Common attorney terms relating to California drunk driving arrests, as used by lawyers:
Absorption – The entry of alcohol into one’s bloodstream. The absorptive phase is an extensive period during which time alcohol continues to go into one’s bloodstream after consumption. Peak absorption refers to the highest level of blood alcohol content (BAC) absorbed in one’s bloodstream before BAC begins to diminish.
Administrative Per Se (APS) – California provides DMV authority to proceed with a separate administrative per se action against a driver or licensee arrested or detained for Drunk Driving, Underage DUI or violation of probation. A licensee’s attorney only has 10 calendar days to file a request for a hearing to dispute the driving privileges action. This is separate from the criminal court case.
Acetone – An organic compound as part of your breath often incorrectly read as “alcohol” by California’s DUI breath test estimating machines including the Intoxilyzer, Datamaster, Draeger, and Intoximeter.
Alcohol – The drug ethanol. A central nervous system depressant with a range of side effects. The amount and circumstances of consumption play a large part in determining the extent of intoxication. For example, consuming alcohol after a heavy meal causes alcohol to absorb more slowly.
Arraignment – The first scheduled DUI court date, when one’s criminal defense attorney enters a not guilty plea, continuing the Case, so the Prosecutor and the accused’s lawyer can commence discovery proceedings and exchange evidence.
Attacking and Defending Drunk Driving Tests – Masterful Book featuring everything a DUI criminal defense attorney must know including voir dire approaches, cross-examination techniques, and scientific materials to assist a lawyer in educating a jury that a person accused of Drunk Driving is entitled to a complete & fair trial. By Don Bartell, Mary McMurray and Anne ImObersteg.
BAC – Blood Alcohol Content or level.
BAC .15% or more DUI enhancement – Threshold permitting DUI Sentencing Judge to consider when determining additional or enhanced terms and conditions of probation including but not limited to Jail, Vehicle Impound, Additional Public Work Program or Community Service, Ignition Interlock Device, Higher Fines or Fees, Limitations on Driver’s License, etc. [California Vehicle Code Section 23578]
BAC .20% or more – Level requiring a person to complete a mandatory 9 month alcohol program for persons convicted of first DUI offense. [California Vehicle Code Â§ 23538(b)2]
Black-and-White Fever – A DUI phenomenon arising out of an expected reaction of typical drivers being closely followed by a marked police car often painted “black and white”. A driver sees a DUI police car approaching. Apprehensive, the driver focuses attention on the police car in the rear view mirror. The stress on the driver causes concentration on pure driving to be interrupted. The driver increasingly looks more in the mirror than on the road. As driver moves eyes back & forth, the vehicle tends to drift. The driver then corrects the travel of the vehicle back to the center of the lane. The existence of the California officer can cause probable cause for a DUI stop because of ensuing straddling or weaving, erratic movements, and increases or decreases in speed often caused by tension making one’s foot lift up & push down on the accelerator.
Blood Test Defenses – The defensespossibly available to attorneys in California DUI Blood Tests.
Breath Test Defenses – These defenses may apply to your California DUI Breath Test.
Breathalyzer – The breath test machine used by police to estimate the blood alcohol content (BAC) of an accused facing a Drunk Driving charge in California. This DUI test machine is typically one of the Implied Consent choices for required tests. Attorneys reasonably attack the lack of credibility of these breathalyzers.
Burn-off – As one’s body metabolizes alcohol, it removes alcohol from one’s system via one’s vital organs’ functioning. The rate of burn-off varies from human to human. Burn-off can even be different for the same person depending on various factors. Due to burn-off variances, a prosecuting lawyer’s argument of retrograde extrapolation (estimating a California DUI defendant’s true BAC when actually driving based on a test subsequently given) is a very challenging theory to reasonably swallow. Burn-off is a key cause of why Breath testing is not certain as it merely estimates of one’s Blood Alcohol Level.
California Drunk Driving Law – “The Bible of Drunk Driving Defense”, as recognized by thousands of California judges and lawyers. The most comprehensive reference book for California DUI law.
California DUI Lawyers Association Specialist – A member of California DUI Lawyers Association (CDLA) who is regarded as a “Specialist,” the highest DUI lawyer level awarded by this prestigious organization. CDLA is the longest existing DUI / Drunk Driving Defense Bar Association in America. Although attorneys often advertise themselves as specialists, there really are only a handful of CDLA “Specialist” Lawyers in most California counties.
Checkpoints – Roadblocks established by police to unfairly trap drivers by utilizing cones, signs, force and tons of grant money. This interactive map displays DUI Checkpoints in much of Southern California.
Chemical Test – DUI test for alcohol or drug level(s) in subject’s blood. Chemical tests for California’s Implied Consent requirements including Breath tests. A Blood or Urine test may further be required if officer believes the existence of drugs.
Coma – BAC = 0.35 to 0.50% (Unconsciousness).
Community Caretaker – In order for an officer to make a lawful, warrantless detention based on the community caretaker exception, there must be a substantial risk to life or the possibility of major property damage..
Court Locations – Court Information for San Diego.
DMV Deadline – Your attorney must contact California DMV within 10 calendar days of your arrest in order to avoid an otherwise automatic license suspension action.
Discovery – The State of California’s Evidence. It may include DUI report, test record, and a video if used. The People have the burden so they must first produce. Drivers scheduling DMV hearings sometimes fail to ask for “Discovery.”
Driving – Usually one’s ability to exert control over a vehicle. Officers do not necessarily need to observe a person driving to arrest them for California DUI or drunk driving. Circumstantial evidence of driving may be sufficient to prove driving. Volitional movement of a vehicle must first be established.
Drunk Driving – A popular term attributed to California criminal cases called DUI, Drunk Driving, or other acronyms, even DWI. Describes a driver legally under the influence or impaired by alcohol, drugs, or a combination of the two, suggesting the driver cannot drive safely.
DUI – Driving under the influence. Includes driving under the influence of alcohol, driving under the influence of drugs, or driving under the influence of a combination of liquor and drugs. Generally used acronym for drunk driving cases. The legal standard for what it means to be under the influence will vary from state to state. A California DUI Lawyer Specialist should be contacted immediately if facing a DUI.
DUID – Driving under the influence of Drugs. For purposes of DUID, the drugs may be legal or illegal, prescribed or otherwise.
Duress – DUI Defense attorneys may request, if prove: 1. A reasonable person would have feared an immediate threat to his own life, and 2. That California DUI defendant in fact had that fear.
DWI – Driving while intoxicated, or driving while impaired. Similar to DUI, DWI often refers to driving while intoxicated or impaired after drinking alcohol or taking drugs, or both. This is the second most widely used acronym for drunk driving after DUI. Similar to DUI, the question of how to define being intoxicated is at the heart of a drunk driving case in jurisdictions (other than California) that use DWI. It is critical to consult with an attorney who comprehends such sophisticated issues.
Enhancements – Factors which enhance penalties & increase punishment in a California driving under the influence (DUI) or drunk driving case. Such enhancements include driving above a certain speed while DUI, allowing minors in vehicle while DUI, having a BAC at or above .15% & .20%, refusing to take or complete a chemical test upon a DUI arrest, being involved in a collision while DUI, or having prior convictions for DUI, DWI, OWI, OUI or drunk driving. Criminal defense lawyers seek avoidance of enhancements.
Ethanol – The drug alcohol. A central nervous system depressant with a range of side effects. The amount and circumstances of consumption play a large part in determining the extent of intoxication. For example, consuming alcohol after a heavy meal causes alcohol to absorb more slowly.
Evaluation – If arrested in San Diego county, fill out this online consultation form asap to receive helpful emails & a proposal from DUI Lawyer Specialist Rick Mueller.
Excessive Speed – DUI Enhancement mandating 60 days custody for any person who drives a vehicle 30 or more miles per hour over the speed limit on a freeway, or 20 or more miles per hour over the speed limit on any other street or highway. [California Vehicle Code Section 23582]
Expungement – A DUI expungement is the legal petition regularly filed a lawyer in a California Court to review a DUI-related conviction to determine:
If probation was successfully completed & the probation term concluded;
All fines and any restitution ordered by the court have been paid and everything ordered by the court was timely done;
Petitioner is not currently on probation for any other offense;and
Petitioner has no new or pending cases.
Once favorably determined, the Court then may allow the petitioner to withdraw his or plea or finding of guilt or no contest, and thereafter order the DUI case dismissed.
Extrapolation – The way a BAC is computed at a certain time using physical characteristics of the drinker, the quantity of alcohol consumed, the period of time over which alcohol is consumed, and when the alcohol was last consumed.
Fatigue – Lack of enough rest or being tired as an alternative reason explaining why a person drove bad or drowsy, got in an accident, or performed imperfectly on FST’s.
Field Sobriety Test (FST) – Tests given (aka acrobatics or gymnastics) by police officers, generally on the roadside, to help to try to opine whether a driver is impaired, a basis for an opinion whether one was DUI. In theory, FST’s test one’s balance, coordination, ability to divide his or her attention between different tasks at the same time. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject’s impairment level. These subjective tests do not take a number of things into consideration including age, nutrition & fitness.
Felony drunk driving – Under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony, such as when drunk driving results in great bodily harm or death or where the accused has three or more prior DUI, DWI, OWI, OUI or Drunk Driving convictions. (Note that certain related charges, such as “wet reckless” driving may count as a prior DUI conviction for this purpose.)
Fifteen (15) Min. Continuous Observation – A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked. [California Code of Regulation, Title 17, Section 1219.3 Breath Collection]
Fixation – Ability of one’s eye to focus on one point.
Horizontal Gaze Nystagmus (HGN) – Gaze nystagmus that occurs when the eyes gaze or move to the side along a horizontal plane.
High BAC – Excessive BAC for which maximum penalties and fines may apply, even on a first offense. In California, DUI court may consider a BAC of .15% as a special factor in imposing enhanced sanctions and determining whether to allow probation. A high BAC is a factor in possibly ordering an ignition interlock device up to 3 years. DUI offenders convicted with high .20% BAC must participate in program for at least 9 months (vs. 3 months).
Ignition Interlock Device – Installed in vehicle, near the driver’s seat, an ignition interlock device is an alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a preset limit of .01% (i.e., 10 mg of alcohol per 100 ml of blood). The device is connected to the engine’s ignition system. Required for those convicted of a California DUI.
Interstate Compact – The multi-state agreement between participating states to share driver’s license information and reciprocate. It covers California driving privilege suspension actions and California DUI convictions.
Impairment or Intoxication – States which use terms like Driving While Intoxicated (DWI) or Driving While Impaired (DWI) often have definitions similar to being under the influence.
Implied Consent – The requirement of a driver to submit to a chemical test (usually blood or the big breath test machine) if suspected of a DUI. There is no right to speak to an attorney before deciding which test to take. When one drives on California roads, he or she gives his legal consent to a chemical test if arrested for drunk driving.
License Restriction – DMV license provisionally allowing someone to drive to and from work, during work and to or from program classes. Restrictions are only allowed in certain DUI situations and after certain conditions have been met including but not limited to proof of enrollment in a proper program, filing of SR-22 with DMV, remittance of reissue fees and/or installation of ignition interlock device.
License Revocation – A license revocation means your driving privileges have been canceled. Reapplication is needed after a specified period.
Military Consequences – NJP punishment including reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty; Court Martial; Immediate Suspension of all Favorable Personnel Actions (â€?Flaggedâ€?).
Miranda Rights Admonition – Voluntary in California DUI cases and therefore not usually given by police. Click here to see why.
Motions – Briefs by attorneys requesting a California Superior Court to do something at a hearing. DUI criminal defense lawyers can file motions with the court. Examples of DUI motions include discovery motions (compelling the prosecuting attorney to provide evidence) or motions to suppress evidence based on illegal cause to stop/detain or a warrantless arrest.
National Highway Traffic Safety Administration (NHTSA) – An agency part of the United States Department of Transportation which administers traffic safety programs. NHTSA’s duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery.
Natural Nystagmus – Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population.
Necessity – DUI lawyers can request, if it is proven: 1. The accused acted in an emergency to prevent a significant bodily harm or evil to himself or somebody else; 2. He had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under the circumstances; and 6. The defendant did not substantially contribute to the emergency.
Not Guilty – Winning verdict acquitting you in your California DUI case after your DUI criminal defense lawyer takes the case to jury trial.
Nystagmus – Involuntary bouncing or jerking of the eye caused by any number of vestibular, neurological or physiological disturbances.
Odor of Alcohol on Breath – Common “symptom” in an officer’s report upon arresting a California DUI for suspected DUI. As alcohol has no odor, the odor of the drink’s flavorings can be deceptive as to the strength or amount consumed.
One-Leg-Stand (OLS) Test – 1 of 3 tests comprising the Standardized Field Sobriety Test Battery. The OLS test requires a subject to stand on one leg, look at his or her foot and count out loud to thirty (or until told to stop). The subject is assessed on the ability to understand and follow instructions, and the ability to maintain balance for 30 seconds.
Penalties – California DUI & DMV consequences upon a suspension or conviction.
Preliminary Alcohol Screening (PAS) Test – Portable DUI breath test gadget hand-held by roadside police in California to assist in estimating one’s BAC. Blowing in it is voluntary unless driver is under 21 or on DUI probation. See here to view attorneys’ discussion of its numerous limitations and unreliability.
Passenger Under 14 Years – DUI Enhancement mandating additional San Diego jail time [California Vehicle Code Section 23572]
Per Se Laws – DUI laws declaring it illegal to drive a vehicle with a blood alcohol level content above a certain alcohol level, as measured by a blood or breath test. In most states, the per se limit is .08% or greater. Violating the per se law has nothing to do with one’s ability to drive a car safely; it is based solely on body chemistry. The only question is whether the driver was above the legal limit at the time of driving. NOTE: Since breath or blood testing always takes place after the time of driving, it does not directly answer the question of BAC at the time of driving. The alcohol level at the time of testing may be higher, lower, or the same, when compared to the time of driving.
Probation – Persons usually on probation for five years after having been convicted of California Vehicle Code Section 23152 may not drive with a measurable amount of alcohol (with a level of 0.01% or greater), without a valid license or without insurance, and must submit to a DUI chemical test upon request of a peace officer. One’s driving privilege will be suspended for one year if BAC is .01% or higher or refusal to take the preliminary alcohol screening (PAS) test.
Programs – Required alcohol school locations in San Diego County if convicted of DUI.
Public Defender – You can only apply for a “public defender” if you show you are unemployed & have no assets. If you do meet the financial eligibility criteria for a public defender for the Criminal Court side of your DUI case: (a) public defenders do not handle DMV license suspensions with action required within 10 days of DUI arrest; and (b) a court appointed attorney will not be available to discuss your DUI case with you until they have been officially appointed by the Judge no sooner than the date of your first court appearance, or arraignment.
Reasonable Doubt – The definition varies from state to state. Before someone may be found guilty of DUI or DWI, the jury (or judge in those states that do not allow a jury trial for drunk-driving cases) must be convinced in the defendant’s guilt beyond a reasonable doubt. It represents the highest legal standard in our country; it generally requires an abiding conviction (long-lasting belief) of the truth of each and every element of the charges.
Rebuttable Presumption of Reliability of the Test Results – DUI test results recorded on official forms were obtained by following the regulations and guidelines of CCR Title 17 and therefore are presumptively valid. Once a defense attorney shows official standards were in any respect not observed, the presumption is rebutted and the burden of proof shifts to DMV to establish the reliability of the test. If DMV does not then sufficiently meet the shifting of the burden, DMV is required to set aside the suspension action.
Refusal – Refusal to submit to testing, triggers consciousness of guilt jury instruction requested by DUI attorney prosecutor in trial. If convicted, mandatory or additional jail and/or 6-9 month alcohol program, as a DUI Enhancement and/or a 1 to 2 year license suspension by DMV. [California Vehicle Code Section 23612/23577]
Reckless Driving – Operating a motor vehicle in a dangerous manner, including but not limited to speeding, risky road manuevers, weaving in and out of traffic, and similarly hazardous driving. Reckless driving is one of several potential grounds for enhanced or increased DUI penalties.
Retrograde Extrapolation – This is a scientific DUI term for the ability to look at an individual’s alcohol level at the time of testing, and look backwards to determine what the alcohol level was at the time of the California driving.
Rising Alcohol Defense – This defense is based on the idea that alcohol levels change over time, as the body absorbs alcohol, reaches a peak level, and then eliminates alcohol. Breath or blood testing is done after driving (sometimes long after); these test results tell us what the alcohol level is at the time of testing, not at the time of driving. The rising alcohol defense is simply that at the time of driving (the critical time in a California DUI case), the alcohol level was below the legal limit, even if it continued to rise until the time of testing.
Standardized Field Sobriety Test (SFST) – A set of DUI tests selected as the best field sobriety tests to increase the claim of police officers to detect driver impairment. The tests include the horizontal gaze nystagmus, walk-and-turn and one leg stand tests. The results of this these FST’s, usually administered along the roadside, contribute to a cop’s DUI opinion and decision to arrest a person for DUI.
Suspension – The temporary withholding of driving privileges. A California DUI arrestee’s license is taken and then depending on the success of one’s attorney at the APS hearing, suspended or withheld for a given period of 4 months to 3 years. After that, the driving privileges are restored when and if specific conditions have been met including enrollment/completion of California licensed provider alcohol program, filing of SR-22 proof of insurance certificate,payment of DMV reissue fees and/or installation of ignition interlock device.
Symptoms – Signs including odor of alcohol, slurred speech and red/bloodshot/glassy eyes. California DUI lawyers fairly break down the subjectivity of purported signs which are often caused by non-alcohol sources or other factors.
Tolerance – A theory, as it pertains to DUI, of one’s ability to adapt and maintain their behavior to purportedly disguise the effects of alcohol consumption.
Underage DUI “Zero Tolerance Law” – Anyone under 21 years of age with a Blood Alcohol Content (BAC) of 0.01% or greater face a California Vehicle Code Section 23136 charge. Underage drivers with a BAC of 0.05% or greater face a California Vehicle Code Section 23140 charge. One’s driving privilege will be suspended for one year if (a) BAC is .01% or higher or (b) refusal to take the preliminary alcohol screening (PAS) test.
Under the Influence – A person is under the influence of intoxicating liquor when as a result of drinking such liquor his (or her) physical and mental abilities are impaired so that he (or she) no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. It is not necessary for someone to have an alcohol level that is above the legal limit to be under the influence. If a driver provides a reading at or above the legal limit at the time the test was taken, and if the test was given within 3 hours of the time of driving, then the trier of fact may presume or infer the driver is under the influence at time of driving, but such presumption or inference is rebuttable. [California Vehicle Code Sections 23152(b) and 23610(a)(3)] The manner in which the vehicle is driven is relevant, but not usually determinative in and of itself.
Vehicle – A motor vehicle, car, truck, motorcycle. A DUI or drunk driving conviction can result from driving an ATV, a golf cart, a tractor, a snowmobile or a motorized wheelchair, bike or scooter.
Vehicle Impound – If you are driving with a suspended or revoked driver’s license, the vehicle you are driving may be impounded for 30 days and possibly even forfeited.
Voir Dire – Jury selection when California attorneys and/or judge questions potential jurors about their background and qualifications to sit as jurors in the case. Both the prosecuting attorney and defense lawyer are entitled to fair and unbiased jurors. Voir dire is the process by which the parties learn about the potential jurors, and determine whether or not the DUI case is an appropriate one for the potential juror to participate in.
Walk-and-Turn (WAT) Test – One of the three tests that make up the standardized field sobriety battery. This test requires a person to take nine heel to toe steps down a straight line, turn and take nine heel-to-toe steps back up the line. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance during the instruction stage and walking stage.
Wet Reckless – Plea to a charge of reckless driving, “alcohol-related.” A wet reckless may result from an attorney’s pretrial negotiations and one’s plea bargain to reduce a charge of DUI. There may be a number of complicated reasons for such a reduction, including but not limited to a relatively low BAC, no accident, no prior record, etc. It usually comes with a lower fine, no jail time, no record of a DUI conviction and frequently other advantages. If the person gets a a subsequent DUI conviction within the statutory time (presently 10 years), the “wet reckless” will be considered a “prior” DUI or drunk driving conviction, meaning higher penalties and a sentence required for a second DUI conviction. A wet reckless is important to anyone seeking to have his or her California DMV record show only a reckless driving conviction.
Witness – A person who testifies on behalf of the prosecuting attorney or California DUI defense lawyer.