We see celebrity DUI cases play out in the media, often with seemingly light or no criminal penalties. Actress Lindsey Lohan’s DUI case comes to mind, although she managed to violate her light probation sentence and thus ramp up the criminal penalties for her DUI. This made me wonder what are the potential criminal penalties for a DUI in California and what is the likelihood of such charges being brought?
Driving under the influence (DUI) sentencing occurs primarily within an alternative sentencing scheme under which offenders receive progressively more severe penalties for each successive DUI-related conviction.
Absent special circumstances, anyone arrested for driving under the influence of alcohol, drugs, or both is charged with violating Veh C §23152(a), commonly referred to as the “DUI count,” and is prosecuted for a misdemeanor. Veh C §§23536-23552. If the arrestee submitted to a blood-alcohol test and the results show a blood-alcohol content (BAC) of 0.08 percent or more, he or she will also be charged with violating Veh C §23152(b), commonly called the “0.08 per se count.”
Depending on the circumstances, other potential charges include:
- Driving a commercial vehicle by a person with a BAC of 0.04 percent or more. Veh C §23152(d). See Veh C §23153(d).
- Driving while addicted to any drug other than methadone. Veh C §23152(c). See Health & S C §11550 (being under influence of narcotic).
- Illegally or negligently causing bodily injury to others while DUI. Veh C §23153(a)-(b). This section is a “wobbler,” i.e., chargeable, at the prosecuting agency’s discretion, as either a misdemeanor or a felony.
- Child endangerment if a child was in the vehicle. See Pen C §273a.
- Driving with.01 or greater BAC if on probation for a DUI-related offense; the arrest will trigger an administrative hearing and possible suspension of license. Veh C §23154.
When a DUI results in a homicide, other statutes may come into play, with obviously much more serious penalties, including:
- Pen C §192(c)(1)-(3) (vehicular manslaughter), a wobbler, when death resulted from gross or ordinary negligence;
- Pen C §191.5(a) (vehicular manslaughter with gross negligence), a felony, when death resulted from criminal negligence; or
- Pen C §§187-189 (second degree murder), a felony with an indeterminate life sentence, when the defendant acted with implied malice. (note that second degree murder is normally not charged in DUI cases because it is difficult to establish implied malice; however, when the defendant has prior DUI convictions, they can be used to show that the defendant knew the dangers of drunk driving. See People v Marlin (2004) 124 CA4th 559, 21 CR3d 470).
Don’t think that kids can get away with a DUI. In fact, juveniles who drive while under the influence are subject to prosecution, as are adults who lend their cars to such juveniles. See Veh C §23140; Pen C §193.8. The minimum required BAC for a person under age 21 to be DUI is even lower — at only 0.05. Veh C §23140.
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