Driving Under the Influence

California Laws

Important Statutes

The Charges

"Driving Under the Influence"
California Vehicle Code section 23152(a):

"It is unlawful for any person who is under the influence of
any alcoholic beverage or drug, or under the combined influence
of any alcoholic beverage and drug to drive a vehicle."

"Driving with a Blood Alcohol Level of .08% or more"
California Vehicle Code section 23152(b):

"It is unlawful for any person who has 0.08 percent or more, by weight,
of alcohol in his or her blood to drive a vehicle."

You can be charged and convicted of one or both of these offenses when you are arrested for driving under the influence. Both offenses are misdemeanors and carry the same penalties.

Enhancements

Excessive Blood Alcohol

If your blood alcohol level is .20 or more. the court may enhance your penalty. C.V.C. 23206.1

Excessive Speed

If you operate a motor vehicle, while under the influence, at speeds in excess of 30 miles/hour over the posted speed limit on a freeway or 20 miles/hour over the posted speed limit on a surface street, you will be required to serve as a condition of probation an additional thirty (60) days in jail. This penalty is added to the underlying penalty for driving under the influence. C.V.C. 23582(a)

Minor Passenger

If you are convicted of driving under the influence and a minor under the age of fourteen(14) years of age was a passenger at the time, your sentence will be enhanced by an addition 48 hours in jail, 10 days, 30 days, or 90 days depending on your number of prior convictions. C.V.C. 23572(a)

Refusal to Take Alcohol Test

If you have a prior conviction the court must add an additional 96 hours to your sentence.

Penalties if Convicted

Prior Convictions

	No Priors	1 Prior	2 Priors	3 Priors
Jail Time	48hours-6Months	10 Days- 6Months (96 hours in Jail)	120 Days- 1 Year	180 Days- 1 Year
Fines	$390.00-$1,000+ Penalty Assessments	$390.00-$1,000+ Penalty Assessments	$390.00-$1,000+ Penalty Assessment	$390.00-$1,000+ Penalty Assessment
Programs	6 Month Program	18 Month Program	18 Month Program opt.	30 Month Program
License*	90 License Restriction	18 Month License Restriction or 2 Year Suspension	3 Year License Revocation	3 Year License Revocation

* The license restriction/suspension imposed by the court is separate from any suspension or restriction imposed by the Dept. of Motor Vehicles.

If you have three or more prior convictions for driving under the influence with offense dates within the last seven years or a prior felony conviction for driving under the influence within the last ten years, your new case can be filed as a felony. The potential penalty, if convicted, is up to three years in state prison.

The chart lists the minimum and maximum statutory penalties. You should contact an attorney who practices in the location of your arrest to determine the standard sentencing practices of your particular jurisdiction.

California License Suspension Laws

In California, if you are arrested for a DUI and you either submit to a blood alcohol test with a result of .08% or higher or refuse to submit to a blood alcohol test your license will be automatically suspended. This license suspension is independent and separate from any action that the court may take against your license. The Department of Motor Vehicles will suspend your license even though the court may dismiss charges against you or criminal charges are never filed against you.

IF YOU ARE ARRESTED FOR A DUI, YOU MUST REQUEST A DMV HEARING WITHIN TEN DAYS OF YOUR ARREST TO CONTEST THE SUSPENSION. FAILURE TO MAKE THIS REQUEST, WAIVES YOUR RIGHT TO CONTEST YOUR SUSPENSION. IF YOU REQUEST A HEARING, YOU MAY ALSO BE ENTITLED TO A STAY OF ANY LICENSE SUSPENSION PENDING THE HEARING.

DMV TYPICAL SUSPENSION PERIODS

	No Priors	1 Prior	2 Priors	3 Priors
BLOOD ALCOHOL TEST RESULT .O8% OR HIGHER	4 Month License Suspension or 1 Month Suspension w/ 5 Month Restriction	One Year License Suspension	Three Year License Revocation	Three Years License Revocation
REFUSAL	One Year Suspension	Two Year License Suspension	Three Year License Revocation	Three Year License Revocation

Frequently Asked Questions

	Do I have to appear in court if I am represented by an attorney? No, an attorney can appear on your behalf as long as you are charged with a misdemeanor.
	Can I drive following my arrest? Maybe, if you receive an administrative per se suspension you have a temporary license for thirty days then your suspension will go into effect. You can obtain a stay on any suspension imposed if you request a hearing to contest the suspension and also request a stay of the suspension. A request for a hearing and a stay of the license suspension must be made within 10 days of your arrest. If a stay is granted, you privilege to operate a motor vehicle in California remains valid until your APS hearing is held and the DMV renders a decision.
	My blood alcohol level was .08%, do I have a chance to beat the case? Yes, the blood alcohol test result is only one fact that an attorney considers when litigating a DUI case. The test result only tells us what your blood alcohol level was at the time of the test, not what your blood alcohol level was at the time you were operating the vehicle. Also the Intoxilyzer 5000, breath machine does not necessary provide an accurate measure of your blood alcohol level. An attorney will look at other technical defenses to your case, involving the propriety of your detention and arrest.
	My blood alcohol level was high, should I just plead guilty? There are other factors that could dramatically affect the outcome of your case. At a minimum, you should have a qualified attorney evaluate your case to determine whether you have a legal challenged to the legality of your stop, detention and arrest. Also, your blood alcohol test result is only the starting point in determining whether you were under the influence at the time that you were in fact operating the vehicle. A detailed evaluation must be conducted to determine all legal and factual defenses that you may have. There are numerous cases where individuals with high blood alcohol levels have their cases dismissed or reduced to lesser offenses as a result of legal challenges to the stop/detention and the validity of the blood alcohol testing.
	The officer gave me a hand held breath test right after stopping me, is that test result valid? The California Administrative Code requires that the officer must wait a minimum of 15 minutes, and must maintain constant observation of the defendant, prior to the administration of a breath alcohol test. The failure to wait the requisite 15 minute period can be a basis to challenged the admissibility of the test result.

	Does the officer have to give me my "rights" when he arrests me? No, the only time that an officer must advise you of your Miranda Rights is when he is taking a custodial statement from you.
	Can I get my police reports? Most jurisdictions will only release the arrest reports to your attorney or to the individual defendant if the defendant has been granted the right to represent himself.
	Do I have the right to speak to an attorney prior to selecting a blood alcohol test? No, unfortunately you do not have the right to wait to speak to counsel prior to taking a blood alcohol test.
	If I refuse to take a test and then the officer forcibly takes a blood test from me, will the DMV hold my refusal against me? Yes, if you initially refuse and then take a test, either voluntarily or involuntarily, the DMV will still treat the offense as a refusal and suspend your license. In addition, the court can impose additional jail time for your refusal to submit to a test.
	Which test should I take if I am arrested for a DUI? Because you have the right to request a blood test following a breath test, I would always take the breath test. If you believe that the breath test may be incorrect, then you can request that an additional blood sample be drawn. The blood sample is the most accurate method for testing blood alcohol content. The downside with a blood sample is that the results are not available for a number of weeks. If you are under the legal limit on a breath test, the officer may release you without filing charges against you.
	I know I was over the legal limit, should I still request a DMV hearing? The general rule is yes. There is no downside risk to requesting a DMV hearing. The worst thing that they can do to you is what they have already done, that's suspend your license. By requesting a hearing and a stay of the suspension, you can delay the imposition of the suspension.
	Can my case be reduced to a reckless driving? Whether your case is reduced to an alcohol related reckless driving or a dry reckless driving depends entirely on the facts of your case. If the prosecution has difficulties establishing the charges against you due to a low blood alcohol level or an issue with respect to the propriety of the stop, charges are often reduced to offenses other than driving under the influence.
	What can I expect at my first court date? If you are represented by an attorney, you generally do not have to appear at your first court appearance. Your attorney will appear on your behalf and continue your case to obtain the reports and conduct the necessary investigation. If you appear on your own, you will be advised of the charges against you and the court will make a determination as to the status of you legal counsel, i.e. whether your will be obtaining your own attorney, representing yourself, or requesting the services of the public defender.
	Should I represent myself? It is never wise to represent yourself on any criminal charge, particularly one like a DUI which carries both significant penal consequences, e.g. jail time, fines, alcohol schools, probation, and collateral consequences, e.g. license suspension, higher insurance rates, employment impact. DUI charges are some of the most complex and legally sophisticated criminal offenses that require careful legal analysis by an attorney who has expertise in the sub-area of criminal practice.