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First DUI, Second DUI, Third DUI, Under 21 DUI

Posted by Richard Wagner | Mar 05, 2024

DUI in California: What Can Happen?

This page is designed to answer questions about your DUI in California. Like most people, you probably have lots of questions. If you don't see the answer to your questions, please feel free to call (714) 721-4423.

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FIRST OFFENSE

Frequently asked questions:

  • Will I get probation?
  • Can you get your first DUI reduced or dismissed?
  • What usually happens?
  • What is the penalty for a first conviction?
  • Is there jail time?
  • Can a 1st DUI Result In a Plea Bargain?

Most first offenses in California are misdemeanors under VC 23152.

However, if you have a previous felony DUI case, then your first DUI can be a felony1, or if you caused an injury to someone else, then your first drunk driving case could be a felony.2

What Happens if You Are Convicted of Your First DUI?

  • Jail time: Court may impose a minimum of 48 hours to a maximum of 6 months3
  • Fine: $390 to $1000, plus penalty assessments
  • License Suspension: DMV suspends license for 6 or 10 months4 (This DMV suspension is separate from the DMV Admin Per Se Hearing suspension) Read more about DMV Admin Per Se Suspensions 
  • DUI Program: 3, 6, or 9 months.5
  • Ignition interlock device: Up to 6 months.6

SECOND OFFENSE

Most second offenses in California are misdemeanors under VC 23152.

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However, if you have a previous felony DUI conviction, then your second DUI can be a felony7 or if you caused injury to someone else, then your second DUI could be a felony.8

Frequently asked questions:

  • Will I get probation?
  • Can you get your second DUI reduced or dismissed?
  • What usually happens on your second DUI?
  • What are the penalties?
  • Is there jail time?

What Happens if You Are Convicted of Your Second DUI?

  • Jail time: 10 days to 1 year or 96 hours to 1 year9
  • Fine: $390 to $1000, plus penalty assessments
  • License Suspension: DMV suspends license for 2 years10 (This DMV suspension is separate from the DMV Admin Per Se Hearing suspension)
  • DUI program:18-month11 or 30 months12
  • Ignition interlock device: 1 year.13

THIRD OFFENSE

Most 3rd offense DUI cases in California are misdemeanors under VC 23152.

However, if you have a previous felony DUI conviction, then your 3rd DUI could be a felony, or if you caused injury to someone else, then your third could be a felony.

Frequently asked questions:

  • Will I get probation?
  • Can you get your third DUI reduced or dismissed?
  • What usually happens?
  • What are the penalties?
  • How much jail time?
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What Happens if You Are Convicted of Your 3rd DUI?

  • Jail time: 120 days to 1 year
  • Fine: $390 to $1000, plus penalty assessments
  • DUI Program: 18-month DUI program if you have not previously successfully completed a program
  • License revocation: 3 years
  • Habitual traffic offender: 3 years
  • Ignition interlock device: 2 years

If you are granted probation for your 1st, 2nd, or 3rd DUI:

The conditions must include the following:

3-5 years probation.

A requirement you do not:

  • drive with any measurable amount of alcohol in your blood;
  • refuse a chemical test to determine your BAC on arrest; and
  • commit a criminal offense, and
  • drive without a valid license or insurance.

Under 21 DUI – Underage DUI

What Happens If You Get A DUI Under 21?

Are you facing charges for driving under the influence as a minor?

California courts take DUI under 21 seriously.

Frequently Asked Questions about Under 21 DUI?

  • Is Vehicle Code Section 23140 a misdemeanor or an infraction? 
  • Can I still be charged with an adult DUI if I am under 21?
  • What happens if I was under 21 when I was pulled over but over 21 when I go to court?

Driving While Under the Influence of Alcohol—DUI Under 21 Consequences

What is Vehicle Code 23140?

Driving With 0.05 Percent Blood-Alcohol Concentration | Violation of Vehicle Code Section 23140.

It is unlawful for a person under 21 years of age who has 0.05 percent or more, by weight, of alcohol in their blood to drive a vehicle.

You can be guilty of VC 23140a if you were under 21 years of age and under the influence of, or affected by, an alcoholic beverage, regardless of whether a chemical test was made to determine your blood-alcohol concentration, and if the judge finds that you had consumed an alcoholic beverage and were driving a vehicle while having a blood-alcohol concentration (BAC) of 0.05 percent or more. VC 23140b.

Penalties for VC 23140 first offense

  • VC 23140 is an infraction.
  • Mandatory fine of $100 plus penalty assessments for a first offense
  • 18-21 years old must attend a licensed DUI Program
  • DMV suspends driving privileges until the DUI program is successfully completed
  • 1-year license suspension by the court, or delay of driving privileges if 13-21 years old. VC 13202.5. You may apply for a critical need restriction. VC 13202.5(c)
  • This will be used as a prior DUI suspension for the DMV but not in court if you get another DUI in the next 10 years. 

What is Vehicle Code 23136?

Driving With 0.01 Percent Blood-Alcohol Concentration. “The Zero Tolerance Law.” 

It is unlawful for a person under 21 years of age to drive with a blood-alcohol concentration of 0.01 percent or more, as measured by a preliminary alcohol screening (PAS) test or other chemical test. VC 23136(a).

A violation may be found if you consumed an alcoholic beverage and were driving with a BAC of 0.01 percent or more. VC 23136(b).

The PAS testing shall be incidental to a lawful detention (VC 23136(c)(2)). This means that even if your breathalyzer reading was higher than .01 percent, you may not have violated the zero-tolerance law if you were unlawfully detained.

Read about how 17-year-old Erik Taylor was driving two friends home from a school dance in his Toyota pickup truck. After being pulled over by the police, Erik blew into the preliminary alcohol screening (PAS) test, which showed his blood alcohol concentration was greater than .01%. The DMV suspended Erik's license for 1 year for an underage DUI. However, the Court of Appeal ruled that Erik was unlawfully detained and ordered the DMV to return his license.

Penalties for VC 23136 First Offense:

  • VC 23136 is an infraction.
  • A mandatory fine of $100 plus penalty assessments
  • A conviction in court does not cause a suspension.
  • DMV Admin Per Se Hearing – 1-year suspension – After 30 days, “Critical Need” restricted license eligibility.

How a DUI Lawyer Can Help

The prosecutor reviews your case for the following aggravating factors, which can make your case an aggravated DUI:

  • A blood alcohol level of .15% or .20% or more, the judge considers as a special fact in determining your punishment. (VC 23578, VC 23538(b)(2)).
  • A minor passenger age 14 or younger in your vehicle, 48 hours in county jail unless you are also convicted of Penal Code Section 273a. (VC 23572).
  • Refused to take a blood or breath test after you were legally arrested. (VC 23577) Or, if you were under 21 or on DUI probation if you refused to take the preliminary alcohol screening test.
  • Under 21, the court must suspend your license for an additional 1 year.
  • Drove 30 mph over the speed limit on the freeway (20 mph for other roads) and in a manner prohibited by Vehicle Code 23103 the judge must sentence you to additional 60 days in county jail.

Richard Wagner will fight on your behalf for alternatives to jail such as house arrest, electronic confinement, work release, and rehab treatment. 

Other DUI Penalties and Punishments

Disallowance of restricted license. Do not let this happen to you. Attorney Richard Wagner will get you a restricted license at the earliest possible time.

Surrender of license. If your license is suspended or revoked by the DMV, you must surrender your license to the court.

Vehicle impound. The court may order that a vehicle used be impounded at your expense for 1 to 90 days.

Restitution. The court must give you a restitution fine of $150 to $1000 and (2) order restitution to any victim for any economic losses.

Penalty assessments, fees, and state surcharges. These significantly increase the fine.

Severe Consequences for Commercial License Holders

First Offense: 1-year suspension of your commercial driving privilege. (VC 15300).

Second Offense:  a Lifetime revocation of your commercial driving privilege. (VC 15302). There is no look-back period for the lifetime revocation ban. This means that if you had a prior DUI over 10 years ago, you are subject to a lifetime ban. 

Get information about your DUI from a free consultation with Richard Wagner, Attorney at Law, with decades of experience and excellent reviews – call (714) 721-4423.

LEGAL AUTHORITIES

1 California Vehicle Code Section 23550(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not 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) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:
     (1)  A separate violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.
     (2)  A separate violation of Section 23153 that was punished as a felony.
     (3)  A separate violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony.

2 California Vehicle Code Section 23554: "If any person is convicted of a first violation of Section 23153, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year ..."

3 California Vehicle Code Section 23538(a)(1) Conditions of probation for first offense: "The court may also impose, as a condition of probation, that the person be confined in a county jail for at least 48 hours, but not more than six months.

4 California Vehicle Code Section 23538(b)(2) Conditions of probation for first offense: "The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1."    California Vehicle Code Section 13352(a)(1): "Except as provided in this subparagraph, or as required under Section 13352.1 or 13352.4, upon a conviction or finding of a violation of Section 23152 punishable under Section 23536, the privilege shall be suspended for a period of six months."  California Vehicle Code Section 13352.1(a): "Pursuant to subdivision (a) of Section 13352 and except as required under subdivision (c) of this section or Section 13352.4, upon a conviction or finding of a violation of Section 23152 punishable under Section 23536, if the court refers the person to a program pursuant to paragraph (2) of subdivision (b) of Section 23538, the privilege shall be suspended for 10 months."

5 California Vehicle Code Section 23538(b) Conditions of probation for first offense: "The court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program...(1) The court shall refer a first offender whose blood-alcohol concentration was less than 0.20 percent, by weight, to participate for at least three months or longer...(2) The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for at least nine months or longer..."

6 California Vehicle Code Section 23575.5(h)(1)(a) "The court may order installation of a functioning, certified ignition interlock device on any vehicle that the person operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. If the court orders the ignition interlock device restriction, the term shall be determined by the court for a period not to exceed six months from the date of conviction."

7 See Note 1.

8 See Note 2.

9 California Vehicle Code Section 23542(a)(1) Conditions of probation for second offense: "If the court grants probation ... the court shall impose as conditions of probation that the person be confined in county jail ... under either of the following: (A) For at least 10 days, but not more than one year (B) For at least 96 hours, but not more than one year..."

10 California Vehicle Code Section 23542(a)(2) Conditions of probation for second offense: "The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of Section 13352."  California Vehicle Code Section 13352(a)(3): "Except as provided in this paragraph or in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23540, the privilege shall be suspended for two years."

11 California Vehicle Code Section 23542(b)(1) Conditions of probation for second offense: "Enroll and participate, for at least 18 months ... in a driving-under-the-influence program ..."

12 California Vehicle Code Section 23542(b)(2) Conditions of probation for second offense: "Enroll and participate, for at least 30 months ... in a driving-under-the-influence program ..."

13 California Vehicle Code Section 23575.5(h)(1)(b): Upon a conviction with one prior, punishable under Section 23540, the person shall install a functioning, certified ignition interlock device in the vehicle, as ordered by the court, that is operated by that person for a mandatory term of 12 months.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...

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