In California, it is illegal to operate a vehicle while under the influence of alcohol or drugs.
See DUI (Driving Under the Influence) (California Vehicle Code section 23152: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html).
See also DUID -- Driving Under the Influence of a Drug (California Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html)
The consequences of a conviction typically depend on the number of prior convictions the driver of the vehicle has, as well as whether anyone was injured as a result of the alleged DUI.
See DUI (Driving Under the Influence) Causing Injury (California Vehicle Code section 23153: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23153.html).
This article covers California DUI laws, as well as the potential consequences of breaking them.
How California Laws Define DUI’s
All drivers in California are prohibited from operating a vehicle while under the influence of alcohol or drugs, or while having a blood alcohol concentration (BAC) of 0.08 percent or higher.
See Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) Number 2110 (“Driving Under the Influence -- Veh. Code § 23152(a), (f), (g)”): https://www.justia.com/criminal/docs/calcrim/2100/2110/
CALCRIM Number 2111 (“Driving with 0.08 Percent Blood Alcohol -- Veh. Code § 23152(b)”): https://www.justia.com/criminal/docs/calcrim/2100/2111/
CALCRIM Number 2112 (“Driving while Addicted to a Drug -- Veh. Code § 23152(c)”): https://www.justia.com/criminal/docs/calcrim/2100/2112/
An individual is considered to be under the influence when they're significantly impaired by alcohol, drugs, or a combination of both. Similar California statutes also criminalize riding scooters and bikes while inebriated, as well as boating while intoxicated (BUI).
See https://www.findlaw.com/dui/charges/boating-under-the-influence.html (“Boating Under the Influence”).
These DUI regulations apply to all California motorists.
Underage and Commercial Motorists
Blood alcohol concentration/content (BAC) limits are more stringent for some drivers. For commercial drivers, operating a vehicle with a Blood Alcohol Content of 0.04 percent or higher might result in an arrest.
See Driving With 0.04 Percent BAC with a Passenger for Hire (a.k.a. “Commercial DUI”) (California Vehicle Code section 23152(e): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html)
See also CALCRIM Number 2114 (“Driving With 0.04 Percent Blood Alcohol with a Passenger for Hire -- Veh. Code § 23152(e)”): https://www.justia.com/criminal/docs/calcrim/2100/2114/
Additionally, California enforces "zero tolerance" regulations that make it unlawful for juvenile drivers (i.e., those who are younger than 21) to operate a vehicle with a blood alcohol content of 0.05 percent or higher.
See Driving with 0.05 Percent Blood Alcohol when Under 21 (California Vehicle Code section 23140(a): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=23140
See also CALCRIM Number 2113 (“Driving with 0.05 Percent Blood Alcohol when Under 21 -- Veh. Code § 23140(a)”): https://www.justia.com/criminal/docs/calcrim/2100/2113/
Also, a California DUI conviction necessitates actual driving. Across most jurisdictions, a driver can be arrested for DUI if they are in "real direct charge" of an automobile while they are under the influence of alcohol or drugs.
Commercial drivers are subjected to tougher standards than non-commercial drivers, including when the former aren't operating commercial vehicles. The Federal Motor Carrier Safety Administration (https://www.fmcsa.dot.gov) sets a legal Blood Alcohol Content threshold of 0.04 percent for commercial drivers (and not the .08 percent threshold set for other motorists). CDL holders must exercise extreme caution because it is quite easy to surpass 0.04 percent even when feeling sober.
According to FMCSA standards, refusing a blood alcohol test is comparable to admitting guilt to the DUI charges, and your driving license will be revoked or suspended. All of the aforementioned consequences extend to commercial drivers, along with the following increased consequences:
- For your first DUI charge, your commercial driving license will be revoked for an entire year;
- If you get a Second DUI (California Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html), your commercial driver's license will be indefinitely revoked;
See: https://www.dmv.ca.gov/portal/driver-licenses-identification-cards/commercial-driver-licenses-cdl/ (“Commercial Driver’s Licenses”).
- There aren't any restricted driving privileges provided for CDL holders that allow them to drive to their workplaces. This means you will no longer be able to practice as a commercial driver;
- Employers must be notified of a DUI charge within thirty days.
Based on the severity of the offense, commercial drivers may face:
- Three years or even more if the accident occurs while you’re driving a commercial vehicle carrying hazardous substances;
- For any subsequent violations, potential life in prison;
- Life in prison when you utilize a commercial driver’s license to perpetrate an offense that involves controlled substances.
California's Per Se and BAC Limit DUIs
A "per se" DUI is driving under the influence charge that is based solely on blood alcohol content (i.e., irrespective of the motorist's level of impairment). The quantity of alcohol an individual must consume to reach the allowable BAC limits varies based on different criteria. These entail:
- Body size;
- The amount and percentage of alcohol;
- The length of time that the alcoholic drinks were taken;
- If the motorist had anything to eat;
- Some health issues that can impact how someone's body breaks down alcohol.
However, keep in mind that these factors are only estimates and do not account for all the variables that can influence BAC.
Penalties For California DUI
California DUI penalties vary depending on the facts of the matter. However, the laws outline several admissible consequences that are largely determined by the accused's previous convictions.
A DUI conviction in California qualifies as a prior and will remain on your records for 10 years.
Below are the potential consequences for a 1st, 2nd, and 3rd DUI.
Penalties for a California Misdemeanor 1st DUI Offense
If an accused is found guilty of driving under the influence for the first time, the possible charges for a 1st offense of Driving Under the Influence include:
- 3 to five years of summary (informal) probation;
- A county jail sentence of a maximum of 6 months;
- A 3- or 9-month drug and/or alcohol education initiative that has been approved by the court (AB 541 class);
See Driving Under the Influence (DUI) Program: https://www.dhcs.ca.gov/individuals/Pages/DUI.aspx
- The court may mandate the accused to place a Ignition Interlock Device (I.I.D.): https://www.dmv.ca.gov/portal/driver-education-and-safety/educational-materials/fast-facts/ignition-interlock-devices-ffdl-31/
inside his/her vehicle for up to 6 months to keep driving without limitations.
Alternatively, the defendant can face a 6 to 10-month revocation of his or her driver’s license, which might be reduced to a "restricted driving license." The restricted driving license allows you to operate your car to and from your workplace, school, as well as to the State DUI school.
Importantly, when you are detained for a California driving under the influence charge, you only have 10 days to request a hearing from the Department of Motor Vehicles.
See DMV DUI Administrative Hearing: https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/administrative-hearings/
Your request delays your license revocation till the official per se hearings are completed, and it could even lead to your driving license revocation being reversed. If you retain a California lawyer within 10 days, he or she could be able to seek the hearing on your behalf and defend you during the sessions.
California DUI Penalties for a Second Misdemeanor Offense
The following are the implications of a Second DUI (Driving Under the Influence) (Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html) charge within 10 years:
- Summary probation for 3 to 5 years;
- At least 96 hours and up to 1 year in jail;
- An eighteen-month or thirty-month California DUI school approved by the court; and
- Compulsory placement of an IID for up to one year, after which the accused is permitted to operate the vehicle without restrictions.
Alternatively, the DMV will revoke the accused's license for 2 years, which could be elevated to a restricted license after the first year.
Penalties for a California Third Misdemeanor DUI Offense
A California 3rd drunk driving charge within ten years might result in the following consequences:
- Summary probation for 3 to 5 years;
- At least 120 days and to up to a year in jail;
See, e.g., Los Angeles County Men’s Central Jail (http://shq.lasdnews.net/pages/tgen1.aspx?id=MCF); and
Women's Central Jail Los Angeles County -- Century Regional Detention Facility: https://lasd.org/crdf-combating-covid19/
- Fulfillment of a thirty-month DUI education initiative approved by the court;
- Compulsory IID placement for 2 years, after which the offender is permitted to drive their vehicle unrestricted. Otherwise, the Department of Motor Vehicles will revoke the accused's license for three years, which could be changed to a restricted license after 18 months;
- The Department of Motor Vehicles categorizes you as a "habitual traffic offender”.
What are the Penalties for a DUI with Injuries?
According to California Vehicle Code section 23153: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23153.html) (DUI Causing Injury), this offense is charged as a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html), meaning that it can be prosecuted as a misdemeanor or a felony, based on the facts of your case, as well as your criminal background.
If you've been charged with drunk driving and someone else besides yourself is injured, you face the following potential consequences:
Misdemeanor DUI with Injury Charges
- Informal probation for 3 to 5 years
- A county jail sentence ranging from 5 days to 1 year
- A 3-, eighteen-, or thirty-month alcohol treatment program
- Compulsory IID placement for 6 months to be allowed to carry on driving without limitations; or else, the accused will have their driver's license suspended for one year
- Compensation for all affected persons
Felony DUI with Injury Charges
- Two, three, or four years in prison
- A potential "strike" on your DUI record under California's Three Strikes Rule
- An eighteen to thirty-month drug or alcohol treatment initiative
- A three-year Habitual Traffic Offender status by the DMV
- IID placement is compulsory for 2 to 3 years before the offender is allowed to drive to anyplace (or else, they will face a suspension of their driving license)
- Compensation for all injured individuals
See CALCRIM Number 2100 (“Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury -- Veh. Code § 23153(a), (f), (g)”): https://www.justia.com/criminal/docs/calcrim/2100/2100/
CALCRIM Number 2101 (“Driving with 0.08 Percent Blood Alcohol Causing Injury -- Veh. Code § 23153(b): https://www.justia.com/criminal/docs/calcrim/2100/2101/
CALCRIM Number 2102 (“Driving with 0.04 Percent Blood Alcohol Causing Injury with a Passenger for Hire -- Veh. Code § 23153(e)”): https://www.justia.com/criminal/docs/calcrim/2100/2102/
DUI Causing Death and Watson Murder
Driving under the influence resulting in death triggers murder or vehicular manslaughter charges, including:
- Vehicular Manslaughter while Intoxicated (California Penal Code section 191.5(b): https://codes.findlaw.com/ca/penal-code/pen-sect-191-5.html);
- Gross Vehicular Manslaughter while Intoxicated (Penal Code section 191.5(a));
- Second-Degree Murder (California Penal Code section 192(a)&(b): https://codes.findlaw.com/ca/penal-code/pen-sect-192.html;
), a.k.a. "Watson Murder" (California Penal Code section 187: (https://codes.findlaw.com/ca/penal-code/pen-sect-187.html
See People v. Watson (1981) 30 Cal.3d 290 at: https://caselaw.findlaw.com/ca-court-of-appeal/1838207.html
- 2nd-Degree Murder under California Penal Code section 189(a) (https://codes.findlaw.com/ca/penal-code/pen-sect-189.html
If you've been found guilty of a DUI, you'll be mandated to agree to a “Watson advisement”, which requires that you declare that you are aware that driving while intoxicated may cause serious injury or death. Its purpose is to create a record that the prosecution can later use against you if and when you are charged with a DUI involving death.
Your signing this document enables prosecutors to prove intentional malice in such a case, which will result in you being prosecuted for 2nd-degree murder. DUI causing a fatality carries a prison-term range of one year to twenty-five years to a lifetime in prison.
See Punishment for Second-Degree Murder (15 years to life with possible parole) (California Penal Code section 190.05(a): https://codes.findlaw.com/ca/penal-code/pen-sect-190-05.html).
Penalties for a Felony DUI
You will be prosecuted for a felony DUI charge if you have at least three previous DUI convictions within the last ten years. The following are possible criminal consequences for a felony DUI conviction:
- 16 months, or 2 or 3 years in state prison;
- Compulsory placement of an IID for a minimum of 1 year (or else driving rights will be suspended for a maximum of 4 years);
- The Department of Motor Vehicles designates you as a Habitual Traffic Offender.
Death-related DUI convictions in California can also trigger California's “Three Strikes” statute, certain offenses are punishable by life in prison as well as a "strike" on the offender's criminal record.
See Strike Offense (California Penal Code section 667(a)&(b): https://codes.findlaw.com/ca/penal-code/pen-sect-667.html; California Penal Code section 667.5(c) (“Violent Felonies”): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=667.5.&lawCode=PEN; California Penal Code section 1192.7(c) (“Serious Felonies”): https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html).
Strike Sentencing Enhancement (California Penal Code section 1170.12: https://codes.findlaw.com/ca/penal-code/pen-sect-1170-12.html).
Probation Terms and Conditions
The following terms are always added when courts order a probation term following a DUI conviction:
- You cannot drive if you have any detectable quantity of alcohol in your system;
- If you have been apprehended for another DUI, you cannot decline to consent to a breath, blood, or, in certain cases, urine chemical test;
See Refusal to Submit to DUI Chemical Test (California Vehicle Code section 23612: https://www.justia.com/criminal/docs/calcrim/2100/2130/).
- You must not engage in any further criminal offenses;
- Participation in Narcotics Anonymous/NA or Alcoholics Anonymous (AA) (https://www.aa.org) meetings;
- Participating in the Mothers Against Drunk Driving Victim Impact program (https://madd.org/get-help/
- Victim compensation (if you were driving under the influence and caused an accident).
Elements that Could Aggravate your Sentencing
Certain aggravating factors will enhance your penalties irrespective of whether you have had a 1st, 2nd, 3rd, or successive drunk driving conviction. The most prevalent are as follows:
- A blood alcohol content of 0.15 percent or more (lower in certain counties);
- Declining to undergo a chemical test;
- Causing an accident;
- Driving at excessive speeds;
See also Reckless Driving (California Vehicle Code section 23103: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23103.html)
Reckless Driving Causing Injury (California Vehicle Code section 23104: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23104.html)
Excessive Speed on a Highway (California Vehicle Code section 22349: https://codes.findlaw.com/ca/vehicle-code/veh-sect-22349.html).
- Driving under the influence with a minor under 14 years of age in the vehicle (which could also result in a further charge of Child Endangerment (California Penal Code section 273a: https://codes.findlaw.com/ca/penal-code/pen-sect-273a.html
- Being less than 21 years of age at the time of your DUI arrest.
Implied Consent and Refusing a Blood Alcohol Test
All motorists detained for suspicion of DUI must undergo BAC testing per California's "implied consent" law. Motorists who decline the test will be fined and have their licenses automatically suspended. For the first offense, your driver’s license will be suspended for a year; two years for a second, and; 3 years for a third refusal.
Previous DUI charges, reckless driving charges, as well as refusal-related revocations all contribute toward determining what constitutes a 2nd or 3rd refusal. For example, a driver with one previous DUI charge and one previous reckless driving conviction who declines subsequent testing faces a 3-year license suspension.
Plea Bargaining in California DUI Matters
In certain situations, your DUIU charge could be reduced to what’s known as a "Wet Reckless (California Vehicle Code section 23103: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=23103)." A wet reckless is a negligent driving offense that is related to driving while intoxicated, with consequences ranging somewhere in between those associated with a DUI conviction and a reckless driving conviction.
DUI and Immigration Status
If you're an undocumented immigrant, being arrested for a DUI will likely traigger immigration procedures that could ultimately result in your deportation.
DUI is an offense that is often connected to other crimes, including crimes of “moral turpitude”, that could negatively impact your immigration status, and even possibly lead to your deportation. In addition, a DUI conviction can be used against you in certain categories of immigration petitions, such as DACA for juveniles.