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AARON BORTEL ESQ.
Frequently Asked Questions
A DUI arrest in the Bay Area can be a confusing and frustrating time. Here, you will find a few of these common questions, and what you can do to get your case on the fast track to resolution. Being handcuffed, arrested, booked, and jailed have likely forced you to endure the worst hours of your life, so we are ready to be your voice in a complex and often unsympathetic legal system.
What does "driving under the influence" actually mean?
The term “driving under the influence” dates back to the California Vehicle Code Book of 1935 that states:
VC 23152: Alcohol and or Drugs: (a). It is unlawful for any person who is under the influence of an intoxicating beverage, or under the combined influence of an alcoholic beverage or drug to drive a vehicle.
The second part of this complicated law is laid out in:
VC 23152 (b): It is unlawful for any person who has a .08 percent or more by weight to drive a vehicle.
“Under the influence” is a rather unclear definition. Lawmakers attempted to clarify the definition in 1970 (CALJIC 16.831) as:
(A) person is under the influence of intoxicating liquor when as a result of drinking such liquor his physical and mental abilities are impaired so that he 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.
Even today there remains serious confusion about the actual wording of the law and how it can apply to your situation.
What happens if I take a test at the police station and my BAC is under .08? Can I still face a drunk driving charge?Yes. You can and will be charged with DUI and possibly with being at or over .08. Many counties and municipalities will still attempt to prosecute under the “retrograde extrapolation” theory. The theory behind retrograde extrapolation is that the person could have metabolized the alcohol in their system before authorities could measure it, and that the value measured once the paperwork and booking was complete was lower than the legal limit, and lower than what would have been measured at the time of driving. Using retrograde extrapolation, the prosecution attempts to guess what a person’s breath value would have been earlier based on the findings of later tests. This extraordinarily flawed method of testing is based on a number of subjective criteria such as:
- The time the subject began drinking
- The amount, type, and rate of alcohol consumed
- The amount, type, and rate of any food eaten
- The time the subject stopped drinking
- The weight and gender of the subject
- An indication of the tolerance and drinking experience of the subject
- Physical observation of the subject at the time
- The state of the subjects physical and emotional condition at the time
This is one reason why you should never submit to any roadside sobriety tests. The information the police gather on the roadside can be used to show you were “under the influence”.
What should I do if I get arrested for a DUI in the Bay Area?
The first thing you should do is not panic. Panic can cloud your judgment that can lead you into making poorly informed decisions. You’ve just experienced the worst time of your life being arrested, handcuffed, booked, and locked up. We understand that you are most likely confused and terrified about what you can do to help yourself, so we are ready to be your voice in a complex legal system. Attempting to handle the enormity of the court experience on your own often causes individuals with no legal background to actually damage their case and legal standing.
What is the "10 Day Rule" for a California DUI?
People that have been arrested for DUI in California have 10 days after their drunk driving arrest to contact the DMV to request an administrative per se (APS) hearing. This administrative hearing is a DUI attorney's chance to keep your driving privileges from being suspended. It is critical to remember to request a hearing within 10 days of your arrest, otherwise your license will be automatically suspended once your temporary license (the pink slip the arresting officer gave you) expires after 30 days. Although there is no direct legal connection between a DMV suspension and your criminal case, saving your license at the DMV hearing is an important first step to keeping you on the road pending the outcome of your court case. If you hire Aaron Bortel within 10 days of your arrest he will contact DMV for you to set up the hearing.
What happens with my license?
When you are arrested the officer will take possession of your license, unless you have an out of state license, and give you a pink receipt that acts as a temporary license. You will only regain your original license again if we win your case, or when your suspension or revocation period is over. Getting your license back requires a number of steps. If we do not win your case we will advise you on all the steps need to get your license back as quick as possible.
What is the court experience like?
On your own, the court experience for a Bay Area drunk driving arrest can be an intimidating and frightening experience. Depending on your county of residence, Aaron Bortel can often spare you this nightmare and defend ypu without your physical presence in court. This allows a client to continue with their day to day life avoiding constant interruptions of court appearances and hearings. When you hire Bay Area drunk driving attorney Aaron Bortel, he sets the wheels in motion to get the best results possible in your case and protect your driving privilege by:
- Entering your not guilty plea to begin your legal fight
- Setting a new court date for motions and conferences
- Requesting discovery on machines, witnesses, and investigate the case
- Contacting expert witnesses and interviewing witnesses
- Requesting blood retests
We pursue every option possible to reduce the amount of time you have to spend in the courtroom. You can get on with your life, and leave the fight to us.
How long can I lose my license if I am convicted of a Bay Area DUI?
There are many factors involved with the length of time associated with the loss of a drivers license during a Bay Area drunk driving case. We would be more than happy to explain each of these variables when you contact us for a free consultation.
What is a "wet reckless"?
A wet reckless is a term used to describe a form of plea bargain enacted in 1982 that allows defendants in DUI cases to plead guilty to a lesser crime if there was no injury involved in their case. For all intents and purposes, the wet reckless counts as a DUI in terms of criminal record, except that it does not usually entail a suspended license, jail, work programs, the fine is less expensive and in some counties there is a shorter period of probation. However like a DUI it remains priorable for the next 10 years. Insurance still usually goes up, and the DMV still assigns two points to your driving record. Your license will be suspended if you do not win the DMV APS hearing, even if you end up with a wet reckless in court. If you win DMV and get a wet reckless in court, you will not need to get an SR-22 (additional high risk insurance) and your license should not get suspended.
What are common chemical tests for drunk driving in the Bay Area?
Chemical tests in the Bay Area frequently include:
Breathalyzer: This test involves blowing into a machine in order to determine one's blood alcohol content. A breath machine is supposed to measure air from deep in your lungs. Breathalyzers are notoriously inaccurate, and have been known to pick up alcohol on a person's breath (such as from mouthwash or alcohol False readings can result from burping or gastroesphogeal reflux disease [GERD]) even though one is less than .08%. Even though the legal limit in California is .08%, many district attorneys now prosecute less than .08%
Blood alcohol tests: Blood is drawn in order to determine what percentage of it is alcohol. These tests attempt to directly measure the blood alcohol content (BAC) of a person suspected of driving drunk in the Bay Area. The blood drawn goes into a vial containing a preservative. Blood can be retested, breath cannot.
Urine tests: As of January, 1999, urine tests are not given unless:
- The officer believes the driver is driving under the influence of drugs or drugs and alcohol, or
- Blood and breath tests are unavailable, or
- History of hemophilia, or
- Taking anticoagulant drugs in conjunction with a heart condition
A dry reckless is a charge of reckless driving without the driving under the influence language. It does not count as a prior DUI offense, nor does it carry the same penalties as a wet reckless.
What if I have a commercial license?
If you have a commercial license and you are convicted of a DUI your license is "disqualified"which means you are prohibited from operating a commercial vehicle. A first DUI results in loss of commercial license for one year. A second DUI results in lifetime loss of the commercial license.
How much can a Bay Area DUI case cost?
There are a number of different financial considerations associated with a DUI case in the Bay Area, not the least of which are the substantial fines and penalties associated with a conviction. Other costs can include:
- Car insurance rates
- Court costs
- DUI school
- Attorney costs
- Fines
- Expert witnesses such as toxicologists, doctors, etc.
- Medical examinations and testing for conditions such as Gastroesophageal Reflux Disease (GERD) etc.
- Investigation
- Accident reconstruction
- Blood retesting
The severity of your case can affect the costs you must pay. Repeat offenses, property damage, and injuries can add up to many thousands of dollars in additional costs.
Does having a lawyer make a difference in a Bay Area California DUI case?
Absolutely. An arrest for a Bay Area DUI charge does not mean you are convicted of the crime. Aaron Bortel dedicates his entire legal practice to helping people facing DUI charges in the Bay Area, and his 15 years of experience have made him one of the most respected and frequently sought DUI lawyers throughout Northern California.
-S.M. of San Francisco
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