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.
A DUI will be charged as a misdemeanor in the following situations:
- There is no prior felony DUI on the defendants criminal record
- The defendant was no involved in a traffic collision which caused injury
- The defendant did not cause an accident resulting in death
- It is not the defendants fourth or more offense within a period of 10 years.
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 a fatality – Negligent Vehicular manslaughter9; Gross vehicular manslaughter10.
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.
The following charges are reduced charges 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.
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 0.10%.
If the prosecutor determines that the defendants BAC was rising when they took the chemical test and it was close to the legal limit then they may conclude that they may not be able to prove the defendant was .08 o over at the time of driving.
This might arise in the following scenario’s:
- An accident where the occupants are outside the vehicle and refuse to acknowledge who was driving.
- Someone reported your vehicle’s license number to police and police come to your home and find you inebriated.
- You are found parked or asleep in your vehicle and police observe that you were under the influence
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 a reduction of the charges in the interests of justice.
If you want to know more about the “no driving defense” watch this video.
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 0.10%, you could plausibly argue to the prosecutor that an offer of wet reckless would be reasonable.
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 an 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*.
Note: For arrest occurring after January 1, 2019, you will have the option of avoiding a hard 30-day suspension by:
- Installing an ignition interlock device
- Receiving an SR-22
- Enrolling in DUI classes
All of these must be completed prior to your DMV hearing.
This is not available if you refused the chemical test or are under 21.
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 $1,00011.
Additionally, the court will impose penalty assessments which will increase the fine by up to 5 times the amount.
A DUI remains priorable for 10-years, starting from the date of arrest rather than the date of your conviction. You may 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 time12.
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 191(b [↩]
- Penal Code 191.5(a). [↩]
- Vehicle Code 23536(a). [↩]
- California Penal Code 1203.4 [↩]