Interviewer: When someone’s arrested for a DUI, I’m not sure if they realize that they’re actually facing two kinds of cases. There’s an administrative hearing side of it, where their driver’s license may be taken from them, and then there’s also a criminal side of the case. Can you talk briefly about both issues? I’m sure people don’t take DUI very seriously. They don’t realize that these two things are going on.
Steve: That’s a very good question. I just had that conversation with a client yesterday. I talk to the clients frequently about the process and the importance of acting quickly and contacting an attorney right away. This is because, again, even when you go with the clients through the process, they still don’t quite understand that it’s two separate proceedings, like you just said.
First, the DMV will suspend your license within 30 days if you don’t act, so your license will be gone within a month. Once you get arrested, you’re served with what’s called an administrative, per se, Notice of Suspension, and temporary license. They’re usually required to personally serve it on you. Most often, it’s included with other papers you received when you are released from custody.
The DMV Will Suspend Your License
That pink piece of paper is good for 30 days and if you don’t request a hearing within 10 days, then after 30 days, your license is suspended. They will suspend the license for 120 days if your blood alcohol concentration was 0.08 or above. They will suspend your license for a year if you refuse the BAC test. That’s independent of the criminal proceedings.
When you go to the criminal court, if you plead guilty, or plead no contest to a DUI what ends up happening is they will send the abstract judgment to the DMV. The DMV will actually suspend your license again for six months. It increases the suspension time that you’ve already served.
Reducing the Criminal Charge
On that note, that’s why it’s a very involved process. You can fight all you want in the criminal courts, for example, if you can get the DUI reduced to what they call a Wet Reckless, which is a reckless driving under 23-103 of the Vehicle Code, but pursuant to a 23-103.5.
I don’t want to be too technical but you can plead guilty to what’s called a ‘Wet Reckless’. The Wet Reckless is advantageous for several reasons, but primarily the courts don’t send the abstract of judgment to the DMV, and the DMV doesn’t take any action on a Wet Reckless disposition.
Interviewer: Pleading someone’s case down to a Wet Reckless is one of the ways that you might be able to mitigate the problems that someone’s facing from a DUI?
Steve: It can mitigate the penalties you may receive from the criminal court, yes. I always refer to a Wet Reckless as a glorified DUI. The reason why I refer to it as a glorified DUI is because it’s a similarly situated charge, but it isn’t as serious because there’s no jail time imposed, typically.
You can get the informal probation reduced from three years to a year, even though 24 months is standard, so you still get a year off your probation. You can even get less than that with effective advocacy.
Instead of a first offender program, you get a Wet Reckless school, which can be completed in much less time than the first offender program. It can be done in a day.
With that being said, the fines are lower. Instead of $1,400 in fines, it could be $600.00 or $700.00, although, in certain jurisdictions it’s more than that. In certain jurisdictions, it could be as much as $1,500, even for a Wet Reckless. There are significant advantages to getting the charges reduced.
If Arrested for a DUI, Will You Qualify for Bail?
Interviewer: On the criminal side, someone’s arrested. They’re taken to jail. Then for a first time DUI, do they have to bond out? Will they be released on their own recognizance? What is that process from the time you’re arrested until you get out and the case starts?
Steve: That’s another good question. It all depends on the police officer. It all depends on the agency involved. It all depends on the county. There were occasions a couple years ago, in Sonoma County where I practice, that somebody would be stopped at the scene of the incident. They would be eventually arrested on scene. The police would have a portable breath test that they would use, a device that they would be able to take the chemical test or administer the breath test at the site of the incident, or the scene of the arrest.
In that case, they would actually cite and release you. That was a fairly effective procedure, for the most part, in certain respects. For the law enforcement, it was effective because they ended up doing a very efficient job, didn’t have to crowd the jails and they released the person at the scene to a responsible party. I believe that was a very effective way in which to handle these cases, in certain respects.
We can talk later about some technical problems with that procedure. However, I’m finding more and more that that’s not happening as much right now. I’m finding that now, here in Sonoma County, even a first time offender is taken down to the jail and processed and booked.
Even First Offenders Will Have to Post a Bond
For a first time DUI case you could still be looking at a $5,000 to $10,000 bail, even on a first offense. Obviously, if you have a second offense, or you’re on probation for a prior incident, it’s going to be more expensive. I feel that setting bail for a first time offender is not fair.
There’s no reason that a first time offender, who is a lifelong resident of Sonoma County, tested with a low blood alcohol concentration, has a job and a family and family ties should have to post a bond. Obviously they are going to make their appearance because there’s nowhere to go. They’ve been here their whole life, there’s no reason bail needs to be imposed.
For some odd reason, they’re setting bail all the time. Fortunately, this is beyond the scope of the DUI practice, but the concept of bail has changed and it’s almost like a penalty, in a sense, because they just routinely set bail and the bail schedule for all offenses. They should be evaluating somebody for a ‘cite and release’ or an OR release, which is being released your own recognizance.
You release someone on their own recognizance because, number one, they’re going to make their court appearance and there’s no reason to think they’re going to flee. Number two is, for someone who’s had one DUI, they pose no threat to public safety. What ends up happening is they have to post a bond. Let’s say it’s a $5,000 bail. Typically there are not a lot of people that can post $5,000 with the court right away, so they have to go to a bonding company.
What ends up happening is the bonding company will take a premium, which is 10%, and the person, or person’s family has to come up with that $500, so that is another 10%. Five hundred dollars just to secure the bond, which is the premium, to the bonding company, and you don’t get that back. That goes to the bonding company.
They make money on that, and then that $500.00 could be used for legal counsel to defend the person, but it’s wasted. It’s just a wasted amount of money that was unnecessary from the very beginning and that money could have been used for necessary services, such as legal defense.
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