California is one of the states that have the most stringent laws on driving under the influence (DUI). The state’s drunk driving laws have become increasingly strict, especially for repeat offenders. California law considers all DUI offenses as prior. Therefore, the consequences of your DUI conviction become more severe with each subsequent DUI within ten years. Also, the police enforce these laws relentlessly to curb DUI-related accidents and fatalities.
DUI means driving a vehicle with compromised mental or physical capabilities such that you cannot drive in the same way a sober, cautious person can. If you are under arrest for a 3rd DUI in Orange County, CA, you are likely to incur hefty fines and serve a lengthy prison term. You, therefore, must contact a lawyer right away. An attorney from the Orange County DUI Defense Attorney Law Firm will work vigorously on your behalf to possibly convince the judge to reduce or dismiss the charges against you.
A Brief Description of California’s DUI laws
Like other states, California has it’s “per se” limit. It also has several other blood alcohol concentration (BAC) limits that address drunk driving for specific categories of people. California’s Vehicle Code outlines all the drunk driving laws in different sections. Understanding these laws will help you steer clear of committing any DUI offenses. It will also help you plan a way forward if you are in custody for DUI. The codes are:
Driving Under the Influence
According to Section 23152(a) VC, it is illegal to drive a motor vehicle while you are under the influence of alcohol. Law enforcement officers can arrest you for DUI under this code even if your BAC is lower than the 0.08% BAC limit.
Driving with a 0.08% BAC or Higher
Section 23152(b) VC is also known as California’s “per se” law on DUI. It makes operating a motor vehicle while your BAC is at or is greater than 0.08% unlawful. Under this code, driving when your BAC is over the limit is automatically a DUI crime, even when there is no evidence that you were intoxicated from alcohol.
Driving While Addicted to Drugs
DUI Law for Commercial and Drivers for Hire
As per Section 23152(d) VC and Section 23152(e) VC, it is a DUI crime to drive with a BAC at or higher than 0.04%. This law is applicable to ride-sharing drivers, taxis, and limo drivers when a passenger is in your vehicle. This legal limit also applies to commercial drivers.
Passengers for hire are people who pay for you to drive them. They include taxi passengers, ride-sharing passengers, and fewer than ten passengers in limousines, including the driver. This definition does not include carpooling or trips where friends contribute money for gas.
Section 23152f VC and Section 23152g VC offer the law for drug-related DUIs. It is a crime under Vehicle Code 23152f to drive when you are intoxicated from drugs. It is also a crime under Vehicle Code 23152g to drive under the influence of a combination of alcohol and drugs. The term “drug” refers to:
- Legal drugs like marijuana
- Narcotics including heroin, cocaine, and methamphetamine
- Prescription medications even when they do not make you high
- Over-the-counter medications such as antihistamines and medicines to treat colds.
The “Zero-tolerance” Law on Underage DUI
Section 23136 VC prohibits persons under 21 years from driving with a BAC of 0.01% or higher, after consuming any alcoholic beverage. A small alcohol amount can rapidly increase your BAC to 0.01%. An alcoholic beverage refers to any source of alcohol and not only alcoholic drinks. Other possible causes of alcohol include homeopathic medicines, cough syrups, nighttime cold formulas, and topical mouth-numbing creams.
Underage Drunk Driving with a BAC of 0.05% or Higher
Section 23140 VC makes it an infraction for drivers below 21 years to drive when BAC is 0.05% or higher. This code indicates that California holds drivers who are under 21 years to stricter standards.
DUI while on Probation
Section 23154 VC makes it illegal for a person on probation for a previous DUI or DUI causing injuries to drive any vehicle at any time when their BAC is at least 0.01%. This provision means that you cannot drive with any measurable alcohol content during your DUI probation.
Third DUI Offense
All DUI convictions in California count as priors, and the consequences increase with each consecutive wet reckless or DUI conviction you get within ten years. A third DUI conviction is a misdemeanor that attracts more severe penalties than your first and second DUI offenses.
Usually, a DUI arrest leads up to charges for two separate misdemeanors:
- DUI of alcohol under Vehicle Code 23152(a)
- Driving with a BAC of 0.08% or more under Vehicle Code 23152(b).
The standard penalties for a third DUI conviction in ten years include:
- Summary probation for three to five years
- Fines, assessments, and penalties of up to $2,800
- A county jail term for a minimum of 120 days to a one-year maximum
- Participation in a court-approved alcohol or drug program for 30 months
- Mandatory Ignition Interlock Device (IID) installation for a two-year period within which you can drive anywhere. If not, you will get a three-year license suspension which the DMV can only convert to restricted status after 18 months
- A DMV classification to Habitual Traffic Offender (HTO) status for three years
If a judge imposes probation as part of your DUI sentence, they will always include the following conditions:
- You cannot drive with even the least measurable alcohol amount in your blood
- You must submit to a breath, blood or on rare occasions urine chemical tests if law enforcement arrests you for a successive DUI
- You must refrain from committing any other crimes
Depending on the specific facts of your case, the judge may impose additional conditions for your probation:
- Attending Narcotics Anonymous or Alcoholics Anonymous meetings
- Involvement in programs by Mothers Against Drunk Driving (MADD)
- Participation in a hospital and morgue program
- Restitution if an accident occurred due to your drunk driving
If you violate any of these conditions, you will be subject to the consequences of DUI probation violation, which include revocation of your probation and serving time in jail.
Some circumstances will enhance your penalties and extend your prison or jail sentence if they are present during your third DUI offense booking. The penalty enhancement will depend on the precise context of your DUI arrest and your criminal history, particularly your DUI record. Combining two previous DUI convictions with an aggravating factor minimizes your chances of avoiding jail significantly.
The most common aggravating factors include:
- Having an Excessive BAC
California’s “per se” DUI limit is 0.08%, and driving with any BAC beyond that is automatically a DUI. However, under Section 23578 of the Vehicle Code, a BAC of 0.15% is an extraordinary factor that will enhance your DUI sentencing. As a repeat offender, your penalty enhancement will include a one-year jail term and fines totaling to about $1,800.
- Chemical Test Refusal
You can refuse to take a preliminary alcohol screening test when the police stop you for DUI, except if you are under 21 years. However, if the police arrest you, you must take the breathalyzer test that the police administer at the station. Under the “implied consent” law, having a California driver’s license means consenting to a breath test after a lawful arrest for DUI.
A refusal will get you ten more days of jail time and revocation of your license for between three and four years, which could extend to ten years. Also, refusing a breathalyzer test will disqualify you from the limited privileges of having a restricted license.
- Having a Minor Below 14 Years in the Car
In addition to the standard DUI charges, drunk driving with a child younger than 14 in the vehicle will subject you to penalties under VC 23572, DUI with child endangerment. This code provides an additional mandatory jail sentence of 30 days. Therefore, you must serve jail time if the court convicts you of DUI with a minor in the car.
DUI with a minor in the car also constitutes a form of child endangerment under Section 273a of the Penal Code. The court cannot convict you for both DUI with a child in the car and child endangerment. Therefore, prosecutors are likely to charge you separately for third DUI and child endangerment. The penalties for child endangerment include:
- A fine of $1,000, six months in county jail, and summary probation for a misdemeanor.
- A fine of $10,000, a state prison term of two, four or six years and four-year formal probation for a felony
Your prison term will extend by between three and six years if the child suffers severe bodily injury.
- Causing an Accident
A standard DUI with injury is a wobbler under Section 23153 of the California Vehicle Code. It is either a felony or misdemeanor, depending on the facts of your case and your criminal history. For a third DUI involving an accident in which another person excluding you suffers injuries, you will face felony DUI with injury charges. The potential penalty enhancement includes:
- Incarceration in state prison for between sixteen months and ten years. You also receive a consecutive prison sentence of one to six years, depending on the number of victims and the severity of their injuries.
- A probable “strike” on your criminal record under California’s Three Strikes Law
- Fines ranging from $1,015 to $5,000
- Attending a drug or alcohol program for between 18 to 30 months
- A three-year status of Habitual Traffic Offender (HTO)
- Mandatory installation of an IID for between two and three years or a license suspension
- Restitution to the injured persons
What if the Accident Results in Death?
When someone dies due to your drunk driving, the charge is Vehicular Manslaughter While Intoxicated, a felony under Penal Code 191.5. It is the unlawful killing of a person while you drive under intoxication, and it is a distinct crime from PC 192(c) Vehicular Manslaughter. PC 191.5 only applies if you drive under the influence of drugs, alcohol, or both. It involves either typical or gross negligence.
Causing death due to DUI with gross negligence, PC 191.5(a), will subject you to a state prison term of four, six, or ten years. However, DUI causing death with ordinary negligence is a PC 191.5(b) crime for which possible penalties are:
- A one-year term in county jail
- Detention for 16 months, two years or three years in prison
If the prosecutor cannot prove your intoxication beyond any reasonable doubt, the court may instead convict you of PC 192(c) Vehicular Manslaughter.
If your case is egregious, you will face DUI murder charges, also known as Watson murder (Penal Code 187) instead of vehicular manslaughter. The prosecution will charge you with second-degree Watson murder if another person dies due to your DUI, and the following statements are true:
- You have a previous DUI conviction
- You went to DUI school and are aware of the risks of DUI, or you were given a Watson advisement during your prior DUI conviction. A Watson advisement forewarns you that DUI of drugs or alcohol is highly threatening to human life and that killing a person while DUI can result in murder charges.
- Exceeding Speed Limits and Driving Recklessly
Exceeding speed limits triggers a sentence enhancement if:
- You are under the influence, but you still drive
- You exceed the maximum prima facie or posted speed limit by 20 mph on a public roadway or street
- You drive at 30 mph over the maximum prima facie or posted speed limits on a freeway
- You drive recklessly. Reckless driving involves deliberate disregard for other people’s safety and that of their property. It is behavior that demonstrates your cognizance that your actions present a significant and unreasonable threat, but you ignore the danger.
The penalty enhancement includes:
- A mandatory minimum of 60-day jail term in addition to the standard sentence for your third DUI offense. Even if the court puts you on probation for your third DUI, you must serve the 60 days of jail time.
- Mandatory participation in a DUI program
- Underage DUI
California’s zero-tolerance (VC 23136) and underage drunk driving (VC 23140) laws primarily address underage DUI. Both rules apply to drivers under 21 years and are applicable even when there is no impairment. The only necessary element is driving with the specified BAC levels. Since a third DUI is a repeat offense, you will get a two to three-year license suspension. If you are over 18 years, you will also attend DUI school for longer.
- DUI While on Probation
Section 23154 VC limits your BAC during probation for a prior DUI to 0.01%. This limit means that you cannot drive after consuming any alcohol provided that you are on DUI probation. While the 0.01 limit may not necessarily result in prosecution, the DMV will likely suspend your license for between one and two years. If your BAC is 0.08% or more, it will trigger a dual-action. You will face a license suspension for BAC at or exceeding 0.08% and a suspension for a BAC of or higher than 0.01% while on DUI probation.
What the Prosecutor Must Prove
For the prosecution to prove your guilt of a third DUI, they must prove beyond any reasonable doubt that:
You were Driving
The arresting officer should demonstrate that they saw you driving or produce evidence that you had been driving. Such evidence includes a warm engine and the placement of the car keys.
While Driving, you were Under the Influence of Drugs or Alcohol
They must produce persuasive evidence of intoxication, such as failing field sobriety screenings or results of chemical tests.
Your BAC was at least 0.08% or Higher
The prosecution must show the results of your DUI chemical tests to prove that your BAC was above the legal limit. However, they can still charge you with DUI even if your BAC was less than 0.08%.
Your Behavior Indicated Signs of Intoxication
The indicators include erratic driving, an unstable walk, slurred speech, and bloodshot eyes.
Common Defenses for a Third DUI
A conviction for a third DUI comes with stiff penalties. Your attorney can use several defense strategies to try and convince the judge and jury of your innocence. The attorney can also work towards reducing your third DUI charges to a lesser crime. Below are some of the strategies that your attorney may use in your defense:
- Field Sobriety Tests (FSTs) do not Measure Impairment Accurately
The prosecution often relies heavily on FSTs, but these tests are not always accurate and may produce false-positive results. Often, sober people fail the walk-and-turn test and the one-leg stand. Also, other factors such as fatigue, vertigo, and use of mouthwash affect FST results.
The police consider the horizontal gaze nystagmus to be a dependable test for drug or alcohol consumption. However, it can be due to heavy medical intoxication, brain trauma, or neurological dysfunction. Additionally, natural physical coordination, clothing, fatigue, and nerves can affect coordination and balance during FSTs.
- False High BAC due to Mouth Alcohol
The law provides for 15 minutes of continuous observation before the arresting officer gives you a breath test. The officer should ensure that you put nothing that contains alcohol into the mouth, including mouthwash or mouth spray, medicines, or drinks.
The officer should also ensure that no burping, belching, or regurgitating happens. Any of these actions could force alcohol from the stomach into the mouth and create residual mouth alcohol. Breathalyzers work by measuring DUI by testing your deep lung air. Residual mouth alcohol combines with air from your lungs and registers a falsely high BAC.
- Improper Police Conduct
Sometimes, law enforcement officers make mistakes in investigating and handling evidence. Any errors by the officers in the arrest and administration of chemical tests will work in your favor. Common mistakes by officers of the law include:
- Lack of Justification for a Traffic Stop
For any legal traffic stop, the DUI officer should give you “specific articulable facts” to indicate a reasonable suspicion of a traffic violation. The officers may observe probable signs of intoxication like swerving in and out of lanes, or they may stop you for an infraction, for example, an expired tag. Many times, sober drivers display erratic driving patterns due to brief distractions.
Before your DUI trial, you can have a suppression hearing for the judge to determine whether the officer had reasonable cause for a traffic stop. If the judge rules that the reason is invalid, all other successive occurrences may be inadmissible.
- Skipping your Miranda Warning
The police do not have to read your Miranda rights before or immediately after your DUI arrest. The legal requirement is for them to give you the Miranda warning after your arrest or when interrogating you. If the police question you without reading your rights, your lawyer can request the judge to suppress the evidence. If the judge permits it, your incriminating statements will be invalid. Lesser evidence can significantly weaken the prosecution’s case.
- Failure to Adhere to Title 17 Regulations
Title 17 of California’s Code of Regulations outlines how to conduct DUI breath and blood tests. A blood sample must maintain its proper protocol chain in drawing, storage, and testing. It should not at any time be in a place where there is a risk of contamination, tampering, or alteration. Failure to observe a single regulation can be a basis to question your DUI charges.
- Rising BAC
Drinking before driving is not illegal, but driving while you are impaired is a crime. After drinking, your BAC rises quickly and evenly until it reaches peak level, a process that takes approximately 50 minutes. If the police pull you over while your BAC is still on an upsurge, the chemical test results will be inaccurate. Your BAC can overshoot the legal limit while the arresting officer conducts the lengthy DUI investigation. The police should only charge you for your BAC level at the time of driving, not during the test.
- High BAC Due to a Medical Condition
Diets that are high in protein, diabetes, and hypoglycemia inflate your BAC falsely. Naturally, your body gets fuel from carbohydrates. However, it sometimes has to burn fat for fuel, a process that produces toxins known as ketones. Chemically, ketones are similar to isopropyl alcohol. The similarity makes it difficult for breathalyzers to differentiate ketones from ethyl alcohol in alcoholic drinks. Ketosis can also produce alcohol-like breath, poor coordination, and confusion, which mirror alcohol impairment.
Consult a Orange County DUI Attorney Near Me
A third DUI offense carries stiffer penalties than the first or second DUI crimes. The fact that DUI convictions are priorable makes hiring a defense attorney a necessity. If you or a loved one are facing DUI charges in Orange County, CA, you need a competent lawyer to represent you in court. Call our team at the Orange County DUI Defense Attorney Law Firm at 714-740-7866 to talk to an attorney who has extensive experience in walking the DUI defense path. We commit our resources towards getting you the most favorable ruling possible.