Second, Third and Fourth DUI Laws (VC 23152) in California

I. VC 23152: Second, Third and Fourth DUI Laws

Any DUI offense found under VC 23152 will have the same basic elements you are familiar with from a first DUI.

First, it must be shown that you are:

1. Driving a motor vehicle; and
2. With a BAC of .08 or higher, or
3. While under the influence of alcohol or drugs or both.

In addition to the above, it must be proved that you have one or more prior DUI convictions within a 10-year period. Any DUI offense that falls outside of the 10-year period will “wash out”, and make your current DUI offense, not a Second offense. However, it is still on your record, and any subsequent DUI offense, even 40 years later, could still be used against you by a Prosecutor.

II. What additional criminal Penalties will I face if I receive multiple DUIs?

Depending on how many prior DUIs you have on your record within a 10-year period will determine the maximum, and minimum punishments you could receive in criminal court.

1. Second DUI – If you have received at least one prior DUI within the last ten years, then your next DUI within that time period subjects you to the penalties associated with a second time DUI. If you are convicted of a second DUI, you are required to spend a minimum of 96 hours or 4 days in the County Jail upon a conviction for that offense. Your maximum exposure is up to one year in County Jail, and you would serve 50% of that time in custody. You will still face a fine payment of anywhere from $1900 to $2500, depending on where your DUI case is in Court fees. You can also be subject to a longer Probationary period of upwards of 5 years instead of the standard 3 years you had previously.
2. Third DUI – If you have received at least two prior DUIs within the last ten years, then your next DUI within that time period subjects you to the penalties associated with the Third time DUI. If you are convicted of a Third DUI, you are required to spend a minimum of 120 days in County Jail upon a conviction for that offense, a much more severe punishment here that only gets worse as the DUI offenses continue. Your maximum exposure is up to one year in County Jail, and you would serve 50% of that time in custody. You will still face a fine payment of anywhere from $1900 to $2500, depending on where your DUI case is in Court fees. You can also be subject to a longer Probationary period of upwards of 5 years instead of the standard 3 years you had previously.
3. Fourth DUI – If you have received at least three prior DUIs within the last ten years, then your next DUI within that time period subjects you to the penalties associated with the Fourth time DUI. If you are charged with a fourth DUI, you can be charged as a misdemeanor or as a felony offense since then it becomes a wobbler offense. If you are convicted of a fourth DUI, you are required to spend a minimum of 180 days in County Jail upon a conviction for that offense if you are charged with this as a misdemeanor. If you are convicted of your Fourth DUI as a Felony, you can be sentenced up to 16 months, 2, or 3 years in State Prison. You would serve 50% of that time in custody. You will still face a fine payment of anywhere from $1900 to $2500, depending on where your DUI case is in Court fees. You can also be subject to a longer Probationary period of upwards of 5 years.

After your fourth DUI, every other DUI you would receive within that 10-year period is an automatic felony offense. This means, if you are charged with a Felony DUI after your Fourth DUI, then your Fifth, Six, and Seventh, and so on, will all be Felony DUIs. Now, generally, the punishments for Felony DUIs are still the same, but the difference is that you will most likely be facing a maximum sentence for each DUI thereafter. Another way a DUI can become a felony is through receiving a DUI with Injury (LINK), where even if it is your first DUI offense, but results in a felony conviction, every DUI offense thereafter, even if it’s only your second or third offense, will, therefore, become automatically a felony offense.

III. What additional DMV Penalties will I face if I receive multiple DUIs?

Depending on how many prior DUIs you have on your record within a 10-year period, will determine the maximum, and minimum punishments you could receive from the DMV regarding your license.

1. Second DUI – If you are arrested for your Second DUI, just like your first DUI, there will be a DMV Hearing. In terms of the additional penalties you could face, if you are attempting to obtain a Restricted License to drive to and from work, you must face a 90-day hard suspension, instead of the general 30-day suspension on your first offense. In addition, your license will be restricted for up to one year, instead of six months. Further, if you refuse to submit to a chemical test as required under VC 23612, instead of a mandatory one-year license suspension, it becomes a two-year suspension. You must enroll and complete an 18-month DUI class, known as SB-38. You also must have an Ignition Interlock Device installed for one year.
2. Third DUI: If you are arrested for your Third DUI, just like your first and second DUI, there will be a DMV Hearing. In terms of the additional penalties you could face, if you are attempting to obtain a Restricted License to drive to and from work, you must face a 90-day hard suspension, instead of the general 30-day suspension on your first offense. In addition, your license will be revoked for up to three years, with the ability to get a restricted license after 18 months. Further, if you refuse to submit to a chemical test as required under VC 23612, instead of a mandatory one-year license suspension, it becomes a three-year suspension. You must enroll and complete a 30-month DUI Program. You also must have an Ignition Interlock Device installed for two years.
3. Fourth DUI: If you are arrested for your Fourth DUI, just like your previous DUIs, there will be a DMV Hearing. In terms of the additional penalties you could face, if you are attempting to obtain a Restricted License to drive to and from work, you must face a 90-day hard suspension, instead of the general 30-day suspension on your first offense. In addition, your license will be revoked for up to four years. Further, if you refuse to submit to a chemical test as required under VC 23612, instead of a mandatory one-year license suspension, it becomes a three-year suspension. You must enroll and complete a 30-month DUI Program. You also must have an Ignition Interlock Device installed for three years.

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of Rights

Receiving a second or subsequent DUI offense requires an extremely thorough defense. For example, your experienced DUI attorney can work towards determining whether or not a previous DUI conviction you received was valid, such that this current DUI offense is a second or third offense. These can be attacked through various motions here in California, and through other avenues, if for example, your DUI was from out of state, and that state has different elements of a DUI offense than what we have in California – this can be a possible defense as well.

Further, the general DUI defenses, regarding issues with the traffic stop, the way and manner police obtained a sample from you to test your BAC, as well as other main issues found under Title 17 still apply. For example, if the test results were obtained more than 3 hours after you were allegedly driving, then your test results do not get thrown out of court, but under Title 17, the credibility of that test because questionable and can be used against the Prosecutors at Trial. Even if you are subjected to multiple DUI cases, each one is approached in the same way, and can be defended the same way; in other words, if the elements are not met in your Fourth DUI, same as your First DUI, you can still fight the charge under Insufficient Evidence.

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