DUI Penalty Enhancements in California

What Is a DUI Penalty Enhancement?

A penalty enhancement is a criminal charge that cannot stand alone; it must accompany another crime, such as drunk driving. If the main charge is dismissed, the enhancement cannot stand alone. A person cannot be convicted for just the enhancement.

Convictions for enhancements result in additional sentencing beyond the penalties for the underlying offense. In the case of DUIs, these punishments can apply even in first-time cases, and may include:

• Lengthier jail or prison terms
• Longer probationary periods and use of an alcohol-monitoring ankle bracelet
• Higher fines
• Community service
• Mandatory IID installation
• More DUI classes
• Attendance at a MADD VIP program
• Extended driver’s license suspensions
• Mandatory AA meetings
• Residential treatment

Specific penalties may apply to different enhancements, but judges in California driving under the influence cases typically have the option to include any of the above consequences.

DUI With a Minor in the Car: 23572 (VC)

Under California Vehicle Code section 23572 (VC)¹, driving with a child under 14 in the car is a serious offense with mandatory jail time, which means the judge must order jail, even for a first offense. Penalties become more severe for drivers with past DUI convictions, as explained below:

• First-time offenders face 48 hours in jail.
• Second-time offenders face 10 days in jail.
• Third-time offenders face 30 days in jail.
• Those convicted for a fourth or subsequent DUI will face an additional 90 days in jail.

Additionally, someone caught driving drunk with a child under 18 can also be charged with child endangerment under California Penal Code section 273(a) (PC). This charge consists of willingly putting a child in unreasonable risk of harm, even if they are not actually injured as a result. In drunk driving cases, this charge may apply when the penalty enhancement is not applicable because the child is between 15 and 17.

Child endangerment can carry a maximum penalty of up to one year in jail as a misdemeanor or up to six years imprisonment as a felony. “San Diego prosecutors usually charge this offense as a felony,” warns attorney Liss.

The good news is that while you can be charged with both offenses, you cannot be convicted of both child endangerment and the penalty enhancement.

High BAC DUI Enhancements: 23578 (VC)

California Vehicle Code 23578 (VC)² allows for enhanced penalties when a driver accused of DUI had an excessively high Blood Alcohol Content (BAC), specifically above 0.15%. Penalties increase even more for BACs above above 0.20%. These penalties also apply to minors and commercial drivers, though these individuals have lower BAC limits than most drivers. On the other hand, these consequences cannot be applied in drug DUI cases, as there is no legal limit to how many drugs a person can safely consume before driving.

DUI Over 0.15% BAC

Penalty enhancements for those who have a BAC over 0.15% are not set by law and are, therefore, not mandatory. However, judges have the discretion to increase the sentence of someone convicted under this law.

“In San Diego County, judges frequently sentence those with a BAC above 0.15% to mandatory community service, but I am often able to get the prosecutor to drop this enhancement during a plea bargain,” says Liss.

DUI Over 0.20% BAC

On the other hand, drivers who have a BAC above 0.20% are subject to a mandatory extension of their DUI class period under 23538(b)(1) (VC)³. Whereas first-time offenders typically only must attend a three-month program, those with a BAC over 0.20% must attend a nine-month program. Judges may optionally sentence offenders to longer jail terms and higher fines.

If a driver has a prior DUI on their record, the judge even has the option to require them to attend a program for up to 30 months.

DUI Excessive Speed Enhancements: 23582 (VC)

Under 23582 (VC)⁴, you can face mandatory jail time for driving too fast while intoxicated. You can’t be charged with this crime for driving a few miles over the speed limit, though the officer can give you a speeding ticket and arrest you for drunk driving. Instead, these charges can only be filed if someone was caught driving recklessly at more than:

• 20 miles an hour above the speed limit on a public street.
• 30 miles an hour above the speed limit on the freeway.

Notably, the driver must drive recklessly to be convicted under this law. For this reason, these charges often accompany reckless driving charges under 23103 (VC)⁵. Reckless driving is defined as operating a vehicle with a “willful or wanton disregard” for the safety of others or their property. Examples include:

• Almost hitting people or objects.
• Weaving in and out of traffic.
• Running a stop sign or red light.
• Driving on the sidewalk.
• Illegally passing other vehicles.
• Excessive speeding in a school zone.

Those convicted of this charge will face a mandatory minimum of 60 days in jail, as well as any other additional penalties implemented by the judge.

“San Diego County courts take these crimes very seriously, so do not attempt to fight these enhancements without the help of an experienced DUI defense attorney,” warns Liss. It is especially important to hire an attorney if these charges are filed along with those for DUI resulting in injury or homicide. 

Implied Consent as a DUI Enhancement

Refusing to take a blood or breath test after a driving under the influence arrest can also subject you to enhanced penalties under the state’s Implied Consent Law. Interestingly, the enhanced penalties for refusal are defined in the same statute that governs the sentencing for excessively high BAC levels, 23578 (VC).

Under this law, those who refuse to submit to a chemical DUI test will be sentenced to a minimum of 48 hours of jail time and no opportunity for a restricted license.

While the criminal charges for test refusal do not apply if you are not convicted of DUI, you will still be subject to a one-year license suspension by the DMV.

Learn more about this offense on our dedicated Implied Consent page.

Are Enhancements Mandatory?

It is always up to the prosecutor to determine which charges will be filed in a case. They are not required to file enhancement charges.

Some enhancements (DUI with a minor, BAC over 0.20%, excessive speed, or implied consent) require mandatory penalties. A BAC between 0.15% and 0.19% does not always lead to extra sentencing.

Regardless of the specific enhancement you are charged with, your attorney can work to fight the offense or negotiate a plea bargain that results in the additional charge being dropped. “I regularly convince the District Attorney to drop enhancement charges or agree to a lower BAC result to ensure the charges are reduced,” says Liss.

Defenses to DUI Enhancements

While these crimes may not be stand-alone charges, you can still fight the allegations. Like all charges, you should always avoid attempting to defend yourself, as you may say something that could harm your defense later.

One of the best defense strategies is to show that you did not meet all the elements of the crime. For example, with an excessive speed enhancement, the prosecution must show that you:

• Were driving under the influence,
• Drove recklessly, and
• Were intentionally going more than 20 miles an hour above the speed limit on a street or 30 mph on the freeway.

When charges are filed for BACs over 0.15%, the best defense is often to challenge the accuracy of the blood or breath test. In rare circumstances, you may be able to avoid the charges completely if you can successfully show you were only driving as a result of an emergency.

Ideally, you can avoid a conviction under these statutes by fighting the underlying driving under the influence charge, as a successful defense will eliminate the enhancement charge. These common DUI defense strategies can help.

How DUI Enhancements Affect Plea Bargains

In many of these cases, the best option is not to fight the charges but have your lawyer seek a winning plea deal that will minimize the consequences you may face. Depending on the circumstances of your case, plea bargains can:

• Reduce the number of charges you face (Allowing for an Implied Consent enhancement to be dropped, for example)
• Reduce the severity of the charges (For example, dropping the underlying charge to wet reckless, automatically eliminating any enhancements)
• Reduce your sentencing (Allowing you to avoid any additional penalties for a 0.18% BAC, for example)

All of these outcomes can help ensure you get the best possible results given the circumstances of your case.

Talk to a Vista DUI Lawyer About DUI Penalty Enhancements

Whatever the circumstances of your DUI arrest, an attorney can help you fight the charges. The sooner you call, the sooner your lawyer can start working to help you. Remember that while enhancements may carry mandatory penalties, prosecutors are not required to file these charges.

Attorney Peter Liss has over 40 years of experience and has developed a strong working relationship with judges and prosecutors in the San Diego court system. His knowledge and professionalism can ensure you receive the best possible results in your case.

If you have been accused of driving under the influence and may be facing enhancements related to your blood alcohol content, please call (760) 643-4050 to schedule a free initial consultation at his office across the street from the Vista jail and courthouse.