In California, driving under the influence (DUI) is a "priorable" offense. That means that the penalties for a second DUI are more serious than for an initial conviction, and they increase in severity with each subsequent offense.
The consequences of a second DUI can include fines, loss of driving privileges, mandatory attendance of substance abuse classes, probation, jail time or even incarceration in state prison, depending on the circumstances. Anyone driving in California should have a basic understanding of the consequences of a second DUI conviction and consider consulting a DUI lawyer if the situation arises.
California DUI: Driving Under the Influence
In California, it is illegal to drive under the influence of alcohol or any other substance that impairs the ability to operate a motor vehicle. The vast majority of DUI arrests are alcohol-related, and California laws set out several ways the state can prove their case.
The basic state laws that make driving under the influence illegal are set out in California Vehicle Code Section 23152. The first subsection of that statute makes it illegal for a person to drive a vehicle in the state under the influence of alcohol. The following subsections set out the blood alcohol content (BAC) rules. These are particularly important to the prosecution of DUI cases since they set blood alcohol content limits that, if exceeded, establish as a matter of law that the person is under the influence of alcohol.
California DUI Violations Per Se
Subsection (a) of California Vehicle Code Section 23153 makes it illegal for a person to drive under the influence of alcohol. Under this provision, the state has the burden of proving that the person's driving was impaired beyond a reasonable doubt. This is not always easy.
However, under subsection (b), it is illegal to drive with a BAC of 0.08 percent or greater. Other subsections make it illegal to drive a commercial vehicle or carry a paying passenger with a BAC of 0.40 or greater.
A driver stopped for a DUI is required by law to submit to a chemical test such as a blood, breath or urine test. If the test establishes a BAC above the legal limits, the driver is in violation of the statute as a matter of law without further proof. This is called a DUI per se, meaning by operation of law. The BAC testing laws make proving a DUI easier.
DUI Consequences and Penalties
A conviction for driving under the influence carries considerable penalties in California. Anyone convicted of a DUI can lose their driver's license and the right to drive even before they are found guilty. This is called an admin per se license suspension. The Department of Motor Vehicles (DMV) imposes a license suspension within 30 days after the arrest unless the driver asks for a hearing. At the DMV hearing, the driver must convince the DMV not to suspend.
Once the driver goes to trial and is convicted, they face additional penalties. These can include additional restricted license terms or more suspension time; fines; court assessment payments; restitution payments; probation; time in county jail or even state prison, in certain cases. The court can also order the driver to install a small breathalyzer device in their vehicle called an ignition interlock device, or IID. The car will operate only if the driver's breath tests clear of alcohol.
Another consequence is being ordered to attend what is commonly called DUI school, a lengthy educational program about substance abuse and safe driving that the driver must pay for. It is also likely that the convicted driver will have to pay other costs, like the cost of having the car towed after arrest, the cost of a DUI defense attorney and additional insurance premiums.
Priorable Offenses for a DUI Charge
DUIs in California are “priorable," which means that a driver arrested for a DUI will face tougher penalties if they have prior DUI convictions on their record in the past decade than for a first offense. The penalties are even greater for a third offense (when compared to a first or second offense) and continue to increase with each subsequent offense.
Penalties can also increase for a DUI if the drunk driving caused injury to another person. Most DUIs are charged as misdemeanors, a less serious category of crime than felonies. But the state can opt to charge a driver with a felony DUI if they have a large number of prior DUI offenses in the past 10 years or if their driving caused injury or death to another person.
Penalties for a Second DUI Offense
The penalties for a second-time DUI apply to the second DUI conviction within a 10-year period. If more than 10 years have passed since the date of the first DUI, a second DUI is treated as a first offense under California law.
The penalties for a second DUI include: summary probation for up to five years; at least 96 hours in county jail, but jail sentences up to a year; a fine of between $390 and $1,000; mandatory attendance at a court-approved DUI school for a period of either 18 months or 30 months; and either a two-year license suspension or one year of driving with an ignition interlock device. A commercial driver with a second DUI conviction faces permanent revocation of their commercial driving license.
Aggravating Factors Increase Second Offense DUI Penalties
Some circumstances will increase the penalties for a DUI conviction, regardless of whether the driver has prior DUIs. The severity of the additional penalty depends on the facts of the case and the driver's prior criminal record, but any one of these factors can increase incarceration time. A driver in this situation might consider bringing in a defense attorney to prepare a DUI defense.
Common aggravating factors include DUI driving at an excessive speed or with an extremely high BAC, causing an accident or refusing to submit to a chemical test to determine blood alcohol level. If a driver is stopped for a DUI and has a child under the age of 14 in the car, this can serve as an aggravating factor or lead to a criminal child endangerment charge.
Second DUI With Injuries
If someone is injured or killed as a consequence of a driver's DUI, it is a separate crime under California Vehicle Code Section 23153. It is called a wobbler offense, meaning the state can charge the DUI as a misdemeanor or a felony, the more serious type of crime in California. In either event, the penalties are greater than for a regular second DUI, and a felony DUI with injuries carries much greater penalties.
A misdemeanor DUI with injuries results in at least five days in county jail and up to a year. The fine and DUI school time will likely be greater, and restitution to all parties can be required.
For a felony DUI with injuries, the penalties increase dramatically. They include a term of incarceration in a California state prison for at least 16 months to 10 years. An additional, consecutive prison sentence of up to six years can be ordered if multiple people were injured severely. If someone is killed, manslaughter or homicide charges can also be filed.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.