Driving under the influence in San Jose carries very severe penalties, but first-time offenders usually don't spend time in jail. However, when circumstances are aggravated, the chances of the first offender been sentenced are high. Likewise, the penalties imposed for subsequent offenses become harsher than they would have been if there were no aggravating factors. If you have been arrested for aggravated drunk driving, you can avoid hefty fines, loss of driving privileges by seeking the help of the San Jose DUI Attorney Law Firm. For many years, we have fought aggressively for our clients' rights.

What is Aggravated DUI?

It is illegal to drive your car in California with a blood alcohol content of 0.08% or greater. Consequently, any motorist caught operating a vehicle with a BAC above this percentage is well-thought-out to be impaired irrespective of their ability to drive. Additionally, the law prohibits underage drivers from driving with any amount of alcohol in their blood. Commercial drivers, on the other hand, are considered impaired when they have a BAC greater than 0.004%.

Regardless of the reason you are arrested, DUI is typically a California misdemeanor. However, there are situations when an otherwise simple drunk driving offense will carry increased penalties. They include:

DUI with a Minor Below Fourteen Years of Age as a Passenger

California Vehicle Code Section 23572 VC is very clear. If you're convicted with a misdemeanor and you have a minor as a passenger during your arrest, the drunk driving with child endangerment sentencing enhancement applies.  Aspects like whether you planned to hurt the minor or not, driving pattern and intoxication level do not matter. The law is only interested in:

  • Whether there was a minor below fourteen in your car when you drove, and
  • Whether you were drunk.

If charged with violation of California Vehicle Code Section 23572 VC, you will face normal drunk driving penalties alongside the following consecutive and additional sentence:

  • 48 (forty-eight) hours in jail for first-time DUI conviction,
  • 10 (ten) days in a county jail for second-time drunk driving conviction,
  • Thirty days in jail for third-time drunk driving conviction and
  • Ninety days in jail for a fourth-time or subsequent drunk driving conviction.

It is worth noting that this is a compulsory sentence. That means a defendant will be sentenced if charged with drunk driving with a minor in the vehicle enhancement. 

Also, a fourth drunk-driving within ten (10) years (look-back period) can be convicted either as a felony or a misdemeanor. If convicted as a California felony, the VC 23572 won't apply.

Can You be Convicted of Both Penal Code 273a PC (Child Endangerment) and Vehicle Code 23572 (Minor in the Vehicle)?

California Penal Code Section 273a PC is a different offense that can be charged either as a felony or a misdemeanor. This law seeks to punish defendants who willfully place a minor in a condition where their welfare or health could be at risk. The law has found those who have violated VC 23572 to fall into this classification.

As a result, the prosecutor may choose to charge you with either:

  • A separate offense of child endangerment
  • Vehicle Code Section 23572 VC
  • Both child endangerment and drunk driving with a minor in the child

You can't be charged with both child endangerment and driving under the influence with a minor in the vehicle. The judge is banned from enacting an extra sentencing enhancement under VC 23572 on a defendant convicted of Penal Code 273a.

The prosecutor could charge you with child endangerment irrespective of:

  • Whether the drunk driving is brought as a felony or a misdemeanor
  • The age of the minor in the car is

Bearing that in mind PC 273a charges are severe and aren't automatically brought in relation with every driving under the influence offense where a child passenger is involved. Usually, prosecutors save PC 273a charges for more severe cases.

Beating a DUI Child Endangerment Sentence Enhancement Charge

It is worth repeating that penalty for VC 23572 only applies to cases where a defendant is convicted of DUI (VC 23152(a)) or operating a vehicle with a blood alcohol content greater than 0.008 percent (VC23152 (b)).

If your DUI lawyer can fight the DUI charges successfully, the judge can't impose an increased penalty for having a minor passenger. Consequently, vehicle code 23572 VC won't apply.

Besides that, when your attorney fails to secure you a case dismissal through common DUI legal defenses, a plea bargain to a reduced drunk driving charge such as wet reckless will prevent sentence enhancement for DUI with a minor in the vehicle.

Excessive Speed and Reckless Driving

Vehicle Code Section 23582 VC is driving under the influence of sentencing enhancement. To be charged with the section in question, the prosecutor must prove that:

  • You operated your car while under the influence
  • You operated the car at excess speed while violating drunk driving laws
  • You drove reckless while driving under the influence

Excess Speed

The term excess speed can be defined as:

  • Twenty miles per hour or posted speed limit or more than the maximum prima facie on a public street
  • Thirty miles per hour or posted speed limit or more than the maximum prima facie on a freeway

You Drove Recklessly

Reckless driving can be defined as willful disregard for people or property's safety. Willful disregard means you are aware that your conduct will injure somebody else, but you deliberately ignored the risk.

The law holds that speeding and DUI, by themselves, cannot constitute a willful disregard for safety. Moreover, because reckless driving needs an intentional behavior, you cannot be charged with reckless driving founded on negligence.

What Penalties Do Driving Recklessly and Speeding  Carry?

If the above-discussed elements of California vehicle code section 23582 VC are proved, you will face an additional sixty days-sentence for speeding as well as driving recklessly while drunk. Moreover, should the judge suspend the effecting of sentence or grant probation, you will still serve sixty days in jail, alongside any sentence the court enacts.

If it's your first 23582 VC conviction, you will be required to attend an alcohol and drug education and counseling program.

These consequences are compulsory and cannot be waived unless, in rare cases where the interests of justice needs to be served.

How to Beat 23582 VC Charges

To beat 23582 VC charges, typically you need to argue that one element of the crime is missing.  Unlike the defense, the burden to prove all facts of the crime are present is on the prosecution.

In a tough case, your lawyer should be in a position to negotiate a plea bargain with your charge. Speeding and reckless driving enhancement don't apply to a reduced DUI charge like dry reckless, wet reckless, or speed exhibition.

Refusing to Submit a Chemical Test

By operating a car in California, you are assumed to have consented for BAC should you be arrested for drunk driving lawfully. It is referred to as implied consent law. This applies even when you have already submitted to the PAS (preliminary alcohol screening) test.

Traditionally, this rule applied to blood and breath tests. However, in 2016, the Supreme Court of the United States issued a Birchfield v. North Dakota decision. The decision held that it's illegal for any state to make it an offense to refuse a chemical test without a legal warrant.

The decision dealt with states which make it a different offense to refuse a chemical test after an arrest. In contrast, California imposed additional penalties for chemical test refusal defendants.

What Penalties Does Refusing to Submit a Chemical Test Attract?

There are two consequences of refusing to submit to a chemical test after an arrest in San Jose. They include:

  1. Enhanced Penalties for blood or breath test refusal

    If finally convicted of drunk driving, you will face enhanced penalties. The penalties are consecutive and in addition to the underlying sentence for driving under the influence. The enhanced penalties include:

    • An additional forty-eight-hour sentence in jail and attending a DUI school for nine months,
    • An additional ninety-six hours in jail for a second-time DUI offense
    • An additional ten days in jail for a third-time DUI offense within ten years
    • An additional eighteen days in jail for a fourth-time or subsequent drunk driving offense
  2. Suspension of License

    Moreover, you will have your driving privileges withdrawn automatically by the California Department of Motor Vehicles (DMV).  You have ten days after your arrest to request a DMV hearing to challenge the suspension of your driver's license.

    How to Fight DUI Test Refusal Charges

    Your DUI attorney should be able to use the following legal defenses:

    • There was no legal arrest

    A DUI arrest is illegal if the police did not have probable cause for an arrest or stopping you. If your arrest is illegal, then you've not given implied consent to the chemical test. After your charges are dismissed, the refusal to submit to chemical test charges will also be dismissed. 

    The arresting police did not tell you of your responsibility to submit a breath or blood test

    The law requires the police to advise you of the consequences of chemical test refusal. The arresting police's failure to do so is a gap in the investigation that could result in case dismissal.

    • The refusal was due to a medical condition or severe injury that is not related to drugs or alcohol

    The law recognizes that there are instances a driver may not be able to give a meaningful refusal to a chemical test or consent. Nonetheless, if your inability stems from a voluntary consumption of drugs or alcohol (even if partly), your refusal won't be excused.

    • The refusal warning was not only misleading but also confusing

    The arresting officer should give blood or breath test admonition in a simple, unambiguous, and clear manner. If it is not, that could justify your chemical test refusal.

Excessive BAC

Motorists caught with a blood alcohol content above 0.20 percent could be charged with both driving under the influence and above 0.20% BAC allegations in accordance with Vehicle Code 23538(b) (2) VC.

Under California Vehicle Code 23152(b) VC, you will be charged with DUI when you have a blood alcohol content of 0.08 percent or greater. A blood alcohol content of .20% is two and a half times the lawful limit; hence, motorists with high BAC are more prone to cause road accidents. Consequently, the legislature has enhanced penalties for motorists who operate cars while drunk with high BAC even when they don't have previous DUI convictions.

When arrested for drunk driving, the police will give the choice of taking either a blood or breath test. Breath test results will be known immediately to the police who will share them with you. Blood test results, on the other hand, will be known to you after your arraignment hearing in a court of law.

At the arraignment hearing, the court will impose terms and conditions of your release, such as:

  1. Attending weekly Alcoholic Anonymous sessions
  2. Wearing an alcohol-monitoring bracelet while your case is pending

You are also likely to face enhanced penalties. For instance, VC 23538(b)(2) requires the defendant charged with drunk driving with a BAC of 0.20 percent or more to complete an AB1353 alcohol education class that takes nine months as opposed to a 3-month program which first DUI offenders with low BAC should enroll in.

Moreover, the court could impose onerous probation terms, which include community service, AA meetings like Hospital and Morgue program, fines, and jail time. If you are involved in an accident, you should pay restitution to all victims with damages.

If you are required to attend a longer alcohol and drug education program, you will not be in a position to restore your unrestricted driver's license until you complete the program. Motorists in San Jose can choose to have an IID (Ignition Interlock Device) installed in their cars until they complete the program.

DUI Causing Injury

According to Vehicle Code 23153 VC, DUI causing injury is operating a car and causing bodily hurt to somebody else as a result. To convict you of DUI with injury, the prosecution team must prove beyond any reasonable doubt that:

  • You were breaking drunk driving laws
  • While breaking the law, you broke another law or acted negligently while operating the car
  • Your negligence injured somebody else

The penalties you face for DUI causing injury conviction vary greatly depending on the case's circumstances and whether it is your first or subsequent DUI conviction within the look-back period.

If charged with a California felony, drunk driving with injury is punished by:

  • Consecutive and additional three (3) to six (6) years in prison if any person sustains a severe bodily injury
  • A consecutive and additional one to three years in prison for every additional victim with any injury

Fighting Vehicle Code Section 23153 VC Charges

Defending against DUI with injury starts the same way as defending against any DUI charge. Your criminal defense lawyer will try their best to prove that you were not under the influence, and your blood alcohol content was recorded wrongly.

The attorney will also make sure that all arrest, chemical tests, and investigation procedures were adhered to. The lawyer will then use these issues to beat the charges in question if they were not.

The lawyer goes ahead to engage a reconstruction expert when paying attention to the road accident and the injury. The construction expert will independently analyze whether the road accident which caused the injury was your fault. Factors taken into account include road conditions, weather, and damage to the cars.

Multiple DUI Convictions

DUI in California is a priorable crime. Priorable offenses carry harsher penalties and consequences each time you're charged with another or similar crime. 

If you have been arrested for DUI and you have three (3) or more previous drunk driving convictions within ten years, you are likely to be charged with a felony. As far as driving under the influence is concerned, prior convictions include a combination of:

  • A California DUI
  • Wet reckless
  • An out-of-state conviction which if committed in San Jose would be considered DUI

Subsequent DUI Arrest while on Probation for DUI

If you have been arrested for a subsequent DUI while on probation for another DUI in San Jose, you will face three different charges. Hiring a DUI attorney is the wisest thing you can do if you want to get a positive outcome.

First, you will face a probation violation hearing. Breaching the probation from your previous drunk driving conviction permits the judge to impose new penalties. These penalties include:

  • Revocation of probation and then imposing the sentence for the previous drunk driving offense
  • Extension of probation length
  • Drug abuse treatment order
  • Imposing additional probation conditions

Moreover, you will face charges for the new drunk driving offense. A second-time DUI conviction in San Jose, for instance, attracts an additional one to five years of probation, a nineteen-month compulsory alcohol treatment program, additional fines, and one year in jail.

Finally, you will be required to request a California DMV hearing. At the DMV hearing, the hearing officer will review the evidence presented and then decide whether your driving privileges should be withdrawn. 

Underage DUI

The legal drinking age is 21 years, and Vehicle Code 23136 VC is a zero-tolerance law for underage motorists. It is illegal for you to drive with a BAC of 0.01 percent or higher. This law applies to all beverages and medicines that contain alcohol.

Moreover, Vehicle Code Section 23136 VC applies irrespective of whether you were impaired by alcohol or not. That means you violate the law by having any measured alcohol level in your blood.

Underage DUI is punished by a one-year compulsory withdrawal of driving privileges for first-time offenders. Your license could also be revoked for two (2) to three (3) years if you have a history of breaking DUI laws.

Why is Underage DUI Considered an Aggravated Factor?

The inexperience of juvenile motorists makes them risky drivers, which is the main reason why underage drivers cause the most number of road accidents. Therefore, intoxication and inexperience are fatal for the drivers.

Legal Defenses to Underage Driving

There are several legal defenses that your DUI defense attorney can use to beat the charges against you. They include:

  1. You did not operate a car
  2. There was no probable cause for the DUI arrest or traffic stop
  3. The arresting police did not advise you clearly and thoroughly about your rights
  4. The arresting officer administering the chemical test did not follow the proper chemical test procedure
  5. The chemical testing gadget was not functioning properly

Driving on a Revoked or Suspended License

Another reason you may face aggravated charges is when you get arrested for drunk driving, and you do not have a valid driver's license. It could be because the California DMV revoked or suspended your license because you had accumulated many points on the license. Operating a car without a license is an offense which, when combined with DUI, you face aggravated charges.

Frequently Asked Questions

  1. What is Severe Bodily Injury?

    Liked previously noted, causing severe bodily injury is not an offense in and of itself. Instead, it is a sentencing enhancement.

    Severe bodily injury is more serious than just physical injury. It refers to bodily hurt that involves significant risk of impairment or loss of body organ or function, disfigurement, protracted, or death.

  2. What Type of Evidence Does the Prosecution Use to Prove Intoxication?

    Highlighted below are common pieces of evidence, prosecutors use to prove that a defendant was drunk while driving their car:

    • Breathalyzer Test Results

    When the police stop you may be at a DUI checkpoint, they will first ask you questions. If you demonstrate signs of intoxication such as slurred speech or alcohol odor on your breath, they will administer a breathalyzer test. 

    • Field Sobriety Test (FSTs)

    These are physical tests or questions conducted by police after observing poor driving habits.

    • BAC test

    A BAC test is the most reliable evidence in any aggravated DUI case. It requires your consent before being administered. 

Finding a DUI Defense Attorney Near Me

You are likely to face more severe penalties if you are charged with DUI in San Jose. However, even more severe than a normal drunk driving offense is an aggravated DUI. Consequently, it is vital to hire a lawyer immediately. The sooner you have an attorney working on your case, the better the outcome of your case will likely be. At the San Jose DUI Attorney Law Firm, we have experience in assisting clients with drunk driving charges. To learn more about how we can assist you, contact us at 408-622-0204.