Being a member of the military binds you to a strict code of conduct. Military service requires a lot of discipline and dedication, and you may fall short sometimes. Experiences in the military can lead to depression and post-traumatic disorder, which may drive you into drinking to forget your worries. If you are a member of the military and are arrested for a DUI, you face a number of consequences. The San Jose DUI Attorney Law Firm explains what you may expect once arrested for a DUI, the penalties as well as the actions you could take to protect yourself.
Military DUI Overview
Being a member of the military comes with many benefits compared to most careers in the US. For most military members, the goal is to achieve an honorable discharge, both for your reputation and monetary benefits you get after being in the military. Due to the wide range of benefits, the military has strict codes of conduct. Active service members are expected to be at the forefront in upholding the rules of the state and the country; therefore, offenses such as a DUI are frowned upon.
Military DUI refers to drunk driving offenses committed by active members of the US military, whether on or off a military facility. Civilians working, visiting someone or living on a military base may be guilty of a federal crime if they commit a DUI offense while on a military facility. The federal courts will refer to state laws when prosecuting and convicting you, as there are currently no federal laws that apply to civilians.
When you are a member of the military, both civilian and military laws apply to you. The implication is that you will suffer stiffer consequences for committing a DUI. Some of the consequences include dishonorable discharge, reduced pay, hard labor, and criminal penalties. As a military member, you have certain rights, such as the right to counsel and the right against self-incrimination.
A DUI conviction can change your life dramatically and may leave you with a damaged reputation. In case you are arrested, hire a DUI attorney as soon as possible so that you can begin the defense process.
You should note that you are not exempt from administrative penalties from the DMV. Your license is confiscated as soon as you are arrested for DUI. Depending on the circumstances of your case, the court may allow you to go through military diversion instead of incarceration.
Some of the consequences of a military discharge such as dishonorable discharge continue to affect you throughout your life. For instance, your reputation is damaged among your peers. They will not desire to be associated with you. In addition, you are ineligible for re-enlistment in any branch of the US military.
A dishonorable discharge removes you from receiving veteran’s benefits at the end of your career. It will also impact negatively on your career pursuits as a civilian as it appears on background checks. This could mean that it will be hard to acquire professional licenses, formal employment, or even starting your venture.
On Base Military DUI
The military DUI laws have a zero tolerance policy on drunk driving on base. This means that you are not supposed to drive with a detectable amount of alcohol in your body. The laws prohibiting on base military DUI are in the Uniform Code of Military Justice Section 911 article 111, which states that a person shall not operate a vehicle or aircraft recklessly while impaired by a substance or with an alcohol concentration that is above the legal limit for California (.08%) and sometimes above .01%.
When you are charged with an on base DUI, you may face a court martial, non-judicial punishment or administrative penalties by the military.
The court martial is the equivalent of a civilian criminal court. It is, however, stricter and plays a huge role in determining your career path after a DUI arrest. Usually, the military assigns you with a lawyer to represent you during the proceedings. You are allowed to hire a civilian DUI lawyer who can work independently or together with the assigned lawyer.
The lawyer the court martial appoints on your behalf is the equivalent of a public defender in the civilian court system; therefore, he or she may be handling more cases and lack enough time to dedicate to your case. With a private DUI lawyer, you are assured of a better defense.
In addition, the private lawyer has no ties to the military, making them more open to fighting your charges and criticizing misconduct while defending you – a military defense lawyer will probably shy away from stepping on the toes of the senior members of the military when defending you.
Court Martial Proceedings
The court martial procedure begins with the initiation of the charges you are facing. The commanding officer receives the matter of your violation of the UCMJ. If he or she believes that you are in violation of the said rules, you will be apprehended and confined for a maximum of 72 hours. The commanding officer will inform you about the reason for your confinement. Failure to inform you of the reason for apprehension may create a legal defense for misconduct and illegal confinement.
The commanding officer makes the decision of whether to refer you to the court martial, issue non-judicial punishment, or dismiss your charges. If the commanding officer decides to refer you to the court martial, he or she should so within 120 days. A convening authority such as the President, or the Secretary of Defense may also convene a court martial instead of the commanding officer.
You may be referred to one of the three types of court martial:
- Summary court martial, which resolves minor cases of misconduct by military members.
- Special court martial, which is the intermediate court. The sentencing under this type of court could include a reduction in rank, confinement for a period not exceeding twelve months and six-month pay forfeiture.
- General court martial, which is the most serious court martial, and handles serious offenses and often imposes strict penalties. Sentencing under this court can include dishonorable discharge, confinement, dismissal, reduction in rank, and death.
The charges against you will be read in the presence of your commanding officer and a neutral third party (preferring the charges).
After your charges are read to you, you will be required to enter a plea. Before accepting the plea, the military judge will ascertain that you understand the charges you are facing and the consequences for the charges. If you take a guilty plea, and you understand the charges and consequences, the court martial will sentence you. The case will proceed to trial if you take a not-guilty plea.
Your defense lawyer may conduct pretrial agreements with the convening authority to have your charges or sentencing reduced in exchange for a guilty plea. You may plead guilty to some or all of the charges against you. The convening authority in exchange may reduce the charges, withdraw some charges or fail to introduce some evidence.
The court may engage in pretrial hearings where both sides present evidence, witnesses and arguments. The pretrial hearing takes place in the presence of the trial panel (court-martial members). The panel consists of peers of the accused selected from the same command. Before the members of the panel are appointed, they will go through questioning by the prosecution and defense to determine that they are impartial.
During the trial, the trial counsel will present the evidence and witnesses against the accused. Both the prosecution and defense may introduce evidence at any point in the case proceedings. Once each side presents witnesses and cross-examines them, the defense and trial counsel will make their closing arguments, which instruct the panel about the legal issues and leaves them to make deliberations on the guilt or innocence of the accused.
Like in civilian courts, the accused is innocent until proven guilty, and the trial counsel has to prove the guilt of the accused, beyond a reasonable doubt.
After the panel deliberates, they will present their verdict through a secret written ballot. The court martial requires that three-fourths of the panel agree on whether to convict or acquit. If the panel votes to convict, the sentencing begins immediately. The trial counsel and the defense should present their sentencing evidence, which covers:
- The impact of the crime on the accused and the unit
- The performance history of the accused
- Mitigating and extenuating circumstances
- An unsworn statement from the accused
The panel may put forth proposals of sentencing, and each proposal is voted for through a secret ballot. The sentencing options in a court martial include dishonorable discharge, demotion, pay forfeiture, confinement, and separation from the service.
If you are not contented with the sentencing, you are allowed to appeal the decision. The court automatically enters an appeal for sentencing such as death, a bad conduct discharge, dismissal, and confinement. If the sentencing does not include the aforementioned scenario, you should make the appeal, which the court decides to listen to or not.
If you commit a minor DUI offense, the commanding officer has the authority to determine your guilt or innocence. He or she will then meter out the most appropriate punishment.
Off Base Military DUI
The court treats an off base DUI as a civilian DUI. You will face the criminal and administrative penalties covered under California DUI laws. In addition, the Uniformed Code of Military Justice may impose punitive penalties. However, the Double Jeopardy Clause provides constitutional protection to defendants from facing two charges for the same crime.
In case you do not face charges for civilian DUI, then the military still has the right to prosecute you. If the civilian criminal justice system convicts you, then the military can only impose administrative penalties.
Under the DUI laws of California, it is illegal to drive with a BAC at or in excess of .08%. The penalties for a California DUI depend on the circumstances of the crimes and whether you have prior DUI or wet reckless convictions.
For the first to third DUI offenses within ten years of the first offense, you will face misdemeanor charges with the following consequences:
- Misdemeanor probation
- Incarceration in a county jail for a minimum of six months and a maximum of one year
- Fines of between $390 and $1000
- License suspension for between six months and three years
The fourth consecutive DUI is charged as a felony, as is a DUI with injury or death. The penalties for a felony DUI include the following:
- Up to three years in state prison
- Fines ranging from $390 to $1000. The fine may increase to $5000 if an injury occurs
- License suspension for up to four years
- Formal probation
When facing an off-base DUI, you need the services of a DUI lawyer who has dealt with similar cases.
The military and the civilian court may have to agree on how you will be prosecuted if there is a clash is a jurisdiction.
Consequences of Military DUI
The consequences of a military DUI depend on the circumstances of the crime, past DUI convictions, and the extent of damage of property, injuries, or death in case the DUI resulted in an accident.
Military DUI has severe consequences, as follows:
- Criminal penalties including jail time, fines or community service
- The DMV will suspend your license. Whether you are arrested on or off base, the DMV will suspend your license within thirty days of the arrest. To restore your driving rights, you have to arrange a DMV hearing within ten days of your arrest. In addition, if you are found guilty of a DUI in civilian court, your license will be suspended for a period between six months and five years, depending on the circumstances of the case.
- Mandatory installation of an IID, which allows you to restore your driving rights after a license suspension.
- Increased insurance premiums: insurance providers consider DUI convicts to be risky since the likelihood of them causing an accident is high
- Mandatory attendance of a DUI program as part of your sentencing in a civilian court. After the program, you are required to submit a certificate of completion to ascertain that you have completed the program. Your commander may also require that you attend a substance abuse program.
- Judicial punishment, which is issued at the court-martial. It may include punitive actions such as reduction of grade, pay reduction, confinement or dismissal
- Dishonorable discharge
- Non-judicial punishment, which your commanding officer will impose as a disciplinary measure. Some of the actions may include an official reprimand, forfeiture of pay, reduction of rank, extra duty, hard labor, and restriction to limits. Once your rank is reduced, you can never qualify for a promotion.
- You will also be issued with a letter of reprimand, which remains in your record. The letter contains the details of the offense and the potential consequences
- Revocation of pass privileges which prevent you from going on leave
- Corrective training where your commander believes it will be helpful
- Bar to reenlistment which prevents you from enlistment into the military after the completion of your current service
Military Diversion Program
Being in the military can expose you to certain forms of trauma, physically and psychologically. Such trauma can result in alcohol or drug abuse, and charges for drunk driving. California PC 1001.8 recognized the stress military members and veterans have been exposed to during their service and give them a chance for rehabilitation as an alternative to a criminal conviction.
The conditions for a pretrial military diversion program include being a victim of sexual trauma, traumatic brain injury, substance abuse, mental health problems, or PTSD that are directly related to your military career.
You can enroll in the program for a maximum of two years. Before you are allowed into the program, you must meet some eligibility standards, which include:
- You must be facing misdemeanor charges
- You are a current or former member of the military
- You are suffering from sexual trauma, mental health issues, PTSD, traumatic brain injury or substance abuse directly connected to your service at the military
- You waive your rights to a speedy trial
- You have not attended a similar program in the past
When you complete the program, your charges are dismissed. The charges against you may be reinstated if you fail to complete the program or the court determines that you are not benefiting.
The Veteran Treatment Court is an alternative sentencing method open to active and veteran members of the military. The eligibility standards that qualify one for a veteran’s court include:
- You are a veteran
- You are facing felony or misdemeanor charges
- You are a legal citizen of the US
- You have a substance abuse disorder, PTSD, depression or traumatic brain injury
- You are willing to participate in the program
The veteran’s treatment program is a post plea program, meaning that you have to enter a plea for you to qualify. The program lasts for at least 18 months and can extend for up to five years. Once you complete the program, the judge will dismiss the case.
The veteran’s court provides active and veteran members of the military with an avenue for softening the blow of a DUI charge. In addition to the dismissal of your case, you retain the right to receiving veteran benefits for being in the military.
The treatment program is tailored to the needs and circumstances of each veteran to give you a chance to adapt to civilian life. Intensive rehabilitation, random drug testing, and multiple court attendance characterize the program. Commitment to the program reflects positively on you and increases the chances that the felony charges may be reduced to a misdemeanor.
Possible Defenses for Military DUI
Charges for DUI on members of the military come with severe consequences on their military careers and future benefits. To ensure that such a charge does not ruin your life, your lawyer can use the following defenses:
1. Inaccurate Sobriety Tests
Sobriety tests can produce inaccurate results that may lead to false assumptions of intoxication. You may fail a sobriety test due to medical conditions, fatigue, or another reason not related to intoxication; in addition, the tests used in testing the BAC level are subject to error. These errors may arise from the breakdown of the equipment, lack of maintenance, or inexperience of the officer administering the test. Breath testing equipment may also detect mouth alcohol, which contributes to false readings.
When your lawyer disputes the accuracy of the results, he or she is disputing the foundation upon which the DUI case is built. Therefore, it diminishes the credibility of the prosecution’s case and may lead to dismissal of charges.
2. Lack of Probable Cause
Before you are stopped, the arresting officer has to have probable cause. They must explain why they thought it was OK to stop you. If the officer has no probable cause, then the arrest is illegal, and the charges cannot be based on an illegal arrest. Even after he or she stops you, the officer has to have probable cause to continue investigating you for a DUI.
3. The Arresting Officer Violated Your Rights
Some of the rights often violated by officers when arresting one for a DUI include failure to read the Miranda rights, discrimination, and unnecessary or prolonged detention. If any of these violations occur during your arrest, your lawyer can use them as a defense to have your case dismissed or evidence suppressed.
4. Poor Storage of Samples
The state has laws that prescribe the most preferable condition for collection, storage, and analysis of a blood sample used for a DUI. If any of these procedures are ignored, then your lawyer has solid ground to challenge the results.
Find a San Jose Military DUI Attorney Near Me
Defending charges of a military DUI is a positive step towards protecting your career. If you are arrested for a DUI, contact an attorney as soon as possible. The attorneys at the San Jose DUI Law Firm understand the gravity of a military DUI. Therefore, they begin the investigation process as soon as you contact them to improve the chances of a positive outcome for you. In addition to the investigation, the attorneys inform you about your rights and the steps you can take to protect yourself from adverse actions. If you are facing charges for a military DUI in a civilian or military court, contact us at 408-777-6630 for a free consultation and evaluation of your case.