DUI Charges

A DUI arrest doesn’t have to define your future.

Take the right legal steps to protect your license, record, and freedom.

A driving under the influence arrest starts two separate cases: a criminal case in court and an administrative case with the California Department of Motor Vehicles (DMV) over your driver’s license. They run on different deadlines, in different places, under different rules. The DMV deadline is short, so it helps to understand both from the start.

If your record includes an arrest in another state, see how OVI, DWI and out-of-state DUI arrests are treated in California.

The Law Office of Vikas Bajaj, APC represents people accused of DUI and other criminal offenses in San Diego. Vikas Bajaj is an experienced San Diego DUI defense attorney. Every case turns on its own facts, and no outcome can be promised.

California DUI Law: What the Vehicle Code Says

Two common ways to be charged under California Vehicle Code section 23152. Subdivision (a) makes it unlawful to drive a vehicle while under the influence of an alcoholic beverage. Subdivision (b) makes it unlawful to drive with a blood alcohol concentration of 0.08 percent or more by weight. Under subdivision (b), a chemical test result of 0.08 percent or more within three hours after driving creates a rebuttable presumption that the person was at that level while driving.

Vehicle Code section 23153 covers driving under the influence, or with a 0.08 percent blood alcohol concentration, and concurrently doing an act forbidden by law or neglecting a duty imposed by law in driving the vehicle, where that act or neglect proximately causes bodily injury to a person other than the driver. Section 23152 also covers driving under the influence of any drug (subdivision (f)).

During a stop, officers may ask for field sobriety tests or a breath test and may seek a blood test. A DUI arrest is not a conviction. A skilled defense lawyer reviews the stop, the arrest, how the tests were given and the lab or device records.

Two Cases After a DUI Arrest: The Court Case and the DMV Case

The California DMV explains that its suspension or revocation after a DUI arrest is an immediate administrative action against your driving privilege only, called Administrative Per Se (APS), and that any DMV action is independent of any jail sentence, fine or other criminal penalty a court imposes after a conviction. The two cases are decided by different people on different questions.

For more on attorney-client privilege when you admit guilt, see our guide.

	Criminal court case	DMV administrative case
Where	San Diego Superior Court	California DMV (Driver Safety)
What is decided	Whether the prosecution can prove the charge, such as a violation of Vehicle Code 23152 or 23153	Whether the suspension or revocation of your driving privilege is justified
Possible consequences	Jail, fines, probation, court-ordered programs and a conviction record	Suspension or revocation of the driving privilege only
Deadline to act	Appear on the court date you are given	Request a hearing within 10 days of receiving the order of suspension or revocation

Because the cases are separate, the result in one does not decide the other. DMV states that if a hearing officer sets aside the suspension, that has no effect on the criminal charge. It also states that a reduction of a DUI charge to reckless driving in criminal court does not affect a DMV suspension that was sustained, and that if a driver is acquitted in court, a sustained suspension is reversed if DMV determines the court decision equals an acquittal.

DUI Arraignment at the San Diego Superior Court

The arraignment is usually the first court date in a criminal case. According to the San Diego Superior Court, at the arraignment the defendant is informed of the charges and advised of their constitutional rights, and is appointed an attorney if they cannot afford one. A plea is entered, bail or release is addressed, and the court sets future dates. Under Penal Code section 1382, in a misdemeanor case the court is to bring the defendant to trial within 45 days after arraignment or plea, whichever is later, or within 30 days if the defendant is in custody, unless the defendant waives time, the defendant requests or consents to a later trial date, or good cause is shown. Felony cases have a different period.

Who prosecutes depends on the offense and location. The court explains that misdemeanors in central San Diego are prosecuted by the San Diego City Attorney, and misdemeanors in the branch court areas by the District Attorney. Felony cases are filed by the District Attorney.

An attorney can appear with you at the arraignment, review the police report and test records, and start work on the case before the next hearing. The next steps vary by case, for example a pretrial conference or hearing in a misdemeanor and a preliminary hearing in a felony.

Which San Diego Courthouse Will Hear Your DUI Case?

Your citation or release paperwork lists the courthouse and the date. Our guides cover the four San Diego Superior Court locations where criminal cases are heard:

• Downtown San Diego courthouse. Misdemeanors in central San Diego are prosecuted by the San Diego City Attorney.
• Vista courthouse (North County Regional Center)
• El Cajon courthouse (East County Regional Center)
• Chula Vista courthouse (South County Regional Center)

Misdemeanors in the branch court areas, and all felony cases, are filed by the District Attorney. A DUI can be a felony when it causes injury (Vehicle Code 23153) or is a fourth DUI within 10 years (Vehicle Code 23550). See felony DUI for how those cases differ.

The DMV Hearing and the 10-Day Deadline

After a DUI arrest the officer forwards a notice of suspension or revocation and a sworn report to DMV, and DMV automatically conducts an administrative review of the officer’s report, the order and any test results. If the review shows no basis, the action is set aside. Separately, DMV states you have the right to request a hearing within 10 days of receiving the order of suspension or revocation. Vehicle Code section 13558 also ties the 10 days to receipt of the notice. The notice is typically given at the time of arrest, and the period does not run from the court date. Under California regulations (Cal. Code Regs., tit. 13, § 115.04(b)), a late request may still be granted in limited situations where the driver was not responsible for the delay and could not reasonably have made a timely request, so a missed deadline is worth raising right away, but it should not be counted on.

DMV states that a driver may drive for 30 days from the date the order was issued on the temporary license, provided the driver holds a California license that is not expired and is not suspended or revoked for another reason. DMV also states that you are not required to request a hearing.

DMV describes what is at issue in the hearing. If you took a test, the questions include whether the officer had reasonable cause to believe you were driving in violation of Vehicle Code section 23140, 23152 or 23153; whether you were lawfully arrested; and whether you were driving with 0.08 percent or more by weight of alcohol in your blood. If it is alleged you refused or failed to complete a test, the issues include whether you were told your driving privilege would be suspended or revoked and whether you refused or failed to complete the test after being asked. The DMV hearing is not about guilt or innocence in the criminal case.

DMV lists these APS suspension lengths for drivers 21 or older who took a test with a result of 0.08 percent or more: four months for a first offense, and one year for a second or subsequent offense within 10 years. For drivers 21 or older who refused or failed to complete a test, it lists a one-year suspension for a first offense, a two-year revocation for a second offense within 10 years, and a three-year revocation for a third or subsequent offense within 10 years. For drivers under 21 with a result of 0.01 percent or more on a preliminary alcohol screening or other chemical test, DMV lists a one-year suspension. A request for a restricted license cannot be considered at the DMV hearing; DMV describes separate ignition interlock and restricted license options.

The DMV’s DUI page describes the hearing request, the temporary license and the suspension periods.

Marijuana DUI and Drug-Related Impairment Cases

DUI charges are not limited to alcohol. A driver can be charged for driving while impaired by marijuana or other drugs. These cases may rely on officer observations, blood tests or other evidence, and the testing procedures and what the results do and do not show can be reviewed. See Marijuana DUI for more.

Reduced Charges, Including “Wet Reckless”

In some cases a DUI charge is resolved by a plea to a reduced alcohol-related charge, often called a “wet reckless.” Whether that is possible depends on the facts, the evidence and the prosecutor’s position. A reduced charge in court does not change a DMV suspension that was sustained after the DMV hearing, which is another reason the DMV deadline matters.

DUI Penalties

Under Vehicle Code section 23536(a), a first conviction under section 23152 is punished by county jail of not less than 96 hours (at least 48 of them continuous) and not more than six months, and by a fine of not less than $390 and not more than $1,000. If the court grants probation, section 23538 sets a fine of at least $390 and not more than $1,000 as a condition, and allows jail of at least 48 hours and not more than six months as a condition. Penalties for later convictions and for cases alleging injury are set by other sections of the Vehicle Code, and the range depends on the specific record, so those ranges are not listed here. DMV license consequences are separate and are described above.

A DUI conviction can also affect a person’s driving record, insurance and employment. See how long a DUI stays on your California driving record.

Prior DUIs Within 10 Years

Vehicle Code section 23540 covers a second DUI within 10 years of a prior one. It carries county jail of at least 90 days and up to one year, plus a fine of $390 to $1,000. A third DUI within 10 years falls under section 23546, with a jail minimum of 120 days. A conviction from another state can count as a prior under section 23626.

Important Steps After a DUI Arrest

• Find the order of suspension or revocation the officer gave you and note the date you received it. The 10-day DMV hearing request period runs from receipt.
• Keep every paper you were given, including the court date or citation.
• Be careful about what you say to officers or on social media about the arrest.
• Speak with an experienced defense attorney about both the court case and the DMV case.

Refusing a Chemical Test

Drivers arrested for DUI are deemed to have consented to a breath or blood test. A refusal brings a longer DMV suspension than a test failure: one year for a first refusal (Vehicle Code § 13353). In the criminal case, a refusal can be used as evidence and can add jail time if there is a conviction (§ 23577).

DUI With Injury

When someone other than the driver is hurt, the charge becomes Vehicle Code § 23153. It can be filed as a felony, and great bodily injury allegations can add prison time (VC 23153).

DUI FAQs

How long do I have to request a DMV hearing after a DUI arrest in California?

DMV states you have the right to request a hearing within 10 days of receiving the order of suspension or revocation. The hearing is optional, and the DMV case is separate from the criminal case.

Is the DMV case the same as my court case?

No. The criminal case in San Diego Superior Court decides whether the prosecution can prove the charge and what penalties follow. The DMV case decides whether your driving privilege is suspended or revoked, and DMV states that its action is independent of the court’s. The result in one does not automatically decide the other.

Can I still drive after a DUI arrest?

DMV states that the order of suspension serves as a temporary license for 30 days from the date it was issued, if you hold a valid California driver’s license that is not otherwise suspended or revoked. After that, the suspension takes effect unless it has been stayed or set aside. Under Vehicle Code section 13558, a request for a hearing does not by itself stay a suspension. If the request is made within 10 days and DMV does not hold the hearing and decide before the effective date, DMV must stay the effective date until it decides.

What is the difference between Vehicle Code 23152 and 23153?

Section 23152 makes it unlawful to drive under the influence of alcohol (subdivision (a)) or with a blood alcohol concentration of 0.08 percent or more (subdivision (b)). Section 23153 covers driving under the influence, or with that concentration, while also committing an unlawful act or neglecting a legal duty in driving that proximately causes bodily injury to someone other than the driver.

What happens at a DUI arraignment in San Diego?

The court informs the defendant of the charges and constitutional rights, appoints an attorney if the defendant cannot afford one, takes a plea, addresses bail or release and sets future dates, according to the San Diego Superior Court. The court on which your case is calendared and the next dates depend on your case.

What does Vehicle Code 23152(f) cover?

Subdivision (f) makes it unlawful to drive under the influence of any drug. Being legally entitled to use the drug is not a defense (Vehicle Code 23630). See marijuana DUI.

Does the DMV hearing decide my court case?

No. The DMV hearing decides only your driving privilege. The DMV states that its decision is separate from any criminal charge, so a win at the DMV does not dismiss the criminal case (California DMV).

Related Guides

• How Long Do You Have to Request a DMV Hearing After a DUI Arrest in California?
• Understanding DUI Under Vehicle Code 23152(a)
• Understanding Common CHP DUI Field Sobriety Tests
• When Is a DUI a Felony in California?
• How Soon Is It Safe to Drive After Smoking or Using Marijuana?
• DUI DMV Hearings
• Felony DUI
• Marijuana DUI

The Law Office of Vikas Bajaj, APC is a San Diego criminal and white-collar defense practice offering experienced, trusted representation. Call (619) 525-7005 or request a confidential consultation. Each case is different. Past outcomes do not predict future results. This page is general information, not legal advice for a specific situation.