There are no limits to how many DUIs a person can receive in California. However, if you are charged with a fifth DUI within the past ten years, you are likely facing a felony DUI charge. The penalties for felony DUI convictions are much harsher than the penalties for misdemeanor drunk driving convictions.
Understanding your legal rights and your options for defending a fifth-time DUI offense in California is crucial. DUI penalties can have devastating consequences for your immediate life and your future. Below are answers from our California DUI defense lawyer to frequently asked questions about DUI fifth offense.
How Do Judges Decide a Sentence for a Fifth-Time DUI Conviction?
DUI convictions are “priorable” offenses in California. That means that each DUI conviction within ten years counts toward sentencing for the current DUI conviction. In other words, convictions for drunk driving within the past ten years increase the severity of the criminal penalties for your current drunk driving charge.
Prior convictions could include the same criminal charges you face now or other related DUI charges. Drunk driving charges that are “priorable” charges for sentencing include:
- Driving under the influence of alcohol (California Vehicle Code §23152a)
- Reckless driving under California Vehicle Code §23103.5 (“wet reckless” plea agreement)
- Driving with a blood alcohol content (BAC) of over .08% (California Vehicle Code §23152b)
- Causing bodily injury or death while driving under the influence of alcohol (California Vehicle Code §23153)
- Any convictions for out-of-state offenses that would have been a violation of any one of the priorable California DUI laws
If you have a felony DUI conviction, there is no time limit for using prior convictions for sentencing purposes. Furthermore, expunged drunk driving convictions also count toward the number of DUI convictions for sentencing purposes.
Fighting a fifth-time DUI arrest yourself is risky. Your prior DUIs count against you before you enter the courtroom. Therefore, you are already at a disadvantage. Instead, talk with a DUI lawyer about ways you can avoid a DUI conviction or the possibility of pleading down the charges to avoid the harshest DUI punishments.
What Are the Penalties for a Fifth DUI Conviction in California?
The penalties for a fifth DUI conviction are severe because you face a felony charge. Many judges view multiple DUI offenses harshly. They assume that the person has not learned their lesson. Therefore, they may be more included to issue the harshest sentence possible this time.
Penalties that you face when charged with a DUI fifth offense in California include:
- Up to three years in state prison
- A fine of $390-1000 plus penalty assessments
- Treatment in a court-approved alcohol treatment program for 30 months
- Designation as a Habitual Traffic Offender
- Loss of driving privileges for four years
- Completion of DUI school
- Installation of an ignition interlock device (IID)
- Informal or formal probation
The sentence for DUI 5th offense depends on many factors. The facts of the case and the BAC level for the driver are just two factors. Along with the prior DUI convictions, aggravating circumstances can enhance your sentence for a fifth-time DUI in California.
Examples of aggravating circumstances in a drunk driving case include:
- Driving under the influence while on probation for a DUI conviction
- Refusing to submit to a BAC test
- A BAC level of .15% or higher
- Having a minor under the age of 14 years in the vehicle
- Speeding and reckless driving
- Causing an accident while driving under the influence
- Underage drinking and driving
These aggravating circumstances increase the criminal penalties for a fifth-time DUI conviction. When facing an aggravated DUI charge, you need experienced legal counsel to represent you in court. There could be a defense to the aggravating circumstance or a mitigating circumstance an attorney might argue in court.
What Related Crimes Could I Face if I Am Arrested for a Fifth DUI in California?
The prosecutor may charge you with additional crimes if you are arrested for drunk driving for the fifth time. The facts of the case determine whether the prosecutor thinks they can prove you committed another crime.
For example, you could be charged with DUI Causing Injury under VC 23153. This criminal charge can be a felony without any prior DUI convictions. All the prosecutor needs to show is that you were driving under the influence when you caused bodily injury to another person.
If you kill someone while driving under the influence, you could be charged with second degree murder, a form of Penal Code 187. The “Watson Murder” charge requires that you have one prior California DUI conviction. However, only one DUI conviction is necessary to charge someone with this crime.
Causing an unreasonable risk of harm to a child could result in child endangerment charges under Penal Code §273a PC. Driving with a child in the vehicle when you are intoxicated might result in this criminal charge.
Each criminal charge you are convicted of related to your DUI could result in additional criminal penalties. Therefore, instead of spending up to three years in prison, you could spend decades in state prison. The fines may increase
What Defenses Could Help Me Win a Fifth-Time DUI Charge?
A California DUI defense attorney analyzes your case to determine what defenses are available to fight the DUI charges. For example, your attorney may challenge procedures related to the DUI stop or arrest. In addition, the attorney may raise one or more defenses regarding whether you were actually intoxicated at the time of the arrest.
Some of the defenses to a DUI 5th offense charge include:
- Alleging you were not intoxicated but suffering from a medical condition that mimicked signs of intoxication, such as a brain injury or diabetic episode
- You have dental work which caused the alcohol to pool in your mouth, resulting in false breathalyzer results
- Alleging that the police violated your civil rights
- Contaminated urine or blood samples or failure to maintain the chain of evidence
- Malfunctioning, defective, or improperly calibrated breathalyzers
- A medical condition such as acid reflux or GERD caused false breathalyzer results
- The police officers did not have reasonable suspicion to pull you over or probable cause for an arrest
- You were given non-standard field sobriety tests that are unreliable, or the officers improperly conducted the standardized field sobriety tests
Having a solid defense for your DUI charges is the best way to avoid harsh penalties. If your attorney can prove that the police violated your legal rights, the evidence collected during your DUI stop and arrest could be thrown out of court. Additionally, attacking the state’s evidence could result in a dismissal of the charges.
Can I Expunge a 5th DUI Conviction From My Criminal Record?
In most cases, a fifth-time DUI conviction is not eligible for expungement. The requirements for expunging a DUI conviction are:
- Your conviction was issued by a California state court
- Your sentence did not include time in a state prison
- You completed all of the terms of your probation, or it has been at least one year since your conviction if the judge did not order probation
- You are not currently serving probation for another criminal offense or facing charges for another criminal offense
- You did not violate any terms of probation
- You met all other sentencing requirements, such as alcohol treatment programs, paying restitution, community service, etc.
Most people convicted of DUI a fifth time are sentenced to serve at least some time in prison. Therefore, you would not be able to get rid of your DUI conviction even if you meet all of the other criteria for an expungement.
Do I Need to Hire a California DUI Defense Attorney if I Am Charged with a Fifth DUI Offense?
A DUI conviction can significantly impact your life. For example, time spent in jail could result in job loss and loss of child custody. In addition, a DUI conviction on your criminal record could make it more difficult to get a job when you get out of prison.
After paying expensive fines and fees, you face years of higher insurance premiums to get your driver’s license restored. Personally, a criminal record can affect your relationships with family and friends.
Consulting a California DUI defense attorney as soon as possible is the best option you have for winning your case. A private defense lawyer has the time and resources to pursue a defense aggressively. Public defenders are often understaffed and lack the time and resources to conduct a thorough investigation.
If you choose to represent yourself, the court expects you to know and understand the law and court procedures. The judge nor the prosecutor helps you with your case. Remember, the prosecutor’s job is to obtain a guilty verdict.
Another advantage of hiring a DUI attorney is it forces the prosecutor to do their job. An experienced attorney understands DUI law. They know what the state must prove to win the case. An attorney also knows when a prosecutor crosses the line.
If you were arrested for a fifth-time DUI in California, protect your legal rights by seeking legal advice immediately.