Fourth Offense DUI
If you have been arrested for a fourth offense DUI, the severity of your license suspension and punishment increases. In most counties you will be required to do all of your sentence in actual jail or prison. The amount of time in custody usually depends on the facts and circumstances of the case, your criminal history, and if there is a violation of probation.
Felony DUI in California
A California DUI can be charged as a felony in three circumstances. When the DUI results in injuries, you have a prior felony DUI conviction, or you have three prior DUI convictions within the last 10 years. Any Felony DUI is a serious case and shouldn’t be taken lightly. If you can afford an attorney, you should hire one.
Felony DUI with 3 or more priors
If you are arrested for DUI and have three or more prior DUI convictions within the last ten years, you will face a felony DUI charge. This means your misdemeanor DUI will be upgraded to a felony because of the 3 prior convictions. Prior convictions include:
- California DUI convictions under CVC23152
- DUI convictions under CVC23153
- Wet reckless conviction under 23103.5
- Out-of-state convictions that, if committed in California, would be a DUI in California.
10 Year DUI Look Back Window
For a DUI to be used against you as a prior offense it must have occurred within 10 years of your new offense. The time period is measured offense date to offense date.
Misdemeanor DUI Upgraded to Felony DUI
Because a misdemeanor DUI gets upgraded to a felony due to the three priors, a person will sometimes get arrested on a misdemeanor DUI and then have the misdemeanor get enhanced to a felony at the first court date. This can be a shock to a person who was arrested on a misdemeanor and released from jail on a low bail only to come to court to find out how serious the case is. If you think you have 3 priors within 10 years, contact an attorney.
You Have Two Cases
If you have been arrested for fourth offense DUI, you have two problems – A DMV problem and a criminal court problem. The DMV and the Court process are separate and each must be fought independently. The DMV case relates to your California driving privilege and whether your license will be returned, suspended, or revoked. The Court case deals with punishment for the crime of DUI and may include jail time, fines, alcohol education classes, license suspensions, probation, vehicle impound, installation of an ignition interlock device or a combination of these things. Sentencing enhancements may increase punishment and length of license suspension.
DMV License Suspension v Court License Suspension
There are two ways your driving privilege in California can be suspended. If you lose or default on the DMV hearing, a 1 year suspension can occur. If you get convicted in court, it will trigger a 4-year license revocation. Even on a fourth offense, you may still be able to drive legally while your case is pending.
Important – DMV Hearing Date MUST BE SET Within 10 days of arrest
To get a DMV hearing you must call DMV to request a hearing, it is not automatically set for you. It is your responsibility to set your DMV hearing within 10 calendar days of the arrest. If you do not request a hearing within 10 days, your license will automatically be suspended 30 days after your arrest for a period of 1 year on a fourth offense. Even on a fourth offense, you may still be able to drive legally while your case is pending. You must set your DMV hearing. The number to call to set your DMV hearing is on your Temporary License/Notice of Suspension.
At the time of your arrest, the police take your license and give you a Temporary License/Notice of Suspension. This piece of paper is your new temporary driver’s license so keep it with you. If you had a valid driver’s license at the time, you can continue to drive until the outcome of the DMV action. If you request a DMV hearing, you will be allowed to drive until a decision is rendered on the outcome of the DMV hearing. If you don’t set a DMV hearing, your driving privilege will be suspended 30 days after your arrest.
Notice of Suspension
The notice of suspension notifies you of your right to a hearing to contest the action against your license. Most people don’t read it but it explains that you need to request your hearing within 10 days. You must read your temporary license and notice of suspension because it contains important information regarding your legal rights.
First Court Date
After you are released from jail, you are given a court date for your arraignment. Arraignment is where the government tells you the charges and potential punishment you face. In felony cases, you must appear in person to your arraignment or a warrant will be issued. Don’t confuse your court date with your DMV hearing date.
Bail Motion at First Court Date
In most felony DUI cases, the prosecutor will request an increase in bail at your first court hearing. So even if you bailed out at $50,000 you could still have your bail increased to $100,000 or more. If you are not prepared for the bail motion, you will be taken into custody and stay in jail until you post the bond, or your case is concluded.
If you are released on bail on a felony DUI case, the court is going to order “Bail” terms while your case is pending. This could include a “no alcohol” term which includes no bars, no use and possession of alcohol, and search and seizure for alcohol including on your person, vehicle, or home. You may also be prohibited from driving, required to attend self-help meetings, or ordered to wear a SCRAM device on your ankle that monitors you for alcohol use.
After Felony Arraignment
After felony arraignment, your felony DUI case will be set for a preliminary hearing where the District Attorney must present witnesses to support the charges against you. Prior to the preliminary hearing, a pre-preliminary hearing is usually set which allows settlement negotiations between your attorney, the court, and the District Attorney to occur.
A preliminary hearing is a proceeding to determine whether, and to what extent, criminal charges will be heard by the court. Should the court decide that there is probable cause, a formal charging instrument will issue, and the prosecution will continue. If the court finds that there is no probable cause, then typically the prosecution will end. If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is “held to answer”. After a defendant is held to answer, the judge will set a date for arraignment. A new pleading is filed with the court and the defendant can enter a plea at his or her arraignment date. At the new arraignment, a trial date is usually set.
Reduced DUI Charges – Wet Reckless (VC23103/VC23103.5)
A wet reckless is reckless driving involving alcohol or drugs. In cases where there is a low alcohol level usually below .10% or drugs like marijuana or prescription medications, your attorney can negotiate for a wet reckless disposition. It’s a better resolution then a DUI because it comes with no license suspension, no IID, and usually no jail time. A wet reckless is a good resolution for fourth offenses, commercial/employed drivers, professional licensees, and anyone that needs a valid driver’s license for work. A wet reckless also prevents the felony enhancement so your case stays a misdemeanor. The negative thing about a wet reckless is that it is priorable against you by the DMV or Court if you ever get another DUI within the next 10 years.
Reduced DUI Charges – Reckless Driving (VC23103)
A dry reckless is reckless driving not involving alcohol or drugs. It’s a better resolution then a DUI or Wet Reckless because it is not prior able against you by the DMV or Court if you ever get another DUI within the next 10 years. A reckless driving also prevents the felony enhancement so your case stays a misdemeanor. There is no license suspension associated with it.
Felony DUI – 1170(h) Local county jail prison sentence
In a fourth offense DUI case, you could be denied probation and sentenced to local county jail prison under PC1170(h). The court has two choices in sentencing: it can sentence you to 16 months, 2 years or 3 years, to be served in the county jail. Upon release, you will not be subject to parole or supervised community release. Alternatively, the court can impose a “split sentence.” In this case, the court selects a term but suspends a portion of that sentence. When you are released from custody, you are subject to mandatory supervision for the remainder of the length of the term. A PC1170(h) sentence would count as a prison prior even though you serve your sentence in local county jail.
Felony DUI – State Prison Sentence
In a fourth offense DUI case, you could be denied probation and sentenced to state prison under VC23550.5. To be sentenced to state prison requires that within the last 10 years any of the following has occurred: (1) a prior 23152 DUI under VC23550 punished as a felony, (2) a prior DUI under 23153 punished as a felony or, (3) a prior violation of 192(1)(c) punished as a felony.
Felony DUI with Probation Granted
In a fourth offense DUI case, you may be eligible for felony probation instead of prison. The minimum punishment with probation is 180 days with a maximum sentence of 1 year in jail. To determine if you are eligible the court will look to California Rule of Court section 4.414 which lists the probation eligibility factors:
- Seriousness and circumstances of the crime compared with similar crimes
- If defendant was armed
- Vulnerability of the victim
- Degree of monetary loss to the victim
- If crime was carried out in a criminally sophisticated manner
- Defendant’s prior record, as an adult or juvenile
- Defendant’s willingness to comply with terms of probation
- Likely effect of imprisonment on the defendant and his her dependents
Felony DUI Probation
If you are granted felony probation, it will be for a period 5 years. The standard felony DUI probation terms include: no driving with any alcohol in your system, no refusal of chemical tests, submit to search and seizure for blood/breath, enrolling and completing the DUI class, paying fines/fees, paying restitution, obeying all laws, don’t drive unless properly licensed and insured, completing your jail sentence, and showing up for all court ordered appearances. It may also include regular alcohol testing, probation searches, regular contact with your probation officer, AA meetings, community service and installing an ignition interlock device.
Felony Probation Consequences
You can still go to prison if you violate probation up to the maximum sentence of 3 years for a felony DUI. You must pay for felony probation supervision. Felony probation restricts your travel out of the state unless you get your probation officers permission. It also only allows you to move to another jurisdiction or state if the other jurisdiction or state accepts your probation transfer. You will be required to keep and maintain employment and participate in counseling if required by probation.
10 Year License Revocation
California Vehicle Code §23597 gives judges the power to revoke a license if a person has two or more priors within ten years of a new offense. The factors that are considered by the judge in imposing the 10-year revocation are:
- Person’s level of remorse for the acts
- Period that has elapsed since the person’s previous convictions
- Person’s blood-alcohol level at the time of violation
- Person’s participation in an alcohol treatment program
- Person’s risk to traffic or public safety
- Person’s ability to install a certified ignition interlock device
If the 10-year revocation is imposed, it may be possible to get your license back after just five years if you avoid any convictions for DUI’s or suspended license charges and you complete your DUI school.
Habitual Traffic Offender Designation
On fourth offense DUI cases the judge will designate the DUI driver a habitual traffic offender. Once this designation is in place, all subsequent driving offenses are subject to significant penalties, including lengthy jail sentences. If the defendant has been designated a habitual traffic offender, a first time driving violation would result in a mandatory sentence of 30 days in jail in addition to a $1,000 fine. This jail time would be consecutive to any other sentence imposed for the driving conduct. For a second or subsequent violation of the habitual traffic offender law, the defendant would be sentenced to a mandatory 180 days in jail and a $2,000 fine. Again, the 180 days would be consecutive to any other sentence imposed.
No Alcohol Terms
In fourth offense cases the court will order a “no alcohol” term as part of probation. This means you will be on search and seizure for alcohol including on your person, vehicle, or home. You will also be prohibited from using or possessing alcohol and will not be permitted to be anywhere where alcohol is the primary item of sale like bars. You may also be randomly tested for alcohol by the probation department.
Fourth Offense DUI school
If you are convicted of a 4th offense DUI, you will be required to attend an 18 month DUI program which costs approximately $1800. All programs have payment plans. To sign up for the DUI class you will need your court paperwork or an H6 DMV printout.
Ignition Interlock Requirement
If you are convicted of a fourth offense DUI, you will be required to install an ignition interlock in your vehicle for a period of 3 to 5 years. This device will not let you start or continue to operate your vehicle if you have alcohol in your system. The cost of the IID varies between IID providers but it is approximately $70 to install and $60 a month.
In felony DUI cases, the court will require you to do all of your sentence in actual jail. In some cases, your attorney may be able to get a combination of jail and alternative sentencing or treatment.
DUI Fines and Fees
You can expect to pay approximately $2000 or more if you are convicted of a felony DUI. Most counties will allow you to make payments. If you fail to make payments, you will be referred to collections, your license will be suspended, and you will violate your probation.
Violating DUI Probation
You will violate probation if you fail to comply with the court ordered probation terms including staying in contact with your probation officer, failing to enroll/complete DUI classes, appear in court when ordered, or completing your jail sentence. If felony probation is violated, the judge will issue a no bail warrant and you will be arrested and brought back to court.
Court Punishment 4th Offense DUI
Probation – 180 days to 1 year, including mandatory jail time
Split Sentence – 16 months, 2 years, 3 years
State Prison – 16 months, 2 years, 3 years
$390 to $1000
Ignition Interlock Device
Up to 5 years
Probation – 3 to 5 years – Formal
Split Sentence – Post Release Community Supervision
State Prison – Parole
1- 90 days for DUI within 5 years
4 to 10 year Revocation
23578 – Driving with BAC .15%+
23578 – Driving with BAC .20%+
23577 – Refusal to take chemical test – Add 10 days jail
23582 – Excessive Speed – Add 60 days jail
23572 – Child under 14 in car – Add 30 days jail
DMV Suspension Period 4th Offense DUI
1 year, No Restriction Eligibility
0.08 or higher
1 year, Restriction Eligible after 180 days from court conviction
3 year, No Restriction Eligibility
Even if you are convicted of a fourth offense DUI, you can still get your case expunged if you don’t go to state prison. A felony DUI is a wobbler that can be reduced to a misdemeanor and then expunged. An expungement allows you to lawfully answer that you have never been convicted of a crime. To be eligible, you must have successfully completed probation, paid all your fines, and completed the terms of your probation.
You don’t have to plead guilty, contact our office today for a free same day consultation
Because you have so much to lose, you need the most experienced and aggressive DUI Defense attorneys on your side. Whether it’s defending you in trial or negotiating for dismissal, you can count on us. Our experienced and aggressive negotiating efforts usually result in better outcomes for our clients including reduced charges, lesser jail days, and smaller fines. Call our office today at (916) 939-3900 to speak directly to an attorney about your Felony DUI case. We are open 24/7/365 to answer your questions.
Felony DUI Law – VC23550
(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.
Felony DUI Law – VC23550.5
(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:
(1) A prior violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.
(2) A prior violation of Section 23153 that was punished as a felony.
(3) A prior violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony.
(b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 23152 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).
(c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department under paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
(d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350.