California DUI Laws & Penalties

California Blood Alcohol Concentration (BAC) Limits

Generally, a drunk driving offense based on BAC—as opposed to the driver’s level of impairment—is known as a “per se” DUI. The amount of alcohol a person must drink to reach the legal limit depends on a number of factors. These include:
• gender
• body size
• number and strength of drinks
• the time period over which the drinks were consumed
• whether the driver has eaten anything, and
• certain medical conditions that can affect how the body metabolizes alcohol.

California DUI Penalties

The penalties for a DUI in California vary based on the circumstances of the case. However, the law provides ranges of allowable penalties that are, for the most part, dependent on how many prior convictions the defendant has. In California, a DUI conviction will stay on your record and count as a prior for ten years. Here are what the possible sentences look like for a first, second, and third DUI.

In deciding on an appropriate sentence, a judge or prosecutor (when a sentence is the result of a plea bargain)  usually considers various mitigating and aggravating circumstances.

Mitigating Factors

Basically, mitigating factors are facts or circumstances that reduce a defendant’s culpability or warrant lenient sentencing. For example, if a driver was impaired because of lawfully prescribed medication, barely over the legal limit, or completes voluntary substance abuse treatment subsequent to the arrest, the judge and prosecutor may lean towards a sentence at the lower end of the allowable range. Judges and prosecutors might also look to factors like whether the defendant is gainfully employed or a good student in deciding on an appropriate sentence or plea bargain to offer.

Aggravating Factors

Aggravating factors, on the other hand, are facts or circumstances that increase the severity of a criminal act or the defendant’s culpability and warrant harsher sentencing. Typical aggravating factors for DUI cases include prior convictions, high BACs, reckless driving, excessive speeding, having a suspended license, causing injuries or property damage, and having a child in the vehicle at the time of the offense. And even if the defendant has no prior DUIs, having an extensive criminal record for other offenses can dissuade a judge or prosecutor from being lenient.

Implied Consent and Refusing a Blood Alcohol Test in California

California’s “implied consent” law requires all drivers who are lawfully arrested for driving under the influence to submit to BAC testing. Generally, the driver gets to choose between a blood or breath test.  

Drivers who refuse testing must pay a $125 fine and face license suspension. Here are the suspension periods for a first, second, and third refusal: 1st offence (1 Year License Suspension), 2nd offence (2 Year License Suspension), and 3rd offence (3 Year License Suspension).

For determining what is a second or third refusal, prior DUI convictions, reckless driving  convictions, and refusal-related suspensions count. For example, a motorist with one prior DUI and one prior reckless driving conviction who refuses testing would face a three-year suspension for the refusal.

Operating or in Actual Physical Control

California’s DUI laws prohibit all motorists from driving while under the influence of drugs  or alcohol or with a blood alcohol concentration (BAC) of .08% or more. A person is considered “under the influence” if substantially affected by drugs, alcohol, or a combination of the two. (California also has similar laws that prohibit bating under the influence (BUI).  

For certain drivers, stricter BAC standards apply. Commercial drivers can be arrested for a DUI for driving with a BAC of .04% or more. And California has “zero tolerance” laws making it illegal for underage drivers (those under 21 years old) to get behind the wheel with a BAC of .01% or more.

In most states, a motorist can be charged with a DUI for being in “actual physical control” of a vehicle while under the influence. In other words, actual driving is sufficient but not required to be convicted. In California, however, proof of driving is required for a DUI conviction—being in actual physical control isn’t enough.

Location of the Driver

A driver’s physical proximity to the vehicle—more specifically, the ignition of the vehicle—is an important consideration in determining whether the driver was operating or in actual physical control. The closer the driver was to being able to start up the car, the more likely the jury is to convict. So, for instance, the chances of conviction are higher for a motorist who was in the driver’s seat than a motorist who was asleep in the backseat.

Location of the Car

Car location is another key factor juries consider. If you were parked in your own driveway, you might escape responsibility. But a jury isn’t likely to be sympathetic to a motorist found parked in the middle of a roadway or on a sidewalk downtown. Basically, the car’s location gives the jury an indication of whether the person was driving before police showed up and how much of a risk the person posed to the public.

Location of the Keys

Most cars require keys to start the engine. So, the location of the keys is important for assessing whether the driver was operating or in actual physical control of the vehicle. If the driver didn’t have keys readily accessible, a jury might be unwilling to convict. But a driver who had the keys within reach or in the ignition won’t likely fare well with this issue at trial.

Whether the Car’s Engine Was Running

Being caught with the car engine running generally hurts a motorist’s chances of beating a DUI charge. With the engine running, the motorist is just a step away from putting the car in gear and driving away. However, other circumstances, including the driver’s location, might also come into play here. For example, a motorist who was found asleep in the back seat on a cold night might be able to convince a jury that it was necessary to keep the engine running for heating the interior of the car.

Whether the Driver Was Awake of Asleep

Some states have a bright-line rule that says a driver must be awake to be operating or in actual physical control of a vehicle. But in most states, whether a driver was awake or asleep is just another factor for the jury to consider in looking at the overall situation.

Underage DUI

Underage drivers (motorists who are under the age of 21) who operate a vehicle while “under the influence” or with a blood alcohol concentration (BAC) of .08% or higher can be charged with a “standard” DUI and generally face the same penalties as drivers who are at least 21 years old. However, underage drivers can also be convicted of a “zero-tolerance” offense for having a BAC of .01% or an “underage DUI” for having a BAC of .05% or more.

Zero Tolerance

Underage motorists who are caught driving with BAC of .01% or more can be convicted of an infraction. A conviction carries up to $250 in fines and a minimum one-year license suspension.

An underage driver with a BAC of .05% or more can be charged with underage DUI, an infraction. Strangely, the penalties for an underage DUI typically aren’t more severe than those for a zero-tolerance offense. Drivers convicted of an underage DUI face a one-year license suspension and a $100 to $300 fine (depending on whether the driver has prior infraction convictions within the past 12 months). Drivers who are under 21 but at least 18 years old must also complete an alcohol education program as a condition of license reinstatement.

Moreover, California’s “implied consent” laws require minors who are lawfully detained for DUI to submit to a preliminary alcohol screening test (breathalyser).

Further, A zero-tolerance offense won’t add points to the motorist’s driving record. However, an underage or standard DUI conviction will result in two demerit points  being assessed to the person’s record. Accumulating too many points can lead to license suspension.

Plea Bargaining in California DUI Cases

If you get charged with a DUI in California, you might be hoping to get the charge dismissed altogether. However, unless the court throws out evidence that’s critical to prove the charges, it’s unlikely a prosecutor will agree to a complete dismissal. But in some cases, a reduction to a “wet reckless” charge is possible. A wet reckless is defined as an alcohol-related reckless driving offense. In terms of severity, the penalties for a wet reckless fall somewhere between those for a DUI and standard reckless driving charge.

California’s SR-22 Requirements

To get your license reinstated following a DUI-related suspension, your insurance company will need to file an “SR-22” with the Department of Motor Vehicles (DMV). An SR-22 is a certificate that verifies you have met the minimum insurance requirements.

An SR-22 is also a requirement for obtaining a “hardship license” to drive to and from places like work and school during a DUI suspension.

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