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Driving under the influence is the most common charge that brings ordinary people into the criminal justice system. It can be a frightening experience. In addition to concerns about the loss of driving privileges, people who have no experience with incarceration worry that they are ill-prepared to serve a jail sentence.
Fortunately, there are often ways to avoid the most severe consequences of a DUI. One is to beat the charge. A good Orange County DUI defense lawyer will explore every option to help drivers achieve that goal.
Even if a conviction is inevitable, jail time may not be inevitable. Alternatives to incarceration depend on the circumstances of the offense.
First Offense DUI Penalties
In California, a first offense DUI conviction (or a DUI conviction for an offense that occurred more than 10 years after the first offense) carries a maximum jail sentence of 6 months. In addition, the Division of Motor Vehicles will impose a 6-month suspension of driving privileges after it is notified of the conviction.
A fine is a mandatory penalty for a DUI conviction. The minimum fine for a first offense is $390, but the actual cost is closer to $2,000 after court costs are added.
Whether you will actually need to serve a jail sentence depends upon the facts of the case, the guidelines that a judge follows, and recommendations made by the prosecutor and defense attorney. Guidelines vary from county to county and different judges have different attitudes about imposing jail time for a first offense DUI.
According to section 23536(a) of the California Vehicle Code, a person who is convicted of a first offense DUI “shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous.” If the court imposes that sentence, the defendant should be allowed to serve it during periods when the defendant “is normally scheduled for time off from work.”
Any time spent in jail after a DUI arrest should be credited against any sentence that the court imposes. That sometimes results in a “time served” sentence.
DUI Probation And DUI Classes
In many counties, however, a driver convicted of a first offense DUI will be given summary probation and will not be expected to serve a jail sentence if probation is completed successfully. Summary probation means that the defendant must follow rules of probation but is not required to report to a probation agent.
The statute that governs probation in DUI cases authorizes but does not require, a judge to impose between 48 hours and 6 months of jail time as a condition of probation. Rather than imposing jail time, many judges will require a driver to complete a DUI program as a condition of probation. In fact, in counties that have authorized and licensed such programs, the court must require a driver to attend one if the driver is placed on probation.
For most drivers, the program lasts for at least 30 hours over a period of at least 3 months. However, if the driver’s blood alcohol concentration was over 0.20%, the court will usually require participation in a more intensive program that lasts for at least 60 hours over a period of at least 9 months.
The DUI program consists of educational classes and group counseling. One-on-one meetings with a counselor may also be part of the program.
The license suspension imposed by the DMV will not end until any required DUI program is completed. A failure to complete the program will usually lead to a revocation of probation, which exposes the driver to a jail sentence, including the mandatory minimum sentence described above.
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Other conditions of probation may include:
- No use of a restricted driver’s license, if the court deems the license to be contrary to the interests of public safety
- Installation of an ignition interlock device, if the court deems it appropriate
- Attendance at a victim impact panel provided by Mothers Against Drunk Drivers
- Attendance at AA classes
- Participation in community service
In addition, any driver placed on probation is prohibited from refusing any chemical tests requested by a police officer if the driver is stopped or arrested for a DUI offense. Again, the failure to obey any condition of probation can result in a revocation.
Different Counties, Different Penalties
While judges are required to impose punishments within the limits set by state law, counties have adopted varying policies that judges generally follow. That means that whether a driver will serve a jail sentence if convicted of a first offense DUI may depend on the county in which the conviction occurred.
For example, in Orange County, judges will usually impose a term of probation and will not require a jail sentence to be served as a condition of probation. In addition, an ignition interlock device is not usually required as a condition of probation in Orange County.
In Los Angeles County, jail time is not usually required for a first offense DUI conviction, but the installation of an ignition interlock device is usually a condition of probation. In Riverside County, however, judges are much more likely to order jail time (usually with work release privileges) as a condition of probation.
Obtaining the best outcome depends on finding an attorney who is familiar with the sentencing practices of different judges in different Orange County counties. Understanding the likely consequences of a conviction is essential information when defendants decide whether they want to fight their DUI charge at a trial or accept a negotiated resolution.
Aggravating Factors
The sentencing outcomes discussed above assume that the driver is an ordinary first offender. In other words, the driver was cooperative with the police, had a low-to-moderate blood alcohol level, was not involved in an accident, and did not refuse any tests.
The presence of aggravating factors will make a jail sentence (or a longer jail sentence) more likely. Those include:
- Having a high blood alcohol concentration (usually .15% or higher, although that varies by county)
- Fleeing from the officer or resisting arrest
- Reckless or high-speed driving
- Causing a traffic accident
- Refusal of chemical tests
- Having a child in the car
- Being under the age of 21
When aggravating circumstances are present, it is important to work closely with a Orange County DUI attorney to avoid the worst consequences of a conviction.
