Does the Golden State Permit Plea Bargains for DUIs?
by Rich Stim,
by Rich Stim,
Most people don't think about losing their driving privileges while they're speeding or rolling through a stop sign. But tally up too many moving violations -- or get charged with a DUI or DWI -- and you might end up having your driver license suspended for a few months, even years. Below you'll find a discussion of common reasons for license suspension, the procedure your state might follow to take your license away, and what you can do to fight license suspension.
If you get one or two routine moving violations -- for things like running a stop light or speeding -- your driver license won't be suspended. Usually, your license isn't at risk unless you've been convicted of at least three moving violations in the past three to five years -- specifics depend on the state where you live (parking tickets don't count). An exception sometimes exists for young drivers. In some states, just one moving violation can result in license suspension for drivers under the age of 18.
Most states handle driver license suspensions using a system that assigns a certain number of points for each type of moving violation. If you get too many points in a certain period of time, you are at risk of losing your license. In some states, motor vehicle accidents can result in points as well, even if no fault determination was ever made by a court or law enforcement agency.
Most states' moving violation point systems take one of two forms:
Usually, if you face license suspension because of multiple moving violations, you're entitled to a hearing with a motor vehicle bureau officer before your license is taken away. Since the stakes are high, it makes sense to prepare for and attend the hearing. Think of arguments you can make and facts to present that might persuade the hearing officer to rule in your favor. If appropriate, take the following angles in making your argument:
In some cases, you might want to consult with a lawyer before the hearing or even hire one to represent you.
The best way to keep your license is to keep track of the points you've earned, avoid getting points by driving safely and carefully, fight a ticket when possible, and attend traffic school to wipe points off your record.
If you believe the ticketing officer made a mistake, take steps to fight the ticket in court. (For tips on fighting your ticket, see Nolo's article Five Strategies for Fighting a Traffic Ticket.) Although it may be easier to pay up, remember that the violation will remain on your record for a certain number of years.
Also, in most states, you can prevent a moving violation from appearing as a point on your record by attending traffic school. In some states you can attend traffic school once a year, while in others you must wait 18 to 24 months before you can eliminate a new ticket with a new trip to traffic school. In some states, you aren't eligible for traffic school if you're ticketed for exceeding the speed limit by more than 15 or 20 miles per hour.
If you are eligible for traffic school, take advantage of it. It's a 100% guarantee that your violation won't appear on your record. Most courses are 6 to 8 hours and some states allow you to attend traffic school online, so you can fulfill your obligation at home or in your local library. (For more information on traffic school and different types of penalties for traffic tickets, see Nolo's articleTraffic Fines, License Suspensions, and Traffic School.)
If you are charged with driving under the influence of alcohol or drugs, also called DUI, DWI, or drunk driving, the procedure that leads up to license suspension is very different. In most states, the police officer suspends your license even before you have been convicted of the offense. Here's how the process works:
After the arrest, the police officer takes your driver's license and issues you a temporary license that expires at a future date. On that date, your license will be suspended -- unless you prevail at a DMV hearing. It is your responsibility to request a hearing. If you don't, the DMV will automatically suspend your license. This occurs even if the charges are later reduced or dismissed in court.
At the DMV hearing, you have the opportunity to argue against suspension. If you lose, the hearing officer will suspend your license for a period of time. The amount of time depends on a number of factors, including:
Charges of driving under the influence of alcohol or drugs can have serious consequences. Just as you are wise to consider hiring an attorney to represent you in the criminal hearing for DUI/DWI, you may want to consult with an attorney regarding your license suspension hearing as well. (To learn more about driving under the influence, see Nolo's Drunk Driving, DUI, and DWI FAQ.)
Most states have an "implied consent" law that requires any driver arrested for driving under the influence to give a blood, breath, or urine sample. These laws also require a driver to provide multiple breath samples, if requested by the police. (Because the breath gas analysis can be inaccurate, police officers sometimes want more than one sample.) Refusal to provide any requested sample results in an automatic suspension of your driver's license for three to twelve months, depending on where you live. Your license remains suspended for this time period, even if you are not convicted of the underlying DUI-related charge.
For everything you need to know about challenging a traffic ticket or license suspension -- from understanding the relevant laws to presenting your case in court -- get Nolo's Beat Your Ticket: Go to Court & Win, by David W. Brown.
You can also talk with an attorney about your options if you're thinking about fighting a traffic ticket or a driver license suspension. Go to Nolo's Lawyer Directory for a list of traffic offense attorneys in your area (click the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience with cases like yours).
When applying for the deferred action for childhood arrivals program (DACA) you must answer questions about your criminal background. Many potential applicants who otherwise qualify for DACA are discouraged because their criminal history includes a misdemeanor or a traffic offense and they feel that they may be taking an unnecessary risk by applying for DACA.
The decision of whether to apply has been made even more confusing by the fact that U.S. Citizenship and Immigration Services (USCIS) is using a relatively new standard to review criminal history in DACA cases. According to USCIS, people convicted of either a felony or what USCIS calls a “significant misdemeanor” are not eligible to file for DACA. That still leaves open the possibility for some people with a criminal history to apply, but your best bet is to consult with an attorney before taking this step.
In determining whether someone has been convicted of a significant misdemeanor, USCIS states that it will consider the totality of the circumstances regarding the criminal behavior and make decisions on an individualized basis. However, USCIS does use a set of guidelines while looking at criminal history.
These guidelines state that a significant misdemeanor is, for starters, a misdemeanor -- meaning, according to federal law, a crime punishable by five days to one year in jail regardless of the actual sentence imposed. A misdemeanor that includes any of the following offenses will be considered "significant":
USCIS also provides guidelines to determine whether conduct that did not meet any of these criteria can be considered to be a significant misdemeanor.
If you were convicted of a misdemeanor that does not fit the categories listed above, your misdemeanor can still be viewed as a significant misdemeanor if you were sentenced to time in custody of more than 90 days. This time does not include time in suspended sentences or time served beyond the sentence while under an immigration hold. Importantly, even if the sentence was for 90 days or less, USCIS specifically states that it retains discretion to determine that your crime was a significant enough misdemeanor to disqualify your application.
If you have been convicted of multiple misdemeanors, but none of them constituted significant misdemeanors, USCIS may still deny your application. USCIS states that if you were convicted of three or more misdemeanors, your application may be denied even if none of the crimes was a significant misdemeanor.
However, if the misdemeanors arose out of the same set of facts on the same date, USCIS may look upon that misconduct as one misdemeanor rather than multiple misdemeanors.
USCIS will not view minor traffic offenses, such as a speeding ticket or a ticket for driving without a license, as misdemeanors. This is important because many people have two or three traffic tickets in their history. These tickets will not disqualify you.
You might even consider using the tickets for evidence of presence in the U.S. if you do not have other documentation for a specific date as required by the application. However, any traffic offense involving driving under the influence (DUI or DWI) will be considered a significant misdemeanor no matter the sentence that was imposed.
If you have a misdemeanor in your past but you feel that it does not rise to the level of a significant misdemeanor, you should prepare documentation for USCIS so that the reviewer can determine that you are not disqualified from DACA. In addition to the other evidence you provide with your application, a certified disposition or other court documentation that provides details regarding your criminal background will be useful.
In addition, it would be helpful to have your attorney draft a brief memorandum regarding your criminal history indicating that you should not be disqualified from applying for DACA. Consult with your attorney regarding recommendations for your specific situation.
Drunk driving is known as driving under the influence (DUI) in some states and driving while intoxicated (DWI) in other states. Still others use the term operating under the influence (OUI). Such crimes are considered to be among the most serious of driving offenses -- not surprisingly, as they cause over one third of all traffic fatalities. DUIs and DWIs also tend to carry heavy penalties, and the trends are toward even tougher legislation.
There are essentially three types of drunk driving laws.
A DUI law may prohibit driving under the influence of an alcoholic beverage, driving under the influence of a drug, and driving under the combined influence of an alcoholic beverage and any drug (legal or illegal), regardless of blood-alcohol level.
To prove a person is guilty of the offense of driving under the influence, the following elements must be proven:
Given these elements, a DUI defendant could argue that a fellow passenger was actually driving but forced the person to switch seats before the police officer arrived at the car. Another argument would be that although the defendant had been drinking that day, the alcohol either hadn't yet entered or had already left the bloodstream during the time the defendant was driving.
In every state, a person with a blood-alcohol level (BAC) of 0.08% or higher is presumed to be under the influence of alcohol. Many states have taken this one step further and flatly prohibit anyone from driving with this much alcohol in their blood, whether or not driving is impaired.
To prove a person is guilty of the offense of driving with a BAC of 0.08%, the following elements must be proven:
In states with this type of law, during a trial the jury will usually be given a choice of finding a defendant guilty of driving under the influence and/or driving with a BAC of 0.08% or higher. So, even if the defendant and witnesses could convince a jury that the driver was doing an outstanding job, driving in a manner as cautious and conservative as someone who had nothing to drink, the jury can still find the person guilty if it believes his or her blood alcohol level was 0.08% or more while driving. The penalty in most cases is the same whether the defendant is convicted of one or the other, or both.
Although some DUIs (first offenses, for example) are usually treated as misdemeanors, under certain circumstances the crime can be bumped up to a felony, which is far more serious.
If a driver kills or injures someone as the result of driving while under the influence of alcohol (or having a blood alcohol level higher than 0.08% or more in those states that punish this separately), the person can be found guilty of a felony and could go to state prison for years. Prior convictions for misdemeanor under-the-influence or over-0.08% will usually result in a longer prison sentence.
In some states, a third or fourth DUI or DWI is by itself enough to get a driver charged with a felony. It won't matter whether anyone was killed or injured as a result.
Anyone accused of a felony DUI or DWI should contact a lawyer experienced with handling DUIs or DWIs; no one should ever attempt to handle a felony charge without a lawyer. For more information on dealing with misdemeanor DUI and DWI charges, see Nolo's article Dealing with a DUI or DWI Charge. See Nolo's Lawyer Directory, which provides comprehensive attorney profiles and information to help you select the right attorney. For a reference that will give you the basic information you will need to understand your options when facing a DUI or DWI charge, and to help you deal intelligently with your lawyer, read Beat Your Ticket, by David Brown (Nolo).