California Misdemeanor DUI
- How likely is jail time for a first DUI?
- What are the penalties for your first, second, or third DUI conviction?
- How often do first-time misdemeanor offenders go to jail?
- What are the chances of going to jail for a second DUI?
If there are aggravating facts related to your DUI arrest such as speeding while driving recklessly1, high BAC2, refusing to take a blood or breath test3, causing injury to another person4, or driving with a child in your car5, your punishment (sentence) can be elevated or increased.
This includes charging you with a felony or increasing the penalties to include jail time, higher fines, and longer DUI programs.
You have two battles to fight. You have criminal charges pending in court and a separate battle with the DMV. The more DUI convictions and license suspensions you have within a ten-year span, the tougher the sentences for each DUI conviction and license suspension will be.
What is a DUI Plea Bargain?
The majority of DUI cases conclude with a settlement agreement, also known as a plea bargain, between the defense and prosecuting attorney. It is important for you to have an attorney familiar with DUI sentencing on your side. If a dismissal of the case is not possible, DUI attorney Richard Wagner will work hard to lessen the impact of the DUI on your life.
As a skilled criminal defense lawyer who has spent years working in Southern California courts of law, Mr. Wagner's goal is to achieve the best possible outcome for you and your family. In some cases, it is possible to enter a plea to a lesser charge, such as “wet reckless” or even “dry reckless,” both of which have less severe consequences than a DUI.
In most cases, unless you are found to have refused, a misdemeanor DUI arrest does not require you to serve actual suspension time where you cannot drive. This means that whether this is your first, second, or third DUI involving alcohol if you did not refuse to take a chemical test, you can now get a restricted license immediately. If you install an ignition interlock device and satisfy a few other conditions, you can drive anywhere as long as you drive the car with the IID. Read about Understanding Plea Deals in California
What is a “Wet” Reckless?
A “wet” reckless conviction can happen when the prosecutor agrees to reduce your DUI charges to the lesser included offense of misdemeanor reckless driving under Vehicle Code Section 23103. The term “wet reckless” is not in the California Vehicle Code. However, you will see it on forms referred to as “reckless driving involving alcohol.” The court must advise you that this conviction will be treated the same as a DUI conviction if you get one in the future. (VC 23103.5).
Penalties or Punishment for Wet Reckless Conviction:
One of the benefits of a wet reckless conviction is that the DMV will not suspend your driving privileges as a result of your plea to this offense. Also, the maximum amount of jail is less than a DUI. Furthermore, the minimum fine is also lower, as is the duration of the DUI Program.
*5 to 90 days in the county jail.
*Fine ranging from $145 to $1000, plus penalty assessments.
*DUI program. 6-week /12-hour (SB 1176) for the first offense. If you have one or more DUI convictions within the last ten years, you must complete a 9-month DUI program. Read about Wet Reckless vs DUI
First DUI Offense
Penalties or Punishment for a First-Time DUI Conviction (VC 23538):
*A county jail sentence of up to six months.
*3-5 years summary or informal probation.
*Fine ranging from $390 to $1000, plus penalty assessments
*DUI Program: The three-month (AB541) program includes 34 hours of drug and alcohol education, group therapy, one-on-one interviews, and additional county requirements. The 6-month program (AB762) consists of 48 hours of drug/alcohol education, group counseling, face-to-face interviews, and additional county requirements. The 9-month program (AB762) consists of 65 hours of drug/alcohol education, group counseling, face-to-face interviews, and additional county requirements.
DMV License Suspension: If you get convicted of a first-offense DUI, the DMV will suspend your driving privileges for either 6 months (VC 13352(a)(1)) or 10 months (VC 13352.1). If you were convicted of DUI involving alcohol, you have the option of converting the suspension into an IID restriction.
If you were convicted of DUI drugs, the DMV would not give you that option. However, you can apply for a restricted license that will allow you to drive for work. (VC 13352.4.) Note: This DMV suspension is separate from the DMV Administrative Per Se Suspension resulting from your DMV Hearing. (VC 13353.2.)
The suspension for a first-offense DUI alcohol is four months. (VC 13353.3(b)(1)(A)). The suspension for a first-offense DUI with a refusal is 1 year. (VC 13353.3(b)(3)). The DUI law does not allow you to apply for a restricted license if you are found to have refused the chemical test.
Second Offense (Within Ten Years)
Penalties or Punishment for a Second-Time DUI Conviction (VC 23542):
*A county jail sentence of at least 96 hours or 10 days, but no more than 12 months.
*3-5 years summary or informal probation.
*Fine ranging from $390 to $1000, plus penalty assessments
DUI Program. 18-Month Program (SB 1344). This is a multiple-offender program. If you are convicted of two or more DUIs, you will be ordered to complete an 18-month multiple-offender program. This program consists of 12 hours of alcohol and drug education, 52 hours of group counseling, biweekly individual interviews, and 6 hours of community reentry monitoring. Additional hours may also be required by the county, as described by the provider.
DMV License Suspension. If convicted of a second DUI, you must install an IID for 12 months. VC 23573.3 The DMV will suspend your license for 2 years as a result of the court conviction. VC 13352(a)(3)(A). If you were convicted of DUI involving alcohol, you have the option of immediately converting the suspension into an IID restriction.
If convicted of DUI drugs, then you have to serve 12 months of suspension before you can apply for a restricted license. This DMV suspension is separate from the DMV Administrative Per Se Suspension resulting from your DMV Hearing. (VC 13353.2). The suspension for a second-offense DUI with alcohol is a 1-year suspension. (VC 13353.3(b)(2)(A)). The suspension for a second-offense DUI with a refusal is a 2-year revocation. The DUI law does not allow you to apply for a restricted license if you are found to have refused the chemical test.
Third Offense (Within Ten Years)
Penalties or Punishment for a Third-Time DUI Conviction (VC 23548):
*A county jail sentence of at least 120 days and up to 12 months.
*3-5 years summary or informal probation.
*Fine ranging from $390 to $1000, plus penalty assessments.
DUI Program. 18-Month Program (SB 1344). This is a multiple-offender program. If you are convicted of two or more DUIs, you will be ordered to complete an 18-month multiple-offender program. This program consists of 12 hours of alcohol and drug education, 52 hours of group counseling, biweekly individual interviews, and 6 hours of community reentry monitoring. Additional hours may also be required by the county, as described by the provider.
DMV License Suspension. If you are convicted of a third offense DUI, you must install an IID for two years. VC 23573.3. The DMV will revoke your driving privileges for 3 years. VC 13552(a)(5)(A). You can apply for an IID-restricted license if you were convicted of a third DUI involving alcohol. If you are convicted of your third DUI involving drugs, you must wait a year before applying for a restricted license. This DMV suspension is separate from the DMV Administrative Per Se Suspension resulting from your DMV Hearing. (VC 13353.2.)
The penalty for a third-offense DUI with alcohol is a 1-year suspension. The penalty for a third-offense DUI with a refusal is a 3-year revocation. The DUI law does not allow you to apply for a restricted license if you are found to have refused the chemical test.
How A DUI Defense Attorney Can Help
As you can see, the punishment for a misdemeanor DUI can be severe and complicated. The best thing you can do when facing DUI charges is to hire a skilled DUI defense attorney. Call DUI Attorney Richard Wagner at (714) 721-4423 to set up a confidential consultation without cost or obligation. Our discussion will focus on your particular case. We can explore ways to fight your DUI case, mitigate punishment, help with a restricted license, and explore alternatives to jail.
1 California Vehicle Code Section 23582. Additional term for speeding. Subdivision (a) says, "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."
2 California Vehicle Code Section 23578. Special factors for penalties and probation determinations, says, "In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 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 breath or urine 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."
California Vehicle Code Section 23538. Conditions of probation for first offense, Subdivision(b)(2) says, "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, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions..."
3 California Vehicle Code Section 23577, Failure to take breath or urine test Subdivision (a) says, "If a person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer's request to submit to, or willfully failed to complete, the breath or urine tests pursuant to Section 23612, the court shall impose the following penalties:
(1) If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
(2) If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
(3) If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
(4) If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
Subdivision (c) says, "The penalties in this section do not apply to a person who refused to submit to or complete a blood test pursuant to Section 23612. This section does not prohibit imposition of administrative actions involving driving privileges."
4 California Vehicle Code Section 23153. Causing bodily injury while driving under the influence. Subdivision (a) says, "It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." Subdivision (b) says, "It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." Subdivision (d) says, "It is unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210 and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." Subdivision (f) says, "It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. Subdivision (g) says, "It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."
5 California Vehicle Code Section 23572. Minor passenger in vehicle. Subdivision (a) says, "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 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 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 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."
