5th DUI in California – Penalties & Best Defense Strategies

A “5th time DUI” is when a California driver gets convicted of driving under the influence of alcohol and has four prior convictions for certain DUI crimes. Under state law, if a driver is convicted of DUI and has three or more prior drunk driving convictions within a ten-year period, he/she will likely face a felony DUI charge.

The possible penalties for a 5th conviction of drunk driving include:

1. custody in jail or prison for up to three years,
2. a fine between $390 and $1,000,
3. a designation as a “habitual traffic offender” for three years,
4. a four-year revocation of the DUI offender’s driving privileges by the Department of Motor Vehicles, or DMV,
5. installment of an ignition interlock device (IID), and/or
6. completion of DUI school.

Note that California DUI offenses are “priorable” offenses. This means that the penalties for the crime increase with every subsequent DUI. “Prior convictions” include any combination of the following:

• Vehicle Code 23152a VC (driving under the influence),
• Vehicle Code 23152b VC (driving with an excessive blood alcohol concentration, or BAC),
• Vehicle Code 23153 VC (DUI with injury) which includes negligent and gross vehicular manslaughter under Penal Code 191.5 PC,
• Vehicle Code 23103.5 VC (a California “wet reckless“),
• out-of-state convictions that, if committed in California, would be a violation of one of the aforementioned laws, and
• previously expunged convictions for any of the above offenses.

DUI Defenses

A defendant can raise a legal defense to challenge a 5th DUI conviction. Some common defenses include:

• the accused was not intoxicated in the 5th DUI case,
• the police did not follow proper procedures, and/or
• there was an error with a prior DUI conviction.

Our California DUI attorneys will highlight the following in this article:

• 1. How does a prosecutor prove that a person is guilty of a fifth-time DUI?
• 2. Are there legal defenses?
  • 2.1. Not under the influence
  • 2.2. Police did not follow proper procedures
  • 2.3. Error with a prior offense
• 3. What are the penalties for repeat offenders?
• 4. Can a 5th DUI conviction get expunged?
• 5. Are there related crimes?
  • 5.1. Felony DUI
  • 5.2. Watson murder
  • 5.3. DUI causing injury (Vehicle Code 23153)

1. How does a prosecutor prove that a person is guilty of a fifth-time DUI?

California law says that a person is guilty of felony DUI if he/she is convicted of at least three DUI offenses within ten years of a first DUI.

Prosecutors, then, must prove the following to successfully convict drivers of motor vehicles with felony DUI:

1. the driver was driving while under the influence or with a BAC of 0.08% or higher, and
2. the driver received at least three prior convictions under the vehicle code sections listed above within the last ten years.

This ten-year period is often called a “lookback” or “washout” period. Note that it involves:

• the date that an offense was committed, and not
• the date of a conviction.¹

A prosecutor can use any of the following to show that an accused received a prior DUI:

• court records,
• DMV records (for example, records of a prior driver’s license suspension for DUI), and
• certificates of completion for any court-ordered treatment programs.

Note that in comparison to a felony DUI arrest, a first DUI or even second DUI charges:

• are misdemeanor DUIs, and
• typically result in misdemeanor charges.

2. Are there legal defenses?

Defense attorneys and DUI lawyers draw upon certain legal strategies to challenge DUI charges for repeat offenders. These include showing that:

1. the accused was not under the influence for the 5th case.
2. the police did not follow proper procedures in the arrest.
3. there was an error with a prior offense.

2.1. Not under the influence

Defendants can always try to contest a 5th DUI or even a 4th DUI charge by asserting that he/she was not intoxicated. If successful, then the accused:

• avoids a repeat conviction, and
• there is no violation of a drunk driving law.

2.2. Police did not follow proper procedures

An accused can challenge any DUI charge by showing that the police failed to follow proper procedures during an arrest. For example, a defendant can say that authorities errored when performing:

• a breath test,
• a chemical test or blood test, or
• field sobriety tests.

2.3. Error with a prior offense

A DUI lawyer can review an accused’s past DUI cases to see if there were any procedural or evidentiary errors in the case. If there were, then the attorney might be able to get a prior conviction either:

• reduced, or
• dropped altogether.

This tactic might not stop a 5th conviction, but it might get rid of a prior charge to help prevent a felony conviction.²

3. What are the penalties for repeat offenders?

When a felony DUI stems from multiple prior DUI convictions, the specific punishment will vary depending on:

1. the facts of the case,
2. the level of the driver’s BAC,
3. the number of prior DUIs, and
4. any other aggravating factors.³

With that said, some common penalties include:

• prison or jail time for up to three years,
• a fine between $390 and $1,000,
• a designation as a “habitual traffic offender” for three years,
• a four-year revocation of the DUI offender’s driving privileges,
• installment of an ignition interlock device (IID), and/or
• completion of DUI school.⁴

4. Can a 5th DUI conviction get expunged?

Most felony DUIs cannot get expunged.

Expungements are not available if a convicted party must serve a prison term. Therefore, there are no expungements if the DUI offense results in the defendant doing time in state prison.

5. Are there related crimes?

There are three crimes related to 5th time DUI. These are:

1. felony DUI,
2. Watson murder, and
3. DUI causing injury.

5.1. Felony DUI

As stated above, a party can get charged with felony DUI if he/she has multiple DUI convictions within ten years. A felony DUI charge may also result if the driver:

• has a prior felony DUI, or
• caused an accident in which another person is injured or killed.

Note that in most other cases, DUI is charged as misdemeanor DUI.

5.2. Watson murder

“Watson murder” is a form of Penal Code 187 second-degree murder. It can be charged when someone with a prior California DUI conviction kills someone while driving under the influence.

Note that any prior DUI conviction can be used to convict a person of this crime. Unlike a five-time DUI, it is not necessary for there to be multiple prior convictions.

5.3. DUI causing injury (Vehicle Code 23153)

California Vehicle Code 23153 VC defines the crime of “DUI causing injury” as:

1. driving under the influence, and
2. causing bodily injury to another person as a result.

The crime does not require that the defendant committed any DUI crimes prior to the incident that caused injury.

For additional help…

For additional guidance or to discuss your case with a DUI defense attorney, we invite you to contact us at Shouse Law Group. Our law office provides free consultations and we represent clients throughout California – including those in Los Angeles and Orange County.

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