When a person is arrested for a DUI in California, they are generally charged with two offenses: California Vehicle Code Section 23152(a) and California Vehicle Code Section 23152(b). Although both are typically charged (when alcohol is used), they are both separate offenses.
California Vehicle Code Section 23152(a) states: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” A person violated this code section when they are impaired by drugs or alcohol. The impairment is different for each person and can occur at differing BAC levels. For example, a person who is an inexperienced drinker may only have a blood alcohol level of .06%, but could potentially still be in violation of California Vehicle Code Section 23152(a) if they are impaired.
This same applies for a person who is under the influence of drugs, prescription or otherwise. A person may not be used to a particular drug in their system, and while another person may not be impaired with that drug in their system, the inexperienced user may still be impaired.
California Vehicle Code Section 23152(b) states: “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This section makes no mention of drug use, and only concentrates on a person’s blood alcohol content. While a person may feel unimpaired at a .11 percent blood alcohol level, this code section draws a hard line in the sand, making it a violation to have a blood alcohol level of .08% or more while driving, regardless of tolerance.
While tolerance is not a defense to a violation of California Vehicle Code Section 23152(b), it does not make it irrelevant in a DUI case. Depending on the blood alcohol level, as well as the conduct at the stop, we can potentially use that information to get a case reduced to a lesser charge, or even dismissed.
Violating Vehicle Code Section 23152(A) or 23152(b), whether it is because of alcohol or drugs, is a misdemeanor in California unless; It is your fourth or subsequent offense, you have a prior felony conviction for driving under the influence, or your driving causes an injury to a third party.
If charged as first time misdemeanor DUI the penalties can include; three to five years of summary (informal) probation, up to six months in county jail, fines between $390-$1000 plus penalties and assessments, a three, six, or nine month alcohol education class, a six to ten month license suspension, which may be converted to a restricted license.
If you are charged with a second or third misdemeanor driving under the influence allegation, the penalties can be greatly increased. Most counties require a minimum mandatory jail time for a second offense of 96 hours, and 120 days for a third offense. Additionally, the court will order an 18 month alcohol education class.
If charged as a felony the penalties can be; sixteen months, 2 years, or 3 years in California State prison, fines between $390-$1000 plus penalties and assessments, a four year California license revocation, a designation as an “Habitual Traffic Offender” with the California DMV, which increased greatly your penalties if convicted of driving with a suspended license.
The above penalties only apply to felony DUI’s without injury. If an injury occurs, the total prison time may go up dramatically, as well as the possibility of a strike being assessed against your record.
In California, your privilege to drive may be taken away under many different circumstances. If taken away, and then caught driving, you can be convicted of driving with a suspended license. You can be arrested, and face the possibility of jail time. The severity of these penalties will depend on the reason your license was originally suspended.
Suspension Because of a DUI
When arrested on suspicion of driving under the influence (Vehicle Code Sections 23152a and 23152b) your license can be suspended. This suspension occurs either due to an administrative suspension by the DMV after 30 days, or due to a conviction of either 23152(a) or 23152(b). This can cause two different suspensions and, consequently, two different vehicle code sections which can be used to prosecute a person for driving with a suspended license.
A citation for violating California Vehicle Code Section 14601.5 comes when a person is driving on a suspended license due to an administrative suspension from the DMV after a DUI arrest. The DMV suspends your license 30 days after an arrest for violating vehicle code section 23152(b). You may contest this arrest, but only have 10 days to request a hearing with the DMV.
If convicted of driving on a suspended license in violation of CVC 14601.5, you can face mandatory jail time, thousands of dollars in fines, and a probation term of up to five years.
A person is charged with violating California Vehicle Code Section 14601.2 when they are driving a vehicle and their license is suspended due to a DUI conviction. A violation here carries a minimum of 10 days of jail time, potentially thousands of dollars in fines, a probation term, and the possibility that an ignition interlock device would be required to be installed.
Suspension for Unpaid Tickets/Failure to Appear – 14601.1
The DMV may also suspend a person’s license if they fail to appear in court, or have unpaid traffic tickets. This vehicle code section is different from 14601.5 and 14601.2 in that it carries with it the possibility of jail time, fines, and a probation term, but can also be an infraction, meaning you cannot face jail time or probation if it is deemed an infraction by the court. Often we can negotiate a resolution for an infraction for a fine only for clients charged under this code section.
14601.3 – Habitual Traffic Offenders
The DMV may suspend a person’s license if they are deemed a habitual traffic offender. This generally occurs when a person receives too many points in certain time period while their license was already suspended. This occurs when a person receives two or more two point serious driving related crimes (such as violations of Vehicle Code 23103 Reckless Driving, Vehicle Code 23152 Driving Under the Influence, Vehicle Code 23109(c) Exhibition of Speed, any Vehicle Code 14601 section, or any other two point vehicle code violation), three or more one point violations (including speeding, running a stop sign, failing to stop at a limit line [running a red light], or any other one point violations), or three or more accidents where someone was injured or the property damage totaled at least $750.00.
The penalties for a first conviction of driving on a suspended/revoked license due to Vehicle Code Section 14601.3 are: a mandatory 30 days in jail, a fine of $1000, plus penalties and assessments, possible probation for one to five years.
If convicted for a second violation of driving on a suspended/revoked license due to Vehicle Code Section 14601.3 are: a mandatory 180 days in jail, a fine of $2000, plus penalties and assessments, possible probation of one to five years.
When cited for any driving on a suspended license code sections it is important to know what code section you are cited with and what you are facing. Just because you are cited for one section does not mean you should plead to that charge. Often a charge can be reduced or dismissed depending on the circumstances of the case. An attorney who knows the law and the local courts can generally get you better results than the initial offer from the Judge or District Attorney’s Office.