How Is "DUI" Defined Under California Law?
In California, you can be charged with a DUI based on having a blood-alcohol concentration (BAC) of .08% or higher under Vehicle Code Section 2315b. Or, you can be charged with a DUI for operating a motor vehicle while "under the influence" of alcohol, regardless of your BAC, based on VC 23152a.
Additionally, driving under the influence of a drug, be it illicit, prescription, or over the counter, or driving under the combined influence of alcohol and drugs, are criminalized (respectively) in VC 2315 e and f.
To gain a conviction or DMV ruling against you for DUI(D), the prosecution must establish beyond doubt that you:
- Were operating a motor vehicle.
- Were intoxicated with drugs and/or alcohol at the time.
- Your ability to drive safely was impaired, compared to that expected of a sober driver in the same situation.
- You were willfully under the influence. That is, someone else did not force you to consume the drugs/alcohol without your knowledge or consent.
Typically, you will be charged with both VC 23152 a and b, though you can only be punished for one offense (the penalties are the same.)
It is also important to remember that you will first face a DMV hearing for the DUI allegation, but that a separate jury trial is possible (regardless of whether or not you win your DMV hearing.)
Finally, note that the BAC threshold for DUIs varies. Normally, it is .08%. But for commercial drivers, it is .04%. For those under the legal drinking age of 21, it is .01%.
Possible Penalties for a California DUI
The penalties for a DUI conviction in California vary greatly based on whether it's your first or a repeat offense and whether or not there are any aggravating factors like causing injury/death, child endangerment, refusing the chemical test, or excessive speeding.
In one sense, your punishment begins even before you go to your DMV hearing. For, your license is confiscated on the spot, at the time of the arrest, and you are given a 30-day temporary "pink slip" license. Unless you request a DMV hearing within 10 days (not business days) of your arrest you will forever lose your right to a DMV hearing.
For a 1st DUI, possible penalties include:
- A license suspension of at least 4 months.
- Six months in county jail.
- Probation lasting 3 to 5 years.
- Fines/fees of up to $3,600 or even more.
- Mandatory installation of an IID (ignition interlock device) at your own expense.
- DUI School lasting 3 months or longer.
A 2nd DUI is punishable by:
- Up to a 2-year license suspension.
- Up to 12 months of jail time.
- 3 to 5 years of probation.
- Fines/fees of $4,000 or more.
- 18 or more months of DUI class.
- Installation, at your own expense, of an IID.
A 3rd DUI is punishable by:
- A license suspension period of up to 3 years.
- Either up to 12 months in county jail or up to 16 months in state prison.
- Fines/fees as high as $18,000.
- Mandatory installation of an IID.
- 3 to 5 years on DUI probation.
Un-aggravated DUIs of 1st through 3rd offenses are all misdemeanors. A 4th or subsequent DUI is a felony, punishable by:
- A license suspension of up to 4 years.
- 3 to 5 years on DUI probation.
- Up to 16 months in state prison.
- Fines/fees of up to $18,000.
- Up to 30 months of DUI School.
- Mandatory installation of an IID.
If you cause an injury to another person in a DUI incident, the penalties will be significantly enhanced. Even a first-time misdemeanor DUI with injury (VC 23153) is punishable by:
- A fine of up to $5,000.
- Up to 12 months in jail, with 5 days of actual jail time (not exchanged for community service) mandatory.
- 3 to 5 years on DUI probation.
- 18 or 30 months in DUI class.
- Up to a 12 month license suspension, and a 1 to 3 years period on a restricted license.
- Full restitution to anyone you injured in the accident.
A felony level DUI with injury conviction would likely involve more severe injuries or be a repeat offense. It would be punishable by:
- 16 months to 10 years in state prison. But you can get an even longer prison term if multiple people were injured or the injuries were especially severe.
- Fines/fees of $5,000 or more.
- 18 or 30 months of DUI class.
- A license suspension of up to 3 years.
- HTO (habitual traffic offender status) for 3 years.
- Full restitution to all victims.
Additional Special Penalties
Besides the penalties mentioned above, there are certain situations where your penalty can be enhanced for other reasons. Here are some of the main examples.
Refusing the Chemical Test
Refusal of the chemical test, be it for a breath, blood, or urine test, will get you 1 to 3 extra years of license suspension, varying based on if it's your first or a repeat DUI conviction.
Under California's "implied consent" policy, you automatically "agree" to submit to police-administered DUI chemical tests when you get your California driver's license. You can still refuse but not without incurring extra penalties.
You are allowed to choose which type of test you want, but you cannot refuse one test because another one is currently unavailable.
For those who are found guilty of DUI while being under the legal drinking age (21), a 12 month license suspension applies for even a first offense.
Underage DUIs are under a "zero tolerance" policy, meaning that any detectable quantity of alcohol whatsoever in your system equals a DUI. In practical terms, .01% is the generally followed standard.
Also note that you can also be charged with unlawfully having alcohol in your vehicle (open containers), which can get you a $1,000 fine plus a second 12-month license suspension.
Commercial Driver DUIs
If you hold a California CDL (commercial driver's license), you will lose it for a year for even a first-time DUI. And a repeat offense (within 10 years) will lead to permanent loss of your CDL.
In this case, losing your license means losing your livelihood, which underscored the importance of a well seasoned DUI defense lawyer even more.
Most often, a DUI conviction will lead to misdemeanor level probation, besides any jail/prison time and the other penalties. When this occurs, probationary terms will include:
- Not being allowed to drive a motor vehicle with ANY alcohol whatsoever in your system.
- Having to submit to police chemical BAC test even where others would not have to do so.
- Any criminal violations, other than minor traffic infractions, while on probation can cancel your probation and send you to jail/prison.
Other possible DUI probation terms include:
- Attending AA sessions, MADD victim impact programs, or other similar programs. Attendance will be mandatory and at your own expense.
- Making full restitution for any injuries and/or property damage cause by your DUI.
- Mandatory installation of an IID at your own expense. This can be required for up to 4 years. In L. A. County and certain other jurisdictions, IIDs are mandatory even for a 1st DUI. But in many localities, the decision is fully at the discretion of the presiding judge.
Common DUI Defense Strategies
At Long Beach Criminal Defense Attorneys, we use a variety of defense strategies to great effect in defending against DUI charges. Here are some of the most common defenses we employ:
- Lack of probable cause for the traffic stop. This would amount to an illegal search and likely lead to your case being dismissed.
- Lack of probable cause for the arrest.
- Police interrogated you before informing you you were under arrest.
- Police failed to read you your Miranda Rights.
- Police falsification or planting of evidence, false or incomplete information on the police report, or an arresting officer with a history of making false arrests.
- The DUI breath test was incorrectly administered or was thrown off by mouth alcohol, GERD, ketosis due to diabetes or a low-carb diet, or from other causes.
- Field sobriety test results were inconclusive, wrongly conducted, or were affected by nervousness, medical conditions, weather, or other factors.
- There were violations of Title 17 in the taking, handling, storing, and analysis of the blood sample.
- You had a still-rising BAC when tested, thus, your BAC may have been below .08 while driving.
- You had no signs of mental impairment, making it highly unlikely you were impaired physically.
- You did demonstrate poor driving skills, but were not under the influence of alcohol or drugs.
- You were not driving while under the influence, though you may have been found in a parked car or at home (soon after driving) drunk.
- The DUI checkpoint was illegal.
- The breath test was affected by radio frequency interference from the patrol car, a cell phone, or another source.
In many cases, we can get your DUI charge dismissed by uncovering violations of your rights and getting evidence barred from court. Or, we can argue your case in court and win an acquittal.
In other cases, the best possible outcome might be a charge reduction to wet reckless or another lesser offense. Or, it could be a reduction to a lesser DUI offense or a sentence reduction. Gaining you a restricted license so you can drive to/from work is a victory in itself.
But one of the biggest concerns is keeping you out of jail. Many times, we can fight to get you into an "alternative sentencing program."
The possibilities include:
- Cal-Trans roadside work.
- Other forms of "community service."
- A private jail, where conditions are significantly better than most public jails.
- Moving to a sober living residence.
- House arrest, with electronic monitoring, that allows you to live with your family.
Anything that can keep you out of jail is an improved sentence. We know the "rules" on how to qualify for these and other programs, and we know how to secure such concessions in a favorable plea deal when that is the best course of action to take.
Contact Us Today For Help
At Long Beach Criminal Defense Attorneys, we stand ready to come to your aid from the moment you call us for help. Our team of DUI experts will help you understand the situation with your DUI charge and begin building you a solid defense without delay.
For a free consultation on the details of your DUI case, do not hesitate to contact us anytime 24/7/365 at (562) 308-7807. Or, set up an in person interview at our Long Beach office.