Vehicle Code 23152(a) VC
In the state of California, it is illegal for a driver to be under the influence of drugs and/or alcohol while operating a motor vehicle. The language within Vehicle Code 23152(a) VC provides the legal foundation on which all California DUI laws stand. The language of the code section includes, what is commonly considered to be, the “standard definition” of driving under the influence. ‘”Under the influence", as it pertains to this code, is defined as a person’s “mental and/or physical faculties being impaired to such a degree that they no longer have the ability to drive with the cautious characteristics of a sober person.” Being intoxicated, or under the influence, is not limited to impairment from consuming alcohol. Additionally, it includes intoxication from being under the influence of drugs- legal or illegal. The way the code is written means that a prosecutor never must identify what specific substance lead to one’s intoxication, only that the person was “under the influence” of a substance that led to intoxication and thus impaired ability to operate a motor vehicle per the law. Violations of Vehicle Code 23152(a) VC generally lead to a misdemeanor charges. Felony violations of this only occur when a driver has been convicted of DUI multiple times within a 10-year period or been previously convicted of a felony drunk driving.
California Vehicle Code 23152(b) VC-- Driving with a BAC of 0.08% or Greater (The "Per Se" Law)
Vehicle Code 23152(b) VC prohibits driving with a BAC of 0.08% or Greater (The "Per Se" Law). This law is divided in to two parts: the first inquires whether the driver was driving under the influence, and the second inquires whether the driver had a Blood Alcohol Level of 0.08% or higher. This violation can result in a felony or misdemeanor depending upon the severity of the injuries caused by the DUI, one’s criminal history, and how dangerous or reckless the driver was.
Vehicle Code 23612 VC
If a driver suspected of DUI refuses the breathalyzer or blood test, they can be in violation of Vehicle Code 23612 VC. In some states, there is no ability for a driver to refuse, as officers are permitted to take forced blood samples from a suspect even if he or she refuses breath or chemical testing. Currently, most suspects of DUI that refuse breath, chemical or blood sample testing are not charged with violating either Vehicle Code sections 23152b or 23153b, but they can be found in violation of Vehicle Code 23152a which automatically results in the loss of a driver’s license for a minimum one year. Currently the National Highway Traffic Safety Administration is working on legislation that would allow and require officers to take on site blood samples to eliminate a driver’s ability to refuse testing if suspected to be driving while under the influence.
The California DMV and DUI’s
Laws and codes relating to DUI in the state of California are not only enforced by police and the California Superior Court system but also by the DMV. Criminal penalties such as jail time, probation, and fines for breaking DUI laws are issue by the court system while the DMV is responsible for handling penalties with respect to driving one’s privileges, such as the suspensions and/or revocation or a driver’s license.
California enforces a law called "Implied consent," which assumes that all drivers licensed have given their consent to submit to a blood or breath test as soon as they apply to earn a California driver's license. If a driver refuses to submit to breath or blood test, the driver may face suspension / revocation of their driving privileges.
Within 10 days of a DUI arrest, the DMV must provide the driver with a date for a proper and fair DMV hearing, which is referred to as a DMV “administration per se hearing.” If the driver refused testing during the arrest, it is likely that they will not be granted provisional driving privileges that allow a person to still drive themselves to pre-specified places such as work, school, or to AA/DUI classes. If a driver accused of DUI does not request a hearing appointment or fails to appear for their hearing his or her license will be automatically suspended.
State of California Felony DUI Laws
Typically, DUI violations in the state of California are classified and prosecuted as misdemeanor offenses; however, there are circumstances that will require a driver suspected of DUI to be prosecuted for a felony. The following circumstances result in Felony DUI prosecution:
- Previous felony DUI conviction within a ten-year period.
- A fourth DUI, or “Wet Reckless” (Vehicle Code 23103.5) within a ten-year period.
- A third DUI that has caused injury within a ten-year period.
- DUI that results in the death or serious injury of another person.
Although most DUI cases that result in injury or death as felonies, some may be filed as misdemeanors depending upon the extent of damage or injury/injuries caused, the recklessness of the driver during the incident, and/or the driver’s criminal background and previous driving and DUI history. DUI’s resulting in another person’s death can also be prosecuted in other ways such as: gross vehicular manslaughter while intoxicated (California Penal Code 191.5a), vehicular manslaughter while intoxicated (California Penal Code 191.5b), or Second degree murder- sometimes referred to as a "Watson murder".
California DUI Penalties
Any driver who is arrested for DUI more than 3 times within a 10-year period is likely to face a felony on the third conviction. But, because the California DUI laws allow for penalties at the discretion of the prosecutor, many driver’s felony DUI charges due to multiple DUI convictions or DUI resulting in damage or injury may be able to negotiate or plea to misdemeanor charges or lessened penalties. Penalties for violations of DUI laws or codes range and differ based on which laws were violated and to what degree.
Typically, a misdemeanor DUI can result in the following possible penalties:
- informal or “summary” probation,
- a one-year maximum incarceration in a county jail- six-month max. sentence for a first offense
- fines ranging from $390 and $1,000- fines generally total around three times the initial amount after penalties and assessments are added
- suspension and or revocation of one’s driver's license
- DUI classes
- victim restitution, community service, AA or NA meetings, the required installation of an ignition interlock device, or your vehicle being impounded
California felony DUI offenses can subject a driver in violation to the following penalties:
- formal probation
- a California State Prison incarceration
- fines ranging from $390 and $5,000- which, as mentioned above, end up totaling three times that of the original fine
- DUI classes
- Victim restitution.
Alternative sentencing may be available to some if a driver’s DUI attorney can negotiate for special circumstances from the court. Special penalties can include:
- electronic monitoring/house arrest
- living in a sober living facility
- community service or labor
California DUI Laws for out of state residents:
If a driver who does not live in the state of California is arrested for suspected DUI, the driver will automatically lose their privilege to drive within the State of California for 30 days. Just as California drivers are required to, out of state residents have ten days to contact the DMV to schedule an administrative per se hearing. If the DMV in California renders a suspension or revocation, it is highly likely that the driver’s home state will levy the very same action against the driver’s license and driving privilege.