DUI – Drunk Under the Influence

Charged with Driving Under the Influence in the San Francisco Bay Area?

In California, Driving under the influence generally constitutes a misdemeanor punishable by up to one year in jail. The offense may be elevated to a felony, punishable by a longer term in state prison, if the incident caused serious injury (felony DUI), death (vehicular manslaughter or vehicular homicide), or extensive property damage or if the defendant has a designated number of prior DUI convictions within a given time period (commonly, 3 prior convictions within 10 years), or murder charges may be applied where the legal state of mind of malice exists, where the defendant exhibited a reckless indifference to the lives of others.

Driving Under the Influence

The act of operating a motor vehicle after having consumed alcohol (ethanol) or other drugs (including over the counter medications), to the degree that mental and motor skills are impaired.


Know Your Rights:

• There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.

• You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.

• Once arrested, you must be advised of your constitutional rights (the "Miranda Warning") before any further questioning takes place.

• You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).

• If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney.

General Information:

• If you are driving under the influence with a child in the car you can be charged with "child endangerment" which is a felony.

• It is illegal to have an open container of alcohol in your vehicle, or to drink while in a vehicle - even if the car is parked.

• It is illegal to operate a boat while under the influence of alcohol (or any other drug)

• Your car may be impounded for up to 90 days at your own expense, or even sold with the proceeds going to the city or county.

Applicible California Law Sections:

• VC 23140: It is unlawful for persons under 21 years of age to drive with a BAC of .05 or more. Penalty: In addition to other penalties (23152), may be ordered to attend a Youthful Drunk Driver Visitation Program. Note: Constitutes Driving Under the Influence (DUI).

• VC 23152 (a & b): Driving under the influence of alcohol (BAC .08 or more, or .04 or more while driving a commercial vehicle) or drugs. Penalty:1st Offense - 96 hours ( at least 48 of which shall be continuous) - 6 months county jail, fine, 6 months license suspension, probation, treatment program; 2nd Offense - 96 hours to 1 year county jail, fine, 24 months license suspension, probation, treatment program; 3rd Offense - 120 days to 1 year county jail, fine, 3 years license revocation and determination as a habitual traffic offender, probation, treatment program; 4th Offense - (see VC 23550) Note: Court may order the installation of an Ignition Interlock Device (IID) for up to 3 years and shall give heightened consideration to those with BAC of .20 or more.

• VC 23153 (a&b): Driving under the influence of alcohol (BAC .08 or more, or .04 or more while driving a commercial vehicle) or drugs and causing bodily injury. Penalty: 1st Offense - 90 days to 1 year county jail, or state prison, 1 year license suspension/revocation, probation, treatment program; 2nd Offense - 120 days to 1 year county jail, or state prison, fine, 3 years license revocation, probation, treatment program; 3rd offense - 120 to 1 year county jail, fine, 3 years license revocation and determination as a habitual traffic offender, probation, treatment program; 4th Offense - (see VC 23550)Note: Court may order the installation of an Ignition Interlock Device (IID) for up to 3 years and shall give heightened consideration to those with BAC of .20 or more.

• VC 23220: No person shall drink any alcoholic beverage while in a motor vehicle.

• VC 23222(a): No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway, any alcoholic beverage which has been opened.

• VC23222(b): Every person who possesses, while driving a motor vehicle upon a highway, not more than one avoirdupois once of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of a misdemeanor.

• VC23223: No person shall have in his or her possession on his or her person, while in a motor vehicle upon a highway, any alcoholic beverage which has been opened.

• VC 23224: No person under the age of 21 shall knowingly drive a motor vehicle carrying any alcoholic beverage, for the purpose of transportation of the alcoholic beverage, unless the person is accompanied by a parent or responsible adult relative, or designee, or is employed by a licensee under the ABC and driving in the course of employment. Penalty: Loss of license, possible vehicle impoundment for 1 to 30 days.

• VC 23550: Fourth convicted DUI offense within 7 years. Penalty: 180 days to 1 year county jail, or 16 months, 2, 3 years state prison. Note: Considered a "wobbler." May be charged as a misdemeanor or felony at the discretion of the prosecutor.

• VC 23550.5: If charged with 23152 or 23153 within 10 years of a prior 23152 or 23153 that was punished as a felony, or PC 191.5 or 192(c)(3). Penalty: May be charged as a felony. Up to 1 year county jail or state prison, up to $1,000 fine, license revocation, habitual traffic offender.

• VC 23558: Penalty enhancement for causing death or serious injury and injuring more than one person while driving under the influence and convicted of the offense. Penalty: One additional year per injured victim; 3 years maximum.

• VC 23572: Penalty enhancement for a conviction of 23152 with a minor under 14 years of age in the vehicle. Penalty: 1st Offense - additional 48 hours county jail; 2nd Offense - additional 10 days county jail; 3rd Offense - additional 30 days county jail; 4th Offense - additional 90 days county jail. Note: May also be charged as Felony Child Endangerment under PC 273(a).

• VC 23577: Penalty enhancement for refusal to submit to, or willful failure to complete, a chemical est. Penalty: 1st Offense (23152 or 23153) - same as penalties for 23152 or 23153; 2nd Offense (23152 or 23153) - additional 96 hours county jail; 3rd Offense (23152) - additional 10 days county jail; 4th Offense (23152) - additional 18 days county jail.

• VC 23582: Penalty enhancement for 23152 or 23153 while also driving 30 or more mph over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more mph over the maximum prima facie, or posted speed limit on any other street or highway. Penalty: Additional consecutive term of 60 days county jail, alcohol/drug treatment program.

• VC 23592: Vehicle impoundment if registered owner convicted of 23152 and causing a collision, or 23153, PC 191.5 or 192(c) (3). Penalty: Court may impound vehicle for up to 6 months for 1st offense; up to 12 months for 2nd or subsequent offenses. Note: Impoundment is left to the judge's descretion, and not imposed if the vehicle is the sole vehicle of the family or community property and shared by the offender's spouse.

Criminal Defense in San Francisco and all parts of the greater Bay Area.