Police have charged you with a DUI, and now you’ve got a lot of questions and concerns.
• Exactly what do the charges against you mean?
• What legal issues are you facing?
• Why did the police cite you for a felony DUI rather than a misdemeanor (or vice versa)?
• What are the possible consequences that you’re facing if you’re convicted?
This Q & A provides a basic introduction to California’s laws concerning driving under the influence.
Keep in mind as you’re reading that DUI law is pretty complex. If you’re unclear about the charges against you, or if you have concerns that police have charged you unfairly, your best bet is to consult a qualified attorney as soon as possible. An experienced DUI lawyer will be able to quickly help you make sense of what’s going on, and review everything that happened—from the initial traffic stop until the time that you got out of the police station—to make sure that police followed all of the proper procedures and did not violate your rights.
Why are there two or more DUI charges against me?
California law makes it easier for prosecutors to get a conviction by giving them a few different ways to prosecute you for a DUI. All of them fall under California Vehicle Code Section 23152, but they are found in different subsections of that code.
- Police may charge you with driving with a BAC of 0.08 or higher (subsection b).
- Another charge could be driving under the influence of alcohol (subsection a) or under the influence of drugs (subsection e) and/or under the combined influence of alcohol and drugs (subsection f).
- Police most frequently charge people with driving with a BAC of 0.08 or greater as well as with driving under the influence of alcohol and/or drugs, whichever is applicable.
How do the authorities decide if it’s a felony or a misdemeanor charge of DUI?
It’s tricky. Many DUIs are “wobblers,” meaning that they could go either way. It depends in a large part on your previous driving record (especially if you’ve had any previous DUIs) and on the circumstances of your arrest.
- Suppose police pick you up at a DUI checkpoint. You weren’t involved in an accident, and you haven’t hurt anyone, and you haven’t ever had a DUI before. Your BAC was just over the legal limit. You’re likely to face misdemeanor DUI charges.
- The outcome could be very different in this scenario: Police find you at the scene of a serious crash. The driver and passengers in the other vehicle are injured, and there’s been some fairly serious property damage to a homeowner’s fence, garden and trees. Your BAC is almost twice the legal limit at 0.16—and you’ve been convicted of DUI before.
In this instance, you’ll be lucky to avoid felony charges. Under California law, the authorities can charge you with a felony offense if:
- You’ve already had three DUI convictions within the past 10 years.
- You caused serious injury (or killed someone) because you were DUI.
- A higher BAC (0.15 or above) won’t automatically mean a felony DUI charge, but you will face greater penalties for a high BAC if the court convicts you.
A friend of mine got charged with a DUI but ended up pleading guilty to a “wet and reckless” charge. What’s that?
Prosecutors may give DUI defendants a break by allowing them to plead guilty to a “wet and reckless” charge instead of a DUI. They’ll most often make this offer if their case against the driver isn’t very strong, if the driver’s BAC was not much over the legal limit and/or if his/her driving record was pretty clean up to this point.
Your friend is fortunate. Drivers who plead guilty to a wet and reckless charge face less stringent penalties than those who plead guilty to DUI. Although they may lose their license for a while, they won’t have a DUI on their record—and that can make a big difference if they hold a commercial driver’s license or even when they’re applying for other types of jobs.
The aftermath of a DUI can be confusing. The police have taken your license. They’re talking about an administrative hearing before the MMTA, and you’ve got a court date as well. Let’s sort it out.
Why did police take my driver’s license? How do I get it back?
Under California law, police will confiscate your driver’s license if you’re arrested for a DUI, give you a notice of suspension or revocation and send a copy of that notice plus your license to the Department of Motor Vehicles (DMV). The officer should also issue you a temporary license that you can use to drive for 30 days.
The DMV automatically reviews the information and decides whether to uphold the suspension or revocation. (It’s rare that they don’t.) If you want to appeal this decision, you have only 10 days after you’ve gotten the suspension or revocation order to request a hearing.
If the DMV upholds the suspension, you’ll have to wait for your license suspension or revocation period to end. You may also face an additional period of suspension or revocation if the court finds you guilty of DUI.
Once any suspension or revocation period has ended, you can apply to get your license back by paying a $125 reissue fee to the DMV. You’ll also need to prove financial responsibility.
You can read more about license suspension or revocation at the DMV website.
Does the DMV administrative hearing take the place of my court date?
No, they are two separate proceedings. If you appeal a license suspension, the DMV holds an administrative hearing to determine whether or not there’s good cause to suspend or revoke your license. In other words, they decide if you get your license back immediately or if you’ll have to wait.
Your appearance before the court, on the other hand, will determine whether or not you’re found guilty of DUI.
If you’re convicted
There are a lot of variables at play when you go to court on a charge of DUI. If the court convicts you, you’ll feel the impact both financially (fines and court costs) as well as in the inconvenience and/or embarrassment it will cause you (loss of license, mandatory attendance at DUI driving school, installation of an ignition interlock device, etc.).
If the court convicts me of DUI, how does the judge determine what my punishment will be?
California law outlines what the minimum and maximum fines and jail terms will be. The penalties differ according to the number of DUI convictions you’ve had and whether or not you’ve been charged with a misdemeanor or a felony DUI. Judges can, at their discretion, waive or weaken some of the penalties.
To give you some examples:
A first-time misdemeanor DUI could result in fines and penalties ranging from about $1,800 (minimum) to more than $3,600 (maximum). You could face jail time ranging from 48 hours to six months; a possible license suspension for 90 days to ten months or more; mandatory completion of a three-month (or nine month) alcohol treatment program; and (possibly) the requirement to install an interlock ignition lock on your vehicle.
For a second DUI misdemeanor you’ll have to pay about the same amount in fines, but you may spend eight days or more in jail. You’ll have to complete another alcohol-treatment program (lasting either 18 or 30 months) at a cost of about $1,800. You will have to install an IID on all of our vehicles.
With a third or subsequent DUI you could face up to $18,000 in fines and penalties, up to a year in jail (3rd offense) or 16 months in state prison (fourth offense), and you’ll lose your license for three or four years.
A felony DUI brings even more severe consequence—you could lose your vehicle, for example. And if the court finds you guilty of killing or injuring someone while you’re driving under the influence, you could be looking at up to five years in state prison.
As you can see, a DUI conviction can impact your freedom, your bank account and your ability to get around. That’s why it’s always a good idea to talk to an attorney who can help you get fair outcome in a bad situation.