DUI 2nd 3rd 4th Offense

Driving a vehicle while drunk or high on drugs is a violation of California V.C. § 23152(a).  This section is based on your ability to operate a vehicle safely irrespective of the blood alcohol concentration test results.

See CALCRIM Number 2110 (“Driving Under the Influence — Veh. Code § 23152(a), (f), (g)”)

California V.C. § 23152(b), on the other hand, makes it illegal for an individual operating a motor vehicle to have a blood alcohol concentration level of 0.08 percent or above.

See CALCRIM Number 2111 (“Driving with 0.08 Percent Blood Alcohol — Veh. Code § 23152(b)”)

Veh. Code § 23152(b) is concerned with the level of alcohol in your system when you’re pulled over and/or taken into custody.

If this is your second arrest within 10 years, you will be charged with a second offense DUI pursuant to Vehicle Code section 23540. The prior crime could have been committed in California or any of our other 49 states.

In certain circumstances, such as if you have a first-time DUI conviction in your file but it has been more than 10 years since you were convicted, a subsequent conviction would NOT be prosecuted as a second DUI offense under this provision. However, this shouldn’t imply that the courts will treat you as a 1st-time defendant.

The judge will obviously learn about your previous DUI conviction, regardless of how long ago it was, and even if it did not occur within the “look-back window”. As a result, it will have an impact on the current case.

Second offense DUIs are taken seriously by authorities (including prosecutors and judges) because they are a sign of a prior drug or alcohol issue. Therefore, you could face further penalties as the judges try to strike a balance between the need for alcohol or drug treatment and the penalties for breaking this particular law.

California’s Third Offense DUI

A California DUI offense is classified as a third offense if you have two prior DUI convictions on your record within the last 10 years. In other words, you’ve been found guilty of DUI twice in the last 10 years and are currently facing another DUI charge.

California’s Fourth Offense DUI

A 4th DUI crime occurs within 10 years after the first conviction. California DUI statutes require that a 4th DUI conviction be tried as a felony, while the prosecutor has the authority to charge the defendant with a misdemeanor depending on the circumstances of the case.

Felony convictions are more serious and carry a one-year or longer state prison term. A misdemeanor conviction for a DUI typically entails a maximum six-month jail term (unless most other non-DUI misdemeanors, which can result up to 365 days in the county jail).

General Elements of the Crime

The Defendant Was Driving While Under the Influence of Alcohol or Drugs

Aside from operating an automobile, there must be evidence that the defendant was under the influence. The prosecution can easily demonstrate this fact by submitting the field sobriety test results (FSTs) administered by the apprehending officer after pulling over the suspected defendant for DUI.

See Field Sobriety Test (FST)

Direct observation by the police may not always prove beyond a reasonable doubt that someone was driving under the influence. If the officer in question was unable to demonstrate that you were operating the vehicle in an intoxicated manner, the prosecution could use circumstantial evidence to do so. Circumstantial evidence would include:

• Was the defendant behind the wheel at the time of the arrest?
• The position of the automobile keys. Were the keys on the driver’s seat, in his/her hand, or in the car’s ignition, for example?
• Were there any other passengers in the vehicle? If the defendant was alone in the car, then obviously only he or she could have been driving it; and
• When the accused was apprehended, how hot was the car’s engine? If the engine was warm, it obviously indicates that he or she had been driving recently.

You Had a BAC of 0.08% Or Were Otherwise Impaired

California’s legal blood alcohol content level currently stands at 0.08 percent. (Prior to that, it was 0.10%.) Thus, if the prosecutor proves that you had a blood alcohol concentration level of 0.08% or above while driving, you could be found guilty of a DUI offense.

Nevertheless, even if a defendant’s BAC level is below 0.08 percent, he or she could still be found guilty of DUI. This would apply if the prosecutor can prove that you were unable to drive safely despite having a blood alcohol level below 0.08 percent.

That is, you were not operating the automobile as a sober individual would under similar conditions. It should be noted that the 0.08% blood alcohol concentration limit only applies to non-commercial adult motorists. The BAC limit for a commercial adult motorist is 0.04%, whereas the blood alcohol concentration limit for motorists under the age of 21 is 0.05%.

See CALCRIM Number 2114 (“Driving With 0.04 Percent Blood Alcohol with a Passenger for Hire — Veh. Code § 23152(e)”)

See also Driving with 0.05 Percent Blood Alcohol when Under 21 (California Vehicle Code section 23140(a)

CALCRIM Number 2113 (“Driving with 0.05 Percent Blood Alcohol when Under 21 — Veh. Code § 23140(a)”)

Furthermore, the prosecutor must show that you have prior DUI-related convictions within the last ten years. The prosecution will obtain your records from the California Department of Motor Vehicles (DMV)

The prosecution could also quickly get certificates of completion or attendance from any court-ordered DUI program.

See Driving Under the Influence (DUI) Programs

If one or more of your prior DUI convictions took place in a state with different standards of conviction than California (i.e., a lesser burden of proof, such as “clear and convincing” evidence instead of California’s proof beyond a reasonable doubt threshhold), then the court could opt to disregard it as a prior conviction.

If the court dismisses one or more of these prior DUI conviction, you would likely be charged with only a misdemeanor DUI for the current offense. 

Consequences of a Prior DUI-Related Conviction

DUI is considered a “priorable” crime, which means that the penalties increase in severity with each subsequent DUI or Wet Reckless (California Vehicle Code section 23103 conviction that takes place within 10 years of your current arrest.

This implies that a 4th drunk-driving charge within 10 years carries harsher penalties than a second or first offense. Additionally, until you’re proven guilty of the charges, most offenses have no formal penalty. However, the situation is different in the case of DUI. The consequences are classified into two categories: 

Administrative Penalties 

When you’re legally detained by law enforcement officers for a DUI, you must go through two separate legal processes:

• The California DMV; and
• A criminal court proceeding. 

Under the administrative system, you are obligated to apply for a DMV administrative hearing within 10 days of your detainment. 

See DMV DUI Administrative Hearing

This hearing will determine whether your driving privileges will be suspended. You’re entitled to present a defense for why your driving license should not be suspended or revoked. If you fail to file a request for an administrative hearing or otherwise lose in the proceedings, you will suffer administrative penalties such as license suspension or revocation, and may also have to pay hefty fees.

The DMV fines can be imposed regardless of whether the courts (or a jury if you go to trial) finally find the defendant guilty or not.

A subsequent DUI offense leads to a one-year administrative driver’s license suspension. If you choose not to submit to chemical tests, you’ll likely face a three-year sentence for violating California’s implied consent provision.

See also Refusal to Submit to DUI Chemical Test (California Vehicle Code section 23612: 

Criminal Penalties 

Prior DUI-related convictions are charged as misdemeanor offenses. However, the court’s decision will be based on the facts and evidence in your case, as well as whether any prior convictions were within the lookback period of 10 years. 

The court will also evaluate whether any aggravating circumstances in the case would have enhanced your conviction. These are some of the aggravating factors:

I.  If the defendant was speeding;

See also Reckless Driving (California Vehicle Code section 23103)

Excessive Speed on a Highway (California Vehicle Code section 22349)

II.  If the offender caused a fatal car accident or ended up causing another individual to sustain physical injuries or death;

See DUI (Driving Under the Influence) Causing Injury (California Vehicle Code section 23153)

See also CALCRIM Number 2100 (“Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury — Veh. Code § 23153(a), (f), (g)”))

CALCRIM Number 2102 (“Driving with 0.04 Percent Blood Alcohol Causing Injury with a Passenger for Hire — Veh. Code § 23153(e)”)

III.  A very high BAC level; or

IV.  If there was a minor under the age of 14 in the automobile at the time of the incident. 

If the courts find you guilty after going through the court proceedings, you will face the following penalties:

• Informal probation term for a duration of three to five years;
• Installation in your vehicle of an Ignition Interlock Device (I.I.D.):  for 2 years, allowing you to commute to and from work and/or school;
• Hefty fines and penalty assessments;
• The DMV would designate you as a habitual traffic offender;
• Serve time behind bars based on the circumstances of the case and nature of your current conviction;
• Completion of a court-approved DUI program lasting thirty months; and/or
• Three-years’ driver’s license suspension. 

The administrative and criminal license suspension periods could overlap to ensure that the overall suspension length doesn’t exceed 3 years. You could choose to convert the 3 years to a restricted driving license after eighteen months. However, if you’ve installed an IID in your vehicle and consented to chemical tests, you can apply for a restricted license right away. For prior DUI crimes involving only drugs, there’s a 12-month waiting period before obtaining a restricted driver’s license.

Having restricted driving privileges allows you to drive yourself anywhere as long as your vehicle is equipped with an IID. Unfortunately, if you are convicted of a second, third, or fourth DUI charge and fail to submit to chemical testing, you will face severe penalties. Your driver’s license will be revoked/suspended for 3 years, and you would not be able to qualify for a restricted license during that time.

It’s worth noting that every DUI repeat offender must have an IID installed in their vehicle for at least 2 years, whether it’s after an early driving license reinstatement or due to a restricted license requirement. Your attorney might be able to negotiate for lesser sentences, such as community service or house arrest.

Significantly, when the court requires you to serve probation for a DUI offense, the following conditions and restrictions are included:

• You must agree to undergo chemical testing of your blood, breath, or, in rare cases, urine if you are arrested for subsequent drug-influenced or drunk driving;
• You are not allowed to operate an automobile if you have any detectable amount of alcohol in your bloodstream; and
• You vow not to commit any further offenses. 

In addition, the following probation requirements may be ordered based on the circumstances surrounding the case:

• Compensation if the defendant caused the accident during the commission of the DUI offense;
• Participation in Alcoholics Anonymous or Narcotics Anonymous group meetings; and/or
• Taking part in the Mothers Against Drunk Driving (MADD) victim impact group.