1st Time Misdemeanor DUI in California: What to Do Next

A first offense DUI in California is a misdemeanor typically punished by 3 to 5 years of probation, $390.00 to $1000.00 in fines plus penalty assessments, DUI school, a 6-month driver’s license suspension, and installation of an ignition interlock device. Some counties also impose a short amount of jail time or work release.

But first-time DUI defendants who do not get an IID restricted license may endure up to a six-month driver’s license suspension unless:

• The driver requests a California DMV hearing and wins it, AND
• The driver is not convicted of a DUI in court.¹

All in all, the consequences of a first-time DUI conviction under California law can include:

• 3 to 5 years of informal misdemeanor probation (typically 3 years);²
• DUI school ranging from 3 to 9 months (typically 3 months);³
• Fines and penalty assessments totaling between $1,500 and $2,000 (depending on the county);⁴
• A 6-month driver’s license suspension (though people may be able to get a restricted license or drive immediately with an IID restricted license);⁵
• Installation of an ignition interlock device for six months (unless the defendant chooses not to drive);
• Up to 6 months in jail (depending on the county);⁶
• In some counties, work release;
• Attending a victim impact panel; and
• Indirect consequences (such as increased car insurance premiums and harsher penalties if the defendant gets convicted of a subsequent DUI).

A DUI arrest triggers two types of legal proceedings

Being arrested for driving under the influence of alcohol or the influence of drugs subjects the driver to two sets of proceedings:

1. A jury trial or a bench trial in a California criminal court, and
2. A California DMV license suspension hearing.⁷

The California DMV cannot fine a defendant or put him or her in jail. It can only suspend the defendant’s license. It will suspend a license automatically unless the defendant timely requests – and then prevails at – a hearing.

But getting a DMV hearing is not automatic. The defendant must request one within 10 days of being arrested.

Court-ordered license suspension

A court can also order a suspension of the defendant’s license. It can do so even if the defendant wins at a DMV hearing. A court can also sentence the defendant to criminal penalties such as fines, jail, and/or probation.

Fortunately, it is possible to fight a first-time drunk driving arrest and license suspension.

First vs. second and third convictions

This chart compares the penalties of a first DUI, second DUI, and third DUI.

CALIFORNIA PENALTIES	1st DUI in 10 years	2nd DUI in 10 years	3rd DUI in 10 years
Jail	Up to 6 months	96 hours to 1 year	120 days to 1 year
Informal Probation	3 to 5 years	3 to 5 years	3 to 5 years
Fines	$390 to $1,000	$390 to $1,000	$390 to $1,000
License Suspension	6 or 10 months	2 years	3 years
Ignition Interlock Device	6 months	1 year	2 years
DUI School	3 or 9 months	18 or 30 months	30 months

Our lawyers include former prosecutors and law enforcement officers. We know how both the police and the DMV put together their cases. And we know how to fight back.

In this article, our California DUI defense lawyers will discuss 8 critical things to know about a first DUI:

• 1. What happens when you get a DUI in California?
• 2. What are the penalties for a first-time DUI in California?
• 3. Can I get a restricted license after a first-time California DUI?
  • 3.1 Requirements for a restricted license
  • 3.2 Will I have a permanent criminal record?
  • 3.3 How do I get an expungement of a first-time DUI conviction?
  • 3.4 What are the advantages of a DUI expungement?
• 4. What aggravating factors can increase the penalties for a first-time DUI?
• 5. What are the penalties for a first-time DUI with injury?
  • 5.1 Consequences of misdemeanor DUI with injury
• 6. Alternative sentencing for first-time DUI in California
• 7. Indirect costs of a first-time California DUI
• 8. How can a lawyer help fight a first-time DUI in California?

1. What happens when you get a DUI in California?

A drunk driving arrest triggers up to two legal proceedings against the driver:

1. A criminal trial to determine whether the driver has committed a crime, and
2. An optional California DMV admin per se hearing, to determine whether the defendant should be allowed to keep his/her license.

Suspension of a license is the only penalty a DMV hearing officer can decide. He or she cannot impose any other penalties.

Note, too, that the DMV decision is separate from and cannot affect the criminal case or possible criminal penalties.

The DMV hearing is not automatic

Getting a DMV hearing is not automatic (and is not required). A defendant who wants to contest the automatic suspension of his/her license after a first-time DUI must request a hearing.

A driver has just 10 days from his or her arrest to request a DMV hearing. If the driver does not request a hearing within 10 days — or if the driver loses at the hearing — his/her driver’s license will be suspended for 6 months.

Court-imposed license suspension

The criminal trial is separate from the DMV hearing. The judge in the criminal trial can also order a license suspension, as discussed in Section 2, below.

So to keep from losing driving privileges, someone charged with drunk or drugged driving needs to:

1. Request an administrative hearing at the DMV and prevail at that hearing, AND
2. Not be found guilty of (or plead guilty or no contest to DUI) in criminal court.

Appearance in court is mandatory

Unlike a DMV license suspension hearing, a criminal court case is not optional. It is up to the prosecutor whether to charge the defendant and on what counts.

Once the defendant has been charged, he/she and/or his or her attorney must attend all proceedings. This includes the arraignment, at which the defendant will enter a plea of guilty, not guilty or nolo contendere (no contest).

Other differences between a DUI court case and a DMV license suspension hearing

Unlike the DMV, a court can impose criminal penalties in addition to a suspended license. Such penalties can include probation, a fine and/or jail time.

And, as noted above, a victory (or loss) at a DMV hearing has no effect on the criminal court proceedings.

But, the outcome of a trial can affect the disposition by the Department of Motor Vehicles under California DUI laws.

If a driver is found “not guilty” of DUI in court, the DMV will usually reverse a license suspension. It will do so if the DMV hearing officer determines that the court decision amounts to an actual acquittal (as opposed to winning on a technicality).

To learn more about the process for a DUI court case and DMV license suspension, please see our articles on:

• The court process in California DUI cases, and
• DMV hearings in California DUI cases.

2. What are the penalties for a first-time DUI in California?

Criminal penalties for a first-time misdemeanor DUI vary by California county. But they can include:

• 3 to 5 years of informal probation (typically 3 years);⁸
• DUI school ranging from 3 to 9 months (typically 3 months);⁹
• Fines and penalty assessments totaling between $1,500 and $2,000 (depending on the county);¹⁰
• A 6-month driver’s license suspension (but it may be possible to get a restricted license or an IID restricted license);¹¹
• In some counties, up to 6 months in jail;
• Up to 6-months of having an IID in the driver’s car;
• In some counties, work release, and.¹²
• Inability to travel to Canada (unless the defendant takes special steps with Canadian immigration authorities).

Note that a driver can sometimes get the charge reduced to reckless driving or another lesser offense.

If this happens, there will be no court-ordered license suspension. (Though the DMV may still order a suspension if the driver has accumulated enough points on his or her DMV driving record).

Probation instead of jail time

Depending on the county where a defendant is convicted, a court may order probation for a first-time drunk or drugged driving conviction. If sentenced to probation, the defendant will spend little or no time in jail.

Mandatory conditions of probation

But the court must order the following conditions of DUI probation¹³:

• The defendant may not drive with any measurable amount of alcohol in his/her blood;
• The defendant may not refuse to submit to a DUI chemical test if arrested for a subsequent drunk or drugged driving offense;
• Installation of an IID in the defendant’s car(s) for 6 months; and
• The defendant may not commit any additional crime.

Optional conditions of probation

Depending on the circumstances, the court may also impose the following conditions of DUI probation:

• Attendance at Alcoholics Anonymous(AA) or Narcotics Anonymous (NA) meetings;
• Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program; and/or
• Victim restitution (if the defendant caused an accident while driving under the influence)

What happens if I violate the terms of my DUI probation?

A driver on DUI probation who violates any of the foregoing conditions may have his/her probation revoked. The judge can then reinstate the sentence, which will usually include time in jail.¹⁴

For a more complete discussion on the conditions of DUI probation, please see our page on California DUI probation violations.

Will I lose my license for a first-time DUI in California?

After a DUI arrest, the officer will confiscate the arrestee’s license. The officer will then issue a pink temporary license, which is good for 30 days. The original license will be returned to the California Department of Motor Vehicles.

The DMV will then suspend the license for an “administrative per se” violation (“APS”). This is a fancy way of saying that a DUI violates the conditions of having a driver’s license.

The driver then has 10 days to request a hearing to challenge the suspension. As long as this request is timely made, the DMV will put a temporary hold/stay on the license suspension.

If no hearing is requested, the DMV will automatically suspend the driver’s license.

Note that defendants may be able to get a restricted license to drive to and from work or an IID restricted license to drive anywhere. Scroll down to section 3 for more information.

How easy is it to win a DMV license suspension hearing?

The chances of prevailing at a DMV hearing are typically slim. But winning is not impossible.

What factors will the DMV consider?

During the license suspension hearing, only the following factors will be considered:

1. If the driver completed a chemical test:

• Did the officer have reasonable cause to believe the driver was under the influence?
• Did the driver have a blood alcohol content (BAC) above the legal limit when he or she drove?

2. If the driver refused or failed to complete a chemical test:

• Did the officer have reasonable cause to believe the driver was under the influence?
• Was the driver placed under lawful arrest?
• Did the officer advise the driver that if he/she refused or did not complete a DUI test, his/her driving privilege would be:
  • Suspended for one year, or
  • Revoked for two or three years?
• Did the driver then refuse to submit to or failed to complete a blood test or breath test, or (if applicable) a urine test?

Learn more about California’s legal limits for alcohol

For more on California’s legal limits for alcohol, please see our articles:

• Adult DUI “per se” in California (BAC of .08% or higher),
• Underage DUI in California (BAC of .05% or higher),
• Violation of California’s “zero tolerance” law for underage drivers (BAC of .01% or higher), and
• DUI “per se” for commercial and passenger drivers (BAC of .04% or higher).

How does a driver get his/her driving privilege restored?

Once the suspension period has ended, the driver must file an SR22 form with the DMV and pay a $125 reinstatement fee.

The individual may be required to maintain an SR22 for a period of three (3) years following reinstatement.

3. Can I get a restricted license after a first-time California DUI?

Yes. People whose license was suspended for driving under the influence offense can apply for a restricted non-commercial license, unless:

• A court specifically disallows it (which is rare), or
• The driver’s license was suspended for refusing to take, or failing to complete, a chemical test.¹⁵

When can I apply for a restricted license?

There are now two types of restricted licenses, each with its own rules:

1. an IID restricted license
2. a restricted license

IID restricted license

An IID restricted license allows the defendant to drive anywhere as long as the driver keeps an ignition interlock device (IID) in the car. And IID is like a breathalyzer that keeps the car from starting if the device detects alcohol.

The defendant may request an IID restricted license immediately. If the DMV suspends the person’s license following an arrest, the defendant needs to use the IID for four (4) months. If the defendant is convicted of DUI in criminal court, the defendant would need to use the IID for six (6) months. Note that if the driver’s blood alcohol concentration is .2 or higher, then the IID restricted license is extended from six to ten (10) months.

restricted license

A driver may request a restricted license after his/her regular license has been suspended for 30 days.

A restricted license enables the driver to:

• Drive to/from a DUI treatment program,
• Drive to and from work or during work,
• Drive him-/herself or other family members to obtain medical care for any serious medical problem, and/or
• Drive a minor dependent to and from school if no public or school bus transportation is available.

Drivers typically seek a restricted license if their DUI charges are pending, the DMV has suspended their license, and they do not wish to use an IID.

Requirements for a restricted license or IID restricted license

The DMV requires drivers to file an SR22 (financial responsibility) form in order to get a restricted license or IID restricted license.

Other conditions for getting a restricted license or IID restricted license in California include:

• Proof of enrollment in a DUI treatment program, and
• Payment of a $125 reissue fee (or $100 if the driver was under age 21 and was suspended under California’s “Zero Tolerance” law for underage drivers).¹⁶

4. Will I have a permanent criminal record?

People convicted of DUI will have a permanent criminal record unless they get an expungement of a DUI conviction in California. Expungement is available to anyone who was sentenced to and successfully completed DUI probation.¹⁷

5. How do I get a first-time DUI conviction expunged in California?

To get an expungement, an individual must file a petition with the court. A judge will then review the petition to confirm eligibility.

If the judge grants the DUI expungement, the defendant will be allowed to withdraw his or her plea of guilty or no contest. The defendant will then enter a new plea of “not guilty” and the case will be dismissed.

What are the advantages of a DUI expungement?

The main benefit of expunging a DUI conviction is for employment purposes.

California’s “ban the box” law already prohibits an employer from asking about criminal convictions during the interview phase.

But once a conditional job offer has been made, the employer may legally ask about convictions. Normally, a conviction for driving under the influence must then be disclosed. But an expunged conviction does not need to be disclosed.¹⁸

What happens if an employer learns about my expunged conviction?

A prospective (or current) employer may not discriminate against an employee based on an expunged conviction. So if a DUI has been expunged, an employer may not take it into account when considering a candidate for employment or promotions.

Other advantages to an expungement

In addition to prohibiting employment discrimination, an expungement can also:

• Make it easier to obtain a state professional license;
• Prevent the conviction from being used to impeach someone’s credibility in court (unless he or she is the defendant being prosecuted in the subsequent case);¹⁹ and
• In some cases, helping an individual avoid immigration consequences such as deportation.

6. What aggravating factors can increase the penalties for a first-time DUI?

Certain “aggravating factors” can increase the penalties for a drunk driving conviction in California. These aggravating facts applying even when it is someone’s first DUI.

The most common of these factors include:

• Having a blood alcohol content (BAC) of 0.15% or higher (or less in
  some counties);²⁰
• Refusing to submit to a chemical test; ²¹
• Causing an accident; ²²
• Driving at excessive speeds (defined as more than 30 mph over the posted limit on a highway or more than 20 mph over the limit on a street); ²³
• Having children under the age of 14 in the car (also known as Penal Code 273a child endangerment);²⁴ or
• Being under 21 at the time of the offense.²⁵

The enhanced penalty that applies depends on both the existence of these factors and the defendant’s criminal history. In particular, the court will look at whether the defendant has prior DUI convictions.

7. What are the penalties for a first-time DUI with injury?

DUI with injury, Vehicle Code 23153 VC, can be charged when the defendant’s drunk or drugged driving physically injures a third party.²⁶

The third party can be a pedestrian, a cyclist, a driver or passenger in another car, or a passenger in the DUI driver’s own vehicle.

DUI causing injury is a California “wobbler” offense. A “wobbler” is a crime that may be charged as either a misdemeanor or a felony, depending on:

1. The circumstances of the accident, and
2. The defendant’s criminal history (if any).

When VC 23153 is the defendant’s first DUI offense, it will generally be prosecuted as a misdemeanor. But if the circumstances warrant, it can be charged as felony DUI.

7.1 Consequences of misdemeanor DUI with injury

As a misdemeanor, DUI with injury under California Vehicle Code 23153 can be punished by:

• Three to five years of summary probation,²⁷
• Five days to one year in county jail,²⁸
• $390-$5,000 in fines,²⁹
• A three, 18, or 30-month alcohol program,³⁰
• A one to three-year driver’s license restriction,³¹ and
• Restitution to all injured parties.³²

7.2. When can DUI with injury be charged as a felony?

Circumstances that warrant charging Vehicle Code 23153 as a felony include:

• Serious injuries or death to another person,
• A prior felony DUI conviction, and/or
• Multiple prior convictions for driving under the influence or a so-called “wet reckless.” 

7.3. Punishment for felony DUI with injury

When Vehicle Code 23153 is prosecuted as a felony, penalties for DUI with injury can include:

• Sixteen months to ten years in the California State Prison,
• An additional and consecutive one to six-year prison sentence for injured survivors, depending on:
  • How many third parties were injured,³³ and
  • The extent of such third parties’ injuries;³⁴
• A possible “strike” on the defendant’s criminal record under California’s Three Strikes law;³⁵
• Between $1,015-$5,000 in fines,³⁶
• An 18 to 30-month alcohol/drug program,³⁷ and/or
• Restitution to all injured parties.³⁸

8. Alternative sentencing for first-time DUI in California

“Alternative” sentencing options are sometimes available to people convicted of a first DUI offense in California. Such sentences are alternatives to a county jail or California state prison sentence.

Such sentencing alternatives can include:

• Cal-Trans roadside work,
• Community service,
• Electronic monitoring or house arrest,
• Residence in a sober-living environment,
• Incarceration in a private or city jail, such as the Hawthorne Jail.³⁹

9. Indirect costs of a first-time California DUI

In addition to criminal fines, costs associated with a first-time DUI conviction can include:

• Towing/impound fee: over $200 (depending on impound location);
• Cost of a DUI treatment program: over $600 (depending on the length and location of the program);
• Court costs: over $800 (depending on the specific court and the severity of the offense);
• Lawyer fees: varies depending on the complexity and severity of the offense;
• Mandatory contribution to California Victim Compensation Program: $500
• DMV license reinstatement fee: $125
• Insurance premium increase: several thousand dollars (depending on insurer and type/level of insurance);
• Cost of installing an ignition interlock device (IID) (if required by the court): $75-$100 for installation plus approximately $2.50/day;
• Taxi or ride-sharing costs while license is suspended: varies; and/or
• Lost income from missing work due to time in jail and/or without a vehicle: varies.

10. How can a lawyer help fight a first-time DUI in California?

The best way to fight a first-time California DUI is for the accused to hire a lawyer as soon as he or she is arrested.

Much of what goes into preparing the best defense to a first California DUI is more effective if done promptly.

More specifically, an experienced California drunk driving lawyer will do the following:

1. Gather evidence:

An experienced criminal defense attorney will promptly locate and interview potential witnesses. The lawyer will obtain police video of the traffic stop (if available) and/or take photographs of the alleged crime scene.For example, an officer may state that she stopped a vehicle because it had a broken front headlamp. But video footage may prove that the officer never saw the front of the vehicle prior to the stop.

2. Conduct legal research and file motions

Many laws apply to traffic stops and DUI investigations. A lawyer will know what areas to research and what evidence is needed to support any motions. Common motions include a “Motion to Suppress Evidence” under California Penal Code 1538.5.a.For example, the police must have “reasonable suspicion” to pull a car over. If the officer’s suspicion was not reasonable (for instance, that headlamp was not, in fact, broken) the traffic stop may have been unlawful.

Motions are filed and heard before any trial takes place. Thus a successful motion to dismiss will often result in a dismissal of the case.

3. Negotiate

Most DUI cases do not go to trial. Rather, they end because of negotiations between the defense lawyer and the prosecutor.Such negotiations often result in:

• Complete dismissal of the case, or
• A plea bargain to a lesser charge, such as:
• A so-called “wet” reckless, ⁴⁰
• A so-called “dry” reckless, ⁴¹ or
• An exhibition of speed (also known as a “speed contest” or “speed ex.”).⁴²

An experienced California DUI defense lawyer will know what type of evidence is most likely to convince a prosecutor to dismiss the case or reduce the charges.

Arrested for a first-time DUI in California? Call us for help…

If you or someone you know has been charged with drunk or drugged driving, we invite you to contact our DUI defense attorneys for a free consultation.

Call us or complete the form on this page to discuss your case with one of our experienced California DUI lawyers.

We may also be able to help if you were charged with a DUI in Nevada.

Legal references: