When you have been arrested for driving under the influence (DUI) of drugs and/or alcohol, you are going through a range of emotions, from anger and frustration to fear and disbelief. Not only can it be humiliating but it can also damage your career, criminal record, and reputation. Sometimes, friends and family can turn their backs on you; your attorney may be the only person you can count on.

There are a few things you should know if you have been arrested or charged with DUI:

YOU ONLY HAVE TEN DAYS FROM THE DATE OF YOUR ARREST TO CONTACT THE DMV or your driver’s license will AUTOMATICALLY be suspended. At Vigil Defense we will save your driver’s license from automatically entering suspension by calling the DMV on your behalf and setting an Admin Per Se Hearing. This will ensure that you retain your full driving privileges throughout the DMV process.

What is an Admin Per Se Hearing?

An Admin Per Se Hearing, or APS hearing, gives the driver’s attorney an opportunity to fight the DUI at the DMV stage. There are three issues subject to attack at the APS hearing: 1) Whether the arresting officer had reasonable cause to believe that the driver was driving a motor vehicle while under the influence of alcohol and/or drugs, 2) Whether the driver was LAWFULLY arrested, and 3) Whether the driver was operating a motor vehicle when their Blood Alcohol Content (BAC) level was at or above .08% or higher. The Hearing Officer conducting the hearing must find all three issues satisfied before suspending a driver’s license. It is the job of the attorney to show that one or more issues were not satisfied. If the attorney is successful, the driver will not lose their driving privileges.

A DUI CHARGE IS HANDLED BY THE DMV AND THE STATE SEPARATELY.

When an individual is arrested for DUI, there are two separate agencies they must deal with: the State of California District Attorney’s Offices prosecutes you criminally and the DMV handles the suspension of your driver’s license. One agency does not have power over the other.

What if I win at the APS hearing?

If your attorney is successful at the APS hearing, you will retain your full driving privileges. Prevailing at the APS hearing does not necessarily mean that you will succeed in fighting your criminal charge. However, since there are only three matters at issue in the APS hearing and all of those matters are relevant to the criminal prosecution, successfully defending one or more of the three issues means more leverage in the plea bargaining stage or convincing the District Attorney to dismiss your case completely.

THE DISTRICT ATTORNEY TYPICALLY PROSECUTES AN INDIVIDUAL FOR TWO SEPARATE CRIMINAL CHARGES.

California Vehicle Code §23152 consists of subsection (a) and subsection (b). Section 23152(a) of the CVC accuses the driver of driving while under the influence of alcohol or drugs. Section 23152(b) of the CVC accuses the driver of operating a motor vehicle with a BAC level of .08% or higher.

What is the difference between driving under the influence and driving with a BAC level of .08%?

This question is often asked. Under California law, not only is it illegal to operate a motor vehicle with a .08% BAC level or higher, it is also illegal to operate a motor vehicle if you cannot drive in the same manner as a sober person. Swerving between lanes, driving at an excessive speed, and being involved in an accident are examples of events that would help prove you were not driving in the same manner as a sober person.

Can I be convicted of DUI even if my BAC level was under a .08%?

Yes. However, maintaining a BAC level less than .08% is a very good fact for your attorney to use in your defense. If your BAC level was less than .08% then the District Attorney must prove beyond a reasonable doubt that you were not driving in the same manner as a sober person to succeed in a DUI conviction against the driver. If you were pulled over for a traffic violation that does not indicate impairment, such as failing to use a turn signal, your criminal charges could be reduced or dismissed completely.