Could Mel Gibson Face Jail Time for His DUI Arrest?

This is a partial transcript from "On the Record," August 2, 2006, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: Has Academy Award winning Mel Gibson's mouth become his ultimate lethal weapon? Today, more news on Gibson's slip of the tongue, as of a short time ago he is now officially charged, misdemeanor drunken driving, having an elevated blood alcohol level and having an open container in his car.

Gibson got behind the wheel at 87 miles per hour after partying at a California bar. got this video of Gibson shot by a cell phone at the bar, Moonshadows in Malibu, just two hours before is DUI arrest. Now, Gibson faces six months in jail if convicted.

Let's bring in a lawyer we all know, criminal defense attorney Robert Shapiro, welcome Bob.


VAN SUSTEREN: I'm very well, nice to see you, Bob.

SHAPIRO: Nice to see you too. Thank you.

VAN SUSTEREN: Bob, as a practical matter if Mel Gibson is a first offender when he goes to court in September if he — first of all, does he actually have to show up in court in September?

SHAPIRO: He does not have to show up in court. Greta, let me just correct you on one thing because it's one of my pet peeves. He is not charged with drunk driving. The standard in California, as in almost every state, is driving under the influence and that is are you affected to a degree that you are impaired beyond the way you would be as an ordinary sober person? Now to answer your question directly, he does not have to appear.

VAN SUSTEREN: All right, if he is a first time DUI offender and even though he was driving 87 miles per hour, at least that's apparently what he was clocked at, is it at all likely he's going to get jail time if convicted?

SHAPIRO: Greta, the law has changed recently in California. If you asked me this question a year ago, I'd say no. On a first offense if you walk in and plead guilty, you get three years probation.

You have your license suspended for six months but can apply for a restricted driver's license with the DMV. You have to go to an alcohol education program for three months and you pay a fine of $350 plus penalties and taxes, which comes to about $1,500.

However, we have recent legislation in California that says that if you are going 20 miles an hour above the speed limit when you're under the influence and if, in fact, you're driving is reckless, it is a mandatory 60 days in jail.

VAN SUSTEREN: And, according to — it was a 45-mile-an-hour zone, 87, so do your math. That would certainly put him in that position. Just as an aside, Bob, certainly I mean his despicable comments would be irrelevant to any sort of sentence. I mean we're still sort of sorting that out but is that right that has nothing to do with any penalty he gets.

SHAPIRO: I don't think it would be anything that a judge would consider but it would certainly be something that if he decides to go to trial and contest it, his behavior during the arrest and after the arrest would be very relevant for a jury to hear.

VAN SUSTEREN: And I should remind the viewers that they should all check out, an organization that you and your wife have set up on behalf of your son who had a drug problem, is that right Bob?

SHAPIRO: That is correct. Our son Brent passed away last October from taking a half a ecstasy along with a couple of drinks. And so we have formed a Brent Shapiro Foundation. It's at

And we've done public service announcements, which we are hoping to air in the next couple of weeks, Greta, to let people know that this disease is everywhere. It affects people no matter whether they're rich or poor, black or white, Republican or Democrat, liberal or conservative. Be aware this disease is everywhere.

VAN SUSTEREN: Bob, thank you, always nice to see you.

SHAPIRO: Thank you so much, Greta.

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