California Aggravated DUI

Learn about aggravating factors when charged with a DUI in California.

In California, like all states, it’s a crime to operate a vehicle with a blood alcohol content of .08 or higher. If arrested and convicted for this crime, judges typically apply a set of minimum and maximum sentencing guidelines. When determining the sentence, judges and prosecutors commonly weigh mitigating and aggravating factors.

What are mitigating factors?

Mitigating factors reduce the punishment because they may explain or excuse the bad behavior. For example, if impairment was the result of a lawfully prescribed medication, or the driver had an otherwise spotless driving record and his .BAC just barely cracked .08, or the driver has voluntarily completed a substance abuse program, courts and prosecutors may be inclined to apply a minimum rather than a maximum sentence.

What are typical aggravating factors?

On the other hand, if there are aggravating factors present, prosecutors and courts are less likely to provide a lenient sentence. This may be for two reasons: public pressure in higher-profile DUI arrests and state laws requiring stiffer sentences. DUIs are a hot button issue for elected (and appointed officials) and the days when a judge or prosecutor could sweep a terrible DUI accident off the record have faded away in most jurisdictions. At the same time, recognizing that not all DUIs are the same, lobbying groups such as M.A.D.D. have applied to state legislatures to build aggravating factors into the law. Typically aggravating factors include prior DUI convictions, reckless driving or speeding, driving while a license is suspended, causing serious personal injury to another person, or a DUI arrest with a child present (ages defining a child vary from state to state)

California’s approach

Some states such as California consider the level of the driver’s blood alcohol content (BAC). In California, a BAC above .15% is considered excessive and a potentially aggravating factor (referred to as a “special factor”). California has incorporated the following factors as special factors justifying enhancement: 

  • Excessive Blood Alcohol or Refusal to Take Chemical Testing: Enhanced Penalties V.C. 23578.  If concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test.
  • Minor Passenger Enhanced Penalty: V.C. 23572. If a minor under 14 years of age was a passenger in the vehicle at the time of the offense.
  • Multiple Victims Enhanced Penalty.  V.C. 23558.  If injury or death is caused to more than one victim in any one instance
  • Excessive Speed: V.C. 23582.  If driver was operating more than 20 or mph over speed limit on street or over 30 mph on a highway.
  • Also, prior DUIs or Felony DUIs will results in enhanced penalties (V.C. 23580, 23550 and 23550.5) and a DUI in a construction zone will result in enhanced fines.

Seek an attorney’s advice

Although many DUIs can be handled without the assistance of an attorney, an attorney’s counsel is strongly recommended if arrested for a DUI with aggravating factors (such as an elevated BAC). That’s because when aggravating factors are present, the penalties are so much more severe and the effects can stay with you for much longer than a typical DUI.

Dealing With a DUI?

If you're facing a DUI charge in California, see the following links for more information on what to expect:

  1. CA DUI Basics: FAQ's
  2. What are the Penalties/Consequences of a Conviction?
  3. Should You Go For a Plea Bargain?
  4. Blood & Breath Tests: How they Affect Your Case
  5. What Happens if You Don't Take the Breathalyzer or Blood Test?
  6. Five Things To Know About a DUI Case in California
  7. What Happens Before the Trial?
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