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Explaining drunk driving punishment to your client.

By Paul Burglin and Barry Simons

Excerpted from California Drunk Driving Law

Persons arrested on suspicion of driving under the influence often have no experience with the criminal justice system. Many of them are traumatized by their initial incarceration. Some are bitter and resentful, immediately wanting to discuss the prospects of a civil action. Others are humiliated and depressed, wanting only to put the entire affair behind them as soon as possible. Still others are calm and logical, wanting a defense if it is viable, but if not, simply a mitigation of the consequences. If you practice DUI defense long enough, you will encounter a plethora of backgrounds, personalities, reactions, expectations, and demands from DUI clients.

It is never advisable, and actually unethical, to guarantee a client—-or potential client—-specific results. Thus, when addressing the various punishment aspects of a DUI offense, counsel might initially touch upon the difference between a misdemeanor and a felony, the maximum range of punishment for the charged offenses, and then discuss general sentencing practices for the county where the person is charged.

Each county in California has similar, but uniquely different, sentencing policies and plea dispositions for DUI offenses. For example, one county may impose no jail or trash pickup time for a first offense DUI, but conversely never offer a reckless driving disposition. Another county may demand two days of jail time, but routinely wipe it out with two days credit for time served. Fines and assessments generally range from approximately $1,300 to $2,200.

Within each county, counsel may also find that plea and sentencing practices vary from courtroom to courtroom, depending on the judge or the deputy district attorney assigned to the case. It never hurts to ask a local attorney or public defender about the particular county and department’s policies, because what you can potentially do for your client may be contingent on these factors.

Counsel should always be alert to a high chemical test result or refusal case. The former suggests the possibility of alcoholism, and the latter frequently brings with it a contentious personality. In the context of discussing potential punishment, both can trigger enhanced sanctions.

For persons arrested two or more times on suspicion of driving under the influence, experience tends to show that they are either very unlucky, very foolish, or alcoholic—or a combination of these things. When discussing punishment, it is generally helpful to explain to the client that the Court will look more favorably on them if they take immediate steps to address their drinking problem (e.g., daily attendance at AA meetings, outpatient or residential treatment with proof of it for the Court). You may wish to point out the coincidence between their drinking and legal woes, and ask if they would stop eating bananas if they saw a similar pattern.

The reality of sentencing statutes, and the judicial imposition of them, is that they are forever becoming more and more punitive. Some of the enhancements make sense, while others (e.g., 48-hour vehicle impound) offer little in the way of deterrence but appeasement to victims’ rights groups. Judges and prosecutors, of course, are politically sensitive to the public’s harsh view about drunk driving offenders.

As a lawyer representing a DUI offender, you owe it to your client to explain the potential consequences of not only his current predicament, but the future potential consequences if he is arrested and charged again with driving under the influence. That period of time is forever increasing (legislation in 2005 increased the 7-year time period to 10 years).

§10:23.2      Figure 10-1.2: Drunk Driving Punishment Chart for Offenses After September 19, 2005

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

§23152

NONE

§23536

§23538

    • $390 to $1000 fine, plus assessments (23536(a), 23538(a)).

    • May impound car up to 6 months if owned by defendant (23592).

    • Up to 3 years optional ignition interlock (23575(a)(1), see §10:28).

[Mandatory 5-month IID for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1]

  • If under 14-year-old passenger pled and proved, additional 48 continuous hours jail (23572(a)(1)), unless convicted of Pen. C. §273(a).

  • 6-month license suspension (10-months if .20% or higher or refusal, and offense date 1/1/07 or later), but immediate restriction eligibility per 13352(a)(1) (except for commercial privilege, and commercial driver driving commercial vehicle—§13352.4(g)). Court may order no restriction eligibility per §23536(d) or §23538(a)(3), and DMV bound by order. §13352.4(h). No return DP until DUI Program completed (§§13352(a)(1), 13353.4(c), see §10:53).

  • Optional vehicle impoundment up to 30 days if car owned by defendant (23594).

96 hours to 6 months jail (23536), at least 48 hours of which must be continuous.

(23536(b)) (but see Pen. C. §2900.5(f) and 23600(c)).

First offender drinking driver program [FOP]—minimum 3 months/30 hours or 6 months/45 hours (9 months/60 hours if offense date January 1, 2006 or later) if BAC = 0.20% or refusal (see §10:82) (§§23538(b), 13352(a)(1), H&S §11837(c)).

*DP means Driving Privilege.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23152

1

Current offense date within 10 years of 1 convicted offense under 23101, 23102, 23152, 23153, or 23103 per 23103.5(c).

23620: Drunk boating (Harb. & Nav. 655 (b)(c)(d)(e)) after 12/31/91 equals 23152. And Pen. C. 191.5, 192(c)(3), and, after 12/31/91 drunk boating w/injury (655(f)), equal 23153.

§23540

§23542

    • $390 to 1000 fine, plus assessments (23540, 23542(a)/(b)(2)).

    • Refusal is additional 96 hours jail if pled and proven
      (23577(a)(3)).

    • Any jail term must include 48 continuous hours jail or 10 days community service not picking up trash (23580, but see Pen. C. §2900.5(f)).

    • Suspend license 2 years (restriction eligibility for non-commercial privilege, per §13352(a)(3), after serving 1 year suspension period (IID-restriction eligibility after just 90 days if only alcohol impairment)—credit from admin suspension arising out of same incident may be applied). Court may order no restriction eligibility per §23540(b) or 23542(d), and DMV bound by order. §§13353(a)(3) and 13352.5(g).

    • Minimum 18-month drinking driver program (§23542(b)(1)).

    • If under 14-year-old passenger pled and proven, additional 10 days jail (23572(a)(2)), unless convicted of Pen. C. §273(a).

    • Ignition interlock optional up to 3 years (23575(l), see §10:28), but required for restricted DP outside of work and DDP (13352(a)(3) and 23575(f)(1)). Ignition interlock device not statutorily required for work and DDP restriction only (13352.5(c)).

[Mandatory 12-month IID for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1]

  • Mandatory car impound car 1 to 30 days unless unusual circumstances, but only if prior 23152 or 23153 within 5 years (23594).

    If prior within 10 yrs was punished as a felony (23550.5, §115.2): Up to 1 yr jail or 16 months, 2 or 3 yrs prison, habitual traffic offender designation , 18 or 30-month DUI Program, 4-year license revocation with eligibility for IID-restricted license after 12 months (13352(a)(7) (effective 1/1/12, CVC § 23597 will authorize courts to order 10-year license revocation for persons with three or more separate 23152 or 23153 convictions regardless of the date, subject to certain limitations.

90 days to 1 year jail (23540).

10 days to 1 year jail (23542(a)(1)(A))*

OR

96 hours to 1 year, with the 96 hours being served in two 48 hour increments of continuous confinement (23542(a)(1)(B)).

The two 48 hour increments may be non-consecutive.*

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

* The minimum jail sentence option for second offenders of CVC §23152, who are granted probation, obviously makes no sense (96 hours vs. 10 days), particularly in light of CVC §23580 which mandates 48 hours confinement. This flaw in CVC §23542 derives from its pre-9/20/05 version, which made the 96-hour minimum contingent on doing the multiple offender drinking driver program [DDP]. Now that DDP is a mandatory condition for all probationers sentenced under §23542, the minimum is 96 hours (the legislature just neglected to delete the 10-day option.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23152

2

Current offense date within 10 years of 2 convicted offenses under 23152, 23153, or 23103 per 23103.5(c).

23620: Drunk boating (Harb. & Nav. 655 (b)(c)(d)(e)) after 12/31/91 equals 23152; Pen. C. 191.5, 192(c)(3), and, after 12/31/91 drunk boating w/injury (655(f)), equal 23153.

§23546

§23548

    • $390 to $1000 fine, plus assessments (23546(a), 23548(a)). Additional 10 days jail if refusal is pled and proven (23577(a)(4).

    • Any jail term must include 48 continuous hours jail or 10 days community service (23580, but see Pen. C. §2900.5(f)).

    • Revoke license 3 years, with IID-restriction eligibility after 12 months (after just six months if only alcohol impairment) (13352(a)(5)). Effective 1/1/12, CVC §23597 will authorize courts to order 10-year license revocation for persons with three or more separate 23152 or 23153 convictions regardless of the date, subject to certain limitations.

    • Ignition interlock optional (23575(l), see §10:28), but required for restricted DP (13352(a)(5) and 23575(f)(1)).

[Mandatory 24-month IID for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1]

    • Designated habitual traffic offender (23546(b), see Figure 2-3).

    • If under 14-year-old passenger pled and proved, additional 30 days jail (23572(a)(3)), unless convicted of Pen. C. §273(a).

    • Mandatory car impound car 1 to 90 days, unless unusual circumstances, but only if priors are 23152 or 23153 within five years (23594).

    • May confiscate and sell car (23596(a)(1)(B)).

If one or both priors within 10 yrs was punished as a felony (23550.5, §115.2): Up to 1 yr jail or 16 months, 2 or 3 yrs prison, habitual traffic offender designation, DUI Program, 4 years license revocation with eligibility for IID restricted license after 12 months (13352(a)(7)).

120 days to 1 year (23546).

120 days to 1 year (23548(a)) (unless defendant requests 30 month DDP, in which case the minimum jail time is 30 days) (23548(b)).

DUI Program (see Figure 10-3).

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23152

3 OR MORE

Current offense date within 10 years of 3 or more convicted offenses under 23101, 23102, 23152, 23153, or 23103 per 23103.5(c).

23620: Drunk boating (Harb. & Nav. 655 (b)(c)(d)(e)) after 12/31/91 equals 23152; Pen. C. 191.5, 192(c)(3), and, after 12/31/91 drunk boating w/injury (655(f)), equal 23153.

§23550

§23552

    • $390 to $1000 fine, plus assessments (23550(a), 23552(a)).

    • Refusal is additional 18 days jail if pled and proven
      (23577(a)(5)).

    • Any jail term must include 48 continuous hours jail or 10 days community service (23580, but see Pen. C. §2900.5(f)).

    • Revoke license 4 years with restriction eligibility after 12 months (13352(a)(7)). Effective 1/1/12, CVC §23597 will authorize courts to order 10-year license revocation for persons with three or more separate 23152 or 23153 convictions regardless of the date, subject to certain limitations.

    • Ignition interlock optional up to 3 years (23575(l), see §10:28), but required for restricted DP (13352(a)(7) and 23575(f)(1).

[Mandatory 36-month IID for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1

    • Designated habitual offender (23550(b), see Fig.2-3).

    • If under 14-year-old passenger pled and proved, additional 90 days jail, unless sentenced to prison, or convicted of Pen. C. §273(a). (23572(a)(4))

    • Mandatory car impound car 1 to 90 days unless unusual circumstances, but only if two prior 23152 or 23153 convictions within 5 years (23594)

    • May confiscate and sell car (23596(a)(1)(B)).

If one or more priors within 10 yrs was punished as a felony (23550.5, §115.2): Up to 1 yr jail or 16 months, 2 or 3 yrs prison.

180 days to 1 year jail, or 16 months, 2 or 3 years prison (23550(a)).

Shall impound car 1 to 90 days (23594).

180 days to 1 year jail (23552(a)), unless defendant requests 30 month DDP, in which case the minimum jail time is 30 days (23552(b)).

DUI Program (see Figure 10-3).

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23153

NONE

§23554

§23556

    • $390 to $1000 fine, plus assessments (23554, 23556(a)(1).

    • Extra 48 hours jail for refusal, unless sentenced to prison (23577(a)(2)).

    • Suspend DP 1 year and until DUI Program done (§13352(a)(2)—see §10:53).

    • Up to 3 years optional ignition interlock (23575(a)(1), see §10:28).

[Mandatory 12-month IID for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1]

  • May impound car 6 months (23592), or 1 to 30 days (23594).

90 days to 1 year jail, or 16 months, 2 or 3 years prison (23554), plus 3 to 6 yrs more prison for “personally inflicted” GBI on person not accomplice (PC §12022.7, see §10:30.4).

If felony, 1 year more prison for each additional injured victim, up to 3 (23558, see §10:33.2).

5 days to 1 year jail (§23556(a)).

First offender drinking driver program [FOP] for minimum 3 months/30 hours. §23556(b)(2)

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23153

1

Current offense date within 10 years of 1 convicted offense under 23101, 23102, 23152, 23153, (or 23103 per 23103.5(c), for current offense after 7/1/89).

23620: Drunk boating (Harb. & Nav. 655 (b)(c)(d)(e)) after 12/31/91 equals 23152. And Pen. C. 191.5, 192(c)(3), and, after 12/31/91 drunk boating w/injury (655(f)), equal 23153.

§23560

§23562

    • $390 to $5000 fine, plus assessments (23560(a) and 23562(a)).

    • Revoke license 3 years with restriction eligibility after 18 months (13352(a)(4)) (see §10:53 and Fig. 10-3).

    • Refusal is additional 96 hours jail if pled and proven, unless sentenced to prison (23577)(a)(3)).

    • Any jail term must include 48 continuous hours jail or 10 days community service (23580, but see Pen. C. §2900.5(f)).

    • Mandatory car impound 1 to 30 days unless unusual circumstances, but only if prior 23152 or 23153 within 5 years (23594).

    • May confiscate and sell vehicle if prior 23152, 23153, or Pen. C. 192(c)(3) (23596(a)(1)(C)).

    • Ignition interlock option up to 3 years (23575(l), see §10:28).

If prior within 10 yrs was punished as a felony (23550.5, see §115.2): Up to 1 year jail or 16 months, 2 or 3 yrs prison, habitual traffic offender designation, DUI Program, 4 year license revocation with eligibility for IID-restricted license after 12 months (13352(a)(7))(effective 1/1/12, CVC §23597 will authorize courts to order 10-year license revocation for persons with three or more separate 23152 or 23153 convictions regardless of the date, subject to certain limitations.

120 days to 1 year jail, or 16 months, 2 or 3 years prison (23560).

If felony, possible 3 to 6 years prison enhancement for “personally inflicted” GBI on person not accomplice (Pen. C. 12022.7; see sec. 1033.2).

If felony, one year more prison for each additional injured victim, up to 3 (23558, see §10:33.2).

120 days to 1 year jail;

OR

  • 30 days to 1 year jail

  • Minimum 18-month drinking driver program [DDP]

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

*See §4:24 for information on what prior convictions can be sentence enhancements. (Also see §1:15.2 for Veh C. §23550.5 enhancements.) In addition, note that the DMV’s mandatory actions in drunk driving cases depend only on the state of the defendant’s driving record at the time of the current offense. Unless a prior conviction (separate offense) is declared unconstitutional and the court orders it removed from the DMV’s records, the DMV will take action without regard to what happened in the criminal case. Plea bargains that include striking prior convictions from the pleadings do not affect DMV action. See §10:55 for more information.

Current Offense

Separate* Offenses

Without
Probation

With Probation
for 3 to 5 Years

23153

2 OR MORE

Current offense date within 10 years of 2 or 3 convicted offenses under 23101, 23102, 23152, 23153, (or 23103 per 23103.5(c), for current offense after 7/1/89).

23620: Drunk boating (Harb. & Nav. 655 (b)(c)(d)(e)) after 12/31/91 equals 23152. And Pen. C. 191.5, 192(c)(3) and, after 12/31/91 drunk boating w/injury (655(f)), equal 23153.

§23566

§23568

    • If refusal pled and proven, an additional 96 hours jail, unless sentenced to prison (23577(a)(3)).

    • 48 continuous hours jail or 10 days community service (23580, but see Pen. C. §2900.5(f)).

    • Revoke license 5 years with restriction eligibility after 12 months (13352(a)(6)).

    • Designated habitual offender for 3 years (23566(d), see Figure 2-3).

    • Mandatory car impound 1 to 90 days unless unusual circumstances, but only if two prior convictions of 23152 or 23153 within 5 years (23594).

    • May confiscate and sell vehicle (23596(a)(1)(C)).

    • Ignition interlock optional up to 3 years (23575(l), see §10:28).

[Mandatory 36-month IID (48-months if fourth or more) for convictions in Alameda, Los Angeles, Sacramento, and Tulare on or after July 1, 2010—see 10:29.1]

$1015 to $5000 fine, plus assessments (23566(a)).

2, 3, or 4 years in prison (23566(a)), with alcohol/drug program (23566(e)).

Possible 3 to 5 yrs prison enhancement for “personally inflicted” GBI on person not accomplice (Pen. C. §12022.7, see §10:33.2).

If 4 or more priors, another 3 yrs prison for “proximately caused” GBI (23568(c), see §10:30.4).

If felony, one year more prison for each additional injured victim, up to 3 (23558, see §10:33.2).

30 days to 1 year jail (23568(b) (unlike 23548(b), the 30 day minimum—-as opposed to 120 days—-is not contingent upon a 30 month DDP instead of the 18 month DDP)

$390 to $5000 fine, plus assessments, and restitution (23568(a)).

18 month or 30 month DDP (see Figure 10-3).

Additional probation terms, see §10:25. Mandatory probation violation terms, see §10:93.2.

*See §4:24 for information on what prior convictions can be sentence enhancements. (Also see §1:15.2 for Veh C. §23550.5 enhancements.) In addition, note that the DMV’s mandatory actions in drunk driving cases depend only on the state of the defendant’s driving record at the time of the current offense. Unless a prior conviction (separate offense) is declared unconstitutional and the court orders it removed from the DMV’s records, the DMV will take action without regard to what happened in the criminal case. Plea bargains that include striking prior convictions from the pleadings do not affect DMV action. See §10:55 for more information.


Paul Burglin has 23 years of trial experience, an av Martindale rating, is board certified by the National College of DUI Defense, and is a former director of California DUI Lawyers Association. Barry Simons has 30 years of DUI defense experience, is a founding member of the National College of DUI Defense, and is a frequent lecturer at DUI seminars throughout the country.  They are the authors of California Drunk Driving Law, from which this article is excerpted.

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