DUI Special Allegations

Prosecutors can charge you with a DUI and add Special Allegations related to that charge. Because of this, some DUI cases are more serious than others. For example, having a high BAC, prior DUI conviction, or refusing a chemical test make your DUI case more serious. Because these are considered more serious DUIs, there are more serious punishments if the court (or jury) finds the special allegations to be true.

DUI Special Allegations for Prior Convictions

For example, there are additional penalties for a DUI conviction, if you have prior DUIs within ten years of your current DUI.

	With Probation	Without Probation
2nd DUI within 10 years	96 hours to 1 year, or 10 days to 1 year in jail	90 days to 1 year in jail
3rd DUI within 10 years	120 days to 1 year in jail	120 days to 1 year in jail
4th DUI within 10 years	180 days to 1 year in jail	16 months, or 2- or 3-years imprisonment

DUI Special Allegation for High BAC

In addition to prior conditions, there are also increased penalties for having a high Blood Alcohol Content (BAC). Under Vehicle Code 23578, “is convicted of a violation of Section 23152 or 23153, the court shall consider a 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 breath or urine test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

If the prosecution proves your BAC was .15 or higher, there may be additional punishment, making your DUI more serious. For example, this could include an increased jail sentence, community service, and a longer DUI program.

Under Vehicle Code 23538(b)(2) the court must “refer a first offender whose BAC was .20 percent or more… to participate for at least nine months or longer, as ordered by the court.”

DUI Special Allegation for Refusing a Chemical Test

Furthermore, the court can impose additional penalties imposed if you refuse a chemical test. To prove this allegation, the prosecution must prove:

1. An officer asked you to submit to a chemical test;
2. The officer fully advised you of the requirement to submit to a test AND the consequences of not submitting to a test;
3. You willfully refused to submit to or complete the test; AND
4. The officer lawfully arrested you and had reasonable cause to believe that you were driving a motor vehicle in violation of Vehicle Code section 23140, 23152, 23153.

If the prosecution can prove those four items, the court can consider giving you additional penalties. The court must refer you to at least a nine-month long program if this is your first DUI offense. This is more serious than a DUI, with the minimum length of the standard DUI program at three-months.

Furthermore, there are additional penalties for refusing a chemical test from the DMV. If the DMV finds you refused a chemical test, on a first DUI, they will suspend your license for 1 year. You will NOT be able to obtain a restricted license after a refusal finding. This suspension period gets longer if you have prior DUIs. You can read more about this here.

DUI Special Allegation for Driving at Excessive Speed

Under Vehicle Code 23582(a), “Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.”

Here the prosecutor would have to prove the underling DUI charges beyond a reasonable doubt, AND in addition that:

1. You were driving 30 or more miles per hour over the maximum speed limit on a freeway; OR
2. You were driving 20 or more miles per hour over the maximum speed on any other street or highway.

Ultimately, if the prosecutor proves those allegations, you will receive additional punishment of 60 days in the county jail. Generally, prosecutors will rely on the evidence of the officer’s observations at the time of your stop.

DUI Special Allegation for Having Minor Passengers Under the Age of 14

Under Vehicle Code 23572, there are additional penalties for a DUI conviction, if at the time of the DUI, you had a passenger under the age of 14 in the vehicle. The prosecution must prove the underlying DUI charge and then, they must also prove that a minor under 14 years old was in the vehicle. Afterward, the court will sentence you to additional penalties.

The penalties for this special allegation depend on your prior DUI history. For example, if you are convicted of your first DUI, the court will add an additional 48 continuous hours in county jail. Furthermore, additional convictions have more serious penalties.

1st DUI	Adds an additional 48 continuous hours in county jail.
2nd DUI	Adds an additional 10 days in county jail.
3rd DUI	Adds an additional 30 days in the county jail.
4th DUI	Adds an additional 90 days in the county jail.

Need more information about DUI Charges and Defenses?

DUI cases are complex and each one is unique. Whether you are facing a simple DUI, or a DUI with additional allegations, or a DUI with injury, we encourage you to speak to an experienced criminal defense and DUI attorney. Especially, someone who can address all of the specifics of your particular case. Feel free to call 858-255-1181 for a free consultation; we are here to help.

In addition, you can read more about common issues in DUI cases here, or about DUI with Injury cases here.