DUI

You don’t have to be drunk to be guilty of the offense of driving under the influence (DUI) in California. Under California law, DUI means either driving while “under the influence” of ­alcohol and/or drugs (legal or illegal), or driving with a blood-alcohol level of 0.08% or greater—0.05% or greater, for people under 21 years old (VC § 23140).

What’s the best result of a first conviction?

Assuming there is no bodily injury or death resulting from the DUI, the minimum penalties for a misdemeanor first conviction are a fine of $390 fine plus over $1,000 in ordinary ­penalty assessments, plus additional DUI-only assessments for a total of approximately $1,800. You will also have either a 48-hour jail sentence or a 90-day license restriction allowing you to drive to and from your work—and for work—if required, and to and from an alcohol treatment program. You will also have to attend and complete a $500, three-month alcohol-treatment program (nine months if your blood alcohol level was 0.20% or higher. You’ll also lose your driver’s license for at least 30 days, followed by either a five-month restriction to drive to, from, and for work and to and from an alcohol treatment program, or an additional two-month restriction that allows you to drive only to and from the program.

What about a second conviction?

A second conviction within ten years means you will definitely serve at least ten days in jail (probably more) and have your license suspended for a year, without allowing you to drive to and from work. And those are the minimum penalties—which judges frequently exceed, especially in sentencing repeat offenders

Should you take the chemical tests or refuse to take them?

You will almost always be better off taking the blood or breath test when it is requested by the police.

What do the police have to prove in a California DUI?

The prosecutor in a DUI case has to prove that you drove a vehicle—that is, you steered and controlled it while it was moving.

At the same time, you were “under the influence” in that your ability to drive safely was affected to an appreciable degree by an alcoholic ­beverage you drank, a drug that you took, or the combination of the two.

What happens if the driver switches seats with a passenger

Sometimes a drunk driver and a sober (or, at least, less drunk) passenger will try to switch places in their seats just before the officer approaches the car. This tactic almost always fails to fool the officers, and can often make the situation worse if the officer later testifies in court as to all the “furtive movements” occasioned by this awkward and desperate ploy.

How hard is it to beat a California DUI charge?

If the results of your chemical test showed a BAC substantially over the .08% limit, your chances of beating a DUI charge are slim. Defense attorneys’ statistics show that the chances of beating a drunk-driving charge by going to trial are low. If your case is rife with hopeless circumstances (for example, blood alcohol over 0.15%, dismal failure on coordination tests, etc.), you should be wary of an overly optimistic lawyer who tells you your chances are excellent while demanding more and more money as the case drags on. On the other hand, an experienced California attorney like Wilfredo Trivino-Perez may be successful at reducing the charges and resulting penalties.

At the very least, try to hire an attorney for the limited purpose of fully explaining your options to you, or perhaps to try to work out a plea bargain with the prosecutor. If you’re unable to afford an attorney, you should ask the judge to appoint a lawyer for you when you first appear in court.

Assuming there is no bodily injury or death resulting from the DUI, the minimum terms for a misdemeanor first conviction are as follows:

$390 fine plus over $1,000 in ordinary penalty assessments, plus additional DUI-only assessments for a total of approximately $1,800.

48-hour jail sentence or a 90-day license restriction allowing you to drive to and from your work—and for work—if required, and to and from an alcohol treatment program. If the 90-day restriction is imposed, it begins after your DMV four-month suspension or 30-day suspension followed by a five-month restriction.

Attendance and completion of a $500, three-month alcohol-treatment program (nine months if your blood alcohol level was 0.20% or higher. Completing the program is a requirement for ever being able to drive again following a “per-se” DMV license suspension and for minimizing that suspension to 30 days (plus five or eight months of restricted driving) instead of the six- or ten-month flat suspension that would otherwise be imposed.

Loss of your driver’s license for at least 30 days, followed by either a five-month restriction to drive to, from, and for work and to and from an alcohol treatment program, or an additional two-month restriction that allows you to drive only to and from the program.

The maximum penalties for a misdemeanor first DUI conviction in California is a $1,000 fine plus over $2,600 in penalty ­assessments, six months’ imprisonment in the county jail, a six-month license suspension ; ten months for blood alcohol level of 0.15% or more, having your vehicle “impounded” (stored at your expense) for 30 days, and being required to attach an “interlock” breath device to your vehicle that will not allow the car to start if there is any alcohol on your breath. This will cost you about $800.

What type of probation is required of a first offender?

Almost all first-time offenders are placed on probation for three to five years. If you violate any of the terms of your probation, you can face a nonjury hearing where additional penalties can be applied. The standard conditions of probation include: (1) not driving with any measurable amount of alcohol in your system, (2) submitting to a blood or roadside breathalyzer (PAS) test upon the request of a police officer and (3) refraining from further violations of the law (no further misdemeanors — ordinary traffic infractions don’t count).

What’s the minimum and maximum penalties for a second DUI conviction?

If no one is injured or killed as a result of the DUI, the minimum penalties a judge will impose for a second DUI conviction (within 10 years of the first DUI) include the following:

a $390 fine plus penalty assessments for a total of approximately $1,800

ten days or 96 hours (including two 48-hour sessions) in jail

completion of an 18- or 30-month second-­offender alcohol-treatment program, which costs about $1,800, as a condition of probation. You must complete this program if you ever want to drive again. Enrollment in this program also allows you to reduce the two-year suspension to one year, followed by a two-year license restriction that allows you to drive to, from, and in your work, and to and from the program—after the first year of suspension, and

installation of an “interlock” device on all ­vehicles you own .

The maximum penalties for a misdemeanor second conviction within ten years of a prior conviction (counted from the date of the previous offense to the date of the second offense) include: a $1,000 fine plus penalty assessments for a total of approximately $3,000, one year in jail, a two-year license suspension by the DMV, impoundment of your vehicle for up to 30 days at your expense, and

required installation of an “interlock” device on all vehicles you own.

What’s the minimum and maximum penalties for a third and subsequent DUI convictions?

Assuming there is no bodily injury or death resulting from the DUI, the minimum penalties are as follows:

a $390 fine plus over $1,000 in ordinary ­penalty assessments, plus additional DUI-only assessments for a total of approximately $1,800

120 days in jail for a third offense, 180 days for a fourth offense and

revocation of your driver’s license for three years (third offense) or four years (fourth ­offense), and completion of a 30-month multi-offender program to get your license back.

The maximum penalties for a third and fourth offense within ten years are as follows: a $5,000 fine plus over $13,000 in penalty ­assessments for a total of $18,000, one year in jail for a third offense; 16 months in state prison for a fourth offense, if charged as a felony, impoundment of your vehicle for up to 90 days or even forfeiture and loss of your vehicle, revocation of your driver’s license for three years (third offense) or four years (fourth offense), and a 30-month alcohol treatment program before getting your license restored.

 What happens if someone is killed or injured in a DUI?

If someone is killed or injured as the result of driving under the influence of alcohol, or while blood alcohol is 0.08% or more, the driver can be found guilty of a felony and could go to state ­prison for over a year, and possibly for up to five years, depending on whether it’s the driver’s first, second, or third offense. Prior convictions for misdemeanor under-the-influence or over-0.08% driving count as prior offenses for the purpose of increasing the prison sentence. So do prior convictions of alcohol-related reckless driving. The jury (and sometimes the judge) will have the option of reducing the offense to a misdemeanor, but even in such cases, the person convicted could still spend up to a year in the county jail—and probably will, since judges take DUI extremely seriously under these circumstances. Also, a person faced with a fourth drunk-driving charge over a ten-year period may be charged with a felony, even where no one was ­injured as a result of the offense.