DUI is a broad crime that could be challenging, especially when you or your loved one is facing charges. DUI consists of several complex laws and statutes that regulate drinking and driving in California, both for its citizens and out of state drivers in California. Therefore, contact the San Jose Criminal Attorney Law Firm when facing DUI charges in California. The lawyers at the firm will help you by interpreting what the DUI laws in California mean, and how they affect your current situation. In addition, he or she will provide you with legal assistance from the beginning, through the criminal proceedings, and after the conviction or acquittal.

DUI Overview

In California, you are said to be driving under the influence if your BAC is at, or exceeds .08%. That is the standard legal limit for an adult driver with a Class C driver’s license. California has zero-tolerance laws for underage drivers, meaning that they are breaking the law if they drive with a BAC level of .01% (any detectable amount of alcohol). Commercial drivers also face strict legal limits of .04%. Exceeding the prescribed legal limits exposes you to a number of criminal and administrative penalties.

The first penalty you get after a DUI arrest is the notification of license suspension from the DMV. The DMV maintains your driving record and punishes anyone arrested for a DUI. When arrested, the officer confiscates your driving license and replaces it with a notice of suspension, which expires in thirty days, after which you lose your driving privileges.

You can delay your license suspension by scheduling a DMV hearing within ten days of your arrest. The DMV will give you a date for the hearing, which you or your lawyer may attend. During the hearing, you will present evidence of your innocence. The DMV, at its discretion, might choose to reinstate your driving privileges or suspend your license waiting for the results of the criminal proceedings.

The criminal proceedings for a DUI begin with arraignment and end in sentencing. During the arraignment, you are read the charges against you and are required to take a plea. If you take a guilty plea, you receive the sentencing, and the case closes. In case you take a different plea, the prosecution and the defense are supposed to gather and present their evidence.

Usually, the evidence-gathering phase for the prosecution begins the moment you are pulled over at the roadside. The prosecution uses the police report as well as the arresting officer’s account of the incident. In addition, the prosecution refers to the tests results from the preliminary alcohol screening and the chemical test after arrest.

The defense begins gathering evidence after you hire a lawyer to represent you; therefore, it is wise to get a lawyer as soon as you can. Both sides will present their evidence during the pre-trial phase. At this stage, both sides get to identify the strengths and weaknesses of the other and may negotiate for a settlement. If the prosecution has a strong case, the defense may negotiate for a plea bargain where you plead guilty to lesser charges such as wet reckless, which have lesser penalties.

If the prosecution's case is weak, your lawyer could fight for a dismissal of the charges. If the defense and prosecution cannot settle, then the case proceeds to trial. You are entitled to a jury trial. During the trial, the prosecution and defense present their evidence and witnesses and make closing remarks. After which the jury gives its verdict.

If you are found innocent, you will be acquitted. A guilty verdict results in sentencing. The sentence you face depends upon:

  • The circumstances of the offense (were there injuries or death? refusal to take chemical tests)
  • Prior convictions for a DUI or a wet or dry reckless conviction within ten years

DUI in California is a priorable offense meaning that the penalties increase with every offense up to ten years of the first offense. The first to third offenses are charged as misdemeanors. The penalties for these offenses may include:

  • Misdemeanor probation
  • A county jail term of between six months and one year
  • Maximum fines of $1000
  • License suspension for six months to three years

You may get DUI felony charges if:

  • You have a prior felony conviction
  • Someone was injured or dies from a DUI accident you caused
  • You have more than three prior DUI or wet reckless convictions within ten years of the first offense

The penalties for felony DUI include state prison incarceration, fines, victim restitution, formal probation, and license suspension.

When you have a DUI lawyer, he or she can fight to have your felony charges reduced to a misdemeanor, or have them dismissed altogether.

Out of State DUI

California does not discriminate when it comes to DUI. If you are an out of state driver driving in California, you are supposed to drive with a BAC level of less than .08%. When you are arrested for a DUI in California, the state will not confiscate your out-of-state driving license; however, your privilege to drive in California will be suspended in thirty days of the arrest.

Like California residents, you will be required to request a DMV hearing within ten days of your arrest. If you fail to do so, your driving rights are automatically suspended in thirty days. The hearing can result in the restoration of your driving privileges or the requirement to install an ignition interlock device to monitor your BAC levels while driving.

You should hire a California DUI attorney to help you with the DMV hearing so that your driving privileges may be restored. A lawyer will represent you physically or telephonically at the DMV hearing to fight on your behalf.

In addition, your lawyer may represent you during the pre-trial phase of the criminal proceedings. However, the court might require you to be present for the trial.

If your state is a member of the Interstate Driver’s License Compact, then there is a likelihood that your state will also take action against your driver’s license. You may get various actions depending on your state. Some states punish you:

  • After a California DMV license suspension
  • After a DUI conviction
  • DMV penalties of home state
  • If your state’s DMV policies are similar to those of California

The sentencing you receive for a DUI is similar to those of a DUI involving a California resident. California DUI lawyers recommend that you appear for the trial, as the jury is more likely to convict you if they have never seen you.

When you are convicted, your home state may impose similar restrictions on your driver's license until you meet all the requirements of your DUI sentencing, including attending DUI School, completing probation, and paying fines. Your lawyer may request that the court allow you to complete your probation in your home state.

DUI Accidents

California VC 23153 prohibits drivers from driving under the influence and neglecting their legal duties to other motorists or committing an illegal action that results in an accident. Usually, a DUI investigation is part of the usual police procedures in determining the cause of the accident.

When the officers arrive at the scene, they will test all the drivers involved for alcohol. In case the driver was injured and had to be rushed to an emergency facility, then the doctors will take a blood sample to test for alcohol.

If DUI contributes to an accident, you are facing potentially high penalties, including increased jail time, fines, and victim restitution. A DUI accident is usually charged as a felony unless the charge is reduced. Even a first time offender who causes an accident due to a DUI will face a felony charge.

Your lawyer can fight for the reduction of the charge to a misdemeanor depending on the circumstances of the case. If the accident resulted in injury, the penalties depend on whether the court convicts it as a misdemeanor or a felony. The first two subsequent DUI with injury are wobbler offenses. The third subsequent offense automatically becomes a felony. The penalties for a misdemeanor conviction include:

  • Three to five years of misdemeanor probation
  • Incarceration in a county jail for five days to one year
  • Fines of up to $5000
  • California DUI school for 3, 9, 18 or 30 months
  • License suspension for between one and three years (you may install an IID after six months and enjoy unrestricted driving privileges)
  • Restitution

The penalties for a felony include:

  • A state prison term of two to four years
  • Additional and consecutive sentencing for victims who suffer great bodily injury. The additional sentence is between three to six years and an additional one-year term for everyone that suffers injury.
  • A strike on your record if anyone sustained great bodily injury
  • Fines ranging from $1015 to $5000
  • DUI school for 18 to 30 months
  • A three-year designation of a Habitual Traffic Offense
  • Revocation of your license for five years ( you may install an IID after at least one year)

If the DUI accident led to fatalities, you might be facing charges for vehicular manslaughter while intoxicated or second-degree (Watson) murder.

1.      Vehicular Manslaughter

When you drive under the influence and cause an accident that kills someone, you may be charged with either vehicular manslaughter while intoxicated, or gross vehicular manslaughter while intoxicated.

Vehicular manslaughter while intoxicated, PC 195.5 (b) is charged when you drive under the influence and engage in a negligent act that results in the death of another person. The negligent action can be unlawful or legal. PC 195.5 (b) is charged as a wobbler offense depending on the circumstances of the case and your criminal record.

The penalties for a misdemeanor charge include:

  • A year in county jail
  • Summary probation
  • $1000 in fines

As a felony, the potential penalties include:

  • Formal probation
  • 16 months to four years in state prison
  • A fine not exceeding $10,000
  • License suspension for one year

Gross vehicular manslaughter while intoxicated, PC 195.5 (a) is a more serious crime charged when:

  • You drive under the influence of drugs or alcohol
  • You commit a lawful or unlawful act while driving
  • You commit the act with gross negligence
  • Resulting in the death of someone else

A PC 195.5 (b) violation is convicted as a felony in California with the potential penalties including probation, incarceration at a state prison and fines.

2.      DUI Murder PC 187

The 1981 Watson case led to the decision that one can be charged with second-degree murder if they have a prior DUI conviction and kill someone when intoxicated. The prosecution has to prove that you acted with implied malice, which caused the death of the victim. Implied malice involves:

  • Committing an intentional act
  • The nature of the act is dangerous to human life
  • The defendant has specialized knowledge which makes him or her naturally aware of the risk of driving under the influence on human life
  • The defendant acted deliberately and with an indifference to human life

You may be charged with a DUI murder if:

  • You have multiple prior DUI convictions and attended a drug treatment program where you were made aware of the risks of drunk driving
  • You are in a position that naturally assumes you are aware of the risks of drunk driving (for instance, a person in the medical field)
  • You showed a wanton disregard for human life by engaging in actions such as exhibition of speed, driving at excessive speeds, and felony evasion of a peace officer
  • You had a BAC of 0.15% or higher

The potential penalties of a DUI murder include:

  • Incarceration in the California state prison for 15 years to life
  • A fine not exceeding $10,000
  • A strike on your criminal record

The penalties may increase if there are injured persons from the accident. The sentence additions include:

  • Between three to six years for each victim who suffers great bodily injury
  • One year for each victim who suffers injury. in this case, the sentence can only be enhanced up to a maximum of three years

Hiring a DUI attorney when you are facing murder charges is crucial. Some of the defenses he or she can use include:

  • You were not driving under the influence
  • Police misconduct
  • You did not act with implied malice
  • You were not at-fault for the accident

If you are lucky, the charges may be reduced to vehicular manslaughter, which carries lesser penalties.

DUI Appeal

California allows defendants who are dissatisfied with the sentencing they receive to appeal. Note that the California appellate court is particular and selective about the cases to which it will listen. Therefore, you have to talk to a DUI attorney if you are considering taking an appeal.  

In addition, you have to meet the strict deadlines of thirty days for a misdemeanor conviction and sixty days for a felony conviction. Once you miss these deadlines, you cannot negotiate or appeal your case.

The specificity and selectiveness of the California appellate court mean that not every DUI conviction requires an appeal. You cannot appeal the decision of the court, simply because you are dissatisfied. You have to prove that one of the following conditions exists:

  • Police misconduct
  • Unethical prosecution
  • Biased jury
  • Incorrect rulings

Some of the instances when these conditions may exist include:

  • Too harsh a ruling for the offense depending on the law on the matter
  • A member or member of the jury was under the influence of a drug or alcohol
  • You were convicted with insufficient evidence
  • You had an ineffective lawyer who contributed to the outcome of the case
  • The prosecution withheld evidence from the defense

The appellate court consists of a panel of three judges who use the written record of the case to determine whether an injustice or legal error occurred and that the outcome of the case could have been different if the error did not occur.

The panel may listen to an oral argument, which gives your attorney the chance to represent your skillfully to increase the chances of the appellate court overturning your conviction.

DUI Probation

Probation is one of the alternative sentencing allowed for DUI offenders convicted for both misdemeanor and felony DUI offenses. The probation period lasts from 3 to five years. During this time, the defendant is expected to adhere to several conditions set by the court. These conditions may include:

  • Attending a drug and alcohol treatment program for a period determined by the court. The period the program lasts depends on the nature of the offense
  • You are to agree to submit a breath or blood test upon request if you are arrested on suspicion of a DUI while on probation
  • Suspension of your driver’s license ( you may be allowed to get a restricted license to drive to a court-approved location in exchange for installing an IID in your car)
  • You are to pay fines of up to $1000, court assessment fees and
  • You are not to commit additional crimes while on probation
  • You are to agree to submit DUI breath or blood test if arrested for a DUI
  • You are not to drive with any measurable alcohol in your system
  • You are to find and maintain gainful employment
  • You have to pay victim restitution

The court expects you to uphold these conditions throughout the probation period. In addition to meeting the above requirements, you have to meet with your probation officer (for a felony) or the court to give your progress report. The progress report measures your performance in upholding the conditions of probation.

Failing to appear in court, committing other offenses of breaking the conditions of your probation may result in additional charges and cancellation of your probation. If the court withdraws your probation, then you will probably go to jail.


The Secure Continuous Remote Alcohol Monitoring (SCRAM) is an ankle bracelet that detects alcohol consumption in the wearer and provides reports to the court. SCRAM devices are a method used by California courts to monitor alcohol consumption in the defendant, pre-trial, or post-conviction.

If the judge determines that you are a high-risk offender and are likely to commit another alcohol-related offense while on pre-trial release, he or she may use SCRAM as a condition of pre-trial release, you are likely to get a SCRAM device if you are a multiple DUI offender as part of your probation conditions.

Often you will feel that the device is intrusive since it monitors you for 24 hours every day until you are legally required to remove it. If you try to tamper with the device, it provides a report with the tampering alert. Such an alert can result in the cancellation of your probation, and you will be jailed. You are required to prevent soaking the device in water, as this will affect its functioning. That means that you cannot take a bath in a tub, you have to use the shower.

Wearing a scram device benefits offenders by helping them abstain from alcohol, enjoy their freedom, and avoid jail for the offenses they have committed. Therefore, it is advisable to abstain from alcohol during the monitoring period.

 Note that, the scram device is a sensitive detecting device that measures the least amount of detectable alcohol in your system, through the sweat on your skin. It is sensitive enough to distinguish between alcohol in the environment and that which is from your body.

When scram devices are combined with rehabilitation, then the chances of attaining long-term sobriety are high. You can use the positive feedback from the device to negotiate for the reinstatement of your driving rights.

While wearing the device, the court expects you to shoulder the expenses related to the maintenance and installation of the scram device. Usually, you may spend approximately $300 every month to have the device, which is quite expensive.

Find a San Jose DUI Attorney Near Me

The consequences of a DUI in California can be extensive, from losing your driving privileges to incarceration. California DUI laws are also complex, which necessitates the presence of a DUI lawyer like the San Jose Criminal Attorney Law Firm in your defense. Such a law firm has DUI attorneys who have years of experience and success in handling California DUIs. Contact us today at 408-622-0204 for a free consultation.