Fred Russo, Attorney At Law

DUI Arrest | DUI Sentence | Reduced Charges & Sentence | DUI Defenses | Chemical Test Refusal

DUI Arrest & Prosecution

After being arrested for a DUI, there will be two separate cases against you.

1. The first case is a DMV Administrative Per Se hearing, which must be requested to contest the suspension of your license within 10 days of your arrest. If you do not make a timely request, your license may be revoked and your right to a hearing may not be granted. I will represent you at the DMV hearing, and we will fight to win your license back.
2. The second case will be a prosecution in the criminal court system. A DUI conviction in California can result in fines, community service, alcohol education programs, and a possible jail sentence. If you are convicted of a DUI, this conviction can stay on your record for up to ten years. If you are convicted of another DUI within that ten year period, your license can be suspended, and you may be sentenced to a jail term. I will fight to obtain an acquittal, reduction, or dismissal for you.

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DUI Sentence

If convicted of a DUI offense, your sentence will depend on a number of factors, including your blood alcohol level at the time of your arrest, prior convictions for DUI, and the circumstances surrounding your arrest.

In most cases and most courts, the following minimum penalties for a DUI conviction (under Vehicle Code Section 23152(a) and 23152(b)) apply in a first offense situation:

• first offense dui requires installation of a ignition interlock device
• three years of informal probation
• a fine of approximately $1,500, incluyding mandatory penalty assessments
• required attendace at a first offense (AB-541) 33 hour alcohol education program
• your license status will be determined by the result of your DMV/APS hearing
• in the event I am successful in having your charges reduced, your sentence will also be reduced. A dismissal will result in no penalties being imposed against you.

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Reduced Charges and Reduced Sentence

Often, I will be able to reduce your charge from a DUI to a lesser offense.

Alcohol-related reckless driving ("wet-reckless")

The most common reduction from a first-offense DUI case is a reduction to a violation of Vehicle Code section 23103.5, commonly known as Alcohol-related reckless driving. Alcohol related reckless driving, or what is often referred to as a "wet-reckless", generally involves a significantly reduced fine and a reduced alcohol program. Instead of requiring the lengthy 33 hour AB-541 first offender alcohol education program, conviction under an alcohol-related reckless driving charge requires only a 12-hour alcohol education program. In addition, there is less impact on your driving privilege.

An alcohol-related reckless driving conviction is, however, "priorable." This means that if you are convicted of another DUI charge within ten years of the alcohol-related reckless driving conviction, then the alcohol-related reckless driving would count as a "prior conviction" with respect to the new case.

Non-alcohol-related reckless driving ("dry reckless")

Another possible reduction of a DUI charge is known as non-alcohol related reckless driving, pursuant to Vehicle Code section 23103. In this circumstance, a defendant generally receives a significantly reduced fine and no alcohol education program. No license suspension or restriction is imposed as a result of this conviction. More importantly, if you have another DUI arrest in the future, then a non-alcohol-related reckless driving conviction cannot be considered a "prior" in any future sentence for another DUI case.

Exhibition of speed

An additional possible reduction of a DUI charge is to a violation of Vehicle Code section 23109(c), commonly known as exhibition of speed. Reduction to an exhibition of speed charge generally involves a fine, with minimal probation. Like a non-alcohol-related reckless driving charge, this offense does not constitute a prior conviction.

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DUI Defenses

Attacking Allegations of Impaired Driving

Some common explanations for impaired driving include poor road conditions, extreme fatigue, inclement weather, or mechanical problems with your vehicle. In addition, minor violations such as lane weaving, failure to stop for a stop sign, or entry into a crosswalk, are common occurrences and are not necessarily symptomatic of intoxication.

Attacking Allegations of "Objective Symptoms" of Intoxication

In preparing their reports after DUI arrests, police officers will frequently make reference to a person's clumsy behavior, such as wavering, stumbling, or general confusion. They will also often refer to a person's slurred speech or reddened, flushed face. All of these so-called "objective symptoms" of intoxication are also common reactions to extremely high-stress situations, such as confronting a police officer. Other symptoms frequently referred to by police officers, such as bloodshot or watery eyes, can be explained by fatigue, by long periods of driving time, or by allergies or airborne pollutants.

The "objective symptom" most frequently referred to by arresting officers, of course, is the strong odor or smell of alcohol. Alcohol is an odorless substance. When an officer refers to an "alcoholic odor," he is actually smelling the flavoring of the alcohol, not the alcohol itself.

Attacking Field Sobriety Tests

I will attempt to minimize the evidence relating to your field sobriety test. The analysis of any field sobriety test performance is largely subjective. Performance of the field sobriety tests are subject to different interpretations.

If a defendant performs poorly on a field sobriety test, independent medical or physical problems may be the cause. Common examples include eye problems, joint or arthritis problems, pre-existing medical injuries, or age and infirmity. I will carefully evaluate the scene where the field sobriety tests were performed. A sloped roadway or sidewalk area or poor lighting conditions can contribute to poor performance on field sobriety tests.

Attacking Breath Test Results

There are also a number of ways in which an experienced DUI attorney can attack chemical test results. The BAC Datamaster and the Intoximeter EC/IR, the primary evidentiary breath-analyzing devices used in the greater Los Angeles area, are just machines. As machines, breath alcohol testing devices have flaws, and their results should always be suspect. Your car can break down, your computer hard drive can crash, and breath alcohol testing equipment can be faulty.

I will never simply assume that blood alcohol chemical test results are accurate. I will thoroughly interview you regarding your medical history and lifestyle to determine whether any foreign substance or pre-existing medical condition may have affected your breath alcohol test results.

In any breath test, all accuracy records, maintenance logs, and usage logs for the machine in question should be carefully evaluated by an experienced professional, to determine whether or not the breath test equipment was in compliance with Title 17 of the California Code of Regulations. The breath testing device checklist and all materials referenced by the checklist, including the certification and qualifications of the operator must be carefully scrutinized. I will obtain and examine all of these records while preparing a defense for your case.

Attacking Blood Test Results

In cases where a blood test was used to determine your blood alcohol concentration, I will obtain a court order releasing the actual blood sample used in your case, and that sample will be independently evaluated for preservative level and blood alcohol concentration. Often, independent testing will reveal an insufficient preservative level, or a lower blood-alcohol level than was determined by the police laboratory.

Additionally, I will examine the "chain of custody" of the blood sample. The "chain of custody" essentially consists of how the blood sample was retrieved by medical personnel and then transported to the laboratory. If there is a "break" in the chain of custody, this may affect the admissibility of the blood test evidence in court. Also, I will determine who drew your blood sample. Under certain provisions of the California Vehicle Code, only certain qualified personnel can draw a blood sample. If an unqualified person drew your blood, then the results of that blood sample may not be admitted as evidence.

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Chemical Test Refusal

Refusing a chemical test is a violation of the administrative laws of the Department of Motor Vehicles, and can have serious ramifications regarding your driving privileges. If you refused a chemical test pursuant to a DUI arrest, the DMV will automatically attempt to suspend your driving privilege for a period of one year.

The court may attempt to add additional penalties to any conviction in a "refusal" case, including mandatory jail time. In addition, the prosecution can ask that the refusal of a chemical test be considered by the jury as a "consciousness of guilt." If you refused to take a breath or blood test, you need an experienced and aggressive DUI attorney to assist you in your case.

I have 35 years experience in dealing with DUI "refusal" cases. In a "refusal" case, there is no chemical evidence or evidence of actual blood alcohol concentration at the time of driving. This can actually be helpful in raising a reasonable doubt in the case. There are possible affirmative defenses to a refusal, including failure by police officers to follow proper procedures (failure to administer a complete admonision, detailing the consequences of a refusal).

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