Bay Area DUI Defense From a Former Prosecutor

A DUI arrest starts two cases at once: a criminal case in the superior court and a license case at the DMV. Each has its own rules and its own clock. This page explains both in general terms. It is information, not legal advice.

The charges: VC 23152 and VC 23153

Vehicle Code section 23152 is the standard DUI statute. Subdivision (a) makes it unlawful to drive while under the influence of alcohol. Subdivision (b) makes it unlawful to drive with a blood alcohol concentration of 0.08 percent or more. Prosecutors usually charge both counts together.

Vehicle Code section 23153 applies when a driver under the influence commits an unlawful act or neglects a duty and injures someone other than the driver. It can be filed as a misdemeanor or a felony. That choice turns on the injuries and the driver's record.

The DMV hearing and its deadline

The arresting officer usually takes the license and issues a temporary one. The DMV then moves to suspend it on its own, in an administrative per se proceeding separate from the criminal case.

A driver may request a hearing within ten days of receiving the notice of suspension, which the officer usually serves at the arrest. If the window passes, a four-month suspension for a first offense ordinarily takes effect without a hearing (Vehicle Code sections 13353.2 and 13558).

The hearing request is usually the first deadline after a DUI arrest.

A refusal suspension is imposed under Vehicle Code section 13353, and the hearing on it is requested under section 13558. It also asks whether the driver was told that refusing a chemical test would bring a suspension, and whether the driver refused or failed to complete the test.

Penalties for a first misdemeanor DUI

A first conviction under section 23152 with no injury carries a fine of $390 to $1,000 before assessments, county jail of 96 hours to six months, and a license suspension. With probation, jail is optional under section 23538; if imposed under that section, the term is 48 hours to six months (Vehicle Code sections 23536 and 23538).

The court also orders a licensed DUI program of three months, or nine months where the blood alcohol level was 0.20 percent or more or a test was refused (Vehicle Code section 23538).

An ignition interlock device is at the court's discretion on a first conviction without injury under Vehicle Code section 23575.3, and is required for a conviction with injury or a repeat conviction.

When a DUI becomes a felony

Four situations let a prosecutor charge a DUI as a felony in California.

• Injury to another person under section 23153, which the prosecutor may file as a misdemeanor or a felony, and which is a felony with two or more priors in ten years (Vehicle Code section 23566).
• A fourth conviction within ten years, counting section 23152, section 23153 and wet reckless convictions as priors (Vehicle Code section 23550).
• A DUI within ten years of a prior felony DUI conviction, or after a conviction for vehicular manslaughter while intoxicated (Vehicle Code section 23550.5).
• A death. A fatal DUI is charged as vehicular manslaughter while intoxicated under Penal Code section 191.5, which is a felony when gross negligence is alleged.

Where the facts show the driver knew the danger, commonly a prior DUI and the court's advisement under Vehicle Code section 23593, prosecutors may charge second-degree murder under Penal Code section 187.

A felony DUI carries prison exposure; the term, and whether it is served in state prison or county jail, depends on the section charged.

Common defenses

A DUI case is built from a traffic stop, an officer's observations, roadside tests and a chemical test. Each piece can be challenged.

Where the evidence holds up, the work turns to the outcome. One option is a plea to reckless driving involving alcohol under Vehicle Code section 23103.5, a wet reckless. It carries lighter consequences than a DUI but still counts as a prior.

A DUI conviction can also trigger a reporting duty for holders of a California professional license. That question belongs in the first conversation about a DUI charge.

How Pelta Law handles a DUI

That background shapes how the firm reads a DUI file: what the report has to prove and where it is thin.

Frequently asked questions

Do I need a lawyer for a first DUI in California?

A first DUI is usually a misdemeanor, but a conviction brings a criminal record, a license suspension, a fine and a required program, and counts as a prior for ten years. The DMV case has its own short deadline. Both cases are usually reviewed together before either is decided.

Will I lose my license after a DUI arrest?

What happens if I refused the breath or blood test?

Can a DUI charge be reduced or dismissed?

When is a DUI a felony in California?

A DUI can be charged as a felony when someone else is injured, when it is a fourth DUI in ten years, when there is a prior felony DUI within ten years, or when someone dies. Otherwise it is ordinarily a misdemeanor.

Contact

Call or text 415-963-1152, or email marc@peltalaw.com. Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement. Do not send facts of your case by email or text; a conflict check comes first.

This website is an advertisement for legal services. Marc Pelta, Pelta Law, San Francisco.