California Crimes - Drunk Driving Offenses

Drunken driving charges are very serious charges which one should not take lightly.  Convictions can cause the driver to not only face jail time and probation, but also the very likely possibility of loosing the privilege of having a valid driver’s license. California Vehicle Code, specifically, Vehicle Code sections 23152(a) and 23152(b), are the two most used statues in cases involving drunk drivers. Under 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.” Under subsection (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. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”  Therefore, one can be convicted of violating this statue even if her/his blood alcohol content is less than the .08 mark (BAC.)  This is an important factor which sometimes causes a lot of confusion for clients who are not familiar with the code section.  Some of the penalties imposed by the courts on those convicted of drunk driving are as follows:

First Offense:

    * License Suspension: 4 Months (or 1 month suspension with 5 month restriction)
    * Probation: 1-5 Years (generally 3 years)
    * Alcohol Classes (Level 1, or AB-541 Alcohol Education Program): 6 Months
    * Fines: $390.00 to $1,000.00 + penalties & assessments
    * Potential Jail time: 0 to 6 Months

Second Offense:

    * License Suspension: 1 to 2 Years
    * Probation: 1-5 Years
    * Alcohol Classes: 18 Months
    * AA Meetings
    * Fines: $390.00 to $1,000.00 + penalties & assessments
    * Potential Jai time: 96 hours to 1 Year

Third Offense:

    * License Suspension: 3 Years
    * Probation: 1-5 Years
    * Alcohol Classes: 18 Months
    * AA Meetings
    * Fines: $390.00 to $1,000.00 + penalties & assessments
    * Potential Jail time: 4 Months to 1 Year
    * Ignition Interlock Device installed on vehicle

Fourth Offense:

    * License Suspension: 4 Years
    * Probation: Can be state prison term or 1-5 Years
    * Alcohol Classes: 18 Months
    * AA Meetings
    * Potential Fines: $390.00 to $1,000.00 + penalties & assessments 
    * Potential Jail time: 6 Months to 3 Years
    * Ignition Interlock Device installed on vehicle

Of course if there was an accident involving injury to one other than the driver then the DAs office may charge the crime as a felony under Vehicle Code Section 23153 “(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” or Vehicle Code section 23153 (b) "It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."

In the following instances the district attorneys office has the option of charging the defendant with what are called “enhancements” which add to the potential penalties:

    * A child under 14 was in the car at the time (Vehicle Code Section 23572.)
    * The defendant was traveling 20 or 30 miles over the speed limit at the time (Vehicle Code 23582.)
    * The blood-alcohol concentration (BAC) was over .20%.
    * The defendant refused to submit to a chemical test ( Vehicle Code Section 23577.)
    * There was property damage or injury.
    * The defendant was under 21 (the blood alcohol level test is much lower and the suspension much longer.)

Wet Reckless or Reckless Driving Involving Alcohol (Same as a DUI For The Purposes Of Future Offense)

California Vehicle Code§ 23103.5

a. When the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of Section 23152, the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of any alcoholic beverage or ingestion or administration of any drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of any alcoholic beverage or the ingestion or administration of any drug by the defendant in connection with the offense.


b. The court shall advise the defendant, prior to the acceptance of the plea offered pursuant to a factual statement pursuant to subdivision (a), of the consequences of a conviction of a violation of Section 23103 as set forth in subdivision (c).


c. If the court accepts the defendant's plea of guilty or nolo contendere to a charge of a violation of Section 23103 and the prosecutor's statement under subdivision (a) states that there was consumption of any alcoholic beverage or the ingestion or administration of any drugs by the defendant in connection with the offense, the resulting conviction shall be a prior offense for the purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622, as specified in those sections.


d. The court shall notify the Department of Motor Vehicles of each conviction of Section 23103 that is required under this section to be a prior offense for purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622.


e. If the court places the defendant on probation for a conviction of Section 23103 that is required under this section to be a prior offense for purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622, the court shall order the defendant to enroll in an alcohol and drug education program licensed under Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code and complete, at a minimum, the educational component of that program, as a condition of probation. If compelling circumstances exist that mitigate against including the education component in the order, the court may make an affirmative finding to that effect. The court shall state the compelling circumstances and the affirmative finding on the record, and may, in these cases, exclude the educational component from the order.


f. The Department of Motor Vehicles shall include in its annual report to the Legislature under Section 1821 an evaluation of the effectiveness of the program described in subdivision (e) as to treating persons convicted of violating Section 23103.

Attorneys of Criminal Defense Team have handled many DUI and DUI with injury cases in Orange County, Riverside County, San Bernardino County, Los Angeles County and San Diego county criminal courts.  Please call us at (888) 529-2188 for a free consultation with an experienced criminal defense attorney.

DMV Process:

 In addition to the penalties imposed by the criminal courts, the Department of Motor Vehicles (DMV) will also impose certain penalties on one convicted of a DUI or found by the DMV to be in violation of the code as determined in an administrative hearing. To begin with anyone who has been arrested for a Dui must remember that they only have ten (10) days to request a hearing from the DMV from the time that their driver’s license is confiscated.  Failure to make a timely request will result in the accused’s drivers license being suspended (revoked) without a hearing. If a timely request for the hearing is made, then a qualified attorney (of the driver) can request the necessary documents from the department and appear and argue against suspension or revocation. This hearing also referred to as the Administrative Per Se Hearing) conducted by a hearing officer who is an employee of the DMV. The officer will act as the judge, the prosecutor and the jury. She will listen to the arguments made by the driver or his attorney and usually make a ruling via mail and in a few days. Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer's sworn affidavit. Because there is no right to remain silent under the Fifth Amendment to the United States Constitution at the hearing, the attorney may or may not choose to have the client at the hearing since he can be called by the hearing officer as a witness. In general the officer will only look at three questions: 1) did the arresting officer have reasonable cause to believe that the driver was driving under the influence; 2) was the arrest lawful, and; 3) was the driver’s blood alcohol level.08 or higher at the time of driving. The only penalty that the department can impose is the suspension and or revocation of the driver’s license. If the decision is not acceptable to the driver he or she can appeal to the DMV in Sacramento and/or to the courts by filing a "writ".

How to Fight a DUI Case:

The law requires that an officer who makes the stop that leads to a DUI charge have probable cause before he makes the stop and the arrest. Typically, this probable cause can be established by observing a violation of a law (speeding) or symptoms of drunkenness.  Most agencies require that Standardized Field Sobriety Tests (FST) be given, correctly, and perhaps a field breathalyzer, or PAS machine, to establish alcohol in your blood. Of course the driver who is being arrested must be warned of his/her Miranda right that allows him or her to remain silent and not make any statements that can be used against him/her.

The driver has right to refuse the FST's, or even have the right to refuse a blood, breath, or urine test, but such right is exercised then the driver’s license will be suspended for one year.  There are also many rules and regulations that deal with how each test is to be administered and in what condition the tools used need to be. An attorney experienced in this complicated field can pinpoint to prosecutions weaknesses and assist the driver is receiving a fair trial.

Criminal Defense Team has handled hundreds of DUI cases in almost all major Southern California Courts and has received impressive results. Our attorneys have litigated DUI charges with or without enhancements and as misdemeanors and felonies in Orange County criminal courts, San Bernardino Criminal Courts, Riverside Criminal Courts, San Diego Criminal courts, and Los Angeles Criminal Courts. Call us for a free consultation today.