Under California law it is illegal to operate a motor vehicle with any of the following blood alcohol concentration (BAC) percentages:

• 0.08% or higher― 21 years old or older operating a regular passenger vehicle.
• 0.04% or higher―operating a commercial vehicle.
• 0.01% or higher―younger than 21 years old.

Under California law it is illegal to drive if you've consumed illegal drugs or:

• Excessive amounts of drugs with alcohol in them (such as cough syrup).
• Prescription medication.
• Over-the-counter medication.

Field Sobriety Tests

In DUI/DWI cases law enforcement will request that an individual performs field sobriety tests. These tests are designed to analyse an individuals ability to recall the instructions, abide by the instructions and coordination. It is important to note that an individual can refuse to undertake field sobriety tests.

The simplest test is called Horizontal Gaze Nystagmus. This test is often done first because it can be administered whilst the individual is seated in his or her car. During this test the officer will ask the individual to follow the end of a pen or object with their eyes. The officer will move the pen backwards and forwards and watch the individual's eye movement. The officer is looking to see whether the individual's eyes track smoothly or in a jerky fashion. No amount of training or tolerance to alcohol is able to change an individual's eye movement. In approximately 3-4% of the population jerky eye movement occurs naturally regardless of alcohol use or intoxication. In addition certain prescription and non-prescription medications can cause this to occur. If the officer sees "nystagmus" i.e. a jerky eye movement he/she will ask the individual to exit their vehicle so that further Field Sobriety Tests can be undertaken. 

In the one leg stand test  the individual is asked to stand with their heels together and both arms at their sides. The officer then asks the individual to raise one foot so that their heel is lifted 6 inches off the ground. Whilst the individual in standing with one foot raised he/she is asked to count rapidly from say 1001 to 1030. The officer will be looking for several things during the administration of this test. Firstly, that the individual is paying attention during the instruction phase of the test. Secondly, that the individual kept their hands at their sides during the test and were not raising their arms to help maintain balance. Thirdly and most importantly, that the individual able to keep their foot off the ground for the entire 30 seconds.

In the walk and turn test  the individual is asked to follow a line such as a parking lot line or a straight line drawn by the officer in chalk. In some cases the officer will simply ask the individual to walk an imaginary straight line. The officer is looking to see whether the individual can stand heel to toe with their arms at their sides whilst he/she is giving the instructions. Whilst undertaking the test the individual will need to keep one foot behind the other, take 9 heel to toe steps down the line, turn around and take 9 heel to toe steps back. The officer is looking to see whether to not the individual follows the instructions, touch their heel to toe on each step, whether they can do 9 steps forwards, whether they keep their foot on the line when they pivot and turn and whether they do 9 steps backwards.

In the Rhomberg balance test the individual is instructed to stand with their arms at their side, tilt their head backwards, close their eyes and estimate 30 seconds. Whilst an ability to accurately estimate 30 seconds is important what the officer is really looking at is how much sway is taking place. A normal level of sway is 1-2 inches off centre. A sway of more that 2 inches off centre will be viewed alcohol impairment. 

Other less well know tests include counting backwards, counting backwards and forwards whilst touching a finger to thumb and the finger to nose test. 

The Preliminary Alcohol screening test is a handheld device used to measure an individual's breath alcohol. In California an individual is not required to take this test unless the individual is under 21, is on DUI probation or it is a specific condition of their probation. Prior to administering the test the officer must give the individual an admonishment that the test may not be used against them and that it does not take the place of a regular chemical test. 

Defenses

There are many avenues of attack in respect of DUIs and DWIs. At RBE law we will obtain and analyze the evidence against you to determine whether a defence exists. 

The initial stop can be challenged at a suppression hearing. The field sobriety tests can be challenged on the basis of the testing conditions, the reliability of the tests and mental and physical impairments of the individual. 

The breath test has the most attacks available against it. It is sometimes possible to argue the inaccuracies of the breath test. By way of example the reading may be impacted by radio frequency nearby, incorrect calibration and an individual experiencing GERD (gastroesophageal reflux disease) at the time of testing. 

The blood test is more difficult to challenge. There are however challenges available based on an alcohol swab being used to sterilise and the amount of preservative used in the testing vial. In addition you can have the fluid collected re-tested to determine the alcohol level. in subsequent re-testing what is invariable found is that there has been some minute evaporation of alcohol meaning the re-test will come back as lower than the individual reading. 

DUI penalties

The basic penalties for a DUI are as follows:

1st DUI (misdemeanor): Up to 6 months in county jail, $390-1000 fine, 6-10 months licence suspension (can convert to restricted licence), 3-9 months of DUI classes.

2nd DUI (misdemeanor): 96 hours to 1 year in county jail, $390-$1,000 fine, 2 year licence suspension, 18 months to 30 months DUI classes.

3rd DUI (misdemeanor): 120 days to 1 year in county jail, $390-1000 fine, 3 year licence suspension, 30 months DUI classes.

DUI with injury (misdemeanor): 5 days to 1 year in county jail, $390 -5000 fine plus restitution to victim, licence suspension for 1-3 years; 3 months/18 months/30 months DUI classes.

DUI with injury (felony): 16 months to 16 years in state prison, $1015-5000 fine plus restitution to victim, 18 months or 30 months DUI classes.

Felony DUI: 16 months/2 years/3 years in state prison, $390-1000 fine, licence suspension for 4 years, 18 months or 30 months DUI classes.

However there are aggravating features which may increase the sentence in any DUI case. The most noteworthy are as follows:

causing an accident

driving at excessive speeds

being under 21 at the time of the offence

Having  child in the time at the time of the offence

having a blood alcohol level of 0.15% or higher

Drug charges can range dramatically in scope and punishment. 

The most common types of cases are:

Health and Safety Code 11350(a) "Possession of a controlled substance". Under 11350(a) H&S it is a misdemeanor to possess drugs such as heroin, ecstacy, cocaine, crack cocaine, ketamine, GHB and prescription drugs e.g. vicodin or codeine if they are not prescribed. The maximum sentence is 1 year in the county jail and a fine. 

Health and Safety Code 11364 "Possession of drug Paraphernalia". Under 11364 it is a misdemeanor offence to possess an opium pipe or any device, contrivance, instrument or paraphernalia used for unlawful injecting or smoking of a controlled substance. Items such as pipes, spoons used for cooking drugs and needles used for injecting substances are caught under 11364.  The maximum sentence is 180 days in county jail. 

Health and safety code 11351 "Possession for Sale of narcotics". Under 11351 it is a felony to possess illegal drugs for sale. Individuals charged with this offence are not able to qualify for PC 1000 drug diversion or Proposition 36. Individuals charged with this offence are liable to be punished with imprisonment 2 years, 3 years or 4 years.

Health and Safety Code 11352(a) "Sale or Transportation of a Controlled Substance". Under 11352(a) it is a felony to sell, furnish, administer, give away, transport of import into California an illegal narcotic. individuals charged with this offence are liable to imprisonment for 3 years, 4 years or 5 years. 

Health and Safety Code 11379.6(a)"Manufacturing Drugs and Narcotics" makes it a felony to manufacture, produce, compound, convert or process a controlled substance. Individuals charged with this offence are liable to 3 years, five years or seven years of imprisonment and a substantial fine.  

One of the first aspects of defending a drug charge is to determine whether evidence can be suppressed thereby presenting the prosecution from using this evidence against the accused. We will analyze the case against you and determine whether a motion to suppress the evidence based on an illegal search and seizure in violation of the 4th amendment can be made. If this motion is successful it may well result in the case against you being dismissed.

It is possible for the state to seize the fruits of the drug trade in what is called a forfeiture action. This can include motor vehicles, homes, cash, and other asset. We work to protect such assets from forfeiture.

Alternative Sentencing in drug cases:

The most common jail/prison alternate sentences in drug cases are:

1. Penal Code 1000

2. Proposition 36/Substance Abuse Crime Prevention Act 2000 (“SACPA”)  

1.        PC 1000:

Penal Code 1000 is a deferred entry of judgement drug diversion program. It was a Statewide initiative passed in 1995. The rationale behind PC 1000 is to divert offenders away from the "typical" court system. Upon successful completion of the program and provided the participant has not picked up any new charges  in 18 months the original charges will be dismissed. 

PC 1000 is available to individuals charged with first time offences of: (1) being under the influence of a controlled substance, (2) being in possession of a controlled substance, or both, or (3) being under the influence of alcohol in a public place.

PC 1000 lasts for a minimum of 4 months. During this time a participant is expected to:

• Attend 10 hours of individual counseling - each session lasting 1 hour maximum
• Attend 10 hours of group counseling - each session lasting 2 hours maximum
• Attend 5 hours of relapse prevention sessions - each session lasting a maximum of 2 hours 
• Attend a minimum of 10 self-help meetings (AA or NA) 

The aim of PC 1000 is to work with an offender on his/her drug and/or alcohol problems to eliminate alcohol or drug dependence.

In Santa Barbara County there are two providers namely ZONA SECA and Council on Alcoholism and Drug Abuse.   

Unfortunately, the cost of the program is a minimum of $1,000 and insurance cannot be used.

For further information please see:

Zona Seca 

2.  Substance Abuse Crime Prevention Act 2000 (“SACPA”) AKA Prop 36

 Proposition 36 was passed by California voters in November 2000. The purpose is to divert non-violent defendants, probationers, and parolees charged with simple drug possession or drug use offenses from incarceration into community-based substance abuse treatment programs instead of jail/prison.

"Nonviolent drug possession offenses" include unlawfully:

• Using/being under the influence of any drug listed in the “United States Controlled Substances Act”; and/or
• Possessing or transporting any of these narcotics for personal use. These drugs include (but are by no means limited to):Cocaine, heroin, peyote, GHB, Ecstacy, Ketamine, methamphetamines, Marijuana, certain hallucinogenic substances such as PCP, codeine and hydrocodone (Vicodin).

The duration and intensity of treatment varies according to the assessment of the individuals' level of addiction. As a minimum it will last 6 months. It includes relapse prevention groups, peer support groups, drug and alcohol education, introduction to the 12-Steps, individual counseling, random drug testing, regular court reviews, and support services. 

PC 1000 is considerably less intensive than Proposition 36. In addition PC 1000 leaves an individual without a conviction whereas Proposition 36 does result in a conviction. 

At RBE law we can represent individuals charged with a wide array of violent offences including the following: Assault, assault with a deadly weapon, battery, battery with serious bodily injury, battery on a peace officer

At RBE law we can represent individuals charged with the following offences: Rape, statutory rape, sexual battery, indecent exposure, prostitution/solicitation, lewd conduct in public and lewd acts with a child

At RBE law we can represent individuals charged with the following offences: Domestic battery, corporal injury, criminal threats, child abuse, child endangerment, elder abuse, violation of restraining order, failure to provide care (child neglect), damaging phone lines and aggravated trespass

At RBE law we can represent individuals charged with the following fraud offences: Auto insurance fraud, check fraud, credit card fraud, gambling fraud, health care fraud, identity theft, real estate fraud, unemployment insurance fraud, welfare fraud, workers comp fraud

At RBE law we represent clients charged with a wide array of property offences ranging from arson, burglary and trespass

A minor is a person who was under 18 at the time the offence is alleged to have occurred.

Juveniles who violate criminal laws are either prosecuted in juvenile court (called juvenile delinquency proceedings) or in certain cases in adult court.

Juvenile delinquency proceedings are considered civil in nature however in reality proceedings are criminal proceedings. A minor receives many of the same constitutional protections as an adult.

We understand that criminal proceedings for both a minor and his/her parents can be a terrifying ordeal. We work to achieve the best possible result with respect to the charge or charges. We believe it is fundamentally important to make sure the minor and his/her parents fully understand the court process. We strive to develop an understanding of the minor and the circumstances surrounding the commission of the alleged offense(s) to ensure we can utilize a sensible strategy to protect the minor’s record and achieve the best possible result.

At RBE law we represent individual charged with a wide array of vehicle offences. Vehicle offences can range from simple infraction such as speeding to more serious offences such as reckless driving and hit and run.

Under Vehicle Code 2002 it is a misdemeanor offence to leave the scene of an accident without first identifying yourself to the other individual involved if that individual's property was damaged in the accident.  The offence will be a felony if someone, other that you, was killed or injured. 

Under Vehicle Code 20002 it is a misdemeanor to drive without a valid licence. The maximum penalty for this offence includes 6 months in county jail and a fine of up to $1,000.