Friday, December 28, 2007

California Auto Club's Guide To California's DUI Laws

California Auto Club's Guide To California's DUI Laws

California has some of the nation's strictest laws for driving under the influence (DUI). The DUI laws punish offenders for operating a motor vehicle while under the influence of alcohol, other drugs or a combination of alcohol and other drugs. Implementing California's laws has contributed significantly to the state's sharp declines in drinking and driving crashes.

An outgrowth of the continued toughening of California's DUI laws is that they have become increasingly complex. This online brochure explains and condenses state laws:

Section I describes the DUI offense.
Section II details the types of court-imposed (criminal) penalties meted out to offenders.
Section III discusses the administrative license suspension (ALS) system and the civil penalties the Department of Motor Vehicles (DMV) employs as part of this system. (The ALS system is designed to impose quick license suspensions, restrictions and revocations on offenders.)
Section IV details criminal DUI penalties for first and repeat offenses.
I. The DUI Offense

A DUI offense is both a criminal and civil matter.

Drivers caught with illegally high alcohol levels in their blood or breath or who refuse to take (and complete) a chemical test are dealt with in two ways. They are:

prosecuted in court for the criminal offense of DUI or refusal. Criminal penalties imposed include jail and prison, fines, treatment, probation and license suspension.
subject to licensing action by the DMV (as part of the state's ALS system) for the civil offenses of driving in excess of the fixed "per se" (see below) alcohol limit or refusing a chemical test.
DUI drivers can be prosecuted for violating either the state's "per se" or "presumptive" alcohol limit or both limits.

Drivers who exceed the per se breath or blood alcohol content (BAC) limit are prosecuted solely for having an amount of alcohol in their system greater than that permitted by law. The driver's level of impairment is not at issue. Drivers are guilty of DUI simply for having violated the per se ("in and of itself") BAC limit. California's per se BAC limits (see Table 1) vary depending on the driver's age, whether he or she is a commercial driver, and whether the case is adjudicated in a court (criminally) or by the DMV (civilly).

Table 1: California's Per Se BAC Limits

Characteristic Criminal Offenses Civil Offenses
Driver's Age
Under 21 .05% .01%
21 and Over .08% .08%
Driver .04% .08%

Drivers who exceed the presumptive BAC limit are presumed to have been under the influence of alcohol when driving, that is, it is assumed their faculties for driving were impaired. California's presumptive BAC limit is .08% (about four drinks in an hour for a 160-pound male). BAC levels are established from results of law enforcement officers' chemical tests. Drivers exceeding this presumptive limit are presumed to have been under the influence. Still, they can attempt to prove in court that - despite having had an incriminating BAC - they were not physically impaired when driving.

Drivers whose BAC does not exceed the presumptive BAC limits can still be convicted of DUI if other evidence shows their abilities were impaired.

Courts frequently prosecute arrestees for violating both the per se and presumptive statutes. If evidence from the BAC test is strong, it promotes conviction on the less complex per se charge; if BAC test evidence is not strong, prosecutors will still attempt to use sobriety test evidence to prove that the defendant was physically impaired, and guilty of the presumptive DUI charge.

Defendants convicted of both a presumptive and per se charge are punished for only one of these charges.

Drivers who refuse to take (and complete) a chemical test for DUI still receive severe punishment.

According to California's Implied Consent law, drivers are required to submit to and complete a chemical test when requested to by a law enforcement officer. Consequences of refusing the chemical test are severe, including:

receiving license sanctions more harsh than for those convicted of DUI. Even those found not guilty of DUI in court receive a license suspension through the state's ALS system
facing the likelihood of convictions for both DUI and the test refusal. Those who refuse a chemical test and are later convicted of DUI are further punished by:
receiving all standard DUI penalties
losing the possibility of a judge ordering probation as a substitute for jail
receiving longer jail sentences (see Section IV for length of enhanced sentences)
II. Court-Imposed Penalties

Court-imposed DUI penalties vary in some important ways:

Misdemeanor offenses are punished less severely than felonies.
Misdemeanor DUI offenses (California Vehicle Code [CVC] section 23152) typically do not involve injuries; felony DUI offenses (CVC 23153) typically do. In a felony DUI, someone other than the driver was injured or killed as a result of the offense. Offenders convicted of a misdemeanor can be sentenced to jail (but not prison) and fined up to $1,000; offenders convicted of a felony can be sentenced to prison and fined more than $1,000.

Subsequent offenses are punished more severely than previous offenses.

A second, third or subsequent offense is one that occurs within seven years of a prior DUI offense - or ten years if the prior was a felony. A prior alcohol-involved reckless driving guilty plea is counted as a prior DUI conviction when the court determines punishments.

Mandated Penalties and Judicial Discretion

The chart in Section IV lists state-mandated criminal penalties. State law mandates most minimum DUI offender sanctions. Judges have discretion, however, over whether to apply sanctions other than those mandated in the chart or increase offenders sanctions to the maximum allowed in each category.

For example, for first offense misdemeanor DUI, judges have the discretion to sentence offenders to jail or grant probation. As the chart shows, if the judge decides to impose a 48-hour jail sentence, probation must also be used. Additionally, the judge must impose at least the minimum listed offense fine, penalty assessment, restitution, license suspension period and treatment program duration. Vehicle impoundment and ignition interlock installation are not mandated, although they can be imposed by judicial order.

Criminal Sanctions

Drivers convicted of misdemeanor or felony DUI can receive:

County jail or state prison
Fine, penalty assessment and restitution
Drinking and driving treatment
Vehicle impoundment or forfeiture
License restriction, suspension or revocation
Ignition interlock device requirement
Jail and Prison

A DUI conviction typically results in a mandatory sentence ranging from 48 hours in jail to four years in prison. The sole exception is for a misdemeanor first offense, where a judge can substitute a fine, require a treatment program and levy a 90-day license restriction.

Jail and prison sentences are extended for certain "enhancing" circumstances. (See Section IV for length of enhanced sentences.) Enhancing circumstances are:


driving at "excessive speed" (30 mph above the lawful freeway speed or 20 mph above the lawful speed on other roadways)
refusing to take a chemical test
driving with a minor passenger (under age 14) in the vehicle. (Applies to misdemeanor DUI offenses only.)

multiple victims (other than the driver). Sentences are enhanced by one year for each victim (up to three)
hit and run, if fleeing the scene after vehicular manslaughter.

Fine, Penalty Assessment and Restitution

Offenders are commonly ordered to pay three types of fines: an offense fine, a penalty assessment, and restitution. (See Section IV for specific amounts.)

Misdemeanor offense fines range from $390 to $1,000; felony offense fines from $390 to $5000.
Penalty Assessments are 170% of the offense fine, that is, $17 extra for each $10 of offense fine imposed
Restitution fines compensate the injuries and losses of victims. Fines range from $100 to $10,000.

Convicted DUI offenders may be ordered to attend and complete an alcohol and/or drug treatment program. Drivers suspended for a DUI conviction must complete a drinking driving treatment program prior to license reinstatement.

Repeat offenders granted probation must complete a program for the number of months specified in the chart in Section IV.

Offenders receive no credit for program activities prior to the current violation.

Vehicle Impoundment and Forfeiture

The court can order that the vehicle of a convicted DUI offender be impounded if the offender is its registered owner. A judge can order that an impounded vehicle be forfeited - declared a "nuisance" and sold. Impounds can also be imposed on vehicle owners under 21 (even if not in the vehicle) if a driver or passenger of his or her vehicle is under 21 and illegally possesses alcohol.

License Restriction, Suspension and Revocation

A driver license can be:

Restricted - limiting when and under what circumstances drivers can use a vehicle. Restrictions typically include: driving only to and from work or treatment, and as required by work; maintaining financial responsibility (insurance)
Suspended - withdrawn for a specified period or until some required condition (such as financial responsibility) is met
Revoked - terminated, requiring drivers to reapply for a license after their revocation period.

Commercial vehicle operators convicted of DUI have their license "disqualified," that is, they are prohibited from operating commercial vehicles. A suspension or revocation of a commercial license also applies to the driver's non-commercial license.

Courts can postpone the start of a DUI offender's license suspension or revocation period until after imprisonment. Postponement is typically applied to repeat DUI offenses, DUI offenses involving multiple victims, and hit and run convictions.

Drivers under 21 convicted of DUI (or alcohol-related reckless driving) have their licenses suspended for an additional one-year period, over and above the license suspension they receive for DUI. Drivers under 18 convicted of adult-level DUI (.08% BAC or greater) have their licenses revoked for: one year; until they reach 18; or the period prescribed for the offense-whichever of these three is longest. License reinstatement costs $100 and requires proof of financial responsibility. Youths aged 13-20 convicted of any alcohol-related offense (even those not involving driving) have their first license delayed for a year.

Ignition Interlock Device

For first-time offenders, courts may choose to impose the installation and maintenance of a certified ignition interlock device (which prevents a vehicle from being started if the driver has alcohol in his or her system). For second and other repeat offenders, the device is mandatory. Courts require the device from one to three years once the driver license is restored.


Court-ordered probation for DUI offenders lasts three to five years. During probation, offenders must not:

commit any criminal offense
drive with any measurable alcohol in their blood
refuse to submit to a chemical test upon request
fail to pay a fine, assessment or restitution
III. Administrative License Suspension (ALS) System

ALS Sanctions

In addition to sanctions imposed as a result of a court conviction, DUI offenders face administrative license actions (suspensions and revocations) by the DMV. These actions are mandatory (the DMV must apply them on violators) and independent of any criminal penalties imposed by a court. Table 2 summarizes license suspensions and revocations imposed on DUI drivers.

Table 2: DMV License Suspensions and Revocations

Nature of Offense First Second Third (or more)
Driver Under 21,
BAC .01% or more 1 year or more 1 year or more 1 year or more
Driver 21 and Over
BAC .08% or more 1 year or more 1 year or more 1 year or more
Chemical Test
Refusal 1 year 2 years*
(Revocation) 3 years*
*This punishment for a second "test refusal" also applies
if prior offenses were for DUI or were DUI-related.
ALS Process

The administrative license suspension process begins when a driver is cited for DUI. The driver license is taken on the spot by the arresting law enforcement officer if the driver:

violates the civil per se laws (as shown in Table 1: .01% for drivers under 21; .08% for drivers 21 or over)
refuses a chemical test requested by an officer
Licensed offenders are then served with a DMV order of suspension or revocation which serves as a 30-day license. The suspension or revocation takes effect in 30 days. Within 10 days from the citation date, drivers can request a DMV hearing. At the DMV hearing, only a limited number of issues may be considered. These are whether:

the officer had reasonable cause to believe the driver was driving a vehicle with an illegally high BAC
the driver was arrested (or "lawfully detained" if age 21 or less)
the driver refused a chemical test or a preliminary alcohol screening (PAS) test
the driver was informed that a refusal would result in suspension or revocation

ALS hearings are independent of criminal prosecutions. That is, proceedings and findings in one venue do not affect proceedings and findings in the other. For example, if a defendant's charges are dropped in court, this decision has no effect on the determination made at an ALS hearing. An important exception exists, however: a not guilty verdict in a criminal case overturns an ALS determination and its sanctions.

Learn more about the differences between felony and misdemeanor DUI by contacting a California DUI lawyer.