Schedule a free consultation with our experienced DUI lawyer immediately if you have been charged with DUI in counties of Santa Clara, Alameda, San Mateo, San Francisco or Contra Costa.
When a person is arrested for DUI, there are two cases that proceed. The first is the criminal case in which a person can be found guilty of violating the law and be sentenced to jail, fines and probation. The second is the administrative case, which can lead to the loss of driving privileges. Each of these cases has their own unique procedures, burden of proof and purposes.
In California, there are two different ways that a person can be considered guilty of DUI. This includes:
- He or she is driving under the influence of drugs or alcohol
- He or she has a blood-alcohol content of 0.08 percent or higher
For drivers under 21, the BAC threshold is 0.05 percent or higher.
The prosecutor must prove the following elements in order to secure a conviction for DUI:
- The defendant drove a vehicle
- At the time that he or she was driving, he or she was under the influence of alcohol or drugs
The penalties for a DUI conviction in California depend on whether anyone was hurt or killed because of the drinking and driving and whether the defendant has a history of DUI convictions. A first-time conviction is considered a misdemeanor offense. The minimum penalties for a first offense pursuant to California law include:
- Approximately $1,800 in penalties and fines, including a $390 fine, more than $1,000 for ordinary penalty assessments and DUI-only assessments
- 48 hours in jail or a 90-day license restriction
- Attendance and completion of an alcohol treatment program of three or nine months, depending on your BAC at the time of your arrest
- Loss of driving privileges for at least 90 days
The maximum penalties for a first-time DUI offense that did not involve bodily injury or death include the following:
- $1,000 fine
- $2,600 in penalty assessments
- Six months imprisonment in county jail
- Loss of driver’s license for six months or ten months if your BAC was 0.15 percent or higher
- Vehicle impounded for 30 days
- Installation of ignition interlock device
Additionally, first-time offenders may be placed on probation. This is sometimes for three to five years. If the defendant violates any terms of his or her probation, he or she can face additional penalties.
For a second DUI conviction that occurs within 10 years of the first one, the possible penalties include:
- Approximately $1,800 in penalties and fines, including a $390 fine, more than $1,000 for ordinary penalty assessments and DUI-only assessments, up to approximately $3,000 in penalties and fines
- Ten days to one year in county jail
- Completion of an 18- or 30-month second offender alcohol-treatment program
- Installation of an ignition interlock device
- License suspension up to two years
- Impounding of vehicle for 30 days
Third and subsequent convictions have a minimum sentence of the following:
- Approximately $1,800 in penalties and fines, including a $390 fine, more than $1,000 for ordinary penalty assessments and DUI-only assessments
- 120 days in jail for a third offense or 180 days in jail for a fourth offense
- Revocation of your driver’s license for three years for a third offense or four years for a fourth offense
- Requirement to attend a 30-month multi-offender program
The maximum sentence includes up to $5,000 in fines and $13,000 in penalty assessments, one year in jail for a third offense or 16 months in a state prison for a fourth offense, revocation of your driver’s license for three years or four years if it is the fourth offense, requirement to complete a 30-month alcohol treatment program and impoundment of your vehicle for up to 90 days. Harsher penalties are reserved for felony convictions of a subsequent DUI offense.
If the drunk driving caused injury or death, the defendant can be sentenced to state prison for a year or even up to five years, depending on which conviction it is. DUI with injury can be charged as a misdemeanor or felony offense. A misdemeanor charge of this nature carries the following potential penalties:
- Three to five years of probation
- Five days to one year in county jail
- Between $390 and $5,000 in fines
- An alcohol program for three, eighteen or thirty months
- Driving restriction for one to three years
- Restitution to the injured party
A felony offense can result in the defendant being ordered to sixteen months to ten years in state prison, a consecutive sentence of one to six years depending on the number or people injured and the extent of their injuries, between $1,015 and $5,000 in fines, an 18- to 30-month alcohol or drug program, Habitual Traffic Offender Status for three years and the requirement to pay restitution to all injured parties. Additionally, a conviction of this nature can result in a strike pursuant to California’s Three Strikes Law.
Certain circumstances can increase the amount of time that a person is sentenced to jail or prison. These are considered aggravating factors and include the following:
- Refusing to submit to a chemical test
- Causing an accident
- Having a BAC of 0.15 percent or higher
- Driving with a child under 14 in the vehicle
- Driving at excessive speeds
- Being under age 21
The consequences of being convicted for DUI in California are serious and can result in long-lasting consequences. An experienced California attorney can analyze the facts and circumstances surrounding the case in order to determine plausible defenses. Some defenses may include:
The law enforcement officer did not observe the defendant
Title 17 of the California Code of Regulations requires that a law enforcement officer observe a defendant for at least 15 minutes before administering a breath test. During this time, he or she is supposed to check if the defendant is vomiting, regurgitating, eating, drinking or taking part in any activity in which he or she can affect the validity of any rendered breath or chemical test. If the law enforcement officer did not carefully watch the defendant during this time, the results may not be reliable.
Bad breath machine
Title 17 also requires that the machines used to assess a person’s BAC be tested every ten days or 150 blows. A machine that has not been tested may not be calibrated correctly or may not be functioning correctly.
Another possible defense is that the defendant was stopped for an arbitrary or illegal reason, such as racial profiling. If the stop was bad, the results that are attributed to it should not be used against the defendant in trial.
Sometimes people are arrested because they refuse to take a chemical test. However, if the defendant did not actually refuse, this can be a defense against allegations to the contrary. Additionally, the officer is required to explain to the defendant what the consequences are of refusing to submit to testing.
An experienced DUI attorney can assess possible defenses. He or she can also try to pursue alternative sentencing for the defendant, such as community service, house arrest or a short stay in a sober-living environment so the defendant can avoid possible jail or prison time.
Depending upon the circumstances involved in DUI arrest, there are ways we can fight California DUI and get it dismissed.
10 Ways To Fight and Beat California DUI Charge
Applicable California Law Sections
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.
No person shall drink any alcoholic beverage while in a motor vehicle.
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.
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.
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.
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.
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.
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.
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.
Penalty enhancement for a conviction of 23152 with a minor under 14 years of age in the vehicle.
- 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).
Penalty enhancement for refusal to submit to, or willful failure to complete, a chemical est.
- 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
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.
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 discretion, and not imposed if the vehicle is the sole vehicle of the family or community property and shared by the offender’s spouse.
 California Vehicle Code 23622 – California DUI penalty statute that discusses the effect of prior conviction on sentencing.
 See California Vehicle Codes VC 23536, VC 23540, VC 23646, and VC 23566 for discussion on the possible sentencing of these crimes.
 California DUI can be charged as a felony if it is a fourth offense, an injury was caused to a third party or the defendant had a prior felony DUI for any reason.
 See California Vehicle Code Section 23153 for the treatment of California DUI with injury. The penalties largely depend on whether the offense is a first, second or subsequent offense.
 See California Vehicle Code 23153.
 See California Vehicle Code 23566 – “If a person is convicted of a violation of Vehicle Code 23153 and the offense occurred within 10 years of two or more separate violations of Section 23103 vc, as specified in Section 23103.5 vc, or Section 23152 vc or 23153 vc, or any combination of these violations, that resulted in convictions, that person shall be punished by…a fine of not less than one thousand fifteen dollars ($1,015) nor more than five thousand dollars ($5,000).”
 See California Vehicle Code 23568 — DUI Probation. Additional conditions of probation for persons punished under VC 23566. (“(b) In addition to Section 23600 and subdivision (a), if the court grants probation to a person punished under Section 23566, the court shall impose as a condition of probation that the person enroll in and complete, subsequent to the date of the underlying violation and in a manner satisfactory to the court, an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code or, if available in the county of the person’s residence or employment, a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court.”)
 See California Vehicle Code 23566 — DUI sentencing. Three or more offenses; punishment. (“(d) A person convicted of Vehicle Code 23153 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.”)