Driving under the influence (DUI) is driving (which can consist of only some slight volitional movement of a vehicle) while under the influence of alcohol (Vehicle Code § 23152(a), (b)), or while under the influence of or addicted to a drug (whether an illicit substance or a valid prescription medication) (Vehicle Code § 23152(c), (f)), or while under the influence of some combination of alcohol and a drug (Vehicle Code § 23152(g).)

The penalties for a DUI conviction are set forth by statute. The sentence for a first conviction is three years informal, non-supervised probation, two days in jail (sometimes waived), a six-month license suspension, DUI school for three or nine months, and total fines exceeding $2,000. Sometimes AA or NA or other addiction counseling is also required.

There may be enhancements and additional probation terms if the defendant’s blood alcohol content (“BAC”) is particularly high (0.15 or 0.20 percent or higher), if the defendant has refused the chemical test upon arrest, if the defendant was under 21 years old at the time of driving, if there were children under 14 in the car, if the defendant was speeding 30 miles per hour or more over the speed limit, or if the defendant was involved in a minor accident while intoxicated.

A first-offender defendant with a low BAC (typically 0.12 percent or lower) may be given the option to plead to a wet reckless (Vehicle Code § 23103.5). This conviction carries only a one-year informal probation period, no jail, no court-ordered license suspension, a six-week DUI school, and about half the fines.

If the defendant convicted of DUI has a prior DUI conviction (including a wet reckless conviction) within the last 10 years, there are enhanced penalties, including 96 hours in custody and possibly additional time on home detention or a work program, and a two-year license suspension. A third DUI carries a minimum of 120 days jail, a probation period up to five years, a three-year license revocation, an 18-month DUI school, and a habitual traffic offender designation for the defendant.

A fourth DUI is a felony, which carries up to three years in state prison or, if supervised probation is granted, a minimum of 180 days jail. Felony DUI can also bring a license suspension of up to ten years.

A DUI causing an injury can also be charged as a felony with up to four years state prison (Vehicle Code §23153). Further, a one-year enhancement can be charged for each additional victim. As such, a DUI accident with four separately injured people (other than the defendant) carries prison exposure of up to six years. Conviction for DUI causing great bodily injury (e.g., a broken bone, or loss of consciousness) is a strike.

The most serious scenario is a DUI causing death. Such an incident can be charged as second-degree murder (also known as Watson murder) based on an implied malice theory that the defendant drove intoxicated with conscious disregard for human life (Penal Code § 187). The penalty for second-degree murder is fifteen years to life in the state prison. A Watson murder filing is most common if the defendant had a prior DUI or wet reckless conviction and received an advisement regarding how driving intoxicated can lead to serious injury or death. DUI causing death can also be charged as gross vehicular manslaughter while intoxicated with a penalty of up to ten years state prison or as vehicular manslaughter while intoxicated with a penalty of up to four years state prison (Penal Code § 191.5).

A DUI arrest involving a BAC of 0.08 or higher also results in a separate administrative suspension by the DMV unless the arrestee demands a hearing within ten days, in which case the suspension can be fought or at least delayed. The DMV administrative suspension action proceeds independently of any criminal action and regardless of whether the arrestee is charged or convicted of DUI.

There are numerous defenses to DUI, including that the defendant was not actually under the influence (either because of unreliable testing or because the defendant’s alcohol level rose above the legal limit after driving). Drug DUIs are often difficult to prove because there is no clear scientific consensus regarding what level of a substance in the bloodstream is intoxicating for any particular person given body chemistry or drug tolerance. Defenses for DUIs involving accidents include that the defendant was not driving, or that the defendant drank and became intoxicated after the accident. The defense can also bring a Fourth Amendment motion to suppress evidence obtained from the traffic stop, or prolonged detention, or unlawful arrest.

If you are facing DUI charges, contact me today for a free confidential consultation.

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