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Misdemeanor DUI Law & Defense
VC23152(A)-M & VC23152(B)-M
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More information about DUI crimes
Information on the crime of driving under the influence of alcohol or drugs (DUI) is found at California vehicle code sections 23140, 23152 and 23153.
With few exceptions, misdemeanor DUI charges are usually charged under VC 23152, and felony DUI charges are usually charged under VC 23153. This article is a summary of the law, the punishments, and the defenses that are related to misdemeanor DUI Charges (VC 23152). For information on felony DUI charges, please see Felony DUI.
Misdemeanor DUI Laws
To begin with, it is unlawful for a person who is under the influence of any alcoholic beverage or drug, or combination of alcoholic beverage and drug, to drive a motor vehicle. The term 'Under the influence of alcohol or drugs' means that the defendant's ability to drive a motor vehicle safely is impaired and it does not matter what the defendant's actual blood alcohol concentration (BAC) level is at the time of driving, so long as whatever that level is it impaired the driver's ability to drive safely (VC 23152(a) (Abbrev.).
Note: When the defendant's BAC level is 0.08% or more, the law presumes that the driver's ability to drive safety is impaired VC 23152(b):(Abbrev.).
If any amount of legal or illegal drugs have caused the defendant to become intoxicated, and thereby impairs the driver's ability to drive safely, he or she may be charged with a crime commonly called DUI drugs (VC 23152(e) (Abbrev.).
Underage DUI: Similar to the DUI crimes that cover adult drivers, it is illegal for a minor to be under the influence of alcohol or drugs while driving a motor vehicle (VC 23140 Abbrev.). A minor, for purposes of VC 23140, is any person under the age of 21).
Note: The BAC limit at the criminal court for underage drivers (under 21) is 0.05%, and at the DMV APS hearing the BAC limit for underage drivers is 0.005% (zero tolerance). Also, VC 23140 can be charged as an infraction or as a misdemeanor. Infraction DUI carries very little penalties, but misdemeanor VC 23140 carries penalties similar to VC 23152(a) [See DUI Penalties below].
DUI for Commercial Drivers: The BAC limit is 0.04% for class A commercial drivers when driving a commercial vehicle (VC 23152(d) Abbrev.). Penalties are otherwise similar to VC 23152(a) except that a commercial driver may also lose his or her commercial driver's license after a criminal conviction of DUI, or an adverse finding from the DMV after an APS hearing. For further information on commercial drivers and DUI, see DUI Commercial Driver.
DUI conviction by a person who is already on criminal probation for a DUI: The BAC limit for a person who is already on probation for a prior DUI conviction is 0.01% (VC 23154 Abbrev.). If found guilty of VC 23154, the defendant will be charged with a violation of probation in addition to any new crimes that served as the foundation for that violation of probation (For example, if the defendant is on probation for DUI, and he is arrested for another DUI, then he will be charged with the violation of probation and the new DUI charge simultaneously.
Note: According to California DUI law, a vehicle includes golf carts, off-road vehicles, and motorized scooters.
To begin with, the misdemeanor DUI crimes listed above carry similar punishments. It is the evidence, that is necessary to a finding of guilt, that varies from one misdemeanor charge to another. Also, these penalties listed below apply to misdemeanor DUI charges. Felony DUI charges carry additional penalties. Finally, the punishments listed below is only a partial list of all the penalties that could apply to a DUI arrest and/or conviction. Other direct and indirect penalties could apply.
Punishment: Misdemeanor VC 23152(a) punishment includes: Jail up to 180 for first offense and up to 1 year in jail for multiple offenses within 10 years of each offense; license suspension or restriction; mandatory DUI classes (3-10 months for a first offense DUI [AB541 Program], and 18 months for a multiple offense DUI within ten years of each offense [SB38 Program]; two points on the driver's DMV record; fines and court fess, mandatory SR-22 insurance, possible vehicle impound, possible installation of interlock ignition device (IID) on vehicle; possible immigration consequences and professional licensing consequences, and more.
Wet and Reckless Driving: Wet and reckless driving, also called a "wet reckless," is similar to a DUI, but a wet and reckless driving conviction carries less penalties overall than a traditional DUI conviction. A wet and reckless is a reduction of a DUI offense only after a plea bargain between the defendant and the district attorney. A wet and reckless driving is not a chargeable offense under California law, but rather a reduction, after possible plea bargaining, of the offense of DUI.
Note: Penalties, fines, and DUI classes are reduced compared to DUI convictions; however, a wet and reckless driving is similar to a DUI in that both carry two points on the driver's DMV record and both crimes serve as a prior DUI if the defendant is arrested for a subsequent DUI. For more information on wet and reckless driving pleas, see Wet and Reckless Driving.
Penalty Enhancement to DUI Charges: There are enhanced penalties for drivers who have a very high BAC at the time of driving, or for drivers who refuse to submit to a DUI chemical test (VC 23578 Summarized). For more information on DUI enhancement penalties, See Penalties in Criminal Law.
Probation Sentence: A probation sentence is a period of supervision in lieu of jail. Probation sentences are allowed in misdemeanor DUI offense (both felony and misdemeanor DUI cases), but a probation sentence after a DUI conviction is not guaranteed. Whether or not a probation sentence is granted after a DUI conviction depends largely on the facts of the case and the defendant's criminal history, especially the criminal history of a defendant that includes prior DUI convictions.
Furthermore, a probation sentence, if granted in any misdemeanor DUI case, has a minimum jail or work release requirement. The minimum sentence for a first offense misdemeanor DUI conviction is 48 hours, A second conviction of DUI, that occurs within ten years of a first offense DUI, carries a minimum jail sentence of 96 hours, and a third conviction of DUI in that same ten-year time span carries a minimum jail sentence or 120 days (VC 23152(a).
Work Release: Work release and house arrest (electronic monitoring) are common alternatives to a jail sentence in a misdemeanor DUI case. Work release is manual labor that usually includes picking up trash around jails and highways, but it can include any type of work, such as working at an animal shelter or a morgue. Some types of electronic monitoring include measuring the defendant's BAC through a SCRAM bracelet (Secured Continuous Remote Alcohol Monitoring). For further information see Work Release & House Arrest.
Probation sentences, if granted in a DUI case, have minimum jail sentence requirements (usually served alternatively on work release or house arrest). The minimum jail for a first offense VC 23152(a) conviction is 48 hours, A second conviction of VC 23152(a) carries a minimum jail sentence of 96 hours, and a third conviction of VC 23152(a) carries a minimum jail sentence or 120 days.
Misdemeanor DUI Defense
There are literally dozens of defenses that might apply to a criminal DUI charge. Every DUI is different, and therefore, the defense to every DUI is different. With that said, common defenses to DUI charges include, but are not limited to, the following: illegal stop (search and seizure violations), improper field sobriety test (FST) that render the evidence unreliable, improper handling or analysis of blood or breathalyzer results (either by police or lab techs), improper use or maintenance of equipment used to detect DUI, loss or destruction of DUI evidence, inconsistent statements for alleged witnesses (to prove driving, drinking, or sobriety), and more.
WARNING: With DUI cases, you have only ten days from the date of citation or arrest, whichever is earliest in time, in which to contact the Department of Motor Vehicles (DMV) to schedule a DMV APS hearing concerning your continued privilege to drive.
Our DUI lawyers have handled hundreds of DUI charges and DMV hearings, including VC 23152(a), 23152(b), 23152(d), 23152(e) (DUI Drugs), and 23140 (Underage DUI) crimes. Call today for your private DUI case evaluation. There is no fee for the consultation. Call today!
Quick Reference Sheet
Crime: Driving Under the Influence of Alcohol or Drugs (DUI)
Code: VC 23152(a) (CalCrim No. 2110 & 2111)
Wobbler: Yes. VC 23152(a) is a wobbler crime. This means that VC 23152(a) may be charged as a felony or as a misdemeanor.
Incarceration: Felony VC 23152(a) jail sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 180 days (First DUI Offense), or 1 year (Multiple Offender within 10 years).
Probation: Probation may be available in VC 23152(a) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. Felony VC 23152(a) is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Strike: VC 23152(a) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: VC 23152(a) is not a crime involving moral turpitude.
Firearms: Felony VC 23152(a) convictions prohibit a defendant from owning or possessing a firearm.
DL Issues: If convicted of VC 23153(a)) the defendant may have his or her driver's license suspended and be required to install an interlock ignition device (IID) on any and all vehicles the driver intends to drive.
Bail: $5,000 (Misdemeanor) $25,000 (Felony) (San Bernardino)
Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a criminal defense lawyer without delay.
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