Help your business grow by creating your next online presentation with Cevian, a business virtuoso.

Recent Posts

Quick business execution 00 875 665 874 88 cevian@select.com
Back to top
California Vehicle Code Section 23152

2nd DUI as a Misdemeanor

How can I be convicted?

California defines the “elements” of DUI, which are facts that the prosecution has to prove.

Defenses to a DUI charge

The prosecution has to prove that the defendant was driving a vehicle while “under the influence” of drugs or alcohol or both.

Criminal Penalties

If you are convicted of DUI, you might be subject to many different penalties, some of which are mandatory.

California Vehicle Code Section 23152

2nd and 3rd DUI as a Misdemeanor

Driving Under the Influence (“DUI”) is a crime in California. Most of the law governing DUI is governed under the California Vehicle Code (“Ca. Veh. C.”). A DUI conviction triggers several different penalties, many of which are “mandatory” under varying sections of the Vehicle Code.

Even as a Misdemeanor offense, penalties for a “second offense” or “third offense” DUI can be very strict, more so than DUI as a first offense.

How Can I be convicted of

Second Offense DUI as a Misdemeanor in California?

A DUI case usually boils down to two main issues:

Whether you were “intoxicated” or “impaired in some way;.

You were “driving” at the time.

California defines “DUI” under Vehicle Code Section 23152, where we see the “elements” of DUI, which are facts that the prosecution has to prove in order to convict somebody of DUI.

In order to convict somebody of DUI, the prosecution has to prove, beyond a reasonable doubt that:

You were driving a vehicle, and

At the time of driving, you did at least one of the following:

      1. You were “under the influence” of alcohol at the time you were driving 
      2. You had a BAC of at least 0.08%
      3. If driving a commercial vehicle, or a “ride for hire” vehicle, you had at least 0.04% BAC 
      4. You were under the combined influence of any drug and/or alcohol.

Also, in order to be convicted of DUI as a “second offense”, the prosecution must also prove that: 

You were previously convicted of at least one (1) other DUI offense that occurred within the past ten (10) years.

Notice that a DUI case does not always require the prosecution to prove that the defendant was “under the influence” of alcohol or was incapable of driving safely. If a jury feels, beyond a reasonable doubt, that the defendant was driving a car with a BAC over 0.08%, for example, then they will find that defendant “guilty” of DUI even if they also feel that the defendant was capable of driving safely. Similarly, in cases where the prosecution alleges that the defendant was merely “driving under the influence” of alcohol or drugs, they can prove circumstantially that the defendant had drugs or alcohol in their system such that it impacted their driving. For that type of DUI charge, the prosecution need not show that the BAC was over a certain limit, although evidence of the defendant’s high BAC would probably help convince a jury to find the defendant guilty. 

If however, the jury had reasonable doubt that the defendant was driving, or that the defendant’s BAC was above a certain level, or whether the defendant was “under the influence”, they would find the defendant “not guilty” of DUI. 

You should also notice the fact of your prior offense is also something that the prosecution has to “prove” in order to be found guilty of second offense DUI in California. Prior offenses in other states count.

Defenses to a

2nd DUI charge in California

You were not driving the car

While it seems obvious, remember that the prosecution has to prove that the defendant was driving a vehicle, AND that, while driving, the defendant was “under the influence” of drugs or alcohol or had a BAC above a certain limit. Where the prosecution cannot show that the defendant was ever driving, or that the defendant was driving with too much alcohol in their system, then their case might be weaker.


In some DUI cases, the defendant is arrested on suspicion for DUI during a traffic stop, and testing done soon afterwards shows that they were intoxicated. In those cases, the prosecution might have an easier time proving that the defendant was, in fact, driving the car while intoxicated.


Consider the following example: Tatiana drives her car into town sober, she parks her car, walks to a bar, drinks all night, and returns to her car. She never starts her car or moves it but instead just sits inside the car and sleeps. If she was arrested and charged with DUI, she would probably be found “not guilty” because, while he did drive his car at some point, he did not do so while drunk or with a high BAC.

Insufficient Proof of Intoxication

In some DUI cases there are no test results available and the prosecution’s case rests largely on circumstantial proof that the defendant was intoxicated or under the influence of drugs or alcohol. To do this, the prosecution might base most of their case on evidence from “field sobriety tests”, if any were done. Examples of this include the “one leg stand” and “walk and turn” that police officers have DUI suspects perform before arresting them for DUI. However, field sobriety test are not always reliable indicators of intoxication. A well-prepared defense of a DUI case should look into whether police exaggerate or overstate the defendant’s “failures” on field sobriety tests, and whether other factors like the weather, the terrain, or the defendant’s physical abilities made it seem that they might be “failing” certain tests when in fact they were perfectly sober.

Improper or incorrect chemical testing

In many DUI cases there is chemical testing available in the form of breath or blood samples. In those cases, if the test results show that the defendant’s BAC was above the allowable amount, and the jury accepts those test results as true, then it does not matter that the defense proves that the defendant was not actually “too drunk to drive”, because driving with a BAC that is too high is still considered “DUI”.


One point that is worth clarifying: there is a difference between the “roadside” preliminary alcohol screening test and the chemical tests done after the defendant was arrested. The preliminary test (or “PAS” for short) is primarily meant to determine whether an officer has “probable cause” to arrest someone for DUI. A well-prepared defense of a DUI case should thoroughly investigate the differences between the PAS testing and any subsequent methods, because any problems might disrupt the prosecution’s ability to prove intoxication. The PAS test is always based on a breath sample. A “chemical test”, however, is usually taken after the defendant has already been arrested on suspicion of DUI. The results of this test are usually what a DUI prosecution is likely to base their case on.

Unlawful Search and Seizure

While not necessarily a “defense” to a charge of DUI, a good DUI defense attorney should always explore the possibility of a “motion to suppress” any evidence taken in their client’s case. Where police obtain evidence against a defendant through unlawful means, the court might be inclined to “suppress” or “keep out” that evidence at trial, forbidding the prosecution from using it against the defendant. This is true in all criminal cases. In DUI cases, however, a successful motion to suppress might be fatal to the prosecution’s case.

Police cannot stop or detain someone without “reasonable suspicion”, which means articulable facts to support a reasonable conclusion that criminal activity (like a traffic violation, or, of course, DUI, is afoot) is afoot. Police cannot arrest someone for DUI and prompt them to take a chemical test without “probable cause” to believe that the defendant is committing DUI, which means that the police must detect “objective signs of intoxication”, such as slurred speech, the odor of alcohol, and poor performance on sobriety tests.

Consider, for example, a case where police stop the defendant while he is driving, and during the stop, the police detect an odor of alcohol and notice that the defendant is slurring his speech. The defendant then agrees to do field sobriety tests which he does poorly on, so he is arrested and his chemical tests place his BAC above 0.08. In that case, the prosecution probably has more than one way to show that the defendant was “DUI”, as the observations of his behavior and field test performances, combined with his test results, are all consistent with alcohol intoxication. However, assume now that at a motion to suppress, the judge determines that the police had no lawful reason to stop the defendant’s car in the first place. Then, the judge might decide to “suppress” the chemical tests and the officer’s observations of the defendant’s behavior because they all stem from the illegal stop.

There is a problem with your “Prior DUI”

A person can only be convicted of a “second offense DUI” if they were already convicted of another DUI as a “first offense.” The District Attorney has to specify which of the defendant’s prior offenses counts for this purpose. In many cases, proof of the prior offense is a straightforward issue and requires only a brief review of the defendant’s criminal record. But in some cases, the relevance of a defendant’s prior offense can be a very contentious issue.


The District Attorney has to prove beyond a reasonable doubt that the defendant was convicted of a prior DUI “within ten years.” The date of conduct is what matters here, not the date of the conviction. A lot of time might pass between when a person is arrested for DUI and when they are finally convicted in the Courts. As a result, a person’s record might show that they were convicted of a DUI within the past ten years, but the conviction was based on an event that was older, outside of the ten-year mark.


Prosecutors might assume that a conviction occurring within the past ten years counts as a “prior offense” that they can use to enhance the mandatory minimum penalties, but this is incorrect. For this reason, you should carefully review the “dating” of any prior offense with your attorney.

There are other reasons why the prosecution might have problems “proving” your prior offense. As mentioned above, DUI convictions from other states will count as prior offenses for the purposes of sentencing. However, keep in mind, what one state calls a “DUI” might not count as “DUI” for the purposes of California law. This is because other states might write their DUI laws differently, requiring proof of different facts in order to find someone guilty.

There are other issues that may cast doubt on the validity of your prior DUI conviction. As you can expect, a thorough investigation is needed in order to explore any issues properly.

Any of the above issues could lead to your prior offense being “struck” from your case. While this may not lead to a dismissal, a successful motion to strike a prior offense could work substantially to decrease the penalties you could be facing for your DUI case.

Criminal Penalties for a

2nd DUI Offense in California

If you are arrested on suspicion of DUI in California, it is highly likely that you will face DUI charges in the criminal courts. If you are convicted, or “found guilty” of DUI in the courts, you might be subject to many different penalties, some of which are “mandatory”. A person convicted of DUI, who has one (1) prior DUI conviction within the past ten (10) years, can be expected to be penalized as a “second time” DUI offender.

The MAXIMUM Penalties for a Second-Time DUI Offense;

Year County Jail

California Vehicle Code §§ 23536; 23538

Dollar Fine

plus any county-based penalty assessments

Mandatory Penalties

A second-time DUI also comes with many important “mandatory” penalties. These terms are “mandatory” because the court has to impose them, no matter what. If the court does not grant probation, then a person convicted of first offense DUI must serve at least:

Days of Time in County Jail
Dollar Minimum Fine

Mandatory Probation Penalties

Many second-time DUI offenders are granted some form of probation. Vehicle Code Section 23542 sets forth the “mandatory minimum” penalties for second-time DUI where probation is granted:

  • You will be ordered to not drive unless licensed and insured
  • You will be ordered to not drive with any measurable alcohol in your system
  • You will be ordered to submit to a chemical test when requested by a peace officer

Some Penalties for Second Time DUI

years of probation
Dollar Fine
Days of Time in County Jail
Month DUI School
Alternatives to Jail Time and

Penalty Enhancements for Second Time DUI

Although the law requires some amount of “jail time” for a DUI conviction, each county is also allowed to authorize various types of alternatives to satisfy any jail sentence. “Sheriff’s Work Program”, where someone does various types of manual labor under the Sheriff’s supervision, is common in many counties and many “second time” DUI offenders will qualify. Some counties also authorize “home detention” or “electronic monitoring” as an alternative to jail. 

But each county is different, and more severe cases might not be considered eligible for jail alternatives. Sometimes, the District Attorney may add certain “enhancements” to a DUI charge based on certain facts, such as having a young child in the car at the time, or for speeding and driving recklessly while DUI. On a “second time” DUI offense, these enhancements can greatly increase the amount of jail time that a defendant has to serve.

Depending on the length of a jail sentence, a person convicted of DUI as a second time offense may be eligible for “half time” credit under California Penal Code Section 4019. This allows some people to complete a jail sentence by serving only “half” of the total days ordered.

DMV Penalties

The Criminal Courts can impose many serious and important penalties for a second offense DUI. However, the Department of Motor Vehicles (“DMV”) can impose various penalties as well, including license suspension, higher insurance costs, and ignition interlock (“IID”) obligations. These separate penalties can vary from case to case.

Hiring a California DUI Lawyer

Our California DUI lawyers are experienced in getting cases dismissed or earning you the best possible outcome, but it does take work. Being arrested for a DUI can be devastating. It can affect your job, professional licenses, immigration status, and can cause embarrassment. Our job is to get involved early on in the case, reduce that stress, and handle all of the steps of fighting your case. Whether that means going to trial or securing you the best possible plea deal, we do it all. If you are ready to discuss your case with a Red Metric Law attorney, please contact us at 1.833.8.NO. JAIL for a free and confidential consultation.