A fourth DUI in 10 years can be a misdemeanor or a felony in California under Vehicle Code 23550 VC. The punishment includes 180 days to 3 years of incarceration, fines of $390 to $1,000, DUI School for 30 months, and a four-year license revocation (though defendants may be able to drive with an ignition interlock device). It does not matter which state the three prior DUIs occurred in.
In this article, our California criminal defense attorneys discuss:
- 1. What happens after a 4th DUI?
- 2. Is a fourth DUI a felony in CA?
- 3. What happens if you get 5 DUIs in California?
- 4. How many DUIs can you get in California?
- 5. What past DUIs count as priors?
- 6. How can you beat a 4th DUI?
- 7. Can the record be expunged?
- 8. Do I need an attorney?
1. What happens after a 4th DUI?
A fourth DUI conviction in a 10-year period is punishable in California by:
- 180 days to 1 year in county jail if charged as a misdemeanor;
- 16 months, 2 years, or 3 years in prison if charged as a felony;
- $390 to $1,000 in fines;
- 30 months of DUI School;
- Habitual Traffic Offender (HTO) status for 3 years; and
- 4-year driver’s license revocation (but it may be possible to continue driving with an ignition interlock device (IID) installed for three years).
As a priorable offense, driving under the influence of alcohol or drugs carries harsher DUI penalties with each successive conviction in a 10-year time span. When determining the sentence for a fourth DUI offense, courts consider the facts of the case, the defendant’s blood alcohol content (BAC), and any additional aggravating factors.
Note that the only way to avoid a suspension of driving privileges in any DUI case is to win both the criminal case as well as the DMV hearing. But defendants may be able to continue driving anyway as long as they have an IID installed.1
2. Is a fourth DUI a felony in CA?
As a wobbler offense, a fourth time DUI can be a felony or a misdemeanor in California. Prosecutors typically decide whether to press felony or misdemeanor charges.
As a misdemeanor, a fourth DUI carries 180 days to one year in county jail in California. As a felony, a fourth DUI carries a California State Prison sentence of 16 months, two years or three years. It makes no difference whether the prior DUIs were in California or another state.
Note that California drivers always face felony DUI charges for picking up a new DUI case after just one prior felony DUI conviction. It makes no difference if that new DUI caused no accident or injuries.
Also note that any DUI incident that causes a serious injury or death is an automatic felony. It is irrelevant if the defendant had a clean driving record until then.2
3. What happens if you get 5 DUIs in California?
Drivers who pick up a fifth DUI in 10 years face the same penalty range as four-time DUI defendants. But courts will likely impose a jail or prison term on the higher side of the range. So whereas a 4th offense DUI defendant may have a 180-day jail term, a 5th-DUI defendant might get a 2- or 3-year prison sentence.3
4. How many DUIs can you get in California?
There is no “limit” to the number of DUI offenses a person can pick up. But the more DUI convictions a person gets, the harsher the punishments will be.4
5. What past DUIs count as priors?
“Prior convictions” under California DUI law include either:
- Driving under the influence (Vehicle Code 23152a VC);
- Driving with excessive BAC (Vehicle Code 23152b VC);
- DUI with injury (Vehicle Code 23153 VC) as a misdemeanor;
- Wet reckless driving (Vehicle Code 23103.5 VC);
- Out-of-state convictions that, if committed in California, would be a violation of one of the aforementioned laws; and/or
- Previously expunged convictions for any of the above offenses.
In order to prove that a DUI-4th defendant has at least three prior DUI convictions, the prosecutor will rely on court records, Department of Motor Vehicles (DMV) records, and any certificates of completion from court-ordered alcohol or drug programs.5
6. How can you beat a 4th DUI?
There are many possible legal defenses that could get a drunk driving charge dismissed. Ten include:
- The law enforcement officers lacked reasonable suspicion to conduct the traffic stop.
- The police officers had insufficient probable cause to execute a DUI arrest.
- The police gave incorrect instructions for the standardized field sobriety tests.
- The breathalyzer was broken.
- The defendant was suffering from a diabetic coma or other episode that mimicked intoxication.
- The defendant had a bridge or other dental work that allowed alcohol to pool, resulting in a falsely high breath test result.
- The defendant suffered from GERD or acid reflux, which can result in a falsely high breath test result.
- The defendant’s high chemical test result was due to rising blood alcohol.
- The blood test samples had been contaminated.
- The lab techs who calibrated the breathalyzer allowed their certification to lapse.
If the D.A. will not drop or reduce a fourth time DUI charge, the defendant’s defense lawyer would then review each prior DUI or wet reckless conviction. Perhaps one or more of them could be challenged based on any procedural or evidentiary errors. Having even one prior DUI stricken from the record will substantially reduce the sentence and reclassify a felony DUI charge down to a misdemeanor DUI.6
7. Can the record be expunged?
DUI fourth defendants may be eligible for a record expungement if:
- They never were incarcerated in state prison; and
- They completed probation.
Therefore, a defendant who was convicted of a fourth DUI as a misdemeanor and only served jail time (not prison time) could be eligible for a record expungement as long as he/she completed probation.7 Learn how to expunge criminal records in California.
8. Do I need an attorney?
People facing DUI charges are always encouraged to hire an experienced DUI defense attorney to fight their case for three reasons:
- Public defenders are overworked and understaffed. They have thousands of clients, and they do not have the time or resources to zealously advocate for each one. In many cases, public defenders do not even look at a client’s file until right before his/her name is called in court. They certainly do not have the time to meet with each client to go over his/her side of the story. And public defenders sometimes encourage defendants to accept a bad plea deal just so they can close out the case, not because the plea deal was in the defendant’s best interest.
- Private counsel do have the time and resources to pursue the best possible resolution for each client. A good DUI attorney scrutinizes every aspect of each DUI case for signs that the police may have made a mistake. Every weak link in the state’s case may add up to enough reasonable doubt to persuade the D.A. to lessen or drop the charge completely. In many cases, law enforcement misconduct alone is sufficient to get a DUI charge dismissed.
- The reality is that prosecutors are usually more willing to “play ball” when a defendant is represented by his/her own private DUI lawyer. They are more willing to hear the defendant’s side of the story and usually offer better plea deals.
- California Vehicle Code section 23550 VC. California Penal Code 1170 PC. California Vehicle Code 13352 VC. California Senate Bill 1046 (2018).
- See note 1. California Vehicle Code 23153 VC.
- See note 1.
- See Kelly Puente, How this California man got 9 DUIs in less than 6 years, The Mercury News (February 18, 2017).
- See note 1.
- See, e.g., People v. Casillas, (Court of Appeal of California, Fifth Appellate District, 2001) 92 Cal. App. 4th 171, 111 Cal. Rptr. 2d 651. See, e.g., People v. Munoz (Court of Appeal of California, Sixth Appellate District, 2002) 102 Cal. App. 4th 12.
- California Penal Code 1203.4 PC.