The Leventhal Blog
The leventhal firm

DUI Sentencing: Part II – Prior Convictions and Sentencing Enhancements

DUI Sentencing:  Part II – Prior Convictions and Sentencing Enhancements


The punishment for driving under the influence in California (VC 23152) increases if the prosecution proves prior DUI convictions within a 10 year window.  Also, several facts, or special allegations may enhance a DUI sentence if properly pled and proven.

Prior DUI Convictions

In California, prior convictions for VC 23152, VC 23153, or VC 23103/23103.5 (“wet reckless”), can be used to enhance the sentence for a DUI.[i]  The prosecution can use convictions from a 10-year period surrounding the current DUI offense; this 10-year period looks forward and back, meaning that the “prior conviction” can actually be for a DUI incident date after the incident date of the case currently being prosecuted.[ii]

  • Second time DUI Sentencing[iii]: The court has a series of probation conditions at its disposal for a second DUI. The maximum jail time is 364 days; the court shall impose either at least 96 hours or at least 10 days jail in addition to the fine of $390-$1000.  The court will generally impose more severe DUI probation conditions if the prosecution proves that your blood alcohol level exceeded .15 or that you refused a chemical test (any BAC test post-arrest).  Any jail time imposed must include 48 consecutive hours in custody or a minimum 10 days of community service.[iv]  If probation is granted, the term can be anywhere from 3 to 5 years.
  • Third time DUI Sentencing[v]: Mandatory minimum of 120 days in jail; 364 days maximum. However, the mandatory minimum jail time can be reduced to 30 days in jail if the court agrees to a 30-month alcohol treatment program.  Probation will typically be for 5 years with a third DUI.
  • Fourth Time DUI Sentencing[vi]: A fourth DUI conviction over a 10-year period is punishable as a misdemeanor or a felony. If granted probation, a mandatory 180 day jail term must be served.  You will also be designated as a habitual traffic offender which flags the DMV about your driving record, among other things. As a practical matter, the Los Angeles County District Attorney’s Office will file all 4th DUIs as felonies.  Residential treatment can satisfy mandatory jail in a multiple offense DUI scenario, but the client must follow THE LEVENTHAL FIRM’S advice to a tee (see e.g., PC 2900.5(a)).

Special Allegations

These California DUI sentencing enhancements are not separate crimes.  They describe specific facts or particular conduct, and must be proven by the prosecutor:

  • Reckless Driving and Excessive Speed: If you were driving recklessly (within the meaning of VC 23103) AND speeding (30 mph over a highway speed limit or 20 mph over any other posted speed limit), a mandatory 60 days jail will be imposed, consecutive to any other sentence.[vii]
  • Refusal to Take a Chemical Test: Refusing to take a blood or breath test upon a police officer’s proper advisement post-lawful arrest will result in additional mandatory jail time[viii]: 96 hours jail time is added to the sentence for a second DUI in California; 10 days jail for a third DUI; and 18 days for a fourth DUI in the refusal context.
  • Child Passenger: If you are convicted of a simple DUI (VC 23152), and the prosecution proves there was a passenger under 14 years old in the car, mandatory jail time is imposed, even when probation is granted.[ix] For a first time DUI in California, an additional 48 hours in jail is required.  The sentence for a second-time DUI is enhanced by 10 days in jail; a third-time DUI by 30 days.[x] Ordinarily, prosecutors will elect to file a PC 273a(b) (child endangerment) in lieu of the minor enhancement because it increases exposure.

In addition to the various DUI probation conditions imposed by the court, the DMV will suspend (or re-suspend) your license to drive once notified of a DUI conviction from the court; and, the length of the license suspension increases with every prior the DMV has on record.  For more information about the interrelationship between a criminal court case and DMV suspension actions, call our Los Angeles and Pasadena DUI expert lawyers at THE LEVENTHAL FIRM.  Our lawyers will investigate your prior DUI convictions and move to strike any that are invalid or unconstitutional.   If you have questions about DUI probation conditions, typical DUI sentences in Los Angeles or Pasadena, or you are facing complex multiple offense DUI criminal charges, contact our DUI attorneys today for a thorough case evaluation.

[i] Certain out-of-state DUI convictions may also be used as sentence-enhancing DUI priors.  See Cal VC 23626.

[ii] People v. Snook (1997) 16 Cal 4th 1210

[iii] Cal VC 23540, Cal VC 23542

[iv] Cal VC 23580

[v] Cal VC 23546, Cal VC 23548

[vi] Cal VC 23550

[vii] Cal VC 23582

[viii] Cal VC 23577

[ix] Cal VC 23572

[x] Driving under the influence while a child is in the car is conduct chargeable under Penal Code 273a.  In California, the additional 30 days for the Vehicle Code enhancement cannot be imposed if you are also convicted of PC 273a.