Sentencing on Misdemeanor DUI (Without Aggravating Factors)

Most first, second, and third DUI offenses, whether for alcohol, drugs, or both, are charged and convicted as misdemeanors. If the conditions of the arrest involve aggravating factors (such as speeding or reckless driving, high BAC, chemical test refusal, DUI with injury or death), the sentence may be enhanced or in some cases, may be charged as a felony. The criminal charges and proceedings are entirely separate from the DMV administrative proceedings, although the criminal court may issue “credits” for license suspension time that has already been served pursuant to the DMV administrative proceedings. The vehicle code prescribes progressively harsher sentences for each DUI conviction within a ten year period, but the court does have discretion in its final sentencing judgment.

The majority of DUI convictions follow a plea bargain between the defense and prosecution. It is important to have an attorney familiar with every aspect of DUI sentencing as your advocate. When a dismissal of the case is not a viable option, DUI sentencing attorney William Weinberg works diligently to mitigate the impact of the charge. As a skilled negotiator who has spent years working closely with the Orange County District Attorney’s office, Mr. Weinberg’s goal is to negotiate the best outcome for your case. Sometimes it is possible to negotiate a plea to a lesser crime, such as “wet reckless” or even reckless driving, both of which carry much lighter sentences than a straight DUI.

A misdemeanor DUI arrest no longer means a mandatory period of a hard license suspension. If you were arrested for DUI after January 1, 2019, you can install an ignition interlock device (IID) for a proscribed period of time, which will depend on whether it is your 1^st, 2^nd, or 3^rd DUI. Installation of this device allows you to drive without restriction on an IID suspended license. Offenders who choose not to install an IID will have their license to drive suspended according to the offense, usually with the option of driving with restrictions for the latter part of the suspension. While IIDs cost the driver money and are inconvenient, having an IID installed allows the DUI offender to fully preserve his or her driving privileges as long as the IID is properly used and operating.

NOTE: The IID law applies to driving under the influence of alcohol convictions only, not driving under the influence of drugs. On a DUI of drugs, the convicted offender faces the same criminal penalties with the exception that the standard license suspensions apply and the driver does not have the option of installing an IID.

So, what are the penalties for a misdemeanor DUI conviction if there are no aggravating factors?

A wet reckless is not actually a DUI but does count as a DUI if it is within the ten-year lookback period for subsequent DUIs. In other words, if a person convicted on a wet reckless charge is convicted of a DUI within ten years (the lookback window), the DUI will be a second offense.

License Suspension/IID. There is no statutory mandate for suspension of a driver’s license on a wet reckless conviction. Nor is there a requirement that the driver install an IID. However, the court may order the installation of an IID as a condition of probation on this offense but not for more than six months.

Jail/Probation. A jail sentence of up to 90 days is possible, but it would be very rare for a judge to order the offender to jail. Usually the offender will be ordered to serve informal (unsupervised) probation for a period of one to two years.

DUI Education. A wet reckless offender will usually be ordered to attend a shortened version of DUI education. Typically, the court orders the offender to attend six weeks of classes and perhaps AA meetings or other group programs.

License Suspension/IID. A driver convicted on a first offense DUI after January 1, 2019 has the option to install an ignition interlock device (IID) on their vehicle and thus avoid any restriction on driving. The IID must remain installed for six-months. This option is available within the first thirty days after the arrest, the time in which the driver has been issued a 30-day temporary permit to drive. Choosing this option means that the driver cannot challenge the DMV suspension of his or her license at an Administrative Per Se (APS) hearing. If the driver does not choose to install an IID (or loses at the APS hearing), his or her driver’s license will be suspended 30 days after the DUI arrest for a period of four months. However, after one month of the suspension, the driver may apply for a restricted license, which will only permit driving to school, work, and DUI classes, for a period of five months. Note that even if a first-time offender chooses not to install an IID, the installation of the device may be later ordered by the court. If so ordered, it cannot be for a period of more than six months.

Jail/Probation. A first offense DUI can be punished by up to six months in county jail. This rarely, if ever, happens. Rather, the court will sentence the offender to informal (unsupervised) probation in lieu of a jail sentence. On most first offender DUI convictions, the probation term is three years.

DUI Education. The court has discretion regarding this component of a DUI sentence. The statute provides that a first offender whose BAC was under 0.20% must participate for three months or longer in a program that includes education, group counseling, and individual interview sessions. An offender whose BAC was 0.20% or more, or a first offender with less than 0.20% but who refused to take a chemical test, must participate a minimum of nine months in a program.

License Suspension/IID. A driver convicted on a second offense DUI after January 1, 2019 must install an IID for a period of one year or sustain a license suspension for two years, with one year being a “hard” suspension and the second year, a restricted license. The judge will order installation of the IID or, alternatively, the two-year suspension upon conviction. Installation of an IID allows the offender to continue driving.

Jail/Probation. A second offense DUI can be punished by up to one year in county jail. This rarely happens, although there is a mandatory minimum jail sentence of 96 hours. Your DUI attorney can often arrange for this jail sentence to be served on weekends or on a work furlough arrangement so that you can continue to report to work. Usually, the court will sentence the 2^nd time DUI offender to informal for three years, although the judge can sentence the offender to up to five years’ probation.

DUI Education. The court must sentence the offender to an 18-month program consisting of DUI classes, group and individual sessions and extended group sessions in the final six months of the program. Alternatively, at the discretion of the judge, the offender can be ordered to attend a 30-month program with essentially the same components. The judge may also sentence the offender to attend a recovery or treatment program.

License Suspension/IID. A driver convicted on a third offense DUI must install an IID for a period of two years or their license will be suspended for three years, with the possibility of obtaining a restricted license after 18 months of a “hard” suspension. Installation of an IID allows the offender to continue driving.

Jail/Probation. A third offense DUI conviction carries a minimum sentence of 120 days and up to one year in county jail. The court will also sentence the offender to a probation term of three to five years.

DUI Education. While the statute provides that the three-time offender must attend at least 30 months of education and programs, courts often sentence these offenders to enroll in in-patient or out-patient treatment programs for a portion of the proscribed period.

With each successive DUI within ten years, the punishment becomes progressively harsher. Employing a skilled DUI defense attorney is as important on a first-time DUI as it is on a third. The goal is to avoid accumulating DUIs within the 10 year lookback period. Orange County DUI defense attorney William Weinberg works just as diligently to get the charges dismissed or reduced whether it is a first DUI or a repeat DUI. Contact Mr. Weinberg at any time to set up a confidential consultation with a DUI sentencing attorney in Orange County without charge. He will work with you and your family to setup a fee structure that best suits your circumstances.