First, a few comments:

DUI Punishment Is Harsh: the State’s sanctions and punishments for DUI convictions are harsh! Right off the bat, let me put that out there. Drunk driving has become such a hot, political issue over the last few decades, that the eyes and ears of special interest groups like Mothers Against Drunk Driving (MADD) are constantly on every judge, every courtroom, and every prosecutor to ensure that convicted drunk drivers are treated roughly and are punished severely.

And of course, the specter of innocent people being killed or injured by drunk drivers on the highways is constantly raised in this simplistic cause and effect duality – those who cause the death & injuries because of their drunkeness need be punished harshly. And they are – compared to other misdemeanor convictions. Thus, for example, the usual probationary period for a DUI is 5 years, versus the 3 year probations metted out to the vast majority of other misdemeanors, like for example, misdemeanor thefts or assault & batteries.

Not to mention the fines – DUI fines, part of your probationary conditions, are huge – compared with other misdemeanors. Almost two grand for a first time DUI versus several hundreds of dollars for most misdemeanors.

People who do cause the deaths and injuries due to driving while impaired should pay the price. But numerically, they are such a small number and percentage compared with the thousands who are arrested and convicted for DUIs every month in this state. The vast, vast majority of those arrested only hurt themselves by drinking too much, and they didn’t touch anyone else. Actually, if you cause injuries while DUI, that’s a felony usually. And if you kill someone, it could be treated as murder.

Yet, again, most who drink and drive illegally did not cause any damage to person or property, but they are met with a severe punishment.

And the punishment, historically, is becoming more severe. Recently, the law changed to allow an earlier DUI conviction within the last 10 years to count as a second DUI – if there is another current conviction for one. It used to be only 7 years. Not too long ago, the legal limit was .10% blood alcohol, not the present .08%. And it actually was up to .15% within living memory of some lawyers.

Government, therefore, focuses on punishment and reprimanding the guilty impaired drunk drivers. It does not focus on, say, the causes that make people drink alcohol so much, such as intense financial or career pressures, alienation from job, work, family, society, or depression, or whatever. Nor does it really focus on making vehicles safer. Yes, of course, there are the DUI classes, the AA meetings, the MADD class – and they offer up many valid issues. But the government does not run them. Government runs the police, the jails, courts and probation departments.

You’re treated like a common criminal ! It is true, that for many people – who are citizens of our Republic – but who are arrested for a DUI, they have their very first introduction to the American criminal justice system with the arrest and probable conviction of their DUI. For the first time ever, they’re stopped, questioned, ordered to do tests by the side of the road, then handcuffed, made to sit in the back of the police car for a long time. Once at the police station or jail, they’re ordered to take breath or blood tests, told they cannot refuse the tests, they’re led around and placed in cells, fingerprinted, photographed. They are treated like a common criminal just for having one beer or glass or wine too many.

Now many police officers understand this, so they don’t treat people too badly – they’ll still handcuff the suspected DUI, but maybe they’ll ask if they’re too tight. They’ll be, if not polite, then at least civil. — Unless the person stopped or arrested becomes belligerent, or uncooperative, or too demanding of their rights, or puke in their patrol car, or are African-American, or have other drugs on them, in their car or in their backpack or purse. Then often, the civility vanishes, and you become “criminalized” by the police.

THE DUI STATUTE

Second, read the statute, Vehicle Code section 23152.

VEHICLE CODE § 23152. Driving under influence; blood alcohol percentage; presumptions

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more by weight of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more by weight of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
…

Let’s review it. You should have a basic understanding of the DUI law. The main sub-sections that are our focus are (a) and (b).

(a) simply says that driving a vehicle under the influence of an alcoholic beverage is illegal. A vehicle can be a bicycle or even a boat. Yes, it also says “drug” – and that freaks some people out -. But notice, it says “or”, so you can’t drive while being impaired from alcohol or drugs, or the combination, that’s all.

Now, it’s not illegal to drink alcohol and then drive a car or SUV. It’s illegal to be “impaired” from drinking and then drive. Big difference. How do they prove “impairment”? Usually by the way you were driving, duh!

“Drug” can even be prescription drugs. You can be convicted of a DUI by taking your legally, prescribed medicine and then driving, IF IT MAKES YOU IMPAIRED WHILE DRIVING. Obviously, herb and other illegal drugs qualify.

(b) This sub-division is a big deal. This part is loved by prosecutors, because they believe that if the blood alcohol concentration is .08 per cent or higher, they’ve got a conviction. Convictions build careers.

How do you defend a .08% or more BAC? If you have the money, you can have your lawyer hire experts who can testify that the testing apparatus was not functioning properly, that the lab technician or even the lab itself screwed up – whole books have been written by expert DUI lawyers on the various elements and on various planes that the DUI can be fought – but that’s not our concern here, right now. I want you to have a basic understanding of the statute.

Okay, the point of (b) is that if through whatever test they gave you – the breath test, the blood test – or even a urine test (pretty much phased out over the last few years), your blood has .08% of alcohol or higher and you were tested within 3 hours of your driving, you were legally impaired, and are looking at a conviction.

There’s a Standard Sentence for a First Offense DUI

Next, understand that there is a standard sentence for a first DUI offense. Here is the Sentencing sheet that DUI defendants at the El Cajon Courthouse have to fill out and sign if they are going to plead guilty:

(Click on the image for a larger version.)
This Sentencing document is slightly out of date, as the DUI fine is now $1912.

All right. Another basic thing to know is that a DUI is a misdemeanor. Not a felony and not an infraction. Misdemeanors are usually punished by fines and probation, especially first-time offenses. So, let’s get this out of the way right now:

There is no jail time for a first-time DUI in San Diego County. You are arrested and probably spent the night in jail, but that’s it. That’s usually all the jail time a first-time offender will do. (Unless there are other circumstances – you injured someone, it wasn’t your first offense, there were other charges). Plus you’ll get some kind of credit for those nasty hours spent at the downtown jail, at Las Colinas – for women, or at the Vista detention center.

Briefly, if convicted of a first-time DUI, you get:

• 5 years of probation,
• a hefty fine – almost two grand – which you can pay off monthly,
• a DUI class, 3 to 9 months
• a one-time MADD class,
• of course, suspension/ restriction of your drivers license,
• and depending on your blood alcohol level (BAC), public work service (picking up trash alongside the freeways and you get to wear those fancy orange vests).

Let’s go over the different parts of the sentence – as outlined above in the Sentencing sheet, so you know what the basic worst case scenerio is.

• Summary Probation : probation is a leash that the Court and the Probation Department will have on you if you are convicted of a DUI. It’s harsh – five years. So, for 5 years from your date of conviction, you will be on this leash and subject to a whole bunch of probation conditions, like paying the fine, going to DUI school, etc. – we’ll get more into details below.
  • Now, the good side of it is, there is no probation officer to report to, and no one will be testing you in the future.
  • The bad side is, if you violate your probation, like not paying your fine, not doing your public work service, not completing the DUI class, the Court can whack you harder. You don’t want to violate your probation. However, if you have a valid reason or genuine problem that prevented you from doing something – it does have to be reasonable – the Court will usually simply place you back on probation under the same conditions and restrictions. But it does mean a Court appearance by you (or your lawyer).

• Violate No Laws: While you are on probation, you promised the Court that you would not violate any laws. This is a probation condition. So, if you did violate another law while on probation, the Court can then punish you for not only the new violation, but for violating your probation as well – a double whack! But you cannot violate your probation by getting a traffic infraction, like blowing a stop sign, speeding, going through a red light. Those are traffic infractions, not misdemeanors.

• 180 days of custody – stayed; you are formally sentenced to 6 months in jail, but because of the probation, it’s postponed or stayed, pending successful completion of your probation. If you have a probation violation during the course of those 5 years, the Court can legally punish you by making some of those custody days actual custody; again, if there are extenuating circumstances, the Court may simply place you but on probation under the same terms and conditions.
• Credit for Time Served- here is where you get some kind of credit for that night in jail. Usually the court will grant you $50 per day and take it off your fine, or if you get public work service, take it off there.
• Court fine - NOTE: I do not have the current amount of the fine for San Diego County for a first-time DUI; whatever the exact amount, about two thousand, it can be paid off monthly. The money you owe the Court is very important to the County. It’s a bottom-line world out there and the system wants you to pay that fine, and they will keep track of how much you owe for you; not payment of the fine is a probation violation.
  • you will be ordered to report to Court Collections within a certain time period once you plead guilty or are convicted by trial. This is usually in two to four weeks, or even immediately “forthwith” if you are present in Court when the plea of guilty is taken by the judge.
  • Once at Court Collections, you will have an interview with an intake counselor who will go over your income and expenses to figure out how much you can pay a month. You should have all of that together before you even have the interview. If you know you’re going down on the DUI, come to Court with all this already figured out: all that you spend per month and all your income.

• Standard Alcohol Conditions - these are self explanatory – see the Sentencing sheet above.

• First Conviction Program (FCP) - this is the DUI class for San Diego County. There’s classes held in the four sections of the County: downtown, South Bay, East County, and North County. They cost too, of course, hundreds of dollars, and you can also set up payment plans.
  • If you haven’t realized it by now, there’s an entire mini-industry set up around the DUI trade, as there’s nearly a thousand DUI’s every month in this county. Lawyers, prosecution offices, cops, DUI classes, collection outfits, counselors, labs, experts. But the FCP is an important one.
  • How many months you have to go to the DUI class is determined by your blood alcohol level; so basically from .08 to .19% you will be ordered to do the 3 month class; .20% takes you to the 9 month class, whew! Also “refusals” get the 9 month class – refusing to take any DUI tests even if the blood alcohol is below .20%.
  • You will start off by going to class twice a week, then it will be whittled down to one.
  • If you don’t enroll or don’t show up, the class will notify the Court, and that’s a probation violation; if you have to be away, make sure the people at the class know about any planned absences.
• the MADD class – most convicted DUI defendants are ordered to take a one-time MADD (Mothers Against Drunk Drivers); these are held usually in the Courts themselves, but also across the County in many different locations; they do ask for a $20 donation; some of my clients who have already taken a number of recorded AA meetings by time the plea of guilty is entered, had this requirement to go to the class specifically held by MADD deleted from their conditions.
• Don’t drive without the Big Three: valid license, registration and insurance;
• Usually the license is taken at the arrest, and sometimes not. But I’ve never seen someone have to surrender their license in Court.
• Vehicle Code section 23593 – self explanatory.

• Blood Alcohol Content – this is all about :
• Public Work Service (or Public Service Work Program); here is where you are punished more severely for having a high blood alcohol concentration – .15% or higher – or for a refusal. Usually this is the freeway beautification program run by the County Probation Department – you’ve seen them, the folks in the orange vests picking up trash.
  • for a BAC of .15% to .19% you get 5 days of public work service;
  • 10 days for .20% to .24%;
  • 15 days for .25% or more.
  • Frequently Asked Questions: (1) “Can I get out of Public Work Service if I pay a higher fine?” Short answer: NO. If you could, then the rich could pay their way out of any public work due to a DUI bust. Not fair, says the system – and here I agree. (2) “What if I can’t do physical labor?” With a letter from your doctor, chiropractor or some medical care giver, you or your lawyer can probably have the Court agree to have you do an equivalent period of volunteer time at a non-profit, school, church or synagogue of your choosing, as long as you can come back to court periodically with a signed letter from the facility’s supervisor on its letterhead documenting your volunteer hours.
• Substance Abuse & Alcohol Unit (SAAU) - every convicted DUI defendant in this County has to report to SAAU, usually around the same time you have to report to Court Collections. SAAU is a post-conviction interview to weed out the habitual drinkers from the social drinkers, and to determine where you should take the DUI class and the MADD class.

The DMV Sanctions – to be covered

Joseph Kownacki is used to having the odds stacked against him.

The central misdemeanor unit supervisor of the San Diego County Public Defender’s office and a 20-year veteran of his department, Kownacki knows his counterparts in the county District Attorney’s office will always win more cases and be lavished with more praise. It’s part of the game, which is why Kownacki refers to his office as the Padres and the other team as the Yankees.

He just doesn’t think the odds should be stacked so high.

“In the 2003-04 fiscal year, we were the only department in the county to have layoffs and demotions, and it looks like that will be happening again this year,” said Kownacki, who’s also head of the county public defenders’ labor union. “Over the last 10 years, we’ve lost 25 positions. We don’t have enough staffing and have a zero-based budgeted office—if someone goes sick, there’s no one to replace him.

“In the meantime,” he adds, “the D.A.’s office’s budget has gone way up, and they’ve created all kinds of new positions—despite the fact that crime has dropped significantly for the past 16 years.”

Statistics show reported crimes steadily decreasing in the county since record-high levels in 1992. Violent crime—such as murder, rape and aggravated assault—hit a 25-year low in 2007, while property crime dropped to its second-lowest level since 1983, according a report by the San Diego Association of Governments.

Nevertheless, funding for the D.A.’s office has steadily increased since 1988, when the Public Defender’s office went from being a largely outsourced to an in-house department. Over a 20-year period, the D.A.’s budget rose from $20 million to $150 million—an increase of 750 percent. The Public Defender’s budget rose from $19 million to just $56 million over that same period.

The disparity has translated to a growing imbalance between the ability of indigent criminal defendants to fight the charges against them and the power of prosecutors looking to put them in jail. As a result, say Kownacki and other county public defenders, poor defendants are routinely receiving longer sentences than their crimes warranted—or being put away for crimes they never committed.

“Politicians want to show that they’re tough on crime,” said Mel Epley, a deputy public defender assigned to the office’s felony team Downtown. “What they don’t realize is there’s people being overcharged, people who are entitled to an adequate defense to overcome those cases where they’re truly innocent. That’s hard to do when we’re so overburdened. No one seems to care until a family member or friend or someone they care about is charged and find that the system is stacked against them.

“Right now I have about 36 cases to look out for, three of which are what we call Class-5 felony cases that involve murder or attempted murder,” he said. “My caseload for the year is about 180 so far. The American Bar Association recommends that attorneys not handle more than 150 cases a year to give them time to work on them. The vast majority of our cases do settle, but that doesn’t mean we had the time to make sure the appropriate charges were filed against the defendants.”

Epley and Kownacki point out that while funding for prosecutors has greatly increased, the number of cases filed by the D.A.’s office has remained virtually the same—about 28,000 misdemeanor cases and 18,000 felony cases—every year since 1988. What all that extra money has done is allow prosecutors to spend more money per case, and, thus, given them the freedom to heap more—sometimes unnecessarily more—criminal charges on the accused.

“It’s routine,” Epley said. “Anything that’s possible for the prosecutors to throw out there, they do. A good example is we’ll find a person who’s been charged with having property that’s been recently stolen, maybe a laptop computer, and there’s absolutely no evidence to connect this person to where it was stolen from. Instead of charging the defendant with receiving stolen property, prosecutors will charge him with residential burglary, as well.

“People can be charged with attempted murder for getting into a fight and someone is injured, when actually the charge should be assault with an injury. Of course, the punishment and stigma of being charged with attempted murder is much more severe. Another thing I see prosecutors doing is that when a person with a prior conviction is charged with burglary, they’ll be charged with a Code 459, which is burglary, and a Code 460, which is residential burglary. The prosecutor’s pleadings will show them as two distinct strikes, which puts the defendant in the category where, if they plead to the charges, they’re looking at 25 [years] to life.”

Calls to the D.A.’s office for comment were routed to spokesperson Steve Walker, who referred them to Ray Fernandez, deputy chief administrative officer of the San Diego County Public Safety Group. Fernandez said the issue is a labor matter, referring to Kownacki’s role as union president, and declined comment.

Steven Carroll, who heads the Public Defender’s office, flatly rejected the contention that understaffing in his office puts indigent defendants in jeopardy.

“The county has let me know they really don’t want to respond to this issue and don’t want me to respond to this issue,” Carroll said. “I don’t share [Kownacki’s] concerns. My approach to the funding issue is to take a look at the caseloads in the various units we have. I do this about every two months and see what the workflow is, measure that against what workloads people should be able to accomplish and make a decision on that. I’m adequately staffed. I’m certainly not overstaffed, but I believe I’m appropriately staffed for the kind of work I’m doing.”

Prosecutors have the burden to prove their allegations against defendants, but public defenders have the burden to investigate each and every charge to see if it’s appropriate. Here, say the defenders, is where the disparity in resources is really felt.

Every San Diego prosecutor is given a laptop computer and cell phone upon hire. Prosecutors are assigned a secretary and paralegal for every eight cases they handle. The paralegals are broken up into teams of two to three, sharing the responsibilities of coordinating schedules and writing up pleadings and motions and following up on minor tasks. It’s difficult to quantify how many cases any of the 323 criminal prosecutors have open at any given time because cases are divided into categories: One prosecutor carries the case through the arraignment process before handling it off to another prosecutor who carries it through the pre-trial hearings and onward through the course of the case.

The county’s 159 criminal public defenders (another 23 handle cases brought by the San Diego City Attorney’s office) use their own cell phones and share exactly one laptop between them—and only when in trial. They have no paralegals but instead draw from a pool of nine attorneys Downtown to assist them—when available. Each defender handles a caseload of between 35 to 45 cases, which they work through from beginning to end: calling witnesses, coordinating witness schedules, issuing subpoenas and researching and writing motions. When sick or in trial, no one is available to handle their other cases. They have no other help other than interns and volunteers, whom Kownacki refers to as “the best interns and volunteers in the world.”

“I see attorneys here coming down with adverse health effects from the stress,” Kownacki said. “They get no breaks. I’ve got kids here—young men and women—working 50- to 60-hour weeks.”

Kownacki said the brutal workload has caused morale to plummet, with attorneys quitting for less stressful jobs in the private sector or, tellingly, with the D.A.’s office. Inevitably, it’s also stirred resentment toward prosecutors.

“It’s amazing to me that our attorneys carry 30 to 50 cases and their trial deputies start complaining when handling more than six cases,” says Deputy Public Defender Troy Britt.

Again and again, the defenders speak of the easy life and luxuries enjoyed by their counterparts, of the D.A.’s comfortable digs in the Hall of Justice Downtown or at the new facility in the South Bay with its spacious offices and work-out room. The Public Defender’s own headquarters, Suite 500 of a dilapidated 1920s-era building at 233 A St., is a cramped and dusty affair resembling a telemarketing boiler room. The attorneys know the building isn’t up to seismic code, and so they dive under their desks at the slightest earthquake. It has no workout room.

“Our workout is hauling files back and forth from the file room,” Epley grumbled.

One might ask how the perennially cash-strapped county can afford to be so magnanimous toward the D.A., and the answer is it can’t. Like all California counties, San Diego receives revenue from Prop. 172, a half-cent sales tax passed in 1993 and earmarked solely for public-safety spending. The proposition has generated $27 billion since its passage, about $1.8 billion of which was funneled to the county in the past 10 years for use by the D.A.’s office and Sheriff’s Department. The Public Defender’s office doesn’t receive Prop. 172 funds.

Nor is it eligible for any of the many state and national public grants for which the county regularly applies on behalf of the D.A.

“That money is given [to] them year after year without any assessment of need,” Kownacki said. “The spigot is on and it’s never shut off. That’s the problem with legislation by the masses.”

[This article is from CityBeat - go here for the original.]