment program
- Court fines of $390 to $1,000, but the sum of expenses you will incur in the case is approximately $10,000
- IID installation for twelve months failure to which your driving privileges will be suspended for at most 48 months or permanently
- HTO status label
- Being deemed a convicted felony
If your DUI causes a person's death, you will face life imprisonment when found guilty.
Interstate Driver’s License Compact (IDLC)
California is among the 45 IDLC members. Member states of the compact share information on traffic violation arrests and license suspensions for drivers outside the state. Residents of these member states must hold one driver’s license and have driving records. IDLC members notify each other whenever a DUI arrest or conviction happens. All states in America are members of IDLC apart from Tennessee, Georgia, Massachusetts, Michigan, and Wisconsin.
Therefore, if you are convicted of a traffic violation in California, and your state is among the member states of IDLC, the California DMV will notify the DMV in your home state of the out-of-state drinking and driving arrest. And if charges are filed, and the California court finds you guilty, your home state will impose additional penalties on top of those set by California. These penalties include jail incarceration, probation, license suspension, court fines, and community labor.
Note that when the state where you come from takes action against your license, the action will remain suspended until you complete the responsibilities imposed by the California court, like drug or alcohol school or court fine payment.
When you complete your obligation, you should inform the California DMV to lift or reverse the suspension, leading to the same action in your home state.
Soon, IDLC will be replaced by the Driver License Agreement, which will come with stricter penalties and obligations for out-of-state traffic offenders. For example, even if the state where the apprehension occurs has no license suspension penalties in its statutes, it can impose the suspension, which is impossible under IDLC.
Viable Defenses for Out of State Drunk Driving Charges
Your out-of-state DUI apprehension and subsequent charges are not entirely hopeless. Regardless of the severity of your allegations, promising defense strategies are available that you can use for a favorable result. You can mount several defenses to prevent a conviction and the abovementioned penalties. These viable defenses include:
The Arresting Cop Lacked Probable Cause for the Out-of-State Arrest
The law requires the arresting officer to have a reasonable belief or suspicion that you are engaging in illegal activity for them to stop your vehicle, detain you for further investigations, or apprehend you for DUI. If the cop does not meet these legal standards in any of the arrest stages, you can file a motion to suppress evidence with the help of your DUI attorney. If the court grants the petition, the prosecutor cannot use the suppressed discovery, resulting in a charge reduction or withdrawal.
You Have Psychological Explanations for the Falsely High BAC
Several reasons unrelated to alcohol can explain why your BAC at the time of testing was abnormally high. The equipment that tests your breath for alcohol is designed to detect breath samples deep in your lungs. However, the device can capture mouth alcohol if the following is true:
- Your dental work trapped alcohol-soaked food debris
- You burped after taking a small alcohol amount
- You used a breath spray or alcohol-based mouthwash
- You chew tobacco
These situations can cause the instrument to give a false reading, resulting in a wrongful arrest and charges.
Also, medical conditions like GERD, heartburn, or acid reflux can result in false BAC readings because they cause acid to flow from the stomach to the mouth. If this happens immediately before a breath test, the alcohol in the stomach will flow with the acid to the mouth, disguising itself as deep lung air and causing the breath test equipment to read the wrong BAC.
If these situations apply to your case, you can argue that the breath test equipment captured a falsely high BAC above the designated limit.
Defective Breath Testing Devices
Breath test equipment used in DUI investigations is prone to errors. The errors include the following:
- Instrument malfunction
- Wrong usage by the cop
- Psychological conditions
- External environmental factors like radio frequency interference
Although cops use breath tests to investigate drunk driving cases, the results are not always accurate because they do not directly measure the alcohol in your blood. It measures the alcohol in your breath and converts it to ascertain your BAC, leading to erroneous results. At Koenig Law Office, we understand how errors happen in the equipment and will use this as a defense strategy to dismiss the case against you.
Rising BAC Caused the False Readings
Whether you took a breath or blood alcohol test, using this defense strategy will obtain a favorable outcome. Alcohol takes around 50 to 180 minutes to absorb into your bloodstream. If you start driving before the alcohol begins to rise and are unfortunately stopped on suspicion of drinking and driving, a blood or breath test at this time will show a BAC higher than the actual amount because of the rising blood alcohol weight. The BAC results are irrelevant to the case when the chemical tests are conducted. What counts is your BAC when you are behind the wheel. A defense attorney who understands rising blood alcohol can use this defense to avoid a conviction.
The Arresting Cop Failed to Read Your Miranda Rights
The apprehending cop must read you the Miranda rights when arresting you and performing a custodial interrogation, which happens when the cop asks you questions designed to obtain self-incriminating information. In these situations, the officer must read your Miranda rights; otherwise, the prosecutor cannot use any incriminating statements you make in the interrogation against you in court. If your attorney uses this defense and the information is set aside, the DUI charges will be dropped or withdrawn.
Bad Driving Does not Amount to Drinking and Driving
Police often assume that bad driving is caused by drinking and driving, which is not always true. You can display bad driving like weaving or speeding because of inattention or distracted driving. The distraction could be caused by eating, talking to your passenger, trying to pick up an item you have dropped, or texting. Even a sober driver can exhibit bad driving like an impaired one. Therefore, if your charges are based on bad driving, you can argue that it does not necessarily prove DUI.
You Were Not Behind the Wheel
Demonstrating you were drunk alone is not sufficient to secure a conviction. The officer must testify in court that they saw you operate the vehicle. If you were involved in a crash but no one saw you or the cop found you in the passenger seat with your car parked, the prosecutor will find it challenging to find evidence to demonstrate you drove. With insufficient driving proof, the charges will be reduced or dismissed.
And finally, you can assert that the arresting officer engaged in misconduct by obtaining evidence illegally or lying in their report to have the charges dismissed. You can use this defense when sufficient evidence shows you were drinking and driving.
The police are responsible for preparing an accurate statement about the out-of-state DUI arrest. They must prepare an accurate report, follow Title 17 regulations, and give truthful testimony in court. The court will dismiss the DUI charges if the officers do not follow the procedures provided in the law.
Find a Profound DUI Attorney Near Me
Even if you live out of state and have been apprehended for a DUI in Bakersfield, you should talk to the Koenig Law Office team because you will face criminal charges and an administrative hearing. Our attorneys will review your case’s circumstances, find loopholes, and develop viable defense strategies for a favorable outcome. Call us today at 661-793-7222 to arrange a meeting.