San Jose Criminal Law: Drunk Driving & DUI FAQs

San Jose and Palo Alto DUI lawyers serving Cupertino, Los Gatos, Mountain View, Palo Alto, Redwood City, San Mateo, Santa Clara, Saratoga & Sunnyvale

The information contained on this page is meant for general informational purposes, only. This information should not be considered legal advice for any individual. Legal advice for each situation can only be obtained by conferencing directly with an attorney.

1. I just was arrested for DUI (Driving under the Influence). Can I wait until I go to court to take care of it?

No. If you do not apply for a Department of Motor Vehicles (DMV) hearing and a stay of your driver’s license suspension within 10 days after your arrest (even though the hearing itself might be in the future), your California driving privileges will be suspended. The length of the suspension depends on a number of factors, including whether or not you have been convicted of DUI before. This happens even while the criminal case is still pending, even if that case is later reduced to a lesser charge.
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2. Should I apply for a DMV hearing and a stay, or should I have an attorney do so?

It is best to have an attorney make the application, just to ensure that it is done correctly. This also sets the hearing on an appropriate date for the attorney's calendar. If that cannot be done, the next best thing would be for you to make that application. Regardless, the application must be made within 10 calendar days. Sometimes, if good cause exists, it is possible to get a DMV hearing, even if application is made after the 10-day window. However, you should never rely on that exception.
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3. What if I am from out of state and do not have a California license? Do I still need to worry about setting a DMV hearing and getting a stay?

Yes. You should still apply for a DMV hearing and a stay. It is your privilege to drive in California that is being suspended. If you do not wish that privilege to be suspended, you need to apply for a hearing. In addition, the state that issued you your driver's license may take action against your privilege in that state, depending upon the nature of your suspension in California. This is a technical area for which you should seek the advice of an experienced attorney.
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4. Can these DMV hearings be won?

Yes, but not for the reasons you may think. The DMV will not listen to reasons why you need to drive. Its decision will be based only on the evidence presented and the facts. These hearings are highly technical and won on technical issues. Lawyers expert in these administrative consequences do have success! But rarely are untrained people representing themselves successful in these hearings. Success depends on a current and thorough understanding of the laws and cases that are relevant.
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5. What will happen to me in the criminal courts if I am convicted of DUI?

You could be facing a number of penalties, including:

  • probation
  • a fine
  • a driver's license restriction
  • a minimum "weekender work" jail sentence( for a first offense)
  • increased jail exposure
  • longer school
  • the requirement of placing an interlock on your ignition switch (for multiple offenders)
  • state prison
  • a driver's license revocation (for a serious felony)

These penalties are all separate and apart from the DMV action discussed above. The type of penalty depends on a number of factors, including:

  • whether this your first offense, or you have had prior convictions
  • whether your blood alcohol was more than .20 percent
  • whether there was an accident in this case or in a case involving an earlier conviction
  • whether you are charged with a "speeding enhancement" (going 30 mph over the speed limit on a freeway or 20 mph over the speed limit on any other street)
  • whether you have exposure to being charged with a felony (You could be charged with a felony if someone was injured in this case or if you had more than three prior convictions or if you were charged with a prior felony DUI where someone was injured (even if you received a minor sentence at that time.)) 

The minimum sentence allowed under the law is either a fine of about $1,500, 48 hours of jail time (usually allowed to be served as "weekender work"), and/or a driver's license restriction. Depending on the severity of your situation or your individual background, you could be exposed to greater sentencing. In a felony case, you could be sent to state prison.

Only conferencing with an attorney in your case will give you information about your possible exposure to increased sentencing and about what can be done to lessen that exposure.
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6. Will hiring an attorney make a difference?

Generally, yes.

A well-trained lawyer with experience in the area of DUI law can make a difference. A lawyer who specializes in this area can get cases dismissed, sentences reduced, or harm to the client minimized.

The most complicated area is the relationship between the administrative and criminal laws. Only an experienced lawyer can guide you through this process and answer your questions.

Also, at other times defendants are frequently not aware of their obligations after a conviction. One of the busiest areas of our practice is helping people answer new criminal charges and complications caused by not completing their post-conviction responsibilities to the court. This is because most defendants, no matter how hard they try, do not realize all of their obligations to the court when convicted. They also do not know how to deal with the Department of Motor Vehicles after a suspension.

At the very least, most people charged with DUI need a knowledgeable and experienced lawyer to guide them through this complicated system.
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7. I live out of state. Do I need to return to California, and what are some unusual problems I may face being from another state?

The first thing you should know is that if you are charged with misdemeanors (and most are), your attorney may appear for you, saving you return trips to California.

Second, there are many obligations created by a conviction or suspension that on their face require an out-of-state driver charged with DUI in California to return to California to complete. However, a knowledgeable attorney can arrange for most, if not all, of your obligations to be completed out of state.
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8. Do I have to be over .08 percent (the "legal limit") to be charged with DUI?

No. You may, can be, and very often are charged with DUI with a blood level below the .08 percent level. This is especially true if you have had a prior conviction within the last 10 years.
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9. What are some of the circumstances that may lead to me being charged with a felony?

A DUI charge may be a felony if one of the following is true:

  • You have had three or more DUIs in the past 10 years.
  • You have had a prior felony within the past 10 yrs.
  • Someone other than yourself was injured in an accident in which you were driving under the influence.

In most of these cases, the court has the option of reducing the charges to misdemeanors instead of felonies depending on the age of the priors and the severity of the injuries.
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10. Why am I charged with two violations that sound like DUI charges on my paperwork when I only drove once?

These are simply two alternate ways of charging one act:

  1. 23152(a) V.C. is the charge of driving under the influence (being an impaired driver), regardless of whether you are accused of being under the influence of alcohol or drugs (even prescription drugs), and regardless of whether your blood alcohol level was .08 percent or higher.
  2. 23152 (b) V.C. is the charge of driving with a blood alcohol level of .08 percent or over, regardless of whether you were actually impaired as a driver.

You can, however, be sentenced for only one act. In fact, in almost all cases (even those where the person pleads guilty to one count) the other is dismissed by the prosecution or ignored by the court for the purposes of sentencing.

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Our Palo Alto and San Jose DUI attorneys serve all of Northern California and the Bay Area with particular emphasis in DUI law for Cupertino, Los Gatos, Mountain View, Redwood City, Saratoga, Sunnyvale, Santa Clara County, San Mateo County, and Alameda County.

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