This presentation outline includes the range of charges, the definition of "under the influence", explanations regarding blood alcohol levels and more.

1. AnatomyAnatomy
of aof a
DUI InvestigationDUI Investigation

2. What are the range of Charges?What are the range of Charges?
 VCVC § 23152(a) and (b)§ 23152(a) and (b)
 VC § 23153(a) and (b)VC § 23153(a) and (b)
 PCPC § 191.5(b)§ 191.5(b)
 PC § 191.5(a)PC § 191.5(a)
 PC § 187PC § 187
 When does DUI become a felony?When does DUI become a felony?

3. What is the range of punishment?What is the range of punishment?
 Misdemeanor vs. FelonyMisdemeanor vs. Felony
 EnhancementsEnhancements
 Refusal VC 23577Refusal VC 23577
 BAC over .15 VC 23578BAC over .15 VC 23578
 Reckless Driving VC 23582Reckless Driving VC 23582
 Multiple persons injuredMultiple persons injured
 Great bodily injuryGreat bodily injury
 VC 23550VC 23550
 VC 23136 and VC 23140VC 23136 and VC 23140

4. Cal. Crim. 2110.Cal. Crim. 2110.
Driving While Under the InfluenceDriving While Under the Influence
of Alcoholof Alcohol (V.C. § 23152(a))(V.C. § 23152(a))
1. The driver drove a vehicle;1. The driver drove a vehicle;
ANDAND
2. When he/she drove, the driver was2. When he/she drove, the driver was
under the influence of an alcoholicunder the influence of an alcoholic
beverage/drug.beverage/drug.

5. Cal. Crim. 2111.Cal. Crim. 2111.
Driving With 0.08 PercentDriving With 0.08 Percent
Blood Alcohol (V.C. § 23152(b))Blood Alcohol (V.C. § 23152(b))
1. The driver drove a vehicle;1. The driver drove a vehicle;
ANDAND
2. When he/she drove, the driver’s blood2. When he/she drove, the driver’s blood
alcohol level was 0.08 percent or morealcohol level was 0.08 percent or more
by weight.by weight.

6. How Many DrinksHow Many Drinks
Does it Take to getDoes it Take to get
to a .08%to a .08%

7. Absorption and EliminationAbsorption and Elimination
• The body absorbs alcohol at .02 per standardThe body absorbs alcohol at .02 per standard
drink.drink.
• The body eliminates alcohol at .015 per hour.The body eliminates alcohol at .015 per hour.
• Full absorption occurs between 30 and 90Full absorption occurs between 30 and 90
minutes after the last drink.minutes after the last drink.

8. Blood Alcohol LevelBlood Alcohol Level
.12
.10
• Burn off period
• Not rising

9. What does it mean to beWhat does it mean to be
““under the influence?”under the influence?”

10. Under the Influence DefinedUnder the Influence Defined
As a result of drinking an alcoholic beverage (usingAs a result of drinking an alcoholic beverage (using
drug)drug)
• His or herHis or her mental abilitiesmental abilities OROR his or herhis or her physicalphysical
abilitiesabilities
• AreAre so impairedso impaired that he or shethat he or she no longerno longer has thehas the
ability toability to drive a vehicledrive a vehicle with the caution of awith the caution of a
sober personsober person,, usingusing ordinary careordinary care, under, under similarsimilar
circumstances.circumstances.

11. Mental or Physical ImpairmentMental or Physical Impairment
• Driving patternDriving pattern
• Objective symptoms of intoxicationObjective symptoms of intoxication
• Bloodshot, watery eyesBloodshot, watery eyes
• Odor of alcoholOdor of alcohol
• Slurred speechSlurred speech
• Mental and physical impairmentMental and physical impairment

12. DIVIDED ATTENTIONDIVIDED ATTENTION
• FSTs are utilized to test the subject’s divided
attention.
• Divided attention is the ability to multitask.
• Driving requires divided attention.
• Alcohol impairs divided attention.

13. DIVIDED ATTENTION &DIVIDED ATTENTION &
HOW IT RELATES TOHOW IT RELATES TO
DRIVINGDRIVING
Driving is a COMPLICATED task.
Have to pay attention to:
•Using headlights.
•Maintaining proper lane.
•Maintaining speed.
•Using signals.
•Watching for objects and other cars.
•Sudden changes on the road

14. Effects of alcohol on drivingEffects of alcohol on driving
Blood Alcohol
Concentration
(BAC)1
Typical Effects Predictable Effects on Driving
.02%
• Some loss of judgment
• Relaxation
• Slight body warmth
• Altered mood
• Decline in visual functions (rapid
tracking of a moving target)
• Decline in ability to perform two tasks
at the same time (divided attention)
.05%
• Exaggerated behavior
• May have loss of small-muscle control
(e.g., focusing your eyes)
• Impaired judgment
• Usually good feeling
• Lowered alertness
• Release of inhibition
• Reduced coordination
• Reduced ability to track moving
objects
• Difficulty steering
• Reduced response to emergency
driving situations
.08%
• Muscle coordination becomes poor (e.g.,
balance, speech, vision, reaction time,
and hearing)
• Harder to detect danger
• Judgment, self-control, reasoning, and
memory are impaired
• Concentration
• Short-term memory loss
• Speed control
• Reduced information processing
capability (e.g., signal detection,
visual search)
• Impaired perception

15. Effects of alcohol on drivingEffects of alcohol on driving
Blood Alcohol
Concentration
(BAC)1
Typical Effects Predictable Effects on Driving
.10%
• Clear deterioration of
reaction time and control
• Slurred speech, poor
coordination, and slowed
thinking
• Reduced ability to maintain lane position and brake
appropriately
.15%
• Far less muscle control than
normal
• Vomiting may occur (unless
this level is reached slowly
or a
person has developed a
tolerance
for alcohol)
• Major loss of balance
• Substantial impairment in vehicle control, attention
to driving task, and in necessary visual and
auditory information processing

16. Field Sobriety TestsField Sobriety Tests
• The perfect place for the officer to describeThe perfect place for the officer to describe
mental and physical impairment….(Hint?)mental and physical impairment….(Hint?)
• How was the driver acting?How was the driver acting?
• Did officer have to give instructionsDid officer have to give instructions multiplemultiple
times?times?
• Focus on driver’s inability toFocus on driver’s inability to multi-taskmulti-task

17. Two for one value of FSTsTwo for one value of FSTs
• Inability to follow instructions = mentalInability to follow instructions = mental
• Inability to gauge the passage of time = mentalInability to gauge the passage of time = mental
• Inability to judge distance = mentalInability to judge distance = mental
• Note the value of the “set-up and instruction”Note the value of the “set-up and instruction”
phase and the “performance phase” of thephase and the “performance phase” of the
SFST’sSFST’s

18. What are SFSTs?What are SFSTs?

19. PAS and EPASPAS and EPAS
• Officers two samples when to avoid any rising BACOfficers two samples when to avoid any rising BAC
defense.defense.
•

20. Importance of Title 17 for PAS andImportance of Title 17 for PAS and
EPAS MachinesEPAS Machines
• WaitWait 15 minutes15 minutes before first PASbefore first PAS
• Make sure to note that the suspect notMake sure to note that the suspect not
drinking/smoking/chewing gum/throwing updrinking/smoking/chewing gum/throwing up
• WaitWait 2 minutes2 minutes between testsbetween tests
• Make sure your machine is getting regularlyMake sure your machine is getting regularly
calibrated and accuracy checked (every 10calibrated and accuracy checked (every 10
days/150 tests)days/150 tests)
• Importance of PAS printoutsImportance of PAS printouts

21. Implied Consent vs. TrombettaImplied Consent vs. Trombetta
• These are different tests with differentThese are different tests with different
admonitionsadmonitions
• Law requires BOTHLaw requires BOTH

22. Implied Consent = VC23612Implied Consent = VC23612
• This comes right after arrestThis comes right after arrest
• All L.E. knows this ruleAll L.E. knows this rule
• For DUI’s = Breath or Blood testFor DUI’s = Breath or Blood test

23. Trombetta = VC23614Trombetta = VC23614
• This comes right after the implied consentThis comes right after the implied consent
test is given.test is given.
• Often gets meshed into the impliedOften gets meshed into the implied
consent admonition.consent admonition.
• Blood or Urine test for a retestable sample.Blood or Urine test for a retestable sample.
• Both options afforded to the defendant forBoth options afforded to the defendant for
a retestable sample under Trombetta.a retestable sample under Trombetta.

24. Drug (including PrescriptionDrug (including Prescription
Drug/Marijuana) DUI’sDrug/Marijuana) DUI’s
• DRE/DARDRE/DAR andand FSTsFSTs
• Admissions?Admissions?
• Driving patternDriving pattern
• DemeanorDemeanor
• Odor of Marijuana? Paraphernalia?Odor of Marijuana? Paraphernalia?
• Strong documentation is necessary!Strong documentation is necessary!

25. Prescription Drug DUI’sPrescription Drug DUI’s
• Is driver on prescription drugs? What? HowIs driver on prescription drugs? What? How
much? When did he last take it? Ask whethermuch? When did he last take it? Ask whether
he has a prescription – DA can charge DUIhe has a prescription – DA can charge DUI
and H&S 11550and H&S 11550
• Ask if they know if their meds come withAsk if they know if their meds come with
warning labels advising against drivingwarning labels advising against driving

26. DefensesDefenses
• No bad drivingNo bad driving
• No driving at allNo driving at all
• Mouth alcoholMouth alcohol
• Machine doesn’t work – test done wrongMachine doesn’t work – test done wrong
• FermentationFermentation
• Drinking after DrivingDrinking after Driving
• That’s not my bloodThat’s not my blood
• Partition ratioPartition ratio
• GerdGerd

27. DMV ProceedingsDMV Proceedings
• Driver has 10 days to request a DMV hearingDriver has 10 days to request a DMV hearing
• At arrest, DMV issues a 30 day temporary licenseAt arrest, DMV issues a 30 day temporary license
• Request the DMV hearing to stay the expirationRequest the DMV hearing to stay the expiration
• Issues at the DMV HearingIssues at the DMV Hearing
• Reasonable suspicion for traffic stopReasonable suspicion for traffic stop
• Probable Cause to Arrest?Probable Cause to Arrest?
• Was the BAC at .08% or greater?Was the BAC at .08% or greater?

28. DMV ProceedingsDMV Proceedings
• First Offense:First Offense:
• license suspended, issue a 30 day temporarylicense suspended, issue a 30 day temporary
licenselicense
• apply for restricted license after 30 days with proofapply for restricted license after 30 days with proof
of enrollment in a 3-month DUI class in Californiaof enrollment in a 3-month DUI class in California
• (If BAC over .15%, 6-9 month DUI class)(If BAC over .15%, 6-9 month DUI class)
• Show proof of insurance (SR-22)Show proof of insurance (SR-22)
• Restricted license for 5 monthsRestricted license for 5 months

29. DMV ProceedingsDMV Proceedings
• Second Offense:Second Offense:
• license suspendedlicense suspended
• After 90 days, eligible for IID restricted licenseAfter 90 days, eligible for IID restricted license
(180 days for 3(180 days for 3rdrd
))
• If no criminal case if filed or if it is subsequentlyIf no criminal case if filed or if it is subsequently
dismissed, driver can request a renewed DMVdismissed, driver can request a renewed DMV
hearing to get license reinstated.hearing to get license reinstated.
• PC 849.5 (BAC under .08 and no criminal case filed, detentionPC 849.5 (BAC under .08 and no criminal case filed, detention
only = no arrest.only = no arrest.
• Dismissal v. Acquittal (Acquittal rescinds; dismissal does not)Dismissal v. Acquittal (Acquittal rescinds; dismissal does not)
• What about the Helmandollar?What about the Helmandollar?

30. Other ConsequencesOther Consequences
• SR-22 (Insurance)SR-22 (Insurance)
• Insurance may be cancelled – or rates skyrocketInsurance may be cancelled – or rates skyrocket
• Increase 20% - 50%; stays on DMV record for 7Increase 20% - 50%; stays on DMV record for 7
yearsyears

31. Other ConsequencesOther Consequences
• Professional licensesProfessional licenses
• B&P section 490:B&P section 490:
• a licensing board may discipline a licensee who hasa licensing board may discipline a licensee who has
been convicted of any crime that is “substantiallybeen convicted of any crime that is “substantially
related to the qualifications, functions, or duties of therelated to the qualifications, functions, or duties of the
business or profession for which the license wasbusiness or profession for which the license was
issued.”issued.”
• FACTORS:FACTORS:
• Level of BACLevel of BAC
• Leaving the scene of the accidentLeaving the scene of the accident
• DemeanorDemeanor
• Denial or suspension (show evidence of rehabilitation)Denial or suspension (show evidence of rehabilitation)
• Multiple Offenses?Multiple Offenses?

32. Other ConsequencesOther Consequences
• Professional licensesProfessional licenses
• AttorneysAttorneys (no duty to report 1(no duty to report 1stst
offense;offense;
repeated offender?)repeated offender?)
• DoctorsDoctors (must self report within 30 days)(must self report within 30 days)
• NursesNurses (must self report within 30 days)(must self report within 30 days)
• Insurance BrokersInsurance Brokers (must self report within 30(must self report within 30
days)days)

33. Other ConsequencesOther Consequences
• Investment BrokersInvestment Brokers (no requirement to self(no requirement to self
report)report)
• Real Estate BrokersReal Estate Brokers (must self report)(must self report)
• CPAsCPAs (same for attorneys)(same for attorneys)
• Public School Teachers (required to obtain a “aPublic School Teachers (required to obtain a “a
criminal record exemption”)criminal record exemption”)
• Immigration Consequences (is it a crime ofImmigration Consequences (is it a crime of
moral turpitude?)moral turpitude?)

34. ConclusionConclusion
• DUI is a matter of choiceDUI is a matter of choice
• The consequences are MASSIVEThe consequences are MASSIVE
• Choose not to drink and driveChoose not to drink and drive
• Know your rightsKnow your rights
• Know whether you might be impairedKnow whether you might be impaired
• BAC CalculatorBAC Calculator
• httphttp://bloodalcoholcalculator.org/#://bloodalcoholcalculator.org/#LinkURLLinkURL
• Don’t drink and drive.Don’t drink and drive.

35. The Horowitz Law FirmThe Horowitz Law Firm
1032 Santa Barbara Street1032 Santa Barbara Street
Santa Barbara, CA 93101Santa Barbara, CA 93101
sanford@horowitzforlaw.comsanford@horowitzforlaw.com
(805) 452-7214(805) 452-7214