Covid-19 has changed our world in many critical ways -including the number of drunk drivers on the road and the criminal process for charging those arrested for the crime. In fact, DUIs in San Diego went down as much as 42% this summer as a result of bars being shut down, less partying throughout the state and fewer cars on the road in general. That being said, there are still people charged with this crime and getting a DUI during the Covid-19 crisis is somewhat different than getting one at any other time.
DUI Traffic Stops and Arrests
While there have been fewer people driving and an even smaller-than-usual portion of drunk drivers on the road, it’s worth pointing out that with fewer cars on the road, bad driving is more obvious to police officers ever. That means anyone showing typical drunk driving behaviors are much more likely to get noticed and pulled over.
Once you’ve been stopped, it’s less likely that the officer will be able to claim he smelled alcohol on your breath if you’re wearing a face mask, but the likelihood of police mistaking the smell of hand sanitizer for alcohol has never been higher than in this world where everyone seems to be using sanitizers by the gallon. If an officer suspects you have been drinking, he will usually attempt to get you to take field sobriety tests as well as a breathalyzer test. It’s worth mentioning that field sobriety tests are always optional and now more than ever it’s a good idea to refuse to take these tests that can you put you in close proximity to an officer and likely require you to remove your face mask.
As for the breathalyzer, while some portable breathalyzer devices are not considered accurate enough to serve as the main legal test and are thus optional for those who are over the age of 21, you are legally required to take a chemical test of some type under the state’s implied consent law. If the officer asks you to take a breathalyzer though, remember that you do have the option to take a blood test. This could be a safer option than a breathalyzer given that you don’t need to remove your mask. It’s ultimately up to you to determine which test seems to present less risk to your health. It’s worth mentioning that those suspected of driving under the influence of drugs are required to take a blood test.
DUI Checkpoints During the Covid-19 Crisis
Perhaps most surprisingly, police have still been performing DUI checkpoints, which many people agree seems like an unnecessary risk in the time of Covid-19, particularly when bars are closed and celebrations are limited to no more than 10 people at once. While there are fewer checkpoints than usual, the idea of putting police in direct contact with large numbers of people seems unadvisable.
Police have been putting up cones far in advance of checkpoints, so the driver doesn’t notice the checkpoint ahead until it is too late to exit the lane. While a driver may theoretically avoid a checkpoint legally by not getting into the lane leading to it, a driver has practically no way of knowing why the lane is narrowing before they actually see there is an upcoming checkpoint. If the driver tries to get out of the checkpoint lane, the police will claim unsafe movement or turn to justify the stop. In the past, lawyers were often able to have charges dropped if the driver was not given an opportunity to safely turn around and avoid a checkpoint or if they were stopped when trying to drive away from a checkpoint, courts have recently been upholding this failure by police to allow an opt out of the sobriety checkpoint.
What Happens When You Are Arrested
The San Diego Superior Court continues to have zero bail for most misdemeanor offenses and while DUI’s are exempt from zero bail, the local police agencies are exercising their discretion to cite and release first time DUI drivers. While they have always had this discretion but prior to the Covid-19 pandemic, they arrested most people. Now, they are uniformly using their discretion to cite and release most first time DUI drivers with court dates set three months or more in the future.
Those with previous drunk driving charges on their record will still often be arrested and forced to pay bail or wait for their arraignment, although police still have some discretion when it comes to their release. Those charged with a felony DUI, which can occur on a 4th offense or when the driver has been charged with a DUI accident that results in injury, which is a felony, will still have to post bail or wait to be arraigned. Those hoping to minimize their potential exposure to the virus, will want to post bail as soon as possible if they can afford to do so.
For misdemeanor DUIs, bail is $10,000 for a second offense and $15,000 for a third offense. For felony DUI charges bail is $100,000. This who cannot post bail or choose not to will need to wait until their arraignment to see if bail can be reduced or if they may be released on their own recognizance. The court has extended the time for arraignment from the standard 3 days to 7 days, and it will be done by video through the use of Microsoft Teams since no one is allowed in courtrooms except judges and staff. The public can hear an audio live streaming of these arraignments on YouTube.
DMV Hearings and Court Trials
Just as before the Covid-19 pandemic broke out, you still only have 10 days to file a request for a license revocation hearing with the DMV. The difference is that these hearings now take place over the phone and you may have to wait longer for your hearing. Your temporary license can be extended for this period so you can continue driving until your hearing takes place.
Similarly, San Diego is continuing to suspend jury trials. This is in contrast to Riverside County, which has limited in person courtroom hearings and conducts jury trials. As a result, the court date for your DUI charges will be pushed back. Since there is already a massive backlog of cases from people who were already in jail when the pandemic caused the courts to close and all new cases will have to wait for those before them to be resolved, misdemeanor DUI court dates are being scheduled for late fall or winter. For felony cases, the delay may be even longer.
If you have any questions about DUI charges during the Covid-19 shutdown, please call (760) 643-4050 to schedule a free consultation with Peter M. Liss.
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