DUI and DWI – California Vehicle Code 23622

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.

DUI Definitions

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.

Prosecution’s Burden

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

DUI Penalties

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.[1] 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.[2] Harsher penalties are reserved for felony convictions of a subsequent DUI offense.[3]

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.[4] DUI with injury can be charged as a misdemeanor or felony offense.[5] 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[6] and $5,000 in fines, an 18- to 30-month alcohol or drug program[7], Habitual Traffic Offender Status[8] 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

Legal Defenses

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.

Bad stop

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.

No refusal

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.