California DUI Defense Lawyer | First, Repeat & Felony DUI

California DUI Defense Lawyer

DUI Defense for First-Time, Repeat, Felony, and Injury DUI Cases

Being arrested for driving under the influence in California can create two separate problems: a criminal DUI case in court and an administrative driver's license action through the California Department of Motor Vehicles.

A DUI arrest does not automatically mean that a person will be convicted. The circumstances surrounding the traffic stop, arrest, field sobriety testing, breath testing, blood testing, police investigation, and chemical-test procedures may all need to be carefully reviewed.

At R Fenn Law, we represent individuals facing DUI allegations and examine the evidence to determine which defenses may be available. Every DUI case is different, and the appropriate defense depends on the facts, evidence, prior record, and circumstances surrounding the arrest.

We handle matters involving:

First-time DUI charges
Second DUI offenses
Third DUI offenses
Fourth or subsequent DUI charges
Felony DUI allegations
DUI causing injury
Alcohol-related DUI
Drug DUI
Combined alcohol and drug DUI
Commercial-driver DUI
DUI involving rideshare or passengers for hire
Chemical-test refusal allegations
California DMV administrative hearings

Flat-fee representation may be available for certain DUI matters. Contact our office for information regarding fees and representation.

California DUI Laws: Vehicle Code § 23152

California Vehicle Code § 23152 contains several different DUI offenses. A prosecutor may charge a driver under more than one subsection depending on the circumstances.

Driving Under the Influence of Alcohol — Vehicle Code § 23152(a)

California Vehicle Code § 23152(a) makes it unlawful for a person who is under the influence of an alcoholic beverage to drive a vehicle.

This charge is based on impairment rather than simply whether the driver's blood alcohol concentration reached a particular number.

As a result, a person may potentially face a DUI allegation under § 23152(a) even when the prosecution is not relying solely on a BAC of .08% or greater.

Evidence commonly examined in these cases may include:

Driving behavior
Statements made to the officer
Physical appearance and behavior
Field sobriety test performance
Breath or blood test results
Officer observations
Body-camera or dash-camera footage
Witness statements
Timing of alcohol consumption

The prosecution still has the burden of proving the required elements of the offense.

Driving With a BAC of .08% or Higher — Vehicle Code § 23152(b)

California Vehicle Code § 23152(b) prohibits driving with a blood alcohol concentration of 0.08% or more.

This is sometimes referred to as California's “per se” DUI law.

A person can therefore face two related but distinct allegations:

Vehicle Code § 23152(a): Driving while under the influence of alcohol.

Vehicle Code § 23152(b): Driving with a BAC of .08% or greater.

The fact that a breath or blood test reports a BAC at or above .08% does not necessarily end the investigation into the case.

Depending on the circumstances, issues may exist regarding:

Breath-testing procedures
Breath-testing equipment
Blood-sample collection
Blood-sample handling or storage
Timing of the chemical test
Rising blood alcohol
Contamination
Chain of custody
Officer compliance with required procedures
Whether the chemical result accurately reflected the driver's BAC at the time of driving

These issues must be evaluated based on the specific facts and available evidence.

First-Time DUI in California

What Happens After a First DUI Arrest?

A first-time DUI is commonly prosecuted as a misdemeanor when it does not involve circumstances that support more serious charges.

However, even a first DUI can have significant consequences.

A DUI case may involve:

Criminal court proceedings
Driver's license consequences
Fines and assessments
DUI education requirements
Probation
Possible custody requirements
Ignition interlock device requirements or options
Increased automobile insurance costs
Employment or professional licensing concerns

The exact consequences depend on the circumstances of the offense and the final resolution of the case.

First DUI Defense

An effective DUI defense begins with reviewing what happened before, during, and after the arrest.

Questions may include:

Why did the officer stop the vehicle?

The government generally must have a lawful basis for a traffic stop.

What did the officer observe?

Police reports may describe driving patterns, speech, balance, appearance, odor of alcohol, statements, or other observations.

Were field sobriety tests properly administered and interpreted?

The conditions surrounding the tests can matter, including lighting, surface conditions, footwear, physical limitations, instructions, and the way the officer administered the tests.

How reliable was the breath or blood evidence?

Chemical evidence may require review of testing procedures, records, maintenance information, blood-sample handling, laboratory procedures, and timing.

Is the police report consistent with video evidence?

Body-camera, dash-camera, surveillance, or other video evidence may provide additional information about what actually occurred.

A thorough DUI defense involves examining the complete evidence rather than relying only on the arresting officer's conclusions.

Second DUI Within 10 Years

California Second-Offense DUI Defense

A second DUI within the applicable 10-year period can result in substantially greater consequences than a first DUI.

California Vehicle Code § 23540 provides enhanced penalties when a new § 23152 DUI occurs within 10 years of a qualifying prior conviction.

Prior convictions that may affect DUI sentencing can include certain previous:

DUI convictions
DUI causing injury convictions
Alcohol-related reckless-driving convictions that qualify as prior offenses

Because prior convictions can significantly affect the potential penalties, determining exactly what qualifies as a prior offense is an important part of reviewing a repeat-DUI case.

A second DUI case should be evaluated independently. A previous DUI conviction does not prove that the person committed the new offense.

The prosecution must still prove the current charge.

Third DUI Within 10 Years

California Third-Offense DUI Lawyer

A third DUI offense within 10 years can expose a driver to substantially more serious criminal and driver's license consequences.

California Vehicle Code § 23546 establishes increased penalties when a person is convicted of DUI and has two qualifying prior convictions within the statutory period.

Because the consequences become increasingly serious with repeat offenses, a third-offense DUI defense may require careful review of both:

The evidence supporting the current DUI allegation; and
The prior convictions that prosecutors intend to use for sentencing purposes.

Potential defense issues may still involve the traffic stop, field sobriety tests, breath or blood testing, officer observations, chemical-test procedures, and whether the prosecution can prove each element of the new offense.

Fourth DUI Within 10 Years

Can a Fourth DUI Be a Felony in California?

Yes. A fourth DUI within 10 years may expose a person to felony prosecution in California.

California Vehicle Code § 23550 applies when a person is convicted of DUI and the new offense occurred within 10 years of three qualifying prior convictions.

A fourth DUI is considerably more serious than a typical first-offense DUI and may create exposure to felony-level punishment depending on how the case is charged and resolved.

It is therefore more accurate to say that a fourth DUI can be prosecuted as a felony rather than saying that every fourth DUI is automatically a felony.

Prior Felony DUI Convictions

A person's history of felony DUI convictions can also affect how a subsequent DUI is prosecuted.

California Vehicle Code § 23550.5 provides enhanced treatment for certain new DUI offenses occurring within 10 years of specified prior felony DUI-related convictions.

Because the consequences can be severe, anyone facing a fourth or subsequent DUI should have the current allegations and prior record carefully evaluated.

DUI Causing Injury in California

Vehicle Code § 23153 DUI With Injury

California treats a DUI involving injury differently from an ordinary DUI under Vehicle Code § 23152.

Vehicle Code § 23153 applies when a person:

Drives while under the influence of alcohol, drugs, or both, or with a prohibited BAC;
Commits an unlawful act or neglects a legal duty while driving; and
That act or neglect proximately causes bodily injury to another person.

DUI causing injury cases can carry significantly greater consequences than DUI cases without injury and may be prosecuted as misdemeanor or felony offenses depending on the circumstances and criminal history.

Potential issues in an injury DUI case may include:

Whether the defendant was actually impaired
Accuracy of BAC testing
Drug-testing evidence
Who caused the collision
Whether another driver's actions contributed to the accident
Whether the alleged traffic violation actually occurred
Causation of the claimed injuries
Nature and extent of the injuries
Accident reconstruction evidence
Witness statements
Surveillance or traffic-camera footage
Medical evidence
Prior DUI history

The prosecution must establish the elements necessary for a DUI causing injury conviction.

California Drug DUI Defense

Vehicle Code § 23152(f)

California Vehicle Code § 23152(f) makes it unlawful to drive while under the influence of a drug.

Drug DUI allegations can involve:

Prescription medications
Marijuana or cannabis
Illegal drugs
Sedatives
Stimulants
Pain medications
Other substances alleged to impair a person's ability to drive safely

Unlike the .08% alcohol rule, drug DUI cases generally cannot be reduced to a simple universal numerical BAC threshold.

This can make evidence concerning actual impairment particularly important.

Potential issues may include:

Whether a drug was actually impairing the driver
When the substance was consumed
Amount consumed
Blood-test results
Toxicology interpretation
Prescription use
Officer observations
Drug Recognition Expert evaluations
Driving behavior
Physical or medical conditions that may have been mistaken for impairment

DUI Involving Alcohol and Drugs

Vehicle Code § 23152(g)

California Vehicle Code § 23152(g) prohibits driving while under the combined influence of alcohol and a drug.

These cases may involve both alcohol testing and toxicology evidence.

Defense of a combined alcohol-and-drug DUI may therefore require examination of both the BAC evidence and the government's claim that a drug contributed to impairment.

Commercial Driver DUI in California

.04% BAC and Commercial Motor Vehicles

California Vehicle Code § 23152(d) establishes a lower BAC threshold for a person driving a commercial motor vehicle.

A person with a BAC of 0.04% or more may violate this provision while driving a qualifying commercial motor vehicle.

Commercial drivers can face consequences that extend beyond the criminal case, including consequences affecting their commercial driving privileges and employment.

Because a commercial driver's livelihood may depend on maintaining driving privileges, these cases should be addressed promptly.

Uber, Lyft, Taxi, and Passenger-for-Hire DUI Cases

.04% BAC While Carrying a Passenger for Hire

California Vehicle Code § 23152(e) establishes a 0.04% BAC threshold when a person is driving a motor vehicle while a passenger for hire is actually in the vehicle.

This provision may apply to drivers transporting passengers for compensation.

Depending on the circumstances, this can affect drivers working in rideshare, taxi, limousine, or similar passenger transportation services.

California DMV DUI Hearings

You May Have Only 10 Days to Request a DMV Hearing

A DUI arrest can create a separate administrative proceeding involving the California Department of Motor Vehicles.

The DMV generally requires a request for an administrative hearing within 10 days after receipt of the suspension or revocation order.

Waiting for the criminal court case to begin can therefore create problems because the DMV proceeding operates separately from the criminal DUI case.

A DMV hearing provides an opportunity to challenge whether the administrative suspension or revocation is justified.

Depending on the circumstances, issues at a DMV hearing may include:

Whether the officer had lawful grounds for the stop or detention
Whether there was reasonable cause to believe the driver was under the influence
Whether the arrest was lawful
Whether the driver's BAC met the applicable threshold
Whether chemical testing was properly performed
Whether a driver refused or failed to complete a required chemical test
Whether legally required advisements were provided

A favorable DMV result does not automatically dismiss the criminal DUI prosecution, and a favorable result in criminal court does not necessarily resolve every DMV issue.

These are separate proceedings.

Contact our office promptly if you have received a DMV suspension or revocation notice and want to discuss requesting a DMV hearing.

Chemical Test Refusal in California DUI Cases

California's implied-consent law generally requires a person who has been lawfully arrested for DUI to submit to the required chemical testing.

A refusal or failure to complete required testing can create additional driver's license consequences.

California law provides different suspension or revocation periods depending on the driver's prior history.

A refusal allegation should still be examined carefully.

Issues can include:

Whether there was a lawful DUI arrest
What test was requested
What instructions or warnings were provided
Whether the driver actually refused
Whether the driver attempted to comply
Whether a medical condition affected testing
Whether testing equipment or procedures created difficulties

Possible DUI Defenses in California

No single defense applies to every DUI case. The available defenses depend on the facts and evidence.

Some issues that may be investigated include the following.

Unlawful Traffic Stop

Law enforcement generally needs a lawful reason to stop or detain a driver.

If a stop violated constitutional requirements, an attorney may examine whether evidence obtained as a result of that stop can be challenged.

Problems With Field Sobriety Testing

Field sobriety test performance can be affected by circumstances unrelated to alcohol or drug impairment.

Examples can include:

Uneven ground
Poor lighting
Weather
Traffic conditions
Footwear
Age
Injuries
Medical conditions
Nervousness
Confusing instructions

The manner in which the officer administered and documented the tests may therefore be important.

Breath Test Issues

Depending on the case, breath testing may require review of:

Testing procedures
Equipment records
Calibration or maintenance
Operator procedures
Timing
Physiological factors
Other circumstances affecting the reliability of the test

Blood Test Issues

Blood evidence may raise different questions, including:

Collection procedures
Storage
Preservation
Chain of custody
Laboratory procedures
Sample integrity
Testing methodology

Rising Blood Alcohol

Alcohol can continue to enter the bloodstream after a person stops drinking.

In some cases, a chemical test performed after driving may show a higher BAC than the person's BAC when the individual was actually driving.

Whether this defense is supported depends on the timing and facts of the particular case.

Medical Conditions

Certain physical or medical conditions may affect a person's appearance, balance, speech, coordination, or test results.

Medical evidence may therefore become relevant when symptoms have been interpreted as signs of impairment.

Video Evidence Contradicts the Police Report

Body-camera, dash-camera, surveillance, or other video may provide evidence that confirms or contradicts descriptions contained in a police report.

Video evidence should be reviewed whenever it is available and relevant.

What Happens After a California DUI Arrest?

Although every case is different, the process may involve several stages.

1. DUI Arrest

Law enforcement may arrest a person suspected of driving under the influence and submit reports and evidence to the prosecuting agency.

2. DMV Administrative Process

The driver's license process may begin immediately after the arrest.

A DMV hearing generally must be requested within 10 days after receipt of the applicable suspension or revocation notice.

3. Criminal Court Proceedings

A criminal DUI case proceeds separately through the court system.

The process may include:

Arraignment
Discovery
Investigation
Pretrial hearings
Negotiations
Motions
Trial, when appropriate
Sentencing if there is a conviction or negotiated resolution

4. Review of Evidence

Defense counsel may obtain and examine evidence such as:

Police reports
Body-camera footage
Dash-camera footage
Breath-test information
Blood-test documentation
Toxicology reports
Laboratory records
Dispatch information
Witness statements
Photographs
Accident reports
Medical records when relevant

The defense strategy should be based on the actual evidence rather than assumptions about what occurred.

Frequently Asked Questions About California DUI Charges

Is a First DUI a Felony in California?

A typical first DUI under Vehicle Code § 23152 is generally prosecuted as a misdemeanor. However, circumstances such as an injury or other allegations can result in different or more serious charges.

Is a Second DUI a Felony in California?

A second DUI under Vehicle Code § 23152 is generally prosecuted as a misdemeanor, but penalties become more serious when a qualifying prior DUI-related conviction occurred within 10 years.

Is a Third DUI a Felony in California?

A third DUI under Vehicle Code § 23152 is generally prosecuted as a misdemeanor, but California law provides enhanced penalties for a person with two qualifying prior convictions within 10 years.

Is a Fourth DUI a Felony in California?

A fourth DUI within 10 years can be prosecuted as a felony under California law. Whether and how a particular case is charged depends on the applicable statutes, criminal history, and facts.

How Long Do Prior DUIs Count in California?

California DUI sentencing laws generally use a 10-year lookback period for determining whether qualifying prior DUI-related convictions increase the consequences of a new offense.

Can a Wet Reckless Count as a Prior DUI?

Certain reckless-driving convictions under Vehicle Code § 23103, when specified under § 23103.5, can qualify as prior offenses for purposes of California's repeat-DUI sentencing statutes.

Can I Fight a DUI if My BAC Was Over .08%?

A BAC result above .08% does not eliminate the need for the prosecution to prove its case. Depending on the facts, the reliability, timing, collection, handling, or interpretation of chemical-test evidence may be examined.

Can I Get a DUI With a BAC Under .08%?

Potentially. Vehicle Code § 23152(a) prohibits driving while under the influence of alcohol and is separate from the .08% BAC offense contained in § 23152(b).

Can Prescription Medication Lead to a DUI?

Potentially. California's drug DUI law can apply when a drug allegedly causes impairment, even when the substance was lawfully prescribed.

Can Marijuana Lead to a DUI in California?

Yes. California Vehicle Code § 23152(f) prohibits driving under the influence of a drug, which can include cannabis.

How Long Do I Have to Request a California DMV DUI Hearing?

The California DMV states that a driver generally has 10 days after receiving the suspension or revocation order to request an administrative hearing.

Is the DMV Hearing the Same as My Criminal DUI Case?

No. The DMV administrative proceeding concerning driving privileges is separate from the criminal DUI prosecution in court.

Speak With a California DUI Defense Attorney

A DUI charge can affect your driver's license, finances, employment, insurance, and freedom. Repeat DUI offenses and DUI cases involving injuries can carry even greater consequences.

The fact that someone has been arrested or charged does not mean that the government has proven the case.

At R Fenn Law, we examine the circumstances surrounding DUI arrests and evaluate the defenses and legal options that may be available.

We represent clients facing:

First DUI charges
Second DUI charges
Third DUI charges
Fourth and subsequent DUI charges
Felony DUI
DUI causing injury
Drug DUI
Alcohol and drug DUI
Commercial-driver DUI
Chemical-test refusal allegations
DMV license hearings

Flat-Fee DUI Representation

Flat-fee rates may be available for certain legal services.

Call (661)488-7864 or contact us online to discuss your California DUI case and available representation options.

Legal Disclaimer

The information provided on this page is for general educational and informational purposes only and is not intended as legal advice. Criminal laws and potential penalties depend on the facts of each case and may change over time. Viewing this website or contacting the firm does not, by itself, create an attorney-client relationship. Consult a qualified attorney regarding your individual circumstances.