DUI Criminal Case Overview

 Driving under the influence of alcohol, drugs or a combination of of the two cases in San Jose are complex.  San Jose "DUI" or drunk driving cases require an experienced and effective DUI Attorney.

In most San Jose DUI cases, the client is arrested for DUI, booked and released within 4-12 hours after arrest, with the actual time determined by the arresting agency or jail depending on how intoxicated the individual is.  In San Mateo Count, for example, a DUI arrestee is regularly taken to a sobering facility called "First Chance."  Either way, you're usually not going to be released until they're certain that you're sober and won't just get another DUI.  

Other factors such as prior DUI convictions, collisions involving injuries, or other crimes committed with the DUI, may lead to further incarceration and/or require that bail be posted.  Otherwise, most people arrested for a DUI in San Jose are going to be released the following day on their promise to appear in court and should receive paperwork indicating when their court date or arraignment is scheduled.  

Generally speaking, as long as no injuries are involved, San Jose DUI cases proceed as misdemeanors and are prosecuted by less experienced prosecutors. However, San Jose DUI cases are complex and your DUI lawyer must be thoroughly familiar with the scientific and medical evidence applicable to such DUI cases in addition to immigration and professional licensing issues.

Most San Jose DUI arrests are for misdemeanor violations of California Vehicle Code Section 23152 are made without a warrant when the arresting officer observes an individual driving erratically, or observes signs of intoxication in a driver stopped for some other Vehicle Code violation.

When an individual is arrested for DUI in San Jose, the arrestee should be admonished under California Vehicle Code Section 23612 of “implied consent,” that he or she will be given a chemical test and they may chose either blood test, breath test or urine test if they’re suspected of driving under the influence of a drug. or drugs and alcohol.  If the requested test is unavailable, the arrestee must submit to the remaining test. The police can compel you to submit to a blood test if you’re being uncooperative.  However, the blood test must be completed in a medically reasonable manner.  If necessary, the police will request a warrant from a judge to allow them to draw your blood and if a warrant is required, the DUI client will likely be charged with a “refusal” enhancement which means a minimum one year license suspension with no restricted license from the  DMV.

The DUI arrestee is held until he or she has sobered up.  The  DUI arrestee is then released with a citation and a promise to appear.  The citation is given to the DUI arrestee informing him or her of the court date, time and place to attend court either in Palo Alto, San Jose or San Martin.  If the DUI arrestee  is not released in this way, bail will be set according to the applicable Santa Clara County bail schedule.

 CALIFORNIA VEHICLE CODE SECTION 23152 DRIVING UNDER THE INFLUENCE OR DUI

(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) Commencing July 1, 2018, it shall be unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle.

(g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.

 Individuals arrested for a first offense misdemeanor DUI are almost always released from custody after they’ve sobered up, usually the following morning.  If the DUI arrest is for a multiple DUI or a felony, a bail bond may be required to secure release from jail.  Otherwise, the DUI offender is released on their Promise to Appear in court.  The written Promise to Appear can take many forms but it typically is a citation that directs the individual to appear at a specific court location on a given time and date.  This first court appearance is called an Arraignment.

The purpose of the arraignment is to advise the defendant in a criminal case of the charges that have been filed against them and for the judge then take the defendant’s plea.  In almost all DUI cases, that plea should be Not Guilty.  After entry of plea, the judge will then schedule a secondary court hearing usually called a Pretrial Conference.  Also addressed at the arraignment will be any pretrial release orders or conditions.  Pretrial release conditions include orders to abstain from alcohol use, an order to attend Alcoholics Anonymous or AA meetings, pretrial ankle monitors like SCRAM, etc.  The judge can also order the defendant remanded into jail custody, but this is reserved for the most serious DUI offenses, like felonies or multiple DUI’s.  Otherwise the DUI arraignment is a rather non eventful court hearing.

San Francisco Bay Area DUI defendants who are represented by privately retained counsel are not required to personally appear for their arraignment and can authorize their lawyer to appear on their behalf pursuant to California Penal Code Section 977.  Since the facts of the defendants DUI case are usually unknown at the time of arraignment, it’s not advisable for a DUI defendant to appear for this hearing.  If a DUI defendant does not have a lawyer, they must personally appear for this hearing or a warrant will be issued for their arrest.  

The typical DUI arraignment is scheduled anywhere from four to eight weeks after the date of the DUI arrest.  The local district attorneys office is supposed to review the arrest report, chemical test results and any other supplemental evidence and file a formal Complaint outlining the charges against the defendant before the arraignment hearing.  This does not always happen and the district attorney has up to one year from the date of the DUI arrest to file charges before the statute of limitations will run in a misdemeanor DUI.  That said, it’s possible that a DUI defendant’s arraignment hearing will be continued without notice to some future date within this window.  This is particularly true in Contra Costa County where it is standard to hold the DUI arraignment around ten months after the date of arrest.  Either way, if the DUI defendant or attorney fails to appear for the arraignment, the judge will issue a bench warrant for the defendants arrest.  

If the DUI arrest was for a felony DUI, the defendant will be required to appear for the arraignment.  While it's important to have a DUI lawyer retained before any arraignment, it's particularly true for a felony DUI.  Even a first offense DUI  that's been charged as a felony can result in the defendant being sent to jail so having an experienced DUI attorney on your side can make the difference between a non jail and a custodial DUI sentence. 

 After a not guilty plea is entered to the DUI charges at arraignment, the court will schedule your case for a Pretrial Conference.  The first Pretrial Conference usually occurs anywhere from four to eight weeks after the arraignment.  San Francisco Bay Area counties may use different terms for what they call this hearing, but the form and substance is basically the same.  

The DUI Pretrial Conference is a court hearing that usually attended by the client.  The purpose of the Pretrial Conference is to discuss the DUI case with the local prosecutor if an effort to reach a settlement or plea bargain.  Ultimately, the district attorney will make a settlement offer and the DUI client will need to decide whether or not to accept or to assert their right to a jury trial.  Since these settlement negotiations are often fluid, Pretrial Conferences are regularly continued to continued so that the prosecutor and DUI client can spend more time to consider settlement.  

It's crucial for the DUI attorney to properly prepare for the Pretrial Conference.  Possible DUI defenses must be fully investigated and special consideration needs to be made for the DUI client's immigration status or how possible settlement may affect employment or licensing issues for the client.  That said, a good DUI attorney will always begin their investigation of the client's DUI case immediately and pursue all relevant discovery after the arraignment is completed.  

In the perfect world, a DUI client will be given the best possible settlement offer at their first Pretrial Conference and their attorney will have completed investigation into the facts of the case such that an informed decision regarding the plea bargain can be made.  The reality is, however, that the district attorney's settlement offer is subject to change over time.  Most often, the prosecutors first settlement offer is rather harsh and it makes sense for the DUI lawyer to continue the Pretrial Conference.  Unfortunately, not all DUI lawyers care about the final result of their clients cases.  Since most DUI lawyers are hired on a flat fee basis, it's not in their financial interest to continue their clients cases, even if it means a better result.  

Too often DUI clients are compelled by their attorneys to take the deal even though by not taking it, they could get a better result.  This is why it's so critical that you do your research before hiring a DUI attorney and make sure you decide upon a lawyer you can trust.