California DUI laws are tough, calculated to make people think twice before drinking and driving in this state. Anyone picked up for driving under the influence (DUI) risks jail time, even if it is a first offense. Prior DUIs up the ante, and a fourth conviction in a 10-year period is charged as a felony. Here's an overview of the laws in California and the consequences for breaking them.
Alcohol DUIs in California
A driver can get a DUI for alcohol in two different ways. If a police officer stops a driver who appears to be drunk and the driver fails the tests for sobriety, they can be charged under California Vehicle Code Section 23152(a). This is the general provision that makes it illegal to drive under the influence of any alcoholic beverage.
The second type of DUI offense is described in California Vehicle Code Section 23152(b). This section makes it illegal for anyone to drive in California with 0.08 percent or more, by weight, of alcohol in their blood. The blood alcohol concentration (BAC) is determined by a chemical test, most often a breath test, but urine and blood tests can also specify BAC. When a driver's BAC is shown to be over 0.08 percent – or 0.04 percent for commercial drivers or carrying paying passengers – no other proof of alcohol impairment or being under the influence is required.
Underage Alcohol DUI
In California, individuals must be at least 21 years old to drink alcohol. Because of that, special DUI rules apply to those under 21 years. Vehicle Code Section 23136 sets out California’s "zero tolerance” law on underage drinking and driving. If a breathalyzer test shows that an underage person has even a 0.01 percent BAC – any alcohol at all in the person's system – they are guilty under this section. No impairment need be shown. However, this is a civil offense, not a crime, so the sole penalty is suspension or revocation of the driver’s license by the DMV.
In addition, there is a second statute that applies to underage drinking and driving. Vehicle Code Section 23140 forbids anyone under 21 to drive with a BAC of .05 percent or higher. This is known as "underage DUI with a BAC of 0.05.” Violation of this law is a California infraction, not a crime, and penalties include a suspension of the person's driving privileges, driver's license and a fine.
Refusing BAC Testing in California
What happens if a driver refuses to take a chemical test to determine BAC? The consequences depend on when the refusal occurs. In California, a police officer can request a breath test at two different points in a DUI stop. The first is during the traffic stop itself, before a dui arrest. That type of test is called a PAS, and taking it is completely optional. If the driver opts not to take it, there are no consequences.
However, once the driver is arrested, formal testing is required as a matter of law. Anyone refusing the test after a DUI arrest faces an additional charge of refusal. This refusal carries severe consequences, according to Los Angeles DUI Lawyer, including supplemental jail time and a longer period of license suspension. The result can considerably up the penalty imposed.
For example, generally a first-offender charged with DUI would face only a few months of license suspension and no jail time. But if the driver also refused to take a chemical test, the additional penalties would require 48 hours in jail and an entire year of license suspension.
DUI Drugs in California
Most of us think of driving under the influence as an alcohol-related offense, and most of the time it is in California. But Vehicle Code Section 23152 also makes driving under the influence of drugs a violation. These types of DUI violations are called DUI Drugs, or DUIDs.
Many of the standards and consequences for DUIDs are the same as for alcohol DUIs, according to Shouse Law Firm, but some details differ. For example, a person arrested for a DUID is not subject to the automatic DMV license revocation. This applies only to an arrest for driving under the influence of alcohol.
California has two vehicle code sections relating to driving under the influence of drugs.The first is Vehicle Code Section 23152(f) that makes it illegal for anyone to drive under the influence of drugs. The second, Vehicle Code Section 23152(g), makes it illegal for anyone to drive a vehicle under the combined influence of drugs and alcohol.
Under the Influence of Drugs
Unlike with alcohol, there is no set limit for the amount a person must ingest to be considered under the influence of drugs, according to the Law Offices of Randy Collins. Even the term, drugs, is somewhat vague. It is defined generally as substances other than alcohol that could appreciably impair a person's ability to drive as an ordinary cautious person would drive under similar circumstances.
That means that both legal and illegal drugs can be the basis for this charge. The most common drugs involved in DUID charges are marijuana, methamphetamine, prescription opiates like Oxycontin, and sleeping medications like Ambien.
There is no BAC or established impairment amount for drugs like there is for alcohol. The determination of impairment is usually made after testing by a drug recognition expert, a law enforcement officer with special training in narcotics.
California DMV Administrative Penalties for DUIs
The first legal consequence a driver faces for a DUI is suspension of their license. While most of the DUI penalties cannot be imposed until after drivers are given the opportunity to appear in court and defend themselves, this is not true of administrative penalties. When someone is arrested for a DUI, the police officer confiscates their license and issues a temporary license valid only for one month and a notice of suspension. They have 10 days in which to file an appeal.
If no appeal is filed, the department of motor vehicles (DMV) suspends the driver's license for 30 days from the day of the arrest, which is also the day the temporary license expires. The length of suspension depends on whether there are any prior DUIs in the past 10 years. If this is the first offense, a one-year suspension is ordered. This goes up to two years for a second offense and three years for a third offense.
This suspension is in addition to any suspension resulting from a criminal conviction. If the driver appeals, they are entitled to an administrative DMV hearing at which they can try to convince the DMV not to suspend the license.
California DUI Misdemeanors/Felonies
Almost all DUIs and DUIDs are charged as misdemeanors. A misdemeanor is the lesser type of crime in California, a crime punishable by one year or less in county jail. Compare this to the more serious crime, a felony. Felonies are punished by more than a year in state prison, considered a much harder place to be incarcerated.
Consequences for DUIs can include probation; county jail for a misdemeanor or state prison for a felony; license suspension or restriction; and mandatory attendance at a court-approved substance abuse program. First offenders can generally apply for a restricted license for driving to work and school, but these often require the installation of an ignition interlock device (IID).
DUIs are termed priorable offenses, because the type of charges and the penalties increase if the driver has prior offenses within the past decade. If there are no such offenses, a DUI is a first offense, and the punishments are at the low end of the scale. If a driver has three or more prior offenses within 10 years, the matter is charged as a felony, and the driver may do serious time in state prison.
California DUIs With Minor Injuries
The penalties discussed above are for simple DUIs. For example, the arrest might occur when a police officer notices that a car is weaving. However, more severe penalties apply if a driver under the influence injures or kills someone.
Under California Vehicle Code Section 21353, it is illegal for someone to drive under the influence and injure another person, including their own passenger, because of their negligence. If the injuries to the other person are minimal, the driver will face enhancements to the DUI sentence. In addition to the normal penalties, the driver charged with a misdemeanor will have to serve at least five days in jail and will have their license suspended for at least one year. They will also be required to pay a fine and provide restitution to the people injured.
A DUI with injuries is called a "wobbler" offense. It can be charged as a misdemeanor or a felony depending on the circumstances. Prior DUI convictions in the preceding 10 years will increase the likelihood that the matter will be charged as a felony.
California DUIs With Major Injuries
When a person driving under the influence of alcohol or drugs causes serious injury to another person, it is even more likely that the district attorney will charge the crime as a felony. If the impaired driving results in the death of another person, the driver is usually not charged with a DUI. Rather, they are typically prosecuted under the state’s vehicular manslaughter or murder laws. The charges might be negligent vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated, or second-degree murder.
For a driver in this situation, the penalties vary greatly depending on the circumstances. The best-case scenario would be a misdemeanor conviction for negligent vehicular manslaughter while intoxicated. As a misdemeanor, the maximum incarceration would be a year in county jail. However, if the driver is charged with second-degree murder, it is a felony that can result in 15 years to life in state prison.
Defenses to California DUI Charges
Just because a person is charged with a DUI doesn't necessarily mean they will be convicted. Under the criminal justice system, every criminal defendant has the right to a defense attorney, as well as to a jury trial. If the driver cannot afford an attorney, the court will appoint one for them.
A defense attorney will talk to the driver and review the evidence against them before deciding on the most promising defense strategies. There are many different defenses that can be used in a DUI case in California. Among the most common are:
- The police acted illegally during the arrest, for example, they did not read the driver their Miranda rights.
- The police action was somehow flawed, for example, the DUI sobriety checkpoint was not in compliance with the law or evidence was manufactured.
- The chemical testing equipment malfunctioned.
California has some of the toughest laws in the nation concerning driving under the influence. Everyone who drives in the state should be aware of these laws, since violations can carry heavy penalties.
Read More: 6 Common DUI Defenses in California
- Legislative Info: Vehicle Code Section 23152
- Shouse Law: DUI Laws in California First Offense
- DUI Driving Laws: DUI in California, What Are the Penalties?
- DUI Driving Laws: California Drunk Driving Laws, Penalties, and Consequences
- Los Angeles DUI Attorney: California DUI Penalties
- Shouse Law Group: DUI Laws
- Legislative Information: Vehicle Code Section 23153
- Law Offices of Randy Collins: Difference Between Drug and Alcohol D
- Los Angeles DUI Attorney: Penalties for Refusing Breathalyzer Test
- Shouse Law Group: Under 21 DUI
- Shouse Law Group: DUI Defenses
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.