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Law Offices of David M. Boertje 

Drunk driving conviction in California, which is often referred to as driving under the influence (DUI) or driving while intoxicated (DWI), affects a person in a number of different ways including:  

• Alcohol assessment and treatment
• Community service and probation
• Felony or misdemeanor criminal record
• Fines and court costs
• Increased insurance rates
• Jail time or prison sentence
• Suspension or revocation of driver license
• Vehicle immobilization or forfeiture

DMV License Suspension

In almost every DUI case a driver in California has two cases to contend with. A DUI arrest results in both a criminal charge and a civil proceeding against the arrested driver’s driving privilege, which is referred to as a California Department of Motor Vehicles (DMV) license suspension. A DMV license suspension is initiated by the State against an arrested driver when he or she refuses to submit to breath or blood testing or fails a breath or blood test. Issues involved in a DMV license suspension hearing include the following:

• Whether there was reasonable suspicion to stop the driver for drunk driving
• Whether there was probable cause to arrest the driver for drunk driving
• Whether law enforcement provided the California implied consent warnings
• Whether the driver refused to submit to a blood or breath test
• Whether the driver failed a breath or blood test

If you have been arrested for drunk driving, driving under the influence (DUI) or any other alcohol or drug-related crime in Carlsbad, San Diego, or surrounding communities in Southern California please contact the Law Offices of David M. Boertje today. We offer:

• Convenient office locations in Carlsbad and San Diego
• Free initial consultations with an experienced attorney
• Emergency service 24 hours a day
• Flexible payment plans and credit card payments accepted

Contact Information

San Diego Office:

402 W. Broadway, Suite 950

San Diego CA 92101
619-229-1870

Carlsbad Office:

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Attorney Profile - David M. Boertje, Esq.

David M. Boertje, Esq., has dedicated his professional life to defending those accused of DUI’s and other crimes. Mr. Boertje is experienced in handling all misdemeanor and felony DUI cases including DUI’s with priors, DUI’s causing injury, and DUI’s causing death. 

Approximately 80 – 90% of Mr. Boertje’s practice is dedicated to defending those accused of DUI’s.  Mr. Boertje is also experienced in handling all other types of criminal cases including domestic violence, theft crimes, white-collar crimes, drug crimes, violent crimes and probation violations.

Mr. Boertje received his Juris Doctor degree at the University of San Diego School of Law where he specialized in criminal law, trial advocacy, and litigation. He also served as President of the Criminal Law Society during law school. Prior to forming the Law Offices of David M. Boertje, Mr. Boertje worked as a legal intern with the San Diego County Public Defender’s Office.

Mr. Boertje is admitted to practice in California and is an active member of the California Bar Association, the American Bar Association, and the San Diego County Bar Association.  Mr. Boertje is also an active member of the California DUI Lawyers Association.

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Overview of the DUI Court Process

What Is The Charge?
At the outset, we will assess what crime or crimes you are accused of committing. This will be determined by the prosecutor when they file the complaint against you.

A complaint is the name given to the paper setting out the alleged violations of law. The complaint is the legal document that brings you to court and starts the legal process against you.

Usually in a DUI case, you will be charged with two separate criminal offenses:

Section 23152 (a) of the California Vehicle Code, driving under the influence ; and,

Section 23152 (b) of the California Vehicle Code, driving with a blood alcohol level of .08% or higher.

You will also most likely have a license suspension matter before the DMV. This is not a criminal offense. It is a civil proceeding before an administrative agency, the California DMV.

The matter before the DMV will be brought under the Administrative per se suspension law. This is almost identical to the per se criminal charge, 23152 (b) driving with a blood alcohol level of .08% or higher, which you will also be facing in the criminal case.

• Your name and driver's license number.
• The date of arrest or notice of suspension, which you will find on the Notice of Suspension itself. It will also contain information regarding the county where you were arrested and the agency that arrested you.
• Whether you submitted to a breath test or blood test.
• Request either an in person or a telephone hearing.

*It is always wise however to contact a DUI Defense Lawyer prior to requesting a hearing.

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Frequently Asked Questions in CALIFORNIA DUI Cases

Why Should You Hire An Attorney?
How Can The Attorney Help?
What Else Can The Attorney Do?
What Are the Consequences of a DUI?
What Is The Punishment for Drunk Driving ?
What Is "Blood Alcohol Level"?
Are Breath Test Results Always Accurate?
What If I Lose My License But Continue To Drive Anyhow?
How Can I Get Automobile Insurance After A Drunk Driving Conviction?
What Is The Punishment For Drunk Driving ?
Why Do I Need To Contact The DMV Within 10 Days Of My Arrest?
What Happens At The DMV Hearing?
Can DMV Hearings Be Won?
What Will Happen At Court?
Can DUIs Be Won?

Why Should You Hire An Attorney?

• To save your driving privileges
• To reduce fines and financial penalties
• To reduce the criminal charges
• To avoid jail time or a prison sentence
• To avoid public work service

How Can The Attorney Help?

An experienced criminal defense attorney can do many things to challenge and disprove the evidence against the accused. We routinely find defects associated with the traffic stop, field sobriety tests and chemical tests, whether breath or blood, that often result in a dismissal of some or all of the charges. Depending on the circumstances of a case we may:

• Review the calibration and maintenance records of the machine. It is falsely believed that these machines are infallible. People forget that these machines are made of up of metal, plastic, and silicon. To believe that they always work, everytime, is like believing your car will never break down. Machines don't always work properly.
• File pretrial motions to suppress the evidence. These motions, when argued successfully, may result in the DUI case being dismissed.
• Retest the blood by a private lab.
• Hire an analyst to determine if the driver's blood alcohol concentration (BAC) was rising. This defense may prove that the driver's blood was actually less than California's .08 % limit, at the time of driving.
• Photograph the scene the arrest. This may be helpful in showing that the ground was not level when the driver was performing the field coordination tests.
• Effectively cross-examine the officer to expose mistakes and inaccuracies in the gathering of evidence.

What Else Can The Attorney Do?

The attorney can represent the driver in court. The goal should always be to get either a reduced charge in a plea bargain, or take the case to trial. Of course, the client always makes the final decision whether to accept the plea bargain or not.

The attorney can also represent the driver at the DMV. In California, a driver will suffer a period of suspension for at least 120 days, and possibly more. Only an understanding of the law, and administrative procedure, will adequately defend the driver with the DMV. Since the issues at a DMV hearing are highly technical, a qualified DUI attorney is necessary if you want to fight the suspension and save your license.

What Are The Consequences Of a DUI?

• Alcohol assessment and treatment
• Community service and probation
• Felony or misdemeanor criminal record
• Fines and court costs
• Increased insurance rates
• Jail time or prison sentence
• Suspension or revocation of driver license
• Vehicle immobilization or forfeiture

What Is The Punishment For Drunk Driving ?

Drunk driving carries serious penalties. Although the court may go easier on first-time offenders, even in first-offense cases the possible sentences include stiff fines and jail time. If the circumstances warrant it, however, the court may choose less restrictive options, including probation, community service, or even mandated AA attendance or the like. For subsequent offenses, the likelihood of imprisonment increases, and in all cases, the loss of driving privileges-at least temporarily-is almost guaranteed.

What Is "Blood Alcohol Level"?

Blood alcohol level (BAC) is a term used to describe the level of alcohol in the bloodstream of a person arrested for drunk driving . It is used in court as evidence of that offense. The most common method of determining BAC is through a breath test, although blood and urine testing is also done. If the level is found to be at or.08 the test results can establish a presumption of impairment.

Are Breath Test Results Always Accurate?

California courts allow the defendant in a drunk driving case to challenge the scientific accuracy of Breathalyzer tests in general, and also allow challenges based on the particular circumstances of a test, such as improperly calibrated equipment or inadequately trained officers. If the test results are inadmissible or can be challenged, the case will have to be proven based on other evidence, such as eyewitness testimony and field-sobriety test results.

What If I Lose My License But Continue To Drive Anyhow?

If a person whose license has been revoked or suspended due to drunk driving chooses to drive without a valid license and is pulled over, he or she stands to suffer more serious consequences, including fines and imprisonment. The more prudent course of action is to rely on friends and family for rides or use public transportation.

How Can I Get Automobile Insurance After a Drunk Driving Conviction?

Although your rates will likely be higher, your insurer may keep you on even after a conviction, and a subsequent clean driving record will result in lower rates in the future. If your insurer drops you as a result of the conviction, another insurance company may be willing to accept the risk; in fact, some companies specialize in offering insurance to drivers who have been convicted of drunk driving , but of course the rates are much higher.

What Is The Punishment For Drunk Driving ?

Drunk driving carries serious penalties. Although the court may go easier on first-time offenders, even in first-offense cases the possible sentences include stiff fines and jail time. If the circumstances warrant it, however, the court may choose less restrictive options, including probation, community service, or even mandated AA attendance or the like. For subsequent offenses, the likelihood of imprisonment increases, and in all cases, the loss of driving privileges-at least temporarily-is almost guaranteed.

Why Do I Need To Contact The DMV Within 10 Days Of My Arrest?

You must contact the DMV within 10 days to protect your driving privileges. The temporary driver's license you were probably issued expires 30 days after your arrest. The purpose of contacting the DMV is twofold. First your driving privileges will not be suspended before a hearing is held regarding your arrest. Second, your driving privileges will not be suspended until the hearing is held and a decision rendered. By making this request you ensure that that your driving privilege will not be suspended until your case is heard.

What Happens At The DMV Hearing?

A hearing officer will attend. His or her function is to prosecute the case and make a final decision based on the evidence presented.

The issues involve:

• Determining who was driving the vehicle.
• Determining whether the police officer had "reasonable cause" to pull over and arrest the driver (a complicated legal question).
• Determining whether there was a lawful arrest (also a complicated legal question)
• Did the driver have a blood alcohol concentration of .08 or above (which is open to many challenges).

By completely examining your case and using various methods of "discovery" we are able to construct a defense to rebut the case against you. At the hearing we provide whatever testimony will help your case often including an expert in either blood or breath testing.

Can DMV Hearings Be Won?

Yes. In many cases, there are questions on at least one of the three criteria. The DMV must answer all three affirmatively to suspend the driving privilege. A skilled attorney can help discover and factually develop the issues that can win your case at the DMV.

What Will Happen At Court?

On your ticket, or somewhere in your paperwork, the date, time and location for your first court appearance will be listed. If you haven't hired an attorney, you must attend court on that date and time. Following the attorney-represented cases the judge will begin calling the non-attorney cases. At some point the judge will ask you to enter a plea to the charges. At this time you must plead either guilty or not guilty. Depending on your plea the judge will ask you several questions aimed at determining whether you want to waive your constitutional rights, including your right to a speedy jury trial.

Can DUIs Be Won?

Yes. Through complete discovery and investigation, we can-and do-win DUI cases. We begin with a careful evaluation of police reports. We look for inconsistencies, even impossibilities, in your police reports. We also request, and usually receive, complete disclosure regarding the device used to test your blood alcohol level, the personnel involved in the maintenance and operation of the device, and the lab certification. We know that complete discovery and investigation leads to finding errors that can win your case.

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HOW WE WILL DEFEND YOU

We aggressively represent you in all stages of your DUI case. Many times you will never have to appear in court.

When charged with a DUI, the accused is usually facing two separate proceedings. The first is the DMV hearing. The second is the DUI Criminal proceeding. These are two separate and distinct proceedings. You have a very limited time from the date of your arrest to request a DMV hearing. At the hearing, the DMV has to prove that they have the right to suspend your license. However, you must first request the hearing, if you want them to have to prove their case.

The criminal portion of the DUI may be either a misdemeanor or in some cases a felony depending on the individual case. Most DUI's are charged as misdemeanors. In that event, we can usually appear for you at most of the court appearances.

The DUI charge is usually two charges, the first is that you were driving while under the influence of drugs or alcohol, and the second being that you had a blood alcohol concentration (BAC) percentage over .08%. The first charge can be brought even if your BAC was under .08%.

At the first appearance, called the arraignment, we will obtain the complaint and the initial police report. It is then that we will enter your plea of not guilty. From there, we will review the police report and other discovery we obtain. From our years of experience, we will note both what is in the report, and more importantly, what is missing. Remember that the police only put in the bad stuff. We will focus on the reason for the stop, the pre-interview process, the report of your appearance, the performance of the field sobriety tests (FST's), the preliminary alcohol screening test, and the actual blood, breath or urine test taken at the station. We will then schedule time to review the report with you, and have a preliminary discussion of the strengths and weaknesses of your case. However, this is only the beginning. We have to work to get the exculpatory things, the things that may sway a jury to your side. But remember that the mere fact that some number of your BAC % is reported does not make you guilty.

The process is an evolutionary one, where we must go out and get the evidence necessary to successfully defend your case. We can have a forensic analyst review your DUI case for scientific issues. Many times we will have the blood retested, make sure that the proper preservative was put in, or that the BAC % is consistent with what was reported. We will investigate the breath machine, its maintenance and calibration, and the training of the police officer for that machine. We will visit the scene where you were pulled over, so that on cross examination we know what we are talking about.

Many times we can argue to suppress the evidence based upon 4th amendment constitutional violations. They occur much more frequently than they should.

During this entire process we are negotiating with the District Attorney on your case, to obtain either a dismissal or reduced charges.

Eventually, we either obtain a settlement acceptable to you, or we announce ready for trial. The trial can last several days. The first thing we will do at the trial is to swear in a jury panel. The judge brings in 30 or 40 people from whom we will pick the jury. Eventually, they will be brought in and we will perform voir dire (jury selection). The law says that we are not allowed to "indoctrinate" the jury, but we will try to get their feelings and share ours, and try to get rid of those we do not like.

We will make various motions, whether that is to try to get in the Preliminary Alcohol Screening (PAS) test, or keep it out, and to argue evidentiary matters.

Each side gives an opening statement to the jury, telling them their summary of the case. Then the prosecutor puts on their side of the case. They will usually call the police officer, any witnesses, the lab technician, a forensic analyst. Our job is to cross exam each of their witnesses, and to get to the truth. For example the police officer will say that you smelled of alcohol, and did not walk a line straight. But he will fail to tell the jury that you were cooperative, did not fumble with your wallet, did not stumble getting out of the car, did not lean on anything as you were talking to him, answered his questions clearly, and followed directions well. Our job is to demonstrate all of those things to the jury.

Eventually, the prosecution will rest, and we may call some witnesses. Sometimes we will have our own experts, forensic analysts, or accident reconstructionists, or investigators.

Finally, we will argue some more motions, and then present our closing arguments to the jury. The judge will tell the jury what the law is, including what we have argued in our motions that the law really is. They will go off and deliberate, and if everything goes well, come back with a not guilty verdict!

Let us review your case. Contact us today for a free initial consultation.

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Overview of the DUI Court Process

• Misdemeanor offenses are punished less severely than felonies.
  
  Misdemeanor DUI offenses (California Vehicle Code [CVC] section 23152) typically do not involve injuries; felony DUI offenses (CVC 23153) typically do. In a felony DUI, someone other than the driver was injured or killed as a result of the offense. Offenders convicted of a misdemeanor can be sentenced to jail (but not prison) and fined up to $1,000; offenders convicted of a felony can be sentenced to prison and fined more than $1,000.
  
  
• Subsequent offenses are punished more severely than previous offenses.
  
  A second, third or subsequent offense is one that occurs within ten years of a prior DUI offense. A prior alcohol-involved reckless driving ("wet reckless") guilty plea is counted as a prior DUI conviction when the court determines punishments.
  

• County jail or state prison
• Fine, penalty assessment and restitution
• Drinking and driving treatment
• Vehicle impoundment or forfeiture
• License restriction, suspension or revocation
• Ignition interlock device requirement
• Probation

• driving at "excessive speed" (30 mph above the lawful freeway speed or 20 mph above the lawful speed on other roadways)
• refusing to take a chemical test
• driving with a minor passenger (under age 14) in the vehicle.

• multiple victims (other than the driver). Sentences are enhanced by one year for each victim (up to three)
• hit and run, if fleeing the scene after vehicular manslaughter.
• causing serious bodily injury to victim(s). Sentences may be enhanced by three years per victim.

• Misdemeanor offense fines range from $390 to $1,000; felony offense fines from $390 to $5000.
• Penalty Assessments are additional fines that the court imposes which substantially increases the fine (in San Diego Courts typical fines and assessments range between $1,800 to $2,200).
• Restitution fines compensate the injuries and losses of victims. Fines range from $100 to $10,000.

Treatment

Convicted DUI offenders may be ordered to attend and complete an alcohol and/or drug treatment program. The programs the Court may order are 3-month, 6-month, 9-month, 18-month, and 30-month programs. Drivers suspended for a DUI conviction must complete a drinking driving treatment program prior to license reinstatement.

Offenders receive no credit for program activities prior to the current violation.

Vehicle Impoundment and Forfeiture

The court can order that the vehicle of a convicted DUI offender be impounded if the offender is its registered owner. A judge can order that an impounded vehicle be forfeited - declared a "nuisance" and sold. Impounds can also be imposed on vehicle owners under 21 (even if not in the vehicle) if a driver or passenger of his or her vehicle is under 21 and illegally possesses alcohol.

License Restriction, Suspension and Revocation

A driver's license can be:

• Restricted - limiting when and under what circumstances drivers can use a vehicle. Restrictions typically include: driving only to and from work or treatment, and as required by work; to and from school; and to and from court-ordered programs
• Suspended - withdrawn for a specified period or until some required condition (such as financial responsibility) is met
• Revoked - terminated, requiring drivers to reapply for a license after their revocation period.

• commit any criminal offense
• drive with any measurable alcohol in their blood
• refuse to submit to a chemical test upon request
• fail to pay a fine, assessment or restitution

CRIMINAL SENTENCES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS (VEHICLE CODE SECTION 23152)
OFFENSE	MINIMUM AND MAXIMUM SENTENCES WHEN PROBATION IS GRANTED (3 TO 5 YEARS PROBATION TERM)	MINIMUM AND MAXIMUM SENTENCES WITHOUT PROBATION
FIRST Offense within 10 years	The Court may order the defendant to serve between 48 hours to 6 months in jail.  The Court will impose a fine of $390.00 to $1,000.00 (plus additional “penalty assessments” which will substantially increase the fine) and order defendant to complete a 3-month, 6-month, or 9-month alcohol/drug treatment program.  The DMV will impose a 6-month driver’s license suspension, or 1-year suspension if you had a class A license.	96 hours to 6 months in jail, $390 to $1000 fine.  The DMV will impose a 6-month driver’s license suspension.
SECOND Offense within 10 years	Two options,both carrying a fine of $390 to $1000, plus either: (A) 10 days to 1 year in jail; or (B) 96 hours to 1 year in jail, an 18-month or 30-month alcohol/drug program.  The DMV will impose a 2-year driver’s license suspension.	90 days to 1 year in jail, and a $390 to $1000 fine.  The DMV will impose a 6-month driver’s license suspension.
THIRD Offense within 10 years	120 days to 1 year in jail, $390 to $1000 fine, a 3-year license revocation, and an 18-month alcohol/drug program if you have not completed one before.  The DMV will impose a 3-year driver’s license revocation.	120 days to 1 year in jail, and a $390 to $1000 fine.  The DMV will impose a 3-year license revocation.
FOURTH or Subsequent Offense within 10 years	180 days to 1 year in jail, $390 to $1000 fine, a 4 year license revocation, and an 18-month alcohol/drug program if you have not completed one before.  The DMV will impose a 4-year driver’s license revocation.	16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; and a $390 to $1000 fine.  The DMV will impose a 4-year license revocation.

• violates the admin per se laws (.01% for drivers under 21; .08% for drivers 21 or over)
• refuses a chemical test requested by an officer

• the officer had reasonable cause to believe the driver was driving a vehicle with an illegally high BAC
• the driver was lawfully arrested (or "lawfully detained" if age 21 or less)
• the driver was driving with a blood alcohol concentration of 0.08% or more
• the driver refused a chemical test or a preliminary alcohol screening (PAS) test
• the driver was informed that a refusal would result in suspension or revocation

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| DMV Penalties | DMV Process | Contacting the DMV | DMV Hearing Request
| The DMV Hearing |

DMV Penalties

In addition to sanctions imposed as a result of a court conviction, DUI offenders face administrative license actions (suspensions and revocations) by the DMV in a DMV Hearing. These actions are mandatory (the DMV must apply them on violators) and independent of any criminal penalties imposed by a court. The Table below summarizes license suspensions and revocations imposed on DUI drivers.

DMV License Suspensions and Revocations

*This punishment for a second "test refusal" also applies
if prior offenses were for DUI or were DUI-related.

 
DMV Process

The administrative license suspension process begins when a driver is cited for DUI. The driver license is taken on the spot by the arresting law enforcement officer if the driver:

• violates the civil per se laws (as shown in the Table above: .01% for drivers under 21; .08% for drivers 21 or over)
• refuses a chemical test requested by an officer

Licensed offenders are then served with a DMV order of suspension or revocation which serves as a 30-day license. The suspension or revocation takes effect in 30 days. Within 10 days from the citation date, drivers can request a DMV hearing.

DMV hearings are independent of criminal prosecutions. That is, proceedings and findings in one venue do not affect proceedings and findings in the other. For example, if a defendant's charges are dropped in court, this decision has no effect on the determination made at an DMV hearing. An important exception exists, however: a not guilty verdict in a criminal case overturns a DMV determination and license suspension.

Contacting the DMV

You Must Contact the DMV Within 10 Days of Your Arrest

You must contact the DMV within 10 days to protect your driving privileges. The temporary driver's license you were probably issued expires 30 days after your arrest. The purpose of contacting the DMV is twofold. First your driving privileges will not be suspended before a hearing is held regarding your arrest. Second, your driving privileges will not be suspended until the hearing is held and a decision rendered. By making this request you ensure that that your driving privilege will not be suspended until your case is heard.

You only have 10 days from the date of arrest to request a hearing before the DMV. If you do make the request then a stay of the driving license suspension will be issued. You will maintain full and complete driving privileges while the stay is in effect.

The information set out below supplies the Department of Motor Vehicles with the information necessary to obtain a hearing. You do not have to supply any other information at the time you make the request in order to receive a hearing date or the stay of your license suspension. Your hearing request however must be made within ten days of the Notice of Suspension. The ten days are calculated by counting the first day as the first day after your arrest. As an example, if you were arrested on the 15th of the month, start counting on the 16th of the month as the first day, and the tenth day would then be the 25th of the month.

DMV Hearing Request

You must provide the DMV, at the time you make your request for hearing, with the following information:

? Your name and driver's license number.

? The date of arrest or notice of suspension, which you will find on the Notice of Suspension itself. It will also contain information regarding the county where you were arrested and the agency that arrested you.

? Whether you submitted to a breath test or blood test.

? Request either an in person or a telephone hearing.

*It is always wise however to contact a DUI Defense Lawyer prior to requesting a hearing.

The DMV Hearing

At the DMV Hearing ,a hearing officer will be present. His or her function is to prosecute the case and make a final decision based on the evidence presented.

The issues involve:

• Determining who was driving the vehicle.
• Determining whether the police officer had "reasonable cause" to pull over and arrest the driver (a complicated legal question).
• Determining whether there was a lawful arrest (also a complicated legal question)
• Did the driver have a blood alcohol concentration of .08 or above (which is open to many challenges).

By completely examining your case and using various methods of "discovery" we are able to construct a defense to rebut the case against you. At the hearing we provide whatever testimony will help your case often including an expert in either blood or breath testing.

In many cases, there are questions on at least one of the issues the DMV must prove. The DMV must prove all issues affirmatively to suspend the driving privilege. A skilled attorney can help discover and factually develop the issues that can win your case at the DMV.

800-KICK DUI 

San Diego, California DUI Lawyer