Virtually every family has some biological tie to a member of one of the military branches. If you, or someone you know, is currently enlisted in a military branch, and have been arrested for a DUI, the results could be cumulative for you as you will suffer the standard penalties associated with a DUI from the Court, as well as penalties from your command. The attorneys at Los Angeles DUI Attorney Law Firm have been trained by one of the best defense attorneys in California. Our attorney has been defending DUI cases for nearly three decades, and has helped many members of our armed forces avoid the severe consequences associated with a DUI conviction while enlisted in the military.
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As an initial point, the Prosecution must prove every aspect of the DUI offense beyond a reasonable doubt before you can be convicted of a DUI, and the dual punishments come into effect. As such, a brief description of the defenses to a DUI are in order.
A key component of any DUI charges against you is the test the officer used to determine what your blood alcohol content (BAC) was at the time of the arrest. This can be a breathalyzer test (roadside, or at the station), or a blood test. Naturally, if the test itself is inadmissible, or flawed, it will be very difficult for the Prosecutor to prove an essential element of the crime; that you were under the influence at the time you were driving. It should be noted that California law requires the officer conducting the test to wait 15 minutes before performing a breathalyzer test on you; failure to comply will result in the test being thrown out. There are a number of ways to challenge the tests themselves, in addition to the 15 minute waiting period, which will be addressed below.
The breathalyzer test is administered by the officer who initiated the traffic stop on suspicion that you were driving under the influence. The breathalyzer itself will provide a measure of your BAC at the time by measuring the ratio of alcohol in connection with the amount of air exhaled; this is known as an “indirect value.” Since the test creates an “indirect value”, it is susceptible to attack on a number of grounds. It is somewhere between a blood test (which would actually measure the amount of alcohol in your blood), and an estimate. Suffice it to say, mistakes can happen. There are a vast number of factors that may alter the outcome of the breathalyzer test that was conducted on by the arresting officer.
- The overall temperature of your body at the time of the test.
- Your rate of respiration at the time of the test.
- The length of time that has passed between the point where you were pulled over on suspicion of driving under the influence, and when the breathalyzer test is actually administered.
- Whether or not you have recently used mouthwash, or other substances containing alcohol.
- Whether or not bile is present in your stomach as a result of regurgitation, or vomiting.
- A faulty breathalyzer device; either it hasn’t been calibrated properly, or it was malfunctioning. This is a very common defense, which skilled attorneys raise.
- The breathalyzer was functioning properly, but the officer conducting the test performed it improperly.
- Since the breathalyzer is simply applying a mathematical equation, which creates a ration of alcohol to blood content statistical arguments become valid. In this specific context, the equation (also known as the algorithm) is based off an assumption about the “average” individual. Not all people are identical in terms of what constitutes being “under the influence”, which makes the test itself highly speculative. Additionally, the factors listed above can have an impact on the value the breathalyzer comes up with. Having skill counsel on your team to fight the results of the test may be the single best way to avoid a conviction for DUI, and DUI related offenses.
The police departments around the country have come to realize that the breathalyzer test is inherently questionable. As a result, most officers administering this test typically require you to perform the test multiple times; this is an effort to strengthen the weight of the breathalyzer test. If an officer requests that you perform multiple tests, it is imperative that you do so. Failure to comply with that request may result in your driver’s license being suspended for one year. Perform the tests as requested, and contact an attorney at Los Angeles DUI Attorney Law Firm, and allow us to attempt to remove the test from evidence. If this happens, it will be very difficult for the Prosecutor to succeed on their case against you.
The law is unclear at this time, but in the event that a member of the armed forces is convicted of the DUI, they may be entitled to enrollment in a diversion program instead of the other more severe punishments allowable by law.
In late 2016, there were two California state Court of Appeals that rendered decisions as it relates to California Penal Code §1001.80, which is the military diversion statute, and it supersedes California Vehicle Code §23640. Since there is a conflict between the two Courts of Appeal, it is probable that the issue will be addressed by the California Supreme Court soon. As the situation stands, whether the Court you are in will apply Van Vleck or Hopkins will depend on the legal philosophy of the judge trying your case.
In Hopkins1, the Court determined that the statute governing military diversion, specifically, California Penal Code §1001.80, operated to repeal the prohibition imposed by California Vehicle Code §23640(a), which denies pretrial diversion programs for someone who is charged with a DUI. This is true at least to the extent that the Defendant meets the requirements for military diversion. On the other hand, the VanVleck2 Court found that the California Penal Code §1001.80 military diversion statute does not create an exception to the diversion program prohibition for people charged with driving under the influence. The Court ultimately concluded that nothing in the diversion statute suggested that the legislature intended to supersede the vehicle code prohibition. Because the statutes at issue form the basis of the determination of whether or not a military member who is charged with a DUI is eligible for the diversion program3, it is important to investigate the statutes further.
California Penal Code §1001.80 is triggered if someone is charged with the commission of a misdemeanor offense, and is, or war a member of the United States Military4. If this is found to be true, provided the Defendant waives their right to a speedy trial, and consents to a pre-trial diversion program, may participate in the program instead of other penalties. There are a few things to take away from this statute. First, for this statute to trigger you must have been charged with a misdemeanor DUI. As mentioned in other articles, depending on the presence of certain factors, the Prosecutor can choose to bring the charges against you as a felony. A short, but incomplete list of the things that could result in the charges being filed against you as a felony is set forth below:
- Your DUI resulted in the death, or physical injury of another person;
- In the past 10 years, you have been convicted of 3 or more DUIs, or “wet reckless” charges;
- There is at least one prior DUI conviction, where the DUI was charged as a felony; and
You should be aware, that numbers (1), (2), and (4) may be charged as misdemeanors, depending on the Prosecutor’s opinion; however this article will only deal with felony DUI charges.
- You are convicted of a DUI with aggravating factors, and the effect of those aggravating factors caused substantial harm.
As long as you are a member of the military, and you were charged with a misdemeanor offense, and the Court follows the Hopkins decision, you will be eligible for a pre-trial diversion program which could have the effect of removing the military consequences of your DUI.
3It should also be noted that participation in the diversion program can have the practical effect of having your DUI not appear on your record when you complete the program, which could help you to avoid the consequences to your military career.
4The statute also applies to other classes of people, but that is beyond the scope of this article.
IF I AM CONVICTED OF A DUI, WHAT PENALTIES WILL I FACE FROM THE COURT, AS WELL AS THE MILITARY?
If you are a member of the armed forces, and have been convicted of a DUI, the penalties you will face in addition to the standard penalties for a DUI will depend on your rank, and the branch of the military you belong too. You may face harsher penalties from the military if you also have prior drug or alcohol related convictions. Penalties include but are not limited to:
- A dishonorable discharge
- The military may remove your right to a pension through your military service.
- You may be demoted, and receive a pay cut.
- You may lose security clearances you have acquired over the course of your service in the military.
- Lack of access to portions of base.
- An evaluation, and treatment for substance abuse
- A performance report that is not favorable
It is critical to be aware that if you are convicted of a second or third DUI, it is probable that you will be discharged from the armed forces. Exceptions can be made in certain circumstances if you can prove that you are a valuable asset to the armed services; this is a difficult burden to meet.
PENALTIES FROM CALIFORNIA COURT
After you receive your punishment from the military, you will also have to face the punishments imposed by the Court itself. These punishments can include
- Community service
- Education classes or drugs and/or alcohol
- Suspension of your driver’s license
- Five years or more of probation
- The court may mandate the installation of an Ignition Interlock Device
If you are in the military, and have been charged with a DUI, contact an attorney from Los Angeles DUI Attorney Law Firm immediately, so we can begin building a strong defense for your case by attacking the tests the arresting officer utilized to determine your BAC. Our skilled attorneys will fight tooth and nail to beat the DUI against you, enroll you in pre-trial diversion program, or in the event of a conviction, minimal penalties from the military and state courts.
Contact our office today at 424-285-5400 for a FREE consultation with our DUI defense attorney.