California is a popular destination for work travel, tourism, or visiting family. In most cases, you will require to drive so you can move around California. Celebrating with a drink or two and driving can get you in trouble for driving under the influence of alcohol. Drunk driving arrests are some of the most common criminal charges in California. However, these charges can be difficult to deal with for out of state drivers. This is because you may be required to return to California to appear in court for your criminal case. Also, if you wish to continue driving in California, you have to battle the suspension of your driving privileges at the Department of Motor Vehicles. If you have an out of state driver’s license and are arrested for DUI, you will require guidance from Orange County DUI Defense Lawyer. We serve clients throughout Orange County, CA, to ensure the best possible outcome for your case.
Overview of Out Of State DUI Arrest
If you are not a resident of California, you can be allowed to drive your vehicle as long as you have a valid driver’s license from your home state. However, if you are a minor, you must hold a valid driver’s license, hold a minors non-resident certificate from the DMV and show proof of responsibility. For individuals who want to live in California, you must visit the DMV within ten days of arrival to seek a California driver’s license.
If you are driving in California, you are required to adhere to all regulations. Driving with a blood alcohol concentration that exceeds the legal limit, you will be arrested and charged with DUI. Similar to California drivers, a DUI arrest begins when your vehicle is stopped at DUI checkpoints or after an accident. The arresting officer will stop your car if they have a reason to believe that you are drunk driving. Some of the signs that can alert the officer of your possible drunk driving include:
- Failure to yield the right way
- Reckless driving
After stopping, they will perform a sobriety test on you. First, they will observe any obvious signs of intoxication. Having a flushed face, alcohol in your breath, reddening of the eyes, or an unsteady gait could give the officer a reason to believe that you might be intoxicated. Also, you may be asked to perform tasks like standing on one leg or walking on a straight line. The officer is legally required to perform the test on you for a minimum of fifteen minutes to ensure they obtain the right observations.
Failing the field sobriety tests will prompt the arresting officer to perform the Breathalyzer test. A Breathalyzer is a device you blow into to check the content of alcohol in your body through the breath. If your BAC exceeds the legal limit, you will be arrested and taken to the station. At the station, qualified personnel will take you blood alcohol tests, which is the most reliable evidence in a DUI case. If you are arrested for DUI in California, it is important to contact a DUI attorney as soon as possible.
You have the right to refuse the chemical tests when called upon to do so. However, there are legal consequences that accompany the failure to submit to these tests. This will include suspension of your driver’s license without a chance to contest the suspension from the DMV. Also, if you will be convicted for DUI, your penalties will be enhanced for chemical test refusal.
After an arrest, the arresting officer will confiscate the driver’s license. However, if you are an out of state driver, a California officer is not authorized to take away your license. You will be issued with a notice informing you that you will not be allowed to drive in California after thirty days.
DMV Hearing for Out of State Drivers
Regardless of your residency status, you can be allowed to contest the suspension of your license. By requesting a DMV hearing, the suspension of your driving privileges will be put on hold, awaiting the results of the DMV hearing. If you file a request for a hearing, the suspension of your driving privilege will go through thirty days after your arrest. If you request a hearing within ten days, then you will have an opportunity to continue driving in California. At the hearing, you will have an opportunity to:
- Testify on your behalf. This is by presenting DUI defenses to avoid the suspension of your privileges
- Cross-examine the witnesses presented by the prosecutor
- Preset witnesses who were present at the time of the arrest
- Review and challenge the evidence brought against you. In most DUI cases, the results of your chemical tests will be a significant piece of evidence to be used against you. The arresting officer will also present their observations on your behavior. If you can create some doubt in the officer’s testimony, you will have a chance to win the DMV hearing and avoid suspicion of your driving privileges.
The following are some handful of issues that the DMV hearing officer will consider when determining your case:
- Whether the arresting officer had probable cause to arrest and detain you
- The level of your BAC at the time of the arrest
- If you refused to take the chemical tests, it should be clear whether you were informed of the consequences of failing to submit to those tests.
With the help of a competent DUI attorney, you can present the following DUI defenses in your DMV hearing:
The Officer Lacked Probable Cause to Arrest you for DUI
In most cases, your behavior when driving and after stopping may be a basis for the officer to believe that you were drunk driving. Swerving between lanes, reckless driving and over-speeding could be reasons why your vehicle is stopped. Also, failing a field sobriety test could be a probable cause for an officer to arrest you for DUI. If your attorney could prove that you were following all traffic rules but still got flagged down, the suspension of your driving privileges may be dismissed.
Claim that you were not Driving
If the traffic officer did not observe you driving the vehicle as there aren’t any witnesses, you can claim that you were not the person behind the wheel. With this defense, the suspension of your license may be set aside
The Officer did not Conduct a Proper Field Sobriety Test
If you were arrested after a failed field sobriety test, you can find fault in the way the test was taken. Under Title 17 of the California Code of regulations, the officer should observe you for at least fifteen minutes as a form of field test before arresting you for Driving under the influence of the drug. Most traffic officers will skip past the sobriety test and go directly to performing the Breathalyzer test. Failure to follow this rule may jeopardize the results and can be a basis of defense in your DMV hearing.
An error in the Calibration of Testing instruments
Breathalyzer devices are required to be regularly checked to ensure they give correct and reliable results. The law mandates that after every ten days or 150 blows, the device should be serviced. If you provided a breath sample on an instrument that did not adhere to the regulation, you can question the credulity of the results. This may help you win the DMV hearing and avoid suspension of your license.
Giving Alternative explanations for you high BAC
Numerous factors can contribute to abnormally high blood alcohol content. If you have conditions such as diabetes, the alcohol in your breath may be high. Also, the consumption of food high in carbohydrates and fats increases the amount of detectable alcohol in your body. If you can successfully explain your high BAC other than alcohol consumption, the suspension of your drivers may be set aside.
If you win the DMV hearing, the hearing officer will set aside the suspension of your driving privileges. Also, if you discover significant flaws in your case, you may be able to have a fighting chance in your DUI criminal case. However, these results will not directly affect the judge’s decision in your criminal case. Regardless of whether you win or lose the hearing, a conviction in the DUI case will attract a suspension.
If you lose the DMV hearing, the suspension of your driving privileges will go into effect. The length of this suspension will be determined by factors in your case. However, even when you lose the hearing, you can obtain information that will help you get a reduced plea. Some pleas will cause the Department of Motor Vehicles to set aside the suspension of your driving privileges in California even after the suspension has gone into effect.
DUI Criminal Case for Out of State Drivers in California
Regardless of whether you win or lose the DMV hearing, you will face a DUI criminal case. California DUI law separates the criminal case and DMV hearing. These proceedings are more serious and cannot take place on the phone. With the help of a competent DUI attorney, you can seek a reduction of your charges to a wet reckless. If you are convicted for wet reckless instead of DUI, you will face lesser penalties and no driver’s license suspension. This is because wet reckless is a lesser offense.
The following are some of the things that will happen if you are convicted for DUI in California while on an out of state driver’s license:
- After a conviction in your DUI criminal case, the court will notify the Department of Motor Vehicle which will suspend your driving privileges in California
- The DMV will send notice to your home state to notify them of your conviction
- Receiving this notice, your state of residence may treat the offense, and conviction as if it occurred there
- As such, your home state is likely to impose tougher penalties than those imposed in California for DUI. Also, you may lose your driver’s license upon return.
Under the interstate driver’s license compact, suspension of your license in California will affect the same rights in your home state. This is because California belongs to the interstate Driver’s License Compact. The severity and type of action your home state will take after an arrest for DUI in California will vary depending on where you live:
- Some states will only take action against you if you are convicted of a DUI criminal case
- Other states will take action when the California Department of Motor Vehicle suspends your driver’s license
- Sometimes you may face penalties for a DUI as if you committed the offense in your state of residence
- In other cases, your home state DUI statute must match those of California, for you to face penalties.
If you are charged with DUI while driving on an out of state license, it is crucial to contact a DUI attorney.
Legal Penalties for an Out of State DUI Arrest
Even if you live in a different state, a conviction for driving under the influence of alcohol in California will attract severe penalties. Depending on the circumstances of your case, you will face penalties similar to those of a California driver. California DUI is a 'prior able' offense and the penalties get more severe with each repeat offense. If you were convicted for DUI or wet reckless within the last ten years and commit another offense, you will be considered a repeat offender. The following are penalties you are likely to face for DUI:
First Offense DUI
A conviction for a first offense DUI in California will attract the following penalties:
- Summary or informal probation for a period of three to five years
- Jail sentence of up to six months
- Fines not exceeding $1,000
- Enrollment in an alcohol education program for three to nine months depending on your case
- Installation of an ignition interlock device. Driver’s license suspension is one of the most devastating penalties for DUI in California. If you are an out of state driver, your privilege to drive in California may be suspended after the conviction. However, you may be able to continue driving upon the installation of an ignition interlock device, which will ensure you operate your vehicle with no detectable alcohol in your breath.
If you are charged with a first DUI in California, and you are an out of state driver, you will require legal guidance. A knowledgeable attorney may help you battle the charges and avoid the penalties or get your DUI to be reduced to lesser charges, such as wet reckless.
Second Offense DUI
If you commit a DUI offense within ten years after a prior DUI or wet reckless, you will be charged as a repeat offender. The most common legal penalties for a second offense DUI are:
- Three to five years of summary probation where you will be required to fulfill all the terms of probation
- Fines ranging from $390 to $1,000
- Up to one-year county jail sentence
- Enrollment in a DUI school for eighteen or thirty months
- Mandatory installation of an ignition interlock device for one ear if you wish to continue operating your vehicle in California. This will help you drive with limited driving privileges.
Third Offense DUI
Penalties you will receive after a conviction for a third DUI within ten years include:
- A minimum of our months and a maximum of two years in county jail
- Informal probation for a period between three and five years
- Up to $1,000 in fines
- Completion of a thirty-month DUI program which should be approved by the court
- Driver’s license suspension for three years
- Mandatory installation of an ignition interlock device for two years
If you cause injury while driving under the influence of alcohol in California, you will be charged with DUI with injury. This offense can be charged as a misdemeanor or a felony, depending on the severity of the injuries and your criminal history. A conviction for DUI with injury as a felony will attract the following penalties:
- Up to ten years in State prison and an addition of one to six years depending on the number of people who got injured and the severity of the injuries
- A maximum of $5,000 in fines
- Enrollment in an alcohol education program for eighteen to thirty months
- Habitual Traffic Offender status for three years
- Restitution of injured victims
On the other hand, you will be subjected to the following penalties for a misdemeanor DUI with injury:
- Five days to one year of jail time
- Maximum of $5,000 in fines
- Installation of an IID in your vehicle for six months
- Restitution to all injured victims
- Three to five years of misdemeanor probation
Even when you are an out of state driver, a conviction for DUI will require you to serve probation in California. When you get probation as a penalty, you will have to adhere to the following conditions:
- Avoid driving with a measurable amount of alcohol in your blood.
- You should not commit any additional crimes while on probation
- You are required to submit to chemical tests any time you are called upon to do so. This may happen at DUI checkpoints and at accident scenes.
- You may be required to attend Alcohol Anonymous meetings
- Restitution of all victims if, as a result of drunk driving. you cause bodily injury to someone else.
1650 Waiver for Non-resident Drivers in California
If you are arrested and charged with driving under the influence of drugs, you may be required to enroll in a DUI program in California. Being an out of state driver, it will be hectic to travel back to California to attend the DUI program. However, you can request a 1650 waiver requesting the Department of Motor Vehicles in California to waive your DUI program requirement.
The DMV imposed DUI program is a requirement for California and out of state drivers who are convicted of the following offenses:
- Driving under the influence of drugs under California Vehicle Code 23152
- Underage drivers who operate a motor vehicle with a BAC of 0.05% or higher
- Driving with a BAC of 0.08% with an adult driver’s license
- Wet reckless under California Vehicle Code 23103.5
If you do not complete the program, your home state may fail to issue you with a license. However, the waiver may help you avoid the DUI program. You cannot apply for a waiver until the suspension period ends. It is important to understand that a 1650 waiver can only be granted once in your life.
- If you wish to apply for a waiver after a DUI conviction, you need to follow the following process:
- Contact California DMV ad request a waiver packet to be sent to your address
- Complete the waiver packet
- Prove that you live outside California by providing a utility bill from your state of residence
- Pay application fees
After filling the waiver packet and paying application fees, the packet will be submitted to the DMV for processing, which might take four to eight weeks. If, after receiving a 1650 waiver, you want to return to California, you cannot legally drive in the state for three years after the date of waiver issuance.
If you are permanently moving to live in California after a waiver, you must complete DUI School before you get a valid driver’s license.
Find a DUI Defense Lawyer Near Me
California laws are stringent on individuals who drive under the influence of alcohol. A conviction for DUI attracts severe penalties, including jail time, probation, fines, and a driver’s license suspension. If you are an out of state driver, your privilege to drive in California may be taken away. With the help of a knowledgeable DUI defense lawyer, you can fight your DUI charges to avoid a conviction and continue operating with your out of state driver’s license in California. If you are in Orange County, CA, you will need an attorney from Orange County DUI Defense Lawyer by your side. Call us today at 714-820-9592 to discuss more details of your case.