DWI PENALTIES

MANDATED PENALTIES AND JUDICIAL DISCRETION:

State law mandates most minimum DUI offender sanctions. Judges have discretion, however, over whether to apply sanctions other than those mandated in the chart or increase offenders sanctions to the maximum allowed in each category.

For example, for first offense misdemeanor DUI, judges have the discretion to sentence offenders to jail or grant probation. As the chart shows, if the judge decides to impose a 48-hour jail sentence, probation must also be used. Additionally, the judge must impose at least the minimum listed offense fine, penalty assessment, restitution, license suspension period and treatment program duration. Vehicle impoundment and ignition interlock installation are not mandated, although they can be imposed by judicial order.

COURT-IMPOSED DUI PENALTIES:

Misdemeanor DUI offenses (California Vehicle Code section 23152) - typically do not involve injuries and offenders convicted of a misdemeanor can be sentenced to jail (but not prison) and fined up to $1,000

Felony DUI offenses (California Vehicle Code section 23153) - typically someone other than the driver was injured or killed as a result of the offense and offenders convicted of a felony can be sentenced to prison and fined more than $1,000.

Subsequent offenses - punished more severe than previous offenses. A second, third or subsequent offense is one that occurs within seven years of a prior DUI offense - or ten years if the prior was a felony. A prior alcohol-involved reckless driving guilty plea is counted as a prior DUI conviction when the court determines punishments.

CRIMINAL SANCTIONS

Drivers convicted of misdemeanor or felony DUI can receive:

COUNTY JAIL OR STATE PRISON

A DUI conviction typically results in a mandatory sentence ranging from 48 hours in jail to four years in prison. The sole exception is for a misdemeanor first offense, where a judge can substitute a fine, require a treatment program and levy a 90-day license restriction.

Jail and prison sentences are extended for certain "enhancing" circumstances. Enhancing circumstances are:

As relates to Jail:

driving at "excessive speed" (30 mph above the lawful freeway speed or 20 mph above the lawful speed on other roadways)
refusing to take a chemical test
driving with a minor passenger (under age 14) in the vehicle. (Applies to misdemeanor DUI offenses only.)

As relates to Prison:

multiple victims (other than the driver). Sentences are enhanced by one year for each victim (up to three)
hit and run, if fleeing the scene after vehicular manslaughter.

FINE, PENALTY ASSESSMENT AND RESTITUTION

Offenders are commonly ordered to pay three types of fines: an offense fine, a penalty assessment, and restitution.

Misdemeanor offense fines range from $390 to $1,000; felony offense fines from $390 to $5000.
Penalty Assessments are 170% of the offense fine, that is, $17 extra for each $10 of offense fine imposed
Restitution fines compensate the injuries and losses of victims. Fines range from $100 to $10,000.

DRINKING AND DRIVING TREATMENT

Convicted DUI offenders may be ordered to attend and complete an alcohol and/or drug treatment program. Drivers suspended for a DUI conviction must complete a drinking driving treatment program prior to license reinstatement.

Repeat offenders granted probation must complete a program for the number of months specified in the law.

Offenders receive no credit for program activities prior to the current violation.

VEHICLE IMPOUNDMENT OR FORFEITURE

The court can order that the vehicle of a convicted DUI offender be impounded if the offender is its registered owner. A judge can order that an impounded vehicle be forfeited - declared a "nuisance" and sold. Impounds can also be imposed on vehicle owners under 21 (even if not in the vehicle) if a driver or passenger of his or her vehicle is under 21 and illegally possesses alcohol.

LICENSE RESTRICTION, SUSPENSION OR REVOCATION

A driver license can be:

Restricted - limiting when and under what circumstances drivers can use a vehicle. Restrictions typically include: driving only to and from work or treatment, and as required by work; maintaining financial responsibility (insurance)
Suspended - withdrawn for a specified period or until some required condition (such as financial responsibility) is met
Revoked - terminated, requiring drivers to reapply for a license after their revocation period.

Commercial vehicle operators convicted of DUI have their license "disqualified," that is, they are prohibited from operating commercial vehicles. A suspension or revocation of a commercial license also applies to the driver's non-commercial license.

Courts can postpone the start of a DUI offender's license suspension or revocation period until after imprisonment. Postponement is typically applied to repeat DUI offenses, DUI offenses involving multiple victims, and hit and run convictions.

Drivers under 21 convicted of DUI (or alcohol-related reckless driving) have their licenses suspended for an additional one-year period, over and above the license suspension they receive for DUI. Drivers under 18 convicted of adult-level DUI (.08% BAC or greater) have their licenses revoked for: one year; until they reach 18; or the period prescribed for the offense-whichever of these three is longest. License reinstatement costs $100 and requires proof of financial responsibility. Youths aged 13-20 convicted of any alcohol-related offense (even those not involving driving) have their first license delayed for a year.

IGNITION INTERLOCK DEVICE REQUIREMENT

For first-time offenders, courts may choose to impose the installation and maintenance of a certified ignition interlock device (which prevents a vehicle from being started if the driver has alcohol in his or her system). For second and other repeat offenders, the device is mandatory. Courts require the device from one to three years once the driver license is restored.

PROBATION

Court-ordered probation for DUI offenders lasts three to five years. During probation, offenders must not:

commit any criminal offense
drive with any measurable alcohol in their blood
refuse to submit to a chemical test upon request
fail to pay a fine, assessment or restitution

NEW AND HARSHER APPROACHES TO PUNISHMENT

The accelerating DUI crack- down has resulted in a wave of new and harsher approaches to punishment in drunken driving cases. Fines and jail terms have been raised for the basic offense of driving under the influence of alcohol and/or driving with .08 or .10 percent blood-alcohol concentration. License restrictions, suspensions, and revocations are more extensive and easier to obtain. The impact of prior convictions has raised terms of incarceration to felony levels.

There has been a proliferation of sentence changes from statutes providing for increased penalties where specific criteria exist. There are a number of such statutes, which vary from jurisdiction to jurisdiction, that appear likely to continue to spread across the country. These include:

High Blood-Alcohol Concentration - Commonly, there is a mandatory higher jail sentence where the BAC is .20 percent or higher.

Refusal to Submit to Chemical Testing - The increased jail term for refusing is often in addition to the administrative suspension for refusing. (Note: If the jurisdiction punishes refusal as a substantive offense, it cannot also use the refusal as an enhancement in the DUI/per se case, as this would constitute multiple punishment.)

Speeding and/or Reckless Driving - This enhancement involves driving in excess of a specified speed while under the influence of alcohol or over .08/.10 percent BAC. California, for example, imposes the enhancement where the defendant drove 20 mph over the speed limit on a surface street or 30 mph over the limit on a freeway.

Child Endangerment - Increased penalties are imposed where there is a minor passenger in the vehicle at the time of the drunk driving. Commonly, this is defined as an individual under the age of 14.

Accident or Injury - In many jurisdictions, the existence of property damage can trigger a more severe sentence; in others, it will define a different offense. Where there is personal injury involved, most jurisdictions elevate the offense to felony status.

III. Administrative License Suspension (ALS) System

ALS Sanctions

In addition to sanctions imposed as a result of a court conviction, DUI offenders face administrative license actions (suspensions and revocations) by the DMV. These actions are mandatory (the DMV must apply them on violators) and independent of any criminal penalties imposed by a court. Table 2 summarizes license suspensions and revocations imposed on DUI drivers.

Nature Of Offense	First	Second	Third (Or More)
Driver Under 21, BAC .01% or more	1 year or more	1 year or more	1 year or more
Driver 21 and Over BAC .08% or more	1 year or more	1 year or more	1 year or more
Chemical Test Refusal	1 year	2 years* (Revocation)	3 years* (Revocation)

*This punishment for a second "test refusal" also applies if prior offenses were for DUI or were DUI-related.

ALS Process

The administrative license suspension process begins when a driver is cited for DUI. The driver license is taken on the spot by the arresting law enforcement officer if the driver:

violates the civil per se laws (as shown in Table 1: .01% for drivers under 21; .08% for drivers 21 or over)
refuses a chemical test requested by an officer

Licensed offenders are then served with a DMV order of suspension or revocation which serves as a 30-day license. The suspension or revocation takes effect in 30 days. Within 10 days from the citation date, drivers can request a DMV hearing. At the DMV hearing, only a limited number of issues may be considered. These are whether:

the officer had reasonable cause to believe the driver was driving a vehicle with an illegally high BAC
the driver was arrested (or "lawfully detained" if age 21 or less)
the driver refused a chemical test or a preliminary alcohol screening (PAS) test
the driver was informed that a refusal would result in suspension or revocation

ALS hearings are independent of criminal prosecutions. That is, proceedings and findings in one venue do not affect proceedings and findings in the other. For example, if a defendant's charges are dropped in court, this decision has no effect on the determination made at an ALS hearing. An important exception exists, however: a not guilty verdict in a criminal case overturns an ALS determination and its sanctions.