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Your San Jose DUI Case: The Basics

It's happy hour on The Row. You've just had the best guacamole of your life at Consuelo, along with countless margaritas, and some overpriced fruity cocktails from Sino. You have an early morning at work tomorrow, so you grab your keys and head home.

Driving down Winchester Blvd, you realize you just ran a red light. Bad news. San Jose Police just realized it, too. You are getting pulled over. The officer approaches and asks for license and registration. She asks you a few more questions and notices you of reek of booze and your speech is slurred. "Ma'am, have you been drinking?" she asks. You don't want to lie. "Just a margarita or two," you respond with trepidation.

You then take a series of field sobriety tests (FSTs). Eventually, you blow into a handheld device known as a preliminary alcohol test (PAS). The officer believes you're intoxicated, places you under arrest, and takes you to the Main Jail Complex for booking and your choice of a blood or breath test. You choose a breath test and blow into an instrument called the Draeger. Results aren't looking good. You'll be spending the night in jail.

Next stop, arraignment in the Hall of Justice.

The Cop Took My License. Now what?

After the officer arrested you, she likely took your driver's license and gave you an "Order of Suspension and Temporary License." You may drive for 30 days from the date of issuance (usually your arrest date) provided your license is not expired, or your driving privilege is not suspended for some other reason. After that, the suspension takes effect. You only have ten days to contact DMV to request a hearing (known as an Admin Per Se Hearing) to contest the suspension.


California has two separate charges for drivers who are impaired by drugs or alcohol.

Driving Under the Influence: You weren't able to drive safely and the officer could see it. Your FSTs show it. You don't need a blood alcohol content (BAC) of 0.08 or above to be charged with DUI. Simply put, alcohol and/or drugs have impaired your judgment to the point where you can't drive your car in the same way as someone who is not intoxicated.

Driving with a Blood Alcohol Concentration (BAC) of 0.08% or Higher: Your BAC is at or above the legal limit of 0.08%.

Aggravating Circumstances

You'll face enhanced penalties in any of the following cases:

High BAC: Drive with a BAC of 0.15 or higher and you'll face pretty stiff penalties.

DUI with a Child Under 14 as a Passenger: No matter the reason, if you have a minor in your car under 14 years old while DUI, you face enhanced penalties.

DUI with Excessive Speed and Reckless Driving: If you drive 20-30 miles over the speed limit and recklessly, you add 60 days jail onto your sentence.

Under Age 21 Operating with Any Alcohol Content: If you are under 21, California has zero tolerance for drinking and driving. You'll be charged if have any presence of alcohol in your system.

Keep in mind, you will face felony charges if you do any of the following :

  • Three DUI or Wet Reckless convictions within 10 years;
  • Causing serious injury or death while driving;
  • Having a prior felony DUI on your record.


In some situations, you'll spend the night in jail and be released the next day with a promise to appear for arraignment. If you are charged with a felony, you'll likely stay in jail until your arraignment. You must be brought before a judge within 48 hours. The judge will inform you of the charges and set bail. She may impose additional conditions, such as alcohol testing. You will enter a plea of not guilty, guilty, or no contest. You can hire a lawyer, represent yourself, or ask for a public defender.

Pretrial Conference/Early Resolution Calendar (ERC)/Felony Advanced Resolution (FAR)

Pretrial conferences are where the plea negotiations. In a misdemeanor, it'll happen after the arraignment. In a felony, they are called ERC or FARs and will happen before the preliminary hearing.

Wet Reckless

At the pretrial conference, the prosecutor might offer a first-time offender a reduced charge known as a "wet reckless" in exchange for your guilty or no contest plea. It will remain on your record for ten years and will be considered a DUI offense in the event you incur another DUI resulting in a conviction within this ten-year period. The fines and penalties for a wet reckless are less than for a standard DUI.

Preliminary Hearing (Felony Only)

You have a right to a preliminary hearing within ten days of your arraignment. This isn't the trial. It's a hearing to show there's probable cause to believe you committed a felony. The prosecutor will call witnesses to testify under oath. Your attorney can cross-examine them, also. If the judge binds you over trial, new dates will be set for the superior court arraignment and trial.

Arraignment (Felony Only)

This is when you are again read your charges and the case is set for trial. This must be done within 15 calendar days of your preliminary hearing. Calendar days include weekends and holidays.


You've rejected the offer and want to go to trial. The State must prove you guilty beyond a reasonable doubt. You have the right to a jury trial where 12 randomly selected members of the community decide your guilt or innocence.


If the jury finds you guilty, the judge will impose a sentence in your case ranging from a small fine, to probation, to alcohol/drug counseling, and in the most serious cases, an active prison sentence.

Driver's License Suspension: The Administrative Per Se Hearing

DUI arrests actually require two types of hearings: criminal and administrative. Nobody likes dealing with the Department of Motor Vehicles even in the best of circumstances. But if you are arrested for DUI, it's inevitable. You face the following license suspensions (if no aggravated circumstances are present):

First Offense: 6 months

Second Offense: 2 years

Third Offense: 3-year revocation

What if I Refused a Chemical Test?

If you refused a blood or breath test, there's a penalty. California has an implied consent law. If you're arrested and refuse to take the chemical test, you'll be fined and the DMV will automatically suspend your license for one year for the first refusal, two years for the second, and three years for the third. This is in addition to any penalties you'll receive if you are convicted of DUI in the criminal case.

Ignition Interlock Device

If you've been convicted of any DUI-related offense, the judge has the option of requiring you to install an ignition interlock device (IID) on any vehicle you own or intend to drive. The court might have you install the device if you had:

  • BAC of at least 0.15%;
  • Moving violations prior to the DUI;
  • Prior DUI convictions within ten years; or
  • Refused the chemical test.

Remember, it's best to never drink or use drugs and drive. Select a designated driver ahead of time, who will stay sober. You can also ask someone else to give you a ride, call a taxi, or use public transportation.

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You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

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Can I Solve This on My Own or Do I Need an Attorney?

  • Complex DUI situations usually require a lawyer
  • DUI defense attorneys can challenge Breathalyzer/Intoxilyzer or blood test results
  • A lawyer can seek to reduce or eliminate DUI penalties
  • A lawyer can help get your license back

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


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