Vehicle Code § 23540 VC – Second DUI Offense Within 10 Years

Q: What does it mean to violate California Vehicle Code 23540?

A violation of this statute means that you will receive extra penalties if you: get convicted for driving under the influence, and get a second conviction for DUI within 10 years of the first conviction. Note that the penalties imposed under this law are in addition to any penalties for the second DUI.

Q: Are there immigration consequences for a second DUI?

A conviction under these laws will generally not have negative immigration consequences. California law says that some crimes can result in a non-citizen defendant being either: deported, or marked as inadmissible. A second-time DUI conviction, though, will not normally produce these outcomes.

Vehicle Code § 23540 VC is the California statute that imposes extra penalties if you receive a second DUI conviction within 10 years of a prior DUI conviction. The law also imposes extra penalties if the second conviction is for DUI causing injury or a reckless driving conviction that was bargained down from a DUI charge. The latter is known as a “wet reckless” driving conviction.

The full language of the code section reads as follows:

23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 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 suspended by the department pursuant to paragraph (3) 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.

(b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(c) This section shall become operative on September 20, 2005.

Examples

driving with a blood-alcohol level of 0.15 within a three-year period of a drunk driving conviction.
getting a second offense for DUI within two months of a first offense.
receiving a California DUI conviction seven years after a conviction for driving with a blood alcohol concentration (BAC) of .08.

Defenses

You can raise a legal defense to contest a charge under this California law. Some defenses include:

you did not have prior DUI charges,
you were not intoxicated in the second offense, and/or
the police did not follow proper procedures.

DUI Penalties

A violation of this statute means you will receive additional penalties for your second DUI arrest. These include:

jail time for a period between 90 days and one year,
a fine between $390 and $1,000,
a license suspension of your valid California driver’s license, and/or
the disallowance of a restricted driver’s license.

Our California DUI attorneys will highlight the following in this article:

motorist not happy after being asked to take a breathalyzer test

Vehicle Code 23540 CVC imposes extra penalties if you receive a second DUI conviction within 10 years of a prior DUI conviction.

1. What does it mean to violate California Vehicle Code 23540?

A violation of this statute means that you will receive extra penalties if you:

get convicted for driving under the influence, and
get a second conviction for DUI within 10 years of the first conviction.¹

Note that the penalties imposed under this law are in addition to any penalties for the second DUI.

Note too that this code section only applies if you were convicted of a DUI within 10 years of a prior conviction. The statute does not apply if you were charged with a prior DUI, but ultimately were found innocent of the charge or it was dropped.²

2. Are there legal defenses in these DUI cases?

Defense and DUI lawyers can draw upon certain legal strategies to challenge allegations under these laws. These include showing that:

you had no prior DUI.
you were not intoxicated.
the police did not follow proper procedures.

2.1. No prior DUI

The extra penalties under these laws only get imposed if you had a prior DUI conviction within 10 years of a second conviction. This means it is always a defense to prove that you did not have a prior DUI. Or, maybe there was one, but it was more than 10 years ago.

2.2. Not intoxicated

You can always try to contest a CVC 23540 charge by asserting that you were not impaired in regard to the second set of DUI charges. If successful, then you avoid a second DUI conviction and there is no violation of this law.

2.3. Police did not follow proper procedures

Similarly, you can contest a charge by showing that the police did not follow proper procedures during the second DUI arrest. Perhaps, for example, the officers did not follow proper procedures with regards to a breath test or a chemical test. If so, then you can avoid a second DUI conviction, and this means there is no foundation for a VC 23540 conviction.

inmate being led to a jail cell - Vehicle Code 23540 VC can lead to additional time in jail.

A second DUI violation can result in a prison sentence and/or a fine.

3. What are the penalties?

A violation of this statute means that you will receive:

extra penalties for the second DUI, and
these penalties are in addition to normal penalties for a second DUI offense.

3.1. Extra penalties under code section 23540 VC

The penalties imposed under Code Section 23540 include:

imprisonment in county jail (as opposed to state prison) for a time between 90 days and one year,
a fine between $390 and $1,000, and/or
a suspension of your driving privileges (with the period of suspension being up to two years).³

In addition, a court may disallow a Department of Motor Vehicles (DMV) issuance of a restricted driver’s license if it decides that you:

present a traffic safety risk if authorized to operate a vehicle, or
present a public safety risk if given a restricted license.⁴

3.2. Penalties for a second DUI

In addition to the above penalties, if you are convicted of a second DUI within a 10-year period, you will also receive the penalties imposed for a normal second-time DUI conviction.

Depending on the facts of the case, these may include:

misdemeanor charges,
three to five years of misdemeanor probation,
a second offender driving under the influence program, or, a “DUI school (SB38)”, and/or
the installation of an ignition interlock device (IID) in the vehicle for 1 year.

4. Are there immigration consequences for a second DUI?

A conviction under these laws will generally not have negative immigration consequences.

California law says that some crimes can result in a non-citizen defendant being either:

deported, or
marked as inadmissible.

A second-time DUI conviction, though, will not normally produce these outcomes.

5. Can I get an expungement?

You can usually get a second-time DUI conviction expunged. This is true provided that you successfully complete:

any probation time imposed, and/or
any jail time imposed.

6. Does a second conviction affect gun rights?

Some California crimes will result in losing gun rights. This includes the ability to:

own,
possess, and
buy a firearm.

A second-time DUI conviction, however, will not typically have these consequences.

7. Are there related offenses?

There are three crimes related to a second-time DUI offense. These are:

driving with a BAC of .08 or higher – VC 23152b,
underage DUI with a BAC of .05 or higher – VC 23140, and
DUI causing injury – VC 23153.

7.1. Driving with a BAC of .08 or higher – VC 23152b

Vehicle Code 23152b VC makes it a crime to drive a motor vehicle with a BAC of 0.08% or higher.

You can receive a VC 23540 conviction if:

you are charged with this offense, and
then receive another DUI conviction within 10 years.

7.2. Underage DUI with a BAC of .05 or higher – VC 23140

Vehicle Code 23140 VC makes it a California infraction for anyone under 21 to drive with a BAC of .05% or higher.

Note that minors can be convicted under code section 23540 if convicted of a second DUI offense.

7.3. DUI causing injury – VC 23153

Vehicle Code 23153 VC defines the crime of “DUI causing injury” as driving under the influence and causing bodily injury to another person as a result.

Prosecutors may charge this section as either a misdemeanor or a felony.

A second DUI conviction within 10 years of this offense will subject you to enhanced penalties under Vehicle Code 23540.

For additional help…

row of five receptionists seated with laptops and headsets

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. Our law office provides consultations and legal advice that you can trust.

Legal References:

California Vehicle Code 23540a CVC.
LaChance v. Valverde (2012) 207 Cal.App.4^th 779.
California Vehicle Code 23540a CVC.
California Vehicle Code 23540b CVC.

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