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What Is A DUI Or A DWI, And Is There Any Difference?


In my jurisdiction, which is Northern California, we call it DUI, Driving Under the Influence of alcohol. This means that someone who got arrested with a DUI would typically be charged with two different crimes, driving under the influence of alcohol and driving with a blood alcohol level at or above .08%.

These two different crimes would require that the person be driving and while they were driving to then either be under the influence of an alcoholic beverage or an illegal drug or that they were driving with a .08% or greater blood alcohol level at the time of driving. The prosecution would only need to prove one charge in order to convict the person.

What Is A Felony DUI?

There are two main ways to get a felony DUI in California, although there are probably more ways than that to get a felony DUI. The two main ways that we usually see are if it was the person’s fourth DUI within ten years of three other DUI arrests, or if someone was injured in an accident whether or not the person caused the accident. Any injury, regardless of how serious would be severe enough for the DA’s office and the prosecution to charge the person with a felony DUI.

Do A Lot Of Cases For DUI With Illegal And Prescription Drugs Versus Alcohol Come Through?

I am starting to see more cases involving prescription medications and we will probably see even more than that if the laws change. The laws on drugs have changed, so possession of a number of illegal drugs is now considered a misdemeanor instead of a felony, although I have not seen that much of an increase in actual incidents; they are just being charged differently.

I do handle cases involving prescription drugs, and I recently had a case where the DA charged someone for illegal possession of a prescription drug. The client had a prescription for it but he did not have it with him and he was not given an opportunity to show it to the police officer. He had it at home but instead of them letting someone bring it down to the station to show that it was legal, they just turned the police report over to the DA’s office, and they charged him with a DUI and with having script for an illegal drug so they tried to go after him for that, and unfortunately that is the way it works sometimes.

The cases involving prescription drugs often involve someone who had been given a prescription at a therapeutic level but they were taking more than the therapeutic level, so on a blood test result they may have more Vicodin in their system than they were supposed to or sometimes it might even be a combination of alcohol and a prescription drug where the person was not supposed to be driving if they mixed the drug with alcohol.

I do not get a lot of prescription drug cases, although I do see some and there can be many different defenses. It is tougher for the DA’s office to prove the person had impaired driving when dealing with a prescription drug case or an illegal drug case because there is no .08 level, per se, like there would be for alcohol related DUI charges.

Does California Address Marijuana Being In Someone’s System, Since It Can Stay For 30 Days Or So?

It can stay in the person’s system for a lot longer than that, and that is exactly what is being negotiated because the officer would say the person had marijuana in their system. As attorneys, we would argue that the therapeutic level was a certain amount, and the person had so much less than that. The police would not be able to show whether the person was at or over that level when they were driving.

It would be hard to show they were impaired, because even if the person was driving badly, the DA would not necessarily be able to prove beyond a reasonable doubt that it was because of the marijuana. This is why in the County of Marin they do not plea bargain or reduce charges for DUI involving alcohol only, although for charges involving prescription drugs or an illegal drug or something like marijuana, they would actually negotiate because they have lost cases and a trial and they understand those would be harder to prove.

They feel very strongly about the .08 per se number, so when they get that, they would never negotiate that down to a wet reckless or a dry reckless because that would just not happen. Every other county would negotiate DUIs when they were close to the legal limit when it was just alcohol.

Is There A Typical Type Of Client For DUI, Such As Older, Younger, Women Or Men?

Anyone who drinks or uses drugs and gets behind the wheel would be a potential client. I cannot say that most of my clients are men or women, younger or older, although I would say that I tend to get more clients in their 20’s and 30’s than I do clients in their 40’s and 50’s, but that would just depend. Sometimes I do get older clients, and I have had clients in their 60’s and in their 70’s come in as well.

How Many DUI Arrests Are Made In The Counties That You Serve?

This varies. The smaller counties may have closer to a few thousand a year whereas the larger counties are more likely to have closer to 6,000 to 10,000 a year. The counties in the San Francisco Bay area that tend to have the most DUI arrests are Santa Clara County, Alameda County, San Mateo County, and Sonoma County. The smaller counties that do not have as many arrests would be Contra Costa County, Marin County, Napa County, San Francisco, and also Solano County.

For more information on DUI DWI And Felony DUI In California, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (415) 523-7878 today.

Aaron Bortel

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