California DUIs are "priorable" offenses. This means that the punishment increases with each consecutive DUI or wet reckless conviction that takes place within a ten-year period.1
In order for a prosecutor to land a conviction for a second time DUI in California, he or she must prove beyond a reasonable doubt that you were:
- Operating a motor vehicle, and
- Had a BAC of .08% or higher at the time of driving OR that you were under the influence of alcohol and/or drugs
The penalties and punishment for a second offense DUI conviction in California typically involve:
- 3 to 5 years of summary probation
- A fine of $390, plus penalty assessments. This can take the total to nearly $2000.
- A 2nd Offender DUI school that is 18-30 months in length
- A "mandatory minimum" of 96 hours in the county jail; to a maximum sentence of one year.
Because a second offense DUI in California is a misdemeanor crime, you are entitled to a jury trial before you can be convicted of the crime, as well as a hearing at the DMV before your license can be suspended. At trial, prosecutors typically present evidence to a jury that:
- You were driving in an intoxicated manner
- You failed to pass one or more of any field sobriety tests you were asked to perform
- You had certain signs of intoxication, including the odor of alcohol, bloodshot eyes, and slurred speech
- Your breath or blood test indicated that you had a BAC above .08
In the article to come, our California DUI defense lawyers address the following:
4. What Aggravating Factors May Increase the Typical Penalties And Punishments handed down by the Court and/or DMV for A Second Time DUI Offense?
One common question that presents itself for those arrested and charged with a second time DUI in California is how the penalties and punishment handed down by the Court and/or DMV differ from those given after a first DUI conviction in California?
There is no simple way of answering this question. This is true because the answer in large part depends on the distinct facts of each individual case. However, the sections that follow offer a basic framework of what you may normally expect if you end up getting a second DUI conviction in California.
Please note that while there are a few charges that are commonly reduced from California DUIs during DUI plea bargaining (for example, a "wet" reckless,2dry reckless3 , or exhibition of speed or "speed ex"4 ), this article only details punishments and penalties that are for actual second time driving under the influence convictions in California.
When convicted of driving under the influence for a second time in California, the penalties typically imposed by the court are as follows5 :
- Three to five years of summary probation6
- A minimum of 96 hours to a maximum of one year in a county jail
- Between $390-$1,000 in fines plus roughly an additional $1000 in penalty assessments
- Completion of an 18-month or 30-month court-approved California DUI school
- A two-year driver's license suspension that, after twelve months, may be converted to a restricted license
Nevertheless, the usual punishment handed down by the Court for a second time DUI in California generally varies by the county in which the conviction occurs (Please see Section VI below).
Importantly, when courts in California impose a DUI sentence that includes probation, the following conditions are always included7 :
- You shall not drive with any measurable amount of alcohol in your blood.
- You shall not refuse to submit to a chemical test of your blood, breath, or, in rare cases urine, if arrested for a subsequent DUI.
- You shall not commit any additional crimes.
Furthermore, depending on the circumstances, the following conditions of probation may be imposed for a second time DUI in California:
- Attendance in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings
- Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program
- Restitution (in the event that you caused an accident while driving under the influence)
- Installation of an Ignition Interlock Device (IID) on any car you own or operate for a maximum four-year period. If you are convicted of your DUI in Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge's discretion.8
The California Department of Motor Vehicles is the only authority that can or will suspend a California driver's license and/or give restricted licenses ("RS").
However, there are two separate ways to trigger the imposition of a license suspension by the DMV.
- A suspension triggered as a result of a DUI California court conviction under VC 23152 (a) or (b).
- A suspension triggered by failing to request a DMV hearing within 10 days of the date of the arrest or by losing DMV hearing. This is called an Administrative Per Se or APS Suspension.
The court-triggered suspension is 2 years when there is 1 prior DUI or wet reckless conviction within 10 years.
On the other hand, the APS suspension is 1 year if there is 1 prior DUI on the record within 10 years. However, after 90 days, if you submitted to a chemical test and show proof of installation of an ignition interlock device ("IID"), you can obtain a restricted license. This restricted license allows you to drive anywhere as long as it's in a car with an IID installed. This is required for 12 months.
Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a two year license revocation and are not entitled to a restricted license during any part of the suspension period.
You should note that there is no way around the 12-month IID requirement, so you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.
Finally, prior to getting a restricted license, your DMV record should show that a court-triggered suspension has already begun. However, the suspension triggered as a result of the court conviction does not have to already have run 90 days so as long as the APS has already run 90 days, which is common.
Although certainly disappointing, a second time DUI conviction may be removed from your permanent criminal record. This may be done by getting an expungement.
You should be able to expunge your California DUI conviction, so long as:
- you were placed on probation9 and
- you successfully completed probation.
In many ways, A DUI expungement works like any other California criminal record expungement. Essentially, a petition is filed with the court and then reviewed by a judge. If the judge grants the DUI expungement, you may withdraw your plea of guilty or no contest, re-enter a plea of "Not Guilty." Once this plea of "Not guilty" is entered, the case should then become dismissed.
4. What Type of Aggravating Factor May Increase the Typical Penalties and Punishments handed down by the Court and/or DMV for a Second Time DUI in California?
There are certain circumstances that, if present at the time you are booked for your second offense DUI in California, will increase your county jail or state prison sentence.
The most common of these include:
- Having a blood alcohol content (BAC) of 0.15% or higher (less in some counties)10
- Refusing to submit to a chemical test11
- Causing an accident12
- Being a minor under 21 at the time of your California DUI offense13
- Driving at excessive speeds14
- Having children under the age of 14 in the car (also known as Penal Code 273a child endangerment)15
What type of enhanced penalty you receive for any of these aggravating factors will largely depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with focus on your prior DUI history). Clearly, a prior DUI conviction, combined with one of the above-mentioned aggravating factors, makes the pending penalties even more severe.
A second time DUI in California arrest is a daunting but surmountable challenge. When you hire the right DUI attorney, there is oftentimes hope to come out of the process with a dismissal or acquittal.
Nevertheless, in order to achieve this, it helps to have the mindset immediately after your arrest to have a DUI defense lawyer look over your case.
A lot goes into creating an effective DUI defense and some of this may need to be done within hours after your second time DUI arrest in California. The specific need to hire a criminal defense lawyer to fight your DUI case includes the following:
1. Collecting and Analyzing of Evidence:
A good DUI defense attorney will know how to collect and analyze any evidence that would help your defense. This includes subpoenaing witnesses that may support your case. It may also include obtaining the police vehicle video of your stop as well as any accompanying audio recordings. If, for example, an officer states that he stopped your vehicle because you did not have a front license plate, and it is proved otherwise by showing that the Officer never had a glimpse of the front of your vehicle prior to the stop, then this may prove essential in damaging the officer's testimony.
2. Legal Research and Writing:
Alongside the need to have an attorney collect and interpret the evidence in your case, a good criminal defense attorney will also then be able to use this evidence as the basis for putting together written motions in support of your case. For example, if you believe any of the officers surrounding your DUI arrest unfairly targeted you or treated you in an inappropriate or unprofessional manner that would suggest police misconduct, then your attorney can file a "Pitchess Motion." This motion, which may be filed and heard before any trial takes place, may allow your attorney to dig up dirt from an officer's personnel file, giving you potentially more ammunition to fight your case.
3. Plea Bargaining:
It's also important to hire an attorney because he or she may be able to "settle" your case to your satisfaction. Since the overwhelming majority of DUIs do not go to trial, it's just as important to have a good DUI trial attorney as it is to have a DUI attorney who knows how to "talk the talk" with District Attorneys. These settlement discussions may help to get you a "wet" or "dry" reckless charge for your first time DUI in California.
Although specific statutory penalties exist for a second time DUI in California, many counties in California have varying and unique penalties. A list of the major counties is as follows:
- DUI penalties in Alameda County
- DUI penalties in Butte County
- DUI penalties in Contra Costa County
- DUI penalties in El Dorado County
- DUI penalties in Fresno County
- DUI penalties in Humboldt County
- DUI penalties in Imperial County
- DUI penalties in Kern County
- DUI penalties in Kings County
- DUI penalties in Los Angeles County
- DUI penalties in Madera County
- DUI penalties in Marin County
- DUI penalties in Merced County
- DUI penalties in Monterey County
- DUI penalties in Napa County
- DUI penalties in Orange County
- DUI penalties in Placer County
- DUI penalties in Riverside County
- DUI penalties in Sacramento County
- DUI penalties in San Bernardino County
- DUI penalties in San Diego County
- DUI penalties in San Francisco County
- DUI penalties in San Joaquin County
- DUI penalties in San Luis Obispo County
- DUI penalties in San Mateo County
- DUI penalties in Santa Barbara County
- DUI penalties in Santa Clara County
- DUI penalties in Santa Cruz County
- DUI penalties in Shasta County
- DUI penalties in Solano County
- DUI penalties in Sonoma County
- DUI penalties in Stanislaus County
- DUI penalties in Tulare County
- DUI penalties in Ventura County
- DUI penalties in Yolo County
Call Us For Help...
If you or a loved one is charged with a second DUI and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Arrested in Las Vegas, Reno, or elsewhere in Nevada? See our article on DUI seconds in Nevada.
1 This ten-year timeframe is otherwise known as a "washout" or "lookback" period and also includes (1) California "wet" reckless, convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI. See California Vehicle Code 23622 -- Violations of § 23152 or § 23153 within 10 years of specified offenses; effect upon sentencing. ("(a) In any case charging a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, the court shall not strike any separate [DUI] conviction of those offenses for purposes of sentencing in order to avoid imposing, as part of the sentence or term of probation, the minimum time of imprisonment and the minimum fine, as provided in this chapter, or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code. (b) In any case charging a violation of Section 23152 or 23153, the court shall obtain a copy of the driving record of the person charged from the [California] Department of Motor Vehicles and may obtain any records from the Department of Justice or any other source to determine if one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, have occurred within 10 years of the charged offense. The court may obtain, and accept as rebuttable evidence, a printout from the Department of Motor Vehicles of the driving record of the person charged, maintained by electronic and storage media pursuant to Section 1801 for the purpose of proving those separate violations. (c) If any separate convictions of violations of Section 23152 or 23153 are reported to have occurred within 10 years of the charged offense, the court shall notify each court where any of the separate convictions occurred for the purpose of enforcing terms and conditions of probation pursuant to Section 23602.")
2 Pursuant to California Vehicle Code 23103.5, a wet reckless is a reckless driving that functions as a prior DUI on your record. If you sustain a wet reckless conviction, and get charged with a subsequent DUI during the following 10 years, courts treat the new DUI charge as a second offense when imposing DUI penalties in California.
3 California Vehicle Code 23103 defines reckless driving. If, after being charged with a DUI, you plead guilty or no contest to this charge, it is referred to as a dry reckless, as opposed to a "wet" reckless.
4 California Vehicle Code 23109(c) exhibition of speed or "speed ex" is a charge that is commonly bargained for during DUI plea bargaining. Although it has nothing to do with DUI per se, it acts as a signal to other prosecutors and law enforcement officers that you were initially arrested for a DUI.
5 California Vehicle Code 23540 - Second time DUI in California--DUI punishments; ("(a) If a person is convicted of a violation of Vehicle Code 23152 and the offense occurred within 10 years of a separate violation of Vehicle Code 23103, as specified in VC 23103.5, VC 23152, or VC 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.
See also California Vehicle Code 23542 - Second time DUI in California penalties. Conditions of probation for the second offense. ("(a)(1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following: (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively...(b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following: (1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court...(2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. ")
6 California Vehicle Code 23600 -- DUI sentencing. Conviction and pronouncement of sentence for violations of Vehicle Code 23152 or 23153; probation; minimum confinement or fine; violation of probation. ("(b) If any person is convicted of a violation of VC 23152 or VC 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following: (1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three nor more than five years.")
7 California Vehicle Code 23600. Conviction and pronouncement of sentence for violations of § 23152 or § 23153; probation; minimum confinement or fine; violation of probation. ("(b) If any person is convicted of a violation of Vehicle Code 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following: (1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three nor more than five years; provided, however, that if the maximum sentence provided for the offense may exceed five years in the state prison, the period during which the sentence may be suspended and terms of probation enforced may be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced. (2) A requirement that the person shall not drive a vehicle with any measurable amount of alcohol in his or her blood. (3) A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcoholic content of his or her blood. (4) A requirement that the person shall not commit any criminal offense.")
8 California Vehicle Code 23575 -- DUI penalties. Court-mandated use of ignition interlock device. ("(a)(1) In addition to any other provisions of law, the court may require that a person convicted of a first offense violation of [California Vehicle Code] Section 23152 or 23153 install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The court shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest. If the court orders the ignition interlock device restriction, the term shall be determined by the court for a period not to exceed three years from the date of conviction.")
See also California Vehicle Code 23700 VC
9 Following a plea or a jury conviction to a DUI charge, a defendant is usually placed on 3 to 5 years of probation. In a misdemeanor case, this is referred to as "summary probation" or "informal probation"-meaning the person does not need to report to a probation officer. The defendant may petition the court to terminate the DUI probation early, for example after 18 months. In reality, however, most judges are very reluctant to grant an early termination of probation in a DUI case. One of the terms of DUI probation is that the person may not drive with any measurable amount of alcohol in his system. Judges generally want to see the defendant bound by this term for as long as possible. Therefore, most judges will require the defendant to serve the complete term of probation before granting the DUI expungement and dismissing the case.
10 California Vehicle Code 23578 -- DUI punishments. Conviction of violation of Vehicle Code 23152 or 23153; alcohol concentration or refusal to take chemical test as special factor; penalty enhancement or probation. ("In addition to any other provision of this code, if a person is convicted of a violation of vc 23152 or vc 23153, the court shall consider a concentration of alcohol in the person's blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.")
11 Id., See also California Vehicle Code 23577
In addition, Vehicle Code 13353 permits the DMV to suspend your driver's license for multiple years when dealing with a second offense DUI in California.
12 Many counties will impose an additional county jail sentence if you caused an accident on your second time DUI in California, even though the accident did not result in injury.
13 If you are under 21 at the time of your second time DUI conviction in California, you will additionally be convicted of Vehicle Code 23136 (a civil offense under California's zero-tolerance policy) and of an infraction under Vehicle Code 23140 (driving with a BAC of 0.05% to 0.07%).
14 California Vehicle Code 23582 -- Driving under the influence; addition penalty for excessive speed and reckless driving during commission of offense; additional punishment. ("(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.")
15 California Vehicle Code 23572 -- DUI sentencing. Conviction of violation of Vehicle Code 23152; minor in vehicle; enhanced punishment. ("(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 vc punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 vc punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 vc which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed.
See also California Penal Code 273a -- Child endangerment. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.")