What Determines if You Get Jail Time on a DUI in Los Angeles?

This is a huge question on a lot of people’s mind.  Once you get arrested, they take you into the local jail where your case occurred and they hold you there for a period of time.

One of the biggest things that my clients tell me when they come in to meet with me about their DUI matter is, I never want to go back to jail again.  And you don’t blame them.  Who wants to go?  What are the penalties? Your freedom is taken away.  There’s some bad people in there sometimes.

First-Time DUI

So, one of the biggest things I try to do is keep you out of jail and I figure out ways to do that and there’s a lot of different angles to do it.  First and foremost, one of the most important things to know is that if it’s a first-time DUI and nobody was injured then that puts you in a real good position right from the beginning to avoid any jail time.

There are some counties like Santa Barbara and Ventura and even Orange county that try to put people in jail even on first offenses.

Level of Danger on the Road

But in Los Angeles county they’re pretty reasonable about that and they will give you the benefit of the doubt as long as you didn’t hurt anybody.  But when they’re really deciding when to put somebody in jail, the prosecutors are looking at how dangerous that particular person was out on the road.

In other words, what were they doing?  How fast were they going?  Did they hurt somebody?  Were they out of control?  How high was their blood alcohol level?

These are all big factors in determining whether you go to jail because the prosecutors and judges know that the ultimate punishment that they always have in a DUI case is jail or prison time.  So, they’re going to say that for the people that they think need the deterrent, that need to go to jail for a period of time.

Multiple DUI’s

Sometimes people are alcoholics and they won’t stop drinking and driving and they get multiple DUI’s and the prosecutors and judges basically just say, those are the people that we’re going to give jail time to .

Those are the people that we’re going to send to prison because those people don’t learn.  The most effective tool we have to stop them is to throw them in custody because number one, it takes them off the street, dries them out and number two, it shows them what could happen to them if they continue to drink and drive.

They don’t care about your job.  They don’t care about your family.  They don’t care about your responsibilities.

They do care about the fact that it scares the heck out of you to go to jail.  That’s why they do it.  That’s why they use jail as a deterrent in a DUI case.  So, if you’re scared that you might go to jail whether it’s a first, second, third or fourth time DUI whether you were involved in an accident, whether somebody was hurt, you’re going to need a DUI defense attorney like me who is local to these LA courts.

When I say local, I mean practice there.  Knows the judges, knows the prosecutors, knows the procedures, knows how the court system works, knows what it takes to get you the result you must have.

Developing a DUI Defense Strategy

I have you come in and we go over everything.  I ask you to be honest and straightforward and give me all the information and then I will tell you what exactly you can do to help yourself, what you can do to help me help you and what I’m going to do moving forward to put you in the best possible position to either get the not guilty verdict that you need, get the case wiped out by way of a motion or if those two things are not reasonably possible, I’m going to be honest with you and tell you that and we’re going to take another route.

We’re going to take a route of trying to negotiate this case for you and get you the result that way.

So, pick up the phone now.  Let my twenty-five years of experience work for you.  Don’t let these people trick you on the internet to have money to advertise but don’t have the experience, the knowledge, the know-how, the local connections to get you the result you must have.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

When Can a DUI Case be Elevated To a Second Degree Murder Charge?

This is something that happens a lot in Los Angeles county and throughout the country quite frankly.  A lot of prosecutors are filing DUI cases where deaths result as murder cases.

In fact, every single DUI person that goes through LA county that has to plead guilty to a DUI and fill out the waiver form and talk to the judge about it, are going to be told on the waiver form and specifically told on the record by the judge, that drinking and driving is very dangerous to human life and if you drink and drive and get caught for a DUI and somebody dies, you could be charged with murder by the prosecutors.  See related: People v. Watson.

Warned of Danger of Drunk Driving

That’s one of the first ways they can get you for a murder charge as it relates to a DUI — is if you have knowledge of it.

In other words, if you have notice that drinking and driving can kill somebody and you go out and decide to do it anyways, then that’s where you put yourself in a position to potentially be charged with murder.

That’s one thing that people don’t really get.  Because a lot of times people are getting so drunk they don’t even know what they’re doing, so they didn’t intentionally kill anybody, so they can’t figure out how they could possibly be charged with murder when they weren’t even cognizant of what was going on.

That’s where the problem comes in, because they’re not going to look at how your mind was operating at the time that you killed somebody in the car when you were drunk.

They’re going to look at what you knew beforehand.  In other words, they’re going to hold you responsible.  They’re going to say, if you knew you were going out drinking and you knew it was dangerous to drink and drive and you did it anyways and you killed somebody, we’re going to hold you accountable for it.

Prior DUI Convictions

You can’t just say, I was too drunk, I don’t’ remember, so I shouldn’t be responsible for it.  As liberal as California is, it certainly is not liberal when it comes to DUI’s.  It’s very conservative and very, very harsh.  In fact, I think one of the harshest states in the nation.  It used to be that you actually had to be told specifically, if you drink and drive and kill somebody, we’re going to charge you with murder.

So, they were getting people for murder cases related to DUI’s in LA county when they had prior DUI’s because they were told on the record.  They were told in DUI classes.  You can’t drink and drive.  You’re going to kill somebody.  So, then they would use that to get that knowledge factor that I’m talking about.

DUI Murder Charges

But now, things have changed.  They don’t care about that anymore.  They’ll certain use it if they have the information to try and convict you for the DUI murder, but even if they don’t that, even you have a completely clean record and you end up getting a DUI and you kill somebody, you know what the prosecutor is going to argue?

Everybody knows that it’s dangerous to drink and drive.  Everybody knows that you could kill somebody if you drink and drive.  So, they don’t care whether you have a prior record.  They don’t care that you were warned before.

The first thing they do now in this cases where they can prove that someone’s blood alcohol level was a .08 or greater, they drove a car and they killed somebody and the accident was their fault, the first thing they do now is they charge you with second degree murder.  Your bail is usually very high — a half a million to a million dollars.

You’re usually looking at fifteen to life in prison, and then they negotiate from there.  Sometimes they’re willing to give you something less than that second degree murder charge and sometimes they’re not.  And that’s the position of strength that the LA county prosecutor’s office has decided to come from when it comes to these DUI’s where people are getting killed.

You Need An Experienced DUI Lawyer

I’ve handled a lot of these cases.  I’ve been doing these cases for over twenty-five years now in LA county.  I’ve handled them in every court in the county, so I know how to deal with them.

I know what it takes to get the not guilty verdict if the evidence is there to try to get that.  I know what it takes to show that you were not the cause of the death and I know what it takes to mitigates these murder charges down to DUI charges so you’re in a better position to avoid that very harsh fifteen to life sentence that comes along with a DUI where somebody died and the prosecutors decide to charge you with second degree murder.

So, pick up the phone now.  Make the call.  We’ll sit down and we’ll start to get the plan together to get you or your loved one out of his nightmare situation.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

Key Factors Between a Filing a Misdemeanor or Felony DUI Case in Los Angeles County

This is a big question because obviously, nobody wants to be charged with a felony DUI.  You lose a lot of rights, you’re looking at jail or prison time.  So, a lot of people are asking me when they’re arrested for a DUI whether they’re going to be charged as a felony or a misdemeanor.  There’s a number of different ways that give justification to the prosecutors in Los Angeles County to file a case as a felony.

DUI With Great Bodily Injury

One is if you seriously hurt somebody or if you cause great bodily injury to the DUI, you can bet your bottom dollar they’re going to file that case as a felony in LA County.

You’re going to be looking at custody time and a whole host of other issues related to your driver’s license, your criminal record, and your whole life will be on the line if you’re charged with a felony DUI because you seriously hurt another individual.

Fourth Arrest for DUI

Another way they can justify filing a case as a felony when it relates to a DUI is if it’s your fourth-time DUI.  That automatically gives the prosecutors the right to file a case as a felony DUI and again, you will be subject to prison time.  Most felony DUI’s that I see getting filed that are fourth-time DUI’s are typically looking at a minimum of 16 months in prison.

They could even get more time depending on what the injuries were to the other party.  There’s a three-year enhancement if you cause great bodily injury.  That makes the case a strike.

You won’t be able to vote.  You won’t be able to own, use or possess a gun or bullets, and again, you’d be looking at a significant amount of time in custody and loss of your driver’s license.

Prior Felony DUI Conviction

The other way I’ve seen them file a case as a felony is if you have a prior conviction for a felony DUI and you pick up any new DUI, even if it might have normally been a misdemeanor circumstance, they can file that case as a felony as well because you have that prior felony conviction in Los Angeles County or elsewhere related to a DUI matter.

So, that’s one of the biggest factors though, is injury.  If there’s a bad injury, you can bet your bottom dollar the prosecutors are going to be looking to file the case as a felony in Los Angeles county.

As far as the injury goes, this is not an entirely crystal clear area of the law.  In other words, sometimes people are claiming they have a soft tissue issue when the reality is, they don’t really have that bad of an injury and in that circumstance, a lot of times we can get the case filed as a misdemeanor.

Misdemeanor vs. Felony DUI

It’s a huge difference when a case if filed as a misdemeanor versus a felony.  You’re not looking at as much time in jail or prison.  You’re not looking at a lot of ramifications that come along with the felony conviction.

Nobody wants a felony conviction.  It will affect your rights.  It will affect your freedom.  It will affect your job.  It will affect your future and a whole host of other things.

So, these are one of the biggest things that I battle in these DUI cases is trying to get it down to a misdemeanor, if my client is good for a DUI but really shouldn’t be charged with a felony, and all of these cases, whether you’re deciding whether a case is a felony or misdemeanor, kind of center around a number of different factors and they’re all going to center around the facts and circumstances of your particular case.

Experienced DUI Defense Lawyer

That’s why it’s so crucial to hire someone like me who has been doing this for 25 years, knows how to deal with these DUI cases, knows what factors will influence a judge and prosecutor, knows what type of mitigating circumstances we can bring up to try and avoid that felony conviction for  DUI or at least set things up so you can later get the case reduced down to a misdemeanor, so you don’t have this felony haunting you for the rest of your life.

So, if you’re charged or booked for a felony DUI or even a misdemeanor DUI and you’re concerned when you get to court, they’re going to file it as a felony, pick up the phone, call me now.  We will start the process of dealing with your DUI matter in the quickest, easiest way possible and getting you the best possible result.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

Related Resources:
California DUI: What are the Penalties?
First-Offense DUI in California

Can Police Force a Blood Draw in a Los Angeles DUI Case?

Believe it or not, under the right circumstances, the police are permitted to do a forced blood draw when it comes to a DUI case.  Usually where I see them being permitted to do it is when you’ve been involved in some sort of an accident.  Somehow, that greenlights them to be able to force blood.  Then the next question becomes, if they force my blood and they have the blood result, can they get me for a refusal because they have the blood result?

Refusing DUI Blood or Breath Tests

The reality is, if the police ask you to take your blood or breath related to a DUI investigation you have to cooperate with them.  If you don’t cooperate with them and you say no, and then they’re forced to take your blood, technically that’s a refusal and that’s bad, because you then get a refusal on your record, you lose your license for a year with no restriction.  Interestingly enough, I’ve seen these forced blood draw cases somehow insure to the benefit of a defendant in a DUI case in Los Angele because a lot of times the prosecutors do not file it as a refusal, and you can try to argue with the DMV as well that it’s not a refusal because they actually have the result.

Sometimes they’re claiming the person refused and the person really didn’t refuse.  That’s another issue that has to be dealt with.  But the answer to the lead tag question here as to whether they can force your blood in a DUI case is, absolutely yes.  I just don’t see them doing it and I don’t think they have justification to do it in every single DUI case.  See Related: What Happens If You Refuse To Take A Drug Test?

I think it’s typically going to be one where there’s an accident, maybe people were hurt — and then the police, by law, are justified in forcing your blood.

Providing a Breath Sample

But they can typically only do that if you don’t cooperate with them.  In other words, if you cooperate with them and are willing to give a breath sample, that’s just as good as a blood sample.  That would satisfy the law.  That would satisfy your requirements to cooperate with the police related to your DUI, so I think it would be impermissible in that circumstance to force your blood when you’re willing to give them a breath test.

All of these circumstances spin on the facts of your case.  What I have you do is come in the office.  We go over everything under the cloak of the attorney/client privilege and then we’ll start talking about the plan moving forward.

Reviewing Your DUI Case

What are we going to do on this forced blood draw case?  Do we have a defense?  Was the blood tainted in any way?  Can we hire an expert that might be able to help us in the case or is this one we’re going to have to negotiate and resolve for the best possible resolution?  These are all things we talk about.

Obviously, I’m going to put my twenty-five years of experience to work for you so you make the best decision if the police have forced your blood.

Obviously, the next issue we’re looking at is, if they forced your blood, is your blood alcohol level a .08 or greater, because if it’s not and it’s lower, then you’ve got a good argument that you shouldn’t be a DUI case.

So, this 23152(b) Vehicle Code Section really has to do if they force your blood and you’re over a .08 or greater, then they can charge you with a DUI because it’s presumed that you can’t safely operate a motor vehicle.

If, on the other hand in LA, they force your blood and get a result, and it’s under a .08, then the only Section they’re really going to be able to go under is 23152(a) which says you’re driving a motor vehicle and you have alcohol in your system and you can’t safely operate that motor vehicle, and that’s when they’re going to start looking at other factors besides what your blood alcohol level was — how you were driving, whether you got into an accident, how you performed on the subjective field sobriety tests and a whole host of other factors like your breath, your eyes — all sorts of things they can look at when they’re trying to determine whether you’re a DUI related to a forced blood draw in Los Angeles County.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

Driving While On DUI Probation – California Vehicle Code Section 23154

This Vehicle Code Section has to do with people who are on DUI probation in Los Angeles County who get pulled over by the police and part of the terms and conditions of their probation is they cannot have any measurable amount of alcohol in their system.

A lot of times the police can look in their computer in their vehicle and see that someone is on probation for a DUI, they pull them over and have them blow into a preliminary alcohol screen device, and if they blow a .01 or greater — meaning they have some alcohol in their system, they can then write them a ticket for this Vehicle Code Section 23154, which basically says that a person may be found in violation of this Section if the time of their driving while their on probation for a violation of Vehicle Code Section 23152 or 23153, which is the felony DUI, and the trier of fact is able to determine that they consumed an alcoholic beverage and were driving a vehicle with a blood alcohol level of .01% or greater as measured by the preliminary alcohol screening device.

Terms of DUI Probation

Part of the terms of this are that the testing shall be instant to a lawful detention and administered at the direction of a police officer having reasonable cause to believe the person is driving a motor vehicle in violation of subdivision (a).

So, basically what that’s saying is, people can’t just pull people over for any reason, just because they want to see if they have any alcohol in their system.

They have to have a lawful reason for pulling them over — some sort of a traffic offense — tinting windows, illegal turn, speeding — and then if they smell alcohol on them and it looks like the person has been drinking, and then they’re able to determine that they’re on probation for a DUI, then the police officer can have them blow into a preliminary alcohol screening device which most of the officers carry in their car, and if it registers anything a .01 or greater, then the person is going to be cited for this Vehicle Code Section 23154.

Driver’s License Suspension

They’ll probably be cited in with a ticket to the local court in that jurisdiction.  The worse thing is, their license will probably be snatched away from them and sent to the DMV and the DMV is going to be notified and they have a chance they’ll lose their driver’s license.

The next element in order to prove this Vehicle Section, the person shall be told that his or her failure to submit to or failure to complete a preliminary alcohol screening test or other chemical test as requested, will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one to three years as provided for in California Vehicle Code Section 133353.1.

So, what this is indicating is, if you fail or refuse to take the preliminary alcohol screening test, they can suspend your license for a minimum of a year, and the police officer has to tell you that.

Failing to Take DUI Breath Test

When they say failed to take the test, a lot of people will try to blow in the PBT and they won’t blow hard enough and intentionally try to beat the test by not blowing hard enough into the machine.

This, if it is determined is happening, can put them in a position where they end up with the violation, losing their license for a year or more, and a lot of times the officers will then take them to the hospital or police station where they can draw their blood in order to prove that their either a DUI or they have violated this Vehicle Code Section 23154.

Consult with Experienced DUI lawyer for Help

As you can see from this Code Section, they take DUI’s in Los Angles County very seriously and if a person gets charged with this Code Section, they definitely want to get an attorney who is seasoned, local, knows how to deal with these DUI’s, knows how to deal with the DMV and knows what it takes to get you the best possible result if you’re facing a DUI case or if you’re facing a violation of Vehicle Code Section 23154 which basically is offenses involving alcohol and drugs when you’re on probation for a DUI.

Hedding Law Firm
633 West Fifth Street
Los Angeles, CA 90071