In this post you are going to learn everything there is to know about a first time DUI in California.
In fact:
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…..
First DUI In California
In California when you’re arrested for DUI you’re charged with two separate 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.
2. How is BAC Calculated?
Blood Alcohol Concentration (BAC) is calculated by determining what percentage of alcohol is in an individual’s blood at the time of the test. BAC can be calculated using a breath testing instrument or by gas chromatography following a blood draw.
3. What if You are Under 21 and it is Your First DUI?
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.
4. What if you are a Commercial Driver and it’s Your First DUI in California?
If you are a commercial driver, you are prohibited from driving if your BAC level is at least 0.04%4.
5. What is a Misdemeanor DUI in California?
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.
6. Is a First Offense DUI a Felony or Misdemeanor?
A first-time DUI is a misdemeanor offense unless someone is seriously injured or killed at which point the prosecutor will charge the DUI as a felony.
7. What Aggravating Circumstances can Increase your DUI Penalties?
These circumstances are:
- Driving with a passenger under the age of 14 ((California Vehicle Code § 23572))
- Having a BAC of at least 0.15%5
- Traveling 20 mph over the speed limit ((California Vehicle Code § 23582))
- DUI with injury ((California Vehicle Code § 23153))
- DUI with a fatality – Negligent Vehicular manslaughter ((Penal Code 191(b)); Gross vehicular manslaughter6.
Gross vehicular manslaughter is always charged as a felony with prison time of 4, 6, or 10-years.
8. What is the First Court Appearance in a DUI Case?
Your first court appearance is the arraignment where the complaint against you is read and you are asked to enter a plea of either not guilty, guilty or nolo contendre (no contest—similar to a guilty plea).
9. When Will I Find out What the BAC on my Breath or Blood Test was Calculated?
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.
10. Can you get a DUI Charge Dismissed?
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.
11. Can I get my First DUI Reduced to a Different Charge?
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.
12. Is a Reduction to a Different Charge Possible if Your BAC is Under .10%
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.
There may also be police mistakes such as a lack of probable cause to stop the vehicle which could be used to persuade the prosecutor to reduce your DUI charge as well.
13. Is a Reduction More Likely if This is my First DUI Offense?
Prosecutors are more willing to offer a reduced charge if this is your first offense compared to situations where there is a history of DUI for the defendant.
14. Is a Reduction Possible if the Prosecutor is Unable to Establish who the Driver of the Car was?
There are circumstances where police are unable to definitively determine who was 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.
15. Are there situations where the prosecutor will not offer a reduction under any circumstances?
A prosecutor is unlikely to offer you a plea to a wet reckless under the following circumstances:
- Vehicle accident
- BAC above .10
- Any aggravating circumstance in your case.
16. Can You Get a Reduction If There was an Accident or Injury?
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 0.10%, you could plausibly argue to the prosecutor that an offer of wet reckless would be reasonable.
17. How long can you be in jail for a DUI?
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.
18. What is the punishment for a first time DUI?
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.
20. How long is your license taken away for a DUI?
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 $1,0007.
Additionally, the court will impose penalty assessments which will increase the fine by up to 5 times the amount.
23. How long does it take for a DUI to come off your record in California?
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 time8.
If you are still on probation your attorney may need to file a motion for early termination of probation.
Important Information
DUI Defenses That May Be Applicable In Your Case.
Important Information On The Investigative Process for A DUI
Useful Information On The DUI Criminal Court Process
Hiring a California DUI Attorney
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 theAizman 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.
