§ 23540 VC – Second DUI Offense Within 10 Years

Vehicle Code § 23540 VC is a California law that adds extra penalties if you get a second DUI conviction within ten years of a prior DUI conviction. The law also imposes extra penalties if the second conviction is for drunk driving causing injury or a “wet” reckless that was plea bargained down from driving under the influence.

The full language of the code section reads as follows:

23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 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 suspended by the department pursuant to paragraph (3) 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) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(c) This section shall become operative on September 20, 2005.

Examples of a DUI-2nd

• driving with a blood-alcohol level of 0.15 within a three-year period of a drunk driving conviction.
• getting a second offense for DUI within two months of a first offense.
• receiving a drunk driving conviction seven years after a conviction for driving with a blood alcohol concentration (BAC) of .08.

The following chart compares the penalties for a DUI-2nd to a first- and third-time offense.

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 California DUI attorneys will highlight the following in this article:

• 1. When does VC 23540 apply?
• 2. What are the penalties?
• 3. Are there legal defenses in these DUI cases?
• 4. Are there immigration consequences?
• 5. Can I get an expungement?
• 6. Does a second conviction affect gun rights?
• 7. Are there related offenses?
• Additional Resources

1. When does VC 23540 apply?

California Vehicle Code 23540 VC applies when you pick up a second DUI conviction in ten years.¹ Predictably, it triggers harsher penalties than just a first-time driving under the influence conviction.

VC 23540 still applies if your past conviction was for a wet reckless (which is reckless driving with a note that alcohol was involved).²

2. What are the penalties?

A second DUI conviction in 10 years is a California misdemeanor. It carries:

• 3 to 5 years of summary probation,
• 90 days to 1 year in jail (that often gets reduced to 96 hours),
• $390 to $1,000,
• DUI school (SB38),
• ignition interlock device (IID) in your vehicle for 1 year,³ and
• a driver’s license suspension of up to 2 years.⁴

3. Are there legal defenses in these DUI cases?

Here at Shouse Law Group, we have represented literally thousands of people arrested for second-time drunk driving in California. In our experience, the following three defenses have proven very effective with prosecutors and judges at getting these charges reduced or dismissed.

You Have No Prior DUI

If prosecutors were mistaken about you having a prior drunk driving conviction, then your charge would be reduced to a first-time DUI. Common evidence in these cases is court records and police reports.

You Were Not Under the Influence

There are many ways we may be able to show that you were not intoxicated or driving with an illegal BAC. For example, perhaps:

• the breathalyzer was defective,
• your blood sample was contaminated, and/or
• you had a medical condition that caused a false BAC result.

If we can show prosecutors that you were not under the influence of alcohol or drugs, then the DUI charge should be dropped. (Though you may still have a ticket for the underlying moving violation that led to the traffic stop.)

Police Did Not Follow Proper Procedures

Perhaps the police did not have reasonable suspicion to pull you over. Or perhaps they failed to give you proper instructions for the field sobriety tests. Or maybe they did not administer the breathalyzer correctly.

If law enforcement committed misconduct in your case, prosecutors will have trouble proving guilt beyond a reasonable doubt. They may then agree to dismiss the charge or reduce it to a lesser one.

4. Are there immigration consequences?

A conviction for a DUI-2nd will generally not have negative immigration consequences. However, if you were found with controlled substances, that could potentially trigger deportation proceedings.

5. Can I get an expungement?

Yes. A second conviction of driving under the influence can be expunged if you successfully complete:

1. any probation time imposed, and/or
2. any jail time imposed.

6. Does a second conviction affect gun rights?

No. A second-time drunk driving conviction should not affect your ability to

• own,
• possess, and
• buy

a firearm or ammunition in California.

7. Are there related offenses?

Driving with a BAC of .08 or Higher

California Vehicle Code 23152b VC makes it a crime to drive a motor vehicle with a BAC of 0.08% or higher. It does not matter if you are unimpaired and are driving safely.

Underage DUI with a BAC of .05% or Higher

California Vehicle Code 23140 VC makes it an infraction for anyone under 21 to drive with a BAC of .05% or higher. Minors can be convicted under code section 23540 if convicted of a second drunk driving offense.

DUI Causing Injury

California Vehicle Code 23153 VC makes it a crime to drive under the influence and cause bodily injury to another person as a result. Prosecutors may charge this as either a misdemeanor or a felony.

Additional Resources

If you are struggling with alcoholism or substance abuse addiction, you can find help here:

• Alcoholics Anonymous (AA) – A 12-step program to overcome alcohol addiction.
• Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Recovery Centers of America – Treatment centers in seven states.
• SMART Recovery – Group therapy for young people struggling with addiction.
• Partnership to End Addiction – Information on how to find drug addiction treatment.

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Legal References:

1. California Vehicle Code 23540a CVC.
2. LaChance v. Valverde (2012) 207 Cal.App.4^th 779.
3. California Vehicle Code 23540a CVC.
4. California Vehicle Code 23540b CVC.