A defendant convicted of having violated CVC § 23152 within 10 years of another misdemeanor or felony DUI offense (where the current conviction is for a misdemeanor) faces increased punishment.
If probation is not granted, CVC § 23540 provides for a jail term of at least 90 days and up tp one year, and the usual fine and license suspension under CVC 13352(3)(a). If probation is granted, CVC § 23542 again sets forth alternative minimum sentences. The first requires a jail term of at least 10 days but not more than one year and the fine. The second alternative, avoiding the minimum 10 days incarceration, involves serving two minimum 48-hour jail stays (usually on weekends):
- (1) Be confined in the county jail for at least 96 hours, but not more than one year. A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served non-consecutively.
In addition, the standard DUI fine is imposed, along with a license suspension, the standard conditions of probation discussed above, and an “SB-38” drinking/driving school for 18 or 30 months.
In the event of a third conviction within 10 years, Vehicle Code § 23546 provides whether or not probation is not granted, the defendant be sentenced to a jail term of at least 120 days but no more than one year and the customary fine. The driver’s license will be suspended by the DMV for a period of three years. Be aware that on a third offense the court may order a 10-year revocation in addition to any suspension imposed by the DMV. This DUI “three strikes” law, Vehicle Code § 23597, became effective January 1, 2012. The code sets forth a series of factors for the court to consider when making such an order. However, the code is unclear of when the order is to be made and what procedures are to be used to conduct such a hearing, if any hearing at all, is to be conducted. The factors set forth under the code are:
(1) The person’s level of remorse for the acts.
(2) The period of time that has elapsed since the person’s previous convictions.
(3) The person’s blood-alcohol level at the time of the violation.
(4) The person’s participation in an alcohol treatment program.
(5) The person’s risk to traffic or public safety.
(6) The person’s ability to install a certified ignition interlock device in each motor vehicle that he or she owns or operates.
The DMV is instructed to immediately revoke the license for 10 years upon receipt of a duly certified abstract with a finding under this section. A person may apply to the DMV to have their driving privileges reinstated after five years of the revocation has passed. The person applying for reinstatement must agree to install and maintain an ignition interlock device for two years following the reinstatement. In addition, the person must also satisfy the following conditions found in CA VC § 23597(c)(2):
(A) The person was not convicted of any drug- or alcohol-related offenses, under state law, during the driver’s license revocation period.
(B) The person successfully completed a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, following the date of the last conviction of a violation of Section 23152 or 23153.
(C) The person was not convicted of violating Section 14601, 14601.1, 14601.2, 14601.4, or 14601.5 during the driver’s license revocation period.
Failure to maintain or an attempt to avoid the interlock requirement will be grounds for immediate revocation of the license for the remainder of the original revocation period.
If probation is granted, § 23548 states that the defendant may have their sentence reduced to a minimum of 30 days in jail but no more than one year, pay the fine, agree to the standard probationary terms, and attend a state-licensed 30-month drinking/driving school. This latter requirement can be imposed only if the defendant requests the school and is unaffected by whether he has already completed an SB-38 program. See § 23548 for further provisions regarding drinking/driving schools for third offenders.
Fourth or subsequent offense
A fourth offense within 10 years may convert the drunk driving offense from a misdemeanor into a felony. It is a “wobbler” offense meaning that the Prosecution can file charges either as a Felony or a Misdemeanor. However, in most jurisdictions it is filed as a felony offense, which triggers the following state prison sentences: 16 months, two years, or a maximum of up to three years. However, a Court does have discretion to grant probation and is not required to impose a prison sentence.
A conviction for a Fourth offense DUI will trigger a four year license suspension by DMV.
CVC 23575.3 (h)(1)(D) now provides: Upon a conviction with three or more priors punishable under Section 23550, or a conviction punishable under Section 23550.5, the person shall install a functioning, certified ignition interlock device in the vehicle, as ordered by the court, that is operated by that person for a mandatory term of 36 months.
To put it as simply as possible, upon conviction for a 4th offense DUI, the license will be suspended for a period of three years. The person will be able to apply for a license immediately and avoid any hard suspension if the following is done:
1. Obtain and maintain an SR-22 for three years;
2. Enroll in and successfully complete Multiple Conviction Program;
3. Install a certified Ignition Interlock device and properly maintain/use it;
4. Pay a license re-issuance fee at a branch DMV.