In this post you are going to learn everything there is to know about a first time DUI in California.
A person who has been arrested for a first offense DUI in California is facing two different government agencies.
- The DMV
- The local criminal court
Lets get started…..
In California when your arrested for DUI your charged with two seperate crimes.
- Vehicle Code 23152(a) makes it unlawful for any driver to operate a motor vehicle while either under the influence of alcohol1.
- Vehicle Code 23152(b) makes it a crime to drive with a blood alcohol concentration (BAC) level of 0.08% or higher2.
These are separate offenses and you can be charged and convicted of either or both.
If you are under the age of 21 at the time of your arrest, California has a zero-tolerance law whereby any measurable amount of alcohol in your system is a violation3.
These circumstances are:
- Driving with a passenger under the age of 145
- Having a BAC of at least 0.15%6
- Traveling 20 mph over the speed limit7
- DUI with injury8
- DUI with fatality—Vehicular manslaughter9; Gross vehicular manslaughter (Penal Code 191.5(a).))
Gross vehicular manslaughter is always charged as a felony with prison time of 4, 6, or 10-years.
Your attorney will be given a copy of the complaint and the prosecutor will generally hand him or her a copy of the police report in your case and any other documents relevant to your prosecution at the arraignment.
If you submitted to a breath or blood test, the results will generally be indicated on the police report.
The judge will then schedule your next court date, which is a pre-trial conference.
DUI charges may be dropped by a prosecutor if he/she is convinced there was no probable cause to stop or arrest you for intoxicated driving. There may be little to no evidence that you were driving under the influence if the prosecutor cannot determine if you were driving or not, or if you became intoxicated after you were driving.
Charges may also be dropped if your attorney is able to have the court exclude incriminating evidence from being considered pursuant to a motion.
A wet reckless, dry reckless, exhibition of speed or drunk in public is a reduced charge to a DUI, though not a separate criminal offense. In situations where the facts and circumstances of your case are such that the prosecutor may have difficulty proving DUI in a trial they may be willing to plea bargain to a lower offense.
It is unlawful to drive with a BAC of 0.08% or higher for drivers 21 and over in California under Vehicle Code 23152(b) vc.
You are presumed to be under the influence at 0.08%, but prosecutors are more willing to reduce a DUI to a wet reckless or possible lower offense if your BAC is between 0.08% and 0.09%, since the difference is not substantial.
If you were stopped for an equipment violation or a relatively minor traffic offense such as speeding just a few miles over the limit or perhaps not coming to a full stop at a traffic sign, this in conjunction with your relatively low BAC could be used to persuade the prosecutor to reduce your DUI charge as well.
There are circumstances where police are unable to definitively determine who was driving. This might arise in an accident where the occupants are outside the vehicle and either point to each other as the driver or refuse to acknowledge who was driving.
Another situation is where someone reported your vehicle’s license number to police and that the motorist was driving erratically.
Police come to your home and find you inebriated but cannot establish that you were the driver or that you were even intoxicated at the time you were driving.
Still another is where you are found parked or asleep in your vehicle and police observe that you were under the influence. However, there is no evidence that you were ever driving the vehicle.
While there may be some evidence pointing to you as the likely driver in any of these scenarios, the prosecutor may be more amenable to reduction of the charges in the interests of justice.
Under California’s implied consent law, all motorists are required to submit to a breath, blood or urine test if an officer finds probable cause to believe you are under the influence.
The results of a chemical test, whether it is breath, blood or urine, that indicates your BAC is at least 0.08% is a presumption that you were under the influence. If you refuse to take the BAC test, the prosecutor can use your refusal to argue at trial that you refused to take the test because you were conscious of your guilt.
Without a BAC test, the prosecutor can use your refusal as evidence of guilt but will likely have to use other evidence to convict you such as your driving pattern, demeanor and results of field sobriety tests, if any. If convicted, your refusal can be used to enhance your sentence with additional jail time and you will receive a minimum license suspension of at least one year with no opportunity for a restricted license.
If you are over 21, and not on DUI probation, you do, however, have a right to refuse to perform any field sobriety tests including the PAS, or preliminary alcohol screening test, which is a portable device used by officers to establish probable cause to request you submit to a breath, blood or urine test. These refusals cannot be used as evidence of your consciousness of guilt and a prosecutor would only consider such refusals in conjunction with any other evidence of guilt in determining whether to make an offer of wet reckless or other arrangement.
If you caused an accident or injury in an alcohol-related incident, it is highly unlikely a prosecutor will offer you a wet reckless unless there is evidence of police misconduct or failure to follow certain protocol. Should someone have suffered a serious injury or fatality, you face possible felony DUI charges.
If you were in an accident that was not your fault but the investigating officer determined that you had been drinking and a BAC test result was 0.08% but under 0.09%, you could plausibly argue to the prosecutor that an offer of wet reckless would be reasonable.
For a first DUI offender, you may face 2-days in jail but will receive an additional 48-hours if you refused BAC testing. For every subsequent DUI conviction, the court will impose a mandatory minimum jail time.
If you caused an injury or fatality, the penalties are more severe. The maximum penalty for a first time misdemeanor DUI is 180 days in county jail. A felony DUI carries the possibility of several years in state prison.
Typical penalties for a first time DUI include:
- 2-days in jail (a weekend) or community service
- Fine between $390 and $1,000, plus penalty assessments
- 3-5 years’ summary probation
- 3, 6 or 9-month’s attendance at a DUI program
- Possible installation of ignition interlock device for 5-months
- Loss of license for 6-10 months
- Eligibility for restricted or “critical use” license after 30-days* (this will change for cases with arrest dates on or after January 1, 2019)
19. Is your license suspended immediately after a DUI?
No, you are given a temporary 30-day license once you receive notice of the DMV’s intent to suspend your license. You have 10-days to request an Administrative Per Se hearing before the DMV to challenge the suspension or your license will be suspended when the 30-day period expires*.
*New laws will impact arrests taking place on or after January 1, 2019.
For a first offender, you lose your license for 6-10 months, or a full year if you refused testing. You can apply for and receive a restricted or “critical use” license after 30-days*; except if you refused tested, then you are not eligible. These times increase with each subsequent DUI conviction.
*New laws will impact arrests taking place on or after January 1, 2019.
21. Is jail time mandatory for a first DUI?
Many California counties have a policy of jailing first time DUI offenders for 48-hours, but others may only impose probation and community service in lieu of jail time. If you refused testing, you likely face at least 2-4 days in jail.
22. How much is a DUI fine in California?
As a misdemeanor, the fine is a minimum of $390 to a maximum of $1,000. There are numerous other costs associated with a DUI, however, that can substantially increase the amount you will ultimately pay. The court will impose penalty assessments which will drastically increase the fine to several thousand dollars.
A DUI remains priorable for 10-years, starting from the date of arrest rather than the date of your conviction. You may be apply to apply for a DUI expungement after you have completed all requirements such as successful completion of your probation and if you have not served any state prison time10.
If you are still on probation your attorney may need to file a motion for early termination of probation.
The state of California has implemented some of our nation’s harshest DUI laws, even for a first time offender. It is important to find a knowledgeable dui attorney who can assist you in reducing the charges from a DUI to a wet reckless or lesser offense.
The penalties and consequences of a DUI on your record are severe and long lasting. An attorney can help reduce these penalties and create defenses on your behalf to lower the charges.
At the Aizman Law Firm, our attorneys can help you with questions you might have about the entire DUI process and penalties for a first offender. Please call our office at: (818) 351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- California Vehicle Code § 23152(a). [↩]
- California Vehicle Code § 23152(b). [↩]
- California Vehicle Code § 23136 [↩]
- California Vehicle Code § 23152(d). [↩]
- California Vehicle Code § 23572 [↩]
- California Vehicle Code § 23578 [↩]
- California Vehicle Code § 23582 [↩]
- California Vehicle Code § 23153 [↩]
- Penal Code 192(c [↩]
- California Penal Code 1203.4 [↩]