How Do Prior DUIs Affect California DUI Sentences?

A prior conviction for driving under the influence (“DUI”) in California can affect the sentence for a future DUI in many ways. If the old DUI conviction meets certain legal requirements, the judge can consider it during sentencing. As such, a person with two, three, four, or more DUI convictions may find themselves facing serious penalties. 

This article discusses when California judges can consider prior DUI convictions during the DUI sentencing process and when they cannot. Finally, it explains how a Marin County DUI defense attorney can help. 

Which Convictions Count as “Prior DUIs” in California? 

Under California law, to be considered a prior DUI conviction, the earlier case must be a certain type of case and must have happened during a certain period of time. 

First, as to timing, generally, the conviction must have happened in the past ten years. This requirement is so important that we’ll discuss it further in the next section. 

Second, the DUI must be of a certain type. The DUI-related crimes that can be considered as prior DUIs include: 

• A DUI under Section 23152 of the Vehicle Code. This includes “standard” DUIs, prescription drug DUIs, and those involving a combination of drugs and alcohol. 
• A DUI causing injury as listed in Vehicle Code § 23153
• A “wet reckless” DUI under Vehicle Code § 23101.5
• Vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under Penal Code § 191.5

Note that both misdemeanor and felony convictions for the above crimes can be treated as DUI priors. 

Crimes that generally don’t meet the criteria to be prior DUI convictions include a “dry reckless,” an under-21 DUI conviction with a blood alcohol concentration (BAC) of 0.05% or higher, or a juvenile offense. 

How Far Back Can California Courts Go When Looking for Prior DUI Convictions?

Generally, California law limits prior DUI convictions to the past 10 years. Importantly, the 10-year period runs from the date of the DUI incident, not the arrest date or the conviction date.

Here’s how this works in real life: Assume that Derek committed and was arrested for a qualifying DUI on July 4, 2017. He was convicted on December 31, 2017. Under current California law, the 10-year “lookback” period for the July 2017 incident ends on July 4, 2027. The fact that Derek was not convicted until December 2017 is irrelevant. So, if Derek commits another qualifying DUI on July 3, 2027, the July 2017 incident will be a DUI prior because it falls within the 10-year lookback period. However, if Derek engages in DUI conduct on August 10, 2027, the July 2017 incident can no longer be used against him because the 10-year period has expired. 

Similarly, when multiple DUI offenses are involved, the 10-year lookback is measured from the date of the earliest offense to the date of the newest. So, now assume that Derek engaged in DUI conduct in July 2013, January 2018, July 2022, and June 2027. Technically, each of these incidents is within 10 years of another incident. However, California courts have said that in situations such as this, the July 2013 case cannot be used as a prior for the June 2027 case. 

Note that even when an older DUI is not treated as a DUI prior, it is still part of your criminal and driving history. As such, the judge can consider it when making decisions about bail, treatment requirements, probation, and whether you should be sentenced at the lower or higher end of the sentencing range.

How Does California Increase Penalties for a Second, Third, or Fourth DUI? 

Generally, each qualifying DUI after the first increases the range of punishments and other consequences.

A Second DUI

When a driver commits a second DUI offense within 10 years of another qualifying incident, the minimum punishment increases from 96 hours to at least 90 days. (This assumes that probation is not granted.) Judges may also impose a longer DUI education term for a second DUI in addition to any fines, penalties, or driver’s license restrictions. 

A Third DUI

For a third DUI, the minimum punishment without probation increases to at least 120 days of incarceration. Additionally, the defendant must lose their driver’s license for three years and be listed as a habitual traffic offender for three years. The court may also increase DUI-education requirements to 30 months. 

A Fourth DUI (and beyond)

The fourth DUI within a 10-year period is a “wobbler,” so it can be prosecuted as a misdemeanor or felony. If charged as a misdemeanor, the minimum non-probation jail term jumps from 120 to 180 days. When charged as a felony, the minimum time is 16 months. The mandatory license revocation period increases from three to four years. Also, after three DUIs, California law gives the sentencing judge the authority to revoke the defendant’s driving privileges for 10 years. 

Frequently Asked Questions About the Effect of Prior DUI Convictions 

1. Does driving a boat under the influence count as a prior DUI? 

Yes. Crimes under the Harbors and Navigation Code, such as boating under the influence and boating under the influence causing injury, can be considered during DUI proceedings. 

2. Does an expunged DUI still count as a prior DUI in California?

Yes. Current California law allows courts to consider dismissed convictions during sentencing. 

3. Can DUIs from other states be used as priors in California?

Yes, but not automatically. The other state’s DUI laws must be “substantially similar” to California’s. In other words, the laws must be so close that it would be fair to treat the outside conviction as a California DUI. 

4. Will I have to complete DUI school again after a second (or third or fourth…) DUI?

Usually, yes. California law requires judges to make individualized determinations about the need for and duration of a DUI program, so it is a possibility. 

Can a Marin County DUI Defense Attorney Help Me Challenge the Use of Prior DUI Convictions?

While California law treats repeated DUIs very seriously, there are ways to fight back. An experienced DUI defense attorney can help you in many ways, including: 

• Disputing the accuracy and completeness of the conviction records
• Arguing that the alleged earlier DUI incident does not qualify as a prior under California law 
• Challenging the use of out-of-state DUI offenses
• Negotiating for reduced charges that cannot be used as priors in the future 

If you have been charged with a DUI in Marin County, contact Brownstein Law Group. We’ll fight aggressively to get a fair outcome for you or your loved one. Schedule a consultation today by calling 415-795-9059 or using our online contact form.