The New World of California DUI Law

Driving under the influence of alcohol, or "DUI" as it is usually called, is the most commonly committed crime in the United States. Yet it is almost always committed by a noncriminal - that is, by an otherwise respectable citizen who has never been in trouble with the law. Consequently, representation of the DUI defendant often is attempted by attorneys not versed in drunk driving defense. Typically, the defendant's business or family lawyer will undertake to represent him "as a favor". Drunk driving, the lawyer tells himself, is merely a glorified traffic offense. Certainly it is not as serious or complex as a "real" crime, and therefore cannot call for any particular expertise.

As experienced Los Angeles DUI attorneys, San Diego Attorneys and Orange County DUI Attorneys alike will agree, this is invariably a tragic mistake.

Any lawyer representing a client charged with DUI should be aware of certain preliminary facts:

  1. Though the most common of all offenses, DUI is one of the most complex to understand and defend properly.
  2. The stakes in a DUI case are high - higher in the long run than for most other crimes.
  3. A unique system of legal standards and procedures exists in DUI cases, a system geared to facilitate a conviction.


Once the California DUI defense attorney is fully aware of these facts, he can proceed to competently represent his client.

Common though DUI is in our courts, it represents one of the most difficult criminal offenses to understand and to litigate. Consider first the nature of other crimes: If the client is charged with petty theft, for example, the issue is usually simply a question of whether he was really seen taking something; if burglary is the charge, perhaps fingerprints represent the most esoteric area involved (if even that); and, in a rape charge, semen analysis may be the only subject requiring any special expertise. In fact, in the majority of crimes, the trial hinges solely on one issue: Did the eyewitnesses see what they testified they saw? Even in circumstantial evidence cases, rarely is anything more exotic than DNA, handwriting analysis or ballistics evidence involved.

Now, consider only superficially what the primary issues are in a DUI case: What was the blood alcohol level in the defendant an hour or so prior to the analysis of a breath sample or blood sample? To what extent was alcohol chemically affecting the brain tissue of the defendant in such away as to "appreciably" impair his "judgment," his motor reactions, and his coordination?

In other words, the basic issue is to define chemically what was going on in the client's brain and body at the time of arrest. Even brain surgeons do not yet fully understand how the human brain functions. Yet, in an attempt to determine the biochemical conditions within his client's body at a remote moment, the DUI lawyer must be knowledgeable in chemistry, physiology, photochemical and infrared analysis, gas chromatography, etc. And what is meant by "appreciably" impaired? How does one define "judgment"? How is individual tolerance to alcohol measured? What effects do various drugs and medical conditions have on the metabolism of alcohol? Is there any inherent error in breathalyzers? These issues can continue seemingly without end.

Make no mistake: DUI is one of the most complex of all criminal charges, and undertaking to defend a client on such a charge without extensive preparation constitutes nothing short of malpractice.

The second misconception commonly held by both clients and DUI attorneys is that the penalties for drunk driving are only minor. After all, DUI is only a step removed from a traffic citation.

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The New World of California DUI Law

Again, consider the probable consequences if the client were arrested for, say, petty theft, solicitation, or assault. Since it would probably be his first offense, and since he has probably led a sterling life, he will probably not receive jail time. Instead he will be fined perhaps $300 and placed on informal probation for approximately two years. In many jurisdictions, he can come back into court after a probationary period and have the conviction expunged - that is, erased from his record. End result: a few hundred dollars, inconvenience, and attorney's fees. In fact, statistics indicate that the majority of defendants convicted of felonies end up serving no time in custody; the majority are placed on probation, often without even having to pay a fine.

What does the citizen arrested for DUI face? Depending on the jurisdiction, of course, the first offender may be fined $1,500 and also placed on probation, as a beginning. In addition, the court and/or DMV may take his driver's license, a license that may be critical to operating his business or performing his job. His car maybe impounded or he may be required to have ignition "interlocks" placed in it. He will have to attend special DUI schools, occasionally for a "fee" of hundreds of dollars. According to one somewhat dated study, a convicted first offender's average cost for bail, a DUI defense attorney, treatment programs, and fines exceeds $5,000 assuming no accident. Auto Club News (Southern California), October-November 1989. That figure is much higher today. And he may well serve time in jail; many jurisdictions now impose jail sentences for first offenders. On his second conviction he will almost certainly spend time in custody. This is not time served by a hardened con but by a terrified citizen totally unfamiliar with the callous penal system.

Already the person charged with DUI has suffered more punishment than the majority of convicted felons do. But there is more: A convicted defendant will end up paying thousands of dollars over the next few years in increased auto insurance premiums. He is required by law to carry automobile insurance, but he is now a convicted drunk driver who falls into a high risk category; his premiums will be far higher than those of a bank robber or murderer. Further, the client may be suffering from alcoholism. In effect, he may be criminally prosecuted and punished for having what is now recognized to be a medical (and possibly genetic) condition.

If there is any doubt about the clear trend around the country as to sentencing in DUI cases, consider the case of a defendant in Los Angeles. In an article appearing in the Los Angeles Times it was reported that this defendant had been arrested in Hollywood for DUI. He had three other DUI cases pending, though none of the four incidents involved personal injury or property damage; he was also on probation for drunk driving. In proceedings that the Times reporter said "resembled those for a notorious murder," bail was set at $500,000. The defendant subsequently pleaded guilty. His sentence for these consolidated misdemeanors? The judge imposed a jail term of nine years and 220 days! Three years later, a Louisiana jury topped that by sentencing a defendant convicted of drunk driving with three prior convictions to 11 years at hard labor.

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The New World of California DUI Law

So the stakes are high. Never underestimate the damage that a DUI conviction can do.

The third misconception commonly held about DUI is that the usual criminal safeguards apply. Quite simply, they do not.

Consider for a moment a situation in a homicide case where the prosecution introduces a revolver used in the killing together with opinion testimony that the fingerprints on it are probably the defendant's. Thereafter, the jury might be instructed that, because of this opinion evidence, the defendant is presumed to be guilty unless he introduces sufficient evidence to overcome this presumption. Again, consider an extortion case where evidence of a voice analysis machine indicates that it was probably the defendant who made the threatening phone call. The judge might tell the jurors that they must convict the defendant unless he successfully proves his innocence. Finally, consider a DUI case where the prosecutor offers the results of an Intoxilyzer test into evidence. The jury may be instructed that the defendant is legally presumed to have been under the influence of alcohol.

Are these instructions a violation of the constitutional presumption of innocence? Are they a denial of the Fifth Amendment right against requiring the defendant to testify at trial? Are they reversible error? Of course, in a murder or an extortion trial, these instructions violate the Constitution and are reversible error. But under present laws, such instructions in a DUI case are totally proper and, in fact, required.

Quite simply, a criminal defendant is presumed to be innocent until proven to be guilty beyond a reasonable doubt - except in DUI cases. There, because of blood-alcohol evidence no different in nature - and, in fact, often less reliable - than any other scientific evidence, the presumption is reversed.

"Intent" is another aspect of drunk driving that should be clearly understood: None is required. Neither the intent to become intoxicated nor the intent to operate a motor vehicle is necessary to the corpus of the crime. Drunk driving is, quite simply, an absolute liability offense.

Perhaps even more interesting, the DUI offense itself is vague and literally impossible to accurately determine. What is meant by "under the influence"? By statute, it is usually described along the lines of having reached that state of intoxication at which the reflexes and judgment have been impaired so much that the driver cannot safely operate a vehicle in the manner of a normally prudent and sober person. But how does one determine this corpus - that is, how is this physical-mental state determined? It is impossible, at least with the present state of medical knowledge, actually to go inside a person's brain, nerves, and muscles and directly observe their condition. Proof can only come through circumstantial evidence, indirect measurements, and opinion testimony.

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The New World of California DUI Law

Even the relatively recent so-called "per se" laws present problems. California DUI statutes now make it an offense to drive while the blood alcohol level is in excess of .08 percent, depending on the jurisdiction. The crux of such a DUI statute is that the question of whether the driver was actually under the influence is irrelevant: The law is satisfied by proof of blood-alcohol level alone. The new DUI per se law exists side by side with the traditional "under the influence" statute - and the defendant will probably be charged with both (he cannot be sentenced for both, however). These statutes are clear in defining the offense: Quite simply, it is a crime to drive while having more than a given blood alcohol level. But how is an individual to know what his blood alcohol level is? How can a driver know if his level is an innocent .07 or a guilty .08 percent? For without the benefit of constant blood-alcohol analysis, it is impossible for any person to accurately predict the percentage of alcohol in his blood at any point in time.

Unlike most crimes involving the occurrence of an incident of some sort, DUI concerns not an event but a condition. And unlike condition offenses such as being under the influence of narcotics, which offense involves the simple issue of presence or nonpresence of drugs that can be accurately determined by simple tests, the offense of DUI occurs only when the individual crosses over that vague and arbitrary line separating the drinker from the drunk. The definition of drunk hinges on a difference of a hairline. The presumption that any driver with an Intoximeter reading of .07 percent is not under the influence but that one with a reading of .08 percent is, may appear to be patently ridiculous. But such is the law.

DUI cases are, oddly, analogous to pornography cases. Uniquely, neither crime requires any specific intent, and neither consists of a definable offense. The Supreme Court struggles with concepts of "redeeming social value," "prurient interests," and "contemporary community standards," and upholds a ban on a book in one state while the book is permitted legally in another. The Court permits the showing of motion pictures that would clearly have been criminal a few years earlier. How does one specifically and predictably describe what is obscene? And how does one specifically determine the inner workings of the accused drunk driver's body and brain at a remote point in time? In pornography cases, at least the ultimate issue goes to the jury, which weighs the opinion testimony of various experts. In DUI cases, on the other hand, most states have "solved" the problem by instructing the jury that if the prosecution's chemical evidence indicates that the blood-alcohol level was .08 percent or higher, the defendant is presumed to be guilty. Or, even more expediently, the defendant is also charged with the per se offense, and he is guilty if his blood-alcohol level was that high.

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The New World of California DUI Law

How did all this come about?

There is no question that drunk driving is an increasingly serious problem in the United States and, indeed, throughout the world. There are more cars on the road than ever before; at the same time, the pressures of modern civilization continue to push the figures on alcoholism and per capita alcohol consumption ever higher. The inevitable by-product of this combination is a never-ending slaughter on the highways. And it doesn't take many front-page photographs of mangled six-year-old children to cause a public uproar and stir demands for tougher penalties for drunk drivers. The legislatures and courts of the states, being essentially political in nature, have been consistently responsive to these public outcries for crackdowns on DUI. The courts make sentences more severe; legal procedures are made "more efficient"; police departments pour money into the latest scientific methods of establishing guilt.

The increasingly severe terms of DUI legislation are based, of course, on the premise that tougher provisions will serve a deterrent effect - that is, the more harsh the law, the fewer drunk drivers. Yet the National Highway Traffic Safety Administration estimates that only one arrest is being made for every 1,500 to 2,000 drunk drivers on the road today - too few to represent a real deterrent.

The experiences of various jurisdictions that have cracked down on drunk drivers in years past are interesting. Between 1971 and 1976, for example, the federal government spent $88 million on Alcohol Safety Action Programs (ASAP), including an experimental enforcement blitz in Virginia. This attack on DUI resulted in the yearly arrests in one area increasing from 171 to 3,000, and involved stiffer legislation and more streamlined courtroom procedures. Yet after an investigation of the results of this program in 1974 by the Insurance Institute for Highway Safety, the conclusion was reached reluctantly that there were "no reductions in drunk driving fatalities unique to the ASAP areas... It is only possible to conclude scientifically that ASAP's as large scale programs have been ineffective." Status Report, Insurance Institute for Highway Safety, July 8, 1974.

One of the more publicized crackdowns occurred in Chicago between December 1970 and June 1971: A traffic court judge publicly announced that those convicted on DUI charges would receive a minimum sentence of seven days in jail and a one-year license suspension. After the six-month experiment was completed, the judge announced that holiday deaths were reduced by more than 60 percent.

A group of university statisticians decided to investigate the judge's claims. After considerable study they discovered that, contrary to his assertions, there was only a chance slight variation in holiday deaths from the preceding five years. They also noted that in nearby Milwaukee there was a much sharper drop in the rate of fatalities over the same six-month period - despite the absence of a crackdown in that city. Robertson, et al., Jail Sentences for Driving While Intoxicated in Chicago: A Judicial Action That Failed, 8(1) Law and Society Review 56 (1973).

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The New World of California DUI Law

In 1972, judges in Phoenix began their own "get tough" program, handing out one-day jail sentences to first offenders. The success of the program was applauded in an article that appeared in Reader's Digest. Unfortunately, however, the results were again not those claimed. A report by the National Highway Traffic Safety Administration reluctantly concluded that "overall, court backlogs increased, court expenses rose dramatically, and the intended effect of a severe penalty was nullified." Most important, the new policy resulted in no reduction in DUI accidents or deaths.Alcohol Countermeasures Status, NHTSA (1981).

Advocates of tougher DUI legislation and sentencing are fond of pointing to the Scandinavian countries as examples of harsh treatment resulting in reduced alcohol-related traffic fatalities. The truth is, however, that there has been no greater correlation in those countries than in the United States.

In 1975, Professor H. Laurence Ross of the University of Denver engaged in an extensive study of DUI legislation and sentencing requirements in Norway and Sweden, comparing them with accident statistics in those countries. In an article entitled The Scandinavian Myth: The Effectiveness of Drinking and Driving Legislation in Sweden and Norway, IV(2) Journal of Legal Studies 285 (June 1975), Professor Ross concluded that "the impression that there is strong and convincing evidence to believe that the Scandinavian laws have deterred drinking and driving is false." In Sweden, for example, strict DUI per se laws were passed that reduced blood-alcohol levels and mandated a one-month prison term for first-offense drunk drivers, plus loss of license for a year. After studying traffic fatality statistics in Sweden before and after these legislative and judicial approaches were instituted, Professor Ross concluded that "neither the 1941 introduction of per se legislation nor the 1957 reduction in the legal (blood alcohol) limit is associated with any marked change in fatalities."

Yet the nationwide crackdown on DUI continues. Unfortunately, the wrongly accused are also caught up in this legal dragnet.

The result of this "get tough" policy has been twofold: First, the stakes for a person charged with DUI of alcohol or drugs are now higher than ever. And, second, the procedural safeguards have been streamlined at the expense of the defendant.

So the deck in a DUI case is stacked. The California DUI attorney taking on such a case should be fully aware of this simple fact. But he should also be aware of the deceptive complexity of DUI litigation - for in that very complexity lies salvation for the DUI defense attorney. Evidence produced during a DUI trial is incredibly involved beneath the misleading surface. The average prosecutor, not understanding half of what is being said, puts his witnesses on the stand and simply turns them loose. Very few lawyers - prosecution or defense - are even superficially acquainted with the intricacies of DUI evidence and tactics.