If you are charged with driving under the influence or driving while intoxicated on or off your local military installation, you may be facing numerous punishments, both judicial as well as non-judicial. Although there will be facts that are unique to your situation, here is a general overview of what to keep in mind and plan ahead for.
Penalty/Penalties on the Civilian side
If you are charged with a DUI off the installation, you may be subject to criminal and administrative punishments. The punishments vary and are generally harsher for repeat offenders.
The punishments (or issues) you’ll have to deal with on the civilian side include:
1 – Administrative license suspension/revocation
The first issue that will have to be dealt with quickly is your upcoming Administrative Per Se (APS) Hearing with the Department of Motor Vehicls (DMV). When you were arrested for your DUI the officer likely gave you a pink sheet of paper. On it (on the back) is information regarding your Due Process rights to a Hearing to determine if and for how long your privilege to drive on California’s roads should be suspended. You have only 10 days to call and exercise your right to request a Hearing.
As covered elsewhere on this site, the DMV Hearing officer will be seeking the answer to three (3) questions:
- Were you driving
- Were you lawfully arrested
- Were you driving with a blood alcohol level of .08 or higher
Although it will take up too much room to dissect every element these three questions puts forward, almost every word is an “element” which must be sufficiently proved in order to have your license suspended. As an example, the word “you” is an element. There have been situations where the officer on the scene was not able to sufficiently determine who exactly the driver was. Either the officer lost sight of the vehicle for some period of time and all the occupants exited the vehicle or there is insufficient proof that the person that was behind the wheel at the time, was not the person who was actually driving.
As you can see, depending on your unique situation and facts, there are multiple possible defenses that can be posed regarding your DUI situation. Other factors that may play an important role include (but are not limited to) whether you have had prior DUI offenses within a certain amount of time, generally the last seven (7) or ten (10) years is material.
Above and beyond the actions the DMV will take, your installation commander may suspend or revoke your on-installation driving privileges. Depending on which action occurs first (the DMV’s or your commander’s) your on-installation suspension and/or revocation may also be taken into consideration by the DMV Hearing Officer when viewing all the relevant information before him/her in determining whether to suspend your license.
Criminal Law Penalties via the Court System
If you are arrested for a DUI, you additionally likely will be facing criminal law issues via the court system and may be looking at potential penalties such as jail time, fines and community service. Depending on your unique situation, the good news is… or bad news if not handled correctly, is that the court has some discretion regarding the application of some of these penalties. Some factors that go into the court’s decision may include (but is not limited to) whether this is your first offense, whether your DUI caused harm to another person or property, and your speed and/or driving pattern at the time you were (allegedly) driving under the influence.
- First-Time Offender Classes
If you are a first time offender, you will likely have to attend what’s called a “First-Time Offender” class. This will generally take 6 weeks (1 class per week) to complete. The classes usually cover the legal, medical, and social problems associated with the abuse of alcohol and other drugs.
- Mandatory alcohol education and assessment/treatment (MADD classes / AA classes)
You may also be required to attend alcohol education and/or assessment/treatment services. This may include attendance at a DUI prevention program(s) and a program to assess any alcohol dependency problems/issues. Usually program are made “conditions” of a suspended sentence or probation. This would mean that you can avoid jail time and avoid paying large(r) fines if you successfully complete such programs.
- Having Your Vehicle Confiscated
There may be circumstances which may support the court’s decision to seize your vehicle either temporarily or permanently. Return of the vehicle will usually require payment of fines and significant storage and administrative costs. The court also has the power, if the facts support such a finding, to sell your vehicle. The court would of course provide you with the proceeds, but that can be of little consolation. There are possible defense to this, so it’s important you contact our office as soon as possible so we can assess whether the court might take such action, and, organize effective defenses to that action. Usually the court will only apply such drastic measures to repeat DUI offenders or in situations where there has been a complete disregard for the health and safety of others. However the sooner we can assess all possible actions by the court, the sooner we can begin constructing an effective defense of your situation.
- Ignition Interlock Device
If the court decides to employ an interlock device on your vehicle you will usually be required to pay the cost of installation, rental and maintenance of it. As you might guess, the driver of the vehicle must blow into the vehicle ignition interlock breath-testing device prior to being able to operate the vehicle. If more than a maximum amount of alcohol is detected (usually a BAC of 0.02%) the vehicle will not be allowed to start.
Punitive Actions on the Military side
As you might already be aware, the Military is, to an extent, its own world and actions can be taken (or not taken) regardless of what occurs in the civilian world. Punitive actions under the Uniform Code of Military Justice (UCMJ) are available to the military even if you are “not” being prosecuted by the civilian authorities. This can typically happen if you were stopped for a DUI “on” the installation, but such actions can occur if you were stopped for a DUI “off’ the installation as well. The military cannot administer action under the UCMJ for the “same” offense if you are being charged by civilian authorities. This rule will apply regardless of the outcome of the civilian case. You may still be subject to UCMJ actions for “associated misconduct” that is not being prosecuted by civilian authorities, such as “disorderly conduct” or “resisting arrest” (if such conduct occurred).
- Non-judicial punishment
Commanding officers can levy Non-Judicial-Punishment (NJP) to their service members for minor disciplinary offenses under Article 15 of the UCMJ. NJP can go by different names depending on the branch of service. In the Army and Air Force the term “Article 15” will be used. In the Navy and Coast Guard “Captain’s Mast” or “Mast” is usually used. The Marines usually use the terminology “Office Hours”. The CO has the power to make an inquiry into the facts surrounding the (alleged) offense, allow the personnel involved some form of a hearing, and either dismiss the charges, impose punishment under Article 15, or refer the situation to a court-martial. Under NJP the commanding officer has multiple mechanisms to impose punishment which can include an official reprimand, extra duty, and actions involving pay (restrictions, forfeiture or reduction in grade).
- Judicial punishment – Court-Martial)
If either, you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a DUI under the UCMJ. Subsection §911 under Article 111 states:
§ 911. Art. 111.
Drunken or reckless operation of a vehicle, aircraft, or vessel
Any person subject to this chapter who—
- operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)), or
- operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person’s blood or breath is 0.10 grams or more of alcohol per 100 milliliters of blood or 0.10 grams or more of alcohol per 210 liters of breath, as shown by chemical analysis, shall be punished as a court-martial may direct.
Similarly, the court-martial penalty powers can include, and are not limited to, forfeiture of pay, reduction in grade, confinement and dismissal from the military.
Military Administrative Actions
Regardless of whether you are being either – charged by civilian authorities or – receiving UCMJ action, your commanding officer can take administrative actions against you. These actions may include:
- Official Letter of Reprimand
A letter of reprimand is a formal document from your superior (usually a superior officer) that includes the details of your wrongful action(s) and the punishments(s) that have occurred and/or that will occur . These letters generally remain in your file. And although they are considered less severe than a court-martial, they can be career-ending as they can keep you from achieving/receiving a promotion.
- Revocation of pass privileges
Your ability to go on leave can also be revoked by your commanding officer. If the civilian courts/authorities are in the process of taking action against you, this revocation will usually last until they are complete. If military action has begun against you, this revocation of pass privileges typically lasts until your UCMJ punitive actions have been served and are complete.
- Mandatory referral to a substance abuse treatment program
Additionally, your CO can order you to enroll in and complete some kind of substance abuse treatment program generally offered through your particular branch of service.
- Corrective training
If your commander believes that additional instruction / practice / training will benefit you, s/he may require you to go through such corrective training. Generally this training is used to correct deficiencies and alleviate the need for any subsequent formal disciplinary measures.
- Administrative reduction in grade
Depending on your situation, your commander may attempt to reduce your rank or if your rank can’t be reduced, reduce your pay grade. The status of your rank will determine the rank of the commander who may approve such reduction(s).
- Bar to Reenlistment
Also depending on your situation, your commander may request that you be denied the opportunity to reenlist after your current service is complete. Generally this is used when you fall into a grey-area where your immediate suspension is not warranted, but the commander does not see that it is in the best interest of the military to allow you to reenlist.
In addition to making sure that within the 10 days after your DUI arrest your APS Hearing is scheduled (which our office can take care of for you), you should consult your military area defense counsel for military specific advice. The military area defense counsel can provide you with confidential advice while also allowing you the ability to hire a civilian defense attorney.
The military area defense counsel cannot represent you at your DMV APS Hearing, or represent you in your Civilian court proceedings… you’ll have to hire a private attorney for help with those actions. However, if you’re facing charges under the UCMJ, you are entitled to no cost representation by the military area defense counsel for those proceedings/actions. Also, dependents and civilian family members are not entitled to representation by a military area defense counsel no matter whether the incident occurred on or off the installation and they would need to seek civilian representation.
A Military personnel arrested for a DUI has multiple, and sometimes connected, issues to deal with both on the Military side as well as the Civilian side. If DUI actions against him/her are successful, the ramifications can be far-reaching and career ending.
Along with being a former Judge’s assistant and former Deputy District Attorney, Mr. Sohovich is a military veteran himself and knows the systems and the importance of taking care of his brothers in arms.
Whether you have been charged or arrested for a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI or El Cajon DUI, if you’re looking for San Diego’s Best DUI Defense Attorney, you must speak with Attorney Chris Sohovich as soon as possible. Attacking DUIs is what we do best.
Contact the Law Office of Chris Sohovich now for a free case evaluation at 619-326-8161.