Driving under the influence of alcohol or drugs (DUI) criminal charges can be elevated to aggravated DUI when specific circumstances are present. The aggravating factors result in more severe penalties that are in addition to and consecutive to your underlying DUI charges. At San Diego DUI Attorney, we know that facing aggravated DUI can be overwhelming. We offer not only legal support but also compassion. We can guide you through this complex process, whether it is your initial DUI or repeat crime. We can exhaust every legal defense to dismiss or reduce your criminal charges during negotiations with the prosecution or when advocating for you in court. We are dedicated to putting the case behind you with the most favorable case results.

Defining Aggravated Driving Under the Influence

It is a California crime to operate a motor vehicle with a blood alcohol concentration (BAC) greater than 0.08% for motorists above 21. For underage motorists below 21, driving a car with any measurable level of alcohol in the bloodstream can result in DUI criminal charges. The legal limit for a commercial driver is 0.04%.

The term “under the influence” implies that your mental or physical abilities are impaired to the degree that you cannot operate your car as well as a careful, sober individual.

Typically, DUI crimes are misdemeanors unless there exist aggravating factors. An aggravated DUI is drunk driving with traits that can lead to gross violations of traffic laws or severe threats to another individual’s life. These characteristics can result in a simple crime becoming a California felony.

In other words, aggravating factors play a significant role in determining the seriousness of your punishment and criminal consequences. Here is how aggravating factors come into play during criminal sentencing:

  • The seriousness of the crime — Aggravating factors emphasize the severity and gravity of the criminal conduct. They offer the context to understand the impact and nature of the DUI crime. For instance, prior convictions can be aggravating, indicating that you have not learned from your prior legal troubles and encounters.

  • Effect on your sentencing — Judges and the prosecution team weigh aggravating and mitigating factors. Mitigating factors lessen culpability while aggravating factors can result in lengthy sentences and more considerable fines, reflecting the government’s condemnation of drunk driving.

Aggravation in driving under the influence can manifest in many ways, including the following:

  • Drunk driving in construction and safety enhancement zones

  • Refusing to take chemical tests

  • Underage DUI (Zero-tolerance law)

  • DUI causing injuries to multiple victims

  • Having a child in your car

  • Drunk driving with excessive speed

  • Driving your car with a BAC higher than 0.15%

  • Causing a collision while drunk driving

Underage DUI

California Vehicle Code Section 23136 is the zero-tolerance law for underage motorists. It is a civil crime for an individual under 21 to operate a car with a blood alcohol content of at least 0.01 percent. The law applies to every drink and medication with alcohol.

Violating VC 23136 is not an offense. The only penalty is the suspension of your driver’s license. A first-time violation attracts a one-year license suspension. Your driver’s license can be revoked for up to three years if you have previously violated DUI laws.

Underage Motorist with a Blood Alcohol Concentration of More than 0.05%

According to VC 23140, it is a crime for a minor below 21 to operate a car with a blood alcohol concentration of 0.05 percent or above.

The violation is an infraction that attracts the following potential penalties:

  • A one-year driver’s license suspension

  • Completing a three-month alcohol education program if you are older than 18

  • A one-hundred-dollar fine

BAC Greater than 0.08%

Under VC 23152(a), you can be prosecuted for adult DUI as an underage motorist if your driving capability is impaired due to drugs and alcohol, with a BAC greater than 0.08%.

A VC 23152 violation is a California misdemeanor, and if you did not injure anyone, the following are potential maximum penalties for the first defendants:

  • License suspension for a year

  • Up to five years of summary (informal) probation

  • A fine of $1,000

  • A six-month county jail sentence

  • Nine months of a drug and alcohol education program

Chemical Testing Refusal

After the police arrest you for drunk driving, they can ask you to undergo a preliminary alcohol screening (PAS). There are criminal penalties for refusing the PAS test unless you are on probation for a previous drunk driving conviction or you are underage.

On the other hand, after your arrest, you cannot refuse a chemical test without consequences. The implied consent law presumes that you have agreed to chemical testing for BAC if police legally arrest you for drunk driving.

You are not entitled to refuse the chemical testing after your arrest on the grounds you believe the police wrongfully arrested you. However, when the court later learns that your arrest or DUI sobriety stop was unlawful, it will dismiss the DUI criminal charges even if your tests show you were drunk.

Failing to follow the law enforcer’s instructions can be considered a chemical test refusal. Under the implied consent law, you have agreed to the chemical testing. You can request another test if the police fail to give you a choice. You can challenge the results in court if the police do not follow the procedure.

Specific diseases can prevent or excuse taking certain chemical tests. For instance, you can refuse a blood test if you suffer from a blood clotting disease or a cardiovascular ailment for which you are taking anticoagulant medication. The health conditions will not prevent you from the requirement of other chemical tests.

The law does not excuse you from chemical testing if you are unconscious or injured. The police can justify the refusal if you have an injury that prevents you from giving meaningful consent. Please note your chemical test refusal is not excused if you cannot provide informed consent due to your consumption of drugs or alcohol.

If you cannot complete the chemical tests for reasons beyond you, the police should allow you to take another test. Nonetheless, a willing failure to complete the chemical test is a refusal.

Different Types of Chemical Test Refusal

The concept of chemical testing refusal is not as straightforward as it seems. The following situations can be unknowingly considered refusal:

  • The police will allow you to submit to the testing once — If you initially refuse to take your chemical test, you are not legally entitled to change your mind. The law enforcers are not legally tasked to give you a second opportunity.

  • Failing to select your chemical test is refusal — While the Miranda warning allows you to remain silent after your arrest, that does not mean you cannot choose the chemical test to take following your drunk driving arrest. If the police ask you to select your ideal test and you fail to respond, the silence is deemed a refusal.

  • You do not have a right to seek legal assistance before your chemical test — While you are entitled to consult a defense attorney after your arrest, this right does not apply to chemical tests after your DUI arrest.

  • You are entitled to have your physician present during your chemical test to observe or conduct the procedure. Trained police officers conduct the tests under Title 17 regulations.

Criminal Penalties and Consequences for Chemical Test Refusal

If the judge finds you guilty of the chemical refusal, you risk facing enhanced criminal consequences. The penalties will be in addition to and consecutive to your primary DUI sentence. These penalties include the following:

  • First-time drunk driving crime within ten years attracts forty-eight more hours in county jail and nine months in DUI school

  • A second crime within the look-back period attracts 96 more hours in county jail

  • A third drunk driving crime within your look-back period attracts ten more days in county jail

  • A fourth or subsequent DUI offense in ten years attracts 18 more days in county jail

Administrative Consequences

The California Department of Motor Vehicles will suspend your driver’s license if you refuse to take the chemical test. You have ten (10) days after the arrest to request an administrative hearing to fight your suspension.

If you prevail in your case, the DMV will not withdraw your driving privileges. However, if you lose, you risk facing the penalties below:

  • Driver’s license suspension for one year if it is your first drunk driving crime in ten years

  • Driver’s license suspension for two (2) years if this is your second drunk driving crime in ten years

  • A three-year license revocation if this is your third drunk driving crime in ten years

Excessive Speed

VC 23582 is California’s speed enhancement law. The enhancement applies if you have violated DUI laws and drove 20 to 30 miles per hour over the speed limit in a reckless manner. If the judge finds you guilty of drunk driving with the enhancement, you will spend an additional 60 days in jail. The judge cannot drop the enhancement provided it is proven and prosecuted.

Driving above 30 mph over the speed limit on a freeway triggers the enhancement. Also, while on a public street, you only need to be traveling above 20 mph over the limit to face the speed enhancement.

Speeding alone is not enough to prove the sentencing enhancement. The prosecution must verify both reckless driving and excessive speed. According to VC 23103, reckless driving is operating your car in wanton or willful disregard for property or persons’ safety. It happens when an individual knows their conduct can result in damage or harm, and the person deliberately ignores the risk.

DUI Causing Injuries

A DUI is undoubtedly serious enough, but when you add a car accident, you increase the chances of facing more severe penalties depending on the degree of the collision and the injuries and damage to any victim, whether they are passengers or pedestrians.

Before convicting you of DUI causing injury, the prosecutor must prove the following elements of the crime:

  • You drove the motor vehicle while under the influence of alcohol or drugs

  • While you drove the car drunk, you broke the law or failed to perform a lawful duty

  • The illegal conduct or failure to perform the lawful duty caused bodily injuries to somebody else

A drunk driving conviction involving bodily injury to one or multiple victims could enhance your sentence by one more year for each injury victim with a maximum of three years.

When a DUI crime causes injuries to others, it can enhance a misdemeanor to a California felony, mainly if severe bodily injuries happen. It can lead to harsher penalties like substantial fines and extended incarceration sentences. Additionally, the victim can pursue civil litigation, causing financial liabilities.

DUI with a Minor Passenger in Your Car

Per Vehicle Code 23572, a California misdemeanor drunk driving attracts more penalties if you are operating your car with a minor passenger. The sentence enhancement applies irrespective of the following:

  • Whether you planned to injure the juvenile

  • Your BAC or level of intoxication

  • The driving pattern

The aggravating circumstance increases the jail term as follows:

  • A first-time DUI attracts an additional 48 hours in jail

  • A second-time DUI attracts an additional 10 days in jail

  • A third-time DUI attracts an additional one month in jail

  • A fourth-time DUI attracts an additional three months in jail

Child Endangerment Criminal Charges

If you are charged with DUI with an underage person, the prosecution can also file PC 273a (child endangerment) charges against you.

If your conduct did not create a risk of death or great bodily injuries, the PC 273a charges are California misdemeanor punishable by a fine of $1,000 and six months in county jail. Otherwise, the prosecutor files the crime as a felony that carries the following maximum penalties:

  • Six years in state prison

  • A fine of $10,000

DUI Causing Death

DUI murder is also called a Watson murder. The prosecutor files these charges if you have a previous DUI conviction and you kill somebody else while driving under the influence.

Before convicting you, the judge must prove you acted with implied malice. It requires the prosecution to establish the facts of the offense below:

  • You intentionally drove your car while drunk, and it led to another person’s demise

  • The DUI’s natural consequences threatened human life

  • You knowingly acted with a conscious disregard of that risk

When verifying implied malice, the prosecution must prove you knew of the risks of impaired driving. Typically, the prosecutor does this by proving that:

  • You signed or read a Watson admonition for the previous drunk driving conviction

  • You completed DUI school for your previous drunk driving conviction

  • You have specialized knowledge of the risks of DUI

Watson's murder is a second-degree DUI murder. It is punishable by the following potential penalties:

  • Fifteen years to life imprisonment

  • $10,000 in fine

The crime is a strike under the “Three Strikes” law. If you have a previous felony conviction and the court later convicts you of another felony, you will serve twice the sentence for the subsequent crime. And if you have two strikes and commit another felony, you will serve twenty-five years to life imprisonment.

More Penalties and Consequences for Injured Survivors

You will also face additional incarceration time if more victims survive the collision. The amount that will enhance the sentence is as follows:

  • Three to six years for every surviving victim who sustained great bodily injuries (substantial injuries)

  • A maximum of three years for every individual with less severe injuries

How to Fight the Criminal Charges

Some of the legal strategies your lawyer could use to fight these criminal charges include the following:

  • You did not operate the vehicle while intoxicated — If you did not operate the car while drunk, then the judge cannot sentence you for DUI murder. Therefore, your lawyer can use different methods to challenge your underlying arrest or DUI. For instance, they can argue that you were not the driver or that the chemical test results are inaccurate.

  • You did not cause the accident — While you might have driven the vehicle while drunk, it does not mean you caused the collision. Your defense attorney can work with accident reconstruction experts to prove what occurred.

  • You did not act with implied malice — This is the most challenging element for prosecutors to establish. The crime requires robust proof that you drove recklessly and had a high BAC. It presents your seasoned defense attorney with an opportunity to challenge your accusations.

  • Police misconduct — If you believe the police violated your legal rights, your lawyer can bring a Pitchess motion to acquire the police officer’s record. Typically, it leads to the judge dismissing the evidence. It can result in a plea bargain to less severe charges like wet reckless or vehicular manslaughter or even a case dismissal.

DUI With a BAC Above 0.15%

The legislature acknowledges that not every DUI criminal activity is the same and that a motorist with a higher BAC increases the risk of accidents and injuries to other road users. Driving your car above the legal BAC limit of 0.08% is a crime in California. The legislature later added Vehicle Code Section 23578, which offers sentence enhancements for any driver with a BAC of at least 0.15 percent.

Before prosecuting you, the prosecution will review your incident reports, among other pieces of proof. The prosecution will also focus on your BAC results. If the BAC exceeds 0.15%, they will add the 0.15% or above accusation when filing your criminal allegation.

A blood alcohol concentration of 0.15 percent is almost twice the lawful limit, and motorists at this intoxication degree could be a threat to other road users and themselves. Consequently, judges and prosecutors take the charges seriously. Some of the penalties you will face include:

  • Completing an AB762 class that takes six months or an AB1353 class vs. AS for nine months

  • Complying with additional probation conditions like community service and participating in alcohol educational programs

The California Department of Motor Vehicles will not suspend your license. However, it will not restore your driving privilege until you have completed your compulsory alcohol educational program. In other words, you will have a suspended or restricted driver’s license for an extended duration. Additionally, you will install an ignition interlock device in your car for an extended duration.

Driving With a BAC Above 0.20%

If the police arrest you with a BAC above 0.20%, the prosecutor will charge you with DUI and a 0.20% BAC allegation under VC 23538(b)(2). A BAC of 0.20% is two and a half times the lawful limit and motorists with high BACs are likely to cause accidents. Consequently, the legislature increased penalties for drivers with high blood alcohol concentrations, even when they do not have previous drunk driving convictions.

The penalties include the following:

  • Taking an AB1353 alcohol education program for nine months

  • Adhering to probation terms like community service, wearing an alcohol monitoring bracelet, and attending Alcoholics Anonymous (AA) meetings

  • If you were involved in an accident, you should pay restitution to every victim for the damages incurred.

If the judge orders you to attend the alcohol educational program, they will notify the DMV and your unrestricted driving privileges will not be restored until you complete the class. However, you can install an IID in your car until the DMV restores your driver’s license.

Find a Proactive Drunk Driving Defense Counsel Near Me

Aggravated DUI happens when you drive your car while drunk, and you commit a gross violation of traffic laws or threaten another individual’s life. These circumstances make aggravated DUI carry more severe penalties than standard DUI, but strong and persuasive legal strategies can make a difference in the case outcome. The skilled legal team at San Diego DUI Attorney recognizes your DUI criminal case has unique challenges and circumstances. Our approach is individualized, and we can dedicate time to understand the situation and develop defense strategies that align with your goals and needs. We can also stand with you throughout the legal process. Please call our office at 619-535-7150 to book an initial consultation and get a free case review.