Updated: Feb 20
California has several categories of drug and alcohol awareness programs that might be ordered after a criminal conviction for a DUI. These programs might also be required before a person may have his or her driver’s licensed reinstated. One of the most common these DUI program is commonly called SB38.
What is an SB38 multiple offender DUI program?
SB38 is a reference to California Senate Bill Number 38, which was a set of laws proposed in the 1980s that related to drunk driving. Some of SB38’s proposals became law under a different name, but the provisions under SB38 that related to mandatory classes after multiple criminal convictions for driving under the influence of alcohol or drugs (DUI), remain known as ‘SB38 multi-offender DUI classes,’ or SB38 DUI multiple offender programs.”
Note: SB38 applies to persons who have multiple DUI criminal convictions and/or multiple DUI findings at a Department of Motor Vehicles (DMW) hearing on the issue. For first offense alcohol awareness DUI classes, see AB541.
The ‘SB38 DUI programs’ require a person to attend and complete a minimum of 76 hours of alcohol and drug awareness classes in an outpatient setting. These ‘DUI classes’ are spread out over the course of eighteen (18) months and participants are required to attend the classes once a week. The DUI classes in an SB38 program are usually spread out as follows: one fifteen (15) minute one-on-one counseling with a program counselor every other week and one ninety (90) minute group counseling every other week (approximately). For the last six (6) months of the program, the participants only attend once a month.
Note: SB38 requires a minimum of eighteen (18) months of DUI classes; however, some counties will require the defendant to attend and complete more than the minimum eighteen (18) months of DUI classes. Also, there is a thirty (30) month DUI program that the court could impose on multiple DUI offenders who have high blood alcohol concentration (BAC) at the time of their DUI arrest.
Do I have to enroll in an SB38 program?
SB38 is required when a person has multiple DUI convictions within ten years. The ten years measurement starts from the date of the defendant’s most recent DUI arrest and counts backward in time to the date of any prior DUI arrest. The ten year “look back” time does not start when the defendant has completed any probation for his or her prior DUI arrest.
For example, if David is arrested for a DUI in 2007, and later, he is found guilty of that DUI in 2008, but he doesn’t complete his court ordered probation until 2011, then the ten year “look back” time is measure from David’s most recent DUI arrest back to 2007 (not 2008 or 2011).
Note: A “DUI conviction” is any drunk driving related offense, including, but not limited to, the following: wet reckless driving, violation of VC 23152(a), VC 23152(b), VC 23152(c), VC 23152(d), VC 23152(e), VC 23153(a), VC 23153(b), and HN 655 (Boating under the influence of drugs or alcohol).
Also, SB38 is usually required as a term of probation after a defendant pleads guilty or no contest to a DUI crime, but if the court does not require SB38 as a term of probation then the defendant is not required by the criminal court to complete the program; nevertheless, the DMW will require a multiple DUI offense defendant to attend and complete the SB38 program if that defendant wants to legally drive without a suspended driver’s license.
For example, if David is convicted of a “Watson Murder,” (vehicular manslaughter involving DUI by a defendant with a prior DUI conviction), and David is thereafter sentenced to prison, then the criminal court judge might not ordered the defendant to attend and complete a SB38 program as part of the defendant’s jail sentence. Nevertheless, David must enroll in an SB38 multi-offender DUI program if David wants to legally drive a vehicle after his incarceration.
What happens at SB38 classes?
The SB38 classes focus on several issues, including the causes, signs, and harms of drug and alcohol addiction and abuse, and to educate participants about these issues in such a way so as to reduce repeat DUI and other drug and alcohol related offenses. There are counselors at the DUI classes who provide group and individual therapy, counseling, and lessons on both alcohol abuse and the dangers of drug and alcohol addiction. These goals are accomplished through teaching lectures, counseling, and videos. The DUI program also includes lessons on DUI court requirements, DUI laws, and other resources (outside of the SB38 program) to assist participants with their addictions.
Where and when are the SB38 classes?
SB38 classes locations and class schedules are easy to find online. In San Bernardino County there are multiple providers for SB38 classes (sometimes called “second DUI offender classes). Some, but not all, of these SB38 providers are open on Saturdays. It is also possible to transfer between providers (with some limitations). For more information, see List of DUI class providers in San Bernardino County.
What if I am already taking AB541 classes?
If a person is ordered to take SB38 classes, and that person is already taking a first offense alcohol awareness class (AB541 Classes), then he or she might be able to transfer some or all of his or her AB541 classes to the SB38 program. Each program provider might have their own rules as to this issue and sometimes it can only be done with court permission.
For example, if David is convicted of VC 23152(a) [DUI], and thereafter, David begins a first offender DUI class, then David might be able to move his credits from that first offender class his SB38 requirements if he picks up a second DUI. This is only possible if David has not 1) already completed his first offender program, and 2) if the program director allows for the transfer of David’s classes and/or the court grants David permission to do so.
With defendants who have been ordered to attend and complete more than one SB38 program (because of three or more DUI convictions within ten years), then those defendants might be able to combine the SB38 classes in such a way so as to fulfill the requirements of both DUI probation conditions (each SB38 class counts towards two or more SB38 requirements. Whether or not this is possible depends on the same factors listed above for persons who want to combine first offender DUI program requirements with second offender DUI program requirements. However, a criminal court judge is more likely to combine two or more SB38 program requirements when the defendant has completed only a minimal amount of the SB38 requirements under the first conviction that lead to the SB38 requirements.
Can I shorten the SB38 program?
Ordinarily, a person cannot shorten the amount of time it takes to finish an SB38 program. In other words, an eighteen (18) month program will take eighteen (18) months to complete. A person may not take extra classes to finish the program earlier than eighteen (18) months. However, some DUI class providers will allows a person to occasionally take two classes in one week and take the following week off, as opposed to one class per week, but the course itself cannot be finished in less than eighteen (18) months.
Exception: In some cases, a judge may allow a person who has received two or more DUI convictions to combine the SB38 classes. When this happens, the defendant may technically be allowed to finish an SB38 DUI program early.
For example, if David is convicted of a second and third DUI simultaneously (because the second DUI took longer to process in the criminal court than the third DUI and the two cases ended up being joined in one case), the criminal court judge might allow David to take both SB38 programs simultaneously (one for each DUI conviction). In other words, under this situation, for every SB38 class David attended he would be receive credit towards both SB38 programs. Of course, this situation does not technically shorten either of David’s eighteen (18) month SB38 programs, but in reality, David would actually be taking less classes than if he were not allowed to have the programs combined.
Also, remember, a judge might allow a person to receive partial credit for an SB38 program where that person has already started, and is in the early stages of, either a first offender DUI program (AB541), or a second offender DUI program (SB38), and where that person is ordered to serve a subsequent SB38 program (because of a subsequent DUI conviction).
How to enroll in an SB38 program?
A defendant enrolls in a program by taking his or her court paperwork to SB38 class provider. If the defendant has not yet received paperwork then some DUI class providers will not allow the defendant to enter the program. A defendant who wants to start an otherwise mandatory DUI class should check with different DUI class providers to ascertain whether or not he or she may enter the class without having first gone to the DMV or criminal court to resolve his or her DUI charges.
Note: DUI program directors must have a liaison with the court, the DMV, the district attorney, and the probation department of the County in which the DUI program is located. This liaison provides assistance to the participant in helping the participant understand what courses he or she is required to take (as ordered by the court or the DMV) and the liaison also informs the court and the DMV if the participant drops out of the course.
Can I take SB38 online?
Before Covid19, SB38 classes required the students to be present in class in order to receive credit. However, after Covid19, many SB38 programs now provide Zoom, or Zoom style communication, which allows the student to “attend” from a remote location. It is important to know that online classes do not generally count as credit towards class completion unless the SB38 provider is licensed by the state. Also, the Zoom-style communication is not really consider “online” by the provider, but rather “remote learning,” or “remote attendance.”
Note: The law on this is subject to change as in-person requirements for SB38 attendance is in flux do to Covid19. It is important to check with the DUI course provider, or a local criminal defense lawyer, before starting any online DUI class. For a list of DUI classes in San Bernardino, see DUI Programs in San Bernardino County.
Can I get my license back before I finish SB38?
Generally speaking, a person may have their driver’s license returned to them before he or she finishes the SB38 program (or the AB541 program). This is subject to other restriction of course (i.e. license suspended for other cases or non-payment of child support, etc.). When a person is issued a driver’s license before he or she completes an SB38 program then his or her license is considered restricted. That restriction may be loosened if the driver is willing to accept an interlock ignition device (IID) on his or her vehicle (See Interlock Ignition Device).
What happens if I drop out of SB38?
If the student drops out of a mandatory DUI class then several things can happen: 1) the student may be referred to the probation department of the district attorney for filing of violation of probation charges (assuming the student was on probation at the time of dropping the DUI class), 2) the student may be reinstated into the DUI class with permission of the DUI class provider and/or court permission, or 3) the student may sometime be allowed to file a declaration with the court that states he or she will not drive unless and until he or she reenrolls in the DUI classes if he or she intends to drive in the future (this is only done with court permission and essentially amounts to a modification of the probation condition that mandates SB38 classes).
The most common reasons a person will be dropped from a multi-offender DUI program include, but are limited to, the following: lack of participation, excessive absences (especially unexcused absences), coming to class drunk or intoxicated with drug, failure to provide a breathalyzer when requested to do so by a program director, and more.
Note: As to absences, a participant of an 18 month DUI program is not allowed more than ten (10) total absences per “period of enrollment.” A “period of enrollment” is a period enrollment mans the period from initial enrollment to completion or termination. A transfer from one DUI program to another, with no break in enrollment, counts as one period of enrollment (CCR Title 9, Section 9876).
If a person never signs up for a court-ordered SB38 program then he or she might have a few options: 1) the defendant could request a new date for enrollment through the criminal court (court will want to hear good cause for the new enrollment date), 2) the defendant could be in violation of probation.
Note: In some cases, the defendant’s criminal case will not proceed (i.e. criminal charges were not filed by the district attorney for some reasons, the defendant was found not guilty of DUI, etc.). Nevertheless, the DMV may still require the defendant to enroll in DUI classes before the DMV will return the defendant’s (Respondent’s) driver’s license. In this situation, the defendant will not be in violation of his or her probation for not attending the DUI classes because none were issued, but the DMW may still place a hold on the defendant’s license unless and until he or enroll in the appropriate DUI class (subject to an Administrative Per Se Hearing (APS) at the DMV)). For more information, see APS Hearings for DUI.
Do I need SB38 if I don’t intend to drive in California?
In some cases, where a defendant is place on probation after a DUI conviction, a criminal court judge might allow that defendant to file a declaration that states he or she will not drive unless he or she first enrolls in a drunk driving course, but otherwise, the judge makes no condition of probation that the defendant actually enroll in the course. This will usually only be allowed where the defendant can convince the criminal court judge that he (defendant) will not likely drive a vehicle for some reasons, at least not in the immediate future (i.e. defendant will be incarcerated on another case for years, defendant moving to another county, etc.).
How much does SB38 cost?
The costs associated with SB38 DUI programs vary by provider. The average cost of San Bernardino County DUI program providers is around thirty dollars ($30.00) per class (regardless of whether the class is an individual or group class). By law, all licensed DUI program providers are supposed to offer classes regardless of whether or not the student has the ability to pay. Information on lost-cost classes is supposed to be posted in plain sight at each DUI program location. Evidence of inability to pay the cost of the DUI class must be shown to the program provider when a person claim inability to pay.
Should I start DUI classes before going to court?
One of the most common questions posed to criminal defense lawyers by defendants facing DUI charges is whether or not the defendant should start a DUI class even before he or she has gone to either criminal court, or the DMV hearing.
The answer depends on the uniqueness of the defendant’s situation. For example, a defendant who wants to get the classes over with as soon as possible might want to start the classes as soon as possible (even before going to criminal court or the DMV hearing). Of course, if the defendant starts DUI classes before court, and the DUI charges and DMV petition is later dropped against the defendant, then the defendant might have wasted time and money on the classes that, as it turns out, he or she was not required to take.
Also, sometime a defendant might want to start DUI classes before any court has ordered him or her to do so, and then the court subsequently orders DUI classes, but the DUI classes that the defendant started are not the classes that the court has ordered the defendant to take (another possible waste of effort).
On the other hand, starting classes early, even before criminal charges are formally filed and before the DMV hearing on the issues, can have some benefits in several ways: 1) licensed professionals may have a better chance at saving their professional license if the defendant shows that he or she addressed the drug or alcohol addiction issues regardless of court orders to do so, and 2) a defendant who takes DUI classes before the criminal court hearing on the issue might have a better chance at negotiated a plea bargain more favorable to the defendant than that bargain would otherwise have been if the defendant did not immediately engage the DUI course.
Note: Every DUI case is different, therefore, whether or not a defendant should start DUI classes before going to court depends on many factors. A person who is considering starting DUI classes before going to court should discuss this option with a DUI attorney without delay.
How to show proof of enroll and completion?
SB38 Proof of enrollment and/or proof of completion of a program is usually handled by the SB38 provider. Remember, DUI program provider have a liaison with the criminal court, the district attorney, the probation department, and the DMV. This liaison will send proof of enroll and/or proof of completion of an SB38 program to the proper authorities. Or course, it is important that the student maintain his or her own records of enroll, participation, and completion of any DUI class.
Note: For defendant’s who have a private criminal defense attorney, sometimes that attorney will assist in the filing of any documents related to the defendant’s DUI (i.e. proof of enrollment, proof of completion, declarations, etc.).
To learn more about SB 38 multiple offender DUI programs, contact out DUI lawyers today. Our DUI lawyers have handled hundreds of misdemeanor and felony DUIs in San Bernardino and Riverside County, including the cities of Redlands, Rialto, Colton, Ontario, Chino Hills, Grand Terrace, Yucaipa, and more. Our lawyers can also assist you with every type of DUI charge, including VC 23152, VC 23153, VC 23140, and more. There is no charge for a first-time consultation at our office in Redlands. We are available every day of the week, including Saturday and Sunday by appointment. Call today!
DMV Hearings for DUI (APS Hearings)
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