It is rare for a 4th DUI offender to be given the benefit of the doubt in California criminal courts. If you have been charged with a fourth violation of VC 23152, you should expect the prosecuting attorney to be keen on every detail of your case both in court and during a plea bargain. Prosecutors and judges rarely believe a 4th DUI offender is not a threat anymore, or they have ultimately learned their lesson. Therefore, due to the expected harsher penalties, we highly encourage any 4th-time offender to seek expert legal counsel.

At Orange County DUI Defense Lawyer, our attorneys boast years of experience in representing repeat offenders in court. Thus, they can help draw a solid defense that would yield the best probable outcome for your case. In this article, we look at what to expect when charged with a 4th DUI offense and what you should do.

4th Offense DUI - When is it Charged?

In California, a person may be convicted of a DUI offense if he/she operates a vehicle with a detectable amount of alcohol, drugs, or both in his/her blood system or if he/she drives with a blood alcohol concentration of .08% or higher. If within ten years, you get arrested for the fourth time for driving under the influence, you will be charged with a 4th DUI offense. Unlike the 1st, 2nd, and 3rd DUIs which are misdemeanors, a 4th offense DUI is a felony. Hence, it is sometimes referred to as felony DUI.

Note that a wet reckless conviction counts as a DUI conviction, and therefore counted as a previous conviction. Therefore, if for example, you have two DUI convictions and one wet reckless conviction, you will be charged with a 4th DUI offense if you are caught drunk driving again within ten years.

The 4th DUI Process

Unlike other California offenses whose cases involve only one step where the cases are handled in court, driving under the influence is a technical and complex offense that involves two different steps. However, the arrest and conviction process for a 4th DUI offense is similar to other DUI offenses.

The Arrest

The process begins when you get pulled over by police who have reason to suspect you are driving under the influence. The police officer will request you to take a Breathalyzer and field sobriety tests to determine whether you are impaired. If you fail both of these tests, the officer will arrest you and take you to a hospital, jail, or police station where he/she will request you to do a breath or blood test, which determines your blood alcohol concentration (BAC). Note that the law requires you to take these tests. Refusing to take them may subject you to tougher penalties and a driver’s license suspension for one year.

If the chemical test registers a BAC of 0.08% or more, you will face two charges. That is, DUI under (VC 23152a) and driving with a BAC of 0.08% or more (VC 23152b) for the fourth time since your criminal history indicates you have had three prior DUI convictions. VC 23152a is the California subjective standard for DUI while VC 23152b is the DUI per se law. The per se law is based on the presumption that as long as your BAC is .08% or higher, you’re guilty of DUI. Thus, a judge may convict you of DUI even if you technically were not under the influence as long as your BAC was higher than the stipulated limit.

After you have been charged with DUI, you will be booked. Based on your 1st, 2nd, and 3rd conviction and the facts of your offense, you may be released after posting bail. Upon release, the officer will give you two documents: a temporary driver’s license, which is pink in color and a citation requiring you to appear in court. The temporary license lasts for thirty days. Your original license is normally confiscated and mailed to the Department of Motor Vehicle (DMV). However, if you are a non-California resident, the police cannot confiscate your physical license when arrested for DUI.

The DMV Process

Apart from the criminal court proceedings, a DMV hearing will also be conducted to determine whether your driver’s license should be suspended. However, unlike the court hearing, which is automatic, you have to request a DMV hearing. You have until ten days from the time you were arrested for requesting this hearing. Note that the ten days are inclusive of weekends. If you don’t request the hearing, you will lose your right to a hearing permanently, and your driver’s license will automatically go into suspension once the thirty days of the temporary license validity elapse.

However, if you do demand a hearing within ten days, the license suspension may be delayed until after the outcome of the hearing.  In case you hire an attorney, he or she can demand the hearing on your behalf. We usually advise that you let an experienced attorney do this for you since he or she can schedule the hearing to a time you would have prepared enough. He or she may also influence who hears your case.

Generally, if your attorney is conducting the hearing for you, you may or may not attend. Your attorney’s main purpose is to persuade the DMV not to revoke your license. However, the attorney can also utilize the hearing as a chance to collect proof that he/she may use in court.

After the hearing, the hearing officer will issue his/her findings. It takes one to thirty days for the findings to be ready, and they will be mailed to you. If the findings are in your favor, the DMV will not suspend your license. However, if the findings are against you, your license will go into suspension within a few days after receiving notice.

Note that irrespective of the DMV hearing outcome, if charges are filed against you, you will still undergo the criminal court process. Also, even if the DMV does not suspend your license, the license may still be suspended if you are convicted of a 4th offense DUI in a criminal court.

Elements of 4th DUI Offense

The prosecuting attorney is required to present proof beyond a reasonable doubt that when the officer arrested you, you were operating a vehicle while intoxicated with alcohol, drugs, or both, or you were operating a vehicle with a blood alcohol concentration of 0.08% for you to be convicted. Additionally, he or she has to show that you have had three prior DUI convictions, and the current is your fourth.

Prior convictions include a combination of three of the following:

  • VC 23152a driving under the influence
  • VC 23152b driving with a BAC of .08%
  • VC 23103.5 wet reckless
  • VC 23153 DUI causing injury including gross vehicular manslaughter charged under PC 191.5

For the prosecutor to show that you have past DUI convictions, he or she uses court records, DMV records, and any certificates that show the completion of court-approved drug or alcohol programs. California records are used to show past California wet reckless or DUI convictions. On the other hand, court and DMV records from other States are used to show any out-of-California offenses that a judge would consider DUI convictions in California.

Penalties for 4th DUI Offense

Driving while intoxicated with drugs, alcohol, or both is a priorable offense under California law. A priorable offense refers to an offense whose punishment increases depending on the number of times you have committed the offense. DUI in California is priorable to up to ten years, meaning that after ten years of a DUI conviction, a succeeding DUI offense will not be charged as a subsequent offense. Rather, it will be charged anew as a first offense.

Therefore, since the punishment increases based on the number of convictions, penalties for a 4th offense would be more severe. The offense has both administrative and criminal penalties.

Administrative Penalties

Many California crimes do not have any formal repercussions unless you’re found guilty of that crime. However, with driving under the influence offenses, it is quite the opposite. In case you get charged with drunk driving, you might face administrative consequences like fees and driver’s license suspension, regardless of whether or not the criminal court would ultimately find you guilty.

The administrative punishment is imposed by the DMV. For a 4th DUI offense, the DMV may revoke your license for three years, and up to four years if you refuse to take chemical tests. Note that if your license is suspended by the DMV, then the court judge dismisses your charges, your DUI defense attorney may help reinstate the license.

Criminal Penalties

4th time DUI offenders face felony charges. If convicted, the penalties would include:

  • Sixteen months to up to three years of a State prison sentence
  • A maximum fine of $1,000. The amount will increase after the addition of penalty assessments and fees.
  • Mandatory ignition interlock device (IID) installation for at least one year
  • Up to four years of driver’s license suspension. The law allows for the DMV license suspension to overlap with the court’s suspension so the total suspension time won’t go beyond four years.
  • Designation as a habitual traffic offender for three years by the DMV
  • Up to five years of formal probation
  • A thirty-month DUI School program. The DUI School must be approved by the court.

4th DUI Causing an Injury

If, as a result of your 4th DUI, another person sustained injuries, you will be subjected to the following penalties:

  • Sixteen months to up to ten years of a State Prison sentence and an additional and consecutive one to six years of state prison sentence based on the number of people you injured and the severity of their injuries.
  • A maximum fine of $5,000
  • Eighteen to thirty months of alcohol or drug program
  • A strike on your criminal record as per the Three strike’s law
  • A three-year habitual traffic offender title
  • Restitution to the injured victims
  • Up to three years of compulsory IID installation for you to continue operating your vehicle
  • License suspension

A 4th DUI offense that causes death is sentenced differently. The punishment for this offense may include a strike on your criminal record and life imprisonment.

Probation Terms and Conditions

If your sentence includes probation, you have to adhere to the following conditions:

  • You should not operate a vehicle with any detectable quantity of alcohol/ drugs in your system.
  • You should not decline to take chemical tests in case you are rearrested for DUI.
  • You should not commit any additional offenses

Based on the facts of your case, you may also be subjected to the following conditions:

  • Attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) meetings
  • You have to participate in the Mothers Against Drunk Driving (MADD) Victim Impact Program.
  • Install an IID in any motor vehicle you will operate.
  • Restitution in case your DUI act resulted in an injury or damage.

Violating these terms and conditions may lead to the nullification of your probation term, and the judge may impose a new sentence.

Aggravating Factors Which May Enhance a 4th DUI Offense Sentence

When specific factors are at play in your 4th DUI case, they could negatively affect your sentencing. The factors may lead a judge to believe your offense was more serious compared to an ordinary driving under the influence case. These are what we call aggravated factors. The court judge considers these factors when passing his/her sentence, which may lead to an increase in your prison sentence or penalties. However, your DUI attorney may succeed in fighting for the elimination of these factors so you may face a lenient sentence.

Aggravating factors that may impact your case include:

  • DUI hit and run
  • DUI on a revoked/expired license
  • DUI with a child passenger
  • DUI while on probation
  • DUI with a BAC of .15% or higher
  • Reckless driving/DUI over the stipulated speed limit
  • Refusing to submit to chemical testing
  • DUI causing an accident
  • DUI when you’re under twenty-one years old

The kind of penalty enhancement you will be subjected to is based on which aggravating factor is present in your case and your past DUI convictions.

Legal Defenses for a 4th DUI Offense

Most of the legal defenses that your attorney can present in court against a 4th offense DUI are similar to defenses of all other DUIs. Workable defenses that may be used to prove your innocence include the following.

Lack of Probable Cause for an Arrest

A peace officer doesn’t have a right under the law to pull you over if he/she has no valid reason to do so. In case you are pulled over because your vehicle has a damaged tail light, and it turns out you are driving while intoxicated, it would be right for the officer to detain you.

Even so, the officer needs to have a legal reason to request you to do a Breathalyzer or field sobriety test. Driving with a damaged tail light is not a valid reason that may lead an officer to request for the tests. He or she may compel you to do the tests only if he/she notices behaviors that suggest you may be impaired. For example, having a hard time following the conversation, having an open and visible alcoholic can in your vehicle or if you have an alcoholic odor.

Therefore, your attorney can request to review the dash camera footage of the scene of your arrest to find out if the officer had a reasonable suspicion to pull you over or a valid reason to arrest you. If there was no reason to do either of these, the evidence collected on the scene of the arrest is inadmissible in court.

Misleading Field Sobriety Test Results

If you have been charged with a 4th DUI offense and the prosecuting attorney’s proof includes the field sobriety test results, your lawyer may succeed in challenging the results as a defense strategy.

The prosecuting team, which includes the arresting officer, prosecuting attorney, and the DUI criminalist often heavily rely on field sobriety test results. The arresting officer and other experts will, most of the time, testify on your poor performance on the tests. Consequently, they would conclude that you should be convicted of DUI.

If your attorney can well explain how your coordination and balance during field sobriety tests may have been affected by nerves, fatigue, flat feet, your clothing, your natural physical coordination, etc. leading to false results, you may not be convicted.

Use of Improper Procedures

Failure by the arresting officer to follow the right procedures when arresting you or collecting proof is a strong defense against your 4th DUI charges. In California, a DUI investigation should be conducted following set procedures to protect the alleged offender from police misconduct. The procedures include Title 17 regulations. Title 17 regulations govern how DUI chemical tests should be conducted. It requires:

  1. An observation period of fifteen minutes
  2. Proper test administration
  3. The proper and adequate training of the people administering the tests
  4. Regular maintenance and calibration of the testing instruments
  5. Proper gathering, handling, as well as storage of urine or blood samples

Failure to strictly observe these regulations may lead to tainted blood, urine, or breath test results. Your attorney can use the failure to adhere to any of the regulations to question the entire investigation and defend successfully against your DUI charges.

  1. A necessity than an officer has reasonable suspicion or probable cause to pull you over, arrest you, or conduct a DUI investigation. 
  2. A necessity that an officer read Miranda rights to you before conducting a DUI interrogation.

In case any of the procedures were violated, your attorney may request a motion to suspend whereby he/she would seek to exclude any proof that was not properly acquired and convince the prosecutor to reduce or dismiss your charges.

The BAC Results were Falsely High

Falsely high blood alcohol concentration test results is also a valid defense, especially if you were charged with VC 23152b driving with a BAC of .08% or more. Before an officer administers the Breathalyzer test, he/she must observe you continuously for fifteen minutes. The reason for doing this is to ensure that within this time, you don’t put any alcoholic substance in your mouth including mouthwash or mouth spray, drugs, or medicines (like cough syrup or homeopathic medicines).

Additionally, the officer has to ensure you don’t burp, belch, or regurgitate. This is because either of these actions may bring alcohol into your mouth from the stomach resulting in residual mouth alcohol. This can, in turn, lead to falsely high BAC results.

Rising BAC

Based on the time you drank alcohol before driving, your BAC might have been lower when you drove than when you took the chemical tests. Note that it’s not illegal to drink before driving. What’s illegal is driving while impaired. Therefore, if your BAC was still on the rise when the officer stopped you, the chemical test results may be false. It could be that your BAC rose past the stipulated limit during DUI investigation and not when you were driving.

You Had Symptoms of Intoxication, But You Were Not Intoxicated

Your attorney can contest the prosecutor’s use of physical intoxication signs to prove you were driving while intoxicated. One’s physical appearance is a major consideration in his/her DUI investigation. An arresting officer will, with no doubt, attest that one was intoxicated because they had slurred speech, red & watery eyes, an alcoholic odor, or an unstable gait.

However, an experienced DUI attorney can successfully defend you by arguing that the intoxication signs may have been as a result of something else like a cold, allergies, or eye irritation. The attorney can also argue that alcohol doesn’t have an odor; that what is perceived as an alcoholic odor on the breath is a smell of something else also found in non-alcoholic drinks- for instance, hops and malt found in beer.

Find a 4th Offense Orange County DUI Lawyer Near Me

The chances of getting harsher penalties are higher when arrested for a 4th DUI offense as compared to the 1st, 2nd, and 3rd offenses. Thus, you need expert legal representation for you to stand a chance of beating the charges. Contact the Orange County DUI Defense Lawyer at 714-820-9592 to talk to a lawyer about your case. Our lawyers have legal expertise that will enable them to prepare a strong defense that will boost your winning probability.