By Stephen P. Levine
When driving home from Disneyland, Pier 39, or any other tourist attraction in California, a New Yorker arrested for DUI could face serious consequences. Although California courts do not have the ability to directly suspend your New York driver’s license, a DUI conviction will still carry serious consequences that will probably include the loss of your New York driving privileges. The prospect of fighting a DUI conviction on the opposite side of the country can be daunting. This article will highlight the potential complications and the differences in the offenses and penalties.
The Process of Out-of-State DUI Charges is Complex
Generally, a New York resident who receives a DUI in the Golden State faces the same penalties as a California resident, but the process often will be more complicated. Individuals arrested for DUI in California will have two components to their case, which include protecting their driving privileges against the DMV and fighting the criminal charge in court. When a New York driver is arrested for DUI, police officers cannot confiscate the out-of-state driver’s license like they would a California license. However, the officer will advise the out-of-state drivers that their privileges to operate a motor vehicle in California will be suspended in 30 days.
Like a Californian, the New York visitor must request a hearing to challenge the efforts of the DMV to take administrative action against his or her driving privileges.
Important: Time if of the essence in submitting this request for a hearing; drivers have a mere 10-day window from the time of the charge. If no hearing is scheduled or the accused driver does not prevail at the hearing, his or her license will be suspended after 30 days. If a hearing is scheduled, the out-of-state driver can continue to operate a motor vehicle in California until the hearing, which could take several months to schedule.
The DMV Hearing Regarding Administrative Suspension of your Driver’s License
As a New York driver, the issue in your DMV hearing will be whether your privilege to operate a motor vehicle in California will be suspended. You face the prospect of administrative suspension if you were lawfully arrested, you were served properly with the notice of suspension, and you either refused to take a breath test or blew over the legal limit of .08 blood alcohol concentration (BAC), which is the legal limit in both New York and California.
Out-of-State Drivers Have a More Urgent Need for Representation
While any driver facing a DMV hearing benefits from legal representation, an out-of-state driver has an even more urgent need to be represented. A driver facing a DMV hearing does not necessarily need to return to the state for the hearing because a telephonic appearance is acceptable. If you elect to appear telephonically, you might want to retain an experienced California DUI defense lawyer to appear who can get a preview of the case against you, challenge evidence supporting a driver’s license suspension, and ensure your rights are protected. Unless you prevail at the hearing, the California DMV will suspend your privileges to operate a motor vehicle within California for a minimum of four months, if you are 21 years of age or older at the time of the arrest.
Will the California DMV Notify the New York DMV About Your DUI in California?
Although the California DMV cannot take direct action against your New York driver’s license, they will likely notify your home state. States cooperate in sharing this information under the Interstate Driver’s License Compact (IDLC). Almost every state is a member of the IDLC, and both New York and California are member states.
This notice could lead to the New York DMV imposing its own penalties. If you are determined to have violated California’s implied consent law by refusing to take a chemical test, your home state DMV may suspend or revoke your license for at least one year. Any suspension or revocation in California or in your home state will be longer if other aggravating factors apply, such as prior offenses or a high blood alcohol level.
California Criminal Case for DUI Involving New York Resident
Although defending against California DUI charges can be difficult for a New York resident who rarely visits the state, you can mitigate the logistical issues if you retain a local DUI lawyer. If you are charged with a misdemeanor, your attorney can appear in your place at the pre-trial hearings to obtain evidence, engage in plea negotiations, and protect your rights. If your California attorney negotiates a plea agreement, you might need to appear although some judges will permit the attorney to handle the post-plea agreement appearance under certain conditions.
Penalties for a DUI Conviction in California
California has similar laws, but there are distinct differences. While a complete listing of all drug and alcohol-related driving offenses are beyond the scope of this article, we have listed California offenses comparable to those above.
Driving Under the Influence (DUI): California does not treat impaired driving as a lesser offense to DUI like in New York. Whether you have a BAC of at least .08 percent or your driving abilities are impaired, you will be charged with DUI. While you may be charged with a more serious offense depending on the circumstances based on your BAC level, a driver with a BAC of .08 will generally be subject to the same punishment as a driver who is charged for impaired driving ability. A first offense will result in the exposure of up to six-months in county jail, a fine of $390 to $1000, and a six- to 10-month driver’s license suspension.
Driving Under the Influence of Drugs (DUID): This offense involves operating a motor vehicle while under any substance (other than alcohol) that impacts the central nervous system, muscles, or brain. There is no “per se” version of the offense, which refers to violations based on the amount of a substance in your system irrespective of whether you were able to drive properly. Although DUID can be charged as a felony depending on your prior criminal record or your involvement in an accident that causes injury, the penalties generally are the same as California DUI penalties involving alcohol.
California Court DUI Prosecutions
Generally, New Yorkers will need a local attorney to handle the criminal case, which will be conducted in the California Superior Court. Although you cannot appear telephonically at your criminal hearing, your local DUI defense attorney might be able to appear for you at all hearings except a trial. While the above discussion highlighted potential incarceration, fines, and driver’s license consequences of a DUI, New Yorkers convicted of an alcohol or drug-related driving offense will find other aspects of the punishment complicated.
Depending on the specific circumstances of the California DUI case, you might be required to participate in an approved California DUI program, MADD Victim Impact Panel, and/or Hospital and Morgue Program. Because the DUI program is a class that takes months to complete, the judge usually can be persuaded to allow you to take a comparable online or local class. Many states also have MADD Victim Impact Panels and Hospital and Morgue Programs, so a skilled California DUI defense attorney often can negotiate a resolution of your case that will allow you to satisfy the terms and conditions of probation without returning to the state. However, you might need the attorney to negotiate an alternative like attendance at a certain number of AA meetings if you do not have access to a comparable program in your area.
ABOUT THE AUTHOR
Stephen P. Levine is a San Bernardino attorney and a partner at Milligan, Beswick, Levine & Knox LLP. With a strong background as a public defender and an aggressive litigator, Mr. Levine has built a solid reputation over almost four decades of legal practice. He is focused on providing representation to clients facing family law issues, as well as representing clients charged with criminal offenses. As a partner at Milligan, Beswick, Levine & Knox LLP, Mr. Levine has also helped shape our firm into one of the most respected and trusted criminal defense, personal injury, and family law firms in the greater San Bernardino area.