What Happens If You Are Caught Driving After A DUI?

When a person gets caught driving with a suspended drivers license after a DUI arrest, they are normally arrested and charged with a violation of vehicle code section 14601.2.  Here is what you need to know if it happens to you.

After a person is arrested for a driving under the influence offense in California, the arresting officer physically takes the drivers license from the arrestee, and gives them a paper “notice of suspension” of the license.

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10 days later, the Department of Motor Vehicles suspends the drivers license unless the driver gets a stay of the suspension.  This means that almost all DUI arestees end up with a suspended drivers license and they are no longer allowed to drive.

Unfortunately for some, they get caught driving anyway and arrested. Then, these unlucky souls have to go to court to deal with 2 problems:

1) a misdemeanor charge of Vehicle Code section 14601.2; and possibly

2) a probation violation on the DUI case for the misdemeanor arrest.

Dealing with the VC 14601.2 Charge.

Vehicle Code section 14601.2 is actually much nastier than the standard Driving on a Suspended License (VC14601.1).  Because a 14601.2 is alcohol related, the penalties are a lot stiffer.

Vehicle Code section 14601.2 has a penalty range of 10 days to 1 year in the county jail plus fines that can total $2000. It is always a misdemeanor and cannot be reduced to an infraction.

The judge may also decide to require you to install and pay for a breathalyzer machine for the ignition on any car that you own.

Often the best way to avoid jail on a VC 14601.2 charge is to get a valid drivers license (by pleading not guilty and delaying the case until you can complete the DMV requirements) and then using the valid license to try to negotiate a reduction to a Vehicle Code section 14601.5 charge with no jail time.

Often it takes some work to get this point.  I have had many, many cases where the prosecutors would only offer a VC 14601.5 with 10 days jail, and it was not until the very last minute that I was able to get a 14601.5 with no jail or better offer.

Some prosecutors in some courts will reduce it to a less serious VC12500a misdemeanor, but it is super rare in cases where the drivers license was suspended due to an alcohol arrest.  Courts generally have little tollerance for that sort of case.

Getting a reduction in the charge is not automatic when you get your drivers license back, but it will usually help with negotiations to avoid a jury trial - which is a waste of the courts time and resources.

Persons charged with a VC14601.2 have a right to a jury trial, but most of the time it would be a waste of time because the license was suspended.  But possible defenses include: the driver had reason to believe it was a valid license; the arrest was illegal because the cop had no justification for the stop, etc.

If you have prior 14601 convictions - even one-  the penalty is likely to be 30 days in jail (just had that result in Santa Clara on a bad case).

If a defendant cannot get their drivers license back, or if they plead guilty on the first court date, the sentence is likely to be 10 days in county jail and a fine.  Not all courts will require the ignition control device, but some will.  Technically, if you plead guilty the judge can sentence a 14601.2 defendant to a year in county jail.  Because of this danger, it is always good to ask for an indicated sentence before pleading guilty.  That way the judge will tell you want is going to happen before you give up your right to a jury trial.

Dealing With The Probation Violation.

Most people who get a first offense DUI in Californina are on probation for 3 years, any any arrest violates that probation.  Once probation is violated, the court can start over on the DUI and re-sentence the Defendant on the original DUI Charge (Vehicle Code section 23152(a) and 23152 (b)).  This probation violation part of the problem is completely separate from the Misdemeanor 14601.2 case, and it is important to not get them confused.

Normally, the probation violation will be heard on a different date than the misdemeanor case. Defendants accused of a probation violation have a right to a hearing, but the burden of proof is “proponderance of the evidence”, not “proof beyond a reasonable doubt”.  The reason for the lessor burden of prood is that the defendant was already found guilty, and given the break of probation.

Usually it is best to try to negotiate a second chance in the form of Reinstatement of probation on teh same terms and conditions.”

Most judges will give a person a second chance, but some judges will take all DUI Probation Violation people into custody.  30 days is a common sentence in some courtrooms for violation of a DUI probation.  But it can be as much as 1 year.

Some defendants will get lucky and have their probation in a different court than the court handling the VC 14601.2 case.  If this happens, there is a decent chance the probation court will never find out, and no probation violation will come about.  But I would not count on this outcome.  Computers are getting better, not worse.

The best advice I can give a person who gets arrested for driving after a DUI is to get an Attorney who has handled the cases before to do the work.  Then, work on getting your drivers license back and give it to the attorney to use in plea negotiations.

Considering the cost of a bad outcome that results in jail, it is worth the money to get professional help. The judge is not going to help you, and the prosecutor is not going to talk to you alone.

-Christopher Dort, Esq.

cdort@dortlaw.com

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