As with the first and second DUI, a third DUI conviction in California is still a misdemeanor but carries a minimum jail sentence of 120 days in county jail. You also face additional penalties such as:
- License suspension for up to three years or installation of an IID for two years; and
- Attendance of a court-approved DUI school for 30 months.
These penalties are meted out for defendants whose cases do not have additional aggravating factors. Some of the aggravating factors that trigger harsher penalties include:
4. Felony DUI
You can be charged with felony DUI in California under several circumstances. These include:
- You have three previous DUI or wet reckless convictions in the past ten years;
See CALCRIM Number 2125 (“Driving Under the Influence or with 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions — Veh. Code §§ 23550, 23550.5 & 23566”):
- You have a prior felony DUI conviction; and
- You caused an accident that injured or killed another person while DUI.
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 2101 (“Driving with 0.08 Percent Blood Alcohol Causing Injury — Veh. Code § 23153(b):
Where this is your fourth DUI conviction, the court reserves the discretion to charge the offense as a misdemeanor. However, if you cause serious injury or death to another person, you will most likely get a felony conviction.
A felony DUI conviction carries a sentence of 16 months to three years in state prison. However, the penalties could be stiffer if you are convicted of the following offenses:
See People v. Watson (1981) 30 Cal.3d 290 at: https://caselaw.findlaw.com/ca-court-of-appeal/1838207.html
5. DUI of Drugs
In addition to alcohol, DUID — Driving Under the Influence of a Drug (California Vehicle Code section 23152(f): could lead to DUI charges. You may be charged for driving under the influence of drugs if:
- You were under the influence of any drug (prescription, over-the-counter, or illegal);
See Being Under the Influence of a Controlled Substance (California Health and Safety Code section 11550:
- You were under the influence of both alcohol and drugs.
When charged with a DUID offense, the penalties will depend on:
- Prior DUID convictions;
- Injuries or death arising from an accident you caused while driving under the influence of drugs.
The penalties for misdemeanor and felony DUID are similar to those for driving under the influence of alcohol (either with or without injury).
6. “Commercial DUI”
Commercial drivers are charged based on V.C. § 23152(d), which makes it unlawful to drive a commercial vehicle with a BAC of .04% or higher. The prosecution must provide evidence that you were driving a commercial vehicle to be charged with commercial DUI.
See CALCRIM Number 2114 (“Driving With 0.04 Percent Blood Alcohol with a Passenger for Hire — Veh. Code § 23152(e)”):
See also CALCRIM Number 2102 (“Driving with 0.04 Percent Blood Alcohol Causing Injury with a Passenger for Hire — Veh. Code § 23153(e)”):
Nonetheless, even if you are charged with another DUI offense, you could still lose your commercial driver’s license. Once arrested for a DUI while driving a commercial vehicle, you face up to a year in county jail for the first offense. Your commercial driver’s license will also be suspended for up to a year.
You could lose your license permanently if you are convicted of a second DUI while operating a commercial vehicle.
Commercial DUI can also be charged as a felony if you caused an accident that killed or injured a third party.
7. Underage DUI
In California, an underage driver is younger than 21. These drivers cannot legally buy or drink alcohol. California’s zero-tolerance law cracks down hard on underage drivers who drink and drive with a detectable BAC. Based on zero tolerance laws, a BAC of 0.01% is enough to trigger a DUI conviction.
See: Driving with 0.05 Percent Blood Alcohol when Under 21 (California Vehicle Code section 23140(a):
See also: CALCRIM Number 2113 (“Driving with 0.05 Percent Blood Alcohol when Under 21 — Veh. Code § 23140(a)”):
Since it’s illegal to buy alcohol if you are under 21, you could also be charged with a DUI if you have an open alcoholic beverage in your vehicle.See: Possession of an Open Container in a Vehicle by a Person Under 21 (California Vehicle Code section 23224:
In addition to underage drivers, zero-tolerance laws apply to adult drivers on probation for a DUI offense.
Drivers under 21 who are charged with underage DUI face up to one year of license suspension and mandatory attendance at an alcohol education program if they are 18 or older. Underage drivers with multiple DUI convictions face up to three years of license suspension.
8. “DUI Murder”
In most cases, the court orders the defendant to attend a DUI school after the first DUI offense as part of their penalties. During the DUI program, you are given what is known as a “Watson admonition”. The Watson admonition is a warning given to those convicted of violating California DUI laws.
Its purpose is to warn the defendant of the dangers of drunk driving and the risk of causing serious injury or death to another person. Those given the Watson admonition are also informed of the possibility of being charged with murder should they be convicted for killing another person while driving under the influence.
See, e.g., Second-Degree Felony-Murder (California Penal Code section 190):
See also: Second-Degree Murder (California Penal Code section 192(a)&(b):
In most cases where an intoxicated driver kills another person, the charges are usually Vehicular Manslaughter while Intoxicated (Penal Code section 192(c)(1)) or Gross Vehicular Manslaughter while Intoxicated (Penal Code section 191.5(a)). However, the court might choose to charge the offense as Second-Degree Murder if:
- You were extremely negligent (or reckless) while driving;
- You had a BAC of 0.15% or more;
- You were actively trying to evade a peace officer when the victim died; or
- You have multiple drunk driving convictions on your record.
DUI murder is, again, a form of Second-Degree Murder that carries a prison sentence of 15 years to life.
See: Punishment for Second-Degree Murder (15 years to life with possible parole) (California Penal Code section 190.05(a):
The sentence could be higher (i.e., 25 years to life with potential parole) if there were multiple victims killed or injured.
A DUI arrest triggers two main proceedings:
- The DMW administrative “per se” hearing, and
- A criminal proceeding in state court.
Whenever you are arrested for a DUI offense, the arrest automatically triggers a license suspension if you have a BAC of 0.08% or higher. The administrative hearing differs from California DUI criminal proceedings in that you do NOT have to be convicted in court for the DMV to suspend your license.
See: DMV DUI Administrative Hearing:
The DMV allows you to challenge the suspension, but to do so, you must request a hearing within ten days of your arrest. The DMV immediately suspends your license when the ten-day window passes without you requesting the hearing.
You can schedule a DMV hearing by calling the number on the “Notice of Suspension” that the arresting officer gives you, or you can call a Driver Safety Office.
See: DMW Driver Safety Offices:
Once you schedule a DMV hearing, the DMV will issue you a temporary driver’s license valid for 30 days. You will, therefore, retain your driving privileges until the DMV conducts the hearing and decides whether to suspend your license.
The DMV hearing is conducted at a DMV office. It includes a DMV hearing officer, you (the driver) and/or your attorney, and any witnesses (including a police officer or sheriff’s deputy, for example).
During the hearing, the DMV seeks to establish that you were driving and that your BAC limit was above the legal limit at the time. You or your attorney can present evidence to challenge the suspension. The hearing officer will rely on the evidence presented to decide on whether to suspend your driver’s license.
If the DMV finds that you violated the administrative per se law, your driver’s license will be suspended as follows:
- Four months for the first per se DUI offense:
- One year for a second DUI violation;
- One year for refusing to submit a chemical test.