In California, DUIs and wet reckless charges are priorable offenses. This means that each time you are convicted of another DUI or wet reckless offense such as a fourth DUI, the penalties increase in length and severity because of your past offenses.
Before the prosecutor can charge you with DUI as a felony, he or she must prove that you had at least 3 prior convictions for DUI or other certain alcohol-related offense within the past 10-years.
This includes any of the following convictions:
- California Vehicle Code Section 23152(a)—Driving while under the influence
- California Vehicle Code Section 23152(b)– Driving with a BAC of 0.08%
- California Vehicle Code § 23103.5 – wet reckless
- Any out of state conviction that would qualify as a conviction of any of the above offenses
- An expunged DUI conviction for any of the above offenses
The prosecutor would need to present evidence that you were driving while under the influence or that you were driving with a BAC of at least 0.08%, and that all 3 of your prior convictions were within the past 10-years of your fourth DUI offense, or the date when you were arrested. Documents from the DMV are sufficient to show prior DUI convictions or certificates of completion or attendance from any court imposed driving under the influence classes.
If an out-of-state DUI conviction used different standards than California uses for finding you guilty of the offense, it may not qualify as a prior conviction.
Many of the defenses that an attorney can structure for a fourth DUI offense are the same as all other DUI’s. Challenging the current DUI charge that you are facing by analyzing the police report and either questioning procedure or evidence in your case. Challenging procedure and evidence would entail the following methods.
- Probable Cause For A DUI Arrest – This involves challenging the probable cause for a DUI arrest which may include dash cam footage from the police vehicle to see if an officer had reasonable suspicion to stop a vehicle and/or probable cause to arrest the driver .
- Field Sobriety Testing – Did the officer follow the correct procedures for administering Field Sobriety Tests
- Procedure For Breath Testing Instrument – It’s important to make sure the breath testing instruments have been maintained and calibrated in accordance with the law requiring certain usage intervals.
- Procedure For Blood Test – This may include having an independent lab test the blood alcohol concentration to confirm or contradict the BAC reading, as well as testing for contaminates and sufficient anti-coagulants. The crime lab is also required to follow all rules of Title 17.
- Proof of actual “Driving” – The prosecutor must be able to prove who the driver of the vehicle was and that they in fact drove.
- Rising Blood Alcohol – Depending on the time alcohol was consumed prior to driving, the driver’s BAC may have been lower at the time of driving than at the time of the test.
You will certainly face jail time for a fourth DUI conviction but the extent of your jail time and fine will depend on the facts and circumstances of the offense, and if the prior convictions were within a short period of time. Aggravating factors such as an elevated BAC, excessive speed, having a passenger under the age of 14, or causing an injury or fatal accident can enhance your sentence.
Minimum Days In Jail
- County Jail
- 4-year revocation of your driver’s license.
- Habitual Traffic Offender status for 3-years5.
When the four year period has passed, you will have to apply for an entirely new driver’s license, including re-taking the written and driving test. Because you have HTO status, if you are caught driving at all while your license is revoked, you face stiffer penalties.
If you are able to obtain a new license, you will have to install an ignition interlock device on all autos that you own or drive for whatever time imposed by the DMV.
If there are certain aggravating circumstances associated with the DUI charge, then you face penalty enhancements. How severe the penalties will be will largely depend on the circumstances involved, your criminal history, your BAC level, and if there were injuries or fatalities.
The aggravating circumstances and their enhancements include:
- Refusal to submit to chemical testing—18 additional days in jail.
- Excessive speed or reckless driving (30 mph over the speed limit on a highway or 20 mph on any other roadway) 60 additional days in jail.
- Child under the age of 14 as passenger –6—90 additional days in jail or prison. You may also be convicted of child endangerment under penal code 273a, a separate offense, which carries up to 6-years in state prison. However you may not be convicted of both child endangerment and the DUI penalty enhancement7.
- DUI causing an injury Vehicle Code § 23153 – minimum of 2-years in state prison; 3-6 years in state prison if causing great bodily injury, and an additional one year per injured victim to a maximum of 3-years, and a $5000 fine.
- DUI manslaughter – Penal Code § 191.5 —A sentence of 16-months, 2 or 4 years in county jail and a fine of $10,000. If gross vehicular manslaughter -Penal Code § 192(c), the maximum sentence is 6-years.
- Watson murder (Penal Code § 187) —for causing a fatality with prior DUI convictions and were give a Watson advisement that killing someone while DUI could lead to murder charges—15 years to life as second degree murder and a fine up to $15,000.
What is the difference if my license is revoked instead of suspended?
If you are convicted of a fourth DUI, your license is revoked instead of suspended. A drivers’ license suspension is for a fixed period of time and at the end of that period you can get a license if you can show SR-22 insurance. A revocation is for an indefinite period of time though this does not usually mean forever. To get your license back you have to apply to the DMV at the end of the revocation and they have to reestablish your driving privilege.
What does habitual traffic offender mean?
It is unlawful for a person whose driving privilege has been suspended or revoked to accumulate a driving record history, which results from driving during the period of suspension or revocation. A person who violates this subdivision is designated an habitual traffic offender.1
- California Vehicle Code §14601.3(a). [↩]
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with a DUI attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- California Vehicle Code § 23152 [↩]
- California Penal Code 17(a) – “A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. [↩]
- Vehicle Code 23550(a) and Penal Code 1170(h)(1) – Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. [↩]
- California Vehicle Code 23550(a) – If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550. [↩]
- California Penal Code Section 23550(b) – person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. [↩]
- California Vehicle Code § 23572 [↩]
- California Penal Code 23572(c) – No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident [↩]