Written by attorney Mark Daniel Melnick

Understanding California Drunk Driving Laws



During the past thirty one years that I have been practicing Criminal law in the State of California, the laws regarding Driving under the Influence have changed dramatically and drastically. This is intended to give a basic and general outline as to what a defendant is facing after arrest for such a violation.


23152(a) V.C. 23152(b) V.C.

Sections 23152(a) and (b) are the basic code sections that define Driving Under the Influence in the State of California. Sections 23153(a) and (b) define a related code section for causing bodily injury while driving under the influence.

23152(a) V.C. reads as follows:

"It is unlawful for any person who is under the influence of an alcoholic beverage or any drug or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle."

The most important words of this section are "Under the Influence" and "Drive."

Basically, "Under the Influence" means effected or "impaired" by the alcohol. It is possible to be convicted under this section when your blood alcohol reading is below .08. The issue is impairment not blood level or breath reading.

To "drive" means to be in control of a vehicle while in operation. A person can be driving if the vehicle engine is running or if the vehicle is moving without the engine running. It does not matter how far you drive or if you are on public or private property.

23152(b) V.C. reads as follows:

"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."

The important words in this section are "0.08 percent" and "Drive".

Under this section, impairment is not required. The only factor to be considered is blood level. There is a legal presumption that if breath tested within three (3) hours of driving, an 0.08 breath test means that the blood will register 0.08 as well. Effectively, this means that the prosecution only needs to show what the machine reads, and not how much alcohol was in the blood.


There are three separate sets of ramifications for driving under the influence in California. These ramifications arise from the Court, the D.M.V. and the insurance carrier.


Economically, this is the longest and most costly result of a conviction for 23152 or 23103.5 V.C. (Wet Reckless). A person's insurance will be canceled, and/or this person will be considered an assigned risk for a minimum of three years. This means that even though he/she had a perfect driving record prior to the D.U.I., his/her insurance will substantially increase. Furthermore, it will be a probation requirement that the defendant has insurance coverage and that he/she cannot drive without it.


At the time a person is arrested for Driving Under the Influence, the arresting police agency will take away his or her drivers license and issue a temporary license which is good for 30 days from the date of arrest. When the 30 days are up, the D.M.V. will suspend the privilege to drive for 180 days for the first offense and one year for second or subsequent offenses. These suspensions have nothing to do with the courts. They are completely separate.


A defendant must request a hearing to determine if the suspension was appropriate within ten days of arrest. If the hearing is not requested within 10 days of the arrest date, the right to a hearing is lost and the 120 day suspension will take effect at the expiration of the 30 day temporary license. There are very few exceptions to the 10 day requirement.

The only issues that the D.M.V. will hear at the hearing are:

  1. Was there a lawful stop and arrest?
  2. Was the blood alcohol 0.08% or higher?
  3. Was the person driving the vehicle?

These are difficult hearings to win but with the proper evidence and presentation the D.M.V. will reverse a suspension as the result of a hearing.

If a hearing is not successful, the defendant may reduce his/her suspension from 120 days to 30 days by enrolling in a minimum 90 day alcohol program. Once enrolled in the program a restricted driver's license may be obtained with proof of enrollment. The restricted license allows driving to and from work/school and the alcohol program.


There are other requirements that must be met before reinstatement of a license even if the defendant waits the 120 days. (Section 13353.4(a) V.C.)

  1. Proof of completion of or enrollment in a 90 day or 9 month program.
  2. Proof of insurance.
  3. No other offense prior to reinstatement.


The only possible exception to the "Per Se" suspension laws is Section 13353.6 which applies to commercial drivers licenses. Under this section there is still a 30 day suspension followed by a 30 day restriction to drive for work only.


Quite often people become confused because the court doesn't suspend or restricts their license instead of suspending it. In fact, the court will sometimes restrict a license even though the D.M.V. has, or is going to suspend it. If the D.M.V. suspends the license and the court doesn’t, the suspension still applies. The only time that the court supersedes the D.M.V. is if the court gives a longer suspension; the court or jury makes a finding of factual innocence or under certain circumstances there is a plea to a reduced charge.


In addition to the suspensions and or restrictions imposed by the D.M.V., the courts will also impose conditions of probation. Although a conviction is not required for D.M.V. suspensions, it is required in order for the courts to impose conditions of probation.

MINIMUM SENTENCES (Sections 23536 and 23538 V.C.)

These are the sections that govern sentencing by the courts and the sentencing judge is required to follow them. The minimum sentences set forth in these code sections are mandatory. The judge is required by law without exception to impose at least the minimum.

When convicted of driving under the influence, there are two sentencing options available for a first offense.

Option one is no probation. This carries a minimum of 96 hours to a maximum of 6 months in jail, a minimum fine of $390.00 up to $1,000.00 fine plus a penalty assessment which is currently 300% of the fine, and a 6 month license suspension. However, it is rare for a court to agree to the 96 hour minimum.

Option two is a probationary option requiring summary probation for 3 to 5 years at the court's discretion and completion of a 3 month alcohol or drug program (9 months if the blood alcohol is .15 or more) and a fine of $390.00 to $1,000.00, plus a penalty assessment which is currently 300% of the fine which brings the total to over $1,500.00.

(There are additional court fees which bring the total to about $1,700 in Los Angeles and Orange Counties and over $3,000 in Ventura County.)


Effective July 1, 1990, THERE IS NO RESTRICTED DRIVERS LICENSE TO AND FROM WORK during D.M.V. "Per Se" suspensions.

The only restricted driver's license the defendant can obtain during the 120 day suspension period is for activities required by work and the alcohol program. A defendant may only get this license after enrollment in a 90 day alcohol program and a 30 day suspension.


If an individual refuses to take a chemical test pursuant to a DUI arrest, the DMV will automatically attempt to suspend your driving privilege for a period of one year even if driving under the influence is not found.

A refusal also carries a mandatory 48 hours in jail as apart of the minimum sentence. A person who refused to take a breath or blood test, needs an experienced and aggressive DUI attorney to fight the refusal allegation and avoid these additional penalties.


Penalties for a second offense include a fine of at least $390 plus penalties(approximate minimum total of $1,500), 96 hours in custody, an 18-month alcohol education program, a one year license suspension and a one-year driver's license restriction, allowing driving to and from work, in the course of employment, and to and from the alcohol education program, the court may also require an ignition interlock device so that the car only be operated if the operator blows into a machine that indicates 0.00% blood-alcohol.


Punishment for a third offense includes a fine of at least $390 plus penalties at least 120 days in the county jail or, 30 days in the county jail plus a 30-month alcohol program, a minimum 18-month alcohol education program, or a 30-month alcohol education program with a 30-day jail sentence and enters into the 30/30 program and a three-year license revocation. There is no restricted license available.


A fourth offense can be filed as a felony and may involve all of the above and/or a sentence to state prison.

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