Legal Question in DUI Law in California

Re: First DUI -- options

Thanks for your posting, and I am sorry to hear about your DUI. To answer your question directly, you can be certain that you will never know completely all your defenses and how strong they are without an attorney representing you. With certain facts, a reduction in the charges, the points against you, or even the entire case are all possible. How strong those facts are, and who is prosecuting and/or trying the case, are really not known until you have someone represent you.

You may also qualify for a public defender, if you are truly indigent or cannot afford an attorney.

Some advantages of defenses based upon testing error, or calibration or error in the testing equipment, disappear depending upon how high your blood alcohol level is, so that is also another consideration. If you are within a certain range, you may want to consider speaking with an attorney and see if there is anything that can be done.

Finally, regarding your question as to bankruptcy: The government makes the rules, so it shouldn't come as a great surprise that there are a number of special rules that deny the discharge of certain kinds of debt owed to the government.

If you file under Chapter 7, you will still have to pay DUI or court fines. Fines, including those imposed for vehicle code violations, are excepted from discharge in Chapter 7 by Section 523(a)(7) of the bankruptcy code. This section applies only to cases filed under Chapter 7, and not those filed under Chapter 13.

If you file under Chapter 13, you will probably not have to pay the traffic fine, and the state will probably be prohibited from suspending your driver's license because of the fine. I said probably because the answer is subject to court interpretation of the nature of the fine.

Some fines are not discharged even in Chapter 13. Section 1328(a)(3) excepts restitution and criminal fines included in a sentence on the conviction of a crime from discharge. Whether the fines will be discharged in Chapter 13 will depend upon whether the fine rises to the level of a criminal fine included in a sentence.

It appears that courts are likely to determine that fines, even for substantial infractions, do not rise to the level excepting them for discharge in Chapter 13. For example, in In re Hardenberg, 42 F.3d 986 (6th Cir. Ohio, 1994) the Court of Appeals found that fines imposed on Mr. Hardenberg after his conviction for Driving While Intoxicated were discharged in Chapter 13. The court also ordered the reinstatement of his driver's license which had been suspended for failure to pay those fines.

I apologize for getting too technical, but I hope that this helps. If you would like assistance, or more help, please feel free to email me, or call my office at 1-877-568-2977.

Re: First DUI -- options

If you can't afford a private attorney, you should request a public defender, as your situation can be helped if effectively handled. Don't plan on agreeing to a fine and then BKing it.