No one expects to be pulled and arrested for driving under the influence. It is a more shocking and unpleasant experience if you get an out-of-state DUI arrest. A conviction will attract jail time, potential suspension of your driver's license, and fines. On top of that, you are likely to face these consequences in your home state. You can get in touch with us at the San Jose DUI Attorney Law Firm if you are arrested in the San Jose area and need legal representation.

An Overview of Out-of-State DUI Arrest

Whether you are in California to study or live, or you live here permanently but never obtained a California driver's license, as a motorist with an out-of-state license, the state requires that you adhere to California's drunk driving laws and regulations. Therefore, if you are operating your motor vehicle with a BAC (blood alcohol concentration) of 0.08 percent or higher, the police will put you into custody. They will also notify you that your driving privileges will be withdrawn in thirty days.

We will discuss the two proceedings that come with an out-of-state DUI arrest further below. They include a criminal court case and a Department of Motor Vehicles hearing.

Department of Motor Vehicles Hearing Process and Out-of-State DUI

After your license is withdrawn, the California Department of Motor Vehicles is notified immediately. You have ten (10) days from the day you were arrested to request a DMV hearing. The purpose of the hearing is to challenge the license suspension.

If you fail to request the hearing within ten days, you lose the entitlement to request the hearing. In that case, your license will be suspended automatically after thirty days.

Requesting the hearing postpones the license suspension. The suspension won't become effective until and unless you don't prevail at the hearing. It is not a must that a defendant attends the DMV hearing; a DUI defense attorney can show up on their behalf. Also, the DMV hearing can be held through the phone.

To withdraw your driving privileges, the arresting police officer should establish the following elements:

  • They reasonably thought that the defendant was driving under the influence
  • The defendant was legally arrested
  • The defendant's BAC was greater 0.08 percent at the time of the arrest

Although the DMV hearing is not as formal as a criminal case processing, a lawyer can represent you. Any qualified DUI lawyer knows the best way to present the case as well as ensuring you win at the DMV hearing and evade the suspension of your license.

If you lose in the hearing, your driver's license will be withdrawn in California. The suspension duration varies depending mainly on the number of your previous DUI convictions. A first-time California DUI offense is punishable by a 4-month suspension. The suspension can be changed to a restricted driver's license after thirty days. Nonetheless, the DMV may permit you to continue enjoying the driving privilege provided you install an ignition interlock device (IID) in your car.

How Your DUI Defense Attorney Can Help You Prevail in the DMV Hearing

Below are common valid legal defenses that an attorney could present on the defendant's behalf at the DMV hearing:

You were Detained at an Unlawful DUI Checkpoint

If a defendant is arrested at a DUI checkpoint that doesn't conform to the legal requirement under DUI laws, the arrest is unlawful. Even if you were drunk driving, an illegal arrest will supersede that fact, and the hearing officer will set aside the suspension.

You Weren't Driving

In case the arresting police officer didn't personally see you operate your car, and

  • No proof can prove that you were operating a motor vehicle, or
  • The Department of Motor Vehicles doesn't summon any witness who saw you,

Then the DMV officer should reverse the suspension founded on no driving legal defense.

For instance, you have been taking alcohol, and when you get to your motor vehicle, you realize that you shouldn't drive. As a result, you decide to sleep in the car. A police officer approaches you to check if you are okay and smells the alcohol on you and puts you in custody for drunk driving. In this case, you cannot lose your license because you were not driving the car while drunk.

The Arresting Officer didn't have a Probable Cause to Arrest you for Drunk Driving

If the police didn't have probable cause to arrest you for drunk driving, the California Department of Motor Vehicles hearing officer should reverse your driver's license suspension. A defense attorney could highlight either of the below explanations why the police did not have probable cause to put a defendant into custody:

  • The defendant was complying to traffic laws and pulled over because they were a victim of racial profiling. Racial profiling is stopping a driver because of their nationality, ethnicity, or race
  • The defendant got involved in a car accident but didn't begin taking alcohol until they got home

The Police Did Not Tell You of the Outcome of Refusing to Take a Chemical Test

If you fail to take a chemical test, the arresting officer should tell you that the driving privilege will be withdrawn for a year. The admonition is written, and the police should read it word for word. Otherwise, you will win the DMV hearing.

Since police make several DUI arrests, more often than not, they go through the motions. In case they:

  • Forget to give the admonition,
  • Intentionally decide not to issue it,
  • Tell you that refusal could cause a compulsory suspension rather than telling you that your refusal will cause a suspension, or
  • Recite their understanding of the admonition rather than reading it hence confusing you such that you don't know what to do,

the hearing officer will set aside your driver's license.

You Didn't Refuse to Take a Breath, Blood, or Urine Test

This is another valid legal defense your attorney could use. This could be valid if breath samples weren't adequate, you weren't offered urine or blood test as alternatives, or you are inquiring more about the process, and the police misinterpreted your questions as resentment and thought you were refusing to submit to the test. 

There are Errors with the Arresting Officer's Paperwork

When a police officer arrests you, they should fill out certain compulsory paperwork and reports. If they forget to sign the paperwork, fail to report the blood alcohol concentration results, write the wrong date, or write incorrect BAC results, these flaws could lead to winning your California DMV hearing.

The Breath Testing Gadget wasn't Functioning or Calibrated Well

According to California's Title 17 regulations, a breath-testing instrument should undergo an accuracy check after every ten days or one hundred and fifty blows. In case you give your breath sample on a gadget that does not comply with these standards, the BAC measurement could be wrong.

Likewise, if the gadget was not functioning correctly, that too may give wrong high BAC results, and the hearing officer should reverse the suspension.

The Relationship Between an Out-of-State DUI Arrest and Interstate Drivers License Compact (DLC)

Having your driver's license suspended in California will most probably affect your driver's license in your home state. All states apart from Michigan, Massachusetts, Tennessee, Wisconsin, and Georgia are members of Interstate Drivers License Compact (IDLC).

According to IDLC, all drivers in the United States have one driver's license and driving record.  Members of the Interstate Drivers License Compact account all driving arrests to one another. Consequently, your state will take action against your license if arrested for DUI.

The seriousness and the type of punishment you receive will depend primarily on your home state as follows:

  • Some states will punish you as long as the California Department of Motor Vehicles withdraws the driving privileges
  • Some states will punish you if you get convicted
  • In other states, a defendant faces DMV DUI consequences at home state as if they have been found guilty of drunk driving there
  • In other states, you will only receive punishment if your state has similar or same drunk driving statutes as California

Criminal Court Proceeding

Please note that a DUI criminal court proceeding is different from the DMV hearing. That means irrespective of whether a defendant fails to request the hearing, loses, or even wins their Department of Motor Vehicles hearing; they will still have a criminal charge.

The main variation between these proceedings is the fact that a court proceeding can't happen over the phone. Nevertheless, subject to the case facts, a defense attorney can show up on the accused's behalf.

If charged with a California misdemeanor and have hired a lawyer, you could waive your entitlement to appear at the court while the attorney acquires evidence, appears in court on your behalf, and negotiates with the prosecutor.

If you decide to proceed to trial, it's within the judge's discretion to decide if you should be present. Nevertheless, you should attend the trial. The odds are, the judge will sentence you if they have never seen or met you.

If you have the DUI charges dismissed or reduced, your state may not take action. However, if found guilty, you will serve your sentence in California. Your driver's license will also be suspended. Additionally, your state will most likely enact the same limitations on your license when you go back home.

If a defendant's state suspends their driver's license, the action cannot be removed until the defendant meets their California DUI responsibility. That means the defendant should complete all the probation requirements ordered by a court of law like enrolling in a California DUI program and paying fines.

After fulfilling all the obligations and your suspension period has ended, you should contact both the DMV and the court to restore the California driver's license. This could make your state lift the limitations on your license.

It is worth noting that if you drive a car while your driving privilege is withdrawn, you violate the driving on a suspended license law per California Vehicle Code Section 14601 VC. These offenses are priorable, and penalties increase automatically with every conviction.

Also, the state you live in will be informed about the conviction under the Interstate Drivers License Compact.

Driver License Agreement (DLA)

The DLA will soon substitute the Interstate Drivers License Compact. Once active, the Driver License Agreement will enact more strict regulations on member states, hence more stringent laws on non-state resident offenders.

The DLA will remove the state differences between crimes. Under the DLC, a state does not have to impose an out-of-state conviction, or license suspension provided the state does not have the same statute.

The concept behind this is that being detained for drunk driving in any state may have a substantial effect on your license in your state. Due to both IDLC and DLA, winning in a California drunk driving charge is as essential for a non-resident as it's for any California resident.

What Are The Penalties for A California DUI for a Non-resident Motorist?

Even though you are a non-resident motorist, a DUI conviction in California carries severe penalties like incarceration, attending an alcohol education program, hefty fines, and performing community service. These penalties can also follow you in your state. The complexity of dealing with legal issues and the seriousness of the penalties make it paramount to engage an experienced DUI defense attorney.

For specific penalties, here is a detailed guide with information on how a DUI arrest will affect you as an out-of-state motorist:

First-time DUI Offense

A first-time DUI offense carries the following penalties:

  • Three to five years of summary probation
  • Three months in DUI school
  • A maximum of two thousand dollars in fines and penalty assessment
  • Work release
  • A maximum of six months in jail

What are the Penalties for a Second Out-Of-State DUI in San Jose?

Drunk driving is a priorable offense, and penalties increase with every DUI conviction within ten years. Generally, a second DUI conviction is punished by the following penalties:

  • Typically, three years of informal probation
  • Up to two thousand dollars in penalty assessment and fines
  • At least ninety-six days and a maximum of a year in county jail
  • Completion of an eighteen to thirty-month alcohol education program

Third DUI Offense

When you commit an out-of-state DUI offense for the third time, the court will impose the following penalties:

  • Three to five years of summary probation
  • A minimum of one hundred and twenty days to a maximum of a year in jail
  • A maximum of three thousand dollars in penalty assessments and fines
  • Enrolling in a thirty-month DUI school

How a 1650 Waiver Can Help You Complete California DUI School Out-Of-State

A 1650 waiver is an appeal made by non-California residents who have been found guilty of drunk driving in California to the Department of Motor Vehicles, requesting the DUI program requirement to be waived.

This requirement requires a motorist found guilty of California wet reckless or DUI offense like:

  • Driving under the influence (VC 23152a),
  • Driving with a blood alcohol concentration above 0.08 percent (VC 23152b),
  • Underage DUI with a BAC above 0.05 percent (VC 23140), or
  • Wet reckless (VC 23103.5),

to enroll in an in-person California alcohol education program.

It is worth noting that the waiver is issued only once in a defendant's lifetime.

One of the things that will happen following an arrest is that your driver's license will be withdrawn until you complete all California DUI conviction requirements like the DUI program.

An alcohol education program offered through the internet doesn't satisfy California's DUI school requirements. The program consists of both education and counseling. More often than not, counseling is offered in group settings. Your DUI school should issue the DMV and the court with a certificate of completion when you complete the program.

Typically, it is challenging for you to finish the DMV DUI school because you are out of California and will be required to travel to and fro to complete the program. California realized the burden, and as a result, introduced the 1650 waiver.

The 1650 waiver takes away the DUI program requirement. Therefore, as a non-resident, you don't have to join or complete the program. And you can obtain your driver's license in your home state.

How to Apply for the 1650 Waiver

To successfully apply for the waiver, you should do the following:

  1. Call the California DMV and request that the 1650 waiver packet be sent to your address
  2. Fill the packet
  3. Present evidence that you do not live in California by presenting a utility bill from a utility firm in your home state
  4. Pay the application fee

You can't apply for the 1650 waiver until after your suspension period executed in California lapses.

After submitting your completed waiver packet to the California Department of Motor Vehicles, the request will take approximately four (4) to eight (8) weeks to be processed.

What Takes Place if You Return to California?

In case you decide to move to or travel back to California after you have been issued a 1650 waiver, you can't lawfully operate a motor vehicle in California for three (3) years from the date the 1650 waiver was issued.

Also, you should complete the DUI program to obtain a California driver's license.

Frequently Asked Questions

Can You Ignore the Out-Of-State DUI Charge If You will Never Return to California?

It is not wise to ignore an outstanding criminal charge, even in another state. If you do not appear in court or have an attorney appear on your behalf, or respond to court notices and orders, a warrant for your arrest could be issued.

The peace officers are not likely to track you down after failing to appear in court, but ignoring the court hearing won't make the arrest warrant go away. Law enforcement authorities share information. Often, a misdemeanor warrant doesn't cross state borders, but a felony warrant will.

If a police officer stops you in your home state, they will see the arrest warrant and, if it's a felony warrant, you may be put into police custody.

Is an Out-of-State DUI Offense Considered a Previous Conviction in California?

An out-of-state DUI is considered a previous offense when deciding if you have committed a subsequent drunk driving offense. If your home state DUI conviction is deemed as driving under the influence offense, if it occurred in San Jose, California will treat another drunk driving offense as a subsequent DUI.

DUI in California is priorable. If the out-of-state conviction happened within ten years (lookback period) of a subsequent drunk driving, then it is a prior crime in California.

Can an SR22 Help you Obtain Your California Restricted Driver's License after an Out-Of-State DUI Arrest?

Yes. The California DMV offers two kinds of restricted licenses, namely a regular restricted license and an IID restricted license. A restricted driver's license lets you drive to and from work and DUI school.

Typically, the DMV will issue a restricted license if you:

  • File an SR22
  • Join a court-approved DUI school
  • Pay a $125 reissue fee and a $15 restriction fee

An SR22 can help you reinstate your suspended driver's license following a DUI conviction, or losing a DMV hearing or failing to request a DMV hearing. An SR22 is a certificate of insurance that your insurance provider files with the DMV to confirm that you have met the state's requirement for car insurance liability.

To obtain SR22, you should contact your insurance provider. The insurer will then look into your DMV record to learn why you require the form and will either grant you the SR22 or cancel the policy.

Hire a Knowledgeable San Jose DUI Defense Attorney Near Me

San Jose is both an international and domestic travel destination for many people. When you're traveling, you should comply with California's DUI laws. Otherwise, you might run into serious legal trouble. Probably, as an out-of-state motorist who is charged, you are worried whether this will attract penalties in the state of California and your driver's license back home. Additionally, you might be concerned about how you will deal with your case when you go back home. Contact our DUI defense lawyers at the San Jose DUI Attorney Law Firm at 408-777-6630 for answers to your concerns and questions.