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Survive A DUI

How to get through getting a DUI - both mentally, and legally.

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enhanced penalties

New Year, New Laws - 2021

(Hey there, everyone - I first sent this post out via my newsletter - feel free to sign up for more updates like this. - Tom)

Hello, Happy New Year! Hope this one is treating you well.

2020 was a rough one for sure. What's nice about it is, when things hit the bottom, the only place they can go is up. That was my experience getting a DUI, and that's the attitude I'm taking with me into 2021. We'll see how long it lasts.

Changing Laws

The first day of January usually involves a lot of changing laws, more often than not bringing the hammer down on DUI offenders harder, but that wasn't the case this year. As legislatures were unable to meet or otherwise occupied by the pandemic, DUI offenders weren't in the crosshairs for once. A nice feeling.

Instead the theme of this year's new laws: Justice Reform.

After the George Floyd incident and protests the tide shifted in this country, whether you agree with those sentiments towards police or not, and legislators acted in response (it was an election year, after all).

(Again standard legal disclaimer here: I'm not a lawyer, and I'm definitely not your lawyer, any analysis of this is me just trying to piece things together from the news/bills and I don't know the full ins-and-outs of how all this goes down. I'm giving you my best idea, however)

Arizona

Legalized recreational marijuana - can still get a DUI-Drugs.

California

AB 3234 - Allows misdemeanor DUIs to become eligible for diversion. Once diversion is completed, the crime doesn't stick to your record.

I haven't gotten into the nuts-and-bolts of this one (these types of programs aren't laid out beforehand), but I'm guessing it's a lot like other programs - fines, probation, meetings - a lot of what you already do when convicted - and they seal your record automatically once it's done. No longer does a non-expunged DUI hang over your head for ten years. I'm guessing it'll still be prior-able since they love to be able to still stick it to you when they have a chance, and it'll stay on your DMV record so you're not getting a break on insurance.

That said - it's a great step forward. A DUI doesn't need to ruin somebody's life, it needs to teach them a lesson. Most of us have learned ours from the feeling of seeing police lights in the rearview.

The big caveat of this: It won't apply to a DUI you already have. If you've been convicted you'll still have to apply for an expungement the old fashioned way.

AB 1076 - Under this law, the state will automatically clear records for arrests that did not result in conviction after the statute of limitations has passed, and those around probation and jail once the sentence is completed.

This goes hand-in-hand nicely with the other law - if you don't receive diversion (it's up to the judge) and get convicted as you would have prior, your records will be sealed as if you got an expungement. This saves you the time and money of the process (which was difficult for me, and I plan to write about soon).

It's also nice to see a clearing of the arrest that doesn't lead to convictions - a lot of people think that if they get off then everything is fine, but an arrest still shows up on your record. That will no longer be the case.

However, like before, this only applies to arrests/and convictions after Jan 1, 2021.

Prop 17 - If your previous DUI was a felony, you may be eligible to regain your right to vote (it's insane that we take away voting rights like this in the first place).

Montana

Legalized recreational marijuana - can still get a DUI-Drugs.

New Hampshire

Commercial truck drivers - or anyone driving a vehicle weighting 10,001 lbs or more, will automatically have their DWI upgraded to an Aggravated DWI, which carries a larger fine (up to $750 from $500, but don't think that's what you'll be paying) and a mandatory minimum of 17 days in jail (12 days will be suspended if the driver submits to a substance use disorder evaluation). Additionally, those commercial drivers who refuse to submit to a breathalyzer will have their commercial license suspended immediately instead of having that little bit of wiggle time before it was suspended.

Harsh. Commercial drivers used to be subject to the same laws as ordinary drivers, but no longer.

New Jersey

Legalized recreational marijuana - can still get a DUI-Drugs.

Pennsylvania

A "Move Over" law was enacted - if an emergency vehicle is at the side of the road, you need to move over a lane away from them or slow down to 20 MPH under the speed limit. Give them some space or police will have a reasonable cause to pull you over.

South Dakota

Legalized recreational marijuana - can still get a DUI-Drugs.

Virginia

As of 1/1/21 - You can't drive while holding a cell phone. Only related to DUIs because it gives a reasonable cause to pull somebody over.

Traveling

Tangentially related to DUI issues is the Real ID card - it was supposed to be required to fly this previous years, but in interest of keeping DMVs less crowded and/or closed, they delayed it until October. You'll need a Real ID compliant license to step on an airplane. So, if your license was suspended you'll either need to use a Passport, or get a Real ID state ID card to get on board. If you are getting a new license after suspension, be sure to get a Real ID compliant license. If you've just gotten one, then you either need a passport or have to go through the renewal process/fee again.


These are all the ones related/semi-related to drinking and driving that I could find. Has your state issued one I missed? Let me know!

Tom.

On Probation

On Probation

Hi everyone. Been a while, I know. Truth of the matter is that once you’re sentenced, you’ve done your classes, gotten rid of your interlock, got your license back, life continues where you left off. Sure, your insurance is still high, but there’s an end in sight.

You might not believe this, but there comes a time when you hardly even think about your DUI.

It’s a good feeling. It’s a weird feeling.

Probation in CA lasts for three years. Throughout my journey with the DUI I kept getting different answers as to when it started. In my final assessment, my DUI class instructor told me that it started from the date of arrest. That made me feel better. It did not turn out to be the case. You’re on probation as soon as you get arrested, but it doesn’t count towards your probation. Would’ve been nice if it did, but, alas, it’s just how things go.

My lawyer told me it would start from the day I was sentenced. This seemed to make sense, but this, too, wasn’t quite the case. One day a few weeks ago, I decided to call up the DMV and double check (always a good idea) to make sure that my probation had passed like it should have. It did. Just my last day of probation was a month and a half later than I had calculated.

No idea why, and there’s really nothing I could’ve done about it. Can you imagine calling the DMV, “Hi, while I didn’t violate my probation, can you retroactively make my probation have ended earlier?”

If I had to do it again, which I’m trying my damnedest not to, I would’ve gotten my lawyer or called myself to find a definitive date that my probation was over. Would’ve had a small little celebration to myself when midnight ticked over on the clock when it happened (not drinking and driving, of course).

The probation you go on for your first DUI (and possibly others) is called “Summary Probation”, which basically means “don’t fuck up or we’ll throw the book at you”. There’s no expensive probation officer, which is probably the first time they let you not have another fee they could charge you. No PO, no checking in, nothing like that. Just don’t mess up.

Additionally you can't refuse a field sobriety test, and your odds of getting picked at a DUI checkpoint raise if they're checking plates (although I cruised through two, sober, without being tested).

So what is messing up?

Some people believe it’s committing any crime, but that’s not quite it. My lawyer told me that he had somebody arrested for shoplifting while on DUI probation and the court didn’t care, didn’t consider it a violation. (Update: I have been told in other states that this will trigger a violation, so best to keep clean as a whistle) While this blog does not condone shoplifting or any other crimes in any way whatsoever, you should know what scrutiny you’re under.

This probation deals with alcohol and driving - basically you can’t get caught with even a drop of alcohol in your blood when you’re driving or else you’ll face some consequences (and remember, you can't refuse a test). The common thing to say is that it’s another DUI even if you’re at .0001, but that’s not true either. They can only give you a DUI if you’re over .08 (.05 now in some places), otherwise it’s “just” a probation violation, which means more school, more money paid, more probation. If you’re above .08 you get a DUI on top of that. Not good.

Other traffic infractions are fine. This I can verify personally - I did receive a parking ticket, and an out-of-state speeding ticket (14 over on the highway, bullshit speed trap), and neither affected my probation or caused any additional consequences (and yes, I was sweating bullets when pulled over on that highway and very worried about if this counts as a violation. Next rest stop I did a lot of googling until I calmed down enough to continue on my trip.)

Any sort of aggravated driving, road rage, that sort of thing takes you into the “maybe” territory. It’s all up to a judge and the system, and by this point you know how it goes. If they can, they usually will. You might catch a break, probably not, depends on a lot of things out of your control, and how you handle yourself around them. Bottom line: I wouldn’t depend on anything.

Your Summary Probation basically comes down to two tenets:
  1. Don’t drink and drive
  2. Don’t be an asshole.

Seems easy enough. But three years is a long, long time. It gets harder and harder the longer you are from your DUI. Drinks after work, wine with a meal, beer at a ballgame. The temptations are everywhere. And if you’re like me, and haven’t quit drinking, you’ll eventually indulge yourself.

“A beer or two won’t hurt, not like I’m getting drunk, not like that night”

And then you wait a little bit, don’t get ‘one more for the road’, call it early.

And then you get in your car, and you head home. With just a little bit in your system. Nothing too bad, just a little bit.

And then a cop gets behind you.

And then you start sweating, worrying. Praying that your tail light is working, making sure your seat belt is fastened tight.

And the cop keeps following you, and you start worrying if he is playing games with you, you’re worrying that he somehow knows that you’re in violation.

You turn off the radio, you pay the best attention you can, and then eventually the cop turns down another road, and you let out a big sigh of relief.

Then two weeks later your friend asks you to happy hour.

And you start to sweat again, and think about what could happen.

This is what it’s like. It’s easy in that you don’t really have to do anything except not mess up. It’s hard in that our society practically pushes people to drink and drive. Odds are you’re reading this because you went to a social function, or did something that we’re told is how you relax. You felt fine because we don’t teach people how alcohol affects the body and it’s impossible to “feel” what your BAC level is. We make fun of people who use breathalyzers, and everyone condemns drinking and driving but nearly everyone does it.

You’re going to find yourself in a lot of situations where you will be tempted to violate your probation. I suggest knowing your BAC by using a portable breathalyzer, or taking an Uber or Lyft.

Looking over your shoulder for cops all the time sucks.

Some lawyers will offer you a service to where they can reduce your probation, usually take off the third year. I didn’t go for this, they wanted a thousand dollars for it, and I’d spent enough. Instead, I went through the whole thing. The theory is they cite your fulfilling all your commitments and use your two years (one and a half in some cases) of not violating probation as evidence that you won’t violate it for the next. Works some times, doesn’t work others. I decided to stick it out, a thousand dollars buys a lot of Lyfts, and I can refuse one last round and wait it out.

And so I did.

And now I’m free.

Reader, I can’t tell you how good it feels to be free of the system to come this far. Now I just have to get past the 3-year anniversary of finalizing my suspension to get my insurance rates to fall to normal and then… it’s all behind me.

The journey is long, and it’s hard, but just take it one step at a time, and you can get through it. It costs a lot, and it takes up a lot of time, but you can get through it.

You can Survive a DUI.

The Various Outcomes of a DUI Arrest

Like the rest of the process - what can happen to you after your arrest isn’t the clearest. It depends on a lot of things, your BAC, if there was an accident, prior DUI arrests, etc. I’ll try to outline as many as I can, but there’s always something more that can happen… obviously if the cop finds drugs, illegal weapons, or an outstanding warrant, your case will be much more complicated.

Felony DUI
Most likely you’re not in this territory. The vast majority of DUI cases are misdemeanors, but still felony DUIs do happen. A DUI becomes a felony when you commit a traffic violation (wrong way down a one way road, run a stop light, etc.) and injure somebody because of this violation. You’ll know pretty quickly if the state is pursuing a felony charge against you - most likely you’ll have to bond yourself out of jail, and will already be dealing with the guilt of injuring somebody else. A Felony DUI usually requires 180 days in jail, a $3,000-$5,000 fine, a 4-10 year suspension of your license, a possible strike against the three-strikes law, and attendance in an 18-month, or 30-month DUI program. Yikes. It’s just not worth it. On top of that, you will will have to pay restitution to the injured parties, which will not be cheap.

Enhanced Penalty DUI/Aggravated DUI
This is for when you are arrested for DUI and are in an accident, under 21, speeding 20 miles over, or are especially intoxicated. The threshold for “especially intoxicated” is .15, but there’s a lot of judgement involved. I was at a .15, barely, and for whatever reason they did not pursue these charges against me. A .20 BAC is where they must throw these penalties at you, anything in between .15-.20 is up to the whims of those against you. Even if you were at a .20 it’s not the end of the world. It’s still a misdemeanor. Occasionally you can get rid of the additional penalties if you plead out, depending on how close to the line you were. The additional charges against you will depend on how it was aggravated - but most likely, you’re looking at having to attend a 9-month DUI program instead of the 3-month, and have to attend some AA meetings. A hassle, for sure, unfortunate, for sure, but manageable.

DUI
The vanilla charge. The three letters that have been staring you in the face every day. This is most likely the charge you will be facing. It comes with a $390-$1000 fine (which they take on “court fees” on top of), a 5-month license suspension (which you can turn into a 30-day suspension and 5-month restricted license with an IID), a 3-month DUI program, and 3 years summary probation (more on this later, but basically you just have to be a good boy. You don’t have a probation officer, you don’t have to check in).

Wet Reckless
The Wet Reckless charge is a little bit like a mirage. Lawyers will use it as an incentive to hire them, offering you the possibility of getting it. There’s very little chance of you pleading your case down to a wet reckless. Usually it’s a compromise for when the police know their instruments were malfunctioning or otherwise can’t convict you, but still want to nail you with something. When I first read about the Wet Reckless, I started hoping and praying that I could negotiate it down to that. I didn’t stand a chance. A Wet Reckless is a DUI-light. It says you had some level of intoxication, but weren’t legally drunk. It’s not something you can be arrested for, it can only come from a plea bargain.

The Wet Reckless is a little bit complicated - it has lesser fines, no mandatory suspension from the court, you only serve a 6-week DUI program, but it still has drawbacks - the most major one is that it’s priorable - meaning if you get a DUI later on, that one will count as your second DUI. Also, while the court may not suspend your license, the DMV still can, and most certainly will, issue their own suspension. Like I said earlier, there’s not a lot of wiggle room with the DMV. So while you won’t officially be serving a DUI - you’ll be serving the worst part of the sentence - the suspension and subsequent interlock. It also counts as a DUI for purposes of traveling to Canada.

That said, you’ll have beat the system somewhat. And you have to be proud of that. But still, you most likely will not be eligible for a Wet Reckless.

Dismissal
The least likely outcome. Sometimes, for whatever reason, the DA decides not to pursue some cases. They may know it was an illegal stop or the equipment wasn’t working properly, I don’t know, and if you get yours dismissed, you won’t know either. Be careful - one person in my DUI class had the charges not filed initially, then on the last day the could have been filed they were. Really messed him up, he thought he’d gotten off. This is also the outcome of taking the case to court and somehow winning. It sounds like a dream - fighting the system and winning. Just know that there’s a few caveats to it - 1.) you’ll have to pay a lot of lawyer fees 2.) it’s a gamble, and if you lose, you may wish you’d taken the plea bargain 3.) The DMV case is separate. So while you may win your big day in court, or have no charges filed against you, the DMV can already have decided that you are guilty and your license suspended. It just isn’t fair.

I remember being presented these options from my lawyer, it looked kind of a menu. I wanted to just go “Oh, I’ll have the Wet Reckless” please. It’s not up to you anymore, unless you or your lawyer have incredible negotiation skills. People have done it, but those are outliers. You may be one, but most likely you’re not. Still, it’s good to know all the options that exist.