DUI "Drunk Driving"

Drivers arrested with alcohol levels in their blood or breath above the legal limit, or who refuse to take a chemical test, are penalized in two ways. These 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.
  • Suspension of driver's license by the DMV for the civil offense of driving in excess of the fixed alcohol limit or refusing a chemical test.
  • 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 vary depending on the driver's age, and whether he or she is a commercial driver. 
  • Drivers whose BAC does not exceed the presumptive BAC limits can still be convicted of DUI if other evidence shows their abilities to drive 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.

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 may receive a license suspension through the DMV.
  • Those who refuse a chemical test and are later convicted of DUI are further punished by longer jail sentences, a higher fine, or the loss of a probation grant instead of jail. 
  • As an example, if a First Offender is found by DMV to have refused a chemical test, a ONE YEAR suspension, with no "hardship" (work, school, etc.) allowances.

Court-imposed DUI penalties vary in some important ways:

  • Misdemeanor offenses are punished less severely than felonies.

    Misdemeanor DUI offenses (California Vehicle Code 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. Please note that fines DO NOT include mandated "penalty assessments" that nearly triple the fine amount.


  • Subsequent offenses are punished more severely than first 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.

Drivers convicted of 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
  • Probation

Jail Terms are often imposed in these situations:

  • 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.)
  • 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.

Fines, Penalty Assessment and Restitution:

  • 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.

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.

As can be seen, SEVERE penalties attach to a DUI conviction; qualified legal advice is necessary.

DUI Convictions can be Expunged.

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DMV Hearings


Proving a driving under the influence case, on the surface, is not a difficult one for the prosecuting attorney. A prosecuting attorney must prove (1) you were driving a motor vehicle, and (2) your blood alcohol level was at .08% or greater, or, (3) that you were impaired.