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The California DUI Manual

 

For Attorneys

 

 


 

Vehicle Code Sections

23152(a)

23152(b)

23152(d)

23103

23103.5

 


 

DUI

Wet Reckless

Dry Reckless

Hit & Run
Driving While Suspended

Driving While Revoked

 

Municipal Court

Superior Court
Administrative Appeals

DMV Hearings

 

 

 

 

California DUI Program Service Providers

 

 

 

I just got arrested for a California DUI.  What happens now?

 

ISSUE ONE:  The Implied Consent / Administrative License Suspension (Admin Per Se) Proceeding:  The most pressing matter may be requesting an appeal / hearing of your implied consent (administrative) license suspension.  Notice of this suspension is found on the "Order of Suspension / Revocation" given to you at the time of your arrest.

 

Under California law, every person who drives a motor vehicle in the State of California is deemed to have given his consent to chemical testing of his blood or breath for the purpose of determining the alcoholic content of his blood (BAC) if the person is lawfully arrested for a California DUI. This is known as California's "implied consent" law.

 

Pursuant to California's implied consent law, your drivers license (or your right to drive in California if you're not a California licensed driver) was most likely suspended for anywhere from four months to three years for failing (.08 BAC or higher (lower for minors; those on DUI probation; and those driving a commercial motor vehicle)) or refusing a breath test.  Refer to the table below:

 

CALIFORNIA IMPLIED CONSENT LICENSE ACTIONS FOR PERSONS 21 OF AGE OR OLDER
Implied Consent Action: 1st DUI 2nd DUI w/in past 10 years 3rd DUI w/in past 10 years
Test Failure:  .08% or greater on chemical (breath) test Four months
(suspension)
One year
(suspension)
One year
(suspension)
Test Refusal One year
(suspension)
Two years
(revocation)
Three years
(revocation)
Note:  Persons under 21 face a one year suspension if the chemical test results in .01% BAC or greater.  The penalties for refusing a chemical test are the same as for persons 21 years and older.

 

Read your paperwork carefully.  You generally have ten days from the date of your arrest to request an administrative hearing if you'd like to challenge this implied consent suspension / revocation.  This proceeding is commonly known as a "DMV hearing."

 

If you had a valid California driver license at the time of your arrest, the officer should have issued you a temporary license as part of the Order of Suspension / Revocation which is valid for the 30 days following your California DUI arrest.  Keep in mind, you face a second separate license suspension / revocation if you are convicted of the criminal charge.  See below.

 

If your Implied Consent / Administrative License Suspension is upheld on appeal (or if you don't appeal at all) you must do the following in order to reinstate your drivers license at the end of the suspension period:
  • pay a $125 fee to the DMV;
  • file proof of financial responsibility (usually an SR-22); and
  • maintain proof of financial responsibility (the SR-22) for three years.

ISSUE TWO:  The California DUI Criminal Charge:  Separate from the implied consent / administrative license suspension is the charge of driving under the influence (DUI).  You were probably arrested or cited for one form of driving under the influence: 

DUI or DUI Drugs.  Under California law, it is unlawful for any one who is under the influence of alcohol or drug(s) or a combination of alcohol and drug(s) to drive a vehicle.  “Under the influence” means as a result of using alcohol and / or drugs, your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.  See California Vehicle Code Section 23152(a).

Per Se DUI.  It is also unlawful for any person to drive a vehicle if the person has 0.08 percent or more alcohol in his or her blood whether or not the person is under the influence.  This is sometimes known as a "per se DUI."  There is a rebuttable presumption that you had 0.08 % or more of alcohol in your blood at the time of driving the vehicle if you had 0.08 % or more of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.  See CA Vehicle Code Section 23152(b).

Driving while Addicted.  It is also unlawful for any person who is addicted to the use of any drug to drive a vehicle unless participating in an approved treatment program.

Per Se DUI-Commercial Vehicle.  Finally, it is unlawful for any person who has 0.04 % or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle.  There is a rebuttable presumption that you had 0.04 % or more of alcohol in your blood at the time of driving the vehicle if the you had 0.04 % or more of alcohol in your blood at the time of the performance of a chemical test within three hours after the driving.  See CA Vehicle Code Section 23152(d).

Notice how the crimes do not refer to "drunk driving."  You can be under the influence so that you cannot legally operate a motor vehicle before you become "drunk" as that term is commonly defined. 

 

Each year, about 200,000 people are arrested for DUI in the State of California.  Please do not miss any court appearances or a warrant will be issued for your arrest. 

 

Important:  These two issues (the implied consent / administrative license suspension proceeding and the criminal DUI charge are separate and distinct from one another. 

 

What will happen to my California driver license?  Will my license be suspended or revoked as a result of my DUI arrest?

 

RELATED TO ISSUE ONE ABOVE:  Your California driver license (or your right to drive in California if you do not have a valid California license) may be suspended for failing―BAC .08% or greater (.01 % or higher for minors (persons under 21 years of age))―a breath or blood test or for refusing a breath, or blood test.  If you act quickly (typically within 10 days of your arrest), you can request an appeal of the proposed administrative license suspension for failing or refusing the test.  A hearing will then be scheduled on your appeal request. 

 

RELATED TO ISSUE TWO ABOVE:  If you are convicted of your California driving under the influence criminal charge you will also lose your license (or your right to drive in California if you don't have a valid California license).  This suspension generally lasts from 180 days to three years. 

 

Important:  These two suspensions are completely separate from one another and have no effect on one another.  Visualize two separate boxes that do not overlap:

 

Issue One Issue Two
‣  Implied Consent / Administrative License Suspension for failing or refusing a breath / blood test
  You face a suspension of 120 days or more for failing or refusing a chemical (breath / blood) test.
‣  You have the option of contesting this suspension by requesting a DMV Hearing in writing within 10 days of your arrest.
  ‣  Criminal charge / citation for Driving Under the Influence (and any other offenses)
‣  If you are convicted of a DUI charge you face a separate suspension of 180 days or longer depending on your DUI history.
‣  If you are convicted of a lesser charge (or found not guilty of the DUI) you may not face this second, additional suspension.

 

 

 

Also keep in mind that your California drivers license can be suspended for a variety of other reasons such as excessive points through the Negligent Operator Treatment System (NOTS).

 

I have a California commercial drivers license.  How long will my CDL be suspended for a DUI?

 

Any CDL holder who receives a DUI faces a likely one year suspension.  Refer to the table below for CDL suspension lengths for various scenarios.

 

CALIFORNIA CDL SUSPENSION LENGTHS FOR DUI RELATED INCIDENTS
INCIDENT FIRST OFFENSE SECOND OFFENSE
Any DUI conviction (regardless of whether you're in a CMV) one year lifetime
BAC of .04 % or greater while in a CMV one year lifetime
Breath test refusal (regardless of whether you're in a CMV) one year lifetime
Hit and Run conviction one year lifetime
Note 1:  If DUI is committed in a commercial vehicle while hauling hazardous materials the suspension is three years instead of one year.

 

What happens if I get caught driving while my California driving privilege (license) is suspended?

 

Driving while your license is suspended following a California DUI conviction is a new criminal offense.  If convicted of this charge, you face at least 10 days in jail and a fine of at least $300.  If you have a prior driving while privilege suspended / revoked (involving a DUI related suspension / revocation) in the last five years, you face at least 30 days in jail and at least a $500 fine.

 

It is also a crime to drive when your privileges have been suspended for failing or refusing a chemical (breath) test.  Jail time is possible (though not required) for a first offense.  A fine of at least $300 is also required.  If you have a prior driving while suspended / revoked (involving a DUI related suspension / revocation) in the past five years, you face at least 10 days jail as well as a fine.

 

If you're on probation for a California DUI, driving while suspended will violate your DUI probation and can result in additional incarceration as a probation violation or PV.

 

I really need to drive.  Will I be able to get a restricted / hardship / occupational / conditional / probationary permit?

 

A restricted driver's license may be available to you if your license is suspended and you had a valid California Driver's License at the time of your suspension.  If you have a valid non-commercial driver license and (1) demonstrate proof of enrollment in a DUI treatment program; (2) file proof of financial responsibility (an SR-22); and (3) pay a $125 fee, you may request a restricted license to drive to and from the DUI treatment program and to and from and during work.  The restricted license is available after a 30 day suspension / waiting period for a first DUI conviction within the past 10 years.

 

Longer waiting periods apply if you have prior DUI conviction(s) within the past 10 years.  However, effective July 1, 2010, the waiting periods to apply for a restricted license became significantly shorter if you install an ignition interlock device in your vehicle (see below).  Speak to your California DUI lawyer about whether you qualify and how to apply for this restricted license.  Restricted licenses are NOT available to drive commercially / commercial vehicles.


What is the difference between a DUI, DWI, OWI, OVI, OUI, DUII offense?

 

These terms are all acronyms that refer to the criminal offense commonly known as "drunk driving."  Different states have different names for the charge.  For example, in Oregon the charge is driving under the influence of an intoxicant or DUII; in Texas, New York, New Mexico, and many other states the charge is driving while intoxicated or DWI.  California law uses the phrase "driving under the influence" so the term DUI is commonly used here as it is in Arizona, Nevada, and the majority of other states.

 

Is a California DUI a criminal offense?

 

Yes.  A California driving under the influence charge is either a misdemeanor or a felony crime.


Is my DUI charge a misdemeanor or felony?

 

In the State of California, a DUI offense is usually a misdemeanor crime.  However, a California DUI becomes a felony offense if:

  • your DUI involves bodily injury to another person; or

  • it is your fourth or greater DUI offense in the past 10 years (you have 3+ prior DUI / DWI convictions in past 10 years);

  • you have a prior felony DUI conviction; or

  • you have a prior conviction for gross vehicular manslaughter while intoxicated; or

  • you have a prior conviction for vehicular manslaughter while intoxicated but without gross negligence.

A felony DUI in California is quite serious and comes with the possibility of prison time.

 

What type of penalties might I face if I am convicted of a misdemeanor California DUI offense?

 

As noted above, most California DUI's are misdemeanor crimes.  Upon conviction, a defendant can receive a variety of penalties including alcohol treatment / education lasting anywhere from at least three months for a first conviction to 18 to 30 months for a second conviction. 

To find out which program you require, contact the Court in the city or county where you appeared for sentencing  or you may contact the DMV at 916.657.6525.

A range of typical penalties for misdemeanor DUI offenses is set forth below: 

 


CALIFORNIA DUI PENALTY AND SENTENCING CHART

CONVICTION
TYPICAL SENTENCE / RANGE OF PENALTIES

FIRST DUI CONVICTION
misdemeanor
  • court aka bench probation for three to five years;
  • a fine of between $390 and $1000 plus other fees and assessments;
  • at least 2 days jail;
  • 6 month driver license suspension if BAC is under .20 % (for a BAC of .20% or more, a 10 month suspension);
  • alcohol classes / treatment / DUI school for either 3 months (BAC .19 % or less) or 9 months (BAC .20 % or greater or test refusal)
SECOND DUI CONVICTION
(2nd offense w/in 10 years)
misdemeanor
  • court aka bench probation for three to five years;
  • a fine of between $390 and $1000 plus other fees and assessments;
  • 4 - 30 days jail;
  • 2 year license suspension;
  • 18 / 30 months of alcohol classes / treatment / DUI school.
THIRD DUI CONVICTION
(3rd offense w/in past 10 years)
misdemeanor
  • court or formal aka supervised probation;
  • fines and fees and assessments under $3000;
  • 4 - 7 months jail;
  • 3 year license revocation (10 years effective 1.1.2012);
  • 30 months of alcohol classes / DUI school.
FOURTH DUI CONVICTION
( a 4th offense w/in past 10 years is a felony)
  • court or formal aka supervised probation;
  • fines and fees and assessments under $3000;
  • 6 - 12 months jail;
  • 4 year license revocation (10 years effective 1.1.2012);
  • 30 months of alcohol classes / DUI school.
Note 1:  Penalties increase significantly if you injure someone as part of your DUI charge.

Will I be able to plea bargain / negotiate my California DUI down to a different / lesser offense?

Possibly.  Plea bargaining / charge reduction are areas that any experienced California DUI lawyer would discuss with the prosecutor on the client's behalf.  A plea to the charge of reckless driving (reckless driving involving alcohol or drugs also known as a "wet reckless") may be possible in some situations.  See CA Vehicle Code Sections 23103, 23103.5.  Statewide, only about 7 to 10% of DUI arrests end up with a wet reckless plea.

If allowed to plea to a wet reckless, you will not face an additional license suspension (beyond your implied consent suspension).  You will, however, face a period of probation, a fine, and be required to complete a short treatment program.  Jail time is also possible though not required.  Statewide, about seven percent of California DUI arrests end in wet reckless convictions. 

Your lawyer can give you more information about possible plea bargains / negotiations.

Will a DUI conviction go on "my record?"

Yes.  A California DUI conviction will go on your California driving record.  A California DUI will stay on your driving record for 10 years for insurance (and other) purposes.  [Formerly, your insurance company could get your DUI record only going back seven years.]  A "wet" reckless will be reported to insurance companies only for seven years (although the courts and law enforcement may view incidents older than seven years).

My DUI involved an accident.  Do I need to file an accident report?

If you are involved in a vehicle accident in California whether or not it involved a DUI, you must report it to DMV if:

  • There was property damage of more than $750; or
  • any one was injured (no matter how minor) or killed.

Each driver must make a report to DMV within 10 days regardless of fault.  If you missed this deadline, go ahead and file the report late. 

Just how much jail / prison time will I have to do if I am convicted of a DUI in California?

The amount of incarceration (jail or prison) received for a California DUI conviction will depend on a number of factors, including (but not limited to) the following:

  • your prior driving record especially your DUI / DWI / OWI history (in the State of California or elsewhere);

  • your level of impairment / blood alcohol content (a BAC of 0.15 percent or higher may result in stronger penalties);

  • whether there was a test refusal;

  • whether there was a collision involved;

  • whether there was excessive speed (or reckless driving) involved;

  • whether there was injury to another person in the collision;

  • which California county or city court your case is in;

  • what judge you are sentenced by;

  • whether there was a passenger in your car (especially a child passenger under 14 years of age).

Will I have go to alcohol classes / treatment / DUI school?

If you are convicted of a California DUI you will be required to complete a program of treatment.  The DUI school / program typically lasts 3 (BAC < .20) or 9 months (BAC .20 or greater or a test refusal) for a first DUI offense; 18 months for a second DUI offense; and 30 months for a third or greater California DUI conviction.

Completion of a 12 hour alcohol treatment program (often 6 two hour classes) is also typically required for a conviction of a wet reckless offense.  Attendance at some AA meetings may also be required.

There are more than 470 treatment providers throughout California.  DUI programs can be found in every county other than Alpine.  There is a link to a directory of providers on the right side of this website.

I am licensed to drive in a state other than California (e.g. Nevada / Arizona / Oregon) and I was arrested for a DUI in California.  Will my drivers license be suspended or revoked?

California only has the authority to suspend your right to drive in the State of California.  However, California and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact."  Pursuant to this Compact, California will report a California DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your own state will then generally take action to suspend your license.

This also works in reverse.  If you are a California licensed driver and you are convicted of a DUI charge in another state, California will likely suspend your license if it learns of the out of state conviction. 

Admin Per Se (implied consent) suspensions are sometimes reported from state to state as well.  But this is less common than conviction based suspensions.

Will I have to install an Ignition Interlock Device on my car?

 

An ignition interlock device sometimes known as an IID is a breath alcohol measurement device that is connected to a motor vehicle ignition.  In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration.  If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.  The device also requires rolling re-tests to prevent cheating on start up.

 

You will likely have to install an ignition interlock device in your car if you are convicted of a second DUI offense in California or if you're convicted of a DWS for a DUI conviction.  The court has discretion (but is not required) to order installation of an IID on a first DUI conviction.  Talk to your California DUI lawyer about whether this requirement applies to your situation.

 

Effective July 1, 2010, if you're convicted of a first DUI in either Alameda County, Los Angeles County, Sacramento County, or Tulare County you will have to install an ignition interlock device in your vehicle for at least five months.  This is a pilot project, and it could be eventually expanded to other counties.

 

Generally, it costs about $120 to install and ignition interlock device and monthly fees run about $60 to $70. 

What will a California DUI do to my ability to obtain or keep insurance on my car?

If your insurance company finds out about a California DUI one of two things are likely to happen.  Either your insurer will raise your rates or you may be cancelled or non-renewed.  Your insurance company will absolutely learn of your DUI if you have to file a California Insurance Proof Certificate / SR-22.  A California DUI conviction will be available to your insurance company for ten years.

What is an SR-22 / California Insurance Proof Certificate?

An SR-22 is a Insurance Proof Certificate from a California licensed insurance company certifying that you have purchased liability insurance that meets the minimum required coverage limits for your motor vehicle.  The Insurance Proof Certificate provides proof to the California DMV that you are insured.  If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, your insurance company must notify the DMV that the certificate is canceled.  If you are asked to have a Certificate of Insurance SR-22 on file with DMV, a copy of your insurance binder or your insurance card is not considered acceptable proof of insurance.

You will be required to file and maintain an SR-22 for three years in order to reinstate your license following an Admin Per Se suspension and / or for a conviction based suspension / revocation.

Are there any concerns for mariners licensed by the United States Coast Guard who get a California DUI?

 

Yes.  An applicant for a Coast Guard credential must disclose all criminal convictions on their application form.  In addition, the Regional Exam Center performs a check of the National Driver Register on applicants.  Once a DUI conviction is identified, the Regional Exam Center evaluates the applicant's reported conviction and associated facts.

I'm not a United States citizen.  Will a California DUI conviction result in my removal from this country?

Probably not.  A typical misdemeanor California DUI conviction (no priors; no injury accident) is not considered a crime of moral turpitude or an aggravated felony resulting in removal from the United States.  HOWEVER, if you are not a US citizen, it is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced California criminal defense attorney about your pending DUI charge. 

Keep two points in mind.  First, it is very important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and forms.  Lying on these forms is often considered more serious than the criminal conviction you're hoping to hide.  Second, non-citizens must take extra care not to drive on a suspended or revoked license.

I missed my court appearance.  What do I do now?

Failing to appear (FTA) for a California court appearance should be avoided.  When you miss court, bad things happen.  At a minimum, the California court typically issues a warrant for your arrest (known as a bench warrant).  Talk to an attorney as soon as possible.  Sometimes, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.

If you live outside of California and you're facing a misdemeanor DUI charge, you may be able to have a California lawyer appear in your place for most court appearances assuming that you hire a California attorney ahead of time. 

What happens if I was on probation when I got arrested for my California DUI offense?

Committing a new criminal offense while you're on probation for a previous crime creates two problems.  First, you face the new DUI charge.  Second, you face a probation violation hearing for failing to obey all laws (a standard condition of all probations).  The most serious scenario is when you receive a new California DUI offense when you're already on probation for an earlier DUI.  When this happens, its in your best interest to speak to a California DUI lawyer as soon as possible.

I'm a nurse and received a DUI.  Is there anything I need to know?

If you feel that you have a substance abuse problem, you may want to consider contacting the California Board of Nursing Diversion Program for assistance.  Learn more about the program here.  Nurses also have to disclose criminal convictions including DUI's when renewing their license.  Learn more here.

I'm a licensed professional in California and received a DUI.  What are my obligations?

Physicians licensed in California are required by law to notify the Medical Board of certain occurrences including convictions of the licensee of any felony or misdemeanor crimes including DUI's.  Convictions include any guilty verdict, plea of guilty, or plea of no contest.  Learn more here.

Lawyers are required to self-report any felony or misdemeanor convictions including DUI offenses.  Convictions include guilty verdicts, guilty pleas and no contest pleas. 

Are there special concerns for licensed pilots who get charged with a California DUI?

 

Yes.  The FAA has mandatory reporting requirements for California DUI convictions and administrative per se (implied consent) driver license suspensions.  Learn more about the FAA reporting requirements here.  Getting a DUI will not necessarily jeopardize your pilot license; however you must report the offense and / or implied consent suspension.  You must also follow up on any request for information from the FAA.

Can I represent myself in court on my California DUI and / or other criminal charge(s)?

Yes.  You have an absolute right to represent yourself on any California criminal charge no matter how serious the offense including a California DUI.  Keep in mind that criminal defense and particularly DUI defense are complex areas of law as shown by the information above.  If you cannot afford to hire your own attorney, you definitely should apply for court appointed counsel to represent you.  You have no right to court appointed counsel (a public defender) at the implied consent license (DMV) hearing.

Short Answers to Miscellaneous California DUI Questions
Q.  Does a Texas DWI count as a prior DUI in California?
A.  Yes.  Any kind of of DUI-type conviction in other states will count as a prior DUI in California.  So yes out of state convictions count the same as a prior in state DUI. 

Q.  Does California report DUI convictions to Oregon?
A.  Yes.  If you're licensed in Oregon and you're convicted of a DUI in California, California will notify the Oregon DMV of the conviction.  Oregon will then move to suspend your ODL for one year or more (depending on your DUI history).

Q.  Will I be able to enter Canada if my California DUI was ultimately dismissed.
A.  Yes.  You can freely enter Canada if your DUI charge was dismissed (resulting in no conviction).

Q.  Will a California DUI conviction prevent me from entering Mexico?
A.  Unlike Canada, Mexico does not bar visitors with California DUI convictions.  However, if you're on probation for your DUI charge, make sure you have permission to travel outside of the state.

Q.  Can I get a DUI in California if I'm high on drugs?
A.  Yes.  In California, it is illegal to drive a vehicle while you're under the influence of alcohol or drugs.

Q.  Will my driver's license be suspended if I refuse a field sobriety test?
A.  California does not suspend your license for refusing field sobriety tests.  You will face a license suspension for failing or refusing a breath test.  You also face a separate suspension if you're convicted of a DUI.

Q.  What happens if I don't pay my DUI fines in California?
A.  Failing to pay your financial obligations will violate your probation on a DUI sentence.  The court could impose jail time for this or any other probation violation.

Q.  What happens if I don't complete my community service for a California DUI conviction?
A.  See above.

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