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Jun 24, 2019

Is a DUI a Misdemeanor?

If you’ve been pulled over or arrested for driving under the influence in California, your first question may be, “Is a DUI a misdemeanor or a felony?” There’s no straightforward answer. In California, a DUI may be charged as a misdemeanor or as a felony. It depends up on the circumstances, your prior convictions, and whether or not anyone was injured. Regardless of whether you’re charged with a misdemeanor DUI or a felony DUI, it’s critical that you are represented by a skilled San Francisco Bay Area DUI attorney. Without an attorney, you’re at the mercy of the criminal justice system. With an experienced Bay Area DUI lawyer by your side, you have a fighting chance.

DUI Basics

Most Californians believe that a DUI can only be charged when a driver’s blood alcohol content is .08 or higher. While that is true for certain types of drivers, it’s just the tip of the iceberg. For example, if the driver is younger than 21 – and thus under the legal drinking age – then a blood alcohol content of just .01 is viewed as driving under the influence. If you’re on the job, then you might be facing a DUI if your blood alcohol content is just .04. This is true for commercial drivers, such as big rig drivers, and for those who drive paying passengers, such as taxi drivers, Uber drivers, and Lyft drivers.

It’s also important to recognize that alcohol isn’t the only substance than can lead to a DUI arrest. Perhaps you take an anti-depressant. Maybe you take medications for anxiety. It could be that your doctor prescribed Ambien to help you sleep. If you take any prescribed medication that impairs your ability to drive and you get behind the wheel, you can get arrested for driving under the influence. Similarly, even though recreational marijuana is legal in California, you can get arrested for a DUI if you drive while you’re high.

DUI While Boating, Biking, and More

The vast majority of DUI charges are brought against people who are operating cars, trucks, recreational vehicles, and motorcycles on public roads. Yet California has laws prohibiting engaging in other activities while being under the influence. For example, the state’s Harbors and Navigations Code makes it a crime to operate a boat, aquaplane, or water skis with a blood alcohol content of .08 or higher. If you’re operating a commercial vessel or a charter boat, then the blood alcohol content limit drops to .04.

While throwing back a few beers and steering your bowrider around the lake is appealing, a DUI is not. If you are arrested for a DUI when boating, it’s imperative that you contact a Bay Area DUI attorney immediately. While a boating DUI seems like a lesser offense, a conviction will still be considered a prior offense should you get arrested for driving under the influence in the future. For your peace of mind, you need to ensure that your boating arrest does not lead to a DUI conviction.

Similarly, if you are caught bicycling under the influence of alcohol – with a blood alcohol content of .08 or more – or under the influence of drugs, then you could be charged with a misdemeanor and fined $250. If the person cited is 13 to 20 years old, their driver’s license will be suspended for a year. If they don’t yet have a driver’s license, their eligibility to get obtain a license will be pushed back a year. In other words, instead of getting their driver’s license at the age of 16, they’ll need to wait until they’re 17 years old.

It’s important to note that you can also face DUI charges if you’re driving an off-highway vehicle, such as an ATV, dirt bike, golf cart, snowmobile, go cart, or side-by-side. You can get arrested whether you’re driving on public roads of off-highway. That’s when you need a solid Bay Area DUI lawyer.

DUI Misdemeanors vs. DUI Felonies

It’s fair to ask, “Is a DUI a misdemeanor?” But the answer can be complex. Generally speaking, if it’s your first, second, or third DUI and no injuries are involved, then you’ll typically be charged with a misdemeanor. If your DUI involves an injury, then it becomes what’s known as a “wobbler.” In a wobbler, the crime can be charged as either a misdemeanor or a felony. And, if you’ve had three previous DUI convictions within the prior ten years, then you will be charged with felony DUI.

First Offense DUI Misdemeanor Penalties

The penalties for a misdemeanor DUI conviction vary according to your prior DUI convictions and a variety of other circumstances. They typically fall into two categories: criminal penalties and administrative penalties.

Let’s say that Larry goes out with friends after work on a Friday night, has a few beers, and is pulled over on his way home. He blows a .11 on the breathalyzer and is arrested on misdemeanor DUI charges. Even though Larry doesn’t have a prior conviction, the officer arrests him, confiscates his driver’s license, and suspends his driving privileges for 30 days. This is an administrative action. Larry has to go to the DMV, pay $125, and show proof of insurance in order to have his license reissued.

Larry ends up being convicted of driving under the influence, and the judge can sentence him to up to six months in county jail. She also has the discretion to sentence him to between three and five years of probation. Because it’s his first offense, Larry gets probation, but is also required to attend a DUI education class. Since Larry’s blood alcohol content was less than .20, the judge mandates a three-month, 30-hour DUI education program. She also fines him between $390 and $1,000, along with a variety of penalty assessments.

After his 30-day driver’s license suspension, Larry can apply for a restricted license that allows him to travel to and from work. But, because he lives in Alameda County, he has to install an ignition interlock device (IID) for five months. Every time he gets into the car, Larry must take a breathalyzer before his car’s ignition will turn over. In other counties, the judge may or may not require an IID for a first offense.

Second Offense DUI Misdemeanor Penalties

Let’s say that, a couple of years later, Larry attends his best friend’s wedding and enjoys too much champagne at the reception. This time when he gets pulled over, he blows a .21. He’s ultimately convicted, and while the judge can sentence him to up to one year in county jail, Larry’s attorney negotiates an alternative sentence. Alternative sentence options can include roadside cleanup work, community service, or house arrest with electronic monitoring. Larry is able to work with Cal-Trans cleaning up the garbage strewn by motorists.

This time around, the fines are the same, but Larry’s license is suspended for two years and he’s required to reinstall the IID device for one year. He’s not eligible for a restricted license until after a year has passed. Because his blood alcohol content was over .20, Larry’s required to attend a DUI education program for 30 months. That’s 12 months longer than the requirement for a blood alcohol content of less than 2.0.

Third Offense DUI Misdemeanor Penalties

Fast forward four years. Larry’s live-in girlfriend has broken it off and left him feeling empty and angry. He drives to his favorite watering hole a couple of miles from his apartment. On the way back, he gets pulled over. The officer arrests him for driving under the influence, and he’s convicted. He gets hit with the same fines, but the judge’s most lenient option is 30 days in jail and three years of probation. Still, that’s definitely better than the one-year maximum jail sentence. Larry’s driver’s license is suspended for another three years and he has to put up with the IID for two years. He also has to pay for another 30 months of DUI education.

Complications for DUI Misdemeanors

Larry’s misdemeanor DUI trajectory is uncomplicated. However, there are a number of ways that a misdemeanor DUI can spin out of control. For example, if you refuse to take a breathalyzer after you’ve been arrested for driving under the influence, you can face additional penalties. For your first DUI conviction, you can be subjected to an additional two days in jail, six more months of DUI education, and an extra year of having a suspended driver’s license. For your second conviction, refusing can lead to four more days in jail and having your driver’s license revoked for two years. A third conviction means ten extra days in jail and having your driver’s license revoked for three years.

If you are under the influence and are driving too fast and recklessly, then you must serve an additional 60 days in jail. If you receive probation or your sentence is suspended, you still must serve 60 days. Under the law, excessive speed is defined as going 30 miles per hour over the speed limit on a highway or 20 miles per hour over the speed limit on a street.

If you injured someone else while driving under the influence, you can be charged with either a misdemeanor or a felony. If you’re convicted of a misdemeanor, then you’re subject to between $390 and $5,000 in fines, paying restitution to the person who was injured, and either up to a year in county jail or three to five years of probation. You’ll also be required to attend a DUI education program and install an IID or face a license suspension.

The Role of a Bay Area DUI Attorney

Having an experienced San Francisco Bay Area DUI lawyer by your side is critical to ensuring the best possible outcome for your case. Your attorney can be present when you’re being questioned, and will represent you at your arraignment and in every court proceeding that follows. Depending on the nature of your misdemeanor DUI charge, your attorney may even be able to appear on your behalf.

Throughout the process, your DUI attorney will fight the charges while advocating for your rights. For example, your lawyer may argue that you were not under the influence, but instead were just driving poorly. They could posit that the signs used by the officer to determine intoxication were instead due to other causes. They might say that failing the field sobriety test wasn’t due to intoxication but instead due to medical or psychological conditions. Even if you registered a blood alcohol content over .08, your Bay Area DUI attorney can fight back, arguing that the arresting officer didn’t follow the proper protocol for obtaining reliable breathalyzer results.

If it appears as though the case against you is solid, then your DUI attorney can enter into plea negotiations. In a plea agreement, you enter a guilty plea in exchange for a reduced sentence, a lesser charge, or both. For example, a plea agreement might mean that you plead guilty to reckless driving. In other words, you admit to unsafe driving, which is sometimes called a “wet reckless.” This keeps a DUI conviction off of your record, meaning that the court won’t order a driver’s license suspension, you won’t have to install an IID, and the potential maximum jail time for a first offense drops from six months to 90 days.

If you’ve been arrested for driving under the influence, you may be asking, “Is a DUI a misdemeanor?” The better question is, “How can I get in touch with a knowledgeable and skillful Bay Area DUI lawyer?” The answer is to call Silver Law Firm.



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